Bangalore District Court
Smt. Shoba vs Sri. Pathappa on 16 February, 2021
BEFORE THE COURT OF VIII ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT
CLAIMS TRIBUNAL (SCCH5) AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2021
PRESENT: SMT. SHARMILA. S, B.Com, LLB.,
VIII ADDL. JUDGE & ACMM,
MEMBER - MACT,
BENGALURU.
M.V.C No.6316/2018
PETITIONERS : 1. Smt. Shoba
W/o. Late. T.B. Punith Kumar
Aged about 21 years
2. Master. T.P.Ayush
S/o. Late. T.B. Punith Kumar
Aged about 7 months
(He is minor represented by his
mother as Natural Guardian)
No.10, 4th Cross, First Floor,
Muneshwara Nagar,
Old Mangammana Palya Road,
Bommanahalli,
Bengaluru - 560 068.
(By Sri.R.Kumar, Adv.,)
V/s
RESPONDENTS : 1. Sri. Pathappa
S/o. Late. Lakshmaiah
Aged about 80 years
R/o. Tharahunise Village,
Jala Hobli,
Bengaluru North Taluk,
Bengaluru - 562 157.
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Since dead represented by Lrs.
1(a). Smt. Ammayamma
W/o. Late. Pathappa
Aged about 80 years
1(b). Sri. Ramachandra
S/o. Late. Pathappa
Aged about 57 years
1(c). Sri. Rajanna
S/o. Late. Pathappa
Aged about 55 years
1(d). Sri.Narayanaswamy
S/o. Late. Pathappa
Aged about 47 years
1(e). Sri.Jayanna
S/o. Late. Pathappa
Aged about 44 years
All are residing at
Tharahunise Village,
Jala Hobli,
Bengaluru North Taluk,
Bengalulru - 562 157.
(By Sri.S.N.Manjunath, Adv.,)
2. The Oriental Insurance Co. Ltd.,
T.P.Hub, Regional Officer,
No.44/45, Leo Shopping Complex,
Residency Road Cross,
Bengaluru - 560 025.
(Policy No.421591/31/2017/3535
Valid from 19.02.2017 to
18.02.2018)
(By Sri.B.T.Rudra Murthy, Adv.,)
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3. Smt. Bhagyamma
W/o. Late. Byregowda
Aged about 56 years
R/at. Tharahunase Village,
Jala Hobli,
Bengaluru North Taluk - 562 157.
(By Sri. K.K.Surendra, Adv.,)
****
::JUDGMENT::
This petition is filed by the Petitioners under Section 166 of Motor Vehicles Act, 1989, seeking compensation of Rs.60,00,000/ for the death of Sri.T.B.Punith Kumar, S/o. Late.Byregowda, in a road traffic accident.
2. It is the case of the Petitioners that:
The deceased along with his friend B.P.Jayanna has been to a nearby village of Gowribidanur on 26.05.2017 in a Tractor bearing Reg.No.KA50T49 which was driven by the driver, they were transporting fodder to their cows from a nearby village of Gowribidanur to their village, while on their return near MelinaNayakarandarahalli 4 MVC No.6316/2018 SCCH5 Anjeneya Swamy Temple, the driver of Tractor with rash and negligent manner in attempt of avoiding a cow which entered the road suddenly made the Tractor to turn turtle, as a result, the deceased who was an occupant of the said vehicle, Tractor fell down and sustained multiple injuries along with severe head injury.
3. Immediately after the accident, the deceased was shifted to Colombia Hospital, Bengaluru wherein he was under treatment till 07.06.2017 and on that day, he was succumbed to the injuries inspite of best treatment. Petitioners have contended that, the body of the deceased was subjected to post mortem and handed over to the Petitioners, they performed funeral and last rites ceremony, for which they have spent a sum of Rs.5,00,000/ towards treatment of the deceased.
4. It is the case of the Petitioners that, deceased was aged 23 years, hale and healthy and he was rearing 5 MVC No.6316/2018 SCCH5 cows and vending milk to the nearby hotels and to the Milk Producers Cooperative Society of Tharahunise Village and earning a profit of Rs.25,000/ p.m. Beside that he was working as a stable man in his village and also doing agriculture with his family and totally earning a sum of Rs.60,000/ p.m. and he was contributing his entire earnings to the welfare of the family.
5. Petitioners have contended that, 1st Petitioner was a pregnant at the time of the accident and due to untimely death of her husband, her life became hectic filled with intolerable pain. Hence, they have filed this claim petition seeking compensation of Rs.60,00,000/.
6. After service of summons, Respondents No.1 to 3 have appeared before the Court and Respondents No.1 and 2 have filed their written statement. Inspite of giving sufficient opportunity, Respondent No.3 did not chosen to file written statement.
