Karnataka High Court
P Shanthamma vs G Shivanandappa on 3 March, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.5280/2016 (MV-D)
C/W.
M.F.A.CROB.NO.153/2022 (MV-D)
IN M.F.A. NO.5280/2016:
BETWEEN:
G. SHIVAPUTHRA
S/O. MALLAPPA,
AGED ABOUT 26 YEARS,
OCC: OWNER OF PASSENGER AUTO
BEARING REG.NO.KA-34/A-7976,
R/O. KOGALI VILLAGE,
HAGARIBOMMANAHALLI TALUK,
BALLARI DISTRICT - 583 220.
... APPELLANT
(BY SRI ANIL KUMAR J.M., ADVOCATE)
AND:
1. SMT. P. SHANTHAMMA
W/O. LATE P. MALLESHAPPA,
AGED ABOUT 30 YEARS,
OCC: HOUSEHOLD,
2. P. MANJUNATHA
S/O. LATE P. MALLESHAPPA,
AGED ABOUT 12 YEARS,
MINOR, STUDENT,
3. P. NEELAMMA
D/O. LATE P. MALLESHAPPA,
2
AGED ABOUT 10 YEARS,
MINOR, STUDENT,
4. P. CHIRANJEEVI
S/O. LATE P. MALLESHAPPA,
AGED ABOUT 7 YEARS,
RESPONDENTS 2 TO 4
REPRESENTED BY THEIR
NATURAL MOTHER I.E.,
RESPONDENT NO.1
5. P. HIRIYAMMA
W/O. SANNA HANUMANTHAPPA,
AGED ABOUT 57 YEARS,
OCC: COOLIE
ALL ARE R/O. BALIGANUR VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT - 583 131.
6. G. SHIVANANDAPPA
S/O. MALLAPPA,
AGED ABOUT 28 YEARS,
OCC: DIRVER
AUTO BEARING REG. NO.
KA-34/A-7976,
R/O. KOGALI VILLAGE,
HAGARIBOMMANAHALLI TALUK,
BALLARI DISTRICT - 583 220.
7. THE MANAGER
UNITED INDIA INSURANCE COMPANY LTD.,
BRANCH OFFICE,
UMAMAHESHWARA RAO BUILDING,
STATION ROAD, HOSPET,
BALLARI DISTRICT - 583 201.
... RESPONDENTS
(BY SRI M.M. PRASHANTH, ADVOCATE FOR R1, R5 & R6;
SRI JANARDHAN REDDY, ADVOCATE FOR R7;
R2 TO R4 ARE MINORS R/BY R1)
3
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.
ACT AGAINST THE JUDGMENT AND AWARD DATED 14.03.2016
PASSED IN M.V.C.NO.295/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MACT-9, HARAPANAHALLI, AWARDING A
COMPENSATION OF RS.10,29,000/- WITH INTEREST @ 6% P.A
FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A.CROB.NO.153/2022
BETWEEN:
1. P. SHANTHAMMA
W/O. LATE P. MALLESHAPPA
AGED 34 YEARS
2. P. NEELAMMA
D/O. LATE P. MALLESHAPPA
AGED 16 YEARS
3. P. CHIRANJEEVI
S/O. LATE P. MALLESHAPPA
AGED 13 YEARS
APPELLANTS 2 AND 3 ARE MINORS
REPRESENTED BY APPELLANT NO.1 WHO IS
THEIR MOTHER AND NATURAL GUARDIAN
4. P. HIRIYAMMA
W/O. SANNA HANUMANTHAPPA
AGED 63 YEARS
ALL ARE R/O. BALIGANUR VILLAGE
HARAPANAHALLI TALUK
BELLARY DISTRICT-583 131. ...CROSS-OBJECTORS
(BY SRI MAHESH R. UPPIN, ADVOCATE)
AND:
1. G. SHIVANANDAPPA
S/O. MALLAPPA
4
AGED ABOUT 34 YEARS
OCC: DRIVER, AUTO BEARING
REG NO.KA-34/A-7976
R/O. KOGALI VILLAGE
HAGARIBOMMANAHALLI TALUK
BELLARY DISTRICT-583 212.
