The Claim Manager vs Pedasanaganti Nancharaiah
2021 Latest Caselaw 1271 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF JANUARY, 2021

                         PRESENT

          THE HON'BLE MRS.JUSTICE S.SUJATHA

                          AND

           THE HON'BLE MR. JUSTICE M.I.ARUN

                M.F.A.No.1893/2019 c/w
                M.F.A.No.1066/2019 (MV)

IN M.F.A.No.1893/2019:

BETWEEN :

THE CLAIM MANAGER
FUTURE GENERAL INDIA
INSURANCE COMPANY LIMITED,
PASADENA NO.18/1, (OLD NO.125/A)
III FLOOR, ASHOKA PILLER ROAD
I BLOCK, JAYANAGAR
BANGALORE-560011
NOW AT FUTURE GENERALI
INDIA INSURANCE CO. LTD.,
NO.31, 3RD FLOOR,
ABOVE CROMA SHOWROOM
SHRAVANEE KRISHNA MANSION,
100 FEET ROAD, II BLOCK,
JAYANAGARA, BENGALURU-560011
BY ITS MANAGER                             ...APPELLANT

                 (BY SRI O.MAHESH, ADV.)

AND :

1.      PEDASANAGANTI NANCHARAIAH
        S/O NAGESHWARA RAO
        AGED ABOUT 48 YEARS
                          -2-

2.   PEDASANAGANTI RAMANA
     W/O PEDASANAGANTI NANCHARAIAH
     AGED ABOUT 45 YEARS

3.   PEDASANAGANTI BABY MOUNIKA
     D/O PEDASANAGANTI NANCHARAIAH
     AGED ABOUT 23 YEARS

     ALL ARE R/AT NO.9/214
     BALARAMUNI PETA MACHILIPATNAM
     TALUK, KRISHNA DISTRICT
     ANDHRA PRADESH-521001

4.   G.S.ASHOKA
     S/O NOT KNOWN, MAJOR
     R/O 465, GARVEBHAVI PALYA
     RAJAMMA SHAMANNA LAYOUT
     MADIVALA, BENGALURU-560068         ...RESPONDENTS

          (BY SRI GOPALAKRISHNA N., ADV. FOR ]
      SRI A.SREENIVASAIAH, ADV. FOR C/R-1 TO R-3;
         SRI NARAYANA REDDY M., ADV. FOR R-4.)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
30.11.2018 PASSED IN MVC No.1901/2017 ON THE FILE OF
THE II ADDITIONAL JUDGE & XXVIII ACMM, COURT OF SMALL
CAUSES,    MACT,   BENGALURU      (SCCH-13), AWARDING
COMPENSATION OF Rs.29,17,979/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL THE DEPOSIT.


IN M.F.A.No.1066/2019:

BETWEEN :

1.   PEDASANAGANTI NANCHARAIAH
     S/O NAGESHWARA RAO
     AGED ABOUT 49 YEARS

2.   PEDASANAGANTI RAMANA
     W/O PEDASANAGANTI NANCHARAIAH
     AGED ABOUT 46 YEARS
                            -3-

3.      PEDASANAGANTI BABY MOUNIKA
        D/O PEDASANAGANTI NANCHARAIAH
        AGED ABOUT 24 YEARS

        ALL ARE R/AT NO.9/214
        BALARAMUNI PETA, MACHILIPATNAM
        TALUK, KRISHNA DISTRICT
        ANDHRA PRADESH-521001                ...APPELLANTS

             (BY SRI GOPALAKRISHNA N., ADV. FOR
                  SRI A.SREENIVASAIAH, ADV.)

AND :

1.      G.S.ASHOKA
        No.465, GARVEBHAVI PALYA
        RAJAMMA SHAMANNA LAYOUT
        MADIVALA, BENGALURU-560068

2.      THE MANAGER
        FUTURE GENERAL INDIA
        INSURANCE CO. LTD.,
        PASADENA NO.18/1,
        (OLD NO.125/A), III FLOOR,
        ASHOKA PILLER ROAD
        I BLOCK, JAYANAGAR
        BANGALORE-560011                   ...RESPONDENTS

            (BY SRI NARAYANA REDDY, ADV. FOR R-1;
                 SRI O.MAHESH, ADV. FOR R-2.)