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7. Respondent No.1 in his written statement denied averments of the petition and contended that, the Tractor bearing Reg.No.KA50T49 which was attached to Trailer bearing Reg.No.KA50T50 was proceeding slowly, cautiously, observing all traffic rules and while so proceeding, behind control the driver of the vehicle, the accident took place and no way due to the rash and negligent manner in an attempt of avoiding a cow which entered the road suddenly. Further it is contended that, the Tractor bearing Reg.No.KA50T49 has been insured with Respondent No.2 vide Policy No.421591/31/2017/3535 which is valued for the period from 19.02.2017 to 18.02.2018 and also the driver of the Tractor had valid driving licence to drive the Tractor. Among other grounds prays to dismiss the claim petition.
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8. Respondent No.2 in its written statement denied entire petition averments but interalia admits that, it is the insurer of Tractor and Trailer bearing Reg.No. KA50T49 & KA50T50 and the liability of this Respondent is subject to terms and conditions of the policy of insurance, provisions of M.V.Act and valid and effective driving licence held by the driver of Tractor and Trailer as on the date of the accident. It is contended that, the Tractor and Trailer are registered for agriculture purpose and the policy also issued for use of agriculture purpose only. The Tractor was insured for carrying on agricultural operations in agricultural fields but was being used for transportation when it met with accident resulting in the death of the deceased.
9. Further it is contended that, the Tractor is covered only driver and not covered to carry any coolie or passengers as per Regulation 28 of Rules of the Road 8 MVC No.6316/2018 SCCH5 Regulation 1989. It is contended that, the owner/1st Respondent knowing fully well that the driver did not possess valid and effective driving licence to drive Tractor and Trailer had entrusted the vehicle to such a person to drive as on the date of the accident. Further it seeks protection available under Sec.134(c) of M.V.Act. Except this all other formal in nature and accordingly prays to dismiss the claim petition filed against it,
10. On the basis of above pleadings, I have framed the following:
::ISSUES::
1. Whether the Petitioners prove that, deceased Sri.T.B.Punith Kumar, S/o.Late.
Byregowda, aged about 23 years, was died in a road traffic accident that occurred on 26.05.2017 at about 6.30 p.m. while deceased was an occupant along with his friend in a Tractor bearing Reg.No.KA50T49 for transporting fodder to their cows, when they reached on Gowribidanur 9 MVC No.6316/2018 SCCH5 Doddaballapura Road, near Melinanayakarandarahalli, Anjaneya Swami Temple, at that time, a driver of the above said Tractor driven in rash and negligent manner in attempt of avoiding cow which entered the road suddenly made the Tractor to turn turtle, as a result of which deceased fell down and sustained fatal injuries and died, as mentioned in claim petition?
2. Whether the Petitioners are entitled for compensation as prayed in the petition? If so, from which Respondent?
3.What order or award?
11. In order to prove the above said Issues, Petitioner No.1 got examined herself as PW1, got marked documents at Ex.P.1 to Ex.P.15 documents. Per contra, Administrative Officer of 2nd Respondent Insurance Company has been examined as RW1 and got marked Ex.R.1 to Ex.R.4. Superintendent, RTO Office, Yelahanka has been examined as RW2 and got marked Ex.R.5 and 10 MVC No.6316/2018 SCCH5 Ex.R.6. Further the Respondent No.1 has been examined himself as RW3 and no documents got marked on his behalf.
12. Heard the arguments of learned counsel for the Petitioner and Respondents. The learned counsel for the Petitioner has relied on following decisions;
i) AIR 2018 SC 1640 in between Shivawwa & Anr. V/s. National India Insurance and Anr.
ii) ILR 2011 KAR 4139 in between National Insurance Co. Ltd., V/s. Sri.Maruthi & Ors.
iii) AIR 2018 SC 592 in between Pappu & Ors. V/s. Vinod Kumar Lamba and Anr.
iv) AIR 2017 SC 3668 in between Mukund Dewangan V/s. Oriental Insurance Co. Ltd.,
13. The learned counsel for the Respondent No.2 has relied on following decisions;
i) Regulation 28 of Rules of the Road Regulation Act, 1989 11 MVC No.6316/2018 SCCH5
ii) National Insurance Co. Ltd., V/s.Sayyadama and Anr.
iii) Appeal (Civil) 860 of 2007 (SC) in between New India Assurance Co. Ltd., V/s. Vedwati & Ors.
iv) Appeal (Civil) 2532 of 2007 (SC) in between Oriental Insurance Co. Ltd., V/s. Brij Mohan & Ors.
v) LAWS (APH) 2004 6 15 in between Vachala V/s. V.R. Kumar
vi) LAWS (BOM) 2005 6 52 in between New India Assurance Co. Ltd., V/s. Diwakar Daulatrao Rohankar
14. My findings on the above Issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : Partly in the Affirmative
Issue No.3 : As per final order for the
following:
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::REASONS::
15. Issue Nos.1 and 2: As these two issues are interlinked with each other, they are taken together for common discussion in order to avoid repetition of facts and evidence.
16. As this petition is filed under Sec.166 of the M.V.Act, the burden is on the Petitioners to prove that the alleged accident took place because of the negligence on the part of driver of the Tractor bearing Reg.No.KA50 T49. In order to prove the above said issues, Petitioner No.1 examined herself as PW1 and got marked in all 15 documents.