2. G. SHIVAPUTHRA
S/O. MALLAPPA
AGED ABOUT 32 YEARS
OCC: OWNER OF PASSENGER AUTO
BEARING REG NO.KA-34/A-7976
R/O. KOGALI VILLAGE
HAGARIBOMMANAHALLI TALUK
BELLARY DISTRICT-583 220.
3. THE MANAGER
UNITED INDIA INSURANCE COMPANY LTD.,
BRANCH OFFICE
UMAMAHESHWARA RAO BUILDING
STATION ROAD, HOSPET - 583 201
HOSPET DISTRICT
4. P. MANJUNATHA
S/O. LATE P. MALLESHAPPA
AGED ABOUT 18 YEARS
R/O. BALIGANUR VILLAGE
HARAPANAHALLI TALUK
BELLARY DISTRICT-583 131. ... RESPONDENTS
(BY SRI M.M.PRASHANTH, ADVOCATE FOR R1)
THIS M.F.A. CROB IS FILED UNDER ORDER 41 RULE 22
R/W. SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT
AND AWARD DATED 14.03.2016 PASSED IN M.V.C.NO.295/2014
ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT-IX,
HARAPANAHALLI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION
5
THIS M.F.A. AND M.F.A. CROB HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 15.02.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
The appeal in M.F.A.No.5280/2016 is filed by the owner of
the passenger auto challenging the judgment and award passed
in M.V.C.No.295/2014 dated 14.03.2016 fastening the liability
on him, who has been arrayed as respondent No.2 before the
Tribunal. The cross-objection in M.F.A. Crob. No.153/2022 is
filed by the claimants seeking enhancement of compensation.
2. The factual matrix of the case of the claimants
before the Tribunal is that on 02.03.2014 at about 1.00 to 4.00
p.m., when the deceased P. Malleshappa was traveling in a
passenger auto bearing No.KA-34/A-7976 from Kogali to Kottur
of Itagi-Kottur Road, when the auto reached near
Sangameshwara Cross at Bankar Nagappa's land at about 4.30
p.m., the driver of the said auto rickshaw drove the same in a
rash and negligent manner and as a result, the driver lost
control over the auto and turtled on the right side. As a result,
deceased P. Malleshappa sustained injuries to his head and died
at the spot.
3. It is the claim of the claimants that the deceased
was hale and healthy doing agricultural work and also milk
vending business and getting income of Rs.15,000/- per month.
Due to untimely death of deceased, the petitioner No.1 lost her
companion and affection of husband in her young age and
petitioner Nos.2 to 4, who are the minor children of the
deceased have lost love and affection of their father. The
petitioner No.5 being the mother has lost her son. Hence, they
claimed the compensation before the Tribunal.
4. In response to the notice, the respondent Nos.1 to 3
appeared through their advocate and filed their objection
statement. In the objection filed by the respondent Nos.1 and 2,
they have disputed the entire case of the petitioners and
contended that the driver of the vehicle possessed valid and
effective driving license to drive such a class of vehicle and
vehicle was insured with the Insurance Company and the driver
of the vehicle has not violated any terms and conditions of the
policy. Hence, they are not liable to pay any compensation.
5. The respondent No.3-Insurance Company has filed
the objection statement disputing the entire claim of the
claimants and contended that the driver was not having valid
and effective driving license and knowing fully well that the
driver had no valid driving license, handed over the vehicle and
violated the terms and conditions of the policy. It is also
contended that, there was no permit as on the date of the
accident and vehicle was plied outside the permitted area and
carried excess passengers exceeding the seating capacity and
the vehicle had permit only to ply as per the permit issued by
the concerned office. But, the vehicle was plied in
Sangameshwara Cross i.e., Ittigi-Kottur main road near Banakar
Nagappa's land out of the permitted area on the date of the
accident. Hence, the Insurance Company is not liable to pay the
compensation.
6. The Tribunal, considering the material available on
record, framed the issues and the petitioners, in support of their
case, examined the petitioner Nos.1 and 4 as P.Ws.1 and 2 and
got marked the documents as Exs.P1 to P4. The respondent
Nos.2 and 1 examined themselves as R.Ws.1 and 2 respectively.
The respondent No.3 examined its Administrative Officer as
R.W.3 and examined the R.T.O. as R.W.4 and got marked the
documents as Exs.R1 to R9.
