Karnataka High Court
Hansaraj S/O Basavaraj Angadi vs Shivanand @ Shivappa S/O Bhimappa ... on 29 August, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:9826-DB
MFA No. 104161 of 2018
C/W MFA No. 100133 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G. BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO.104161 OF 2018 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO.100133 OF 2021 (MV-D)
IN MFA NO. 104161 OF 2018
BETWEEN:
HANSARAJ S/O. BASAVARAJ ANGADI,
AGE: ABOUT 49 YEARS, OCC: BUSINESS,
R/O: VIVEKANAND NAGAR,
VIDYAGIRI, DHARWAD-580004.
...APPELLANT
(BY SRI S.R. HEDGE, ADVOCATE)
YASHAVANT AND:
NARAYANKAR
1. SHIVANAND @ SHIVAPPA
Digitally signed
S/O. BHIMAPPA HONGAL,
by YASHAVANT AGE: 50 YEARS, OCC: NIL,
NARAYANKAR
Date:
R/O: TELAGAR ONI,
2023.12.13 NEAR MURGAMATH, DHARWAD.
15:22:43 +0530
2. SMT RENUKA
W/O. SHIVANAND @ SHIVAPPA HONGAL,
AGE: 44 YEARS, OCC: HOUSEHOLD,
R/O: TELAGAR ONI,
NEAR MURGAMATH, DHARWAD.
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NC: 2023:KHC-D:9826-DB
MFA No. 104161 of 2018
C/W MFA No. 100133 of 2021
3. THE DIVISIONAL MANAGER,
CHOLMANDALAM MS GENERAL
INSURANCE CO. LTD.,
DESAI CROSS, 2ND FLOOR,
HUBBALLI, DIST: DHARWAD,
(INSURER OF APE PIAGGIO VIH.NO.KA-25/TC-93
POLICY NO.3379/01161203/000/00
VALID FROM 12/03/2015 TO 11/03/2016)
...RESPONDENTS
(BY SRI D.V. PATTAR,ADVOCATE FOR R1 AND R2;
SRI SUBHASH J. BADDI, ADVOCATE FOR R3)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MV ACT, 1988, PRAYING THE JUDGMENT
AND AWARD DATED 06.07.2018 PASSED IN MVC NO.513/2015
ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE
AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
DHARWAD.
IN MFA NO.100133 OF 2021
BETWEEN:
1. SHIVANAND @ SHIVAPPA
S/O BHIMAPPA HONGAL,
AGED ABOUT 53 YEARS, OCC.NIL,
R/O: TELAGAR ONI,
NEAR MURGAMATH,
DHARWAD-580008.
2. RENUKA
W/O. SHIVANAND @ SHIVAPPA HONGAL
AGED ABOUT: 46 YEARS, OCC: NIL,
R/O: TELAGAR ONI,
NEAR MURGAMATH,
DHARWAD-580008.
...APPELLANTS
(BY SRI D.V.PATTAR, ADVOCATE)
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NC: 2023:KHC-D:9826-DB
MFA No. 104161 of 2018
C/W MFA No. 100133 of 2021
AND:
1. HANSARAJ S/O. BASAVARAJ ANGADI,
AGE: 50 YEARS,
R/O: CHINNAPARVATI,
VIVEKANAND NAGAR,
VIDYAGIRI, TQ.DHARWAD,
DHARWAD-580004,
(OWNER OF APE PIAGGIO
VEH NO.KA-25/TC-93)
2. THE DIVISIONAL MANAGER,
CHOLAMANDALAM MS GENERAL
INSURANCE CO. LTD.,
DESAI CROSS,
2ND FLOOR, HUBBALLI,
TQ.HUBBALLI,
DIST.DHARWAD-580023,
INSURER OF APE PIAGGIO
VEH.NO.KA-25/TC-93
POLICY NO.3379/01161203/000/00
VALID FROM 12.3.2015 TO 11.03.2016
...RESPONDENTS
(BY SRI S.R. HEDGE, ADVOCATE FOR R1;
SRI SUBHASH J. BADDI, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1)OF MOTOR VEHICLES ACT, PRAYING THE
JUDGMENT AND AWARD DATED 06.07.2018 PASSED IN MVC
NO.513/2015 ON THE FILE OF THE IV ADDITIONAL SENIOR
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, DHARWAD.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:9826-DB
MFA No. 104161 of 2018
C/W MFA No. 100133 of 2021
JUDGMENT
Both the appeals are arising out of judgment and award dated 06th July, 2018 passed in 513 of 2015 by IV Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal, (for short, hereinafter referred to as the "Tribunal").
