Karnataka High Court
Sri. Manjunath A vs Smt. Reshmabai on 4 August, 2023
Bench: C M Joshi
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NC: 2023:KHC:27460
MFA No. 2763 of 2019
C/W MFA No. 3968 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 2763 OF 2019 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 3968 OF 2019 (MV-D)
IN M.F.A NO. 2763 OF 2019
BETWEEN:
1 . SRI. MANJUNATH A,
S/O. SRI.ANJINAPPA,
AGED ABOUT 25 YEARS,
DRIVER,
R/O. HOSA KUNDWADA VILLAGE,
DAVANGERE TALUK,
DAVANGERE-577 006.
2 . SRI.MANJUNATH T,
S/O. SRI.TIPPESWAMY,
AGED ABOUT 43 YEARS,
R/O NO.670/12, 11TH CROSS,
Digitally signed I MAIN ROAD,
by T S
NAGARATHNA BHAGAT SINGH NAGAR,
Location: High DAVANGERE-577 006.
Court of
Karnataka
...APPELLANTS
(BY SRI M V HIREMATH, ADVOCATE)
AND:
1. SMT. RESHMABAI,
W/O. SRI.BADI NAIK,
AGED ABOUT 33 YEARS,
COLLIE.
2. KUM.NANDINI.A.B,
D/O. SRI.BADINAIK,
-2-
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AGED ABOUT 14 YEARS,
STUDENT.
SINCE MINOR, REP BY RESPONDENT NO.1,
THE NATURAL GUARDIAN
BOTH ARE RESIDENTS OF
DOOR NO.104, ANNAPURNESHWARI NILAYA,
NEAR LAST BUS STOP, VIDYANAGAR,
DAVANAGERE-577 006.
NOW R/AT: NO.3594/3, HONGIRANA NILAYA,
1ST MAIN ROAD, 1ST CROSS,
S S BADAVANE, DAVANAGERE-577 006.
3. THE MANAGER,
SRI RAM GENERAL INSURANCE COMPANY LIMITED,
BELLI ANKALA MAIN ROAD,
J P NAGAR, BENGALURU-566 078.
...RESPONDENTS
(BY SMT. SARITHA KULKARNI, ADVOCATE FOR R-1,
R-2 MINOR REP. BY R-1,
SRI B.C SHIVANNEGOWDA, ADVOCATE FOR R-3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:01.01.2019 PASSED IN MVC
NO.61/2018 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE & VII MACT, DAVANAGERE, AWARDING COMPENSATION OF
RS.5,41,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
IN M.F.A NO. 3968 OF 2019
BETWEEN:
1. SMT.RESHMABAI,
W/O. BADI NAIK,
AGD ABOUT 33 YEARS,
OCC:COOLIE.
2. NANDINI.A.B,
D/O. BADINAIK,
AGED ABOUT 14 YEARS,
STUDENT.
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MFA No. 2763 of 2019
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BOTH R/O: DOOR NO.104,
ANNAPURNESHWARI NILAYA,
NEAR LAST BUS STOP,
VIDYANAGAR, DAVANAGERE.
SINCE MINOR, REP BY NATURAL GUARDIAN
ANOTHER WHO IS APPELLANT NO.1.
NOW R/O AT :DOOR NO.3594/3,
HONGIRANA NILAYA,
1ST MAIN, 1ST CROSS,
SS BADAVANI, DAVANAGERE.
...APPELLANT
(BY SMT. SARITHA KULKARNI, ADVOCATE)
AND:
1. MANJUNATH A,
S/O ANJINAPPA,
AGED ABOUT 24 YEARS,
R/O HOISA KUNDAVADA VILLAGE,
DISTRICT AND TALUK,
DAVANAGERE 577 001.
2. MANJUNATH T,
S/O. THIPPESWAMI B,
AGED ABOUT 42 YEARS,
OCC:MEDICAL SHOP,
R/O DOOR NO.670/12, 11TH CROSS,
1ST MAIN, BAGATHSINGH NAGAR,
HOISA KUNDAVADA VILLAGE,
DAVANAGERE 577 001.
