IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE V. SRISHANANDA
MFA NO.11954/2012
C/W
MFA NO.1481/2013
IN.M. F. A. NO. 11954/2012
BETWEEN:
MERU CAB COMPANY PVT. LTD.
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT
HAVING ITS OFFICE AT NO. 90/4
ZONASHA ALPHA BUILDING
2ND FLOOR, ABOVE STAPLES
MUNEKOLALA, VARTHUR HOBLI
BANGALORE - 560 037.
REPRESENTED BY ITS BRANCH MANAGER
MR. ANIL PANDEY. ...APPELLANT
(By SRI. UDHAY HOLLA, SENIOR ADV., A/W
SRI. SANTHOSH. S. GOGI, ADV)
AND:
1. SMT. HARINI SURESH
W/O. LATE MR V SURESH KUMAR
AGE: MAJOR, R/A PLOT NO.545
2
14TH STREET, 4TH SECTOR
K.K. NAGAR, CHENNAI - 600 078
2. MR. DHANUSH BHARADWAJ SURESH
S/O. LATE MR. V. SURESH KUMAR
AGED ABOUT 15 YRS, R/A PLOT NO.545
14TH STREET, 4TH SECTOR
K .K NAGAR, CHENNAI - 600 078
3. MR. VIKRANT BHARADWAJ SURESH
S/O. LATE MR. V. SURESH KUMAR
AGE ABOUT 3 YRS, R/A PLOT NO. 545
14TH STREET, 4TH SECTOR
K. K NAGAR, CHENNAI - 600 078.
4. MR. E. DAYANANDA
MAJOR, HAVING HIS PLACE OF WORK AT
ZONASHA ALPHA BUILDING
2ND FLOOR, ABOVE STAPLES
MUNEKOLALA, VARTHUR HOBLI
BANGALORE - 560 037.
5. BHARATI AXA GENERAL INSURANCE CO., LTD
NO.30, II FLOOR
HEBBAL RING ROAD
BANGALORE - 560 024.
REPRESENTED BY ITS DIRECTOR.
...RESPONDENTS
(By Sri. C. K. NANDA KUMAR, Adv., FOR R1 - R3
R4 - NOTICE DISPENSED WITH, SRI. A.N.
KRISHNA SWAMY,ADV., FOR R5)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED :
19.10.2012 PASSED IN MVC NO.7214/2009 ON THE FILE
OF THE VII ADDITIONAL JUDGE, MEMBER, MACT, COURT
OF SMALL CAUSES, BANGALORE, AWARDING A
3
COMPENSATION OF RS 2,04,24,112/- WITH INTEREST @
6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
*******
IN MFA NO. 1481/2013
BETWEEN:
1. SMT. HARINI SURESH
W/O. LATE MR V SURESH KUMAR
AGE: MAJOR, R/A PLOT NO.545
14TH STREET, 4TH SECTOR
K .K. NAGAR, CHENNAI - 600 078
2. MR. DHANUSH BHARADWAJ SURESH
S/O. LATE MR. V. SURESH KUMAR
AGED ABOUT 15 YRS. R/A PLOT NO.545
14TH STREET, 4TH SECTOR
K .K NAGAR, CHENNAI - 600 078
3. MR. VIKRANT BHARADWAJ SURESH
S/O. LATE MR. V. SURESH KUMAR
AGE ABOUT 3 YRS. R/A PLOT NO. 545
14TH STREET, 4TH SECTOR
K. K NAGAR, CHENNAI - 600 078.
PETITIONERS 2 AND 3 BEING MINORS ARE
REPRESENTED
BY THEIR NATURAL GUARDIAN APPELLANT NO.1
SMT. HARINI SURESH.
... APPELLANTS
(By Sri. C. K. NANDA KUMAR, Adv.,)
AND:
1. MERU CAB COMPANY PVT. LTD.
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT
4
HAVING ITS OFFICE AT NO. 90/4
ZONASHA ALPHA BUILDING
2ND FLOOR, ABOVE STAPLES
MUNEKOLALA, VARTHUR HOBLI
BANGALORE - 560 037.
REPRESENTED BY ITS BRANCH MANAGER
MR. ANIL PANDEY
2. MR. E. DAYANANDA
MAJOR, HAVING HIS PLACE OF WORK AT
ZONASHA ALPHA BUILDING
2ND FLOOR, ABOVE STAPLES
MUNEKOLALA, VARTHUR HOBLI
BANGALORE - 560 037.
3. BHARATI AXA GENERAL INSURANCE CO., LTD
NO.30, II FLOOR
HEBBAL RING ROAD
BANGALORE - 560 024.
