IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.6120 OF 2017 (MV-D)
C/W
M.F.A. NO.8699 OF 2017 (MV-D)
IN MFA NO.6120/2017:
BETWEEN:
H. SHARNAPPA
S/O HANUMANTHAPPA,
AGED ABOUT YEARS,
OWNER OF TRACTOR-TRAILER
BEARING NO.KA-16/TA-8887-8888,
R/O HEGGERE VILLAGE,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577 522.
...APPELLANT
(BY SRI. A.K.BHAT, ADVOCATE FOR SRI. SHASHIDHARA R.,
ADVOCATE)
AND:
1. UMMAKKA
W/O LATE MANJANNA,
AGED ABOUT 27 YEARS
2
2. AKASH
S/O LATE MANJANNA,
AGED ABOUT 8 YEARS
3. TULASI
D/O LATE MANJANNA,
AGED ABOUT 7 YEARS
4. THIPPAMMA
W/O SIDDANNA,
AGED ABOUT 57 YEARS
5. SIDDANNA
S/O KARECHIKKAJJI,
AGED ABOUT 62 YEARS
THE APPELLANTS NO.2 AND 3 ARE
MINORS, REPRESENTED BY
NATURAL GUARDIAN MOTHER APPELLANT NO.1,
ALL ARE R/O HONNUR VILLAGE,
CHALLAKERE TALUK-577 522,
APPELLANTS NO.1 TO 3 ARE NOW
R/O MANAGI VILLAGE,
CHITRADURGA TALUK-577 501.
6. THE DIVISIONAL MANAGER
TATA AIG GENERAL INSURANCE CO. LTD.,
2ND FLOOR, J.P. & DEVI JAMBUKESHWAR ARCADE,
NO.69, MILLERS ROAD,
BENGALURU-560052.
...RESPONDENTS
(RESPONDENT NOS.2 AND 3 ARE MINORS REPRESENTED BY
RESPONDENT NO.1;
SRI. PRAMOD, ADVOCATE FOR RESPONDENT NOs.1 TO 5;
SRI. Y.P.VENKATAPATHY, ADVOCATE FOR SRI.
RAVI.S.SAMPRATHI, ADVOCATE FOR RESPONDENT NO.6)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED: 12.05.2017 PASSED IN
MVC NO.218/2015 ON THE FILE OF THE 1ST SENIOR CIVIL
3
JUDGE AND IV MACT AT CHITRADURGA, AWARDING
COMPENSATION OF RS.18,67,000/- WITH INTEREST AT 8%
P.A. FROM THE DATE OF PETITION TILL DATE OF DEPOSIT.
IN MFA NO.8699/2017:
BETWEEN:
1. UMMAKKA
W/O LATE MANJANNA
AGED ABOUT 27 YEARS
2. AKASH
S/O LATE MANJANNA
AGED ABOUT 8 YEARS
3. TULASI
D/O LATE MANJANNA
AGED ABOUT 2 YEARS
4. THIPPAMMA
W/O SIDDANNA
AGED ABOUT 57 YEARS
5. SIDDANNA
S/O KARECHIKKAJJI
AGED ABOUT 62 YEARS
APPELLANT NOS.2 AND 3 ARE MINORS,
REP. BY NATURAL GUARDIAN AND MOTHER
APPELLANT NO.1 - UMMAKKA
ALL ARE R/O HONNUR VILLAGE,
CHALLAKERE TALUK
APPELLANT NOS.1 TO 3 ARE NOW
R/O MANAGI VILLAGE,
CHITRADURGA TALUK PIN - 577501.
...APPELLANTS
(BY SRI. B. PRAMOD, ADVOCATE)
4
AND:
1. H. SHARNAPPA
S/O HANUMANTHAPPA,
MAJOR,
R/O HEGGER TALUK VILLAGE,
CHALLAKERE TALUK,
CHITRADURGA VILLAGE-577522.
2. THE DIVISIONAL MANAGER
TATA AIG GENERAL INSURANCE CO. LTD.,
2ND FLOOR, J.P. & DEVI JAMBUKSHWAR ARCADE,
NO.69, MILLER'S ROAD,
BENGALURU-560052.
...RESPONDENTS
(BY SRI. Y.P. VENKATAPATHY, ADVOCATE FOR RESPONDENT
NO.2;
SERVICE OF NOTICE ON RESPONDENT NO.1 IS DISPENSED
WITH VIDE COURT ORDER DATED 11.12.2017)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED: 12.05.2017 PASSED IN
MVC NO.218/2015 ON THE FILE OF THE 1ST ADDITIONAL
SENIOR CIVIL JUDGE AND IV MACT AT CHITRADURGA PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, as records are received from the Motor Accident Claims Tribunal, the same are taken up for final disposal with the consent of the learned counsel for the parties. 5
2. MFA No.6120/2017 is filed by the owner of the tractor trailer involved in the accident challenging the liability fastened on him to pay the compensation as well as the quantum of compensation awarded by the 1st Senior Civil Judge and IV Motor Accident Claims Tribunal (hereinafter referred to as the 'Tribunal') at Chitradurga in MVC No.218/2015.
