Shakuntala And Ors vs Md.Javaroddin And Anr
2022 Latest Caselaw 1402 Kant

                              1


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 01ST DAY OF FEBRUARY 2022

                          PRESENT

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                            AND

      THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

              MFA NO.201979/2018 (MV)

BETWEEN:

1.     Shakuntala W/o Santosh Sinde,
       Age: 30 years, Occ: Household,

2.     Shantabai W/o Arjun Sinde,
       Age: 53 years, Occ: Nil,

3.     Arjun S/o Shankreppa Sindhe,
       Age: 57 years, Occ: Nil,

       All R/o Suntan Village,
       Presently residing at Kusnoor Village
       Tq. & Dist. Kalaburagi-585 101.
                                               ... Appellants
(By Sri. Babu H. Metagudda, Advocate)

AND:

1.     Md. Javaroddin S/o Md. Imam Sab,
       Age: Major, Occ: Owner Vehicle,
       R/o H.No.4-412, Chimmaidlai,
       Tq: Chincholi, Dist: Kalaburagi-585 101.
                               2


2.    The Manager, Cholamandalam
      Ms General Insurance Co. Ltd.,
      135/A, IInd Floor, 16th Cross,
      IIIrd Phase, J.P.Nagar,
      Bangalore - 560 078.
                                              ... Respondents

(Sri. S.S. Aspalli, Advocate for R2;
 R1 - served)

      This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to allow the
appeal and modify the judgment and award dated
03.01.2017 passed in MVC No.611/2012 by the I Addl.
Senior Civil judge & MACT at Kalaburagi and enhance the
compensation from Rs.14,06,000/- with 6% interest to
Rs.32,55,000/- with 12% interest and also direct
respondent No.2-insurance company to pay the entire
compensation to the claimant.

      This appeal coming on for Final Hearing this day,
K.S. Hemalekha J., delivered the following:

                         JUDGMENT

The claimants have preferred this appeal under

Section 173(1) of the Motor Vehicles Act, assailing the

judgment and award dated 03.01.2017 passed in MVC

No.611/2012 by the I Addl. Senior Civil Judge and

M.A.C.T. at Kalaburagi (hereinafter referred to as 'the

Tribunal' for short), challenging the fastening of liability on

the owner of the offending vehicle and seeking for

enhancement of compensation.

2. The claimants filed a claim petition under

Section 166 of the Motor Vehicles Act before the Tribunal

claiming compensation of Rs.32,55,000/ - on account of

death of one Santosh S/o Arjun Sindhe, contending that on

25.02.2012 at about 8.00 p.m., when the deceased along

with his friend Pandu was proceeding towards their village

Jattur on a motorbike near Nidgunda village road, a three

wheeler picked vehicle bearing Reg.No.KA.32/B.1588 came

from opposite direction in a rash and negligent manner

and dashed against the vehicle of the deceased, due to

which he sustained grievous injuries and died on the spot.

The claimants are the wife and the parents of the

deceased. The deceased was aged about 25 years and

practicing as a private medical practitioner (RMP) and was

earning Rs.10,000/- per month and the claimants were

solely depending upon the income of the deceased.

3. On issuance of notice by the Tribunal,

respondent Nos.1 and 2 appeared. Respondent No.1-the

owner of the vehicle did not choose to file any objection.

4. Respondent No.2-inurnace company filed

objections denying the accident and the death of Santosh

occurred due to the accident and also contended that the

three wheeler pickup vehicle was not involved in the

accident and the vehicle was falsely implicated in the

accident. It is also contended that the driver of three

wheeler pickup vehicle was not holding valid and effective

driving licence at the time of accident, as the vehicle is

goods carrying vehicle being a transport vehicle and the

driver of the vehicle was holding licence for LMV i.e., non-

transport vehicle which is valid from 2.11.2010 to

1.11.2030 and as such contended that there is violation of

the policy conditions by the owner of the vehicle and

sought to absolve the liability.

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

the Tribunal has framed the following:

ISSUES

1. Whether the petitioners prove that on 25.02.2012 at about 8.00 PM near Nidgnda village, the deceased Santosh S/o Arjun Sindhe met with an accident and died due to the rash and negligent driving of the driver of the Ape Piaggio vehicle bearing Reg.No.KA-32/B-1588?

2. Whether the petitioners prove that they are entitled for the compensation? If so, how much from whom?

3. What award or order?

6. In order to substantiate their case, claimant

No.1-the wife of the deceased Santosh examined herself

as PW.1 and got marked documents at Exs.P1 to P8. On

the other hand, respondent No.2-insurance company

examined its Asst. Manager as RW.1 and got marked

documents at Exs.R1 and R2.

7. On the basis of the pleadings, evidence and

material on record, the Tribunal has awarded a

compensation of Rs.14,06,000/- along with interest at 6%

per annum from the date of petition till realization,

fastening the liability on respondent No.1-owner of the

offending vehicle and absolved the liability of respondent

No.2 insurance company.

8. Being aggrieved by the judgment of the

Tribunal absolving the liability of the insurance company,

the present appeal is filed by the claimants.