REPRESENTED BY ITS DIRECTOR
...RESPONDENTS
(BY SRI. UDAY HOLLA SENIOR ADV. A/W
SRI. SANTHOSH. S. GOGI, ADV FOR R1,
R2 - NOTICE DISPENSED WITH,
SRI. A. N. KRISHNA SWAMY, ADV FOR R3.)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED :
19.10.2012 PASSED IN MVC NO.7214/2008 ON THE FILE
OF THE 7TH ADDITIONAL JUDGE, MEMBER MACT-3,
COURT OF SMALL CAUSES (SCCH-3), BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
******
5
THESE M.F.As. COMING ON FOR ADMISSION, THIS
DAY, V. SRISHANANDA, J., THROUGH VIDEO
CONFERENCING DELIVERED THE FOLLOWING:
JUDGMENT
A service provider by name M/s.Meru Cab Company Pvt. Ltd., is the first respondent in MVC No.7214/2009 and the claimants therein have challenged the validity of the Judgment and Award dated 19th October, 2012 passed by the Motor Accident Claims Tribunal, Court of Small Causes (SCCH-3) Bengaluru. (hereinafter referred to as the "Tribunal" for short).
2. The brief facts, which are necessary for disposal of these appeals are as under:
A claim petition came to be filed under Section 166 of the Motor Vehicles Act contending that V.Suresh Kumar, had hired a Taxi service from M/s.Meru Cabs on 28.8.2009 to go to Bengaluru Airport from his residence. At about 5.40 a.m., the driver of the Taxi bearing Registration No.KA-03/D-4194 while driving the Taxi on Bengaluru- Bellary road drove the said Taxi in a rash and negligent 6 manner and dashed against a lorry bearing Registration No.KA-03/A-6177. As a result of the accident, Suresh Kumar died at the spot on account of the injuries sustained by him in the accident. It is further contended that Suresh Kumar was holding a senior position in M/s.WIPRO Technologies Ltd., and had a bright career. It is further contended that the deceased was getting a monthly income of Rs.2,79,505/- and since the dependants are the wife and children have lost their bread winner, sought for awarding suitable compensation.
3. In pursuance of the notices issued, first and third respondent who are the service provider and the Insurance Company have resisted the claim petition by filing a detailed written statement denying the averments of the claim petition in toto. The second respondent remained absent and he was placed exparte.
4. Based on the rival contentions, the Tribunal raised the following issues:
7
"1. Whether the petitioners prove that on 28.08.2009 at about 5.40. a.m. the deceased V. Suresh Kumar was proceeding in Indigo Marina Car bearing No. KA-03-D-4184, near I.A.F, Bellary Road, Bangalore, at that time the driver of the said car drove in high speed in rash and negligent manner and hit the lorry bearing No. KA-03-A-6177, thereby caused accident and due to which deceased V. Suresh Kumar sustained grievous injuries and he died on the spot?
2. Whether petitioners prove that they are the LRs of the deceased V. Suresh Kumar?
3. Whether petitioners are entitled for compensation? If so, at what quantum and against whom, petitioners are entitle?
4. What order or award?
Additional Issues:
1. Whether respondent No.3 proves that driver of Car bearing No. KA-03-D-4184 did not possess valid driving license on the date of accident?
2. Whether respondent No.3 proves that the owner of the car bearing No. KA-03- D-4148 violated the policy conditions? 8
5. In order to prove the claim petition averments, the wife of the deceased got examined herself as PW-1 and relied on the documentary evidence which were exhibited and marked as Exs.P-1 to P-24. On behalf of the claimants, another witness by name Lakshman T.K. was examined as PW-2.
6. To counter the evidence placed by the claimants, on behalf of the respondents, four witnesses were examined as RWs.1 to 4 and 9 documents were exhibited and marked as Exs.R1 to R9.
7. On cumulative consideration of the oral and documentary evidence placed on record, the Tribunal allowed the claim petition in part awarding a sum of Rs.2,04,24,112/- with interest at 6% p.a., from the date of petition till realisation and fastened the liability on the first respondent-Meru Cabs and exonerated the respondents 2 & 3. It is that judgment which is under challenge by the Insurance Company as well as the claimants. 9
8. On behalf of the Service Provider M/s.Meru Cab Company Private Limited, Sri Udhay Holla, learned Senior Counsel contended that the Tribunal had grossly erred in exonerating the Insurance Company. He further contended that the finding recorded by the Tribunal that the driver of the Taxi did not possess a valid driving licence inasmuch as there was no separate endorsement made in the licence of the driver to drive a transport vehicle. He has further contended that in view of the judgment of the Hon'ble Apex Court in Mukund Devangan's case reported in AIR 2017 SC 3668, the appeal of the Service provider needs to be allowed.