3. THE MANAGER,
SAI RAM GENERAL INSURANCE CO.LTD.,
BALLI ANKALA MAIN ROAD,
J.P.NAGAR, BENGALURU 560 078.
...RESPONDENTS
(By SRI B.C. SHIVANNE GOWDA, ADVOCATE FOR R-3,
SRI M.V HIREMATH, ADVOCATE FOR R-2,
NOTICE TO R-1 IS DISPENSED WITH V/O DATED 27.05.2022)
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MFA No. 2763 of 2019
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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:01.01.2019 PASSED IN MVC
NO.61/2018 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL
JUDGE & VII MACT, DAVANAGERE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the judgment and award passed by
the III Additional Senior Civil Judge and VII Additional MACT at
Davanagere in MVC No.61/2018 dated 01.01.2019, the owner
and driver of the auto rickshaw have filed MFA No.2763/2019
questioning the liability fastened on them and the claimants
have filed MFA No.3968/2019 seeking enhancement of the
compensation.
2. The brief facts are as below:
The petitioner No.1 and 2 are mother and sister of
Niranjan Naika. Niranjan Naika was hale and healthy boy
studying in 6th standard at Government School, Shamanur.
Niranjan Naika was not feeling well, the petitioner No.1 is being
mother of Niranjan Naika, she was carrying him by auto
rickshaw bearing No.KA-17-B-7416 and moving towards
hospital on 02.10.2017. At 11.00 a.m., the driver/respondent
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No.1 drove said auto rickshaw in rash and negligent manner
and near last bus stop at Vidyanagar, Davanagere, he suddenly
applied brake. Niranjan Naika fell down from the auto rickshaw
and sustained grievous injuries over head and other parts of
the body. Immediately, injured Niranjan Naika admitted to
Bapuji Hospital and thereafter, shifted to SSIMS Hospital,
Davanagere. As per the advise of the Doctors, the petitioner
No.1 has shifted the Niranjan Naika from SSIMS Hospital and
admitted to Kasturba Hospital, Manipal. Despite treatment,
Niranjan Naika died due to head injuries on 03/04-10-2017 at
00.15 a.m.. The petitioners have performed last rites of
deceased Niranjan Naika by spending amount of Rs.2,50,000/-.
3. Due to untimely death of Niranjan Naika, the
petitioner No.1 has suffered mentally and she has lost love and
affection of Niranjan Naika. The accident was occurred due to
rash and negligent driving of respondent No.1. Driver of auto
rickshaw bearing No.KA-17-B-7416 and respondent No.2/RC
owner and respondent No.3 has issued policy to auto rickshaw
and it was in force from 28.01.2017 to 27.01.2018. The traffic
Police, Davanagere have registered a criminal case against
respondent No.1 in Crime No.156/2017 for offence punishable
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under Sections 279, 304-A of IPC and under Section 187 of
IPC. The accident in question occurred due to rash and
negligent act of respondent No.1. Hence, the respondents
Nos.1 to 3 are jointly and severally liable to pay compensation.
4. On receipt of summons the respondent No.1 to 3
appeared through their counsel and filed objection to petition.
The respondents denied that the deceased-Niranjan Naika
sustained grievous injuries in road traffic accident and he died
due to injuries sustained in the alleged accident. They
contended that the accident was not due to rash and negligent
act of respondent No.1. They contended that the mother of the
deceased has not taken proper care towards her son and she
had no control over him; there is no nexus between cause of
death of Niranjan Naika and use of auto belonging to
respondent No.2. They also contended that the driver was
having a valid driving licence and the vehicle was covered
under the insurance policy.