2. Miscellaneous First Appeal No.104161 is preferred by the owner of the vehicle questioning fastening the liability on him and dismissal of the claim petition against respondent No.2-Insurance Company; and Miscellaneous First Appeal No. 100133 of 2021 is preferred by claimants for enhancement of compensation.
3. For the sake of convenience, the parties in these appeals are referred to as per their status and rank before the Tribunal.
4. Brief facts of the case are that on 28th April, 2015 at about 12.15 pm, the son of petitioners viz. Manjunatha was travelling as Hamal in the Piaggio Ape vehicle bearing Registration No.KA-25/TC-93 from Vidyagiri to City market in Dharwad to deliver the soap boxes and while traveling on Hubli-Dharwad Road, near Toll-naka, in front of Durga Wine -5- NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 Shop, the driver of the said vehicle drove the same in high speed, rash and negligent manner and lost control over the vehicle and dashed to the tree. As a result, the said Manjunatha was severely injured and though he was immediately shifted to the City Hospital, but, he succumbed to the injuries. Later, post-mortem was conducted and body was handed over to the petitioners. It is further stated that the petitioners have spent Rs.50,000/- for transportation of dead body and for funeral expenses. It is also stated as to the dependency, love and affection of the petitioners and sought for compensation.
5. Pursuant to service of notice, respondents appeared through their respective counsel. Respondent No.1 filed written statement contending that the vehicle was insured with respondent No.2-Insurance Company and the policy was in force as on the date of accident and one Raju Patted was the driver of the goods vehicle at the time of accident and was having valid and effective driving licence, but police officials have wrongly shown the driver as Anil Kadam. Respondent No.1 is not liable to pay any compensation and on all these grounds, sought for dismissal of the claim petition. -6-
NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021
6. The substance of written statement of respondent No.2 is that the deceased was traveling as a Hamal and he was an unauthorised passenger and the alleged offending vehicle is a goods vehicle and passengers are not allowed to travel in the said vehicle and as such the respondent No.1 has violated the terms and conditions of the said policy. It is further contended that at the time of accident, vehicle was not at all registered with the RTO office and the temporary registration period had expired. Therefore, respondent No.2 is not liable to pay the compensation and indemnify the respondent No.1. Further it is contended that as per complaint, First Information Report and charge sheet, one Anil S/o Mahesh Kadam of Dharwad was driving the offending vehicle, but said Anil Kadam was not holding valid and effective driving licence to drive such class of vehicle. Police have filed charge sheet against Anil Kadam for offence of punishable under Sections 3, 181, 5, 39 and 192 of the Motor Vehicles Act and therefore, respondent No.2 is not liable to pay compensation to petitioners and to indemnity respondent No.1 and on all these grounds sought for dismissal of the claim petition.
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NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021
7. Based on the pleadings, the Tribunal formulated the following issues for its consideration:
1. Whether the petitioners prove that on 28.04.2015 at about 12.15 pm when their son by name deceased Manju @ Manjunath traveling as a Hamal in Piaggio Ape vehicle bearing Regn.No.KA-25/TC- 93 from Vidyagiri to Dharwad City Market to deliver the soap boxes, near Toll Naka Opp to Durga Wine Shop, the driver of the said vehicle drove in high speed, rash and negligent manner and caused accident to tree and he succumbed to the accidental injuries?
2. Whether the petitioners are entitled for compensation? If so, what is the quantum of compensation and from whom?
3. what order or award?
8. To substantiate the case of the petitioners, Petitioner No.1 got examined as PW1 and got examined another witness as PW2 and nine documents were marked as Exhibits P1 to P9. Respondent No.2 has examined its Legal Executive as RW1 and Office Superintendents of Regional Transport Office as RWs2 and 3 and got marked documents as -8- NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 Exhibits R1 to R7. Upon hearing both sides, the Tribunal has given its finding as under:
Issue No.1: in the affirmative;
Issue No.2: partly in the affirmative;
Issue No.3: as per final order.
9. In view of the above finding, the Tribunal has allowed the claim petition in part against respondent No.1 only and awarded compensation of Rs.9,53,000/- to the claimants. The Tribunal dismissed the claim petition against respondent No.2. Being aggrieved by the said judgment and award, the Respondent No.1-owner of the vehicle has preferred Miscellaneous First Appeal No.104161 of 2018 questioning the dismissal of petition against respondent No.2-Insurance Company, so also the liability; and the claimants have preferred Miscellaneous First Appeal No.100133 of 2021 seeking enhancement of compensation.
