Karnataka High Court
The Divisional Manager vs Smt.Kariyamma on 20 November, 2023
Bench: S.Sunil Dutt Byssdyj, Kshj
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NC: 2023:KHC-D:13512-DB
MFA No. 101202 of 2020
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
MFA NO.101202 OF 2020 (MV-D)
BETWEEN:
THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE COMPANY LIMITED
STATION ROAD HOSPETH-583201, DIST: BALLARY
(POLICY NO.121500/31/2013/01/50008973 VALID
FROM 13.12.2012 TO 2.12.2013
REPRESENTED BY ITS REGIONAL MANAGER
AUTHORIZED SIGNATORY
... APPELLANT
Digitally (BY SRI. G. N. RAICHUR, ADVOCATE)
signed by
VISHAL
VISHAL NINGAPPA AND:
NINGAPPA PATTIHAL
PATTIHAL Date:
2023.11.23 1. SMT.KARIYAMMA
17:54:02 W/O SHARANAGOUDA POLICE PATIL
+0530
AGE: 36 YEARS, OCC: AGRICULTURE
R/O: SHAKAPUR, TQ. KUSHTAGI
DIST. KOPPAL-583277.
2. KUMAR SIDDANAGOUDA
S/O SHARANAGOUDA POLICE PATIL
AGE: 18 YEARS, OCC: STUDENT
R/O. SHAKAPUR, TQ. KUSHTAGI
DIST. KOPPAL-583277.
3. KUMARI VIJAYALAXMI
D/O SHARANAGOUDA POLICE PATIL
AGE: 15 YEARS, OCC: STUDENT
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MFA No. 101202 of 2020
R/O. SHAKAPUR, TQ. KUSHTAGI
DIST. KOPPAL-583277.
4. KUMARI HULEGEVVA
D/O SHARANAGOUDA POLICE PATIL
AGE: 12 YEARS, OCC: STUDENT
R/O SHAKAPUR TQ. KUSHTAGI
DIST. KOPPAL-583277.
5. KUMARI SAVITRI
D/O SHARANAGOUDA POLICE PATIL
AGE: 10 YEARS, OCC: STUDENT
R/O. SHAKAPUR, TQ. KUSHTAGI
DIST. KOPPAL-583277
RESPONDENT NO 3 TO 5 ARE
MINORS AND REPT BY NATURAL
MOTHER/RESPONDENT NO 1 BY NAME
SMT KARIYAMMA W/O
SHARANAGOUDA POLICE PATIL
AGE: 36 YEARS, OCC: AGRICULTURE
R/O. SHAKAPUR, TQ. KUSHTAGI
DIST. KOPPAL-583277.
6. SMT. ERAMMA
W/O SIDDANAGOUDA POLICE PATIL
AGE: 68 YEARS, OCC: NIL
R/O. SHAKAPUR, TQ. KUSHTAGI
DIST. KOPPAL-583277.
7. SRI. PRASHANT
S/O RAJANNASHA HOSMANI
AGE: 34 YEARS, OCC: DRIVER
R/O. M.G. NAGAR, 9TH CROSS HOSPET
DIST.BALLARY-583277
(OWNER AND DRIVER OF CAR
NO KA-35/A-7690)
...RESPONDENTS
(BY SRI. H. R. LATUR, ADVOCATE FOR R1-R6;
R3, R4, R5 MINORS R/BY R1;
SRI. HANUMANTH REDDY SAHUKAR, ADVOCATE FOR R7)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 18.09.2019 PASSED IN MVC
NO.192/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL, KUSHTAGI, AWARDING
COMPENSATION OF Rs.17,59,800/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL ITS REALIZATION.
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MFA No. 101202 of 2020
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ORDERS, THIS DAY, K.S. HEMALEKHA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
1. The appellant - Insurance Company is in
appeal on the ground of liability as well as on the ground
of quantum assailing the order dated 18th September 2019
on the file of the Senior Civil Judge and MACT at Kustagi
("the Tribunal" for short), whereby, the Tribunal awarded
the compensation of Rs.17,59,800/- with interest at the
rate of 6% p.a. from the date of petition till the date of
realization holding that respondent Nos.1 & 2 are jointly
and severally liable to pay the compensation with interest
and respondent No.2 - Insurance Company was directed
to deposit the amount within 30 days from the date of the
award.
2. The claimants filed the claim petition seeking
compensation of Rs.20,00,000/- (Rupees twenty lakhs
only) with interest on account of the death of one
Sharanagouda S/o. Siddanagouda, husband of the
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MFA No. 101202 of 2020
claimant No.1, who succumbed to the injuries sustained in
a road traffic accident that occurred on 30th April 2013,
when the deceased was proceeding towards Hosapete,
while returning to his village at about 7:20 p.m., and when
he was near the SVC School, Kushtagi, the driver of the
vehicle bearing No.KA-35/A-7690 coming from Hosapete
in a rash and negligent manner, dashed against the
deceased, as a result, the deceased - Sharanagouda died
at spot due to grievous injuries.
