Karnataka High Court
The Senior Manager vs P Adam Ismail S/O Late Haji S Ismail on 30 August, 2019
Author: S.G.Pandit
Bench: S.G.Pandit
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2019
BEFORE
THE HON'BLE MR.JUSTICE S.G.PANDIT
M.F.A.No.3962/2012
C/W
M.F.A.Nos.3963/2012, 3964/2012, 3965/2012,
3966/2012, 3967/2012, 3968/2012, 3969/2012,
3970/2012 AND 3971/2012 (MV)
M.F.A.No.3962/2012
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALIANZ GENERAL
INSURANCE COMPANY LIMITED
HEAD OFFICE: G E PLAZA
AIRPORT ROAD
BANGALORE/107,
CRYSTAL ARC, BALMATTA ROAD
MANGALORE 575 001.
BY
BAJAJ ALLIANZ GENERAL
INSURANCE CO.LTD.,
NO.31, GROUND FLOOR
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-560 024.
BT IT'S MANAGER
... APPELLANT
(BY SRI. O MAHESH, ADV.)
2
AND:
1. P. ADAM ISMAIL
AGE 44 YEARS
S/O LATE HAJI S. ISMAIL
2. MRS. ZOHARA ADAM
AGE 34 YEARS
W/O P ADAM ISMAIL
NOW RESIDING AT YASSAR
ARAFATH MANZIL, PARARI
VAMANJOOR POST, THIRUVAIL
VILLAGE, MANGALORE TALUK.
3. LAXMANA T
MAJOR
S/O THIMMAPPA POOJARY
BAILA DARKAS HOUSE
VEERAKAMBA POST AND VILLAGE
BANTWAL 574 211.
4. THE HEAD MASTER
BAMI PRIMARY SCHOOL
THENKU ULIPADY, GURUPURA
MANGALORE TALUK.
... RESPONDENTS
(BY SRI.T.SANDESH SHETTY, ADV. FOR C/R2
SRI.M E NAGESH, ADV. FOR R4
R1 & R3 -SERVED & UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.02.2012
PASSED IN MVC NO.1270/2008 ON THE FILE OF THE
PRESIDING OFFICER FAST TRACK COURT, DAKSHINA
KANNADA, MACT., MANGALORE, AWARDING A COMPENSATION
OF RS.2,25,000/- WITH INTEREST AT THE RATE OF 6% P.A.
3
FROM THE DATE OF RESPECTIVE PETITIONS TILL THE DATE OF
PAYMENT.
M.F.A.No.3963/2012
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALIANZ GENERAL
INSURANCE COMPANY LIMITED
HEAD OFFICE: G.E. PLAZA
AIRPORT ROAD
BANGALORE - 107
CRYSTAL ARC, BALMATTA ROAD
MANGALORE - 575001.
BY
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LIMITED
NO.31, GROUND FLOOR
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-24.
BY IT'S MANAGER
... APPELLANT
(BY SRI. O MAHESH, ADV.)
AND:
1. ABDUL RAZAK @ RAZAK
AGED ABOUT 38 YEARS
S/O S. AHMED
4
2. MRS. SARAMMA
AGE 34 YEARS
W/O ABDUL RAZAK
NOW RESIDING AT SALE MANE
HOUSE, ULAIBETTU POST
VIA, GURUPURA
MANGALORE TALUK-575001.
3. LAXMANA T
MAJOR
S/O THIMMAPPA POOJARY
BAILA DARKAS HOUSE
VEERAKAMBA POST AND VILLAGE
BANTWAL - 574211.
4. THE HEAD MASTER
BAMI PRIMARY SCHOOL
THENKU ULIPADY, GURUPURA
MANGALORE TALUK-575 001.
... RESPONDENTS
(BY SRI.SANDESH SHETTY T, ADV. FOR C/R2
SRI.M E NAGESH, ADV. FOR R4
R1 -SERVICE HELD SUFFICIENT V/O DT:16.10.2014
R3 -SERVED & UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.02.2012
PASSED IN MVC NO.1271/2008 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT, DAKSHINA
KANNADA, MACT., MANGALORE, AWARDING A COMPENSATION
OF RS.2,25,000/- WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF RESPECTIVE PETITION TILL THE DATE OF
PAYMENT.
5
M.F.A.No.3964/2012
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALIANZ GENERAL
INSURANCE COMPANY LIMITED
HEAD OFFICE: G.E. PLAZA
AIRPORT ROAD
BANGALORE/107
CRYSTAL ARC, BALMATTA ROAD
MANGALORE - 575001.
BY
THE BAJAJ ALLIANZ GENERAL
INSURANCE CO., LTD.,
NO.31, GROUND FLOOR
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-24.
BY IT'S MANAGER
... APPELLANT
(BY SRI.O MAHESH, ADV.)
