Shabeena Banti @ Shabeenabi vs M Manjunath
2021 Latest Caselaw 2268 Kant

                           1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 16TH DAY OF JUNE, 2021

                        BEFORE

         THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A.NO.1875/2014 (MV)
                          C/W.
                M.F.A.NO.7347/2013 (MV)

IN MFA NO.1875/2014 (MV)

BETWEEN:
1.  SHABEENA BANTI @ SHABEENABI
    W/O LATE MOHAMMED GHOUSEPEER,
    @ CHANDPEER,
    AGED ABOUT 55 YEARS,

2.   NEHA BANU
     D/O LATE MOHAMMED GHOUSPEER
     @ CHANDPEER
     AGED ABOUT 12 YEARS

3.   RUKHIYA BANU
     W/O LATE MOHAMMED GHOUSEPEER,
     @ CHANDPEER,
     AGED ABOUT 6 YEARS,

     APPELLANT NOS.2 AND 3 ARE MINORS
     REP. BY THROUGH THEIR NATURAL
     GUARDIAN MOTHER APPELLANT NO.1

     ALL ARE R/O SHIKARI MOHALL,
     CHANNAGIRI TOWN,
     DAVANGERE DISTRICT-577001
                                       ... APPELLANTS
         (BY SRI A.HANUMANTHAPPA, ADVOCATE)
                             2



AND:

1.     M. MANJUNATH
       S/O SADASHIVAPPA,
       AGED ABOUT 32 YEARS,
       DRIVER OF APE GOODS AUTO
       BEARING REG.NO.KA-16/9010,
       R/O SURESH NAGAR MAIN ROAD,
       NEAR SHIVALI TALKIES,
       DAVANAGERE-577 001.

2.     P.K.NAGABHUSHANA REDDY,
       S/O KESHAVA REDDY
       OWNER OF APE GOODS AUTO,
       BEARING REG.NO.KA-16/9010,
       R/O KALPANA COMPOUND,
       EGG CENTER, NHR ROAD, 2ND CROSS,
       CHITRADURGA-577501.

3.     THE MANAGER
       ORIENTAL INSURANCE CO., LTD.,
       DIVISIONAL OFFICE NO.10,
       DWARKA, 2ND FLOOR, 79,
       UTTAM ARGANDHI SALAI
       CHENNAI (TAMILNADU)
       REP. THROUGH ITS BRANCH MANAGER
       BRANCH OFFICE,
       ORIENTAL INSURANCE CO., LTD,
       THILUVALLY COMPLEX, PB ROAD,
       DAVANAGERE-577 001.
                                          ... RESPONDENTS

       (BY SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R3;
     NOTICE TO R1 AND R2 IS DISPENSED WITH VIDE ORDER
                      DATED 14.01.2015)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.06.2013
PASSED IN MVC.NO.34/2010(OLD NO.942/2008) ON THE FILE
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OF THE SENIOR CIVIL JUDGE AND MACT, CHANNAGIRI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO.7347/2013 (MV):

BETWEEN:
THE ORIENTAL INSURANCE
COMPANY LIMITED,
DIVISIONAL OFFICE NO.10,
2ND FLOOR, DWARKA, No.79,
UTTAM ARAGANDHI SALAI
CHENNAI (TAMILNADU)

REPRESENTED THROUGH ITS
BRANCH MANAGER
BRANCH OFFICE,
THE ORIENTAL INSURANCE COMPANY LIMITED,
THILUVALLY COMPLEX, P.B.ROAD,
DAVANAGERE.

FURTHER REPRESENTED BY
THE REGIONAL MANAGER
THE ORIENTAL INSURANCE COMPANY LIMITED,
REGIONAL OFFICE,
2ND FLOOR, SUMANGALA COMPLEX,
LAMINGTON ROAD,
HUBLI-580 020.
                                           ... APPELLANT
          (BY SRI S.V.HEGDE MULKHAND, ADVOCATE)
AND:

1.     SMT. SHABEENA BANTI
       @ SHABEENABI
       AGED ABOUT 53 YEARS,

2.     KUM.NEHA BANU
       AGED ABOUT 10 YEARS
                            4



3.   KUM.RUKHIYA BANU
     AGED ABOUT 4 YEARS,

     1ST RESPONDENT IS THE WIFE
     AND RESPONDENTS 2 AND 3
     ARE THE CHILDREN, RESPECTIVELY OF
     LATE SHRI MOHAMMED GHOUSE
     PEER @ CHANDPEER;

     RESPONDENTS 2 AND 3 BEING MINORS ARE
     REPRESENTED BY THEIR MOTHER/NATURAL GUARDIAN
     THE 1ST RESPONDENT.