17. In order to prove this fact, PW1 has produced Police records which are marked as Ex.P.1 to Ex.P.8, i.e., FIR with Complaint, Charge Sheet, Statement of Owner of the vehicle, Mahazar, Sketch, IMV Report, Inquest Report and P.M.Report. If we peruse the oral and 13 MVC No.6316/2018 SCCH5 documentary evidence adduced by the PW1 i.e., Ex.P.1 FIR which clearly discloses that, the deceased along with his friend B.P.Jayanna has been to a nearby village of Gowribidanur on 26.05.2017 in a Tractor bearing Reg.No.KA50T49 which was driven by the driver, they were transporting fodder to their cows from a nearby village of Gowribidanur to their village, while on their return near MelinaNayakarandarahalli Anjeneya Swamy Temple, the driver of Tractor with rash and negligent manner in attempt of avoiding a cow which entered the road suddenly made the Tractor to turn turtle, as a result, the deceased who was an occupant of the said vehicle, Tractor fell down and sustained multiple injuries along with severe head injury. Immediately after the accident, the deceased was shifted to Colombia Hospital, Bengaluru wherein he was under treatment till 14 MVC No.6316/2018 SCCH5 07.06.2017 and on that day, he was succumbed to the injuries in spite of best treatment.
18. PW1 has been crossexamined by the learned counsel for Respondent No.2 which consists of bear suggestions and denials. Admittedly PW1 is not an eyewitness to the alleged accident. She has been cross examined by the learned counsel for the Respondent No.2. Regarding the fact of negligence is concerned, the oral evidence of PW1 is corroborated by the Police documents produced at Ex.P.1 to 8 i.e., FIR with Complaint, Charge sheet, Statement of the owner of the vehicle, Mahazar, Sketch, IMV Report, Inquest Report and P.M.Report, clearly indicates that, this accident was due to rash and negligent driving by the driver of the offending vehicle.
19. PW1 has also been crossexamined in all aspects, but since she is not an eyewitness to this 15 MVC No.6316/2018 SCCH5 accident, her evidence is not helpful regarding proof of negligence is concerned. But the contents of Police records clearly indicates that, this accident was due to rash and negligent driving by the driver of the offending vehicle. Though the PW1 being the wife of the deceased testified about the rashness and negligence on the part of the driver of the Tractor, admittedly, she was not an eyewitness to the accident. Possibly she could not have deposed as to the manner of the accident. At the same time, she placed on record the certified copy of the Report under Section 173 Cr.P.C., copy of the FIR, copy of the Site Plan, Mechanical Inspection Report and other Police documents. Mere filing of a criminal case may not necessarily be proof of negligence on the part of the person accused of an offence.
20. However, while dealing with a Petition under Section 166 of the Act, the Claims Tribunal and the 16 MVC No.6316/2018 SCCH5 Courts are required to analyse the evidence produced as proof of negligence. Admittedly, negligence is not required to be established beyond reasonable doubt as is expected to be done in a criminal trial. A certified copy of the report under Section 173 Cr.P.C. depicted the manner of the accident which was supported by the mechanical inspection report in respect of offending vehicle. According to IMV Report, the accident is not due to any mechanical defects of the vehicle. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code.
21. It has to be borne in mind that the Motor Vehicles Act does not envisage holding a trial for a Petition preferred under Section 166 of the Act. Under 17 MVC No.6316/2018 SCCH5 Section 168 of the Act, a Claims Tribunal is enjoined to hold an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal.
22. The only contention of the 2nd Respondent is that the deceased and his friend were transporting fodder to their cows from a nearby village of Gowribidanur to their village which clearly shows that they were hired the Tractor and Trailer for transporting their fodder to their cows, which is not permissible under law and they hired Tractor and Trailer for transporting fodder, then it is considered that the deceased was a gratuitous passenger travelling in the Tractor and Trailor. According to this Respondent, the Tractor is covered only driver and not to carry any coolie or passengers as per Regulation 28 of Rules of the Road Regulation Act 1989. The contention of 18 MVC No.6316/2018 SCCH5 the Petitioners to the effect that the deceased and his friend were traveling on Tractor mudguard and not on the Trailer. The 2nd Respondent further contends that, it is not liable to pay compensation or interest in respect of the said claim petition as there was no DL to the driver of insured Tractor, the deceased Punith Kumar was sitting on the mudguard and he hired the Tractor to transport his cow's fodder who sat on the mudguard which is impermissible under law and the 1 st Respondent has violated the terms and conditions of the policy and mandatory provisions of the M.V.Act.
23. In order to disprove the contention of the Petitioners, Respondent No.2 has adduced the evidence of Administrative Officer as RW1 who has filed his affidavit in lieu of chiefexamination and got marked Ex.R.1 to Ex.R.4 i.e., copy of Policy, Extract of Driving Licence, 'B' Register Extracts. RW1 in his cross 19 MVC No.6316/2018 SCCH5 examination deposed that, they have issued comprehensive policy in respect of the Tractor and Trailer. As per Ex.R.1 it was mentioned that the seating capacity was 1 +1 and they have collected premium for owner and paid driver. They have issued policy to the Tractor and Trailer only for agricultural purpose. As per Ex.R.2 it was mentioned as LMV Non Transport. Further he denied the other suggestions made by the Petitioner's counsel.
