Karnataka High Court
V. Velumurugan vs Smt. Kavitha L on 6 August, 2024
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MFA No. 5973 of 2013
C/W MFA.CROB No. 80 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6 TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 5973 OF 2013 C/W
MFA CROB NO. 80 OF 2021 (MV-D)
IN MFA NO. 5973/2013
BETWEEN:
V. VELUMURUGAN
S/O VENUGOPALA, AGED 40 YEARS
R/A N.199,RAMAGOPALA LAYOUT
NEAR SBI,SUBBANAPALYA
BANASAWADI MAIN ROAD
BANGALORE-33 ...APPELLANT
(BY SRI. PRAKASH M H., ADV.)
AND:
1. SMT. KAVITHA L
W/O LATE SRINIVASA K
AGED 24 YEARS
2. SMT MUNIYAMMA
Digitally signed by W/O LATE KRISHNAPPA
PRAJWAL A AGED 63 YEARS
Location: HIGH COURT
OF KARNATAKA 3. KUM PALLAVI S
D/O LATE SRINIVASA K
AGED 6 YEARS
4. MAST.GIRISH
S/O LATE SRINIVASA K
AGED 1 YEAR
RESPONDENT NOS. 3 AND 4 ARE
MINOR AND REP. BY RESPONDENT NO.1
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MFA No. 5973 of 2013
C/W MFA.CROB No. 80 of 2021
ALL ARE R/AT D NO.10-53
NEAR DHARMARAYA SWAMY
TEMPLE HOSAKOTE TOWN
HOSAKOTE 562 114
5. THE MANAGER
NEW INDIA ASSURANCE CO LTD
T P HUB,2ND FLOOR
MAHALAKSHMI CHAMBERS
M G ROAD,BANGALORE-01 ...RESPONDENTS
(BY SRI.K.L.SREENIVAS, ADV. FOR R1 TO R4;
R3 AND R4 ARE MINORS REP. BY R1;
SRI. A. N. KRISHNA SWAMY, ADV. FOR R5)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 1.4.2013 PASSED
IN MVC NO.4553/2012 ON THE FILE OF THE 22ND ADDITIONAL
SMALL CAUSES JUDGE, COURT OF SMALL CAUSES, MEMBER,
MACT, BANGALORE, AWARDING A COMPENSATION OF
RS.11,48,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT.
IN MFA CROB NO. 80/2021
BETWEEN:
1. SMT. KAVITHA L
W/O LATE SRINIVASA K
AGED 31 YEARS
2. SMT MUNIYAMMA
W/O LATE KRISHNAPPA
AGED 71 YEARS
3. KUM PALLAVI S.
D/O LATE SRINIVASA K
AGED 14 YEARS
4. MAST GIRISH
S/O LATE SRINIVASA K AGED 9 YEARS
CROSS OBJECTOR NO. 3 AND 4 ARE
MINORS AND REP. BY CROS OBJECTOR NO.1.
ALL ARE R/AT D NO.10-53 NEAR
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MFA No. 5973 of 2013
C/W MFA.CROB No. 80 of 2021
DHARMARAYA SWAMY TEMPLE
HOSAKOTE TOWN, HOSAKOTE 562 114
... CROSS OBJECTORS
(BY SRI.K.L.SREENIVAS, ADV.)
AND:
1. THE MANAGER, NEW INDIA
ASSURANCE CO LTD. TP HUB
2ND FLOOR, MAHALAKSHMI
CHAMBERS, M G ROAD
BANGALORE-01
2. V. VELUMURUGAN
S/O VENUGOPALA, AGED 48 YEARS
R/A N.199, RAMAGOPALA LAYOUT
NEAR SBI,SUBBANAPALYA
BANASAWADI MAIN ROAD
BANGALORE-33 ... RESPONDENTS
(BY SRI.A.N.KRISHNA SWAMY, ADV. FOR R1;
SRI. PRAKASH M.H., ADV. FOR R2)
THIS MFA.CROB IS FILED UNDER ORDER XLI RULE 22 OF
THE CPC AGAINST THE JUDGMENT AND AWARD DATED
01.04.2013 PASSED IN MVC NO. 4553/2012 ON THE FILE OF
THE XXII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER,
MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL AND CROB, COMING ON FOR HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In these two appeals, the owner as well as the
petitioners have challenged the judgment and award
dated 01.04.2013 passed in M.V.C.No.4553/2012 by the
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XXII Additional Small Causes Judge and Member, MACT,
Bengaluru ('the Tribunal' for short).