3. MFA No.8699/2017 is filed by the claimants seeking enhancement of the compensation awarded by the Tribunal in MVC No.218/2015.
4. Appellants in MFA No.8699/2017, who are respondent Nos.1 to 5 in MFA No.6120/2017, will henceforth be referred to as 'claimants'. The appellant in MFA No.6120/2017, who is respondent No.1 in MFA No.8699/2017, will henceforth be referred to as the 'owner' of the offending vehicle involved in the accident. The respondent No.6 in MFA No.6120/2017, who is respondent No.2 in MFA No.8699/2017, will henceforth be 6 referred to as the 'insurer' of the offending vehicle involved in the accident.
5. The claim petition discloses that the claimants are the dependents of Manjanna, who was employed with the owner of the tractor trailer - appellant in MFA No.6120/2017. It is stated that on 09/01/2015 at about 12:15 p.m., the said Manjanna and others were loading cement electric poles on to a tractor trailer bearing registration No.K-16-TA-8887-8888 (henceforth referred to as the 'offending vehicle') in Challakere town and when the vehicle came near Kammath Marikunte gate, the driver of the offending vehicle drove it in a rash and negligent manner which resulted in the trailer overturning. The said Manjanna, who was in the trailer sustained injuries and died at the spot. The claimants contended that the deceased was paid a sum of Rs.10,000/- every month and Rs.100/- as daily allowance and as a result of the death of Manjanna, they were deprived of emotional and financial support. The claimants, therefore, filed a petition under 7 section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.30,00,000/- from the owner and insurer of the offending vehicle.
6. The insurer contested the claim petition and claimed that the driver of the offending vehicle did not possess a licence to drive the offending vehicle and therefore, it was not liable to pay the compensation. It claimed that the offending vehicle was to be used for agricultural purpose and that the insurance policy also covered the risk of accidents only when it was put to agricultural use. It contended that the respondent No.1 had put the offending vehicle to non-agricultural use and therefore, it was not liable to pay the compensation.
7. With these contentions, the claim petition was set down for trial.
8. Claimant No.1 was examined as PW.1 and a witness was examined as PW.2 and they marked documents as Exs.P1 to P8. The owner of the offending 8 vehicle was examined as RW.1 and the officer of the insurer was examined as RW.2 and they marked Exs.R1 to R11.
9. The Tribunal considered the evidence of PW.2 as well as the statement filed by the owner and insurer of the offending vehicle and held that the driver of the offending vehicle was negligent in driving it and was responsible for the accident. In so far as the claim for compensation is concerned, the Tribunal held that the notional income of the deceased was a sum of Rs.8,000/- per month and taking into consideration the age of the deceased at 35 years, deducted 1/4th of the income of the deceased towards his living expenses and awarded the following compensation:
Sl. Heads of compensation Amount in Rupees No.
1 Towards loss of dependency 11,52,000/-
salary - Rs.8,000/- 1/4th deducted towards personal expenses i.e. Rs.6000 x 12 x
16) 2 Towards funeral and obsequies 10,000/-
3 Towards transportation of dead 5,000/-
body etc. 9 4 Towards loss of consortium 1,00,000/- 5 Loss of love affection to 2,00,000/-
petitioners-2 and 3 (children) 6 Loss of guidance to petitioners- 2,00,000/-
2 and 3 (children) 7 Loss of love and affection to 2,00,000/-
petitioners-5 and 6 (parents) TOTAL 18,67,000/-
10. In so far as the liability to pay the compensation is concerned, the Tribunal held that the owner of the offending vehicle had violated the terms and conditions of the policy and thus, exonerated the insurer from the liability to pay the compensation.
11. Feeling aggrieved by the liability imposed upon him to pay the compensation as well as the quantum of compensation awarded by the Tribunal, the owner of the offending vehicle has filed MFA No.6120/2017 while the claimants have filed MFA No.8699/2017 for enhancement of compensation.