24. The Superintendent, RTO Office, Yelahanka has been examined as RW2 and got marked Ex.R.5 and Ex.R.6 i.e., Authorization Letter and "B" Register Extract with copy of DL. RW2 in his chiefexamination deposed that, as on the date of accident, the driver was having licence for LMV vehicle and not for Tractor and Trailer. During the course of crossexamination he deposed that, as on the date of accident the Driver was having valid 20 MVC No.6316/2018 SCCH5 driving licence. As per DL produced by him, they have issued licence to drive LMV(NT) vehicles.
25. During the pendency of the petition, the 1st Respondent reported to be dead and hence the Petitioner's counsel filed applications U/o.22 Rule 4, 22 Rule 9 and Sec.5 of Limitation Act, on which the notice has been issued to the LRs., of 1 st Respondent. After service of notice, the Legal heirs of 1 st Respondent appeared through their counsel and they were permitted to prosecute the case.
26. Thereafter, one Jayanna, the 5th LRs., of the 1st Respondent i.e., deceased Pathappa, has been examined himself as RW3 and got marked Ex.R.7 to Ex.R.10 i.e., RC Book, D.L and Policy and deposed in his chief examination that, his father Late.Pathappa was the registered owner of the Tractor which was attached to Trailer and it was insured with the 2nd Respondent and 21 MVC No.6316/2018 SCCH5 the insurance was in force at the time of accident. He had taken deceased Punith Kumar along with him to load the fodder to the Trailer for their cows from Gowribidanur and while returning the Tractor met with the accident and he got insured to his leg whereas the said deceased got severe head injuries and succumbed to the injuries. Further he contends that one P.Mahesh Kumar who was driver to his Tractor was proceeding on the Tractor slowly, cautiously by observing all the traffic rules while in avoiding a cow which suddenly entered the road, the Tractor with Trailer became upside down. He has a valid driving license to drive the Tractor. RW3 was subjected to crossexamination by the Petitioner's counsel wherein he deposed that the deceased was doing Coolie work under them. On the date of accident himself along with driver Mahesh Kumar and deceased Punith Kumar were travelling in a Tractor by loading fodder to the Trailer for 22 MVC No.6316/2018 SCCH5 the cows from Gowribidanur and they have filled the fodder up to body level of the Tractor. Further during the course of crossexamination by the 2nd Respondent's counsel he deposed that, as per records, there is a provision for one person to sit in the Tractor and there was no seating capacity in the Trailer. As per policy his father has paid premium for driver only and not paid any premium for coolie. Further it was suggested that, if any load in the Trailer there was no safety measures to sit in the Trailer. Further he denied the other suggestions made by the 2nd Respondent's counsel.
27. From the above evidence, the 2nd Respondent contends that the deceased and his friends were hired the Tractor and Trailer for transporting their fodder to their cows and if the deceased and his friend were travelling in the Tractor and Trailer along with their goods fodder to their cows, which is not permissible 23 MVC No.6316/2018 SCCH5 under law and they hired Tractor and Trailer for transporting fodder, then it is considered that the deceased was a gratuitous passenger traveling in the Tractor and Trailer.
28. At the time of arguments learned counsel for the 2nd Respondent relied on the Rules of the Road Regulations, 1989 wherein Rule 28 postulates that:
"28.Driving of tractors and goods vehicles.A driver when driving a tractor shall not carry or allow any person to be carried on the tractor. A driver of goods carriage shall not carry in the driver's cabin more number of persons than that is mentioned in the registration certificate and shall not carry passengers for hire or reward".
29. Further it has relied on a decision between Divisional Manager National Insurance Co., Ltd., Vs 24 MVC No.6316/2018 SCCH5 Sayyadama and another wherein Hon'ble High Court of Karnataka held that:
"The deceased is said to be coolie travelling in the tractor at the relevant time. Rule 28 of the Karnataka Motor Vehicles Rules permits only the driver to be seated in the tractor, if trailer is attached to the tractor then coolies or labourers employed in connection with operation of the tractortrailer can travel. But in the case of tractor, driver alone is permitted".
30. Further in Appeal (Civil) 860 of 2007 between New India Assurance Co., Ltd., Vs Vedwati & Ors., wherein Hon'ble Supreme Court held that :
"The inevitable conclusion, therefore, is that provisions of the Act do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger 25 MVC No.6316/2018 SCCH5 travelling in a goods carriage and the insurer would have no liability therefor".