5. The respondent No.3 has taken specific contention
that there was two days delay in lodging complaint. The
petitioner and respondents Nos.1 and 2 colluding with Police
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have created false story of accident to get wrongful gain from
respondent No.3-Insurance Company. The respondent No.3
Insurance Company stated that its liability is subject to
fulfillment of terms and conditions covered under policy issued
to auto rickshaw belonging to respondent No.2.
6. It also contended that according to RC and policy,
auto rickshaw is a transport vehicle. According to licence issued
to respondent No.1, he is permitted to drive the three wheeler
vehicle non transport vehicle only. Hence, the respondent No.1
is not having valid driving licence to drive auto rickshaw
involved in the accident. Further, at the time of accident, auto
rickshaw had no valid permit and fitness certificate to ply on
place of accident. Hence, respondent No.3 is not liable to
indemnify the owner of auto rickshaw and therefore, the
respondent No.3 is not liable to pay compensation.
7. On the bases of the above pleadings, the Tribunal
framed appropriate issues and the petitioner was examined as
PW.1 and Exs.P1 to 17 were marked in evidence. The
respondent-Insurance Company examined the official of the
RTO as RW.1 and its own official as RW.2. The respondent No.2
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was examined as RW.3 and Exs.R1 to 7 were marked in
evidence.
8. After hearing the arguments, the Tribunal has
awarded the compensation of Rs.5,40,593/- under following
heads:
AMOUNT
PARTICULARS
(IN RS.)
Loss of dependency 3,84,000/-
Towards filial consortium 40,000/-
Conveyance 50,000/-
Medical expenses and nourishment 66,593/-
TOTAL 5,40,593/-
ROUNDED OFF TO 5,41,000/-
9. Being aggrieved by the said judgment and award,
the petitioners have filed MFA No.3968/2019 seeking
enhancement of the compensation and the respondent Nos.1
and 2 have filed MFA.No.2763/2019 assailing the fastening of
the liability to pay the compensation on them.
10. In both these appeals, the rival parties have
appeared through their counsel and the Insurance Company
has appeared through its counsel on issuance of notice by this
Court. The Tribunal records have been secured and both the
appeals are heard together.
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11. The appellants in MFA.No.2763/2019 have filed an
application under Order XLI Rule 27 of CPC seeking to produce
the 'B' register extract of auto rickshaw bearing registration
No.KA-17-B-7416 showing the validity of the permit and the
fitness certificate. The affidavit filed in support of the
application contends that though he had procured the 'B'
register extract as per Ex.R7, it did not disclose the validity and
fitness of the vehicle and basing its finding on Ex.R7, the
Tribunal has fastened the liability on appellants/applicants. It is
submitted that the appellants were not in possession of the said
document at the time of the trial and these documents are
essential in order to show that the vehicle had valid permit and
also that it was fit to ply on the road.
12. This application is not opposed by any of the
respondents by filing any objection. However, an application
under Order XLI Rule 27 of CPC has to be decided only if such
additional evidence is necessary for a just and proper decision
in the matter. The provisions cannot be invoked just for asking.
The affidavit filed in support of the application shows that the
applicant No.2 was not in possession of the same as on the
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date of his examination before the Tribunal. It is evident that
the Tribunal basing its finding on Ex.R2 has fastened the
liability on the applicants. In that view of the matter, the
application is allowed and the RC extract of the vehicle and the
copy of the permit are taken on record.
13. Learned counsel appearing for the appellants i.e.,
driver and owner of the vehicle in MFA.No.2763/2019 contend
that the auto rickshaw owned by the respondent No.2 was
covered under the insurance policy issued by the respondent
No.3 and it was a package policy. He submits that the auto
rickshaw was having valid permit as on date of the accident
and it was valid from 04.04.2013 to 03.04.2018. The permit
holder was the previous owner of the vehicle i.e., Syed Peer.
The area of the permit was Davanagere City Corporation Limit
in the radius of 7.5 kilometers. It is also relevant to note that
Ex.R7 which is available in the records show that the permit
was valid up to 03.04.2018.
