Karnataka High Court
Shabeena Banu @ Sameena Banu And Ors vs Shriram General, Insurance Co.Ltd & Anr on 18 February, 2020
Bench: G.Narendar, M.Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR.JUSTICE G.NARENDAR
AND
THE HON'BLE MR.JUSTICE M.NAGAPRASANNA
MISCELLANEOUS FIRST APPEAL NO.200117/2017 (MV)
BETWEEN:
01. SHABEENA BANU @ SAMEENA BANU
W/O LATE SAYED HAMEED
AGE: 32 YEARS OCC: HOUSEHOLD
02. SAYED SOIL S/O LATE SAYED HAMEED
AGE: 16 YEARS OCC: STUDENT
03. SANIYA BANU D/O LATE SYED HAMEED
AGE: 11 YEARS OCC: STUDENT
04. ALIYA BANU D/O LATE SAYED HAMEED
AGE: 09 YEARS OCC: STUDENT.
(SINCE APPELLANT NO.2 TO 4,
ARE MINORS REPRESENTED BY THEIR
MOTHER SHABEENA BANU APPELLANT
NO.1 HEREIN)
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05. SMT. HUSSAINBEE
W/O LATE SYED MAHEBOOB ALI
AGE: 61 YEARS OCC: NIL
ALL ARE R/O; H.NO.4-3-169/1,
BEHIND ASHOK DEPOT, MANGALWARPET
MOHAMMAD NAGAR, RAICHUR
TQ & DIST: RAICHUR-584 101.
... APPELLANTS
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADV.,)
AND:
01. SHRIRAM GENERAL, INSURANCE CO. LTD.,
3RD FLOOR, MONARCH CHAMBER,
INFANTRY ROAD, SHIVAJINAGAR,
BANGALORE-560 051.
02. SUDHAKAR A S/O DAVID A,
AGE: MAJOR OCC: OWNER OF JCB VEHICLE
BEARING REG.NO.AP-36/R-5745,
R/O: H.NO.4-92, ITIYALA,
DIST: MAHABOOBNAGAR
TELENGANA STATE-509001.
... RESPONDENTS
(BY SRI SUBHASH MALLAPUR, ADVOCATE for R1
VIDE ORDER DATED 11.12.2019
NOTICE TO R2 IS HELD SUFFICIENT)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF M. V. ACT, PRAYING TO CALL
FOR RECORDS AND MODIFY THE IMPUGNED JUDGMENT
AND AWARD DATED 17.09.2016, PASSED BY THE COURT
II ADDITIONAL, DISTRICT AND SESSIONS JUDGE AT
RAICHUR, IN MVC.NO.459/ 2015.
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THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
M. NAGAPRASANNA J., DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for admission and since the issue lies in a narrow compass, with consent of learned Counsel for the parties, it is taken up for final disposal.
2. The appellants-claimants have challenged the judgment and award dated 17.09.2016 passed in MVC No.459/2015 by the Member, MACT and II Additional District Judge, Raichur ('Tribunal' for short), whereby the Tribunal has fastened the liability of compensation on the registered owner of the vehicle, respondent No.1 herein, on the ground that the driver had an LMV licence and was not eligible to drive the JCB vehicle, which was the cause of the accident.
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3. We have heard Sri Arunkumar Amargundappa, learned counsel for the appellants- claimants and Sri Subhash Mallapur, learned counsel for respondent No.1.
4. Learned Counsel appearing for the claimants would submit that the findings of the Tribunal with regard to satisfying the award of compensation is erroneous, as the Tribunal has fastened the liability on the owner of the vehicle and not on the insurer. Learned Counsel for the claimants would further submit that the notional income of the deceased taken at Rs.6,000/- per month is also erroneous as the year of the accident is 2015 and the notional income ought to have been taken at Rs.8,000/- per month in place of Rs.6,000/-.