     RESPONDENTS 1 TO 3 ARE RESIDING AT
     SHIKARI MOHAL, CHANNAGIRI TOWN,
     DAVANGERE DISTRICT-577001

4.   SHRI M. MANJUNATH
     S/O SADASHIVAPPA,
     AGED ABOUT 30 YEARS,
     DRIVER OF APE GOODS AUTO
     BEARING REG.NO.KA-16/9010,
     NEAR SHIVALI TALKIES MAIN ROAD,
     SURESH NAGAR, DAVANAGERE-577 001.

5.   SRI P.K.NAGABOOSHANA REDDY
     S/O KESHAVA REDDY,
     AGE: MAJOR,
     OWNER OF APE GOODS AUTO
     NO.KA-16/9010,
     RESIDING IN KALPANA COMPOUND,
     2ND CROSS, EGG CENTER, NHR ROAD,
     CHITRADURGA-577501
                                         ... RESPONDENTS
      (BY SRI A.HANUMANTHAPPA, ADVOCATE FOR R1;
         SRI SREEHARSHA A.K., ADVOCATE FOR R4;
     R2 AND R3 ARE MINORS AND REPRESENTED BY R1;
       NOTICE TO R5 IS HELD SUFFICIENT VIDE ORDER
                   DATED 16.10.2019)
                                5




      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.06.2013
PASSED IN MVC.NO.34/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MACT, CHANNAGIRI, AWARDING A COMPENSATION OF
Rs.4,74,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.

     THESE MFAs' COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                         JUDGMENT

Though the matters are listed for admission today, with

the consent of the learned counsel for both the parties, they are

taken up for final disposal.

These two appeals are filed by the claimants and the

Insurance Company respectively challenging the judgment and

award passed in MVC No.34/2010 dated 22.06.2013 on the file

of Senior Civil Judge and MACT at Channagiri ('the Tribunal' for

short), questioning the quantum of compensation and the

liability.

2. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

3. The factual matrix of the case is that the deceased

Mohammed Ghousepeer @ Chandpeer died in a motor vehicle

accident due to the rash and negligent act of the driver of the

goods auto bearing registration No.KA-16/9010, in which he was

proceeding as an Hamali. Hence, the claim petition was filed by

the wife and two children contending that the deceased was

earning an amount of Rs.150/- per day and he was aged about

45 years. Due to the untimely death of the deceased, the family

members have lost the bread earner of the family and hence,

they are entitled for the compensation. In pursuance of the

claim petition, notice was issued against the respondents.

Respondent No.3 appeared and resisted the claim petition by

filing the statement of objection, wherein the allegations made in

the claim petition have been denied by the Insurance Company.

It is further contended that the deceased was travelling in the

goods auto as an unauthorized passenger and the driver of the

auto was not holding the valid and effective driving licence to

drive the said vehicle at the time of alleged accident. The

accident caused auto was not having the valid permit and fitness

certificate. Hence, the Insurance Company is not liable to pay

the compensation.

4. The claimants, in order to substantiate their claim,

examined the first claimant as P.W.1 and another witness as

PW.2 and got marked the documents at Exs.P1 to P9. On the

other hand, the respondent-Insurance Company examined RW.1

and also got marked the document i.e., the copy of the policy at

Ex.R1. The Tribunal, after considering both oral and

documentary evidence, allowed the claim petition by granting

compensation of Rs.4,74,000/- with interest at the rate of 6%

per annum from the date of petition till realization and fastened

the liability on the Insurance Company. Being aggrieved by the

said award, both the claimants and the Insurance Company are

before this Court by filing these two appeals.

5. In the claimants' appeal in MFA No.1875/2014, the

learned counsel for the claimants would vehemently contend

that the deceased was earning Rs.150/- per day, but the

Tribunal assessed the income of the deceased at Rs.125/- per

day, which is opposed to the evidence on record. The Tribunal

has committed an error in granting a meagre compensation on

other heads as well. Learned counsel also would contend that

the Tribunal has grossly erred in awarding an interest on the

compensation, at the rate of 6% per annum, which ought to

have been 12%. Hence, the judgment and award of the

Tribunal requires to be interfered with by this Court.