AND:
1. S. UMARABBA
AGED ABOUT 47 YEARS
S/O LATE HAJI S ISMAIL
2. MRS. ZAINAB
AGED ABOUT 35 YEARS
W/O S UMARABBA
NOW RESIDING AT
S. MUBARAK MANZIL PARARI
6
VAMANJOOR POST
THIRANVAIL VILLAGE
MANGALORE TALUK-575 001.
3. LAXMANA T
MAJOR
S/O THIMMAPPA POOJARY
BAILA DARKAS HOUSE
VEERAKAMBA POST AND VILLAGE
BANTWAL - 574211.
4. THE HEAD MASTER
BAMI PRIMARY SCHOOL
THENKU ULIPADY, GURUPURA
MANGALORE TALUK-575001.
... RESPONDENTS
(BY SRI.SANDESH SHETTY T, ADV. FOR C/R1 & R2
SRI.M E NAGESH, ADV. FOR R4
R3 -SERVED & UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.02.2012
PASSED IN MVC NO.1272/2008 ON THE FILE OF THE COURT OF
THE PRESIDING OFFICER FAST TRACK COURT, MANGALORE,
DAKSHINA KANNADA, MACT., MANGALORE, AWARDING A
COMPENSATION OF RS.2,25,000/- WITH INTEREST AT THE
RATE OF 6% P.A. FROM THE DATE OF RESPECTIVE PETITIONS
TILL THE DATE OF PAYMENT.
M.F.A.No.3965/2012
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALIANZ GENERAL
INSURANCE COMPANY LIMITED
HEAD OFFICE: G.E. PLAZA
7
AIRPORT ROAD
BANGALORE/107
CRYSTAL ARC, BALMATTA ROAD
MANGALORE - 575001.
BY
THE BAJAJ ALLIANZ GENERAL
INSURANCE CO., LTD.,
NO.31, GROUND FLOOR
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-24.
BY IT'S MANAGER
... APPELLANT
(BY SRI.O MAHESH, ADV.)
AND:
1. ABBOBAKKER @ ABBU BEARY
AGED ABOUT 46 YEARS
S/O MOHAMMED
2. KUMARI ATHIJAMMA
AGED ABOUT 23 YEARS
D/O ABBOBAKKER @ ABBU BEARY
3. MASTER MOHAMMED THWAHA
AGED ABOUT 19 YEARS
S/O ABBOBAKKER @ ABBU BEARY
4. KUMARI ASMATH
AGED ABOUT 17 YEARS
D/O ABBOBAKKER @ ABBU BEARY
PETITIONER NO.4 ARE MINOR
REPRESENTED BY THE PETITIONER
NO.1 THEIR NATURAL GUARDIAN
8
ALL ARE R/AT KANTHARA
BETTU HOUSE, ULAIBETTU VILLAGE
AND POST
MANGALORE TALUK.
5. THE HEAD MASTER
BAMI PRIMARY SCHOOL
THENKU ULIPADY, GURUPURA
MANGALORE TALUK.
... RESPONDENTS
(BY SRI.M E NAGESH, ADV. FOR R5
R1 TO 3 -SERVED & UNREPRESENTED
R4-MINOR & REP. BY R1)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.02.2012
PASSED IN MVC NO.1323/2008 ON THE FILE OF PRESIDING
OFFICER FAST TRACK COURT, MANGALORE, DAKSHINA
KANNADA, MACT., MANGALORE, AWARDING A COMPENSATION
OF RS.2,82,000/- WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
M.F.A.No.3966/2012
THE SENIOR MANAGER
BAJAJ ALIANZ GENERAL
INSURANCE COMPANY LIMITED
HEAD OFFICE: G.E. PLAZA
AIRPORT ROAD
BANGALORE/107
CRYSTAL ARC, BALMATTA ROAD
MANGALORE - 575001.
BY
THE BAJAJ ALLIANZ GENERAL
INSURANCE CO., LTD.,
9
NO.31, GROUND FLOOR
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-24.
BY IT'S MANAGER
... APPELLANT
(BY SRI.O MAHESH, ADV.)
AND:
1. ABOOBAKKER @ ABBU BEARY
AGED ABOUT 46 YEARS
S/O LATE MOHAMMED
2. KUMARI ATHIJAMMA
AGED ABOUT 23 YEARS
D/O ABBOBAKKER @ ABBU BEARY
3. MASTER MOHAMMED THWAHA
AGED ABOUT 19 YEARS
S/O ABBOBAKKER @ ABBU BEARY
4. KUMARI ASMATH
AGED ABOUT 17 YEARS
D/O ABBOBAKKER @ ABBU BEARY
PETITIONER NO.4 ARE MINOR
REP. BY THE PETITIONER NO.1
THEIR NATURAL GUARDIAN
ALL ARE RESIDING AT
KANTHAARA BETTU HOUSE
ULAIBETTU VILLAGE AND POST
MANGALORE TALUK -575001.