7. The Tribunal, after considering both oral and
documentary evidence placed on record, allowed the claim
petition granting compensation of Rs.10,29,000/- with interest
at 6% per annum and fastened the liability on the driver and
owner, who are respondent Nos.1 and 2. Hence, the owner has
filed the appeal in M.F.A.No.5280/2016.
8. It is the contention of the appellant-owner in the
appeal that the Tribunal failed to see that after having found that
respondent No.3 has failed to prove that the driver was holding a
valid driving license, ought not to have fastened the liability on
him and ought to have fastened the liability on the Insurance
Company. It is contended that the document which has been
produced by the respondent No.7, no way discloses that vehicle
was plied outside the permissible limits and no any fundamental
breach of the terms and conditions of the policy. It is also
contended that, insofar as it relates to the issue of payment of
compensation to the third parties, the defence raised by
respondent No.7 is not at all permissible in law. It is contended
that, once the policy is issued, issuance of permit to ply the
vehicle is only an ancillary issue and cannot be termed in any
other manner, so as to avoid the liability. The counsel also
would vehemently contend that, there is no dispute with regard
to the fact that accident has taken place on 02.03.2014 and
policy came to be issued on 26.11.2013 valid till 26.11.2014 and
the policy was renewed from 02.12.2014 till 01.12.2015 goes to
show that the policy came to be issued by the respondent-
Insurance Company without verifying whether permit has been
obtained by the appellant. Hence, this itself goes to show that
the Insurance Company never intended to avoid the liability on
the question of permit to ply the vehicle in a specific route and
the counsel would contend that there was no deviation at all.
The counsel also would vehemently contend that the income
taken by the Tribunal at Rs.6,000/- per month is on the higher
side and the claimants have also not proved the income by
leading cogent evidence. Hence, it requires interference.
9. The claimants have also filed the cross-objection in
M.F.A. Crob. No.153/2022, wherein they contend that the
compensation awarded towards loss of dependency is on the
lower side and the same is liable to be enhanced. It is also
contended that the compensation awarded towards loss of estate
loss of love and affection/consortium is on the lower side and the
same are liable to be enhanced. It is further contended that the
Tribunal failed to consider that want of permit of the offending
vehicle is not a fundamental breach and the Tribunal ought to
have fastened the liability on the Insurance Company and
alternatively, since the petitioners are third parties and the
Insurance Company is bound to satisfy the award and recover
the same from the owner. Hence, prayed this Court to enhance
the compensation.
10. The counsel also in his argument would contend
that, future prospects was also not considered while awarding
the compensation. The counsel also would submit that the
accident has occurred in 2014 and income was taken only at
Rs.6,000/- per month and ought to have taken the notional
income at Rs.8,500/- per month. The counsel would further
contend that, at the rate of Rs.44,000/-, the wife, mother and
children are entitled for compensation on the head of loss of love
and affection and consortium. Hence, it requires interference.
11. Learned counsel appearing for the respondent-
Insurance Company in his argument vehemently contend that,
there was no permit and when there was no permit, owner is
liable to pay the compensation. Though, it is contended that
there was no deviation, in order to prove the fact that no permit
at all, got examined the R.T.O. as R.W.4 and got marked the
document at Ex.R7. Hence, it is clear that there was no permit
as on the date of the accident. The counsel also would submit
that this appeal was filed in 2014 and cross-objection was filed
in 2022. It is not in dispute that the claimants are also
represented through their counsel in M.F.A.No.5280/2016 and
hence, the cross-objection ought to have been filed within 30
days but, the same is filed after five years. Hence, the cross-
objection cannot be entertained and the same is hopelessly
barred by limitation. Hence, prayed this Court to dismiss the
appeal.
12. In reply to the argument of the learned counsel
appearing for the respondent-Insurance Company, the learned
counsel appearing for the cross-objectors in M.F.A. Crob.
No.153/2022 would contend that, this Court in the appeal in
M.F.A.No.4945/2014 dated 01.09.2022 in an appeal filed by the
owner, fastened the liability on the Insurance Company to pay
and recover. Here is a case of third parties and the Tribunal
ordered to pay and recover the amount from the owner-insured
and directed the Insurance Company to pay the compensation at
the first instance and recover the same from the owner and
when the claimants are third parties, this Court has to direct the
Insurance Company to pay the compensation and recover the
same from the owner.