31. Again in Appeal (Civil) 2532 of 2007 between Oriental Insurance Co., Ltd., Vs Brij Mohan and Ors., wherein Hon'ble Supreme Court observed that:
"The learned Tribunal noticed the defence raised by the appellant herein in the said proceedings which, inter alia, were:
i) the trolley was not insured, and only the tractor was insured
ii) as the tractor was not being used for agricultural work, the claim petition was not maintainable.
iii) issuance of premium having been paid only for one person, namely, the driver of the tractor; no award could be passed against the insurer".26 MVC No.6316/2018
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32. Further in LAWS (APH) 2004 6 15 between Vachala Vs V.R.Kumar wherein Hon'ble High Court of Andhra Pradesh held that:
"Motor Vehicles Act, 1988Section 147 and 166Motor Vehicle accident claim for compensationdeceased travelling as the representative of the owner of the goods in a goods vehicle passenger in goods vehicle not covered under insurance liability of insurance companyit is clear that the seating capacity of the offending vehicle is only i.e., the driver alone can travel in the vehicle".
33. Further in LAWS (BOM) 2005 6 52 between New India Assurance Company Limited Vs Diwakar Daulatrao Rohankar decided on 2005 June 2016 wherein it was held that:
27 MVC No.6316/2018
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"Motor Vehicles Act(59 of 1988)Section 147Liability of Insurance CompanyThe Insurance Company is not statutorily required to insure the passengers travelling in a goods vehicle and as such would not be liable to pay compensation".
34. From the above decisions it reveals that the Insurance Company is not liable if a deceased sitting on the mudguard of the tractor.
35. Contrary to the above decisions, at the time of arguments learned counsel for the Petitioner relied on a decision reported in AIR 2018 SC 1640 between Shivawwa and Anr. V Branch Manager, National India 28 MVC No.6316/2018 SCCH5 Insurance Co., Ltd., and Anr, wherein Hon'ble Supreme Court held that:
"(A) Motor Vehicles Act(59 of 1988), S.149CompensationInsurer'sliabilityDeceased travelling in tractortrailer, fell down and suffered fatal injuries due to rash driving of tractorNo challenge as to fact that deceased loaded his agricultural produce on tractor and accompanied tractor for unloading same while returning met with accidentFinding of High Court that deceased was not travelling along with his goods at time of accident, unsustainableInsurance company liable to pay compensation".
36. In the instant case RW1 representing Insurance Company has given evidence denying its liability contending that, there is breach of policy conditions particularly there is violation of condition of 29 MVC No.6316/2018 SCCH5 policy wherein deceased and his friends were hired the vehicle of 1st Respondent in order transporting their fodder to their cows and the deceased was a gratuitous passenger and the accident was due to the negligence of the deceased himself. RW1 in his crossexamination deposed that, he do not have the statement of Pathappa to know about the statement given by deceased Pathappa who has stated in his statement that his son was went in a Tractor and Trailer to bring fodder to the cows. Further he deposed that, no where in the Police documents it was mentioned that, the deceased sitting on the Tractor Engine. On the contrary the evidence of RW3 reveals that, the deceased and himself have went to load the fodder to the Trailer for their cows from Gowribidanur and while returning the Tractor met with the accident. Hence the contention of RW1 that the vehicle and its use was for hire and reward is not proved by any cogent 30 MVC No.6316/2018 SCCH5 evidence on record. On the contrary, the offending vehicle T.T. unit was used for carrying fodder from Gowribidnur for cows which an agricultural produce of 1st Respondent's cows. Therefore, this decision relied by the Petitioners is aptly applicable wherein the use of vehicle is for agricultural purpose and not for any other commercial purpose. Once it is held that the use of vehicle by the deceased and his friends is for agricultural purpose then question of violating any policy conditions by Respondent No.1 will not arise. As of fact, that the Insurance Policy brought on record was a valid policy in respect of the offending vehicle.
37. Further the 2nd Respondent contends that, the driver who was driving the said vehicle and charged by the Police did not possessed the valid driving license to drive the class and type of vehicle involved at that time of accident. RW2 in his chiefexamination deposed that, 31 MVC No.6316/2018 SCCH5 the driver was having driving licence to drive LMV vehicle and not possess driving licence to drive Tractor and Trailor. In the year 2017, they are issuing separate endorsement to drive Tractor and Trailer and the licence issued in the year 2017, to drive LMV vehicle will not application to the Tractor and Trailer.
38. On perusal of the Charge Sheet filed against the driver of the offending vehicle for the offences punishable U/Sec.279, 338 and 304A of IPC and 177, 180 and 181 of KMV Act, because as on the date of accident, the driver was not having valid driving license. RW3 has produced the Driving Licence of the driver P.Mahesh Kumar at Ex.P.9 and as per Driving Licence, it is issued to drive LMV Cab, MCWG, PSV Bus and Transport vehicles which is valid from 28.10.2027 (NT). As per Ex.R.9 Driving license the Badge was valid till 03.03.2015 for transport vehicle.
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39. At this stage it is useful to refer a decision reported in 2017 ACJ 2011 between Mukund Devagan V/s. Oriental Insurance Co. Ltd., wherein the Hon'ble Supreme Court held that:
"Motor Vehicles Act, 1988Driving LicenceLight Motor Vehicle Whether a person holding driving license to drive 'light motor vehicle' is competent to drive transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7,500 kg or a motor car or tractor or roadroller, the unladen weight of which does not exceed 7,500 kg Held: yes; no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class".