3. The claimants are the wife and children of the
deceased - Sharanagouda. It is the contention of the
claimants that the deceased was hale and healthy and
aged about 36 years doing agricultural and coolie work
and was earning Rs.10,000/- p.m. and according to the
claimants they were solely depending upon the income of
the deceased.
4. Pursuant to the notice ordered by the Tribunal,
respondent Nos.1 & 2 appeared through their respective
counsel and have filed their written statement.
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MFA No. 101202 of 2020
Respondent No.1, the owner and driver of the offending
vehicle bearing No.KA-35/A-7690 contended that the
vehicle has been duly insured with the 2nd respondent and
the insurance policy covering the vehicle was in force as
on the date of the accident, dated 30.04.2013.
5. Respondent No.2, Insurance Company filed its
written statement contending that the driver of the
offending vehicle was not possessing the valid licence and
the owner of the vehicle violated the policy conditions, the
fitness certificate is not valid as on the date of accident,
which was in force only upto 15.12.2012. The Insurance
Company denied about the monthly income of the
deceased and contended that the claimants have failed to
produce any documents to show that they are the legal
representatives of the deceased and sought to dismiss the
claim petition
6. On the basis of the pleadings, the Tribunal
framed the following issues:;
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MFA No. 101202 of 2020
"1. Whether the petitioner proves that, the
respondent No.1 drove the vehicle bearing
No.KA-35/A-7690 from Hosapete in a rash
and negligent manner and caused the
accident and the husband of the petitioner
died due to the negligence of respondent
Nos.1 & 2 are joint liable?
2. Whether the respondent No.2 proves that,
respondent No.1 was not having valid driving
license and not liable?
3. Whether the petitioner is entitled for the
compensation as prayed?
4. What award or order?"
7. The claimants in order to substantiate their
claim, examined claimant No.1 as PW1 and examined one
witness as PW2 and got marked the documents as Exs.P1
to P14. On the other hand, respondent No.1 examined
himself as RW1 and respondent No.2 examined the Officer
as RW2 and got marked the documents at Exs.D1 to D13.
8. The Tribunal on the basis of the pleadings, oral
and documentary evidence, allowed the claim petition in
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MFA No. 101202 of 2020
part awarding compensation of Rs.17,59,800/- with
interest at the rate of 6% p.a. from the date of petition till
the date of realization holding that the accident occurred
due to rash and negligent driving of the offending vehicle
bearing No.KA-35/A-7690 and fastened the liability jointly
on respondent Nos.1 & 2.
9. The Insurance Company is in appeal being
aggrieved by the fastening of liability by the Tribunal and
also on the ground that the award of compensation is on
the higher side.
10. Heard the learned counsel Shri G.N. Raichur
appearing for the appellant - Insurance Company and the
learned counsel Shri H.R. Latur appearing for the
respondent Nos.1 to 6 and perused the material on record.
11. Having heard the learned counsel appearing for
the parties and on perusal of the material on record as
well as the original records, the points that arise for our
consideration are:
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(1) Whether the fastening of the liability by
the Tribunal on the Insurance Company
holding the vehicle possessed fitness
certificate as on the date of accident is
justified?
(2) Whether the Insurance Company has
made out a case for reduction of the
compensation?
(3) Whether the claimants have made out a
case for reassessing the compensation?
