Karnataka High Court

Smt Mallamma vs A Rohith Kumar on 11 January, 2021

Author: H T Prasad

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 11TH DAY OF JANUARY 2021

                      BEFORE

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

            MFA No.6147 OF 2013(MV)

BETWEEN:

SMT. MALLAMMA
W/O KARIYANNA
D/O MARAKKA
AGED ABOUT 37 YEARS
R/O RANGAPURA GOLLARAHATTI
KASABA HOBLI
SIRA TALUK, TUMKUR DISTRICT.
                                    ... APPELLANT

(BY SRI.HANUMANTHARAYAPPA R., ADV. )

AND

1.    A. ROHITH KUMAR
      S/O ANJANAPPA
      AGED ABOUT 36 YEARS
      R/O NO.50, 45TH CROSS,
      VENKATESHWARA LAYOUT
      ABBIGERE,
      CHIKKABANAVARA POST
      BANGALROE-560 090.

2.    UNITED INDIA INSURANCE CO. LTD.,
      BRANCH OFFICE
                            2



     B.H.ROAD, TUMKUR-572001
     REPRESENTED BY ITS MANAGER.
                              ... RESPONDENTS

(BY SRI. M.V. POONACHA, ADV.FOR R2:
NOTICE TO R1 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JDUGMENT AND AWARD
DATED: 05.07.2012 PASSED IN MVC NO.127/2011 ON
THE FILE OF THE SENIOR CIVIL JDUGE, ADDITIONAL
MACT, SIRA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION THIS
DAY, THE COURT 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 claimant being

aggrieved by the judgment dated 05.07.2012 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 03.09.2009 at about 1.15

p.m., deceased Marakka was waiting for bus on left

side of the road near Kotta Gate on Sira-

Pattanayakanahalli road, at that time, a Tata Indica

Car bearing Reg.No.KA-04/C-5460 being driven by its

driver coming from Sira side at a high speed and in a

rash and negligent manner, dashed against the

deceased. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed

to the injuries while she was taking treatment.

3. The claimant filed a petition under Section

166 of the Act on the ground that the deceased was

aged about 50 years and was earning Rs.6,000/- per

month. The claimant claimed compensation along

with interest.

4. On service of summons, the respondent

No.2 appeared through its counsel and filed written

statement in which the averments made in the

petition were denied. It was pleaded that the driver of

the offending vehicle was holding valid and effective

DL for LMV non transport vehicle but he was driving

the transport vehicle as on the date of accident and

thereby he has violated terms and conditions of the

policy and also the provisions of the M.V. Act. Hence,

he sought for dismissal of the petition.

The respondent No.1 did not appear inspite of

service of notice and was placed ex-parte.

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 as PW-1 and

another witness as PW-2 and got exhibited 9

documents namely Ex.P1 to Ex.P9. On behalf of

respondents, officer of the Insurance Company was

examined as RW-1 and another witness as RW.2 and

got exhibited 3 documents namely Ex.R1 to Ex.R3.

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, deceased sustained

injuries and succumbed to the injuries. The Tribunal

further held that the claimant is entitled to a

compensation of Rs.60,000/- along with interest at

the rate of 6% p.a. and directed the Respondent

No.1/RC owner to deposit the compensation amount

along with interest. Being aggrieved, this appeal has

been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, as on the date of accident, driver of the

offending vehicle was having valid DL for LMV non-

transport vehicle, but he was driving the car. In view

of the law laid down by the Apex Court in the case of

MUKUND DEWANGAN vs. ORIENTAL INSURANCE

COMPANY LIMITED reported in (2017) 14 SCC

663, licence to drive LMV non-transport includes

licence to drive transport vehicle. Therefore, the

Insurance Company is liable to pay compensation.

The Tribunal is not justified in fastening liability on

owner of the offending vehicle.

Secondly, as per the law laid down by the

Hon'ble Supreme Court in the case of NATIONAL

INSURANCE CO. LTD. -v- PRANAY SETHI AND

OTHERS [AIR 2017 SC 5157], the compensation

awarded by the Tribunal under the heads of 'loss of

estate' and 'funeral expenses' are on the lower side.

Hence, the learned counsel appearing for the claimant

prays for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised the following

counter-contentions:

Firstly, it is not in dispute that as on the date of

accident, driver of the offending vehicle was not

having valid and effective driving licence. Since the

insured has violated terms and conditions of the

policy, the Tribunal has rightly fastened liability on

owner of the offending vehicle.

Secondly, the compensation awarded by the

Tribunal under all the heads is just and reasonable.

Hence, the learned counsel for the Insurance

Company prays for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award of the Tribunal.

9. It is not in dispute that deceased Marakka

died in the road traffic accident occurred due to rash

and negligent driving of the offending vehicle by its

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

offending vehicle was holding valid and effective DL

for LMV non-transport vehicle. In view of the law laid

down by the Apex Court in the case of MUKUND

DEWANGAN (supra), driver who is having valid and

effective driving licence for LMV non-transport vehicle

can also drive LMV transport vehicle. In view of the

above, Insurance Company is liable to pay

compensation.

10. In respect of quantum of compensation is

concerned, since the claimant has failed to prove that

she was depending on the income of the deceased for

her livelihood, the Tribunal after considering the same

has rightly granted compensation of Rs.50,000/-

under the head of 'loss of estate'.

In view of the law laid down by the Apex Court

in the case of Pranaya Sethi (supra), Rs.15,000/-

has to be awarded under the head of 'funeral

expenses'. Accordingly, the claimant is entitled to

Rs.15,000/- under the head of 'transportation and

funeral expenses'.

11. Thus, the claimant is entitled to the

following compensation:

         Compensation under          Amount in
            different Heads            (Rs.)
        Transportation & funeral         15,000
        expenses
        Loss of estate                      50,000
                       Total               65,000

The claimant is entitled to a total compensation

of Rs.65,000/- instead of Rs.60,000/- awarded by the

Tribunal.

The Insurance Company is directed to deposit

the compensation amount along with interest at 6%

p.a. from the date of petition till the date of

realization, within a period of four weeks from the

date of receipt of copy of this judgment.

The Tribunal is directed to disburse the entire

compensation amount to the claimant after due

verification.

To the aforesaid extent, the judgment of the