Karnataka High Court
The Divisional Manager vs Vijayalaxmi And Ors on 21 July, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF JULY 2022
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE S. RACHAIAH
MISCELLANEOUS FIRST APPEAL NO.200348/2018 (MV)
Between:
The Divisional Manager
The TATA AIG General Insurance Co. Ltd.
Opp. RTO Office, Sedam Road
Gulbarga, Now represented by
Duly Constituted Attorney
Bangalore
...Appellant
(By Sri S.S. Aspalli, Advocate)
And:
1. Vijayalaxmi W/o Rukappa Hebbalkar
Age: 51 Years, Occ: Household
2. Vinayak S/o Rukkappa Hebbalkar
Age: 28 Years, Occ: Student
Both R/o H.No.3-786, Mahaveer
Chowk, Gazipur, Gulbarga-585102
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3. A.G. Ashtavinayaka Petrochem Pvt. Ltd.
R/o Shop No.12, Plot No.3, Sector No.2
Kharghar, Panvel, Raigad - 410210 (Maharashtra)
...Respondents
(Sri Basavaraj R. Math, Advocate for C/R1;
R2 served:
V/o dt. 04.01.2022, notice to R3 is held sufficient)
This MFA is filed under Section 173(1) of the MV Act,
praying to set aside the judgment and award dated 07.12.2017
in MVC No.797/2014 passed by the II Additional Senior Civil
Judge and MACT, Kalaburagi by allowing the above appeal.
This MFA having been heard and reserved on
06.07.2022, coming on for pronouncement this day,
S. RACHAIAH J., delivered the following:
JUDGMENT
This appeal is filed by the insurance company challenging the award dated 07.12.2017 in MVC No.797/2014 on the file of the II Additional Senior Civil Judge and MACT, Kalaburagi.
2. Brief facts of the case of the claimants are that:-
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Deceased Rukappa S/o Gundappa Hebbalkar has killed in a road accident on 02.06.2014 while he was going to Bidar in his car bearing its No.KA-32/M-3009 on Gulbarga-Humnabad highway. It is the case of the claimant that, when the deceased was proceeding to Bidar, a tanker bearing registration No.MH-46/F-2055 dashed to the deceased's car. As a result, the deceased Rukappa met instant death.
3. A case was registered against the driver of the tanker and after investigation, charge-sheet was filed.
4. The claimants being aggrieved by the said accident, filed claim petition before the Motor Accident Claims Tribunal (Hereinafter, called as 'the MACT'). The MACT after hearing both oral and documentary evidence, awarded compensation of Rs.53,94,200/- with 6% interest per annum.
5. The insurance company has filed this appeal being aggrieved by the award passed by the Tribunal on 4 the ground questioning the liability and non- adaptation of the split multiplier method in computing the compensation.
6. Heard Sri S.S. Aspalli, learned counsel for the appellant and Sri Basavaraj R. Math, learned counsel for respondent No.1. Respondent No.2 has been served and has remained unrepresented. Notice to respondent No.3 is held sufficient.
7. The learned counsel for the appellant- Insurance Company contended that the award passed by the MACT is against the law and evidence, therefore, the same is liable to be set aside by this Court. Further, he submits that the evidence of R.W.1 and R.W.2 and Ex.R.1 to Ex.R.5 clearly indicates that the driver of the tanker had no valid and effective driving licence to drive the tanker which carries hazardous products. He further submits that since, the driver of the insured vehicle had no valid driving licence which is mandatory as per the 5 Motor Vehicles Act to drive the tanker which carries hazardous substances; the Tribunal should have exonerated the insurer from the liability.
8. The learned counsel further submits that the Tribunal should have applied the split multiplier taking into consideration the employment and age of the deceased. Undisputedly, in this case the age of the deceased was 52 years and he was working as Manager in the State Bank of Hyderabad. These facts have been ignored by the Tribunal. Hence, the learned counsel for the insurance company sought to allow the appeal and to set aside the judgment passed by the Tribunal.
9. Per contra, the learned counsel for respondent No.1 submits that, the award passed by the Tribunal, has not been challenged by the respondent seeking enhancement of the compensation. However, the respondent No.1 accepted the award by the Tribunal as just and proper. He further submits that the insurance 6 company/appellant has filed this appeal on frivolous grounds which are not required to be considered by this Court.
10. The learned counsel for respondent No.1 submits that the Tribunal after giving valid reason has rejected the contention raised with regard to valid and effective driving licence of the driver of the tanker. Even assuming that the driver of the tanker had no valid driving licence, in view of the judgment of the Hon'ble Supreme Court, the insurance company has to indemnify the deceased and recover the same from the owner of the offending vehicle. Such being the principles, denying of the liability by the Insurance company is not acceptable and the same is liable to be rejected.
