1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.1892 OF 2017 (MV)
BETWEEN:
1. SMT. SHANAVAS BEGUM
W/O LATE DASTAGIR KHAN
AGED ABOUT 56 YEARS.
2. SRI. IMRAN PASHA
S/O LATE DASTAGIR KHAN
AGED ABOUT 27 YEARS.
BOTH R/AT. 3RD CROSS
MARUTHINAGAR, BASAVAPATTANA
KYATASANDRA POST-572104
TUMKUR DISTRICT.
... APPELLANTS
(BY MR. V.B. SIDDARAMAIAH, ADV.,)
AND:
1. THE UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE, 1ST FLOOR
JAYADEVA COMPLEX, B.H. ROAD
TUMKUR CITY-572101
REP. BY ITS BRANCH MANAGER.
2. SRI. CHANDRASHEKHARA M.R.
S/O RANGADHAMAPPA
AGED ABOUT 39 YEARS
R/AT. YELLAPPUR VILLAGE
2
ARAKERE POST, KASABA HOBLI
TUMKUR-572101.
... RESPONDENTS
(BY MR. MOHAN KUMAR T, ADV., FOR R1
V/O DTD:22.12.2020 NOTICE TO R2 IS DISPENSED WITH)
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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.11.2016 PASSED
IN MVC NO.38/2016 ON THE FILE OF THE II ADDITIONAL
DISTRICT JUDGE AND MACT, TUMAKURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants seeking enhancement of the amount of compensation against the judgment dated 29.11.2016 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 22.11.2015, the deceased Dastagir Khan was proceeding on his moped bearing Registration No.KA-06- Y-566. When he reached near the lorry office, Kyathsandra Ring Road, an auto rickshaw bearing Registration No. KA-02- D-3959, which was being driven by its driver in a rash and 3 negligent manner, came from the hind side and dashed against the moped of the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the same.
3. The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 58 years at the time of accident and was engaged in engineering works business and was earning a sum of Rs.50,000/- per month. It was further pleaded that accident took place solely on account of rash and negligent driving of the auto rickshaw by its driver. The claimants claimed compensation to the tune of Rs.30,00,000/- along with interest.
4. The insurance company filed written statement, in which the mode and manner of the accident was denied. The involvement of the offending auto rickshaw in the accident was also denied. It was also pleaded that the driver of the auto rickshaw did not hold a valid and effective driving license as well as permit at the time of accident and that the liability of the insurance company, if any, would be subject to 4 the terms and conditions of the insurance policy. The age, avocation and income of the deceased was also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined herself as PW-1, Hemanth (PW2) and got exhibited documents namely Ex.P1 to Ex.P10. The respondents examined Mounesh (RW1), Deepak (RW2) and got exhibited Ex.R1 to Ex.R4. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the auto rickshaw by its driver. It was further held, that as a result of aforesaid accident, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.5,44,036/- along with interest at the rate of 6% per annum and directed the owner of the auto rickshaw to pay the aforesaid amount of compensation. Being aggrieved, this 5 appeal has been filed seeking enhancement of the amount of compensation.
6. Learned counsel for the claimant submitted that the Tribunal has grossly erred in assessing the income of the deceased as Rs.7,000/- per month and in any case, the same ought to have been taken as per the guidelines framed by the Karnataka State Legal Services Authority. It is further submitted that the Tribunal has erred in not making an addition to the tune of 10% to the income of the deceased on account of future prospects in view of the law laid down by the Supreme Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157. It is also submitted that the sums awarded under the heads 'loss of consortium' and 'funeral expenses' are on the lower side and deserves to be enhanced suitably. It is also urged the driver of the offending vehicle possessed a valid and effective driving license to drive an auto rickshaw at the time of the accident in view laid down by the Supreme Court in MUKUND DEWANGAN VS THE ORIENTAL INSURANCE COMPANY LIMITED AIR 2017 SC 3668 and therefore, the 6 liability to pay the compensation is to be fastened upon the insurance company.
