Karnataka High Court

Smt. Rajamma vs The Manager on 24 May, 2022

Bench: H T Prasad

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 24th DAY OF MAY 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.1333 OF 2018(MV)

BETWEEN:

1.     Smt.Rajamma,
       W/o.Srinivasa,
       Aged about 63 years,
       Occupation: House Wife,
       Residing at D.No.224,
       17th 'C' Main Road,
       Sector - 4, HSR Layout,
       Bengaluru - 560 102.

2.     Sri Chandrashekar,
       S/o.Late Srinivas,
       Aged about 43 years,
       Occupation: Private Co.Employee,
       Residing at D.No.224,
       17th 'C' Main Road,
       Sector - 4, HSR Layout,
       Bengaluru - 560 102.

3.     Smt.Sudha,
       W/o.Ramu,
       D/o.Late Srinivasa,
       Aged about 39 years,
       Occupation: House Wife,
       Residing at J.P.Nagar,
       Bangalore.
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4.     Smt.Anusuya,
       W/o.Kishor Kumar,
       D/o.Late Srinivasa,
       Aged about 36 years,
       Occupation: House Wife,
       Residing at Marathahalli,
       Bengaluru
       And also residing at
       Mense, Bharathinagar Post,
       Sringeri Taluk,
       Chikmagalur Dist. - 577 101.           ... Appellants

(By Sri Sundaresh H.C., Advocate)

AND:

1.     The Manager,
       United India Insurance Co.
       Chikkamagaluru - 577 101.

2.     Sri Aruna,
       S/o.Shekara Poojari,
       Aged about 30 years,
       Driver & Owner of the
       Vehicle bearing registration No.
       KA-19/6624,
       R/o.Anegudda, Sankalapura,
       Vidyaranyapura Village,
       Sringeri Taluk - 577 126.          ... Respondents

(By Sri S.Krishna Kishore, Advocate for R1:
Notice to R2 served and unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:24.10.2017 passed
in MVC No.540/2014 on the file of the 2nd Additional
Senior Civil Judge & JMFC, Chikkamagaluru, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.
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      This MFA, coming on for hearing, this day, this
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) has been filed by the claimants being

aggrieved by the judgment dated 24.10.2017 passed

by the Motor Accident Claims Tribunal,

Chikkamagaluru in MVC No.540/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 13.05.2014 at about 10.45

a.m. the deceased Srinivas was proceeding on TVS XL

motorcycle bearing registration No.KA-01/ED-9204

along with a pillion rider near Vishwanathapura, Koppa

Taluk. At that time, a Tata 407 Van bearing

registration No.KA-19/6624 which was being driven in

a rash and negligent manner, dashed against the

deceased. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed

to the injuries on the way to the hospital.

3. The claimants filed a petition under Section

166 of the Act seeking compensation for the death of

the deceased along with interest.

4. On service of summons, the respondent

No.2 appeared through counsel and filed written

statement in which the averments made in the

petition were denied. The age, occupation and income

of the deceased are denied. It was pleaded that the

petition itself is false and frivolous in the eye of law.

It was further pleaded that the accident was due to

the rash and negligent riding of the motorcycle by the

deceased himself. The driver of the offending vehicle

did not possess valid driving licence as on the date of

the accident. It was further pleaded that the liability

is subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimants is exorbitant. Hence, he

sought for dismissal of the petition.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and hence was

placed ex-parte.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants, in order to

prove their case, examined claimant No.2 as PW-1

and another witness as PW-2 and got exhibited

documents namely Ex.P1 to Ex.P11. On behalf of

respondents, two witnesses were examined as RW-1

and RW-2 and got exhibited documents namely Ex.R1

to Ex.R4. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent driving of the

offending vehicle by its driver, as a result of which,

the deceased sustained injuries and succumbed to the

injuries. The Tribunal further held that the claimants

are entitled to a compensation of Rs.3,55,000/- along

with interest at the rate of 6% p.a. and since the

driver of the offending vehicle was not holding a valid

and effective driving licence to drive the said vehicle,

directed the owner of the offending vehicle to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. Sri H.C.Sundaresh, the learned counsel for

the claimants has raised the following contentions:

Firstly, the claimants claim that the deceased

was aged about 62 years at the time of the accident

and he was earning Rs.12,000/- per month. But the

Tribunal is not justified in taking the monthly income

of the deceased as only Rs.5,000/-.

Secondly, as per the judgment of the Hon'ble

Supreme Court in the case of MAGMA GENERAL

INSURANCE CO. LTD. -V- NANU RAM [2018 ACJ

2782], each of the claimants are entitled for

compensation of Rs.40,000/- under the head of 'loss

of love and affection and consortium'.

