The Divisional Manager vs Kantabai And Ors
2022 Latest Caselaw 1522 Kant

                             1


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 02ND 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.202503/2018 (MV)

BETWEEN:

The Divisional Manager,
IFFCO-TOKIO Geneal Ins. Co. Ltd.,
Sudeva Plaza, Opp: Laxmi temple,
Dajibanpeth, Hubli,
(Through Authorised Signatory)
                                            ... Appellant
(By Sri.Subhash Mallapur, Advocate)

AND:

1.     Kantabai W/o Basayya Karadalli,
       Age: 52 years, Occ: Household,

2.     Manjula D/o Basayya Karadalli,
       Age: 29 years, Occ: Student,

3.     Madhu D/o Basayya Karadalli,
       Age: 26 years, Occ: Student,

4.     Vayau Kumar S/o Basayya Karadalli,
       Age: 25 years, Occ: Student,
                              2


      All R/o H.No.) to C/A/362, U K P Camp,
      Bheemarayan gudi, Tq. Shahapur,
      Dist. Yadgir-585202.

5.   Tukaram S/o Gemu,
     Age: 32 years, Occ: Driver,
     R/o Kalnoor, Tq. & Dist: Kalaburagi-585102
     (Owner of Auto No.KA-32/B-3279)
                                          ... Respondents

(Sri. Ganesh Naik, Advocate for R1 to R4;
 Sri. Jadhav Baburao, Advocate for R5)

     This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to allow the
appeal and consequently set aside the judgment and
award dated 04.09.2018 passed by the Senior Civil Judge
& MACT, Shahapur in MVC No.56/2016.

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

                        JUDGMENT

The insurance company has preferred this appeal,

assailing the judgment and award dated 04.09.2018

passed by the Senior Civil Judge & MACT, Shahapur

(hereinafter referred to as 'the Tribunal' for short) in MVC

No.56/2016 on the ground of liability as well as quantum.

2. The claimants filed a claim petition before the

Tribunal, seeking compensation of Rs.69,48,456/- on

account of death of one Basayya S/o Gurayya Karadalli,

who died in a fatal road traffic accident, contending that on

06.02.2016, when the deceased was returning from his

work in an Auto bearing No.KA-32-B-3279, the driver of

the auto drove the same in a rash and negligent manner

and lost control over the vehicle, as a result of which the

auto turned turtle on the left side of the road and due to

the impact of the accident, the said Bassayya died in the

hospital. The deceased was working as a FDA in Irrigation

Department, B.Gudi and the claimants are the wife and

children of the deceased. The deceased was hale and

healthy at the time of the accident and was drawing salary

of Rs.39,188/- per month and the entire family of the

deceased was depending upon the income of the deceased.

3. Pursuant to issuance of summons by the

Tribunal, respondent No.1 appeared, but did not choose to

file any objection. Respondent No.2-insurance company

also appeared and filed its objections contending that the

driver of the auto did not possess valid and effective

driving licence as on the date of the accident.

4. On the basis of the pleadings, the Tribunal

framed the following:

ISSUES

1. Whether petitioners prove that, the deceased Basayya gurayya Karadalli sustained grievous injuries over the body and died as contended in the petition due to the rash and negligence of the driver of the offending vehicle passenger Auto bearing Reg.No.KA-32- B-3279 in the accident occurred on 06.02.2016 at about 06.30 PM on the ring road of Gulbarga near Shahabad Cross?

2. What the 2nd respondent proves that the driver of the offending vehicle bearing No.KA-32-B-3279 did not possess the valid and effective Driving Licence at the time of accident?

3. Whether the petitioners are entitled for compensation? If so, how much and from whom?

4. What order or award?

5. To prove their case, claimant No.1-wife of the

deceased examined herself as PW.1 and got marked

documents at Exs.P1 to P13. On behalf of respondents,

respondent No.1-owner of the auto examined himself as

RW.1 and the insurance company has examined its Legal

Officer as RW.2 and got marked documents at Exs.R1 to

Ex.R6.