13. Having heard the respective counsel and also on
perusal of the material available on record, the points that would
arise for consideration of this Court are:
(i) Whether the Tribunal has committed an error
in fastening the liability on the driver and
owner, instead of fastening the liability on the
Insurance Company, as contended in the
appeal in M.F.A.No.5280/2016?
(ii) Whether the claimants are entitled for
enhanced compensation as claimed in the
cross-objection in M.F.A. Crob. No.153/2022?
(iii) What order?
Point No.(i)
14. Having heard the learned counsel for the appellant
and learned counsel appearing for the Insurance Company, this
Court has to analyze the material available on record, whether
the Tribunal has committed an error in fastening the liability on
the driver and owner, instead of fastening the liability on the
Insurance Company. Having perused the material on record,
though the learned counsel for the appellant in his argument
vehemently contend that liability is erroneously fastened on the
driver and owner, but, it is not the contention of the appellant
that there was a permit as on the date of the accident.
15. The Insurance Company examined the R.T.O. as
R.W.4 to prove that there was no permit as on the date of the
accident. The R.T.O., who has been examined before the Court
has stated that passenger auto rickshaw bearing registration
No.KA-34/A-7976 was not having permit to ply the vehicle and
even, no application is filed to obtain the permit. In the cross-
examination of the witness also, nothing is elicited. The
Insurance Company also examined its Administrative Officer as
R.W.3 and he also reiterated that, no permit. I have already
pointed out that, it is not the case of the appellant that there
was a permit. When, there was no permit, it amounts to an
infraction.
16. The Apex Court, in the judgment in NATIONAL
INSURANCE CO. LTD. VS. CHALLA BHARATHAMMA AND
OTHERS reported in (2005) 123 SC 327 held that, defences
available to the Insurance Company that auto rickshaw plied
without permit, the Insurance Company entitled to take defence
based on infraction of conditions of policy by owner and
company is not liable but, ordered to pay the compensation in
first instance and later recover the same from the owner, relying
upon Section 149 of the Motor Vehicles Act, 1988. The Apex
Court also held that, statutory defences which are available to
the insurer to contest a claim for compensation for death or
injury arising out of a motor accident are confined to those
provided in Sub-section (2) of Section 149 of Motor Vehicles Act,
1988. It is also held that, High Court was not justified in holding
the insurer is liable and comes to the conclusion that,
considering the beneficial object of the Act, it would be proper
for the insurer to satisfy the award, though in law it had no
liability, and to recover the amount from the insured.
17. The Apex Court also, in a similar set of facts, in the
judgment in AMRIT PAUL SINGH AND ANOTHER VS. TATA
AIG GENERAL INSURANCE COMPANY LIMITED AND
OTHERS reported in (2018) 3 SCC (CRI) 255 held that,
offending truck on date of accident not having the permit as
required under Section 66(1) of Motor Vehicles Act and held that
the said proviso which prescribes that no owner of a motor
vehicle shall use or permit the use of the vehicle as a transport
vehicle in any public place whether or not such vehicle is actually
carrying any passengers or goods save in accordance with the
conditions of a permit granted or countersigned by a Regional or
State Transport Authority or any prescribed Authority and held
that, use of a vehicle as a transport vehicle in public place
without a permit is a fundamental statutory infraction. It is also
observed that, in the present case, no material brought on
record by owner of offending vehicle (i.e., insured) to prove that
he was having a permit of offending vehicle on date of accident
and held that insurer is not liable in such a case. However,
order passed by Courts below in such a situation directing
insurer to pay compensation amount to claimants with interest
with the stipulation that insurer must be entitled to recover the
same from owner and driver of vehicle, held, was proper, being
in consonance with principle of pay and recover.
18. Having taken note of the principles laid down in the
judgments referred (supra), it is clear that the Insurance
Company cannot be made as liable to pay the compensation as
contended by the learned counsel for the appellant.
19. Learned counsel appearing for the appellant also
relied upon the judgment of this Court passed in
M.F.A.NO.4945/2014 dated 01.09.2022, wherein, this Court
comes to the conclusion that, when the claimants are third
parties, even in the appeal filed by the insured, the Court can
direct the Insurance Company to pay the compensation and
recover the same from the insured. The learned counsel
appearing for the respondent/Insurance Company would submit
that, when the appellant himself has approached this Court by
filing an appeal, the question of directing the Insurance
Company to pay and recover does not arise, when the Court
comes to the conclusion that the Insurance Company is not
liable to pay the compensation.