9. Heard the learned counsel for the

appellants/claimants and the learned counsel for

respondent No.2-insurance company and perused the

material on record.

10. Sri. Babu H. Metagudda, learned counsel for

the appellants would contend that the Tribunal has

fastened the liability on the owner of the offending vehicle

on the ground that on the date of the accident, the driver

of the pickup van was not holding valid and effective

driving licence to drive transport vehicle and was holding

driving licence only for non-transport vehicle and as such

violated the terms and conditions of the policy, which is

contrary to the settled proposition of law and sought to

contend that the liability has to be fastened on the

insurance company. Insofar as the quantum of

compensation is concerned, he would contend that the

income of the deceased assessed by the Tribunal is much

on the lower side and needs to be enhanced.

11. Per contra Sri. S.S. Aspalli, learned counsel for

respondent No.2-insurance company would contend that

the fastening of liability on the owner of the offending

vehicle is just and proper and the compensation awarded

by the Tribunal is just and proper and the manner in which

the Tribunal has assessed the compensation would not call

for any interference.

12. Having heard the learned counsel for the

parties, the following points would arise for consideration

in this appeal:

1) Whether the Tribunal was justified in absolving the liability of the insurance company on the ground that the driver of the three wheeler pickup vehicle was not possessing valid and effective driving licence to drive a transport vehicle?

2) Whether the judgment and award passed by the Tribunal requires interference insofar as quantum of compensation is concerned?

Point No.1 :

13. The time, date and occurrence of the accident

and negligence of the driver of the offending vehicle are

not in dispute. The dispute is regarding fastening the

liability on the owner of the offending vehicle and

absolving the liability of the insurance company. The

Tribunal, while fastening the liability on the owner of the

offending vehicle has held that the driver of the three

wheeler pickup vehicle was not holding valid and effective

driving licence to drive transport vehicle and was holding

driving licence to drive non-transport LMV only.

14. In this regard, it is relevant to refer to the

decision of the Hon'ble Apex Court in the case of Mukund

Dewangan vs. Oriental Insurance Company Limited

and Others reported in (2016) 4 SCC 298, wherein at

para 57 it is held as under:

"57. It was also submitted that Section 3 of the MV Act, 1988 from the very beginning provided about the transport vehicle. However, classes of vehicle classified in section 10(2) were light motor vehicle, medium goods and passenger motor vehicle, and heavy goods and passenger vehicle. The change brought about in 1994 was substitution of transport vehicle in place of medium and heavy goods and passenger vehicles and in view of the decisions of this Court in Ashok Gangadhar, Annappa Irappa Nesaria and Kulwant Singh, a person holding LMV licence was competent to drive a transport vehicle. The provisions of "light motor vehicle" in Section 10(2)(d) remains intact. It has not been amended. It was also submitted that the forms which have been amended would not govern the interpretation of the provisions of Act; whereas the intendment of the Rule 8 inserted in 2007 was that type of vehicle could be added. What is the effect and purpose of insertion of Rule 8 in 2007, has not been taken into consideration. The form has to be interpreted in tune with provisions of the Act and Rules. The object of the Act

and Amendment Act 54 of 1994 has also not been taken into consideration in any of the decisions, and the effect of different syllabus having been prescribed for "light motor vehicle", heavy and medium vehicles was also not placed for consideration.

15. In view of the settled proposition as held in

Mukund Dewangan's case supra, the person holding LMV

licence was competent to drive a transport vehicle. In view

of the settled proposition, the liability fastened on the

owner of the offending vehicle by the Tribunal is not just

and proper and hence, the liability is shifted on the

insurance company to pay the compensation. Accordingly,

point No.1 is answered in the negative.

Point No.2:

16. A perusal of the impugned judgment and

award insofar as the quantum of compensation would

indicate that the Tribunal has taken the annual income of

the deceased at Rs.72,000/- and has awarded a sum of

Rs.12,96,000/- towards loss of dependency, which is just

and proper. Further, as per the judgment of the Hon'ble

Apex Court in the case of Sarla Verma and others V.

Delhi Transport Corporation and another reported in

2009 ACJ 1298, the compensation awarded by the

Tribunal under other heads is also just and proper, which

does not require any interference by this Court.

Accordingly, point No.2 is answered in the negative and

against the claimants.

17. In the result, we pass the following

ORDER

i) The appeal is allowed in part.

ii) The impugned judgment and award dated 03.01.2017 passed in MVC No.611/2012 by the Tribunal only insofar as it relates to absolving the insurance company of its liability to pay the compensation and fastening the liability on respondent No.1- owner of the offending vehicle is hereby set aside.

iii) Respondent No.2-insurance company is held liable to pay the compensation as awarded by the Tribunal.

iv) Respondent No.2-insurance company shall deposit the compensation amount with interest within a period of four weeks from the date of receipt of a certified copy of this judgment.

v) The quantum of compensation and interest awarded by the Tribunal, however remains unaltered.

vi) No order as to costs.

vii) Trial Court records to be sent back to the Tribunal.

Sd/-

JUDGE

Sd/-

JUDGE SMP/LG