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
30.11.2018 PASSED IN MVC No.1901/2017 ON THE FILE OF
THE II ADDITIONAL JUDGE & XXVIII ACMM, COURT OF SMALL
CAUSES, MACT, BENGALURU (SCCH-13), PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

      THESE APPEALS COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
                            -4-


                       JUDGMENT

The insurer as well as the claimants have

preferred these appeals challenging the judgment and

award dated 30.11.2018 passed in MVC No.1901/2017

on the file of the II Addl. Judge & XXVIII ACMM, Court

of Small Causes, Bengaluru ('Tribunal' for short).

2. The claimants instituted the petition under

Section 166 of the Motor Vehicles Act, 1988 ('Act' for

short) seeking compensation for the death of

Pedasanagani Saikumar in the road traffic accident.

3. It was averred in the claim petition that on

14.2.2017 at about 8.15 a.m. when the deceased

Pedasanagani Saikumar was proceeding in his motor

cycle bearing Reg.No.KA-53-EG-5632 from St.Mary's

school towards Garvebhavipalya, Bengaluru, near Virat

Fancy World, the driver of the water tanker bearing

Reg.No.KA-51-A-1971 (offending vehicle) driven the

same at high speed in a rash and negligent manner,

dashed against the motor cycle in which the deceased

was riding. As a result, he fell down and sustained

grievous injuries and he was shifted to St.John's

hospital, Bengaluru, but he succumbed to the

accidental injuries in the hospital.

4. It was contended that the deceased was aged

about 23 years and was working as an accountant and

earning Rs.25,000/- per month. The claimants being

the parents and sister were depending on the deceased.

Due to his untimely death, the claimants have suffered

mental agony, loss of dependency, loss of love and

affection etc., On these set of facts and grounds, the

claimants have sought for compensation.

5. In response to service of notice, respondent

No.1 did not appear, as such he was placed ex-parte.

Respondent No.2 appeared through his learned counsel

and contested the claim by filing objections denying the

petition averments. It was contended that the

compensation amount claimed is excessive, arbitrary

and baseless.

6. Admitting the issuance of policy in respect of

the offending vehicle, It was contended that the

liability, if any, is subject to the terms and conditions of

the policy. The primary defence set up was that the

driver of the offending vehicle had no valid driving

licence to drive the offending vehicle. The offending

vehicle had no effective permit, fitness certificate as on

the date of the accident and therefore, it is not liable to

indemnify the insured.

7. On the basis of the pleadings, the Tribunal

framed the issues as under:

"1. Whether the petitioners prove that the death of Sri Pedasanaganti Sai Kumar is on account of road traffic accident occurred on 14.02.2017 at about 8.15 a.m. opposite to Virat fancy world, St. Mary's School to Garvebhavipalya Road, Bengaluru district and accident had taken place due to rash

and negligent driving by the driver of water tanker bearing Regn.No.KA-51-A-1971 as alleged in the petition?

2. Whether the petitioners prove that they are the legal representatives of the deceased Sri Pedasanaganti Sai Kumar?

3. Whether the petitioners prove that they are entitled for compensation as claimed? If so, to what extent and from whom?

4. What order or award?"

8. The 1st claimant was examined as PW-1 and

Exs.P1 to P20 were got marked. Respondent-insurer has

examined three witnesses and documents Exs.R1 to R7

were got marked.

9. On appreciation of oral and documentary

evidence, the Tribunal answered the issue Nos.1, 2 in

the affirmative and issue No.3 partly in the affirmative.

The Tribunal partly allowing the claim petition

awarded total compensation of 29,17,979/- with

interest @ 6% p.a. from the date of petition till the

deposit of the amount.

10. Being aggrieved, the insurer has preferred

MFA No.1893/2019 challenging the liability as well as

the quantum of compensation awarded, whereas the

claimants have preferred MFA No.1066/2019 seeking

enhancement of compensation quantified by the

Tribunal.