7. On the other hand, learned counsel for the insurance company submitted that no evidence has been adduced by the claimants to prove the income of the deceased before the Tribunal and that the Tribunal has rightly taken the income of the deceased notionally at Rs.7,000/- per month. It is further submitted that the Tribunal has rightly fastened the liability to pay the compensation on the owner of the offending vehicle as Ex.R1 DL Extract and Ex.R2 Permit Details clearly disclose that the offending vehicle was being driven in breach of policy conditions and that the insurer is exonerated from the liability to pay the compensation under Section 149 of the Act on account of such breach. It is also submitted that the principle of pay and recovery should be applied in the instant case in view of the law laid down by a full bench of this court in NEW INDIA ASSURANCE CO.LTD. VS. YALLAVVA 2020(2) AKR 484. It is further submitted that the amount of compensation awarded by the Tribunal is just and proper and does not call for any interference. 7
8. We have considered the submissions made by learned counsel for the parties and have perused the record. The Supreme Court in MUKUND DEWANGAN VS THE ORIENTAL INSURANCE COMPANY LIMITED AIR 2017 SC 3668 has held that a 'Light Motor Vehicle' as defined in Section 2(21) of the Act would include a transport vehicle, the weight of which does not exceed 7,500/- kg and that the holder of a driving license to drive class of 'Light Motor Vehicle' as provided in Section 10(2)(d) is competent to drive a transport vehicle. In the instant case, Ex.R1 DL Extract discloses that the driver of the offending vehicle was holding a valid and effective license to drive the class of 'light motor vehicle'. In view of the law laid down by the Supreme Court in MUKUND DEWANGAN SUPRA, it is held that the driver of the offending vehicle was in possession of a valid and effective driving license at the time of the accident. Therefore, the insurance company is directed to pay the amount of compensation to the claimants. In so far as, the contention raised by the learned counsel for the insurance company the principle of pay and recovery, should be invoked on account of breach of policy condition in respect 8 of a valid permit to ply the offending vehicle at the place of accident deserves to be rejected, as it is not clear from the evidence on record whether the accident has occurred within 10 kms of Tumkur TMCL Limit as enumerated in Ex.R2 Permit. It is pertinent to note here that the burden to prove the same is on the insurance company which has not been discharged in the instant case.
9. Now we may advert to the quantum of compensation. Admittedly, the claimants have not produced any evidence with regard to the income of the deceased. Therefore, the notional income of the deceased is assessed as per the guidelines issued by the Karnataka Legal Services Authority. Since, the accident is of the year 2015, the notional income of the deceased is assessed at Rs.9,000/- per month.
10. In view of the law laid down by the Constitution Bench of the Supreme Court in 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, 10% of the amount has to be added on account of future prospects. Thus, the monthly income 9 comes to Rs.9,900/-. Since, the number of dependents is 2, therefore, 1/3rd of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.6,600/-. Taking into account the age of the deceased which was 58 years at the time of accident, the multiplier of '9' has to be adopted. Therefore, the claimants are held entitled to (Rs. 6,600x12x9) i.e., Rs.7,12,800/- on account of loss of dependency.
11. In view of laid down by the Supreme Court in 'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM & ORS.' (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in 'UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.' IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant's are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss love and affection. Thus, the claimants are held entitled to Rs.80,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, in all, the claimants are held entitled to a 10 total compensation of Rs.8,22,800/- and the insurance company is directed to pay the aforesaid amount of compensation. Since the accident is of the year 2015, the prevailing rate of interest for the year 2015 in respect of fixed deposits for one year in nationalized banks being 7%, the aforesaid amounts of compensation shall carry interest at the rate of 7% from the date of filing of the petition till the realization of the amount of compensation. To the aforesaid extent, the judgment passed by the Claims Tribunal is modified.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE ss