S Chinnaswamy vs Mrs Rathnamma on 3 June, 2013

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Karnataka High Court

S Chinnaswamy vs Mrs Rathnamma on 3 June, 2013

Bench: N.Ananda

                           1




  IN THE HIGH COURT OF KARNATAKA AT BANGALORE

       DATED THIS THE 03RD DAY OF JUNE 2013

                       BEFORE

         THE HON'BLE MR.JUSTICE N.ANANDA

   M.F.A.No.3058/2011 c/w M.F.A.No.5168/2011 (MV)

MFA.No.3058/2011
BETWEEN:

S CHINNASWAMY
S/O SRINIVASA NAIDU, 45 YEARS
R/O D.NO.125, ANTHARASANTHE VILLAGE
& POST, H.D.KOTE TALUK
MYSORE DISTRICT
(OWNER-CUM-DRIVER/INSURED
OF THE TEMPO TRAX BEARING
REG. NO.KA-45-0019).                     ... APPELLANT

(BY SRI ABUBACKER SHAFI & ASSOCIATES, ADVS. & SMT.H K
SEEMA, ADV.)

AND:

1. MRS RATHNAMMA
   W/O LATE B C SWAMY, 38 YEARS

2. B S KRISHNA PRASAD
   S/O LATE B C SWAMY, 17 YEARS

3. B S MADHU PRASAD
   S/O LATE B C SWAMY, 15 YEARS

4. MRS SANNATHAYAMMA
   W/O LATE BOKKANAYAKA, 75 YEARS

  R2 & R3 ARE MINORS
  REP. BY THEIR NATURAL GUARDIAN/
  MOTHER - I RESPONDENT
  MRS.RATHNAMMA
                            2




  R1 TO R4 ARE R/AT D.NO.650
  BEHIND VARADARAJASWAMY TEMPLE
  METIKUPPE ROAD, H D KOTE TOWN
  MYSORE DISTRICT.

5. NEW INDIA ASSURANCE COMPANY LTD.
   DIVISIONAL OFFICE-I, J.L.B. ROAD
   CHAMUNDIPURAM, MYSORE 570 004
   (INSURER OF TEMPO TRAX
   BEARING REG. NO.KA-45-0019).     ... RESPONDENTS

(BY SRI M S RAJENDRA PRASAD ASSOCIATES, ADVS. FOR R5;
R1 & R4 ARE SERVED; R2 & R3 ARE MINORS)

     THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:06.01.2011 PASSED IN
MVC NO.44/2010 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-V AND MACT, MYSORE, AWARDING
COMPENSATION WITH INTEREST & ETC.


MFA.No.5168/2011
BETWEEN:

1. SMT RATHNAMMA
   W/O LATE B C SWAMY , 38 YEARS

2. B S KRISHNAPRASAD
   S/O LATE B C SWAMY, 17 YEARS

3. B S MADHUPRASAD
   S/O LATE B C SWAMY, 15 YEARS

4. SMT. SANNATHAYAMMA
   W/O LATE B C SWAMY, 76 YEARS

  APPL. NO.2 & 3 ARE MINORS
  REP. BY THIE NATURAL GUARDIAN/
  MOTHER - I APPELLANT
  SMT.RATHNAMMA

  ALL ARE R/A D.NO. NO. 650
  BEHIND VARADARAJASWAMY TEMPLE
                                3




   METIKUPPE ROAD, H D KOTE TOWN
   MYSORE DISTRICT.                         ...   APPELLANTS

(BY SRIYUTHS O SHIVARAMA BHAT & S RAJASHEKHAR, ADVS.)

AND :

1. S CHINNASWAMY
   S/O SRINIVASANAIDU, 45 YEARS
   R/A ANTHARASANTHE VILLAGE & POST
   H D KOTE TALUK

2. NEW INDIA ASSURANCE COMPANY LTD.
   DIVISIONAL OFFICE-I
   JLB ROAD, CHAMUNDIPURAM
   MYSORE-570 004.                  ... RESPONDENTS

(BY SRI ABUBACKER SHAFI, ADV. & SMT.SANDHYA U PRABHU,
ADV. FOR R1; R2 - SERVED)

     THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:6.1.2011 PASSED IN MVC
NO.44/2010 ON THE FILE OF PRESIDING OFFICER, FAST
TRACK COURT-V, MACT, MYSORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

The matters are listed for admission. Lower Court records are received. With the consent of learned counsel for parties, the matters are taken up for final disposal.

MFA 3058/2011 is filed by the owner of insured vehicle to fasten liability on the insurance company. 4

MFA 5168/2011 is filed by the claimants for enhancement of compensation.

2. The learned counsel for owner of the insured vehicle relying on judgment reported in 2001 (4) Kar.LJ 566 (DB) (in the case of National Insurance Company Limited -vs- Smt.H.D.Nagarathnamma and Others) would submit that, driver of insured vehicle who was holding driving licence to drive a 'light motor vehicle' could also drive a 'light motor vehicle (transport)'.

3. The submission made by learned counsel for the owner of vehicle is contrary to judgment of Supreme Court reported in 2010 ACJ 2706 (in the case of Bajaj Allianz General Insurance Co.Ltd., -vs- N.M.Rajaprakash and another) wherein, the Supreme Court has held:

"Transport vehicle may be a 'light motor vehicle' but for the purpose of driving the same, a distinct licence is required and the driver holding driving licence to drive 'light motor vehicle (non transport)' is not authorized to drive a taxi, which is a commercial vehicle and the insurance company is not liable to pay compensation."

4. The learned counsel for claimants would submit that tribunal should have taken '16' multiplier as the deceased was aged about 32 years at the time of accident. The claimants have produced driving licence of the deceased (Ex.P12), wherein, the date of birth of deceased is shown as 08.02.1971. The accident took place on 18.10.2009. Thus, deceased was aged about 38 years at the time of accident. Therefore, '15' would be the appropriate multiplier, which in fact has been adopted by the tribunal. In the circumstances, there are no reasons to enhance compensation.

5. In the result, I pass the following:

ORDER MFA 3058/2011 and MFA 5168/2011 are dismissed.

The amount deposited in MFA 3058/2011 shall be transferred to the tribunal.

Sd/-

JUDGE Np/-

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