6. Per contra, the Insurance Company in another

appeal in MFA No.7347/2013 would vehemently contend that the

Tribunal has failed to consider the materials available on record

and committed an error in coming to the conclusion that the

deceased was travelling as an Hamali being engaged by the

owner of the auto. Neither the driver of the auto has been

examined nor the owner of the auto. Though a specific defence

was taken that the deceased was travelling as a passenger in the

goods auto and not as an employee of its owner, the same has

not been considered. The Tribunal also erred in relying upon the

evidence of PW.2, who is none other than the father of the driver

of the goods auto in question, who is an interested witness.

7. Learned counsel also would vehemently contend that

the gross-weight of the goods auto in question measures 975

kgs. but the Tribunal has wrongly applied the provisions of Rule

100 of the Karnataka Motor Vehicle Rules. The Tribunal failed to

appreciate that even as per the proviso to Rule 100 of the

Karnataka Motor Vehicles Rules, a person, either the owner of

the vehicle or the hirer or a bona fide employee of its owner or

the hirer of the vehicle, other than the driver of the said vehicle

could have been carried in the said vehicle.

8. Learned counsel also would vehemently contend that

the Tribunal has rightly assessed the income of the deceased at

Rs.3,750/- per month. Hence, there is no ground to enhance

the compensation. On the other hand, the Insurance Company

is also not liable to pay the compensation. Learned counsel also

would vehemently contend that the compensation ought to have

been calculated under the Workmen's Compensation Act and not

under the Motor Vehicles Act. Hence, it requires interference of

this Court.

9. Having heard the respective counsel and on perusal

of the grounds urged in the respective appeals, the points that

would arise for the consideration of this Court are :-

1. Whether the Tribunal has committed an error in fastening the liability on the Insurance Company by coming to the conclusion that the deceased was an employee of the owner of the goods auto and he was working as an Hamali and not a passenger ?

2. Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and hence it requires interference of this Court ?

3. Whether the Tribunal has committed an error in awarding an exorbitant compensation as contended by the Insurance Company?

Point No.1:-

10. The main pleadings of the claimants before the

Tribunal is that the deceased was working as an Hamali and he

was travelling as an Hamali in the goods auto involved in the

accident. The main contention of the Insurance Company is

that the deceased was an unauthorized passenger and hence,

the Insurance Company is not liable to pay the compensation.

In order to prove the fact that he was working as an Hamali and

travelling as an Hamali in the said auto, the claimant, who is the

wife of the deceased has been examined before the Tribunal and

also the doctor has been examined as PW.2. On the other hand,

Insurance Company examined the official witness as R.W.1 to

prove the fact that the deceased was a gratuitous passenger.

Except the oral evidence of RW.1, nothing has been elicited from

the cross-examination of PW.1 and PW.2 that he was proceeding

as an unauthorized passenger as contended by the Insurance

Company. Mere taking of defence is not enough to hold that the

deceased was an unauthorized passenger and the same has to

be proved by placing the cogent evidence before the Tribunal.

11. The Tribunal, considering the material on record has

come to the conclusion that the deceased was proceeding as an

Hamali as contended by the claimants. In order to substantiate

the contention of the Insurance Company that the deceased was

a passenger, no document has been placed before the Court.