14. The perusal of the impugned judgment show that in
paragraph No.19, the Tribunal holds that the vehicle was not
having valid permit in the year 2017. This observation of the
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Tribunal is contrary to Ex.R7, which show that the permit was
valid up to 03.04.2018. So also, the additional evidence
produced by the respondent Nos.1 and 2/appellants show that
the permit was valid up to 03.04.2018 but it was in the name
of Syed Peer and not the respondent No.2. Therefore, to that
extent, the impugned judgment is suffering from perversity.
15. The evidence of RW.1-the official of the RTO
discloses that the Ex.R3-endorsement was issued by his office
and the information sought was to furnish the permit standing
in the name of the respondent No.2 pertaining to the vehicle
bearing No.KA-17-B-7416. He had replied it that there is no
such permit.
16. Learned counsel for the appellants/respondent
Nos.1 and 2 contend that the permit was obtained by the
previous owner-Syed Peer and though the ownership of the
vehicle was transferred to respondent No.2, the permit was not
transferred. He submits that the decision in the case of K.M.
VISWANATHA PILLAI VS K.M. SHANMUGAM PILLAI1 lays
down that person in whose favour permit has been granted
AIR 1969 SC 493
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need not necessarily be the owner of the vehicle covered by it
and the Motor Vehicles Act does not bar the benami
transactions. In other words, to ascertain whether there was
violation of permit conditions as contemplated under the policy
of insurance, it is necessary to see that the vehicle had valid
permit to ply on the road as a public carriage vehicle. The
permit, may be attached to any other vehicle owned by the
holder of the permit. In the case on hand, there is nothing on
record to show that the permit held by Syed Peer attached to
the auto rickshaw covered by policy issued by respondent No.3
was withdrawn and attached to any other vehicle. Therefore,
the contention of the respondent No.3/Insurance Company that
the vehicle did not have a permit as on date of the accident
cannot be accepted.
17. Though a feeble attempt is made by the learned
counsel for the respondent No.3-Insurance Company by
arguing that the auto rickshaw was driven beyond the area
permitted, there is no evidence to show that the spot of the
accident was outside the radius of 7.5 kilometers from
Davanagere town limits.
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18. The second contention raised by the respondent
No.3/Insurance Company is regarding the driving licence held
by the respondent No.1. Obviously, the evidence of RW.1, the
official of the RTO show that the respondent No.1 was having
licence to drive 3 wheeler non-transport vehicle. Therefore, the
auto rickshaw being a transport vehicle, the respondent No.1
was not having a valid driving licence. It is necessary to note
that the question in respect of the driving licence is covered by
the judgment in the case of MUKUND DEVANGAN V/S
ORIENTAL INSURANCE COMPANY LIMITED2. It was held
by the Hon'ble Apex Court that any vehicle which is a light
motor vehicle can validly be driven by a person having a licence
to drive an LMV and there is no necessity of obtaining a
separate licence as a transport vehicle. Applying the said
decision, it is evident that the respondent No.3 is liable to pay
the compensation to the petitioner. The evidence of RW.1 that
respondent No.1 was not having a valid driving licence cannot
be accepted as it is contrary to the law laid down by the
Hon'ble Apex Court in the case of MUKUND DEVANGAN
(Supra). Hence, the finding of the Tribunal that the liability has
(2017) 14 SCC 663
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to be fastened upon the respondent Nos.1 and 2 is not
sustainable under law. The argument of the learned counsel for
respondent No.3/Insurance Company that the permit will not
go along with the vehicle even if the vehicle is transferred
cannot be accepted in view of the decision noted supra.
19. Learned counsel for the petitioners contend that the
Tribunal has not considered the notional income commensurate
with the inflation, devaluation of the rupee and cost of living. It
is submitted that the decision in the case of KURVAN ANSARI
ALIAS KURVAN ALI AND ANOTHER VS. SHYAM KISHORE
MURMU AND ANOTHER3 lays down that in view of the ratio
laid down in the cases of PUTTAMMA AND OTHERS VS.