10. Learned counsel appearing on behalf of respondent No.1-Owner of the vehicle submits that the Tribunal has rejected the liability of the Insurance Company only on the ground that the offending vehicle was not having Registration -9- NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 number as on the date of the accident. Further, he submits that the temporary registration number expired on 10th April, 2015 and the accident occurred on 28th April, 2015. The owner of the vehicle had one month's period to renew the temporary registration under Section 45 of the Motor Vehicles Act, 1988. Therefore, there is no breach of Registration policy. Since the owner had the right to renew the registration within thirty days from 10th April, 2015 and the accident had taken place on 28th April, 2015, the same is within the prescribed period of thirty days, the same cannot be said to disentitle the owner from seeking renewal of registration. Further he submits that owner has paid the premium as additional liability of Rs.50/- plus Rs.50/-. Therefore, in view of the terms of IMT 40, the legal liability to paid driver or conductor or cleaner employed in action with the portion of the motor vehicle are covered under the policy, and therefore, the Insurance Company cannot escape from its liability and the Tribunal has not properly appreciated the evidence on record in accordance with law and facts. Though the owner has not violated any terms and conditions of the policy, the Tribunal has rejected the claim petition against the insurance company, which is
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NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 apparently illegal and not sustainable under law and accordingly sought for allowing the appeal.
11. Learned counsel appearing for claimants also supported the arguments advanced on behalf of respondent No.1-owner of the offending vehicle and further submits that the Tribunal has not awarded just and proper compensation as per the judgment of the Hon'ble Supreme Court and accordingly, sought for enhancement of compensation by allowing their appeal.
12. Per contra, learned counsel appearing for respondent-Insurance Company has submitted his argument that the Tribunal has properly appreciated the evidence on record in accordance with law and fats and that there are no grounds to interfere with the impugned judgment and award and sought for dismissal of the appeal.
13. Having heard the learned counsel appearing for parties and on perusal of material on record, the following points would arise for our consideration in these appeals:
(i) Whether the owner of the offending vehicle in Miscellaneous First Appeal No.104161 of 2018 has
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NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 out made out a ground to interfere with the impugned judgment and award as to the liability fastened on him?
(ii) Whether the claimants in Miscellaneous First Appeal No. 100133 of 2021 are entitled for enhancement of compensation and modification of award as to the liability of respondents?
(iii) What order or award?
14. Our answer to the above points are as under:
Point No.1: in the affirmative;
Point No.2: partly in the affirmative;
Point No.3: as per final order.
Regarding Points No.1 and 2:
15. We have carefully examined the material placed before us. It is the case of the claimants that the accident occurred due to rash and negligent act on the part of the driver of offending vehicle. In this regard, the Tribunal has properly appreciated the evidence on record in accordance with law and
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NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 facts and held that the deceased died in the accident caused due to rash and negligent act on the part of the driver of the offending vehicle, which cannot be found fault with. Regarding Point No.2:
16. With regard to quantum of compensation is concerned, the deceased was aged 18 years as on the date of the accident. As per the dictum of the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121, the appropriate multiplier would be 18 and the Tribunal has rightly applied the multiplier. The Tribunal has considered the income of the deceased at Rs.6,000/- per month. The same is not in consonance of the guidelines issued by the Karnataka State Legal Services Authority. As per the guidelines of Karnataka State Legal Services Authority, for the accident of the year 2015, the notional income is to be taken at Rs.8,000/- per month. As per the decision of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, 40% is to be added to the notional income towards
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NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 future prospects. If that is added, the income would be Rs.11,200/- per month. As the deceased was bachelor, 50% is to be deducted towards the personal expenses of the deceased and after deduction, the income would be Rs.5,600/- per month. Hence, the loss of dependency would come to Rs.12,09,600/- (i.e., 5600/- x 12 x 18). Further, as there are two dependents, as per the dictum of PRANAY SETHI (supra) and in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM AND OTHERS reported in (2018)18 SCC 130, the claimants are entitled for compensation towards loss of consortium for two dependents and towards loss of estate as well as towards funeral expenses. Considering the facts and circumstances of the case, the claimants are entitled for compensation as under:
Sl. Amount (in
Head
No. Rs.)
