The Divisional Manager vs Gourawwa Dharmling Goudar
2022 Latest Caselaw 12107 Kant

                                                    -1-




                                                            MFA No. 100638 of 2014


                                    IN THE HIGH COURT OF KARNATAKA

                                             DHARWAD BENCH

                               DATED THIS THE 23RD DAY OF SEPTEMBER, 2022

                                                  BEFORE
                                  THE HON'BLE MR JUSTICE H.P.SANDESH
                        MISCELLANEOUS FIRST APPEAL NO. 100638 OF 2014 (MV-D)
                        BETWEEN:

                        1.   THE DIVISIONAL MANAGER,
                             THE NEW INDIA ASSURANCE COMPANY,
                             2ND FLOOR, MUDALAGI BUILDING CLUB ROAD,
                             BELGAUM,
                             INSURER OF TRACKER BEARING NO. MH-44/D-1908
                             AND TRAILORS BEARING NOS. MH-23/Q-4464 AND MH-
                             23/Q-4461 BEARING POLICY NO. 1604023112010000336
                             VLID 18/10/2012 TO 17/10/2013)
                             R/BY ITS REGIONAL MANAGER,
                             REGIONAL OFFICE, SRINATH COMPLEX,
                             NEW COTTON MARKET HUBLI
                                                                      ...APPELLANT
                        (BY SRI. G N RAICHUR, ADVOCATE)

          Digitally
          signed by J
                        AND:
          MAMATHA
J         Location:
          Dharwad
MAMATHA   Date:         1.   GOURAWWA DHARMLING GOUDAR
          2022.09.27
          16:39:01
          +0530
                             AGE: 43 YEARS, OCC: HOUSE WIFE,
                             R/O : MARUTHI GALLI, GHATAPRABHA,
                             TQ : GOKAK, DIST: BELGAUM.

                        2.   DHARMALING CHINAPPA GOWDAR
                             AGE: 47 YEARS,
                             OCC: NIL DISABLED
                             R/O : MARUTHI GALLI GHATAPRABHA
                             TQ: GOKAK, DIST: BELGAUM.

                        3.   MAHADEV VISHNU ANDHALE
                             AGE: 31 YEARS, OCC: AGRICULTURE,
                             R/O: PIMPALALA, POST: CHIHAL,
                             TQ: WADWANI, DIST: BEED BHIR,
                               -2-




                                     MFA No. 100638 of 2014


     MAHARASHTRA - 431122

4.   VISHNU NIRAVATHI ANDHALE,
     AGE: 50 YEARS, OCC: AGRICULTURE,
     R/O : PIMPALA POST : CHIHAL,
     TQ: WADWANI DIST: BEED BHIR,
     MAHARASHTRA.

5.   VARALAXMI RAVICHANDRA GOUDAR
     AGE: 20 YEARS, OCC: HOUSEHOLD WORK,
     R/O OLD P.B. ROAD, FORT ROAD,
     BELGAUM
                                          ...RESPONDENTS
(BY SRI. VITTHAL S TELI, ADV. FOR R1 ,R2 and R5,
    SRI P.G.CHIKKANARAGUND, ADV. FOR R3 AND R4)

     THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST
JUDGMENT AND AWARD DTD:31.12.2013, PASSED IN
MVC.NO.945/2013 ON THE FILE OF THE VI ADDL. DIST. AND
SESSIONS     JUDGE      BELGAUM,     AWARDING      THE
COMPENSATION OF RS.13,91,000/- WITH THE INTEREST AT
THE RATE OF 7% P.A. FROM THE DATE OF PETITION TILL
THE DATE OF REALISATION.

                         JUDGMENT

Heard the learned counsel appearing for the appellant

and the learned counsel appearing for respondents 1, 2 and 5.

2. The factual matrix of the case of the claimants who are

parents and wife of deceased Ravichandra Goudar (arrayed as

respondent No.4 before the Tribunal) is that on 18.12.2012 at

about when the deceased Ravichandra Goudar was proceeding

by walk on the extreme left side of Ghataprabha-Hukkeri-

Gokak road near railway bridge, at that time, a tractor bearing

MFA No. 100638 of 2014

registration No.MH-44/D-1908 and trailers bearing registration

Nos.MH-23/Q-4464 and MH-23/Q-4461 driven by its driver in

a rash and negligent manner dashed to Ravichandra Goudar

from behind and the said vehicle ran over him and caused the

accident. Ravichandra Goudar sustained fatal injuries and died

on the spot. It was the claim of the claimants before the

Tribunal that prior to the accident, he was hale and healthy and

was working as labour in a private firm and thereby earning

Rs.10,000/- per month and maintaining his family. Due to the

untimely death of their son, the family has lost the bread

earner of the family. Hence, the claimants filed claim petitions

before the Tribunal seeking for compensation.

3. In pursuant to the notice, respondents 1 and 3 have filed

their written statement denying the claim made by the

claimants. In support of their claim, the claimant No.1 got

herself examined as PW-1 and got marked documents Ex.P.1 to

Ex.P.9. On the other hand, respondents did not examine

any witness but got marked the copy of the policy as Ex.R.1.

The Tribunal after assessing both oral and documentary

evidence allowed the claim petition awarding compensation of

Rs.13,91,000/- with interest at the rate of 7% p.a. Being

MFA No. 100638 of 2014

aggrieved by the judgment and award, the Insurance Company

has filed the present appeal.