9. In so far as quantum of compensation is concerned, the learned Senior Counsel submits that the Tribunal has awarded just compensation to the claimants.
10. Per contra, the learned counsel appearing for the claimants contended that the Tribunal did not taken into consideration the monthly income of the deceased in proper perspective and erred in awarding meager 10 compensation. He further contends that the Tribunal did not consider the grant of compensation on the other heads. He further contended that the Tribunal awarded compensation under the heads 'loss of consortium', 'loss of expectancy', 'transportation of dead body' and 'loss of love and affection' in a sum of Rs.10,000/- each which is on the lower side and against the settled principles of law and thus sought for suitable enhancement. He also contends that the Tribunal did not consider the future prospectus and thus sought for re-assessment of the just compensation.
11. The learned counsel appearing for the Insurance Company Sri A.N. Krishnaswamy, contended that the correctness of the judgment of the Hon'ble Apex Court in the case of Mukund Devangan's case is now referred to a larger bench and is further being considered by the Hon'ble Apex Court and therefore, this court is required to postpone the hearing of these appeals.
11
12. Sri A.N. Krishnaswamy, learned counsel for the Insurance Company further contends and draws our attention to Section 44 of the Motor Vehicles Act and the definition of the driving licence fee is properly construed and the principles of law enunciated in Mukund Devangan's case cannot be applied to the case on hand and thus sought for dismissal of these appeal of the Service provider.
13. In so far as quantum of compensation is concerned, the learned counsel for the Insurance Company submits that the Tribunal has taken into consideration all the relevant materials and adjudged the just compensation and therefore sought for dismissal of the appeals of the claimants as well.
14. In reply, Sri Uday Holla, learned Senior Counsel submits that till the issue before the Hon'ble Apex Court is resolved in respect of the legal principles enunciated in Mukund Devangan's case, by an appropriate Bench, this 12 court is bound to follow the dictum as is enunciated in the said case and thus sought for passing a suitable order.
15. In this regard, the learned Senior Counsel has relied on the judgment reported in (2013) 16 SCC 16 in the case of Sarva Shramik Sangh, Sangli Vs. State of Maharashtra and others.
16. In view of the above factual aspects and rival contentions of the parties, the points that would arise for the consideration of this court are:
"(i) Whether the finding recorded by the Tribunal that the driver of the Taxi bearing Registration No.KA-03/D-4148 [offending vehicle] did not possess a valid driving licence to drive the Taxi and as such, there is a breach of policy conditions and thus the Insurance Company is not liable to pay the adjudged compensation is erroneous.?
(ii) Whether the quantum of compensation adjudged by the Tribunal is just compensation?13
The answer to the above points are in the Negative for the following:
REASONS
17. In the case on hand, the accidental death of Suresh Kumar involving a Taxi bearing Registration No. KA-03/D-4148 [offending vehicle] and a lorry bearing Registration No.KA-03/A-6177 is not in dispute. Charge sheet came to be filed against the driver of the Taxi as per Ex.P-8. Therefore, the finding recorded by the Tribunal that it is the negligence of the driver of the offending vehicle resulting in the accident, wherein Suresh Kumar lost his life is well founded.
18. The Tribunal accepted the arguments on behalf of the Insurance Company that the driver of the offending vehicle did not possess a valid driving licence to drive the Car for transport purpose and thus dismissed the petition against the Insurance Company of the Car. It is the argument of the learned Senior Counsel representing the Service provider [In MFA No.11954/2012] that the 14 question of validity of the driving licence where a person possesses a licence to drive a Light Motor Vehicle (LMV) whether can drive a vehicle for the purpose, other than which the licence is granted of a vehicle of the same class, is no longer res integra and in this regard, he has placed his reliance on the judgment of the Hon'ble Apex Court in the case of Mukund Devangan's case referred to supra.
19. To counter the said submission of Sri Uday Holla, learned Senior Counsel and Sri A.N. Krishnaswamy, representing the Insurance Company of the Car contended that the correctness of the judgment of the Hon'ble Apex Court in the case of Mukund Devangan, is now again the subject matter of few petitions before the Hon'ble Apex Court and those petitions are being in the process of referring to a larger bench and therefore, argued that awaiting the decision of the larger bench, this matter be deferred for hearing.