5. The issue with regard to fastening the liability on the owner of the vehicle, on the ground that 5 the driver of the offending had only a light motor vehicle licence and was driving a JCB, which is of a particular unladen weight, and the concept of the light motor vehicle driving licence qua the unladen weight and its validity for the purpose of the liability of the insurer is considered in the judgment of the Hon'ble Supreme Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED reported in (2016) 4 SCC 298. The Hon'ble Supreme Court, considering the meaning of the definition 'light motor vehicle' as defined in Section 2(21) of the Motor Vehicle Act, 1988, at paragraph No.59.2, has observed as follows:
"Para 59.2. Whether 'transport vehicle' and 'omnibus' the 'gross vehicle weight' of either of which does not exceed 7500 kg would be a 'light motor vehicle' and also motor car or tractor or a roadroller, 'unladen weight' of which does not exceed 7500 kg and holder of licence to drive class of 'light motor vehicle' as provided in Section 10(2)(d) 6 would be competent to drive a transport vehicle or omnibus, the 'gross vehicle weight' of which does not exceed 7500 kg or a motor car or tractor or roadroller, the 'unladen weight' of which does not exceed 7500 kg ?"
In terms of the afore-extracted judgment of the Hon'ble Supreme Court, a transport vehicle, the gross vehicle weight of which does not exceed 7,500 kg. or a motor car or tractor or a roadroller, the unladen weight of which does not exceed 7500 kg, can be driven by a person holding a light motor vehicle licence.
6. In terms of the law laid down by the Apex Court, the unladen weight of the JCB is less than 7500 kg. and the driver of the offending vehicle holding light motor vehicle licence was eligible to drive the JCB. Therefore, fastening the liability upon the owner of vehicle, is erroneous and warrants 7 interference. Thus, the award of compensation will have to be satisfied by the respondent No.1-insurer.
7. The Tribunal has taken the notional income of the deceased at Rs.6,000/- per month for an accident that occurred in the year 2015. The notional income ought to have been taken is Rs.8,000/- per month as it is now a standardized measure of practice by the Courts, both the High Courts and trial Courts to adopt the notional income as is adopted by the Lok Adalath for the disposal of appeals. The notional income that is adopted is mutually agreed to by both the insurer and the claimants. According to this, the notional income of the deceased will have to be taken at Rs.8,000/- per month. The amount of compensation would be modified accordingly.
8. Taking the notional income at Rs.8,000/- per month, the claimants would be entitled to an 8 enhanced compensation of Rs.3,24,000/- over and above the compensation awarded by the Tribunal.
9. Hence, for the aforesaid reasons, we pass the following:
ORDER
(i) The appeal is allowed in part.
(ii) The judgment and award dated 17.09.2016 passed in MVC.No.459/2015 by the Member, MACT and II Additional District Judge, Raichur, fastening liability upon the owner of the offending vehicle-
respondent No.2 herein, is set-aside.
(iii) Respondent No.1-Insurance Company is directed to satisfy the entire amount of compensation viz., Rs.10,06,000/- + the enhanced compensation of Rs.3,24,000/- to the claimants.
(iv) Insofar as the apportionment of enhanced compensation is concerned, petitioner Nos.1 and 2 would be entitled to 20% each, petitioner Nos.3 and 4 9 would be entitled to 25% each and petitioner No.5 would be entitled to 10%.
(v) Petitioner No.1 is entitled to withdraw the entire 20% of the amount of enhanced compensation.
(vi) The compensation awarded to petitioner Nos.2, 3 and 4 is directed to be kept in fixed deposit in their favour, in any of the nationalized bank till they attain the age of 22 years.
(vii) Petitioner No.1 is at liberty to withdraw the periodical interest on the deposit made in favour of petitioner Nos.2, 3 and 4, till they attain the age of majority.
(viii) The compensation awarded to petitioner No.5 is also directed to be kept in fixed deposit in any nationalized bank for a period of 10 years or till her demise, whichever is later. Petitioner No.5 is also at liberty to withdraw the periodical interest accrued on the said deposit.
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(ix) The judgment and award of the Tribunal is modified in the aforementioned terms.
(x) Office to draw up decree accordingly.
Sd/-
JUDGE Sd/-
JUDGE KJJ/Cs