Karnataka High Court
Smt G C Shashikala vs Smt Gowramma on 17 December, 2015
Author: N.K.Patil
Bench: N.K.Patil
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2015
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE PRADEEP D.WAINGANKAR
MISCELLANEOUS FIRST APPEAL NO.847 OF 2011(MV)
BETWEEN:-
1. SMT. G.C. SHASHIKALA
AGED 45 YEARS
W/O LATE G. CHANDRAMOHAN.
2. SRI. NARAYAN DEVDHAR G.C
AGED ABOUT 24 YEARS
S/O LATE G. CHANDRAMOHAN.
3. MS. NYMISHA G.C
AGED ABOUT 22 YEARS
D/O LATE G. CHANDRAMOHAN.
ALL ARE RESIDING AT
No.163/4, I FLOOR, I CROSS
I MAIN, NAGAPPA STREET
SESHADRIPURAM
BANGALORE - 560 020.
... APPELLANTS
(By Sri: RAMESHA H.E, FOR
Sri: T.N. RAGHUPATHY, ADVOCATE)
AND
1. SMT. GOWRAMMA
-2-
AGED MAJOR
W/O LAKANNA KODIHALLI
KALAGATTA POST
THYAMAGONDLU HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DISTRICT.
(PREVIOUS RC OWNER)
2. SRI. AROGYAPPA
S/O SHANTAPPA
AGED 31 YEARS
DRIVER (DELETED).
3. THE ORIENTAL INSURANCE CO. LTD.
CITY BRANCH No.7
No.44, ANANTHA COMPLEX
NH-4, PEENYA I STAGE
TUMKUR ROAD
BANGALORE - 560 058.
4. SRI. JABBAR KHAN
S/O BOODAN KHAN
ALUR, HUSSAINSAB PALYA
DASANAPURA HOBLI
NELAMANGALA TALUK
BANGALORE NORTH DISTRICT.
(PREVIOUS OWNER)
5. SRI. PARTHA A. SHARATH
S/O DEVARAJA
No.513/1, LAGGERE
BANGALORE NORTH
(PRESENT RC OWNER)
... RESPONDENTS
(By Sri: G. SHANKAR, ADVOCATE FOR R1
Sri: S.V. HEGDE MULKHAND, ADVOCATE FOR R3
R2 DELETED
R4 SERVED & UNREPRESENTED
NOTICE TO R5 HELD SUFFICIENT V/O
DT:15/7/2015)
-3-
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:10.08.2010 PASSED
IN MVC NO.2672/2008 ON THE FILE OF THE JUDGE,
COURT OF SMALL CAUSES, MEMBER, MACT,
METROPOLITIAN AREA, BANGALORE, (SCCH.No.9),
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 31.10.2015 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, PRADEEP D.
WAINGANKAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the appellants-claimants is against the judgment and award dated 10.8.2010 in MVC No.2672/2008 on the file of Motor Accident Claims Tribunal, Bangalore questioning the quantum of compensation awarded by the tribunal and exoneration of Insurer from indemnifying the owner of the vehicle.
2. The brief facts which gave rise to this appeal are as follows:-
One G.K. Chandra Mohan was riding a motor cycle bearing KA-02-ET-2726 on 31.12.2007 at about 3.55 p.m. At that time, a tractor and trailer bearing registration -4- No.KA-02-T-1583 and KA-02-T-1584 came in rash and negligent manner and dashed against the motor cycle, as a result of the accident, G.K. Chandra Mohan fell down and sustained grievous injuries. While undergoing treatment, he died in Sanjeevani Hospital, Rajagopalanagar. He was working for Professional Couriers as a Collection Executive Officer and earning Rs.6,600/- p.m. He was contributing the entire income for the welfare of his family. He was the only bread earner for the family. His wife and children filed a claim petition under Section 166 of the M.V. Act claiming compensation of Rs.37,55,000/- from the owner and insurer of the tractor and trailer. The claim petition was contested by the insurer of the tractor and trailer mainly on the ground that the driver of the tractor and trailer had no valid and effective driving licence as on the date of the accident and thereby the owner of the tractor and trailer committed breach of policy conditions and hence the insurance company sought for dismissal of the claim petition. -5-
3. The claim petition came up for consideration before the tribunal, before whom, on behalf of the claimants, Smt. Shashikala- the wife of the deceased was examined as PW-1 One anrayan Devadar the second claimant was examined as PW-2 and Chandrakanth Rao as PW-3. Ex-P1 to P21 were marked. On behalf of the insurance company, one Sagay Raj was examined as RW1 and Exs-R1 to R3 were marked. The tribunal on appreciation of evidence recorded a finding that the accident occurred on account of negligence of driver of the tractor and trailer. Further, the tribunal determined the 'loss of dependency' at Rs.2,16,000/- by taking the income of the deceased and the multiplier as '9'. Further the tribunal awarded a compensation of Rs.10,000/- towards 'funeral expenses' and Rs.10,000/- towards ;loss of consortium', Rs.15,000/- towards 'loss of estate' and Rs.10,000/- towards 'loss of love and affection'. Thus the tribunal awarded a total compensation of Rs.2,61,000/- and directed the owner of the tractor and trailer to pay the -6- compensation while dismissing the claim petition as against the insurer.