11. Learned counsel for the insurer argued that

the Tribunal has failed to frame proper and necessary

issues in the light of the pleadings of the respective

parties. There was no permit issued to the insured

transport vehicle (offending vehicle) which was illegally

converted from open body transport vehicle to water

tanker. The corroborative evidence placed on record by

the insurer in this regard has been totally lost sight of,

by the Tribunal. The finding of the Tribunal on the

issue of evidence with reference to police investigation

reports exhibited as Exs.P1 to P6 indeed were not

proved as required under law. The deceased himself

was the architect of the cause of the accident. He had

overtaken the water tanker on its left side and all of a

sudden came in line of direction of the water tanker and

as such, deceased was guilty of higher degree of

negligence and responsible for the alleged accident.

12. The Tribunal has deducted 1/3rd of the

income towards personal and living expenses of the

deceased instead of ½ when it was manifestly clear that

the deceased was a bachelor. Fastening the liability on

the appellant-insurer is fully untenable when it was

specifically pleaded and proved that there was flagrant

violation of the provisions of the Act and terms and

conditions of policy of insurance, validity of D.L. of

driver of insured transport vehicle and also validity of

permit of insured transport vehicle which is illegally

converted from LGV to MGV and the same was

- 10 -

corroborated by the oral evidence of RWs.1 to 3 coupled

with Exs.R1 to R7.

13. Learned counsel for the claimants submitted

that the police records would disclose the negligence of

the driver of the offending vehicle for causing the

accident. The material evidence on record would

indicate that the water tanker (offending vehicle) with

the unladen weight of 3610 kgs would certainly come in

the category of light goods vehicle. It was further

argued that non possession of fitness certificate is not

the ground available to the Insurance Company to seek

for exoneration from the liability since the defence is not

available to the Insurance Company under Section

149(2) of the Act. The Tribunal having appreciated the

oral and documentary evidence has rightly fastened the

liability on the insurer.

14. As regards quantum, it was argued that the

deceased was well educated, possessing B.Sc., and MBA

- 11 -

degree. He was appointed by First Guide Academy, HSR

Layout, Bengaluru, as per Ex.P19 and was earning

Rs.25,000/- per month. Despite the concrete evidence

placed on record to establish the factum of income, the

Tribunal determined the monthly salary at Rs.20,000/-

which is on the lower side. It was submitted that the

compensation awarded under different heads is meager

and the same deserves to be enhanced substantially.

15. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the original records.

16. The points that arise for our consideration

are:

1. Whether the Tribunal was justified in fastening

the liability on the insurer to satisfy the award?

2. Whether the quantum of compensation

awarded by the Tribunal is just and proper in

the facts and circumstances of the case?

- 12 -

Re. Point No.1:

17. It was vehemently argued by the learned

counsel appearing for the insurer that the offending

vehicle-water tanker was not a light goods vehicle,

indeed it was a medium goods vehicle for which the

driver of the offending vehicle had no licence. In this

regard it is beneficial to refer to the evidence of RWs-1

and 2.

18. RW-1 Sri.Krishnamurthy A.D, FDA, RTO,

Shivamogga has stated in his chief examination that the

driving licence of Sri.Malleshappa, son of

Hanumanthaiah, (driver of the offending vehicle) has

renewed the driving licence in his office which was in

force from 13.7.2016 to 12.7.2019. The said driver had

the licence to drive the water tanker. In the cross-

examination he has stated that he was working in the

said office for about 10 years. Any vehicle with the

unladen weight of 7500 kgs has to be construed as LMV

- 13 -

vehicle. It is true that the unladen weight of the subject

vehicle is 3610 kgs.

19. RW-2 Shashikumar N., FDA, Electronic City,

RTO, Bengaluru, in the chief examination has

unequivocally stated that the offending vehicle No.KA-

51-A-1971 is LMV vehicle; It is true that the said vehicle

is open body; Fitness certificate and permit have been

issued to the said vehicle. If any alteration is made, the

information has to be given to them (to the Department).

20. In the cross-examination, it has been

admitted that as per Ex.R5, unladen weight of the

offending vehicle is 3610 kgs. If the unladen weight is

less than 7500 kgs, it comes under LMV.

