Vykunttaiah @ Vykumbaiah vs United India Insurance Co.Ltd
2022 Latest Caselaw 12350 Kant

                            1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 12TH DAY OF OCTOBER, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.No.5647/2014 (MV)


BETWEEN

1.    VYKUNTTAIAH @ VYKUMBAIAH
      S/O LATE KUNTTAIAH
      AGED ABOUT 62 YEARS

2.    THIMMAMMA @ THIVEMMA
      W/O VYKUNTTAIAH @ VYAKUMBAIAH
      AGED ABOUT 54 YEARS

      BOTH ARE R/AT KEMPABORALAHANADODDI
      KELLUDEVANAHALLI (P)
      MADABALU HOBLI, MAGADI TALUK
      RAMANAGARA DISTRICT-562120
                                            ...APPELLANTS
(BY SRI SHRIPAD V SHASTRI, ADVOCATE)

AND

1.   UNITED INDIA INSURANCE CO. LTD
     RO, KRISHI BHAVAN, 6TH FLOOR
     NREEPATHUNGA ROAD
     NEAR HUDSON CIRCLE
     BANGALORE-07
     BY ITS MANAGER
                                  2



2.   MR. SHANKARACHARY N
     MAJRO, R/AT NO.13/21
     2ND FLOOR, 1ST MAIN
     YELAHANKA, UPA NAGARA
     II STAGE, NEAR BDA COMPLEX
     BANGALORE-560070
                                                 ... RESPONDENTS
(BY SRI RAVISH BENNI, ADVOCATE FOR R1;
 SRI B N SURESH BABU, ADVOCATE FOR R2)


     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 16.04.2014
PASSED IN MVC.NO.2175/2012 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL, THE COURT OF SMALL CAUSES,
BENGALURU AND ETC.

    THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

This appeal is filed challenging the judgment and award

dated 16.04.2014 passed in M.V.C.No.2175/2012 on the file of

the Motor Accident Claims Tribunal, the Court of Small Causes,

Bangalore ('the Tribunal' for short).

2. Heard the learned counsel appearing for the

appellants and the learned counsel appearing for respective

respondents.

3. The main contention of the claimants before the

Tribunal is that on 23.02.2012 at about 6.30 p.m., when

Sridhara was riding the motorcycle bearing No.KA41-R-7697

near Anjanagar bus stand i.e., on Bengaluru-Magadi main road,

at that time, the driver of the tanker lorry bearing No.KA05-AB-

311 which came from same direction in a high speed and in a

rash and negligent manner and dashed against the motorcycle,

as a result, the said Sridhara fell down and sustained grievous

injuries and succumbed to the said injuries at hospital on

24.02.2012. Hence, the claimants made the claim that the

deceased was aged about 25 years working as Senior Associate

(cooking) and plumbing Contractor and earning Rs.40,000/- per

month. In pursuance of the notice, respondent No.2-owner of

the offending vehicle remained absent and he placed exparte

and the insurance company filed the written statement

contending that the driver of the offending vehicle does not

possess the valid and effective driving licence at the time of the

accident and hence, the Insurance Company is not liable for

payment of compensation. The claimants in order to substantiate

their case examined one witness as PW1 and got marked the

documents at Ex.P1 to P10. On the other hand, the respondent-

Insurance Company examined one witness as RW1 and got

marked the document at Ex.R1. The Tribunal after considering

both the oral and documentary evidence, allowed the claim

petition granting compensation of Rs.8,75,000/- with interest at

the rate of 6% p.a., and directed the respondent No.2 to pay the

compensation and exonerated the liability on the Insurance

Company hence, the present appeal is filed by the claimants.

4. The main contention of the appellants that the

Tribunal has committed an error in exonerating the liability on

the Insurance Company on the ground that the driver of the

vehicle which causes the accident is not having valid driving

licence to drive the vehicle in question and there was no any

endorsement to drive the hazardous vehicle. Hence, the very

approach of the Tribunal is erroneous. The counsel in support of

his arguments relied upon the judgment of this Court in MFA

No.937/2011 dated 21.03.2014 wherein this Court comes to the

conclusion that the finding of the Tribunal is erroneous and

modified the judgment and award and directed the Insurance

Company to deposit the amount and exonerating the liability on

the Insurance Company is set aside. The counsel would submit

that the said judgment is aptly applicable to the case on hand

contending that there is no material before the Court to show

that the vehicle was filled with fuel at the time of the accident

and if the vehicle is filled with fuel, under such circumstances, it

requires an endorsement. The counsel also would submit that

the compensation awarded is very meager and the Tribunal has

taken income of Rs.5,000/- only and ought to have taken income

of Rs.7,000/- and fairly submits that deduction is made as 50%

and the same is not proper and ought to have taken as 40% and

the compensation awarded on the other heads are also very

meager hence, it requires interference.