However, the Insurance Company is not disputing the fact that a

person other than the driver is permitted to travel in the said

vehicle. This Court in Shiva @ Shivashankar v. Rajesh and

Another reported in 2019 (1) KCCR 860 discussed Sections

173(1), 168 and 147 of the Motor Vehicles Act ('the MV Act' for

short), wherein it is observed that, in the said vehicle, while

carrying "Ganesha" idol in a goods vehicle, two workers

accompanied the owner of goods in the vehicle and due to the

negligence of the driver of the vehicle, the accident took place

and one of them was seriously injured and the other died. The

Tribunal awarded the compensation and fastened the liability on

the owner of the vehicle. Hence, the appeals were filed by the

claimants seeking enhancement and owner for fixing the liability

on the insurer. This Court considering the provisions under

Section 147 of the MV Act discussed the liability of the insurer

under the package policy and held that the policy covers the

driver and a person other than the driver who has been carried

in the goods vehicle. When the deceased was proceeding as a

Coolie along with the owner for transporting the "Ganesha" idol,

as per Section 147 of the MV Act, the person who travelled along

with the owner also covers. It is also held that the owner has

not sustained any injury and not made any claim. The very

intent of the legislation is to protect the interest of the owner of

the goods and representative of the owner and the goods under

the provisions of Section 147 of the MV Act. It is also observed

that the wisdom and intent of the legislature is not kept in mind

while considering the case and circumstances. Under the

circumstances, this Court comes to the conclusion that the

person, who was travelling in the goods auto as an Hamali is

also covered under the package policy. Hence, the very

contention of the Insurance Company that they are not liable to

pay the compensation, cannot be accepted. I have already

pointed out that the Insurance Company has not proved the fact

that the deceased was proceeding as a passenger as contended.

Hence, I answer point No.1 in the negative.

Point Nos.2 and 3:-

12. Insofar as the quantum of compensation is

concerned, it is not in dispute that the Tribunal has taken the

income of the deceased at Rs.3,750/- per month which is a

coolie @ Rs.125/- per day. The claimants have contended that

the deceased was earning an amount of Rs.150/- per day and

for 30 days, his income would come to Rs.4,500/- per month.

Learned counsel appearing for the claimants also would

vehemently contend that the claimants are the wife and two

children of the deceased. Though they claims that the deceased

was aged about 45 years, on perusal of the documentary

evidence, it is clear that in the inquest mahazar, the age of the

deceased is mentioned as 50 years and so also in the

postmortem report, the age of the deceased is mentioned as 50

years. The very contention of the Insurance Company that when

the deceased was working as an Hamali, the compensation

ought to have been awarded under the Workmen's

Compensation Act and not by applying the provisions under the

MV Act.

13. Learned counsel appearing for the

claimants/appellants submits that the petition was filed under

Section 166 of the MV Act. On perusal of the statement of

objections filed by the Insurance Company, no such defence has

been taken therein that the claimants ought to have approached

the Workmen's Compensation Commissioner. Except taking

defence that the deceased travelled as a passenger and for the

first time, the said ground has been urged in the appeal but

there are no pleadings with regard to that aspect. When such

being the case, the very contention of the Insurance Company,

cannot be accepted. It is also important to note that the

claimants are also claiming that the income of the deceased was

Rs.150/- per month. The notional income for the year 2008 is

Rs.4,500/- as claimed by the claimants. Hence, the claimants

are not claiming any exorbitant compensation.

14. Having considered the materials on record, this

Court held that the deceased was aged about 50 years and

hence, the relevant multiplier applicable would be 13.

Considering the age of the deceased being between the age

group of 41 to 50, 25% i.e., Rs.4,500x25%=Rs.1,125/- of the

income has to be added, if so added i.e.,

(Rs.4,500+Rs.1,125=Rs.5,625/-), it would come to Rs.5,625/-.

Since the deceased has left behind the three dependents, who

are the wife and two children, 1/3rd of his income i.e.,

(Rs.5,625x1/3=Rs.1,875/-) has to be deducted towards personal

expenses. After deducting 1/3rd of the income i.e., (Rs.5,625-

Rs.1,875=Rs.3,750/-), it would come to Rs.3,750/-. The

compensation under the head of 'loss of dependency' is

calculated as under:-

Rs.3,750x12x13=Rs.5,85,000/-.

15. The claimants are also entitled for an amount of

Rs.70,000/- under other conventional heads in view of Pranay

Sethi's case. Accordingly, an amount of Rs.70,000/- is awarded

on the other conventional heads. Thus, in all the claimants are

entitled for a sum of Rs.6,55,000/- with interest at the rate of

6% per annum from the date of petition till realization as against

Rs.4,74,000/-.

16. In view of the discussion made above, I pass the

following:-

ORDER

(i) Both the appeals are allowed in part.

            (ii)    The judgment and award passed by the
                    Tribunal    is   modified    granting    the

compensation of Rs.6,55,000/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.4,47,400/-.

(iii) Respondent-Insurance Company is directed to deposit the amount within six weeks' from today.

(iv) The amount in deposit, if any, is ordered to be transmitted to the Tribunal forthwith.

(v) Registry to transmit the Trial Court Records forthwith to the concerned Tribunal.

Sd/-

JUDGE

PYR