10
5. THE HEAD MASTER
BAMI PRIMARY SCHOOL
THENKU ULIPADY GURUPURA
MANGALORE TALUK -575001.
... RESPONDENTS
(BY SRI.M E NAGESH, ADV. FOR R5
R1 TO 3 -SERVED & UNREPRESENTED
R4-MINOR & REP. BY R1)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.2.2012
PASSED IN MVC NO.1324/2008 ON THE FILE OF PRESIDING
OFFICER FAST TRACK COURT, MANGALORE, DAKSHINA
KANNADA, MACT., MANGALORE, AWARDING A COMPENSATION
OF RS.4,00,000/- WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
M.F.A.No.3967/2012
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALIANZ GENERAL
INSURANCE COMPANY LIMITED
HEAD OFFICE: G.E. PLAZA
AIRPORT ROAD
BANGALORE/107
CRYSTAL ARC
BALMATTA ROAD
MANGALORE - 575001.
BY
THE BAJAJ ALLIANZ GENERAL
INSURANCE CO., LTD.,
NO.31, GROUND FLOOR
TBR TOWERS, 1ST CROSS
11
NEW MISSION ROAD
BANGALORE-24.
BY IT'S MANAGER
... APPELLANT
(BY SRI.O MAHESH, ADV.)
AND:
1. SMT. SAMPA POOJARTHI
AGED ABOUT 64 YEARS
W/O LATE DAYANANDA POOJARY
R/AT PERMANKI MANTAME HOUSE
ULAIBETTU VILLAGE & POST
MANGALORE TALUK &
DISTRICT-575001.
2. THE HEAD MASTER
BAMI PRIMARY SCHOOL,
THENKU ULIPADY, GURUPURA
MANGALORE TALUK-575001.
... RESPONDENTS
(BY SRI.M E NAGESH, ADV. FOR R2
R1-DECEASED STEPS NOT TAKEN)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.02.2012
PASSED IN MVC NO.1325/2008 ON THE FILE OF PRESIDING
OFFICER, FAST TRACK COURT, MANGALORE, DAKSHINA
KANNADA, MACT., MANGALORE, AWARDING A COMPENSATION
OF RS.2,70,000/- WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
12
M.F.A.No.3968/2012
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALIANZ GENERAL
INSURANCE COMPANY LIMITED
HEAD OFFICE: G.E. PLAZA
AIRPORT ROAD
BANGALORE/107
CRYSTAL ARC
BALMATTA ROAD
MANGALORE - 575001.
BY
THE BAJAJ ALLIANZ GENERAL
INSURANCE CO., LTD.,
NO.31, GROUND FLOOR
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-24.
BY IT'S MANAGER
... APPELLANT
(BY SRI.O MAHESH, ADV.)
AND:
1. P.M. HAMZATH
AGE 36 YEARS
S/O P.M. ISMAIL
2. SMT. AYSHA BANU
AGED ABOUT 28 YEARS
W/O P.M. HAMZATH
13
BOTH ARE R/AT AYSHA MANZIL
KANTHARABETTU HOUSE
ULAIBETTU POST
MANGALORE TALUK & DISTRICT.
3. THE HEAD MASTER
BAMI PRIMARY SCHOOL
THENKU ULIPADY, GURUPURA
MANGALORE TALUK.
... RESPONDENTS
(BY SRI. M E NAGESH, ADV. FOR R3
R1 & R2-SERVED & UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.02.2012
PASSED IN MVC NO.1637/2008 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT, DAKSHINA
KANNADA, MACT., MANGALORE, AWARDING A COMPENSATION
OF RS.2,25,000/-WITH INTEREST AT THE RATE OF 6% P.A
FROM THE DATE OF RESPECTIVE PETITIONS TILL THE DATE OF
PAYMENT.
M.F.A.No.3969/2012
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALIANZ GENERAL
INSURANCE COMPANY LIMITED
HEAD OFFICE: G.E. PLAZA
AIRPORT ROAD
BANGALORE/107
CRYSTAL ARC
BALMATTA ROAD
MANGALORE - 575001.
14
BY
THE BAJAJ ALLIANZ GENERAL
INSURANCE CO., LTD.,
NO.31, GROUND FLOOR
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-24.
BY IT'S MANAGER
... APPELLANT
(BY SRI.O MAHESH, ADV.)
AND:
1. P.M. HAMZATH
AGE 36 YEARS
S/O P.M. ISMAIL
2. SMT. AYSHA BANU
AGED ABOUT 28 YEARS
W/O P.M. HAMZATH
BOTH ARE R/AT AYSHA MANZIL
KANTHARABETTU HOUSE
ULAIBETTU POST
MANGALORE TALUK &
DISTRICT-575001.