4. The main contention of the learned counsel for the

Insurance Company is that there was no valid and effective

driving licence with the driver of the tractor and trailer to drive

the said vehicle and the evidence on record shows that the

trailer was attached to the tractor and the trailer is used for

carrying goods and if trailer is attached to a tractor it becomes

a goods vehicle. Though the driver was not having valid driving

licence, the Tribunal has fastened the liability on the Insurance

Company to pay the compensation. He further contends that

the Tribunal committed an error in adding future prospects of

50% to the income of the deceased against the principles laid

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

KUMARI VS. MADAN MOHAN (2013) 9 SCC 65) as well as

SARLA VERMA VS. DELHI TRANSPORT CORPORATION

AND ANOTHER (2009 (6) SCC 121) wherein 40% ought to

have been added. The Tribunal also committed an error in

awarding a sum of Rs.1,05,000/- under conventional heads and

the rate of interest awarded is 7% p.a. instead of 6% p.a.

Learned counsel would also contend that there was no permit

MFA No. 100638 of 2014

for the tractor and trailer to ply within the State of Karnataka

as the permit was restricted only to Maharashtra state. Hence,

the judgment and award of the Tribunal calls for interference.

5. Per contra, learned counsel appearing for the claimants

would vehemently contends that the contention of the

Insurance Company that the driver of the tractor and trailer did

not have valid and effective driving licence cannot be accepted

in view of the judgment of the Hon'ble Apex Court in MUKUND

DEWANGAN VS. ORIENTAL INSURANCE CO., LTD., (2017)

14 SCC 663) wherein it has been held that there was no

requirement to obtain separate endorsement to drive transport

vehicle, and if a driver is holding licence to drive light motor

vehicle, he can drive transport vehicle of such class without any

endorsement to that effect. The other contention of the

Insurance Company that future prospects of 40% ought to

have been added instead of 50% also cannot be accepted since

the accident was of the year 2012 and the income taken by the

Tribunal is only Rs.6,000/- instead of Rs.6,500/- which was the

notional income for the year 2012. Hence, he submits that the

judgment and award of the Tribunal does not call for

interference.

MFA No. 100638 of 2014

6. Having heard the learned counsel appearing for the

parties and also on perusal of the material available on record,

the points that arise for consideration of this Court are:

i) Whether the Tribunal committed an error in

fastening the liability on the Insurance Company to

pay the compensation?

ii) Whether the Tribunal has awarded exorbitant

compensation as contended by the learned counsel

for the Insurance Company?

iii) What order?

Reg:Point No.1:

7. It is not in dispute that the vehicle is the tractor and

trailer involved in the accident and it is also not in dispute that

the tractor was insured with the appellant and apart from that

the other contention that the driver was not having effective

and valid driving licence to drive the transport vehicle since he

was not having the transport endorsement cannot be accepted

in view of the judgment of the Hon'ble Apex Court in MUKUND

DEWANGAN's case, as rightly contended by the learned

MFA No. 100638 of 2014

counsel for the respondent that the said contention cannot be

considered.

8. The other contention that permit was given to the vehicle

only to ply within the State of Maharashtra but the accident had

taken place in Karnataka state is concerned and that there was

violation of the permit conditions, learned counsel for the

claimants submits that the said defence was not taken before

the Tribunal and no evidence was adduced by the Insurance

Company before the Tribunal. On perusal of the documents, it

is seen that the appellant/Insurance Company has not led any

evidence before the Tribunal in support of its argument that the

permit was given to the tractor and trailers only to ply within

the State of Maharashtra and even they have not produced

copy of the permit before the Tribunal but what is marked with

consent is only the insurance policy. When such being the

case, the learned counsel cannot urge the said ground which is

not urged before the Tribunal that too when the deceased being

a third party. When deceased is a third party, the Court can

order for pay and recover with regard to the violation of the

policy conditions. When the vehicle has plied in Karnataka and

the permit was given only to ply within the State of

MFA No. 100638 of 2014

Maharashtra and the registration number also discloses it as

MH-19 and the driver was also not having valid and effective

driving licence, it is appropriate to order for 'pay and recover'.

9. Learned counsel for the Insurance Company would submit

that the policy taken for the vehicle is only for agricultural

purpose cannot be accepted when the tractor and trailers

caused the accident that too a third party and the said

contention also cannot be accepted.

Reg:Point No.2:

10. With regard to the quantum of compensation is

concerned, no doubt the Tribunal committed an error in adding

50% future prospects to the income of the deceased which

ought to have been 40%. But, the Tribunal has committed an

error in taking the monthly income of the deceased at

Rs.6,000/- wherein the notional income ought to have been

Rs.6,500/- p.m. for the accidents of the year 2013. Apart from

that the amount awarded under conventional heads is only

Rs.1,05,000/- which ought to have been Rs.40,000/- each to

the claimants towards loss of consortium and loss of love and

affection which comes to Rs.1,20,000/- and Rs.33,000/-

MFA No. 100638 of 2014

towards loss of estate and funeral expenses. Having taken

into consideration the said fact, I do not find any grounds to

interfere with the impugned judgment and award of the

Tribunal. Hence, I answer issue No.2 as negative.

11. In view of the above discussions, I pass the following:

ORDER

i) The appeal is allowed in part,

ii) The judgment and award dated 31.12.2013 passed by the VI Addl. District and Sessions Judge, Belagavi, in M.V.C.No.945/2013 stands modified.

iii) The Insurance Company is directed to pay the compensation and recover the same from the insured in the same proceedings.

iv) The amount deposited by the Insurance Company is ordered to be transmitted to the Tribunal forthwith.

v) The registry is directed to send back the TCR to the Tribunal forthwith.

Sd/-

JUDGE