Thirdly, the compensation awarded by the

Tribunal under the conventional heads is on the lower

side.

Fourthly, in respect of liability is concerned, as

on the date of the accident the driver of the offending

vehicle was having valid and effective driving licence

to drive LMV (non-transport), but he was driving the

transport vehicle. The Hon'ble Apex Court in the case

of MUKUND DEWANGAN vs. ORIENTAL

INSURANCE COMPANY LIMITED reported in

(2017) 14 SCC 663, has held that the licence to

drive LMV (non-transport) includes licence to drive

LMV transport vehicle or omnibus, the gross vehicle

weight of either of which or a motor car or tractor or

road roller, the unladen weight of any of which, does

not exceed 7500 kgs. In the case on hand, the

unladen weight of the vehicle involved in the accident

is less than 7,500 kgs. In view of the above, the

driver of the offending vehicle was holding a valid and

effective driving licence to drive the said vehicle. But

the Tribunal has erred in fastening liability on the

owner of the offending vehicle. Hence, he prays for

allowing the appeal.

7. On the other hand, Sri S.Krishna Kishore,

the learned counsel for the Insurance Company has

raised the following counter-contentions:

Firstly, even though the claimants claim that the

deceased was earning Rs.12,000/- per month, the

same is not established by the claimants by producing

documents. Therefore, the Tribunal has rightly

assessed the income of the deceased notionally.

Secondly, the compensation awarded by the

Tribunal under the heads 'loss of estate' and 'funeral

expenses' is on the higher side contrary to the law laid

down by the Hon'ble Apex Court in the case of

NATIONAL INSURANCE CO. LTD. -v- PRANAY

SETHI AND OTHERS reported in AIR 2017 SC

5157.

Thirdly, on appreciation of oral and documentary

evidence and considering the age and avocation of the

deceased, the overall compensation awarded by the

Tribunal is just and reasonable.

Fourthly, as on the date of the accident the

driver of the offending vehicle was holding licence to

drive LMV (non-transport) but was driving the

transport vehicle. Since the insured has violated the

policy conditions, the Insurance Company is not liable

to pay the compensation The Tribunal has rightly

exonerated the insurance company. Hence, he sought

for dismissal of the appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

9. It is not in dispute that deceased Srinivas

died in the road traffic accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

The claimants claim that deceased was earning

Rs.12,000/- per month. But they have not produced

any documents to prove the income of the deceased.

In the absence of proof of income, the notional income

has to be assessed. As per the guidelines issued by

the Karnataka State Legal Services Authority, for the

accident taken place in the year 2014, the notional

income of the deceased has to be taken at Rs.8,500/-

p.m. The Tribunal has rightly deducted 1/3rd towards

personal expenses of the deceased. The amount

comes to Rs.5,667/-. The deceased was aged about

62 years at the time of the accident and multiplier

applicable to his age group is '7'. Thus, the claimants

are entitled to compensation of Rs.4,76,028/-

(Rs.5,667*12*7) on account of 'loss of dependency'.

In addition, the claimants are entitled to

compensation of Rs.15,000/- on account of 'loss of

estate' and compensation of Rs.15,000/- on account

of 'funeral expenses'. Claimant No.1, wife of the

deceased is entitled for compensation of Rs.40,000/-

under the head of 'loss of spousal consortium'.

In view of the law laid down by the Supreme

Court in the case of 'MAGMA GENERAL

INSURANCE' (supra), claimant Nos.2, 3 and 4,

children of the deceased are entitled for compensation

of Rs.40,000/- each under the head of 'loss of

parental consortium'.

10. Thus, the claimants are entitled to the

following compensation:

        Compensation under           Amount in
           different Heads             (Rs.)
       Loss of dependency               4,76,028
       Funeral expenses                   15,000
       Loss of estate                     15,000
       Loss of spousal                    40,000
       consortium
       Loss of Parental                     1,20,000
       consortium
                      Total                 6,66,028


     The    claimants     are    entitled     to    a     total

compensation         of   Rs.6,66,028/-       as        against

Rs.3,55,000/- awarded by the Tribunal.

Re.liability:

11. It is not in dispute that as on the date of the

accident the driver of the offending vehicle was

holding a driving licence to drive LMV (non-transport)

but he was driving the transport vehicle. In view of

the law laid down by the Hon'ble Apex court in the

case of MUKUND DEWNGAN (supra), licence to

drive light motor vehicle includes licence to drive

transport vehicle, and therefore, the insurer is liable

to pay compensation to the claimant.

12. In view of the above, the Insurance