Karnataka High Court
Yallamma W/O Ramappa Ganakalli vs Bajaj Alianz General Insurance Co.Ltd ... on 2 July, 2019
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY 2019
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MFA NO.31520/2010
C/W
MFA No.32304/2010
IN MFA No.31520/2010:
BETWEEN:
Yallamma W/o Ramappa Ganakalli
Age: 57 years, Occ: Household
R/o Ambedkar Nagar, Hutti
Now residing at Siyatalab, Raichur
... Appellant
(By Sri Basavaraj R. Math, Advocate)
AND:
1. Bajaj Alianz General Insurance Co. Ltd.
Through its Branch Offices
Station Road, Raichur
2. Ramangouda S/o Husenayya
Age: Major, Occ: Business and
Owner of Bajaj Discover - ES-2005
Bearing its Engine No.DSG-BMG-12970 &
Chasis No.DSV-BMG-93475
R/o Mallapur Camp, Tq. Lingasugur
... Respondents
(Sri Sanjay M. Joshi, Advocate for R1;
V/O Dtd. 30.11.2012, notice to R2 is held sufficient)
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This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, against the judgment and
award dated 20.04.2010 passed in MVC No.98/2008 on the
file of the Principal District Judge (M.A.C.T.), Raichur,
dismissing the claim petition. Thereby praying to allow the
claim petition.
IN MFA No.32304/2010:
BETWEEN:
1. Pavalappa S/o Yallappa
Age: 58 years
Occ: Agricultural Coolie
2. Amarawwa W/o Pawalappa
Age: 48 years, Occ: Household
3. Nirmala D/o Pawalappa
Age: 20 years, Occ: Nil
4. Sunitha D/o Pawalappa
Age: 19 years
All are R/o Hutti
Now residing at Siya Talab, Raichur
... Appellants
(By Sri Basavaraj R. Math, Advocate)
AND:
1. Bajaj Alianz General Insurance Co. Ltd.
Through its Branch Offices
Station Road, Raichur
2. Ramangouda S/o Husenayya
Age: Major, Occ: Business and
Owner of Bajaj Discover - ES-2005
Bearing its Engine No.DSG-BMG-12970 &
3
Chasis No.DSV-BMG-93475
R/o Mallapur Camp, Tq. Lingasugur
... Respondents
(Sri Sanjay M. Joshi, Advocate for R1;
V/O Dtd. 17.06.2014, notice to R2 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, against the judgment and
award dated 20.04.2010 passed in MVC No.577/2007 on the
file of the Principal District Judge (M.A.C.T.), Raichur, partly
allowing the claim petition and seeking enhancement of
compensation.
These appeals coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
These appeals are by the claimants in MVC Nos.577/2007 and 98/2008 on the file of the Principal District Judge (M.A.C.T.) at Raichur. The Tribunal has dismissed the claim petition in MVC No.98/2008, but has partly allowed the claim petition in MVC No.577/2007 directing the respondent No.1-owner of the motorcycle involved in the accident to pay the compensation while absolving the Insurer of the motorcycle of its liability. The appeal in MFA No.32304/2010 is therefore filed seeking enhancement 4 of compensation awarded by the Tribunal and also questioning the Insurer of the motorcycle being absolved of its liability to pay the compensation. The appeal in MFA No.31520/2010 is filed challenging the rejection of the claim petition in MVC No.98/2008.
2. The claim petition in MVC No.577/2007 is filed by the parents and the unmarried sisters of the deceased Joyratna, who succumbed to the injuries suffered by him in the road accident on 13.04.2006 when he was riding on the pillion of the subject motorcycle. The claim petition in MVC No.98/2008 is filed under Section 163-A of the Motor Vehicles Act (for short 'the Act') by the mother of the deceased Anjaneya, the rider of the motorcycle.
3. The deceased Anjaneya was riding a motorcycle on 13.04.2006 with the deceased Joyratna on his pillion. The deceased Anjaneya tried to avoid a cyclist who was coming in a rash and negligent manner 5 from the opposite side, and in trying to avoid the cyclist, the deceased Anjaneya hit a Bridgestone. Both the deceased Anjaneya and Joyratna succumbed to the injuries. The parents and the unmarried sisters of the deceased Joyratna filed the petition in MVC No.577/2007 under Section 166 of the Act, while the mother of the deceased Anjaneya filed the claim petition in MVC No.98/2008 under Section 163-A of the Act. They arrayed the owner of the motorcycle and the Insurer as party respondents.
4. The owner of the motorcycle appeared through his counsel. He did not file object statement in MVC No.577/2007, but filed his objection statement in MVC No.98/2008. The owner of the motorcycle admitted that the deceased Anjaneya was working with him as a Supervisor, but contended that the accident was because of the deceased's own negligence. The owner of the motorcycle further contended that even if there could be any liability, because he had obtained an 6 insurance policy, the Insurer had to pay the compensation. The Insurer, on the other hand, filed statement of objections in both the claim petitions. The Insurer specifically contended that the Insurer could not be liable because the deceased Anjaneya was driving the vehicle without a licence, and in fact the owner of the motorcycle was charge sheeted by the Lingasugur police for permitting the deceased Anjaneya to drive the motorcycle without a driving licence.
