Karnataka High Court
Rajiyabanu W/O Late Mahemood Mnay ... vs Shabbir S/O Abid Hussain And Ors on 17 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.31239/2013 (MV)
BETWEEN:
RAJIYABANU
W/O LATE MAHEMOOD MINAY PYARE
AGED ABOUT 48 YEARS
OCC: HOUSEHOLD R/O RAWOOR
TQ. CHITTAPUR, DIST. GULBARGA
NOW RESIDING AT H.NO.9-21,
SHAHABAZAR NAKA, ALAND ROAD,
GULBARGA-585102
... APPELLANT
(BY SRI V.N.MISKIN, ADVOCATE)
AND:
1. SHABBIR S/O ABID HUSSAIN
AGE: 46 YEARS, OCC: DRIVER
R/O LAXMI GANJ MAIN ROAD,
SHAHABAD, TQ. CHITTAPUR
DIST. GULBARGA-585228
2. EHJETES SHAMODDIN
S/O AZEEMODDIN
AGE: MAJOR, OCC: OWNER OF LORRY
BEARING ITS REG.NO.KA-32/9350
R/O H.NO.26/56
NEAR ACC RAILWAY GATE,
SHAHABAD, TQ. CHAITTAPUR
DIST. GULBARGA-585228
2
3. NATIONAL INSURANCE CO., LTD.,
THROUGH ITS DIVISIONAL OFFICE,
P.B.NO.88, BILGUNDI COMPLEX
STATION ROAD, GULBARGA-585101
... RESPONDENTS
(BY SRI SHARANABASAPPA M. PATIL, ADVOCATE FOR R3;
NOTICE TO R1 & R2 - SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MV ACT PRAYING TO ALLOW THE
APPEAL BY MODIFYING THE IMPUGNED JUDGMENT AND AWARD
DATED 02.07.2012 PASSED BY III-ADDITIONAL SENIOR CIVIL
JUDGE AND MACT, GULBARGA, IN MVC NO.398/2011 AND
CONSEQUENTLY BE PLEASED TO ENHANCE THE
COMPENSATION FROM RS.3,62,000/- TO RS.14,25,000/- WITH
INTEREST @ 12% PER ANNUM FROM THE DATE OF PETITION
TILL ACTUAL REALIZATION.
THIS APPEAL COMING ON FOR HEARING, 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) is filed by the claimant being aggrieved by
the judgment and award dated 02.07.2012 passed in
MVC No.398/2011 by III-Additional Senior Civil Judge
and Motor Accident Claims Tribunal at Gulbarga.
2. For the sake of convenience, parties are
referred to as per their ranking before the Claims
Tribunal. Appellant is the petitioner and respondents
are the respondents before the Tribunal.
3. Facts giving rise to the filing of the appeal
briefly stated are that on 27.12.2010 at about 00.30
hours the deceased-Mehemood Minya was proceeding
towards his house on his motorcycle bearing
registration No.KA.02/EE-1477 (Spirit) and son of the
deceased by name Younus was also proceeding to his
house on motorcycle bearing registration
No.KA.32/8431 after completion of their work. When
the deceased was going near Mohan Sure Polishing
Industries on his motorcycle, one lorry bearing
registration No.KA.32/9350 driven by respondent No.1
in a high speed and in a rash and negligent manner
dashed to the motorcycle of the deceased. Due to
which, deceased-Mehemood Minya fell down and
sustained grievous injuries and succumbed to the
injuries.
3.1. Petitioner being the legal representative of
the deceased filed claim petition under Section 166 of
the Act seeking compensation for the death of the
deceased-Mehemood Minya, in a road traffic accident.
3.2. Respondent No.3 filed written statement
denying the allegations made in the claim petition and
also contended that the driver of the offending vehicle
was not possessing valid and effective driving licence
as on the date of the accident. It also denied the age,
income and occupation of the deceased. It is also
contended that the owner of the vehicle has violated
the terms of the policy. Hence, respondent No.3 is
not liable to pay compensation and prayed to dismiss
the claim petition.
4. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The petitioner in order to
prove her case, examined herself as PW-1 and got
marked the documents as Ex.P1 to Ex.P7. On behalf
of the respondents, respondent Nos.1 and 2 were
examined as RWs.1 and 2, official of RTO was
examined as RW.3 and official of respondent No.3 was
examined as RW.4 and got marked the documents as
Exs.R1 to R7. The Tribunal after recording the
evidence and considering the material on record, held
that the deceased-Mehemood Minya died in the
accident which occurred due to rash and negligent
driving of the driver of the offending vehicle and
further recorded finding that the driver of the
offending vehicle was not possessing valid and
effective driving licence as on the date of the accident
and consequently, allowed the claim petition in part
against respondent Nos.1 and 2 and dismissed the
claim petition against respondent No.3 and awarded
compensation of Rs.3,62,000/- with interest at the
rate of 6% per annum from the date of petition till the
date of realization and directed respondent No.2 to
deposit the compensation amount.
5. Petitioner aggrieved by the judgment and
award passed by the Tribunal has filed this appeal
seeking enhancement of compensation and
challenging the fastening of liability on respondent
No.2-owner.
6. Heard the learned counsel for the
appellant-petitioner and learned counsel for
respondent No.3-Insurance company.