3. THE HEAD MASTER
BAMI PRIMARY SCHOOL
THENKU ULIPADY, GURUPURA
MANGALORE TALUK-575001.
... RESPONDENTS
(BY SRI.M E NAGESH, ADV. FOR R3
R1 & R2 -SERVED & UNREPRESENTED)
15
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.02.2012
PASSED IN MVC NO.1638/2008 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT, DAKSHINA
KANNADA, MACT., MANGALORE, AWARDING A COMPENSATION
OF RS.2,25,000/- WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF RESPECTIVE PETITIONS TILL THE DATE OF
PAYMENT.
M.F.A.No.3970/2012
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALIANZ GENERAL
INSURANCE COMPANY LIMITED
HEAD OFFICE: G.E. PLAZA
AIRPORT ROAD
BANGALORE/107
CRYSTAL ARC
BALMATTA ROAD
MANGALORE - 575001.
BY
THE BAJAJ ALLIANZ GENERAL
INSURANCE CO., LTD.,
NO.31, GROUND FLOOR
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-24.
BY IT'S MANAGER
... APPELLANT
(BY SRI.O MAHESH, ADV.)
16
AND:
1. M MAJEED G
AGE 40 YEARS
S/O M. AHMED
2. SALINA BAGAM
AGED 30 YEARS
W/O M. MAJEED G.
BOTH ARE R/AT AYSHA MANZIL
KANTHARABETTU HOUSE
ULAIBETTU POST
MANGALORE TALUK &
DISTRICT-575 001.
3. THE HEAD MASTER
BAMI PRIMARY SCHOOL
THENKU ULIPADY, GURUPURA
MANGALORE TALUK -575001.
... RESPONDENTS
(BY SRI.M E NAGESH, ADV. FOR R3
R1 & R2 -SERVED & UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.02.2012
PASSED IN MVC NO.1639/2008 ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT DAKSHINA
KANNADA, MACT., MANGALORE, AWARDING A COMPENSATION
OF RS.2,25,000/- WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF RESPECTIVE PETITIONS TILL THE DATE OF
PAYMENT.
17
M.F.A.No.3971/2012
BETWEEN:
THE SENIOR MANAGER
BAJAJ ALIANZ GENERAL
INSURANCE COMPANY LIMITED
HEAD OFFICE: G.E. PLAZA
AIRPORT ROAD
BANGALORE/107
CRYSTAL ARC
BALMATTA ROAD
MANGALORE - 575001.
BY
BAJAJ ALLIANZ GENERAL
INSURANCE CO., LTD.,
NO.31, GROUND FLOOR
TBR TOWERS, 1ST CROSS
NEW MISSION ROAD
BANGALORE-24.
BY IT'S MANAGER
... APPELLANT
(BY SRI.O MAHESH, ADV.)
AND:
1. M. ABDUL JABBAR
AGE 40 YEARS
S/O LATE M. MOHAMMED
2. SMT. HAZRA
AGED 32 YEARS
W/O M. ABDUL JABBAR
18
BOTH ARE R/AT ZEENATH MANZIL
KANTHARABETTU HOUSE
ULAIBETTU POST
MANGALORE TALUK &
DISTRICT-575001.
3. THE HEAD MASTER
BAMI PRIMARY SCHOOL
THENKU ULIPADY, GURUPURA
MANGALORE TALUK -575001.
... RESPONDENTS
(BY SRI. M E NAGESH, ADV. FOR R3
R1-SERVICE H/S V/O DT:07.10.2014
R2-SERVED & UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:10.2.2012
PASSED IN MVC NO.1640/2008 ON THE FILE OF THE COURT OF
THE FAST TRACK COURT, MANGALORE, DAKSHINA KANNADA, &
MACT., MANGALORE, AWARDING A COMPENSATION OF
RS.2,25,000/- EACH WITH INTEREST AT THE RATE OF 6% P.A.
FROM THE DATE OF RESPECTIVE PETITIONS TILL THE DATE OF
PAYMENT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
ON 05/08/2019 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
The above appeals arise out of one and the same accident, hence with the consent of learned counsels for all the parties, all the appeals are taken up for hearing together and disposed off by this common judgment.
19
2. The appellant - Insurance Company is in appeal against the common judgment and award dated 10.02.2012 passed in MVC Nos.1270/2008 to 1272/2008, MVC Nos.1323 to 1325/2008 and MVC Nos.1637 to 1640/2008 on the file of the Fast Track Court, Mangalore Dakshina Kannada and MACT, Mangalore, by which the liability is saddled on the Insurer.
3. MVC No.1270/2008 was filed by the parents of deceased - Master Afzal Abdul Rahiman, under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of the deceased, who was aged 7 years as on the date of death and was a student of 2nd respondent - School.