40. At the time of arguments learned counsel for the Petitioners relied on a decision reported in AIR 2018 SC 592 between Pappu and Ors., Vs Vinod Kumar 33 MVC No.6316/2018 SCCH5 Lamba and another wherein Hon'ble Supreme Court held that:
"Motor Vehicles Act(59 of 1988) S.149 Insurer's liabilityAccident occurred due to rash and negligent driving of truckInsurer taking plea that driver of offending truck had no valid licenceExcept copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorized person having valid driving licenceFact that offending truck was duly insuredwould not per se make insurance company liableHowever, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle".
41. Further in a decision reported in 2018 ACJ 1018 between Jagdish Kumar Sood Vs United India 34 MVC No.6316/2018 SCCH5 Insurance Co., Ltd., and others wherein Hon'ble Supreme Court of India held that:
"Motor Vehicles Act, 1988, Section 149(2)(a)
(ii) read with section 2(21)Motor Insurance Driving LicenceLiability of insurance company Driver was holding a licence to drive light motor vehcle but he was driving a light goods vehicle at the time of accidentTribunal held that in absence of a specific authorization to drive a transport vehicle on the driving licence liability cannot be fastened on the insurance company and directed insurance company to pay and recoverHigh Court affirmed the orderLight motor vehicle defined in section 2(21) would include transport vehicle and a driver holding a licence to drive light motor vehicle is competent to drive a transport vehicle and no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle classWhether driver was holding a 35 MVC No.6316/2018 SCCH5 valid licence and insurance company is liable -
Held:yes".
42. On perusal of the above decision wherein it was held that, a person holding driving license to drive LMV is competent to drive transport vehicle, the gross weight of which does not exceed 7500 kg. and the separate endorsement on the licence is not required to drive a transport vehicle. Further Hon'ble Supreme Court held that a driver holding a licence to drive light motor vehicle is competent to drive a transport vehicle and no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class.
43. In the instant case, on perusal of the driving license of the driver of the offending vehicle wherein RTO has issued driving license for nontransport vehicle which was valid till 28.10.2027 and for transport vehicle 36 MVC No.6316/2018 SCCH5 the driving license is valid till 03.03.2025(TR). From this it reveals that, the driver of the offending vehicle has got valid driving license to drive nontransport vehicles and as per the above decision if a person holding driving license to drive light motor vehicles there is no separate endorsement is required to drive transport vehicles. Hence, though the driver has not obtained separate endorsement to drive the transport vehicle as per the driving license he has got valid driving license for non transport vehicle. Though the Police have filed charge sheet against the driver of the offending vehicle for not having valid driving licence to drive type of vehicle as on the date of accident, but as per the decision of Hon'ble Supreme Court and from the above materials the Court can consider that as on the date of the accident, the driving license is valid. Hence, the Respondents No.1(a) to 1(e) are being the R.C.Owners and Respondent No.2 37 MVC No.6316/2018 SCCH5 being the Insurance Company are jointly and severally liable to pay compensation to the Petitioner.
44. In order to prove that, they are the legal representatives of the deceased, Petitioners have produced Ex.P.9 to Ex.P.12, Ex.P.14 & Ex.P.15 which are Death Certificate, Aadhar Cards, Marriage Invitation, Photo and CD, which clearly discloses the relationship of Petitioners with the deceased.
45. Next remains the question regarding quantum of compensation that has to be awarded. Since this is a case of death, the age, income of the deceased, number of dependents needs to be considered. According to the Petitioners, the deceased T.B.Punith Kumar was aged about 23 years at the time of his death. In order to prove the age of the deceased, Petitioners have not produced any documents. But on perusal of Ex.P.7 and Ex.P.8 Inquest Report and P.M. Report, age of the deceased is 38 MVC No.6316/2018 SCCH5 mentioned as 25 years. On perusal of the above material record, it is to be believed that, deceased was aged 25 years at the time of his death. In view of the ratio laid down in Sarla Varma's Case the proper multiplier to the age group of 15 to 25 is 18.
46. Petitioner No.1 is the wife, Petitioner No.2 is the minor son and Respondent No.3 is the mother of the deceased are considered as dependents on the income of the deceased. As per the Sarla Varma's Case, if the number of dependents are 2 to 3, 1/3 rd of the income to be deducted towards personal and living expenses of the deceased. In this case, number of dependents are 3. Hence, 1/3rd of the income is deducted towards personal and living expenses.