POINT NO.1:
12. The date, time and occurrence of the accident
are not in dispute. It is also not in dispute that due to the
impact of the accident, the deceased succumbed to the
injuries on spot and the claimants being the wife and
children are entitled for compensation. The negligence on
the part of the offending vehicle bearing No.KA-35/A-7690
is evident from Ex.P1 - the complaint; Ex.P2 - FIR; Ex.P3
- spot mahazar; Ex.P4 - charge sheet; & Ex.P5 - inquest
mahazar, the said documents clearly establish the fact
that there was a rash and negligence driving of the
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MFA No. 101202 of 2020
offending vehicle by its driver. It is the contention of the
learned counsel for the Insurance Company that the driver
of the offending vehicle did not possess valid Driving
Licence as he was only having LMV licence and there was
no transport endorsement to drive the vehicle and the
liability ought to have been fastened upon the owner of
the vehicle and the Insurance Company ought to have
absolved from the liability. The said contention of the
learned counsel for the Insurance Company is not
acceptable for the reason that the Apex Court in the case
of Mukund Dwangan Vs. Oriental Insurance
Company Limited1, wherein at paragraph No.46, it is
held as under:
"46. Section 10 of the Act requires a driver
to hold a licence with respect to the class of
vehicles and not with respect to the type of
vehicles. In one class of vehicles, there may be
different kinds of vehicles. If they fall in the same
class of vehicles, no separate endorsement is
required to drive such vehicles. As light motor
vehicle includes transport vehicle also, a holder of
light motor vehicle licence can drive all the vehicles
of the class including transport vehicles. It was pre-
amended position as well the post-amended
position of Form 4 as amended on 28.3.2001. Any
AIR 2017 SC 3364
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MFA No. 101202 of 2020
other interpretation would be repugnant to the
definition of "light motor vehicle" in section 2(21)
and the provisions of section 10(2)(d), Rule 8 of the
Rules of 1989, other provisions and also the forms
which are in tune with the provisions. Even
otherwise the forms never intended to exclude
transport vehicles from the category of 'light motor
vehicles' and for light motor vehicle, the validity
period of such licence hold good and apply for the
transport vehicle of such class also and the
expression in Section 10(2)(e) of the Act 'Transport
Vehicle' would include medium goods vehicle,
medium passenger motor vehicle, heavy goods
vehicle, heavy passenger motor vehicle which
earlier found place in section 10(2)(e) to (h) and
our conclusion is fortified by the syllabus and rules
which we have discussed. Thus we answer the
questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section
2(21) of the Act would include a transport vehicle
as per the weight prescribed in section 2(21) read
with section 2(15) and 2(48). Such transport
vehicles are not excluded from the definition of the
light motor vehicle by virtue of Amendment Act
No.54/1994.
(ii) A transport vehicle and omnibus, the
gross vehicle weight of either of which does not
exceed 7500 kg. would be a light motor vehicle and
also motor car or tractor or a road roller, 'unladen
weight' of which does not exceed 7500 kg. and
holder of a driving licence to drive class of "light
motor vehicle" as provided in section 10(2)(d) is
competent to drive a transport vehicle or omnibus,
the gross vehicle weight of which does not exceed
7500 kg. or a motor car or tractor or road-roller,
the "unladen weight" of which does not exceed
7500 kg. That is to say, no separate endorsement
on the licence is required to drive a transport
vehicle of light motor vehicle class as enumerated
above. A licence issued under section 10(2)(d)
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MFA No. 101202 of 2020
continues to be valid after Amendment Act 54/1994
and 28.3.2001 in the form.
(iii) The effect of the amendment made by
virtue of Act No.54/1994 w.e.f. 14.11.1994 while
substituting clauses (e) to (h) of section 10(2)
which contained "medium goods vehicle" in section
10(2)(e), medium passenger motor vehicle in
section 10(2)(f), heavy goods vehicle in section
10(2)(g) and "heavy passenger motor vehicle" in
section 10(2)(h) with expression 'transport vehicle'
as substituted in section 10(2)(e) related only to
the aforesaid substituted classes only. It does not
exclude transport vehicle, from the purview of
section 10(2)(d) and section 2(41) of the Act i.e.
light motor vehicle.
(iv) The effect of amendment of Form 4 by
insertion of "transport vehicle" is related only to the
categories which were substituted in the year 1994
and the procedure to obtain driving licence for
transport vehicle of class of "light motor vehicle"
continues to be the same as it was and has not
been changed and there is 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."
13. Though Mukund Dewangan's case has been
referred to the larger Bench, it is pertinent to note that the
said judgment still holds the field. Thus, the contention of
the learned counsel for the Insurance Company that the
Insurance Company needs to be absolved from the liability
is unsustainable. The other contention of the learned
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counsel appearing for the Insurance Company is that the
vehicle did not possess the fitness certificate as on the
date of accident and placed reliance at Ex.R7, which is a
fitness certificate valid from 16.12.2010 to 15.12.2012,
which is issued by the RTO. The other document produced
by the Insurance Company itself at Ex.R13, which pertains
to the offending vehicle. A perusal at Ex.R13 evidences
that the RTO, Hosapete issued the fitness certificate,
which was in force from 17.12.2012 to 16.12.2013, which
clearly establishes that as on the date of accident i.e., on
30.04.2013, the fitness certificate was valid. Hence, the
contention of the learned counsel appearing for the
Insurance Company that the vehicle did not possess the
fitness certificate as on the date of accident and the
Insurance Company needs to be absolved from the liability
is not acceptable. Even otherwise, non-possessing of
fitness certificate would not be a ground to absolve the
liability of the Insurance Company and the point No.1
framed for consideration is answered in the affirmative
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holding that the Tribunal was justified in fastening the
liability on the Insurance Company.
