Smt Shanavas Begum vs The United India Insurance Co Ltd
2021 Latest Caselaw 244 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 6TH DAY OF JANUARY 2021

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

               M.F.A. NO.1892 OF 2017 (MV)
BETWEEN:

1.     SMT. SHANAVAS BEGUM
       W/O LATE DASTAGIR KHAN
       AGED ABOUT 56 YEARS.

2.     SRI. IMRAN PASHA
       S/O LATE DASTAGIR KHAN
       AGED ABOUT 27 YEARS.

       BOTH R/AT. 3RD CROSS
       MARUTHINAGAR, BASAVAPATTANA
       KYATASANDRA POST-572104
       TUMKUR DISTRICT.
                                              ... APPELLANTS
(BY MR. V.B. SIDDARAMAIAH, ADV.,)

AND:

1.     THE UNITED INDIA INSURANCE CO. LTD.,
       BRANCH OFFICE, 1ST FLOOR
       JAYADEVA COMPLEX, B.H. ROAD
       TUMKUR CITY-572101
       REP. BY ITS BRANCH MANAGER.

2.     SRI. CHANDRASHEKHARA M.R.
       S/O RANGADHAMAPPA
       AGED ABOUT 39 YEARS
       R/AT. YELLAPPUR VILLAGE
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      ARAKERE POST, KASABA HOBLI
      TUMKUR-572101.
                                                   ... RESPONDENTS
(BY MR. MOHAN KUMAR T, ADV., FOR R1
V/O DTD:22.12.2020 NOTICE TO R2 IS DISPENSED WITH)

                                  ---

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.11.2016 PASSED
IN MVC NO.38/2016 ON THE FILE OF THE II ADDITIONAL
DISTRICT JUDGE AND MACT, TUMAKURU, PARTLY ALLOWING THE
CLAIM    PETITION    FOR    COMPENSATION   AND    SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR HEARING,                  THIS    DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                             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 seeking enhancement of the

amount of compensation against the judgment dated

29.11.2016 passed by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal briefly

stated are that on 22.11.2015, the deceased Dastagir Khan

was proceeding on his moped bearing Registration No.KA-06-

Y-566. When he reached near the lorry office, Kyathsandra

Ring Road, an auto rickshaw bearing Registration No. KA-02-

D-3959, which was being driven by its driver in a rash and

negligent manner, came from the hind side and dashed

against the moped of the deceased. As a result of the

aforesaid accident, the deceased sustained grievous injuries

and succumbed to the same.

3. The claimants thereupon filed a petition under

Section 166 of the Act claiming compensation on the ground

that the deceased was aged about 58 years at the time of

accident and was engaged in engineering works business and

was earning a sum of Rs.50,000/- per month. It was further

pleaded that accident took place solely on account of rash

and negligent driving of the auto rickshaw by its driver. The

claimants claimed compensation to the tune of

Rs.30,00,000/- along with interest.

4. The insurance company filed written statement,

in which the mode and manner of the accident was denied.

The involvement of the offending auto rickshaw in the

accident was also denied. It was also pleaded that the driver

of the auto rickshaw did not hold a valid and effective driving

license as well as permit at the time of accident and that the

liability of the insurance company, if any, would be subject to

the terms and conditions of the insurance policy. The age,

avocation and income of the deceased was also denied and it

was pleaded that the claim of the claimants is exorbitant and

excessive.

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

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant No.1 examined herself as PW-1,

Hemanth (PW2) and got exhibited documents namely Ex.P1

to Ex.P10. The respondents examined Mounesh (RW1),

Deepak (RW2) and got exhibited Ex.R1 to Ex.R4. The Claims

Tribunal, by the impugned judgment, inter alia, held that the

accident took place on account of rash and negligent driving

of the auto rickshaw by its driver. It was further held, that as

a result of aforesaid accident, the deceased sustained injuries

and succumbed to the same. The Tribunal further held that

the claimants are entitled to a compensation of

Rs.5,44,036/- along with interest at the rate of 6% per

annum and directed the owner of the auto rickshaw to pay

the aforesaid amount of compensation. Being aggrieved, this

appeal has been filed seeking enhancement of the amount of

compensation.

6. Learned counsel for the claimant submitted that

the Tribunal has grossly erred in assessing the income of the

deceased as Rs.7,000/- per month and in any case, the same

ought to have been taken as per the guidelines framed by

the Karnataka State Legal Services Authority. It is further

submitted that the Tribunal has erred in not making an

addition to the tune of 10% to the income of the deceased on

account of future prospects in view of the law laid down by

the Supreme Court in 'NATIONAL INSURANCE COMPANY

LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC

5157. It is also submitted that the sums awarded under the

heads 'loss of consortium' and 'funeral expenses' are on the

lower side and deserves to be enhanced suitably. It is also

urged the driver of the offending vehicle possessed a valid

and effective driving license to drive an auto rickshaw at the

time of the accident in view laid down by the Supreme Court

in MUKUND DEWANGAN VS THE ORIENTAL INSURANCE

COMPANY LIMITED AIR 2017 SC 3668 and therefore, the

liability to pay the compensation is to be fastened upon the

insurance company.