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, on 15.06.2012 at
about 3.30 p.m., the husband of 1st petitioner and father
of petitioner Nos.3 and 4 and son of petitioner No.2 by
name Srinivasa K., the deceased, was riding the motor
cycle bearing Reg.No.KA-53/K-9800 as a pillion rider, in
front of Raghavendra Talkies, Sulibele road, Hospet, a
tanker lorry bearing Reg.No.KA-03-AA-1156 dashed
against the motor cycle. Due to which, the deceased fell
down and sustained injuries and he was treated at MVJ
Hospital, Hospet, but he succumbed to the injuries.
Petitioners being dependants of the deceased have
approached the Tribunal for grant of compensation.
Claim was opposed by the respondents. The Tribunal,
after taking the evidence and hearing both the sides by
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the impugned judgment allowed the claim petition
granting compensation of Rs.11,48,000/- with interest at
the rate of 6% p.a. directing the owner of the vehicle to
pay the compensation and rejected the claim petition
against the insurance company. Challenging the quantum
of compensation and liability, the owner of the vehicle
has filed MFA.No.5973/2013, whereas the petitioners
have filed MFA.Crob.80/2021 seeking enhancement of
compensation on various grounds.
4. Heard the arguments of Sri Prakash M.H, learned
counsel for the owner of the vehicle, Sri.K.L.Sreenivas,
learned counsel for the petitioners and Sri A.N.Krishna
Swamy, learned counsel for the Insurance Company.
5. It is contended by the learned counsel for the
owner of the tanker that the driver was holding valid and
effective driving licence to drive the heavy goods vehicle.
He was also trained to drive the special category of
vehicle and he has also obtained the certificate.
Unfortunately, the certificate was not endorsed on the
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driving licence. The purpose of making an endorsement
compulsory in driving licence, to enforce the driver to
acquire required training to drive a specified class of
vehicle. The driver since already taken the driving
licence, mere omission in not getting an endorsement is
not a ground for the insurance company to avoid its
liability and sought for direction to the insurance
company to indemnify his liability.
6. Per contra, learned counsel for the insurance
company has contended that the tanker involved in the
accident was a heavy goods vehicle, which was carrying
the petrol, hazardous controlled goods. In order to drive
such type of vehicle, a special endorsement is required in
the driving licence, which is not complied by the driver in
question. It is further contended that the Proviso to
Section 14(2) of the Motor Vehicles Act (for short,
'M.V.Act') mandates training of the driver every year
when renewal of licence takes place. Mere obtaining a
certificate that he has trained to drive the special
category of vehicle is not sufficient. Therefore, the
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insurance company can avoid its liability to pay the
compensation.
7. It is contended by the learned counsel for the
petitioners that the Tribunal has taken income of the
deceased at Rs.6,000/- and a person with no proof of
income in the year 2012 will earn not less than
Rs.10,000/- per month. Hence, he sought for
enhancement of compensation claiming that the award of
the Tribunal is inadequate.
8. I have given my anxious consideration to the
arguments addressed on behalf of the parties and
perused the records.
9. The material on record clearly pointed out that
there was an accident on 15.06.2012 at 3.30 p.m., at
Hoskote involving the petrol tanker and the motor cycle.
That the deceased was the pillion rider and the tanker
was a heavy goods vehicle, which was carrying
hazardous material i.e. petrol.
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10. As rightly pointed out by the learned counsel
for the insurance company that an ordinary person
having a driving licence to drive the heavy goods vehicle
is not authorized to drive special category of vehicle in
view of the endorsement is mandated in the driving
licence. Admittedly, the vehicle is a petrol tanker and a
person with having licence to drive heavy goods vehicle
is not permitted to drive the special category of vehicle.
In this regard, learned counsel for the owner of the
vehicle relies upon the judgment of Division Bench of this
Court in VIJAYAKUMARI R. Vs. KALPANA reported in
2018 ACJ 1462. At para 12 of the said judgment, this
Court discussed in detail with reference to the Section
14(2) of the M.V.Act, where a special driving licence is
mandated in order to drive a tanker. The vehicle involved
in this case is a tanker wherein the abrasions are noted
as non-owning of medical fitness certificate, age proof of
the driver and minor breaches in the licensing conditions.
These are the minor abrasions, which can be ignored as
they are inconsequential deviations. But herein this case,
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the driver of the vehicle did not have valid endorsement
authorizing him to drive the special category of vehicle
which carrying a hazardous goods (controlled goods
petrol). Petrol is an highly inflammable material which
fall within the purview of the hazardous goods. Hence,
the judgment of this Court is not going to help the owner
of the vehicle to force the insurance company to shoulder
his responsibility.