4. MVC No.1271/2008 was filed by the parents of the deceased - Master Hafeez under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of the deceased, who was aged 8 years as on the date of death and was a student of 2nd respondent - School. 20
5. MVC No.1272/2008 was filed by the parents of the deceased - Miss Shambreena under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of the deceased, who was aged 9 years as on the date of death and was a student of 2nd respondent - School.
6. MVC No.1323/2008 was filed by the parents of the deceased - Kumari Ramlath @ Jameela under Section 163-A of the Motor Vehicles Act, 1988, claiming compensation for the death of the deceased, who was aged 17 years as on the date of death and was working as coolie in the 2nd respondent
- School.
7. MVC No.1324/2008 was filed by the legal representatives of the deceased -Smt. Saramma under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of the deceased, who was aged 40 years as on the date of death and was working as coolie. 21
8. MVC No.1325/2008 was filed by the Mother of the deceased - Kamalaksha Salian under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the death of the deceased, who was aged 32 years as on the date of death and was working as electrician in the 2nd respondent
- School.
9. MVC No.1637/2008 was filed by the parents of the deceased - Master Museer @ Ismail under Section 163-A of the Motor Vehicles Act, 1988, claiming compensation for the death of the deceased, who was aged 4 years as on the date of death and was a student of 2nd respondent - School.
10. MVC No.1638/2008 was filed by the parents of the deceased - Baby Fathimathul Museena under Section 163-A of the Motor Vehicles Act, 1988, claiming compensation for the death of the deceased, who was aged 6 years as on the date of death and was a student of 2nd respondent - School. 22
11. MVC No.1639/2008 was filed by the parents of the deceased - Baby Aysha Suhana under Section 163-A of the Motor Vehicles Act, 1988, claiming compensation for the death of the deceased, who was aged 6 years as on the date of death and was a student of 2nd respondent - School.
12. MVC No.1640/2008 was by the parents of the deceased
- Baby Fathimath Haseena under Section 163-A of the Motor Vehicles Act, 1988, claiming compensation for the death of the deceased, who was aged 7 years as on the date of death and was a student of 2nd respondent - School.
13. The common grievance of the claimants is that on fateful day of 14.8.2008 the deceased and other children of 2nd respondent - School were traveling by School Mini Bus bearing No.KA.37.3493 towards 2nd respondent - School. As the driver of the Mini Bus was driving the vehicle in high speed in a rash and negligent manner, he lost control over the vehicle and Mini Bus fell into flooded Palguni River due to 23 which 7 children and 3 major persons lost their life. Claiming compensation for their death, the above stated claim petitions are filed.
14. On issuance of notice, the 3rd respondent - Insurance Company appeared and filed its objection denying the claim averments, but admitted the issuance of policy. Further it is stated that the driver of the vehicle had no valid and effective driving licence to drive the vehicle, which amounts to violation of terms and conditions of the policy. The deceased in MVC Nos.1323/2008 to 1325/2008 are not the students of the 2nd respondent-School nor employees, but they were traveling as unauthorized passengers. Thus there is violation of permit conditions. Seating capacity of the vehicle was 12 + 1, whereas more number of passengers were traveling on the fateful day. The claimants in support of their claim examined PWs.1 to 9 apart from marking the documents Exs.P.1 to P.45. On behalf of respondents RW.1 was examined and marked the documents Exs.R.1 and R.2. 24 Respondent also examined RW.2 and RW.3 and got marked the documents Exs.R3 to R7. The Tribunal on analyzing the material on record both oral and documentary awarded global compensation of Rs.2,25,000/- with 6% interest to the claimants in MVC Nos.1270/2008 to 1272/2008 and MVC Nos.1637/2008 to 1640/2008. Further the Tribunal awarded global compensation of Rs.2,82,000/- with 6% interest p.a. in MVC No.1323/2008, global compensation of Rs.4,00,000/- with interest at the rate of 6 % p.a. in MVC No.1324/2008 and global compensation of Rs.2,70,000/- with interest at 6% p.a. in MVC No.1325/2008. Aggrieved by the saddling of liability on the Insurer and quantum of compensation the appellant - Insurer is before this Court in these appeals.
15. Heard the learned counsel for the appellant - Insurance Company and learned counsels for the respondents- claimants. Perused the appeal papers and lower court records.
25
16. The learned counsel for the appellant - Insurance Company would submit that even though five petitions are filed under Section 163-A of the Motor Vehicles Act, the Tribunal has considered the same as petitions filed under Section 166 of the Motor Vehicles Act, and proceeded to pass judgment. The learned counsel for the appellant mainly contended that there is violation of permit condition and the driver of the vehicle in question had no license to drive transport vehicle. The driver of the vehicle had only license to drive the light motor vehicle. Maxi Cab which had seating capacity of 12 + 1 was converted as Mini School Bus, with permit to carry School children. The Mini bus belongs to 2nd respondent - Educational Institution, which could only carry students and employees of the 2nd respondent - Institution. It is his further submission that, except the school children nobody else could travel in the school bus and if persons other than the school children and staff of the school are allowed to travel in the bus, the same would be in violation of 26 the permit condition. On the date of accident, more than permitted number of passengers were traveling in the Mini Bus, which would also amount to violation of permit conditions.