20. Having perused the proviso of Section 149(1) of the
Motor Vehicles Act, 1988, the words used is that, the Insurance
Company shall, upon receiving information of the accident,
either from claimant or through accident information report or
otherwise, designate an officer to settle the claims relating to
such accident. The Apex Court also, in both the judgments
referred (supra), invoking Section 149 of the Motor Vehicles Act,
1988 comes to the conclusion that Insurance Company can raise
the defence and directed to pay and recover the amount from
the insured and the object of the Act is also to satisfy the
amount, keeping in view the interest of the third parties, who
are not responsible for the accident and recover the same.
Hence, I answer point No.(i) as 'negative', however, the
Insurance Company is liable to pay the compensation at the first
instance and recover the same from the insured as held by the
Apex Court.
Point No.(ii)
21. No doubt, this matter was heard in part, later the
claimants have approached this Court by filing a cross-objection
in 2022, though the appeal is of the year 2016. The main
contention of the Insurance Company is that, cross-objection
ought to have been filed within one month from the date of
service of notice and admittedly, the same is not filed within one
month. It is not in dispute that the claimants have also engaged
the counsel and contested the matter. But, it is settled law that,
even in the absences of an appeal by the claimants, the Court
can award just and reasonable compensation invoking Order 41,
Rule 33 of C.P.C. However, the claimants have filed cross-
objection belatedly. Though the statute provides that, cross-
objection should be filed within one month, the enactment of
Motor Vehicles Act, 1988 is a social legislation and the same is
for the benefit of the victims. Under such circumstances, the
contention of the Insurance Company cannot be accepted. This
Court also, by invoking Order 41, Rule 33 of C.P.C., even in the
absence of an appeal, can award just and reasonable
compensation.
22. In the case on hand, it has to be noted that the
claimants are wife, children and mother of the deceased, who
are five in numbers. The Tribunal, while assessing the
compensation, taken the income of Rs.6,000/- per month and
accident has occurred in 2014 and the notional income would be
Rs.8,500/- per month. It has to be noted that, no future
prospects has been added while awarding the compensation, no
doubt, the Tribunal awarded compensation considering the
relevant multiplier of '16', since the deceased was aged about 35
years and when the future prospects has not been considered
and income taken was also on the lower side, this Court can
entertain the cross-objection filed by the claimants, even though
the same is filed belatedly and award just and reasonable
compensation or otherwise, it would cause injustice to the
claimants.
23. Having taken note of the notional income of
Rs.8,500/- per month and adding future prospects at 40%, the
income comes to Rs.11,900/- (8,500+3,400) per month. Since,
the claimants are wife, children and mother, 1/4th has to be
deducted towards personal expenses. After deducting 1/4th, the
income works out to Rs.8,925/- (11,900 - 2,975). Hence,
taking the income of Rs.8,925/- and applying the relevant
multiplier of '16', the loss of dependency works out to
Rs.17,13,600/- (8,925 x 12 x 16).
24. Apart from that, the claimants are also entitled for
an amount of Rs.40,000/- each towards loss of consortium and
love and affection which comes to Rs.2,00,000/- (40,000 x 5).
25. The claimants are also entitled for an amount of
Rs.33,000/- towards loss of estate and funeral expenses.
Hence, in all, the claimants are entitled for compensation of
Rs.19,46,600/- as against Rs.10,29,000/- awarded by the
Tribunal.
Point No.(iii)
26. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal filed by the insured and cross-
objection filed by the cross-objectors are
allowed in part. The judgment and award of
the Tribunal passed in M.V.C. No.295/2014
dated 14.03.2016 on the file of Senior Civil
Judge & MACT-IX, Harapanahalli, is modified
granting compensation of Rs.19,46,600/- as
against Rs.10,29,000/- awarded by the
Tribunal.
(iii) The Insurance Company is directed to pay
the compensation with interest at 6% per
annum from the date of petition till
realization within six weeks from today and
thereafter, recover the same from the
insured-owner.
(iv) The amount deposited by the insured-owner
shall be transmitted to the Tribunal,
forthwith.
(v) The registry is directed to transmit the
records to the Tribunal, forthwith.
Sd/-
JUDGE
ST