11. Learned counsel for the petitioners relying upon
the judgment in RENU AND ANOTHER V. THE
ORIENTAL INSURANCE CO.LTD. AND ANOTHER,
reported in 2014 ILR (Kar) 2592, contended that the
driver of the tanker was holding valid driving licence to
drive the heavy goods vehicle. Spot mahazar did not
indicate that for the reason of the tanker carrying the
petrol, accident was occurred. Hence, his contention that
the insurance company has to indemnify him and to pay
the compensation. The facts of the said case cannot be
equated with the facts of this case as the tanker in
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question was carrying a hazardous material and there is
a basic violation of the requirement of the driving licence.
12. Learned counsel for the petitioners also relied
upon the judgment of the Division Bench of this Court in
NEW INDIA ASSURANCE CO.LTD. Vs.
KUM.K.MANOGNA AND OTHERS in MFA.No.3751/2012
connected cases, wherein the facts are quiet different
and it is not going to help the owner of the vehicle or the
petitioners as in the said case, the lorry was carrying
empty gas cylinders, herein in this case, there is no
evidence on record that the tanker vehicle was empty or
it was not carrying the petrol.
13. In view of the fact that the essential
requirement to honor the policy is an endorsement on
heavy goods vehicle, driving licence of the tanker lorry
and therefore insurance company can avoid its liability.
At the same time, when there is a violation of the terms
and conditions of the policy, the insurance company
though having no liability, the petitioner cannot be forced
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to go against the owner of the tanker. The insurance
company has to pay the compensation and recover the
same from the owner of the vehicle in the same
proceedings.
14. Adverting to the quantum of compensation is
concerned, the Tribunal has assessed total compensation
at Rs.11,48,000/-. As on the date of accident, the
deceased was aged 37 years. There are four dependants
of the deceased.
15. In a case of this nature, compensation has to
be determined by following the principles settled by the
Hon'ble Apex Court in National Insurance Co.Ltd. -vs-
Pranay Sethi and Others1, Sarla Varma (Smt.) and
Others -vs- Delhi Transport Corporation and
Another2 and Magma General Insurance Company
Ltd. -vs- Nanu Ram alias Chuhru Ram and others3.
16. By following the said principles, the age of the
deceased is taken within the bracket of 36 to 40 years,
(2017) 16 SCC 680
(2009) 6 SCC 121
(2018) 18 SCC 130
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`thereby the multiplier applicable is '15' and in the year
2012, a person with no proof of income will earn not less
than Rs.7,000/- per month. Hence, notional income of
the deceased is taken at Rs.7,000/- and since the
deceased falls under the bracket of 36 - 40 years, 40%
of future prospects has to be considered and 1/4 has to
be deducted towards personal expenses. Then loss of
dependency will be: Rs.7,000/- + Rs.2,800/- (40%) =
Rs.9,800/- - Rs.2,450/- (1/4) = Rs.7,350/- x 12 x 15 =
Rs.13,23,000/-.
17. Under conventional heads, petitioners being
dependants of the deceased are entitled to a sum of
Rs.40,000/- each towards loss of love and affection.
Towards funeral expenses and loss of estate, Rs.15,000/-
has to be assessed. In view of judgment in Pranay
Sethi's case (supra), since the claim is of the year 2012,
10% appreciation on the conventional heads has to be
given. Thereby the total compensation comes to
Rs.15,29,000/- as against Rs.11,48,000/- awarded by
the Tribunal. Thus, petitioners are entitled for enhanced
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compensation of Rs.3,81,000/-, it is the just
compensation to which the petitioners are entitled, in the
facts and circumstances of the case.
18. In view of above discussion, the appeal filed by
the owner of the vehicle is devoid of merits and Cross
Objection filed by the petitioners deserves merit
consideration, in the result, the following;
ORDER
(i) MFA.No.5973/2013 filed by the owner of the
vehicle is dismissed.
(ii) MFA.Crob.No.80/2021 filed by the petitioners is
allowed in part.
(iii) The impugned judgment and award is
modified;
(iv) The petitioners would be entitled to enhanced
compensation of Rs.3,81,000/- with interest at
the rate of 6% per annum from the date of
petition till deposit excluding interest for the
delayed period from 15.11.2013 till
10.03.2021 in filing the Cross Objection;
(v) The insurance company is directed to deposit
the compensation amount within eight weeks
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from the date of receipt of certified copy of this
judgment with liberty to recover the same
from the owner of the vehicle in the same
proceedings.
(vi) The amount in deposit, if any, shall be
transmitted to the Tribunal along with records
forthwith.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
MKM