K.L.NARAYANA REDDY AND ANOTHER4, R.K.MALIK AND
ANOTHER VS. KIRAN PAL AND OTHERS5 and KISHAN
GOPAL AND ANOTHER VS. LALA AND OTHERS6, there
should have been escalation of the notional income. Ultimately,
by accepting the ratio in the case of KISHAN GOPAL (Supra),
the notional income was considered at Rs.25,000/- to consider
the 'loss of dependency'. The analogy used was that the
(2022) 1 SCC 317
(2013) 15 SCC 45
(2009) 14 SCC 1
(2014) 1 SCC 244
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structured formula as applicable to a petition under Section
163A of Motor Vehicles Act, 1988 can be applied in respect of
the death of a minor also. However, the legislature had not
considered the revision of the annual notional income from time
to time. Therefore, it was held that the notional annual income
has to be held at Rs.25,000/-. When we apply the above ratio
to the case on hand, it is evident that the accident had
occurred on 02.10.2017. Therefore, it would be just and proper
to hold that the annual notional income was Rs.30,000/-.
20. The Tribunal has considered the annual notional
income of Rs.24,000/- and has applied the multiplier of 16 by
considering the age of the younger parents. Obviously, the
decision in the case of NATIONAL INSURANCE COMPANY
LIMITED VS. PRANAY SETHI AND OTHERS7 has
disapproved the adoption of the age of the younger parent for
selecting the multiplier. Therefore, the compensation under the
head of 'loss of dependency' is calculated as Rs.30,000/- X 15
=Rs.4,50,000/-.
AIR 2017 SC 5157
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21. In addition to the 'loss of dependency', the
petitioners are also entitled for the 'loss of filial love and
affection', 'funeral expenses' and 'loss of estate'. Again, by
applying the guidelines issued in the case of PRANAY SETHI
(Supra), two escalations of 10% for every three years, the
compensation under these heads is calculated at Rs.48,400/-,
Rs.18,150/- and Rs.18,150/-, respectively.
22. The Tribunal has awarded a sum of Rs.66,593/-
towards 'medical expenses', for which, no interference is
needed.
23. Thus, the petitioners are entitled for the modified
compensation under different heads as below:
AMOUNT
PARTICULARS
(IN RS.)
Loss of dependency 4,50,000/-
Loss of filial love and affection 48,400/-
Funeral expenses 18,150/-
Loss of estate 18,150/-
Medical expenses and
66,593/-
nourishment
TOTAL 6,01,293/-
Less awarded by Tribunal 5,40,593/-
Enhancement 60,700/-
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24. Thus, the petitioner is entitled for enhanced
compensation of Rs.60,700/- with interest and therefore, the
appeal deserves to be allowed in part.
25. In view of the above conclusions, the liability has to
be fastened upon the respondent No.3/Insurance Company and
as such, the appeal filed by respondent Nos.1 and 2 deserves
to be allowed. The appeal filed by the petitioners also deserves
to be allowed in part. Hence, the following:
ORDER
(i) The appeal filed by the respondent Nos.1 and 2 in
MFA.No.2763/2019 is allowed and the appeal filed by the
petitioners in MFA.No.3968/2019 is allowed in part.
(ii) The impugned judgment and award passed by the
Tribunal is modified by setting aside the liability fastened on
driver and owner of the offending vehicle holding that the
Insurance Company is liable to pay compensation and by
awarding a sum of Rs.60,700/- in addition to what has been
awarded by the Tribunal together with interest at 6% p.a. from
the date of petition till its deposit.
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(iii) The respondent No.3/Insurance company is directed
to deposit the entire compensation together with interest
amount within a period of six weeks from the date of this order.
(iv) Rest of the order of the Tribunal stands unaltered.
Sd/-
JUDGE
NR/-