47. Coming to the question of employment and monthly income of the deceased is concerned, in a 39 MVC No.6316/2018 SCCH5 judgment in Special Leave Petition (CIVIL) NO.25590 OF 2014 in between National Insurance Co. Ltd., V/s. Pranay Sethi passed on 31.10.2017, Hon'ble Apex Court had overruled the ratio laid down in Rajesh and Ors. V/s. Rajbir Singh and others case and directed all the MACT Tribunals to follow the guidelines mentioned in Pranay Sethi's Case and it is also observed that, Tribunals shall follow the fixation of multiplier as mentioned in Sarla Varma's Case and further a fresh table is prepared for addition of salary in case of death for calculation of future prospects. Hence, the decision rendered by the Hon'ble Apex Court in Pranay Sethi's Case binds this Tribunal. Again a doubt arose in the mind of the Court as to whether compensation under the head of loss of love and affection has to be awarded or not. On careful study of the ratio laid down in Pranay 40 MVC No.6316/2018 SCCH5 Sethi's Case, the question dealt by the Hon'ble Apex Court was only regarding award of future prospects and addition and deduction of actual salary of the deceased.
48. If the ratio laid down in Pranay Sethi's Case is applied to the case in hand, it is contended by the Petitioners that, deceased was rearing cows and vending milk to the nearby hotels and to the Milk Producers Co operative Society of Tharahunise Village and earning a profit of Rs.25,000/ p.m. Beside this he was working as a stable man in his village and also doing agriculture with his family and totally earning a sum of Rs.60,000/ p.m. In this regard, Petitioners have produced Ex.P.13 Certificate issued by the Embassy International Riding School. But they have not examined the employer to prove his income. Any how deceased being a skilled labour and will comes under the purview of self employed person or person having fixed salary, the 41 MVC No.6316/2018 SCCH5 Notional Income of Rs.11,000/ p.m. has to be considered for calculating the compensation.
49. As per the decision reported in Special Leave Petition (CIVIL) NO.25590 OF 2014 in between National Insurance Co. Ltd., V/s. Pranay Sethi, the Hon'ble Apex Court has made it clear that, an addition of 40% to be added to the monthly income if the deceased was aged below 40 years, in case of self employed person or person having fixed salary, as future prospects.
50. As per recent decision of Hon'ble Supreme Court of India decided on 18th September 2018 between Magma General Insurance Co., Ltd., Vs Nanu Ram @ Chuhru Ram and others, as the Petitioner No.2 being the minor son of the deceased and Respondent No.3 being the mother of the deceased, due to the death of 42 MVC No.6316/2018 SCCH5 their father and son, they have lost parental aid, protection, affection, society, discipline, guidance and training. Hence, Petitioner No.2 and Respondent No.3 are entitled for compensation under the head of loss of Filial Consortium.
51. Hence, the following calculation is made for loss of dependency.
Sl. Particulars Calculation Total
No.
(i) Monthly Income Rs.11,000/
(ii) 40% of (i) above if Rs.11,000/ (+)
added to the Rs.4,400/ =
monthly income as Rs.15,400/
future prospects
(iii) 1/3rd of (ii) of the Rs.15,400/ ()
same to be deducted Rs.5,133/ =
towards personal
and living expenses
Monthly income Rs.10,267/ p.m.
(iv) Compensation after Rs.10,267/ x12 Rs.22,17,672/
multiplier of 18 is x 18 rounded off to
applied Rs.22,18,000/
43 MVC No.6316/2018
SCCH5
52. Petitioner No.1 and 2 being wife and minor son of the deceased are entitled for Rs.17,74,400/ rounded off to Rs.17,74,000/ i.e., 80% of Rs.22,18,000/ and Respondent No.3 being the mother of the deceased is entitled for Rs.4,43,600/ rounded off to Rs.4,44,000/ i.e., 20% of Rs.22,18,000/.
53. The details of compensation awarded is as under:
Sl.No. Head of Compensation Amount/Rs.
1. Loss of dependency 22,18,00000
2. Loss of consortium 40,00000 (Petitioner No.1)
3. Loss of Filial Consortium 80,00000 (Petitioner No.2 & Respondent No.3)
4. Loss of Estate 15,00000
5. Funeral Expenses 15,00000 Total 23,68,00000 44 MVC No.6316/2018 SCCH5
54. In all, Petitioners and Respondent No.3 are entitled for total compensation of Rs.23,68,000/ with interest at the rate of 9% p.a. from the date of petition till its realization.
55. The total amount of compensation are apportioned as follows;
Heads Petitioner Petitioner Respondent
No.1 No.2 No.3
Loss of 14,19,200/ 3,54,800/ 4,44,000/
dependency (80% of (20% of
Rs.17,74,000/) Rs.17,74,000/)
Loss of 40,000/
consortium
Loss of Filial 40,000/ 40,000/
consortium
Loss of 15,000/
estate
Funeral 15,000/
expenses
Total 14,89,200/ 3,94,800/ 4,84,000/
rounded off rounded off
Rs.14,89,000/ Rs.3,95,000/
56. As far as awarding of interest on the
compensation amount is concerned, in a recent decision 45 MVC No.6316/2018 SCCH5 reported in 2018 ACJ 1300 between Mangla Ram V/s. Oriental Insurance Co., Ltd., and others (in CA Nos.2499 of 2018 arising out of SLP(C) Nos.2814142 of 2017 decided on 06.04.2018) wherein the Hon'ble Supreme Court with regard to interest at the rate of 9% p.a. on the compensation amount, in para No.28 of the judgment held that, 'The appellant would also be entitled to interest on the total amount of compensation at the rate of 9 per cent per annum on the compensation from the date of filing of the claim petition till date of realization" and also by following the principles laid down in (2018) ACJ 1020 in between ICICI Lombard General Insurance Co., Ltd., V/s. Ajay Kumar Mohanty and another decided on 6.3.2018 (in CA Nos.7181 of 2015 and 1879 of 2016) 46 MVC No.6316/2018 SCCH5 at para No.1 and 12 Hon'ble Supreme Court held that:
"QuantumInterestTribunal allowed interest at the rate of 7.5 per cent which was reduced by High Court to 7 per centApex Court allowed interest at 9 per cent per annum from the date of filing of claim application". In view of the above judgments with regard to the rate of interest and also it is settled principles of law that, while awarding interest on the compensation amount, the Court has to take into account the rate of interest on the Nationalized Bank and the rate of interest at the rate of 9% p.a. cannot said to be on the higher side. Accordingly, the Petitioner is entitled to interest at the rate of 9% p.a.