17. The learned counsel for the appellant further contended that while granting compensation under Section 163-A of the Motor Vehicles Act, Schedule II to the Act is to be followed. The compensation awarded is in excess of what is contemplated under Schedule II to the Act. While determining the compensation, the Tribunal has failed to give deduction as contemplated under Schedule II to the Act, since the deceased are minors and bachelors. It is further contended that the deceased in MVC Nos.1323 to 1325/2008 were unauthorizedly traveling and they are unauthorized passengers, they are neither the students nor staff of the 2nd respondent-School. As they are unauthorized passengers, policy would not cover such unauthorized passengers. The insurer would not be liable to indemnify the owner and would 27 not be liable to pay compensation. He further submits that insofar as the decision of the Hon'ble Supreme Court in MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED., reported in (2017) 14 SCC 663 the same is per incurium as the Hon'ble Apex Court has failed to notice relevant provisions of the Motor Vehicles Act and moreover, the said decision is referred to larger Bench. It is his further submission that it is not a case of pay and recovery, as such he prays for allowing the appeals.
18. Per contra, the learned counsels for the respondents/ claimants would submit that the driver of the vehicle in question had light motor vehicle license without transport endorsement. In view of the decision of the Apex Court in MUKUND DEWANGAN referred to above, the contention of the appellant that the driver of the vehicle in question had no valid and effective driving license would not merit any consideration. Further it is submitted that on the date of accident, more than the permitted capacity of passengers were traveling which 28 cannot be accepted, as there are only ten claims. With regard to the contention of the appellant that there is violation of permit condition, the learned counsel for the respondents would rely on the decision of the Hon'le Apex Court in AMRIT PAUL SINGH AND ANOTHER VS TATA AIG GENERAL INSURANCE COMPANY LIMITED AND OTHERS reported in (2018) 7 SCC 558. With regard to claims in MVC Nos.1323 to 1325/2008 the counsel for the respondents would submit that the deceased were not passengers for hire, but they were employees of the 2nd respondent - School. Thus they pray for dismissal of the appeals.
19. On hearing the learned counsel for the parties and on perusal of Lower Court Records, the following questions would emerge for consideration in these appeals:-
(a) Whether the Tribunal, in the facts and circumstances of the case is justified in saddling the liability on the Insurer while rejecting their contention that there is violation of permit condition and that the driver of the vehicle had no driving license to drive the transport 29 vehicle in MVC Nos.1270-1272/2008 and MVC Nos.1637-1640/2008?
(b) Whether the Insurer is liable to indemnify the owner to pay the compensation awarded to the claimants in MVC Nos.1323 to 1325 of 2008?
(c) Whether the Tribunal ought to have considered deduction as provided under Schedule II of Section 163A of the Motor Vehicles Act?
20. Answer to question (a) is in the affirmative; question (b) is partly affirmative and (c) is in the negative for the following reasons:
The appellant - Insurance Company contends that the driver of the offending vehicle had no license to drive the transport vehicle and further it is contended that there is violation of permit condition, since the School Mini Bus carried unauthorized passengers. Ex.R.1 is the extract of driving license. On perusal of Ex.R.1 it would indicate that the driver of the Mini Bus had license to drive Light Motor Vehicle (LMV), which was valid up to 17.06.2022, whereas the 30 fateful accident had taken place on 14.08.2008. Ex.R.1 would also indicate that the driver of the mini bus had authorization to drive Heavy Motor Vehicle (HMV) and was valid upto 16.06.2008. But as on the date of accident the driver of the vehicle had only Light Motor Vehicle license without transport endorsement. Ex.R.2 is the private service vehicle permit issued by the RTO, Mangaluru, which would indicate that the permit was issued for the conveyance of school students and staff only with seating capacity of 12 + 1.
Ex.R.2 permit would also indicate the laden weight of the vehicle as 5,300 kgs. Section 2(21) of the Motor Vehicles Act, 1988, defines 'light motor vehicle' which reads as follows :-
"Section 2(21): "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed [7,500] kilograms;"
21. The Mini Bus involved in the accident in this case was less than 7,500 kgs. The Hon'ble Supreme Court in the decision MUKUND DEWANGAN cited supra considering the 31 relevant Sections including Section 2(21) of the Motor Vehicles Act, 1988, at Paragraphs 17, 18, 58, 59, 60 has held as follows :-
"17. The definition of "light motor vehicle" makes it clear that for a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kgs. "Gross vehicle weight" has been defined in Section 2(15). The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kg as defined in Section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in Sections 2(21) and 10(2)(d) relating to the light motor vehicle. The definition of "light motor vehicle"
has to be given full effect to and it has to be read with Section 10(2)(d) which makes it abundantly clear that "light motor vehicle" is also a "transport vehicle", the gross vehicle weight or unladen weight of which does not exceed 7500 kg as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of other categories as per gross vehicle weight or unladen weight as specified 32 in Section 2(21) of the Act. The provision of Section 3 of the Act requires that a person in order to drive a "transport vehicle" must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of 'transport vehicle' category in Section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of 'gross vehicle weight' or 'unladen weight' for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a light motor vehicle or a heavy goods vehicle; whereas 'medium passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.