6. The Tribunal, considering the pleadings,

evidence and material on record held that the accident

occurred due to the rash and negligent driving of the driver

of the auto bearing No.KA-32-B-3279 and fastened the

liability on the insurance company and awarded

compensation of Rs.35,37,780/- with interest at 6% per

annum under the various heads.

7. Aggrieved by the compensation awarded by

the Tribunal and fastening the liability on the insurance

company, the present appeal is filed.

8. Heard the learned counsel for the appellant-

insurance company and the learned counsel for respondent

Nos.1 to 4/claimants.

9. Sri. Subahsh Mallapur, learned counsel for the

appellant-insurance company would contend that the

owner of the offending vehicle has violated the terms of

the policy and the driver of the auto bearing No.KA-32-B-

3279 did not possess a valid and effective driving licence

to drive the auto as on the date of the accident and also

contended that the compensation awarded by the Tribunal

under different heads is on the higher side.

10. Per contra, Sri. Ganesh Naik, learned counsel

for respondent Nos.1 to 4/claimants would contend that

the judgment and award passed by the Tribunal is just and

proper and does not call for any interference in the hands

of this Court and would contend that the Tribunal has

rightly come to the conclusion that the driver of the auto

was holding valid and effective driving licence as on the

date of the accident and thus, sought to dismiss the

appeal.

11. Having heard the learned counsel for the

parties, the following point would arise for consideration in

this appeal:

Whether the judgment and award passed by the Tribunal require interference?

12. The fact that deceased Basayya succumbed to

the injuries sustained by him in a road traffic accident that

occurred on 06.02.2016 is not in dispute. On the ground of

liability, the insurance company has filed this appeal

contending that the driver of the offending vehicle did not

possess a valid and effective driving licence to drive the

auto as on the date of the accident. The said issue is

covered by the decision of the Hon'ble Apex Court in

Mukund Dewangan vs. Oriental Insurance Company

Limited and Others reported in (2016) 4 SCC 298,

wherein the Hon'ble Apex Court held that a person holding

LMV licence is competent to drive a transport vehicle and

Ex.R1-driving licence clearly establishes the fact that as on

the date of the accident, the driver of the auto possessed

three wheeler cab licence which is valid upto 28.02.2031

and thus, the contention of the insurance company that

the driver of the auto did not possess a valid and effective

driving licence is not acceptable.

13. Insofar as the quantum of compensation is

concerned, a perusal of the impugned judgment and award

would depict that the Tribunal had taken the gross salary

of the deceased at Rs.37,615/- as per Ex.P8-Salary

Certificate; in view of the decision rendered by the Hon'ble

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

Delhi Transport Corporation and another reported in

2009 ACJ 1298, considering the age of the deceased as

59 years has applied the multiplier of 9 and considering

the number of dependents has deducted 1/4th towards

personal expenses of the deceased and accordingly arrived

at Rs.30,46,896/- towards loss of dependency. Further,

the Tribunal has awarded a sum of Rs.3,38,544/- towards

future prospects, Rs.1,00,000/- towards loss of love and

affection, Rs.30,000/- towards funeral expenses and

Rs.22,340/- towards medical expenses. Thus, awarded a

total compensation of Rs.35,37,780/- with interest at the

rate of 6% per annum from the date o filing of the petition

till realization, which appears to be just and proper.

14. In view of the reasons stated supra, we are of

the considered view that the judgment and award passed

by the Tribunal is just and proper and does not call for any

interference. Accordingly, we answered the point raised for

consideration in the negative.

15. In the result, we pass the following

ORDER

i) The appeal is dismissed.

ii) The impugned judgment and award dated 04.09.2018 passed by the Tribunal in MVC No.56/2016 is hereby confirmed.

iii) The appellant-insurance company is directed to pay the compensation awarded by the Tribunal in favour of the claimants and deposit the same with upto date interest within a period of twelve weeks from the date of receipt of a certified copy of this judgment.

iv) The amount in deposit before this Court is directed to be transmitted to the Tribunal for disbursement.

v) Registry is directed to send back the Trial Court records to the Tribunal forthwith.

vi) No order as to costs.

SD/-

JUDGE

SD/-

JUDGE SMP/LG