7. On the other hand, learned counsel for the insurance

company submitted that no evidence has been adduced by

the claimants to prove the income of the deceased before the

Tribunal and that the Tribunal has rightly taken the income of

the deceased notionally at Rs.7,000/- per month. It is further

submitted that the Tribunal has rightly fastened the liability

to pay the compensation on the owner of the offending

vehicle as Ex.R1 DL Extract and Ex.R2 Permit Details clearly

disclose that the offending vehicle was being driven in breach

of policy conditions and that the insurer is exonerated from

the liability to pay the compensation under Section 149 of

the Act on account of such breach. It is also submitted that

the principle of pay and recovery should be applied in the

instant case in view of the law laid down by a full bench of

this court in NEW INDIA ASSURANCE CO.LTD. VS.

YALLAVVA 2020(2) AKR 484. It is further submitted that

the amount of compensation awarded by the Tribunal is just

and proper and does not call for any interference.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The Supreme Court in MUKUND DEWANGAN VS THE

ORIENTAL INSURANCE COMPANY LIMITED AIR 2017

SC 3668 has held that a 'Light Motor Vehicle' as defined in

Section 2(21) of the Act would include a transport vehicle,

the weight of which does not exceed 7,500/- kg and that the

holder of a driving license to drive class of 'Light Motor

Vehicle' as provided in Section 10(2)(d) is competent to drive

a transport vehicle. In the instant case, Ex.R1 DL Extract

discloses that the driver of the offending vehicle was holding

a valid and effective license to drive the class of 'light motor

vehicle'. In view of the law laid down by the Supreme Court

in MUKUND DEWANGAN SUPRA, it is held that the driver

of the offending vehicle was in possession of a valid and

effective driving license at the time of the accident.

Therefore, the insurance company is directed to pay the

amount of compensation to the claimants. In so far as, the

contention raised by the learned counsel for the insurance

company the principle of pay and recovery, should be

invoked on account of breach of policy condition in respect

of a valid permit to ply the offending vehicle at the place of

accident deserves to be rejected, as it is not clear from the

evidence on record whether the accident has occurred within

10 kms of Tumkur TMCL Limit as enumerated in Ex.R2

Permit. It is pertinent to note here that the burden to prove

the same is on the insurance company which has not been

discharged in the instant case.

9. Now we may advert to the quantum of

compensation. Admittedly, the claimants have not produced

any evidence with regard to the income of the deceased.

Therefore, the notional income of the deceased is assessed

as per the guidelines issued by the Karnataka Legal Services

Authority. Since, the accident is of the year 2015, the

notional income of the deceased is assessed at Rs.9,000/-

per month.

10. In view of the law laid down by the Constitution

Bench of the Supreme Court in 'NATIONAL INSURANCE

COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS'

AIR 2017 SC 5157, 10% of the amount has to be added on

account of future prospects. Thus, the monthly income

comes to Rs.9,900/-. Since, the number of dependents is 2,

therefore, 1/3rd of the amount has to be deducted towards

personal expenses and therefore, the monthly dependency

comes to Rs.6,600/-. Taking into account the age of the

deceased which was 58 years at the time of accident, the

multiplier of '9' has to be adopted. Therefore, the claimants

are held entitled to (Rs. 6,600x12x9) i.e., Rs.7,12,800/- on

account of loss of dependency.

11. In view of laid down by the Supreme Court in

'MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM

& ORS.' (2018) 18 SCC 130, which has been subsequently

clarified by the Supreme Court in 'UNITED INDIA

INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.'

IN CIVIL APPEAL NO.2705/2020 DECIDED ON

30.06.2020 each of the claimant's are entitled to a sum of

Rs.40,000/- on account of loss of consortium and loss love

and affection. Thus, the claimants are held entitled to

Rs.80,000/-. In addition, claimants are held entitled to

Rs.30,000/- on account of loss of estate and funeral

expenses. Thus, in all, the claimants are held entitled to a

total compensation of Rs.8,22,800/- and the insurance

company is directed to pay the aforesaid amount of

compensation. Since the accident is of the year 2015, the

prevailing rate of interest for the year 2015 in respect of

fixed deposits for one year in nationalized banks being 7%,

the aforesaid amounts of compensation shall carry interest at

the rate of 7% from the date of filing of the petition till the

realization of the amount of compensation. To the aforesaid

extent, the judgment passed by the Claims Tribunal is

modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

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