57. Coming to the question of fixing the liability to pay the compensation to the Petitioners, Respondent No.2 being the insurer had issued policy in favour of 47 MVC No.6316/2018 SCCH5 Respondent No.1 in respect of Tractor bearing Reg.No. KA50T49 vide its Policy No.421591/31/2017/3535 valid from 19.02.2017 to 18.02.2018 which is valid and effective as on the date of the accident. Accordingly, the Respondent No.2 being the insurer and Respondents No.1(a) to 1(e) being the R.C.Owners of the offending vehicle are jointly and severally liable to pay compensation to the Petitioners. However, the 2 nd Respondent has to indemnify the Respondents No.1(a) to 1(e). Accordingly, Issue No.1 is answered in affirmative and Issue No.2 in partly affirmative.
58. Issue No.3: On the basis of discussions made on Issue Nos.1 and 2, I proceed to pass the following:
::ORDER::
The petition filed under Sec.166 of the M.V. Act, 1989 is partly allowed with cost.48 MVC No.6316/2018
SCCH5 Petitioners and Respondent No.3 are entitled for compensation of Rs.23,68,000/ (Rupees Twenty Three Lakhs Sixty Eight Thousand Only) from the date of petition till realization.
Out of which Petitioner's are entitled for Petitioner No.1 Rs.14,89,000/ Petitioner No.2 Rs.3,95,000/ Respondent No.3 Rs.4,84,000/ Petitioners and Respondent No.3 are also entitled for proportionate interest at the rate of 9% p.a. from the date of petition till its realization.
The Respondent No.2 is liable to pay the compensation to the Petitioners and Respondent No.3 and shall deposit the said amount within 60 days from the date of this order.
On deposit of compensation amount pertaining to Petitioner No.1 and Respondent No.3, 75% of the amount to be released in their favour through epayment directly to their accounts by obtaining the Bank A/c details, on proper identification. Remaining 25% to be kept in fixed deposit in any 49 MVC No.6316/2018 SCCH5 Nationalized or Scheduled Bank, for a period of three years, in their respective names.
On deposit of compensation amount pertaining to Petitioner No.2, entire amount to be kept in Fixed Deposit in any Nationalized or Scheduled Bank in their respective names, till he attains majority.
Fee of counsel for Petitioners is fixed at Rs.1,000/.
Draw award accordingly.
(Dictated to the stenographer, directly on the computer, typed by her, thereof is corrected and then pronounced by me in the Open Court on this the 16th day of February, 2021) (SHARMILA.S) VIII ADDL. JUDGE & ACMM, MEMBER, MACT, BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONERS: PW1 : Smt. Shobha 50 MVC No.6316/2018 SCCH5 LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONERS: Ex.P.1 : Copy of FIR with Complaint Ex.P.2 : Copy of Charge Sheet Ex.P.3 : Copy of Statement of Owner of the Vehicle Ex.P.4 : Copy of Mahazar Ex.P.5 : Copy of Sketch Ex.P.6 : Copy of IMV Report Ex.P.7 : Copy of Inquest Report Ex.P.8 : Copy of P.M. Report Ex.P.9 : Death Certificate Ex.P.10 : Notarized copy of Aadhar Cards & (2 in Nos.) Ex.P.11 Ex.P.12 : Marriage Invitation Ex.P.13 : Certificate issued by the Embassy International Riding School Ex.P.14 : Photo with CD & Ex.P.15 LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS: RW1 : Sri. S. Manjunath RW2 : Sri. Shivamurthy M. RW3 : Sri. Jayanna 51 MVC No.6316/2018 SCCH5 LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS: Ex.R.1 : Copy of the Policy Ex.R.2 : Copy of Extract of Driving License Ex.R.3 & : Copy of 'B' Register Extract Ex.R.4 (2 in Nos.) Ex.R.5 : Authorization Letter Ex.R.6 : "B" Register Extract with copy of DL (SHARMILA.S) VIII ADDL. JUDGE & ACMM, MEMBER, MACT, BENGALURU.