21. Ex.R5 permit extract would indicate that the

unladen weight of the offending vehicle is 3610 kgs. As

per section 2(21) of the Act, "light motor vehicle" means

a transport vehicle or omnibus the gross vehicle weight

- 14 -

of either of which or a motor car or tractor or road-roller

the unladen weight of any of which, does not exceed

7500 kilograms. As per the oral and documentary

evidence placed by the insurer, it is proved that the

offending vehicle with the unladen weight of 3610

kilograms comes within the category of LMV vehicle.

22. It is not in dispute that the driver of the

offending vehicle possessed valid and effective driving

licence to drive the LMV vehicle, as such, negating the

contentions of the insurer, Tribunal fixing the liability

on the insurer to indemnify the R.C. owner, cannot be

held to be unsustainable.

23. It is well settled that non possessing the

fitness certificate would not be breach of policy and is

not the defence available to the Insurance Company. In

view of the valid policy in force as on the date of the

accident, the Tribunal has rightly held that the owner

and the insurer are jointly and severally liable to pay

- 15 -

the compensation amount and the insurer has to

deposit the compensation before the Tribunal.

Re. Point No.2:

24. As regards the quantum, the learned counsel

for the insurer agued that there was higher degree of

negligence on the part of the deceased since he had

overtaken the water tanker from its left side and

suddenly dashed to the water tanker. This argument of

the learned counsel is not supported by any evidence.

25. It is borne out from the records that the

deceased was aged about 23 years and was working as

an accountant at First Guide Academy and as per

Ex.P19, he was drawing salary of Rs.20,000/- per

month. Having regard to his educational qualification

i.e., B.Sc., MBA, I.D.Card as well as the appointment

letter of the deceased, the Tribunal has rightly

determined the monthly income of the deceased at

- 16 -

Rs.20,000/-, which in our opinion being appropriate, we

are not inclined to interfere with the same.

26. In terms of the ruling of the Hon'ble Apex

Court in SARLA VERMA AND OTHERS vs. DELHI

TRANSPORT CORPORATION AND ANOTHER, reported

in [2009] 6 SCC 121, 50% has to be deducted towards

personal and living expenses of the deceased. However,

1/3rd of the income has been deducted by the Tribunal.

The same calls for modification. No compensation

towards future prospects is awarded. Hence, we are of

the opinion that it would be just and reasonable to add

40% of the monthly income towards future prospects.

Thus, applying the multiplier of 18 with the monthly

income of Rs.28,000/- (Rs.20000 + Rs.8000), deducting

50% of the income towards personal and living expenses

of the deceased, the total loss of income would be

Rs.30,24,000 (Rs.28000 x 12 x 18 x ½).

- 17 -

27. As per the ruling of the Hon'ble Apex Court

in National Insurance Company Limited Vs. Pranay

Sethi and others reported in ((2017)16 SCC 680)

and New India Assurance Company Limited Vs.

Somawati and others reported in (2020) 9 SCC 644,,

the claimants are entitled to Rs.1,10,000/- under the

conventional heads.

28. The medical expenses of Rs.7,979/- awarded

by the Tribunal remains intact.

29. For the reasons aforesaid, the total

compensation is re-assessed as under:

  Sl.No.          Particulars           Amount [in Rs.]
    1.        Loss of dependency          30,24,000
    2.      Loss of filial Consortium        80,000
    3.           Loss of Estate              15,000
    4.         Funeral expenses              15,000
    5.         Medical expenses               7,979
               Total                      31,41,979
                             - 18 -

Thus, the claimants are entitled to total compensation

of Rs.31,41,979/- with interest @ 6% p.a. from the date

of petition till its realization.

Hence, the following:

ORDER

i) MFA No.1893/2019 filed by the insurer is dismissed.

      ii)        MFA       No.1066/2019        filed    by   the
                 claimants is partly allowed.
      iii)       The total compensation awarded by the

Tribunal is modified and enhanced to Rs.31,41,979/- (Rupees Thirty One lakhs Forty One Thousand Nine hundred and Seventy Nine only) as against Rs.29,17,979/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

iv) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

v) The insurance company shall deposit the amount determined as aforesaid before

- 19 -

the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

vi) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.

vii) Draw modified award accordingly.

viii) The Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith.

ix) All pending I.As. stand disposed of accordingly.

Sd/-

JUDGE

Sd/-

JUDGE

Dvr: