Karnataka High Court
Shri.Mahantesh S/O. Sangappa ... vs Smt.Netharavati W/O. Basayya ... on 25 February, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2022
BEFORE
R
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.100096/2019 (MV)
BET WEEN
SHRI MAHANT ESH,
S/O SANGAPPA B ANNIMATTI,
AGE: MAJ OR,
OCC: OWNER TIPPER LORRY
BEARING REG.NO.KA-27/A- 8377,
R/O HULAYAL,
TQ. & DIST: HAVERI- 581110.
...APPELLANT
(BY SRI B .M.PATIL, ADVOCATE)
AND
1. SMT.NETHARAVATI,
W/O B ASAYYA KU LKARNI,
AGE: 29 YEARS, OCC: HOU SEHOLD,
R/O GU TTAL,
TQ. & DIST: HAVERI- 58110 8.
2. SHRI B ASAY YA,
S/O GU RUSHANTAYYA KULKARNI,
AGE: 32 YEARS, OCC: COOLIE,
R/O GU TTAL, TQ. & DIST : HAVERI- 581108.
3. SHRI B ASAY YA,
S/O CHANNAB ASAY YA KU LKARNI,
AGE: 26 YEARS, OCC: DRIVER,
R/O GU TTAL, TQ. & DIST : HAVERI- 581108.
4. DIV IS IONAL MANA GER,
CHOLAMANDALAM M.S.GENERAL
INSURANCE CO.LTD.,
KALB U RGI SCAWARE,
2
DESHPANDE NAGAR,
HUBB ALLI-5800 29.
...RESPONDENTS
(BY SRI I.C.PATIL, ADVOCAT E FOR R3;
SRI SUB HASH J.BADDI, ADVOCATE FOR R4;
NOTICE TO R1 AND R2 SERVED)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 03.10.2 018 PASS ED IN
MVC No.218/2015 ON THE FILE OF THE ADDIT IONA L
SENIOR CIVIL JU DGE AND MEMB ER, MOT OR ACCIDENT
CLAIMS TR IB U NAL, HAVER I, AWARDING COMPENSAT ION OF
`5,90,000/- WIT H INTEREST AT 6% P.A. FROM THE DAT E OF
PET IT ION T ILL ITS REALIZ ATION.
THIS A PPEA L HA VING BEEN HEAR D AND RESERVED
FOR JU DGMENT ON 16. 02.2 022 COMING ON FOR
PRONOUNCEMENT OF JU DGMENT , THIS DAY THE COU RT
DEL IVERED THE F OLLOW ING:
JUDGMENT
This appeal is preferred by the owner of the
offending tipper lorry bearing registration No.KA-27/
A-8377 ag ainst the judgment and award dated
03.10.2018 p assed by the Motor Accid ent Claims
Tribunal, Haveri (hereinafter referred to as the
'Tribunal', for brevity) in MVC No.218/2015 on the
ground of liability as well as on the quantum of
compensation awarded by the Tribunal.
2. Though this appeal is listed for admission,
with the consent of the learned counsels appearing
for the parties, the appeal is taken up for final
disposal. The parties to this appeal are referred to by
their rankings assigned to them before the Tribunal
for the sake of convenience.
3. Brief facts of the case that would be
relevant for the purpose of disposal of this appeal
are:
On 23.11.2014 at about 8.00 a.m. the claimant
No.1 herein after washing cloths in Gokatti, was
returning home along with her minor daughter baby
Kalpana, aged about 2 years and when they reached
near the building of Midiyappa Hindinmani on Guttal-
Belavigi road, the offend ing tipp er lorry bearing
registration No.KA-27/A-8377 which was driven in a
rash and negligent manner by its driver, dashed
against the minor girl Kalp ana and caused the accident.
Kalp ana who suffered grievous injuries was
immediately shifted to the hospital, but she succumbed
to the injuries in the hosp ital. A criminal case was
therefore reg istered ag ainst the d river of the offending
tipper lorry. It is in this background, the claimants who
are the p arents of d eceased Kalp ana who was aged
about 2 years as on the date of accid ent, had filed a
claim petition under Section 166 of the Motor Vehicles
Act, 1988 (for short, the 'Act') claiming comp ensation
of `6,00,000/- with interest from the d river, owner and
insurer of the offending tipper lorry bearing
registration No.KA-27/A-8377. The said claim petition
was p artly allowed by the Trib unal and a compensation
of `5,90,000/- with interest at 6% per annum from the
date of petition till realization was award ed and the 2 n d
respondent who is the owner of the offending tipper
lorry was held liable to pay the compensation and
according ly he was directed to d eposit the
comp ensation amount before the Tribunal. Being
agg rieved by the same, the owner of the offending
tipper lorry is before this Court.
4. Learned counsel for the appellant-owner of
the offending lorry submits that the Tribunal had
erred in exonerating the liability of the insurer of the
offending lorry, though as on the date of accident,
the insurance policy issued by the 3 r d respondent-
insurer was in force. He submits that the Tribunal
had exonerated the liability of the insurer only on the
ground that the driver of the offending lorry did not
have valid and effective driving licence to drive a
heavy goods vehicle as on the date of accident. He
submits that admittedly the driver of the offending
tipper lorry possessed a light motor vehicle driving
licence and therefore since the unladen weight of the
offending lorry being lesser than 7500 kg, the
offending vehicle is required to be considered as a
light motor vehicle and the liability to pay
compensation is required to be saddled on the insurer
of the offending tipper lorry. He submits that the
unladen weight of the vehicle as could be seen from
Ex.R1 the 'B' register extract is only 6190 kg and
therefore the same is required to be considered as a
light motor vehicle though the said vehicle is
categorized as heavy goods vehicle. In support of his
contention, he has relied upon the judgment of this
Court delivered by a co-ordinate bench in the case of
United India Insurance Co.Ltd., V/s
Lakshmamma and others reported in ILR 1996
Karnataka 2220 and also the judgment of another
co-ordinate bench of this Court rendered in MFA
No.6284/2013 c/w MFA No.11421/2012 (MV) disposed
off on 02.08.2021 in the case of Sarasa Bhandarthi
and others V/s Smt.Geetha and another. He
submits that the Tribunal has not properly
appreciated the judgment of the Hon'ble Supreme
Court in the case of Mukund Dewangan V/s
Oriental Insurance Company Limited reported in
(2017) 14 SCC 663, which has resulted in
erroneously exonerating the insurer from its liability.
He also submits that the compensation awarded to
the claimants is on the higher side. He submits that
the deceased was aged about 2 years as on the date
of accident and therefore the claimants are entitled
only for a sum of `2,75,000/- as compensation
having regard to the judgment of the Hon'ble Apex
Court in the case of Rajendra Singh and others
V/s National Insurance Company Limited and
others reported in (2020) 7 SCC 256.
5. Per contra, learned counsel appearing for
the insurer of the offending vehicle submits that
admittedly the driver of the lorry did not possess
licence to drive heavy goods vehicle and as on the
date of accident, he was only holding a light motor
vehicle driving licence. The vehicle in question is a
transport vehicle and the gross weight of the vehicle
is much more than 7500 kg as could be seen from
Ex.R1. Therefore, the Tribunal has rightly exonerated
the insurer from its liability. He submits that this
question has been considered by the Hon'ble
Supreme Court in the case of Mukund Dewangan
and it has been held that the transport vehicles of
which gross weight is more than 7500 kg cannot be
considered as a light motor vehicle.
6. The claimants who have been served in the
matter have remained unrepresented before this
Court.
7. I have carefully considered the arguments
addressed on both sides and also perused the
material on record.
8. The undisputed facts of the case are that in
the road traffic accident that had occurred on
23.11.2014, wherein the offend ing tipp er lorry bearing
registration No.KA-27/A-8377 was involved, the minor
daughter of the claimants b ab y Kalp ana, ag ed about 2
years had died . It is not in disp ute that the offending
tipper lorry which was involved in the accident was
duly insured with the 3rd respondent-Insurance
Comp any and as on the d ate of accident, the said
policy was in force. The Trib unal had exonerated the
liability of the insurer to p ay the compensation on the
ground that the driver of the offending lorry did not
possess valid and effective d riving licence to d rive a
heavy goods vehicle as on the date of accident. The
vehicle in question was a tipper lorry and the material
on record would go to show that the unlad en weight of
the said vehicle which is categorized as a heavy goods
vehicle is 6190 and the gross weight of the said vehicle
is 16200 kg .
9. Learned counsel for the app ellant has
submitted that since the unladen weight of the vehicle
involved in the accid ent, though it is a heavy g oods
vehicle, is less than 7500 kg and therefore the same
has to b e considered as a light motor vehicle and
according ly the insurer of the offend ing vehicle is
required to b e saddled with the liab ility to p ay the
comp ensation. The question whether transport vehicle
and omnib us, the gross vehicle weig ht of either of
which does not exceed 7500 kg would be a light motor
vehicle and the hold er of licence to drive class of light
motor vehicle as provid ed in Section 10(2)(d) would be
comp etent to d rive a transport vehicle or omnibus, the
gross vehicle weight of which does not exceed 7500 kg
was referred to larg er b ench by a division b ench of the
Hon'b le Supreme Court in the case of Mukund
Dewangan V/s Oriental Insurance Company
Limited and others reported in (2016) 4 SCC 298
and the Hon'ble Sup reme Court in the case of Mukund
Dewangan V/s Oriental Insurance Company
Limited reported in (2017) 14 SCC 663 while
answering the said question has held that a transport
vehicle and omnibus, gross vehicle weight of either of
which does not exceed 7500 kg would be a light motor
vehicle and the holder of d riving licence to drive class
of light motor vehicle as provided in Section 10(2)(d) is
comp etent to d rive a transport vehicle or omnibus, the
gross vehicle weight of which does not exceed 7500 kg.
Therefore, there is no merit in the contention of the
learned counsel for the app ellant that the Tribunal had
erred in exonerating the liability of the insurer and that
the Tribunal had not p rop erly app reciated the judgment
of the Apex Court in the case of Mukund Dewangan
V/s Oriental Insurance Company Limited reported
in (2017) 14 SCC 663. The vehicle in question which
is categorized as a heavy goods vehicle comes within
the meaning of Section 2(16) of the Motor Vehicles Act,
1988 as the g ross vehicle weight und isputedly exceeds
12000 kg. Under the circumstances, the Tribunal was
fully justified in hold ing that the offending vehicle was
used in violation of the terms and conditions of the
policy and therefore the insurer of the offending
vehicle was not liable to pay the compensation. I find
no illeg ality or irregularity with reg ard to the finding
record ed by the Trib unal insofar as it relates to
exonerating the liab ility of the insurer and hold ing the
insured/owner of the offend ing vehicle liab le to p ay the
comp ensation.
10. The judgment in the case of Lakshmamma
and others rep orted in ILR 1996 Karnataka 2220
was rendered by the co-ordinate bench of this Court
much p rior to the judgment of the Hon'b le Supreme
Court in the case of Mukund Dewangan (supra). The
Hon'b le Supreme Court in the case of Mukund
Dewangan has held that a transport vehicle, the gross
weight of which does not exceed 7500 kg would be a
light motor vehicle and the hold er of the driving licence
to drive class of light motor vehicle as provided und er
Section 10(2)(d) is competent to drive a transport
vehicle, the gross vehicle weight does not exceed 7500
kg. The word "gross vehicle weight" as defined in
Section 2(15) of the Act means, in respect of any
vehicle, the total weight of the vehicle and load
certified and reg istered by the registering authority as
permissible for that vehicle. Ex.R1 which is the 'B'
register extract of the offending vehicle would go to
show that the registered laden weight of the said
vehicle is 16200 kg which is much more than 7500 kg.
Therefore, the gross weight of the offend ing vehicle if
consid ered as 16200 kg, the said vehicle is req uired to
be consid ered as a heavy goods vehicle in view of
Section 2(16) of the Act, which states that any goods
carriag e the gross weight of which exceeds 12000 kg
would be considered as heavy goods vehicle. In view of
the judgment of the Hon'ble Sup reme Court in the case
of Mukund Dewangan, the judgment in the case of
Lakshmamma and others reported in ILR 1996
Karnataka 2220 is therefore no more a good law.
11. In the case of Sarasa Bhandarthi and
others, the co-ordinate b ench of this Court having
taken into consideration that the driver of the
offending vehicle was having a driving licence to drive
light motor vehicle and also heavy goods transport
vehicle has held that in the said case that there was no
breach of terms and conditions of the policy. However
in the case on hand, the driver of the offend ing vehicle
admittedly possessed only a driving licence to drive
light motor vehicle and he does not possess driving
licence to d rive heavy transport vehicle and therefore
the judgment in the case of Sarasa Bhandarthi and
others cannot be mad e app licable to the p resent case.
12. Learned counsel for the appellant has also
submitted that the compensation awarded by the
Tribunal to the claimants is on the higher sid e. The
deceased girl was ag ed about 2 years as on the d ate of
accid ent. In respect of a non-earning memb er, the
comp ensation was being award ed based on the notional
income fixed und er Section 163-A of the Act which is at
`15,000/- per annum. Though the Hon'ble Sup reme
Court in the cases of Puttamma and others V/s
K.L.N arayana Reddy and another reported in (2013)
15 SCC 45 and R.K.Malik and another V/s Kiran Pal
and others reported in (2009) 14 SCC 1 had
observed that the notional income fixed under Section
163-A of the Motor Vehicles Act was required to be
enhanced and increased, the same continued to exist
without any amendment since 14.11.1994. Therefore,
the Hon'ble Sup reme Court subsequently in the case of
Kishan Gopal and another V/s Lala and others
reported in (2014) 1 SCC 244, fixed the notional
income at `30,000/- per annum in resp ect of a child
who had died in the accid ent at the ag e of 10 years.
Subseq uently in the case of Kurvan Ansari alias
Kurvan Ali and another V/s Shyam Kishore Murmu
and another, Civil Appeal No.6902 of 2021 d isposed of
on 16.11.2021, in a case where the d eceased child was
aged about 7 years considering the earlier judgments
in the case of R.K.Malik and Kishan Gopal, the
Hon'b le Sup reme Court has held that the notional
income is required to be increased taking into
consid eration the inflation, d evaluation of rupee, cost
of living etc., and accord ing ly fixed the notional income
at `25,000/- p er annum in the said case and after
applying the multiplier of '15' as p rescrib ed und er
Schedule II of Section 163-A of the Act, a
comp ensation of `3,75,000/- was award ed toward s loss
of dependency. Even in the p resent case, the same
principle is required to be applied and a compensation
of `3,75,000/- is therefore awarded to the claimants
towards loss of dep end ency. Towards loss of filial
consortium, the claimants are entitled for a sum of
`40,000/- each and towards funeral expenses, they are
entitled for another sum of `15,000/-. Therefore
altogether they are entitled for a compensation of
`4,70,000/- as ag ainst `5,90,000/- award ed by the
Tribunal. The compensation awarded to the claimants
shall carry interest at 6% per annum from the date of
petition till realization.
13. The judgment of the Hon'b le Sup reme Court
in the case of Rajendra Singh, which is relied upon by
the learned counsel for the app ellant has been taken
into consid eration in the case of Kurvan Ansari.
Consid ering the fact that the jud gments in Puttamma
and others, R.K.Malik and others and Kishan Gopal
and another were rendered taking into account the
inflation, d evaluation of the rupee and the cost of
living , the Hon'ble Sup reme Court in the case of
Kurvan Ansari has not followed the judgment in the
case of Rajendra Singh.
14. The appellant who is the owner of the
offending tipper lorry is directed to deposit the balance
amount of compensation with interest b efore the
Tribunal within a period of six weeks from the date of
receipt of certified copy of this order.
15. The amount in deposit before this Court is
directed to be transferred to the Tribunal for the
purpose of disbursement. The order passed by the
Tribunal insofar as it relates to apportionment,
disbursement and deposit etc., remains unaltered.
The Miscellaneous First Appeal is accordingly partly
allowed.
Sd/-
JUDGE
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