12. The learned counsel for the owner contended that the offending vehicle was used to transport electric poles for the personal use of the owner which was 10 primarily meant to draw electric lines. He contended that the offending vehicle was not used for any commercial purpose. The learned counsel invited the attention of the Court to Ex.R3 which discloses that one electric pole was ordered to install in the agricultural land of the owner. He claimed that as per Ex.R4, since the vehicle belonging to BESCOM was left for repair, the offending vehicle was used to transport electric poles to his land. Therefore, he contended that the offending vehicle was not used for any commercial purpose but was used for agricultural purpose. He also contended that the driver of the offending vehicle possessed a licence to drive a tractor trailer and thus in the absence of any material to show that the offending vehicle was used for non-agricultural purpose, the Tribunal ought to have fastened the liability to pay the compensation on the insurer of the offending vehicle. The learned counsel alternatively contended that in view of the law laid down by the Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited 11 ((2016) 4 SCC 298), the insurer cannot be exonerated from the liability to pay the compensation.
13. The learned counsel for the insurer claimed that Exs.R3 and R4 placed on record would clearly establish that the offending vehicle was used for non- agricultural purpose and therefore, in an appeal filed by the owner, there was no question of directing the insurer to pay and recover the compensation.
14. The learned counsel for the claimants on the other hand, contended that the accident occurred in the year 2015 and therefore, the Tribunal committed an error in not accepting the notional income of the deceased at a sum of Rs.9,000/- per month. They also contended that the Tribunal committed an error in not awarding loss of future prospects at the rate of 40% as held by the Apex Court in the case of National Insurance Co. Ltd vs Pranay Sethi (2017) 16 SCC 680. Further, he contended that the deceased had left behind five dependents of whom two were minor children and therefore, the Tribunal must 12 have deducted 1/5th of the notional income of the deceased towards his living expenses.
15. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties. We have perused the records of the Tribunal as well as its judgment and award.
16. In so far as the liability of the owner of the offending vehicle to pay the compensation is concerned, it is not in dispute that the offending vehicle was covered by a policy of insurance treating the offending vehicle as a commercial vehicle and the policy type which is evident from Ex.R6 "Auto Secure Commercial Vehicle Package Policy". Ex.R7 is the extract of the licence of the driver of the offending vehicle which indicates that he was authorized to drive a tractor with effect from 21.04.2014. the unladen weight of tractor and trailer is less than 7500 kilos which is evident from Exs.R1 and R2. Though the policy contains limitation as to use which provides for agricultural and forestry purposes yet, there is no material 13 to indicate that the vehicle is used for hire or reward. In that view of the matter, the impugned judgment and award of the Tribunal fastening the liability to pay the compensation upon the owner of the offending vehicle is unjust and improper and therefore, impugned judgment and award deserves to be interfered with.
17. In so far as the claim for enhancement is concerned, having regard to the fact that the accident occurred in the year 2015, the notional income of the deceased could be considered at a sum of Rs.9,000/- per month and the claimants are entitled to loss of future prospects at the rate of 40%. The claimants are also entitled to loss of filial / spousal / parental love and affection in view of the judgment of Apex Court in the case of Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram (2018 (18) SCC 130) and United India Insurance Co. Ltd. vs Satinder Kaur @ Satwinder Kaur and others (2020 SCC OnLine SC 410). 14 Consequently, the compensation awarded by the Tribunal is redetermined as follows:
Heads under which Amount
compensation awarded (in Rupees)
Loss of dependency 18,14,400/-
(Rs.9000 + future prospects at 40% =
Rs.12600/- after deducting 1/4th of the same, Rs.9450/- x 16 x 12) Loss of consortium to claimant No.1 40,000/- Loss of parental love and affection to 80,000/- claimants 2 and 3 at the rate of Rs.40,000/- each Loss of filial consortium to claimant 80,000/- Nos.4 and 5 at the rate of Rs.40,000/-
Funeral expenses 25,000/-
Loss of estate 25,000/-
Total 20,64,400/-
18. Hence, the appeal, MFA No.8699/2017, filed by the claimants is allowed in part. In modification of the impugned judgment and award passed by the Tribunal, the compensation awarded to the claimants is enhanced from Rs.18,67,000/- to Rs.20,64,400/-, which is payable by the insurer along with interest at the rate of 6% per annum 15 from the date of the claim petition till the date of realization.
19. MFA No.6120/2017 filed by the owner of the offending vehicle is also allowed in part and the impugned judgment and award passed by the Tribunal fastening liability on the owner of the offending vehicle to pay the compensation is set aside. The insurer of the offending vehicle is directed to pay the compensation as determined and enhanced by this Court along with interest at 6% per annum from the date of the claim petition till the date of realization within one month from the date of receipt of a certified copy of this judgment.
20. The amount in deposit in MFA No.6120/2017 shall be refunded to the owner of the offending vehicle.
Sd/-
JUDGE Sd/-
JUDGE sma