4. Being aggrieved by the quantum of compensation awarded by the tribunal and dismissal of the claim petition as against insurer, this appeal is preferred by the appellants-claimants.
We have heard the learned counsel for the appellants and learned counsel for the respondent No.1 and respondent No.3-insurance company. Perused the records.
5. The learned counsel for the claimants would submit that the compensation awarded by the tribunal under all the heads is on the lower side and it requires to be enhanced considerably. He further submitted that the tribunal has erred in directing the owner of the vehicle involved in the accident to pay the compensation while dismissing the claim petition against the insurance company holding that the driver had no valid and effective driving licence as on the date of the accident. -7-
6. As against this, the learned counsel for the respondent No.3-insurance company would submit that the tribunal on proper appreciation of evidence awarded compensation under all the heads which is just and reasonable. Further, the learned counsel submitted that the driver of the tractor and trailer had licence to drive LMV(NT), but he did not possess the licence to drive transport vehicle and as such the tribunal has rightly dismissed the claim petition as against the insurance company holding that the owner has committed breach of policy conditions.
7. Upon hearing both the learned counsel and on perusal of the entire material on record, the following points would arise for our determination:-
1. Whether the compensation awarded by the tribunal is just and reasonable?
2. Whether the tribunal is justified in dismissing the claim petition against the insurer?-8-
Re-Point No.1:-
The accident and death of the deceased Chandra Mohan in the accident is not in dispute. What has been disputed is the income of the deceased taken by the tribunal at the rate of Rs.3,000/- p.m. Ex-P14 is the salary certificate of the deceased wherein his salary is shown as Rs.6,600/-. The accident is of the year 2007. The claimants are four in number. In that case, the tribunal is not justified in taking the income of the deceased at Rs.3,000/- In view of Ex-P14 the salary certificate, we are inclined to take the income of the deceased at Rs.6,600/-. The tribunal has rightly deducted 1/3rd of the income towards the 'living and personal of the deceased'. The tribunal has rightly taken the multiplier as '9'. Therefore, we determine the loss of dependency by taking the income of the deceased at Rs.6,600/- as Rs.4,75,200/-(Rs.4,400x12x9). So the 'loss of dependency' is determined at Rs.4,75,200/- as against Rs.2,16,000/- determined by the tribunal. Since the deceased left behind his widow, we propose to award Rs.50,000/- towards 'loss -9- of consortium', Rs.75,000/- towards 'loss of love and affection' at the rate of Rs.25,000/- each, Rs.25,000/- 'loss of estate' and Rs.25,000/- towards 'transportation of dead-body and funeral expenses'. Thus we award a total compensation of sum of Rs.6,50,200/- as against Rs.2,61,000/- determined by the tribunal. There shall be enhancement of compensation of Rs.3,89,200/-. Re-Point No.2:-
Coming to the liability to pay the compensation, the tribunal upon going through the Ex-R2 driving licence particulars of the driver Arogyappa issued by the RTO, Rajajinagar, Bangalore, it is held that the driver had no valid and effective driving licence and thereby dismissed the claim petition as against the insurance company. It is seen from Ex-R2 that the driver had licence to drive LMV(non-transport) from 1.9.2005 to 31.8.2025 for a period of 20 years. He had licence to drive LMV maxi cab w.e.f. 1.9.2005. Further it is evident from Ex-R2 the driving licence particulars that his driving licence to drive transport vehicle was renewed from 24.10.2008 to
- 10 -
28.10.2011. Thus as on the date of the accident, i.e., 31.12.2007, he had no licence to drive LMV transport vehicle. As such, the tribunal rightly dismissed the claim petition as against insurance company holding that the owner of the tractor and trailer has committed a breach of policy conditions. The decision relied upon by the learned counsel for the appellants cannot be made applicable to the facts of the case for the reason that in that case, the driver had licence to drive LMV transport vehicle, though there was no specific endorsement to drive a particular type of vehicle involved in the accident. Whereas in the case on hand, the driver was driving a transport vehicle.
He had no licence to drive transport vehicle. He had licence to drive non-transport vehicle. As such, the question of interference by this Court in the finding recorded by the Tribunal to that effect given by the tribunal does not arise.
8. For the foregoing reasons, the appeal filed by the claimants is allowed-in-part. The judgment and award dated 10.8.2010 in MVC No.2672/2008 on the file of
- 11 -
Motor Accident Claims Tribunal, Bangalore stand modified awarding enhanced compensation Rs.3,89,200/- over the above the compensation awarded by the tribunal, together with interest at 6% p.a. thereon from the date of petition till the date of realization, from the respondent No.5- Partha A. Sharath- the owner of the vehicle.
The respondent No.5-owner of the vehicle is directed to deposit the compensation awarded together with interest within a period of three weeks from the date of receipt of copy of the judgment.
In the event of deposit, an amount of Rs.2.00 lakhs with proportionate interest shall be invested in the name of 1st appellant-the wife of the deceased Smt. Shashikala in the Fixed Deposit in any Nationalised Bank/Schedule Bank/Grameena Bank for a period of 5 years and renewable for another five years, with liberty to withdraw the periodical interest accrued on it.
- 12 -
The balance amount with interest shall be released to appellant No.1 immediately on deposit by the insurance company.
Office to draw award accordingly.
Sd/-
JUDGE Sd/-
JUDGE *mn/-