Smt Ramamma vs Sri Ravindra Kumar
2021 Latest Caselaw 7029 Kant

                                1

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF DECEMBER, 2021

                          BEFORE

     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               M.F.A. No.8446 OF 2016 (MV-D)

BETWEEN:

1.     SMT.RAMAMMA
       W/O LATE YALAKKI GOWDA
       AGE: 62 YEARS,
       OCC: HOUSE WIFE.

2.     SRI D Y BAALEGOWDA
       S/O LATE YALAKKI GOWDA
       AGE: 36 EYARS
       OCC: COOLIE

3.     SMT.ASHWINI
       D/O LATE YALAKKI GOWDA
       AGE: 34 YEARS
       OCC: COOLIE

       ALL ARE RESIDING AT
       NO.35, DODDABASAVANAHALLI
       INDUSTRIAL AREA,
       HOSAKOPPA, HASSAN - 57 3201.            ...APPELLANTS

(BY SRI SURESH M LATUR, ADVOCATE)

AND:

1.     SRI RAVINDRA KUMAR
       S/O RAMEGOWDA
       R/A MARKOLI VILLAGE AND POST
       HASSAN DISTRICT - 573 201.
                               2

2.   THE REGIONAL MANAGER
     UNITED INDIA INSURANCE CO. LTD.,
     KRISHI BHAVAN, HUDSON CIRCLE
     NRUPATHUNGA ROAD
     BENGALURU-1.                           ...RESPONDENTS

(BY SMT.KAVITHA H C, ADVOCATE FOR R1;
 SRI Y K SHESHAGIRI RAO, ADVOCATE FOR R2)

     THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 01.03.2016 PASSED IN MVC NO.
1655/2014 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE,
MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND      SEEKING      ENHANCEMENT      OF
COMPENSATION.

    THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

The captioned appeal is filed by the claimants seeking

enhancement of compensation.

2. The present claimants filed a claim petition for

having lost one Yalakki Gowda in a road traffic accident dated

25.06.2012. The present appellants are widow and children of

the deceased Yalakki Gowda. The appellants filed a claim

petition claiming compensation of Rs.6,58,000/-.

3. The appellants contended in the claim petition that

the deceased was an agriculturist and was earning a sum of

Rs.6,000/-. The Tribunal in the absence of proof of income

notionally assessed the income at Rs.4,500/- per month and

after deducting 1/3rd has awarded a sum of Rs.2,70,000/-

under the head of "loss of dependency". The Tribunal has

awarded a sum of Rs.40,000/- towards medical expenses;

Rs.32,000/- under the conventional heads. The Tribunal, in

all awarded a sum of Rs.3,42,000/-.

4. Heard the learned counsel appearing for the

appellants and the learned counsel appearing for the second

respondent/ Insurance Company. Perused the records.

5. Regarding quantum:

Though this Court cannot find fault with the Tribunal in

notionally assessing the income of the deceased, however,

having regard to the date of the accident, this Court is of the

view that the income assessed by the Tribunal is on the lower

side. In the absence of any proof of income, by placing

reliance on the Chart issued by the Legal Services Authority,

the income of the deceased is notionally assessed at

Rs.7,000/- and by deducting 1/3rd towards personal

expenses, the income of the deceased is notionally assessed

at Rs.4,666/- and by applying the multiplier of '5', the

compensation re-determined under the head 'loss of

dependency' works out to Rs.2,79,999/- (7000 minus 1/3rd -

Rs.4666.66X12X5)=Rs.2,80,000/-

6. The widow and two children of the deceased have

filed a claim petition. Therefore, by applying the principles

laid down by the Hon'ble Apex Court in the case of Magma

General Insurance Co. Ltd., vs. Nanu Ram alias Chuhru Ram

& Ors. a sum of Rs.1,50,000/- is awarded under the

conventional heads. The compensation awarded under the

head of "medical expenses" remains un-disturbed. Hence,

the total compensation re-determined by this Court works out

to Rs.4,70,000/- (Rs.2,80,000/- + Rs.1,50,000/-) as against

Rs.3,42,000/- awarded by the Tribunal. Hence, the

appellants are entitled for enhanced compensation of

Rs.1,28,000/- which shall carry interest at the rate of 6% per

annum from the date of petition till its realization.

7. Regarding Liability:

The Tribunal has fastened the liability on the owner on

the ground that there is breach of policy conditions. The

second respondent has specifically contended that the vehicle

involved in the accident is a commercial passenger vehicle

and therefore, the driver of the offending vehicle possessed

driving license only for Light Motor Vehicle (non-transport)

and therefore, the liability fastened on the owner would not

warrant any interference. This contention cannot be acceded

to. Admittedly, the vehicle involved in the accident is Tata

Sumo, which is a Light Motor Vehicle. Therefore, in the light

of the ratio laid down in Jagadish Kumar Sood Vs. United

India Insurance Company Limited and others reported in

2018 ACJ 1018 and Mukund Dewangan Vs. Oriental

Insurance Company Limited reported in 2017 ACJ 2011

(SC), if the vehicle involved in the accident is a Light Motor

Vehicle (non-transport), question of seeking endorsement

would not arise. In the present case on hand, on re-

appreciation of the oral and documentary evidence, this Court

is of the view that the Tribunal has totally misread the

material on record and has come to the conclusion that the

vehicle involved in the accident is a Light Motor Vehicle (non-

transport), which is factually incorrect. The Apex Court in the

case of Jagadish Kumar Sood stated supra has held that

where the vehicle involved in the accident is a transport

vehicle or omnibus and if the gross vehicle weight of either of

which does not exceed 7,500 kg, would be a light motor

vehicle and holder of a driving license to drive class of 'light

motor vehicle' as provided under Section 10(2)(d) of the

Motor Vehicles Act is competent to drive a transport vehicle or

omnibus, where the gross vehicle weight does not exceed

7,500 kg. In the present case on hand, admittedly, the gross

weight of the offending vehicle does not exceed 7,500 kg.

Therefore, I am of the view that the driver of the offending

vehicle involved in the accident is not required to secure

transport endorsement. In that view of the matter, the

finding of the Tribunal in fastening the liability on the first

respondent/ owner is palpably erroneous and contrary to the

ratio laid down by the Apex Court in the case of Mukund

Dewanagan and Jagadish Kumar Sood stated supra.

8. For the reasons stated supra, the appeal is allowed

in part. The appellants are entitled for enhanced

compensation of Rs.1,28,000/- which shall carry interest at

the rate of 6% per annum from the date of petition till

realization. The second respondent/ Insurance Company is

liable to satisfy the award.

Sd/-

JUDGE

DH