M/S Shriram General Insurance ... vs Smt. Sunanda
2021 Latest Caselaw 5661 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF DECEMBER 2021

                          BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.4348 OF 2016(MV)

BETWEEN:

M/s. Shriram General Insurance
Company Ltd.,
E-8, EPIP, RIICO, Industrial Area,
Sitapura, Jaipur,
Rajasthan-302022,
Now Represented by its,
M/s. Shriram General Insurance
Company Ltd.,
No.3/5, 3rd Floor, S.V.Arcade,
Belekahalli Main Road,
IIM Post,
Bangalore-76302,
3rd Floor, S&S Corner Building,
Reptd by its Manager legal.               ... Appellant

(By Sri. B.C.Shivanne Gowda, Advocate)

AND:

1.     Smt. Sunanda,
       W/o Kariyanna,
       Aged about 51 years,
       R/at Kulume Palya,
       Kunigal Taluk,
       Tumkur district-577501.
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2.   H.K.Ramesha,
     S/o Kariyanna,
     Aged about 47 years,
     R/at Honnamachanahalli,
     Amruthur Hobli,
     Kunigal Taluk,
     Tumkur District-577501.

3.   H.K.Suresha,
     S/o Kariyappa,
     Aged about 37 years,
     R/at no.35/3,
     Ranganathapura,
     Malleshwaram,
     Bangalore-55.

4.   Bhoopathy G.,
     S/o Govindaraj,
     Major,
     R/at No.54/2, 7th Main,
     3rd Cross, Saibaba Nagar,
     Srirampuram,
     Bengaluru-560 021.                 ... Respondents

(By Sri. M.Subramani, Advocate for R1-R3:
Sri. Mruthyunjaya S Mathapathi, Advocate for
Sri. R.Shashidhara, Advocate for R4.)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:11.04.2016 passed
in MVC No.1957/2015 on the file of the 1st Additional
Small    Cause    Judge,     MACT,      Bangalore, awarding
compensation of Rs.4,77,028/- with interest @ 6% p.a.
from the date of petition till realization.

      This MFA, coming on for orders, this day, this Court,
delivered the following:
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                    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 being

aggrieved by the judgment dated 11.04.2016 passed

by the Motor Accident Claims Tribunal, Bangalore

(SCCH-11) in MVC No.1957/2015.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 06.03.2015 at about 9.15

a.m. the deceased Sarojamma was crossing the road

from northern side to the southern side of M.K.K.road

in front of Azad Chandrashekhar ground. At that

time, the driver of Tata Ace bearing registration

No.KA-02/AC-4024 driven the same from

Malleshwaram towards Devaiah park in a rash and

negligent manner and dashed against the deceased.

As a result of the aforesaid accident, the deceased

sustained grievous injuries and was hospitalized and

he succumbed to the injuries.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

Nos.1 and 2 appeared through counsel and

respondent No.2 filed written statement in which the

averments made in the petition were denied. It was

pleaded that even though the insurance policy is valid

but the liability is subject to terms and conditions of

the policy. It was further pleaded that the driver of

the offending vehicle was not holding a valid and

effective driving licence. Hence, they sought for

dismissal of the petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.1 as PW-1

and got exhibited 24 documents namely Ex.P1 to

Ex.P24. On behalf of respondents, two witnesses were

examined as RW-1 and RW-2 and got exhibited 14

documents namely Ex.R1 to R14. The Claims Tribunal,

by the impugned judgment, inter alia, held that the

accident took place on account of rash and negligent

driving of the offending vehicle by its driver, as a

result of which, the deceased sustained injuries and

succumbed to the injuries. The Tribunal further held

that the claimants are entitled to a compensation of

Rs.4,77,028/- along with interest at the rate of 6%

p.a. and directed the insurance company to deposit

the compensation amount along with interest. Being

aggrieved this appeal has been filed.

6. The learned counsel for the insurance

company has raised the following contentions:

Firstly, at the time of the accident the driver of

the offending vehicle was not holding a valid and

effective driving licence, he was holding LMV (non-

transport) driving licence and was driving the

transport vehicle. Since he has violated the policy

conditions, insurance company is not liable to pay the

compensation.

Secondly, the claimants are major daughter and

major sons of the deceased and they were not

depending upon the income of the deceased. The

Tribunal has erred in deducting 1/3rd towards personal

expenses of the deceased instead of 50%.

Thirdly, considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is on the higher side. Hence, he sought for

allowing the appeal.

7. Per contra, learned counsel for the owner of

the offending vehicle has contended that at the time

of the accident driver of the offending vehicle was

having LMV (non-transport) driving licence, but he

was driving the transport vehicle. In view of the law

laid down by the Hon'ble Supreme court in the case of

MUKUND DEWANGAN vs. ORIENTAL INSURANCE

COMPANY LIMITED reported in (2017) 14 SCC

663, the insurance company is liable to pay the

compensation. The Tribunal has rightly fastened the

liability on the Insurance Company. Hence, he sought

for dismissal of the appeal.

8. Learned counsel for the Insurance Company

has contended that the claimants are entirely

depending upon the income of the deceased. The

Tribunal considering the evidence of the parties and

materials available on record has rightly deducted

1/3rd of the income of the deceased for personal

expenses. Hence, he prays for dismissal of the

appeal.

9. Heard the learned counsel for the parties

and perused the judgment and award.

10. It is not in dispute that Sarojamma died in

the road traffic accident occurred due to rash and

negligent driving of the offending vehicle by its driver.

11. The claimants are the major daughter and

son of the deceased. They have categorically stated in

the evidence that they were depending upon the

income of the deceased. The Tribunal after

considering the evidence of the parties and the

materials available on record has rightly deducted

1/3rd of the income of the deceased for personal

expenses.

Considering the age and avocation of the

deceased the overall compensation awarded by the

Tribunal is just and reasonable.

Re.liability:

It is not in dispute that as on the date of the

accident the driver of the offending vehicle was

holding a driving licence to drive LMV (non-transport)

vehicle. LMV 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 7500 kgs. In the case on

hand the unladen weight of the vehicle involved in the

accident is less than 7500 kgs. The Apex Court in the

case of MUKUND DEWANGAN (supra), has held

that a person having driving licence to drive LMV

(non-transport) can also drive transport vehicle. In

view of the said decision, I am of the opinion that the

driver of the offending vehicle was having valid driving

licence as on the date of accident. Hence, insurance

company is liable to pay the compensation.

In view of the above, there is no error in the

finding given by the Tribunal.

Accordingly, I decline to interfere with the

judgment and award passed by the Tribunal. Appeal

is dismissed.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

In view of the disposal of the main appeal,

pending IA does not survive for consideration.

Sd/-

JUDGE

Cm/-