7. The learned counsel for the petitioner
submits that the deceased was aged about 49 years
and doing business as a stone supplier and was
earning Rs.10,000/- to Rs.11,000/- per month. The
Tribunal has taken the notional income of the
deceased at Rs.3,000/- per month which is on the
lower side. He submits that the compensation
awarded by the Tribunal is on the lower side. He
further submits that though the Tribunal has recorded
finding that the driver of the offending vehicle was not
possessing valid and effective driving licence as on the
date of the accident, the offending vehicle was insured
with respondent No.3. If there is violation of policy
condition, the Tribunal ought to have directed
respondent No.3 to deposit the compensation amount
and to recover the same from the owner of the
offending vehicle. The Tribunal has committed an
error in directing respondent No.2 to deposit the
compensation amount. On these grounds, he prays to
allow the appeal.
8. Per contra, learned counsel for respondent
No.3-Insurance Company supports the impugned
judgment and award passed by the Tribunal. He
submits that the Tribunal was justified in recording
finding that the respondent Nos.1 and 2 are jointly
and severally liable to pay compensation as the driver
of the offending vehicle was not possessing valid and
effective driving licence as on the date of the accident.
On this ground, he prays to dismiss the appeal.
9. Perused the records and considered the
submissions made by the learned counsel for the
parties.
10. The point that arises for consideration is
with regard to quantum of compensation and liability.
11. It is not in dispute that the deceased-
Mehemood Minya died in a road traffic accident which
occurred due to rash and negligent driving of the
driver of the offending vehicle. In order to prove the
negligence on the part of the driver of the offending
vehicle, the petitioner has produced copy of FIR and
charge sheet and they are marked as Exs.P1 and P3
which discloses that the accident occurred due to rash
and negligent driving of the driver of the offending
vehicle.
12. Insofar as liability is concerned, respondent
No.3 has taken specific defence in the written
statement that the driver of the offending vehicle was
not possessing valid and effective driving licence as on
the date of the accident. The said fact has been
proved by respondent No.3 by leading evidence of
RTO who is examined as R.W.3 wherein he has stated
that the driver was not holding licence on 27.12.2010
to drive heavy transport vehicle. The owner of the
offending vehicle has handed over the vehicle to the
person who did not possess valid and effective driving
licence. Thus, there is violation of policy condition.
Admittedly, as on the date of the accident, policy was
in force. The Hon'ble Apex Court in the case of
Pappu and others Vs. Vinod Kumar Lamba and
another reported in AIR 2018 SC 592 held that if
the person driving the offending vehicle drove the
vehicle without licence, the Insurance company should
pay compensation to the claimants first and inturn,
should recover the same from the owner of the
offending vehicle. In view of the law laid down by the
Hon'ble Apex Court in the above case, respondent
No.3 being the insurer is liable to indemnify the owner
of the offending vehicle and recover the same from
the owner of the vehicle.
13. Perusal of the impugned judgment would
indicate that the petitioner-appellant has contended
that the deceased was doing business as a stone
supplier and was earning Rs.10,000/- to Rs.11,000/-
per month. The petitioner has not tendered any
evidence to prove the income of the deceased before
the Tribunal. In the absence of proof of income, the
notional income of the deceased will have to be taken
as per the chart provided by the Karnataka State
Legal Services Authority. In terms of the chart, for
the accident of the year 2010, the notional income of
the deceased will have to be taken at Rs.5,500/- as
against Rs.3,000/- per month taken by the Tribunal.
To the aforesaid amount, as the deceased was aged
49 years, 25% of the said amount has to be added on
account of future prospects in view of the law laid
down by the Constitution Bench of the Supreme Court
in the case of National Insurance Company
Limited vs. Pranay Sethi and Others reported in
AIR 2017 SC 5157. Thus, the monthly income
comes to Rs.6,875/-. Out of which, considering that
there is one dependent, I deem it appropriate to
deduct 1/3rd of the said income towards personal
expenses of the deceased and therefore, the monthly
income of the deceased comes to Rs.4,583/-. Taking
into account the age of the deceased which was 49
years at the time of accident, multiplier of 13 has to
be adopted as per the judgment of the Hon'ble
Supreme Court in the case of Sarla Verma vs. Delhi
Transport Corporation reported in (2009) 6 SCC
121. Therefore, the petitioner is entitled to a sum of
Rs.7,14,948/- (4,583 x 12 x 13) on account of loss of
dependency as against Rs.3,12,000/- awarded by the
Tribunal.
Further, in view of the law laid down by the
Hon'ble Supreme Court in the case of Magma
General Insurance Company Limited vs. Nanu
Ram Alias Chuhru Ram & Others reported in
(2018) 18 SCC 130, petitioner is entitled to a sum of
Rs.40,000/- towards loss of consortium. In addition,
the petitioner-appellant is entitled a sum of
Rs.15,000/- towards funeral expenses and
Rs.15,000/- under the head of loss of estate.
14. Thus, in all, the petitioner is entitled to a
sum of Rs.7,84,948/- as against Rs.3,62,000/-
awarded by the Tribunal.
15. In view of the above discussion, I proceed
to pass the following:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award
passed by the Tribunal is modified.
iii. The petitioner is entitled to an
enhanced compensation of
Rs.4,22,948/- with interest at the rate
of 6% per annum from the date of
petition till the date of realization.
iv. Respondent No.3/insurance company
is directed to deposit the entire
compensation amount first and then
recover the same from the owner of
the offending vehicle, in accordance
with law.
v. Respondent No.3 is directed to
deposit the entire compensation
amount with interest before the
Tribunal within a period of eight
weeks from date of the receipt of
certified copy of this judgment.
Sd/-
JUDGE
NB*