33
18. Thus, the newly incorporated expression 'transport vehicle' in Section 10(2)(e) would include only the vehicles of the category as defined in Section 2(16) - heavy goods vehicle, Section 2(17) - heavy passenger motor vehicle, Section 2(23) - medium goods vehicle and Section 2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in Section 2(21).
58. Transport vehicle has been defined in Section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in Section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage carriage. Goods carriage which is also a transport vehicle is defined in Section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying 34 passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.
59. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle"
in Section 2(21) and the provisions of Section 10(2)(d), 35 Rule 8 of the 1989 Rules, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in Sections 10(2)(e) to (h) and our conclusion is fortified by the syllabus and Rules which we have discussed.
60.Thus, we answer the questions which are referred to us thus:
60.1. 'Light motor vehicle' as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or 36 tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg and holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg.
That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
60.3. The effect of the amendment made by virtue of Act 54/1994 w.e.f. 14.11.1994 while substituting clauses
(e) to (h) of Section 10(2) which contained "medium goods vehicle" in Section 10(2)(e), medium passenger motor vehicle in Section 10(2)(f), heavy goods vehicle in Section 10(2)(g) and "heavy passenger motor vehicle"
in Section 10(2)(h) with expression 'transport vehicle' as substituted in Section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of Section 10(2)(d) and Section 2(41) of the Act i.e. light motor vehicle.37
60.4. The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
22. The Hon'ble Supreme Court in the above decision has made it clear that, if one possess license to drive light motor vehicle, there is no requirement to obtain separate endorsement to drive the transport vehicle and if a driver is holding license to drive light motor vehicle, he can drive transport vehicle of such class without endorsement to that effect. In the instant case, Ex.R.1 would indicate that as on the date of accident the driver of the mini bus had license to drive light motor vehicle. In view of the same, the contention of the appellant - Insurer that the driver had no valid and effective driving license is liable to be rejected. 38
23. The learned counsel for the appellant submitted that the decision of the Hon'ble Supreme Court in MUKUND DEWANGAN is per incurium as the relevant provisions of the Motor Vehicles Act have not been considered and further submits that since the decision in MUKUND DEWANGAN is referred to larger Bench, the same would have no application. The contention that it is per incurium would not be available before this Court. The decision in MUKUND DEWANGAN is binding on this Court. Further it is true that the decision in MUKUND DEWANGAN is placed before larger Bench by order dated 03.05.2018 in Civil Appeal No.841/2018 and connected appeals. The copy of order dated 3.5.2018 is produced. The order reads as follows :-
"While the counsel have referred to various other provisions of the Act and the Rules, we have only referred to a few, very significant submissions. Since the prayer is for the reconsideration of Mukund Dewangan (Supra), we are of the view that it is only appropriate that the prayer itself, in light 39 of some of the submissions, we have noted above, be considered by a larger Bench of 3 Judges"
24. A reading of the order would indicate that appellant's therein have sought for re-consideration of MUKUND DEWANGAN and the Hon'ble Bench of the Apex Court felt that the prayer itself be considered by larger bench of three judges. Further there is no stay of the decision in MUKUND DEWANGAN and the decision in MUKUND DEWANGAN holds the field as on today.