5. The claimant No.1 in MVC No.577/2007, the father of the deceased Joyratna examined himself as PW.1 and the claimant in MVC No.98/2008, the mother of the deceased Anjaneya, examined herself as PW.2. The claimants marked Exs.P1 to P8, which include the police records. The Insurer examined one of its officers as RW.1 and Sri G.R.Shivamurthy, CPI, Lingasugur as RW.2. The Insurer marked Exs.R1 to R3 and D4, which include a copy of the Insurance Policy, notice issued to 7 Ramanagouda, the owner of the motorcycle and the check-report-cum receipt issued to the said Ramanagouda.
6. The Tribunal on appreciation of the evidence, in answering the Issues framed on the reason for the accident and from whom the claimants would be entitled for compensation, concluded that the accident was because of the rash and negligent driving of the deceased Anjaneya. The mother of the deceased Anjaneya would not be entitled to claim compensation even under Section 163-A of the Act because the deceased Anjaneya himself was responsible for his death. As regards the claim by the parents/unmarried sisters of the deceased Joyratna, the Insurer would not be responsible. However, the owner of the motorcycle would be vicariously liable. The Tribunal has awarded a sum of Rs.2,74,000/- as compensation to the 8 parents/unmarried sisters of the deceased Joyratna under the following heads:
1. For loss of dependency Rs.2,34,000/-
2. For loss of love and affection Rs.10,000/-
3. For loss of estate and funeral Rs.30,000/-
expenses Total Rs.2,74,000/-
7. The learned counsel for the appellants- claimants contended that the Insurer is absolved of its liability by the Tribunal in both the cases on two counts. The deceased Anjaneya himself was responsible for the accident, and because the deceased was in employment with the owner of the motorcycle, he would step into the shoes of the owner of the motorcycle. Therefore, the Insurer would not be liable. The deceased Anjaneya was not holding a driving licence at the time of the accident and therefore, there was a breach of the policy condition that would absolve the Insurer from its liability. The learned counsel relied upon the decision of 9 the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. Vs. SWARAN SINGH AND OTHERS, reported in (2004) 3 SCC 297 and the later decisions of the Hon'ble Supreme Court to contend that even if the Insurer is able to demonstrate that the deceased Anjaneya himself was responsible for the accident and that he was driving the vehicle without a licence, the Insurer cannot avoid its liability insofar as the claim by the parents/unmarried sisters of the deceased Joyratna.
8. As regards the quantum of compensation, the learned counsel contended that it is undisputed that the deceased Joyratna was working as a labourer with the owner of the motorcycle. The claimants have not been able to establish the actual income. The Tribunal has taken the income of the deceased Joyratna at Rs.3,000/- per month. But, even where actual income is not established, the notional income as per the schedule evolved for settlement in the Lok Adalath is 10 adopted for reasons of consistency and uniformity. In the cases arising out of accidents in the year 2006, as per the schedule, the notional income is taken at Rs.3,750/- per month. The Tribunal has adopted the multiplier of 13 based on the age of the mother of the deceased, but it is now settled that even in the case of a bachelor, the multiplier should be taken based on the age of the deceased. The deceased Joyratna was aged about 18 years as of the date of the accident. As such, the multiplier of 18 should be taken. Further, the claimants in MVC No.577/2007 would be entitled for addition towards future prospects as per the decision of the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Pranay Sethi and Ors. reported in AIR 2017 SC 5157. If the compensation under the head of 'loss of dependency' is determined with these changes, the claimants-parents/unmarried sisters of the deceased Joyratna would be entitled for enhancement of compensation.
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9. The learned counsel for the respondent No.1- Insurer refuted the submissions of the learned counsel for the appellant-claimants. He contended that the Insurer had examined one of its officers as well as the jurisdictional CPI. The check-report-cum receipt drawn on the owner of the motorcycle is marked as Ex.D4. This Ex.D4 was drawn specifically on the allegation that the owner of the motorcycle was culpable in having allowed the person to drive the motorcycle without licence and the owner of the motorcycle had paid the fine. These circumstances and the evidence of the mother of the deceased Anjaneya as well as the father of the deceased Joyratana established that the deceased Anjaneya was riding the motorcycle without a licence. These witnesses on behalf of the claimants avoid answering the question as to whether Anjaneya was holding a licence. They have stated that they were not aware whether the deceased was indeed licensed. The learned counsel for the respondent-Insurer submitted 12 that it is obvious from these circumstances that the Insurer had been able to establish its defence that the owner had entrusted the motorcycle to the deceased, who did not hold a driving licence and therefore, the Insurer was not liable. In any event, the Insurer would be entitled to recover any amount that is paid to the claimants of the deceased Joyratna. However, the mother of the deceased Anjaneya would not be entitled to any compensation because it is settled that the deceased had committed breach of the policy conditions in driving the motorcycle without driving licence.