11. As regards split multiplier is concerned, the learned counsel for respondent No.1 submitted that the split multiplier would not be applicable to the case on hand as per the dictum of Hon'ble Supreme Court in the 7 case of Sarla Verma & Ors. vs Delhi Transport Corp. & Anr. reported in (2009) 2 TAC 677 (SC) and National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680, where the multiplier applied even after the age of above 50 to 60 years. In view of the submissions, he prays for rejection of the appeal filed by the insurance company.
12. Having heard both the counsel for the respective parties, the points which arise for our consideration are as follows:
a) Has the insurance company proved the liability against the owner of the tanker bearing its No.MH-46/F-2055?
b) Has the insurance company made out ground that spilt multiplier has to be adopted in this case?
13. As regards the liability is concerned, it is the contention of the insurance company that the driver of the tanker had no valid and effective driving licence as on the 8 date of accident. Hence, the policy condition was violated. On perusal of the documents, it appears that the charge- sheet was filed against the driver of the tanker for the offences under Sections 279, 304(A) of IPC and Section 187 of the Motor Vehicles Act. Admittedly, no allegation made against the driver of the car. Ex.R.2 is the driving licence which indicates that the licensee can drive motorcycle with gear, light motor vehicle, three wheeler, cab and transport vehicle medium/heavy motor vehicle regid chassis goods. The registration certificate extract of the tanker shows that it is heavy goods vehicle.
14. It appears from the evidence of R.W.2 that there should be an endorsement by the concerned authority to drive the vehicle which carries the hazardous substances. Admittedly, no such endorsement found in the driving licence of the driver of the tanker. However, at the same time, the insurance company failed to prove that the said vehicle was carrying hazardous substances on the date of 9 accident. Since the insurance company failed to establish that the tanker was carrying hazardous substances, non- mentioning the endorsement with regard to driving the tanker carrying hazardous substances is unacceptable and unjustified. Hence, the contention raised by the insurance company regarding the driver of the tanker having no valid and effective driving licence is liable to be rejected.
15. As regards the split multiplier is concerned, it is necessary to place the reliance on the judgment of the Hon'ble Supreme Court in the case of R. Valli and others V/s Tamil Nadu State Transport Corporation Limited reported in (2022) 5 SCC 107. Para Nos.5, 6 and 11 read thus:
"5. The learned counsel for the appellants argued that the multiplier methodology adopted by the Tribunal and affirmed by the High Court was erroneous and not sustainable. It was contended that the multiplier is applied keeping in view the 10 age of the deceased and the income at the time of death and not considering the remaining years of service.
6. The judgment in Sarala Verma was affirmed in Reshma Kumari v. Madan Mohan. Both the judgments were affirmed by the Constitution Bench of this Court in National Insurance Co. Ltd., v. Pranay Sethi. This Court in Pranay Sethi held as under:
59.7. The age of the deceased should be the basis for applying the multiplier.
11. Thus, we find the method of determination of compensation applying two multipliers is clearly erroneous and run counter to the judgment of this Court in Pranay Sethi."
On careful reading of the above judgment, it is clear that, only one multiplier is applicable irrespective of the age while computing the income of the deceased and not split
- multipliers method. Hence, we declined to accept the submissions of the learned counsel for the insurance - 11 company for adopting the split - multiplier method in this case. However, the learned counsel for the insurance company relied on the judgment of co-ordinate bench of this Court in the case of The Manager, M/s New India Assurance Company Limited vs Smt. Hema and Others in MFA No.3878/2019 dated 30.03.2021, where this Court applied the spilt multiplier by considering the age of the deceased. In view of the judgment of the Hon'ble Supreme Court mentioned above, adopting the multiplier method in computing the compensation is not permitted. Hence, the judgment of this Court may not be applicable to this case.
16. In view of the observations made above, the points which arose for our consideration are answered as under:-
1. Point No.1 : In the Negative.
2. Point No.2 : In the Negative.
17. In view of the above, we pass the following: 12
ORDER
i) The appeal filed by the Insurance Company is hereby dismissed.
ii) The judgment and award dated 07.12.2017 in MVC No.797/2014 passed by the II Additional Senior Civil Judge and MACT, Kalaburagi is hereby confirmed.
iii) The registry is directed to transmit the records along with statutory deposit, if any, to the Tribunal for the necessary compliance forthwith.
Sd/-
JUDGE Sd/-
JUDGE RSP