POINT NO.2 & POINT NO.3:
14. Insofar as quantum of compensation is
concerned, it is the contention of the learned counsel
appearing for the claimants that the Tribunal has not
awarded the compensation under the conventional heads
as per the dictum of the Apex Court in the cases of
Satinder Kaur alias Satwinder Kaur & others Vs.
United India Insuance Co. Ltd.,2 and Magma General
Insurance Company Limited Vs. Nanu Ram alias
Chuhru Ram and others3.
15. On the other hand, learned counsel appearing
for the Insurance Company contended that the Tribunal
ought to have taken the future prospects at 25% instead
of 30% as per the law laid down by the Apex Court in the
case of National Insurance Company Limited Vs.
AIR 2020 SC 3076
(2018) 18 SCC 130
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MFA No. 101202 of 2020
Pranay Sethi & Others4. Learned counsel appearing for
the Insurance Company would also contend that the
Tribunal has taken the income of the deceased at
Rs.9,000/- per month without there being any evidence to
substantiate the actual income of the deceased. It is
relevant to note that the claimants have produced Ex.P14,
which are the two RTCs of the land standing in the name
of the deceased. However, except the said document, no
other materials are placed by the claimants to show the
actual income of the deceased. In the absence of the
same, the guidelines issued by the Karnataka State Legal
Services Authority ("KSLSA" for short) needs to be
considered. Taking into account the year of the accident as
2013, the notional income to be taken as per the
guidelines of KSLSA is Rs.7,000/- per month taking note of
the fact that certain extent of Kushki lands were possessed
by the deceased. However, the materials to be considered
is that the claimants have produced the RTCs, which
indicates that the lands are Kushki lands and some
(2017 16 SCC 680
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amount needs to be added to the income of the deceased.
Thus, we are of the considered view that the income of the
deceased to be taken as Rs.8,000/- instead of Rs.9,000/-
as held by the Tribunal. The Tribunal has taken the future
prospects at 30% instead of 25%, which is against the law
laid down by the Apex Court in the case of Pranay Sethi.
As the age of the deceased as on the date of accident was
36 years and was self employed and the notional income
of the deceased would come to Rs.8,000/- + 25%, which
comes to Rs.10,000/- as the deceased was married and
the dependents were six in number, 1/4th of the income
has to be deducted and applying the multiplier of 15, since
the age of the deceased was 36 years, the loss of
dependency that could be arrived is Rs.13,50,000/-
(Rs.10,000/- x 12 x 15 x ¾). The Tribunal has not
awarded compensation as held by the Apex Court in the
cases of Satinder Kaur and Magma General Insurance
Company Limited as the dependents are six in number.
The loss of consortium that would be arrived is
Rs.40,000/- each along with 10% escalation. Accordingly
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Rs.2,64,000/- (Rs,40,000/- x 6 + 10%) is awarded
under the head "loss of consortium". Further,
compensation of Rs.15,000/- each is awarded under the
heads "loss of estate and funeral expenses" respectively
along with 10% escalation. Therefore, under these heads
Rs.33,000/- (Rs.15,000/- x 2 + 10%) is awarded.
Accordingly, point No.2 & Point No.3 are answered partly
in the affirmative holding that the claimants have made
out a case for reassessing the compensation awarded by
the Tribunal and the appellant - Insurance Company has
made out a case for reduction of the compensation by
reassessing the evidence and material on record and the
quantum of compensation, we are of the considered view
that the claimants are entitled for just and fair
compensation as under:
Loss of dependency Rs.13,50,000/-
Loss of consortium (Rs.40,000/- x 6 + 10%) Rs.2,64,000/-
Loss of estate and funeral expenses Rs.33,000/-
(Rs.15,000/- x 2 + 10%)
Total Rs.16,47,000/-
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16. The claimants are entitled to total compensation
of Rs.16,47,000/- as against Rs.17,59,800/- as awarded
by the Tribunal with interest at the rate of 6% p.a. from
the date of petition till realization.
17. In the result, we pass the following:
ORDER
(i) The appeal of appellant - Insurance
Company is hereby allowed in part.
(ii) The impugned judgment and award dated
18th September 2019 in MVC No.192/2017
on the file of the Senior Civil Judge &
MACT, Kushtagi is hereby modified and
the claimants are entitled to total
compensation of Rs.16,47,000/- as
against Rs.17,59,800/- awarded by the
Tribunal with interest at 6% p.a. from the
date of petition till realization.
(iii) The deposit, apportionment and release
would be as per the order of the Tribunal.
(iv) The amount in deposit, if any, be
transmitted to the Tribunal forthwith.
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(v) The Registry to transmit the Trial Court
Records forthwith.
(vi) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
Vnp* / CT: UMD