5. Per contra, the learned counsel appearing for the

respondent would submit that the driver was driving the vehicle

and the same is a hazardous vehicle and he was not having any

valid licence and there was no any endorsement and to that

effect one witness has been examined as RW1 and also got

marked the document at Ex.R1 and hence, the Tribunal has

rightly exonerated the liability on the Insurance Company. The

counsel also submits that the Tribunal has committed an error in

adding of future prospectus of 50% but the deceased was aged

about 25 years at the time of the accident and he was not

having any permanent source of income hence, the Tribunal

ought to have taken 40% and the compensation awarded on the

other heads are also just and proper hence, it does not require

any interference.

6. Having heard the respective counsel appearing for

the parties and also on perusal of the documents on record the

points that would arise for the consideration of this Court are:

1. Whether the Tribunal has committed an error in exonerating the liability on the Insurance Company?

2. Whether the Tribunal has committed an error in not awarding just and reasonable compensation?

3. What order?

Point No.1

7. Having heard the respective counsel appearing for

the parties and also on perusal of the documents on record it is

not in dispute that two vehicles are involved in the accident and

it is also not in dispute that the tanker hit the motorcycle and

the driver of the motorcycle succumbed to the injuries. The

main contention of the Insurance Company is that the driver of

the vehicle is not having any endorsement to drive the

hazardous vehicle and the Tribunal no doubt, exonerated the

liability on the Insurance Company. The judgment of this Court

in MFA No.937/2011, the similar circumstances has been

discussed in detail regarding exonerating the liability of the

Insurance Company is concerned. In paragraph 9 of the

judgment this Court in detail discussed with regard to the

purpose for insisting for an endorsement to drive the hazardous

vehicle and also discussed with regard to the absence of material

before the Court and at the time of the accident, the vehicle was

filled with fuel. In the case on hand also, on perusal of entire

documents particularly Ex.P1 and panchanama, no material

before the Court to show that the vehicle was filled with fuel at

the time of the accident. When such being the case, the

Tribunal ought not to have comes to the conclusion that it

requires an endorsement and the Insurance Company also not

examined any witness except examining RTO before the Tribunal

and even not examined Investigating Officer to comes to know

whether the vehicle was filled with fuel at the time of the

accident or not and Ex.P1 is very silent about said fact. Hence,

the judgment of this Court referred supra is aptly applicable to

the case on hand and hence, the very approach of the Tribunal is

erroneous and it requires interference of this Court. Hence,

Point No.1 is answered as affirmative.

Point No.2

8. The main contention of the learned counsel

appearing for the appellants that the compensation awarded by

the Tribunal is very meager and hence, it requires interference.

Admittedly, the deceased is a bachelor and the alleged accident

is of the year 2012 hence, the notional income would be

Rs.7,000/- but the Tribunal has taken income of Rs.5,000/-. It

is the claim of the claimants that the deceased was having

permanent job but in order to show the same, no documents

produced before the Tribunal. Under such circumstances, the

Tribunal has committed an error in adding 50% of future

prospects instead of 40%. If 40% added to the income of

Rs.7,000/-, it comes to Rs.9,800/- (Rs.7,000 x 40% = 2,800/-)

and after deducting 50% towards personal expenses, it comes of

Rs.4,900/-. Having considered the age, the multiplier is 18

hence, the claimants are entitled for the compensation towards

loss of dependency is Rs.10,58,400/- (Rs.4,900 x 12 x 18). The

claimants are the parents, hence, they are entitled for

Rs.40,000/- each on the head of loss of love and affection and

apart from that they are entitled for Rs.33,000/- towards loss of

estate and funeral expenses and in all, the claimants are entitled

for total compensation of Rs.11,71,400/-. Hence, Point No.2 is

answered as partly affirmative.

Point No.3

9. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

      (ii)    The impugned judgment and award of the

              Tribunal     dated      16.04.2014      passed    in

M.V.C.No.2175/2012 is modified fastening the

liability on the Insurance Company granting

compensation of Rs.11,71,400/- as against

Rs.8,75,000/- with interest at 6% per annum

from the date of petition till deposit.

(iii) The Insurance Company is directed to pay the

compensation amount with interest within six

weeks from today.

(iv) The Registry is directed to transmit the records

to the concerned Tribunal, forthwith, if any.

Sd/-

JUDGE

SN