10. In rejoinder, the learned counsel for the appellants-claimants submitted that the Insurer is not bonafide in relying upon Ex.D4 because Ex.D4 is drawn seven days after the accident. The Ex.D4 is got up to create a defence. The Insurer is also not able to explain the result of the investigation by the police, and if the deceased Anjaneya was driving the motorcycle without a 13 driving licence, why provisions of Section 182 of the Act were not mentioned when final report filed against the deceased Anjaneya.
11. Though elaborate submissions have been made on the liability of the Insurer, the question need not detain this Court for long because of the decision of the Hon'ble Supreme Court in Swaran Singh's case (supra), and the later decisions. It is now settled that even if the Insurer is able to establish that there was a breach of the policy terms, the Insurer will not be able to avoid its liability towards the third parties. The claimants in MVC No.577/2007 being the parents/unmarried sisters of the deceased Joyratna, who was on the pillion, would be entitled to recover the compensation from the Insurer. The question is whether the Insurer is able to discharge the burden of establishing the breach of the policy conditions, because if the Insurer has established the breach, in terms of 14 the decision of the Hon'ble Supreme Court in Swaran Singh's case (supra), the Insurer would be liable to pay the compensation but recover the same from the owner of the motorcycle under the pay and recovery policy.
12. When the evidence of the officer of the Insurer (RW.1), evidence of the jurisdictional CPI (RW.2) and the evidence of claimants (PWs.1 and 2) are read in conjunction, there is no room for doubt that the deceased Anjaneya was driving the motorcycle without a driving licence. The fact that the owner of the motorcycle paid the fine levied on the ground that he had permitted a person to drive the motorcycle without a driving licence is also of greater significance. Though the learned counsel for the appellants-claimants contend that the check-report-cum receipt was drawn seven days later, this would not be a reason to disbelieve the document, especially when there is no material on record to indicate that the owner of the 15 motorcycle had disputed the same. In fact, the material on record is that he paid the fine levied for such offence. Therefore, this Court is of the considered opinion that the Insurer is able to discharge its burden of establishing its defence that the deceased Anjaneya was driving the motorcycle without a driving licence. The Insurer, therefore, would be liable to pay the just compensation to the parents/unmarried sisters of the deceased Joyratna and recover the same from the owner of the motorcycle.
13. However, the mother of the deceased Anjaneya (claimant in MVC No.98/2008), a driver of the motorcycle would not be entitled for compensation because it is established beyond doubt that the deceased Anjaneya was driving the motorcycle without a driving licence and a person cannot take advantage of his own wrong. In the facts and circumstances of this case, where it is established that the deceased was 16 driving the motorcycle without a driving license in breach of law and the owner has also excepted the same, the claimant - the mother of the deceased Anjenaya would not be entitled for compensation merely because a petition is presented under section 163-A of the Act, 1988.
14. As regards the quantum of compensation payable to the appellants in MFA No.32304/2010 (claimants in MVC No.577/2007) viz., parents/unmarried sisters of the deceased Joyratna, there is considerable force. The loss of dependency will have to be calculated taking the notional income of the deceased at Rs.3,750/- per month with appropriate addition towards future prospects and applying the multiplier based on the age of the deceased as contended by the learned counsel for the appellant viz., '18'. If the compensation is thus computed, the claimants would be entitled for total sum of 17 Rs.6,07,000/- towards loss of dependency as against a sum of Rs.2,34,000/- as awarded by the Tribunal. The amount awarded by the Tribunal towards loss of love and affection in a sum of Rs.10,000/- and a sum of Rs.30,000/- towards loss of estate and funeral expenses is remained intact. Thereby, the appellants in MFA No.32304/2010 would be entitled for enhanced compensation as under:
Compensation in Head Rupees
(i) Income 3,750/-
(ii) Future Prospects 1,500 /- ( 40% of Income) Deduction Towards Personal 2,625 /- (Half of (Income+
(iii) Expenses Future Prospects) )
(iv) Total Income 2,625/- ( (i) + (ii) - (iii) ) (v) Multiplier 18 5,67,000/- ( (iv) X 12 X
(vi) Loss of Dependency
(v) )
(vii) Loss of Love & Affection 10,000/-
(viii) Funeral Expenses 15,000/-
(ix) Loss of estate 15,000/-
Total Compensation 6,07,000/-
Tribunal Award 2,74,000/-
Enhanced 3,33,000/-
15. For the forgoing, the following:
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ORDER
i) The appeal in MFA No.32304/2010 is
allowed-in-part and the impugned judgment and award in MVC No.577/2007 on the file of the Principal District Judge (M.A.C.T) at Raichur is modified. The appellants-
claimants are entitled for the total compensation of Rs.6,07,000/- along with interest at 6% p.a. from the date of petition till the date of realisation from the respondent No.1-Insurance company;
ii) The respondent No.1-Insurance Company is directed to pay the said compensation of Rs.6,07,000/- with interest to the appellants within a period of six weeks from the date of receipt of a certified copy of this judgment with liberty to recover the same from the 19 owner of the motorcycle under the pay and recovery policy.
iii) The appeal in MFA No.31520/2010 is dismissed.
Sd/-
JUDGE LG