1. Loss of Dependency 12,09,600
2. Loss of consortium 80,000
3. Loss of estate 15,000
4. Towards transportation of dead body 15,000
and funeral expenses
Total 13,19,600
17. As regards the liability of the insurance company is concerned, the respondent No.2-Insurance Company has taken
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NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 the contention in its written statement that the driver of the offending vehicle was not holding valid and effective driving licence as on the date of accident. But RW2-Superintendent of Regional Transport Office, examined by the Insurance Company, has clearly stated that as per Exhibit R5-driving licence particulars, Anil Kadam was authorised to drive transport vehicle. Therefore, it is clear that the driver of the offending vehicle was having valid and effective driving licence as on the date of accident. Though the driver of the offending vehicle was having valid and effective driving licence as on the date of accident, Respondent No.2 being the Insurance Company, without perusal of the relevant records, has mechanically and casually taken the contention before the Tribunal that the driver of the offending was not having valid and effective driving licence as on the date of accident, which is not sustainable under law.
18. The Tribunal has rejected the claim of the petitioners against the respondent-Insurance Company on the ground that Exhibit R7-temporary registration Number shows that the vehicle bearing No.KA-25/TC-9804/14-15 (Engine No.R5A2600010 and Chassis No.MBX0000ZCSA032390) stands
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NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 in the name of respondent No.1 and valid till 10th April 2015. Engine number and Chassis number mentioned in Exhibit R7 corroborates with the particulars mentioned in Exhibit P5- charge sheet. Accident occurred on 28th April, 2015. At this juncture, it is pertinent to extract Section 43 of the Motor Vehicles Act. The same reads as under:
"43. Temporary Registration.- Notwithstanding anything contained in Section 40, the owner of a motor vehicle may apply to any Registering Authority or other authority as may be prescribed by the State Government to have the motor vehicle temporarily registered and such authority shall issue a temporary certificate of registration and temporary registration mark in accordance with such rules as may be made by the Central Government.
Provided that the State Government may register a motor vehicle that plies, temporarily, within the State and issue a certificate of registration and registration mark for a period of one month in such manner as may be prescribed by the State Government."
19. In view of the aforesaid provision, it is clear that an extension period of thirty days is available to the owner to get permanent registration number. The temporary registration number was in force till expiry of one month form the validity date, i.e. 10th April, 2015. Hence, in view of the aforesaid
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NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 provision of Motor Vehicles Act, the temporary registration was valid as on the date of accident and at the relevant point of time. The Tribunal has not appreciated the evidence on record in accordance with law and facts and wrongly come to the conclusion that the owner has violated the conditions of registration policy, which is not sustainable under law.
20. The learned counsel for the Insurance Company submits that the owner has not paid premium to cover hamal. For the first time, before this Court, the Insurance Company has raised this objection. However, we have examined the insurance policy which reveals that the owner of the vehicle has paid extra premium of Rs.50/- towards the legal liability to cleaner and Rs.50/- towards legal liability to be paid to driver in terms of IMT-40, the legal liability to paid driver/conductor/ cleaner employed in action with the operation of the motor vehicle. Therefore, the said contention of the Insurance Company cannot be accepted.
21. Hence, viewed from any angle, we do not find any breach of registration policy by the respondent No.1-Owner of the offending vehicle as on the date of accident. Therefore, the
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NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 respondent No.2-Insurance Company is liable to pay the compensation. Accordingly, we answer the point No.1 in the affirmative; and Point No.2, partly in the affirmative.
22. For the aforesaid reasons, we proceed to pass the following:
ORDER i. Miscellaneous First Appeal No.104161 of 2018 filed by the Owner of the offending vehicle is allowed; ii. Miscellaneous First Appeal No.100133 of 2021 filed by the appellant-claimants is allowed in part; iii. Judgment and award dated 06th July, 2018 passed in MVC No.513 of 2015 is modified by awarding the compensation of Rs.13,19,600/- as against Rs.9,53,000/- awarded by the Tribunal; iv. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till the date of deposit.
v. Respondents 1 and 2 are jointly and severally liable to pay the compensation.
vi. Respondent-Insurance Company shall deposit the amount of compensation with interest before the Tribunal, within 60 days from the date of receipt of certified copy of this Judgment;
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NC: 2023:KHC-D:9826-DB MFA No. 104161 of 2018 C/W MFA No. 100133 of 2021 vii. The amount in deposit, if any, made by the respondent No.1-owner of the offending vehicle be refunded to him;
viii. Registry to draw award accordingly; ix. Sent back the Trial Court records along with copy of this Judgment and award to the concerned Court.
Sd/-
JUDGE Sd/-
JUDGE RH LIST NO.: 1 SL NO.: 52