20. In reply, Sri Udhay Holla, learned Senior Counsel referred the decision rendered in the case of 15 Sarva Shramik Sangh, Sangli Vs. State of Maharashtra and others cited supra.
21. On perusal of the principles of law enunciated in the said Sarva Shramik Sangha's case, it is crystal clear that till the matter is decided by the Hon'ble Apex Court, on the issue of the correctness of legal principles enunciated in Mukund Devangan's case, as is contended by the learned counsel for the Insurance Company Sri A.N. Krishnaswamy, this court is governed by the principles of law enunciated in Mukund Devangan's case. Therefore, the contentions urged on behalf of the learned counsel for the Insurance Company, that this court should adjourn the matter awaiting the decision of the Hon'ble Apex Court as to the correctness of the principles stated in Mukund Devangan's case cannot be countenanced in law.
22. Suffice it to say that as on today, this court is bound by the principles of law enunciated in Mukund Devangan's case.
16
23. Applying the legal principles laid down in Mukund Devangan's case to the facts of this case, it is not the case of the Insurance Company that driver of the Taxi did not possess the valid driving licence at all. That is to say, no separate endorsement on licence is required to drive a transport vehicle of light motor vehicle by the RTO. Therefore, the view taken by the Tribunal that there is a breach of policy condition and thus the Insurance Company is not liable to pay the adjudged compensation and it needs to be interfered with by following the dictum laid down in Mukund Devangan's case. Accordingly, the point is answered.
24. In so far as quantum of compensation is concerned, before the Tribunal, the income of the deceased is established by marking the Salary Certificate of the deceased at Ex.P19. It is also contended on behalf of the claimants that the deceased was an efficient employee of M/s.WIPRO Technologies Ltd., and in this regard reliance is placed on Ex.P-6. Salary certificate is 17 marked at Ex.P-19. The Tribunal has discussed about the income of the deceased at page number 10 of the impugned judgment. The Tribunal took into consideration that Exs.P-9 and P-20 includes the allowances and perks and basic pay and salary of the deceased per month would be around 2 lakhs. The Tribunal deducted 30% of the gross income and also deducted 1/3rd towards the personal expenses of the deceased. Further, the Tribunal added 30% hike to the income of the deceased. The deceased was aged 41 years at the time of the accident and therefore, applied '14' Multiplier. As per Ex.P5 certificate, the deceased had drawn gross salary of Rs.2,79,505/- per month. PW-2 is the Senior Manager of the WIPRO Technologies Pvt. Ltd., who has deposed before the Court about the gross salary paid to the deceased as per Ex.P-19.
25. As per the settled principles of law, the income tax and the professional tax are to be deducted from the salary, income tax at 30% and Professional Tax of 18 Rs.200/- per month is to be deducted from the gross salary which comes to Rs.2,44,317/-. Out of which, 1/3rd has to be deducted towards personal expenses. Therefore, after deducting 1/3rd from the salary of the deceased, the monthly income arrived for the dependants would be in a sum of Rs.1,62,878/-. Hence, the claimants are entitled for loss of dependency in a sum of Rs.2,73,63,504/- (Rs.1,62,878/- x 12 x 14) [The calculation arrived is Rs.2,79,505 less 30% towards income tax and Rs.200/- towards professional tax = 1,95,454/- and by adding 25% towards future prospects as per the decision of the Hon'ble Apex Court in National Insurance Company Limited Vs,. Pranay Sethi and others reported in (2017) 16 SCC 680, [25% of Rs.1,95,454/-] a sum of Rs.48,863/- is added to the monthly income of the deceased, which works out to Rs.2,44,317/-] as against the compensation of Rs.2,04,24,112/- awarded by the Tribunal. In so far as the compensation awarded towards conventional heads, all the three claimants are entitled to a sum of Rs.40,000/- 19 each towards loss of consortium and filial love and affection.
26. In view of the aforesaid discussions, we pass the following:
ORDER
(i) The appeal of the Insurance Company in MFA No.11954/2012 is rejected and the appeal of the claimants in MFA No.1481/2013 is allowed in part.
(ii) In modification of the award passed by the Tribunal, the claimants are entitled to a sum of Rs.2,73,63,504/- with interest at 6% p.a., from the date of petition till realization as against a sum of Rs.2,04,24,112/- awarded by the Tribunal.
(iii) Amount in deposit, if any, is ordered to be transmitted to the Tribunal forthwith.
(iv) Balance amount is ordered to be deposited by the Insurance Company within six weeks from the date of receipt of a certified copy of this order.20
(v) Apportionment and deposits is as per the judgment and award of the Tribunal.
(vi) Office to draw the modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE BNV/PL*