25. The next contention is that there is violation of permit condition as the permit was granted for transport of school children and staff only, whereas the vehicle in question was carrying unauthorized passengers, as such there is violation of permit condition. It is also submitted that the permit is for 12 + 1 seating capacity whereas there were more passengers than the permitted limit. But it is to be noticed that there are only ten claim petitions, which are within the permitted seating capacity. Admittedly, there was permit to carry 12 40 passengers apart from the driver. The policy was also issued covering the risk of 12 + 1. Number of claims is less than the permitted number of passengers. Hence, the insurer cannot avoid the liability. The claimants in MVC Nos.1323 to 1325 of 2008 are neither the students nor staff of the 2nd respondent- School. In MVC No.1323/2008, the deceased was coolie, who was aged 17 years. In MVC No.1324/2008, the deceased was aged 48 years and was a coolie. In MVC No.1325/2008, the deceased was aged 32 years, and it is claimed that he was an electrician and an agriculturist. No material is produced by the claimants to substantiate their contention that they were the staff of the 2nd respondent - School. Admittedly Ex.R.2 would indicate that the permit was issued for transport of school students and staff only. Ex.R.5 - the instructions to be followed by the permit holders for School children and staff, states that 'the vehicle shall be used for the conveyance of the students only'. Those instructions are issued in the best interest of the students, who travel in the School Bus. 41 The entire material on record would not indicate as to in what capacity the deceased in MVC Nos.1323 to 1325 / 2008 were travelling in the Mini Bus as there is no material to show that the deceased in the above MVC numbers were either students or staff of the school, as such they are unauthorized passengers and there would be violation of permit condition. Section 66 of the Motor Vehicles Act, 1988, would state about the necessity for permits. The Hon'ble Supreme Court in the case of AMRIT PAUL SINGH VS. TATA (AIG) GENERAL INSURANCE CO. LTD., reported in (2018) 7 SCC 558 considering the provisions of Sections 149 and 66 of the Motor Vehicles Act, at paragraphs 11 and 24 has held as follows :-
"11. A distinction has to be made between "route permit" and "permit" in the context of Section 149 of the Act. Section 149(2) provides the grounds that can be taken as defence by the insurer. It enables the insurer to defend on the ground that there has been breach of a specific condition of the policy, namely, (i) a condition that excludes 42 the use of the vehicle,- (a) for hire or reward, where the vehicle is, on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward, or (b) for organized racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without sidecar being attached where the vehicle is a motor cycle. That apart, it also entitles the insurer to raise the issue pertaining to a condition that excludes driving by a named person or persons or by any person who is not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification or that excludes liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion. A further defence that can be availed of by the insurer is that the policy is void on the ground that it has been obtained by nondisclosure of the material fact or by representation of act which is false in the material particular.
24. In the case at hand, it is clearly demonstrable from the materials brought on record that the 43 vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh and Lakhmi Chand in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by 44 the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle."
26. In the instant case the permit was in existence and the same was for traveling of students and staff of 2nd respondent
- School. The deceased in MFA No.3965 to 3967/2012 are neither students nor staff of 2nd respondent - School. As such by following the above decision, MFA Nos.3965 to 3967/2012 are allowed in part and it is held that the appellant - Insurer shall pay the compensation to the claimants with interest, with liberty to the Insurer to recover the same from the owner of the vehicle.
45
27. The learned counsel for the appellant submitted that the quantum of compensation awarded to the claimants in MFA Nos.3962 to 3964/2012 and MFA Nos.3968 to 3971/2012 are on the higher side as the Tribunal has failed to deduct towards personal expenses as provided under Schedule II of Section 163A to the Act. Further he contends that since the deceased are students, who had no income, their income is to be taken at Rs.15,000/- p.a., and deduction to be made at 50% as they are bachelors. It is to be noticed that the deceased in all the claim petitions are minors aged between 7 to 10 years, who are the students of 2nd respondent - School. Any amount of compensation awarded to the parents would not bring back the love and affection of their children. Furthermore, any amount of compensation would not be adequate, when compared to the pain and suffering, the parents have to undergo because of the death of minor children. Human life cannot be measured only in terms of money. Compensation that would be granted 46 is not for loss of dependency or for loss of future prospects, but for loss of life or termination of life. The pain and suffering caused on account of death of minor child would continue throughout the life of the parents. In that view of the matter, it requires that adequate, reasonable and just compensation is to be awarded.
28. The Hon'ble Apex Court in KISHAN GOPAL AND ANOTHER Vs. LALA AND OTHERS reported in (2014) 1 SCC 244 referring to Schedule II of Section 163-A of the Motor Vehicles Act, while determining the notional income, taking note of the year of enactment of the Motor Vehicles Act and money value, has taken Rs.30,000/- p.a., as notional income without deducting any amount towards personal expenses. If the decision of the Hon'ble Apex Court in KISHAN GOPAL is followed, the claimants in these appeals would be entitled for compensation much more than what is awarded. There is no appeal or cross-objection by the claimants seeking enhancement of compensation. Hence, in the peculiar facts 47 and circumstances of the present cases, the question of deduction as contemplated under Schedule II to Section 163A of the Motor Vehicles Act would not arise. In such circumstances, I am of the view, that the common judgment and award dated 10.02.2012 passed by the Tribunal awarding Rs.2,25,000/- each to the claimants in MVC Nos.1270 to 1272/2008 and MVC Nos.1637 to 1640/2008 on the file of Presiding Officer, Fast Track Court, Dakshina Kannada MACT, Mangalore, would not warrant interference. Accordingly, MFA Nos.3962/2012 to 3964/2012 and MFA Nos.3968/2012 to 3971/2012 are dismissed.
Sd/-
JUDGE NG* CT:bms