Karnataka High Court

The Divisional Manager vs Smt. Puspha W/O Shivaji Patil on 1 February, 2024

Author: S G Pandit

Bench: S G Pandit

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                                                            MFA No. 101103 of 2017




                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 1ST DAY OF FEBRUARY, 2024

                                                PRESENT
                                 THE HON'BLE MR JUSTICE S G PANDIT
                                                      AND
                                 THE HON'BLE MR JUSTICE K V ARAVIND
                           MISCELLANEOUS FIRST APPEAL NO.101103 OF 2017
                                             (MV-D)

                      BETWEEN:

                      THE DIVISIONAL MANAGER,
                      RELIANCE GENERAL INSURANCE COMPANY
                      LIMITED, MUMBAI HAVING ITS BRANCH
                      OFFICE AT: CTS NO.10719, 1357/A,
                      MAHADEVA PLAZA, BELAGAVI,
                      (INSURER OF TRUCK BEARING
                      REG. NO. KA-26-6432,
                      REPRESENTED BY ITS AUTHORIZED SIGNATORY,
                      RELIANCE GENERAL INSURANCE COMPANY LTD,
                      DESAI CROSS, DESHPANDE NAGAR, HUBBALLI.
                                                                        ...APPELLANT
                      (BY SRI. G. N. RAICHUR, ADVOCATE)
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
                      AND:
Date: 2024.02.09
10:33:03 +0530
                      1.    SMT. PUSPHA
                            W/O. SHIVAJI PATIL,
                            AGE: 47 YEARS,
                            OCC: HOUSEHOLD,
                            R/O. PLOT NO.1148,
                            SAHYADRI NAGAR,
                            BAUXITE ROAD, BELAGAVI.

                      2.    ASHWINI
                            D/O. SHIVAJI PATIL,
                            AGE: 25 YEARS, OCC: STUDENT,
                            R/O. PLOT NO.1148,
                            SAHYADRI NAGAR,
                            BAUXITE ROAD, BELAGAVI.
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                                      MFA No. 101103 of 2017




3.   ROHAN
     S/O. SHIVAJI PATIL,
     AGE: 23 YEARS,
     OCC: STUDENT,
     R/O. PLOT NO.1148,
     SAHYADRI NAGAR,
     BAUXITE ROAD, BELAGAVI.

4.   SMT. YELLUBAI
     W/O. TUKARAM PATIL,
     AGE: 72 YEARS, OCC: NIL,
     R/O. PLOT NO. 1148,
     SAHYADRI NAGAR,
     BAUXITE ROAD, BELAGAVI.

5.   TUKARAM PARASHURAM PATIL,
     DEAD, REPRESENTED BY
     RESPONDENT NO.1 TO 4 AS LRS.

6.   FARUQAHAMED IKABAL KAZI,
     AGE: 32 YEARS,
     OCC: BUSINESS,
     R/O. CTS NO. 4818/16A,
     1ST CROSS, SUBHASH NAGAR,
     BELAGAVI.
                                              ...RESPONDENTS

(BY SRI. SANJAY S. KATAGERI, ADV. FOR RESPONDENT NO.1 TO 4,
RESPONDENT NO.5-DECEASED, HIS LRS, RESPONDENT NO.1 TO 4,
SRI. HANUMANT. R. LATUR, ADV. FOR RESPONDENT NO.6)


     THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
PRAYING TO CALL FOR THE RECORDS AND HEAR THE PARTIES AND
SET ASIDE THE JUDGMENT AND AWARD DATED 09.01.2017 PASSED
BY IN BY THE COURT OF THE V. ADDL. DISTRICT AND SESSIONS
JUDGE AND MACT, VI BELAGAVI PASSED IN MVC NO.1058/2015 BY
ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND
EQUITY.


      THIS APPEAL, COMING ON FOR HEARING ON INTERLOCUTORY
APPLICATION, THIS DAY, S G PANDIT, J., DELIVERED THE
FOLLOWING:
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                                        MFA No. 101103 of 2017




                         JUDGMENT

The insurer is in appeal questioning the quantum of

compensation granted under judgment and award dated

09.01.2017 in MVC No.1058/2015 on the file of V Addl.

District and Sessions Judge and VI Addl. MACT at Belagavi

(for short, 'Tribunal') and praying for modification of the

award.

2. Heard learned counsel Sri G.N.Raichur for

appellant/Insurance Company, learned counsel Sri Sanjay

S.Katageri for respondent Nos.1 to 5 and learned counsel Sri

Hanumant R.Latur for respondent No.6. Perused the appeal

papers as well as records.

3. Brief facts of the case are that wife, children and

parents of deceased Shivaji Tukaram Patil filed a claim

petition under Section 166 of the Motor Vehicles Act, 1988

claiming compensation for the death of Shivaji Tukaram

Patil-husband of 1st claimant in a road traffic accident, which

took place on 05.03.2015 involving motorcycle bearing

No.KA-22/L-6318 and truck bearing No.KA-26/6432. It is

stated that the deceased was working as Senior Telecom

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Office Assistant in BSNL, Belagavi and was getting salary of

Rs.56,251/- per month and was aged 52 years as on the

date of accident.

4. On service of summons, both respondent Nos.1

and 2 appeared before the Tribunal. Respondent No.1 in his

statement of objection contended that vehicle was duly

insured with respondent No.2 and the policy was valid as on

the date of accident. 2nd respondent in its statement of

objection denied the entire claim petition averments and

further contended that deceased also contributed his

negligence in causing the accident. It is further contended

that the driver of the offending vehicle had no valid driving

licence to drive the vehicle and since there is violation of

permit conditions, the insurer is not liable to indemnify.

Thus, prayed for dismissal of the claim petition.

5. Before the Tribunal, claimant No.1-wife of the

deceased examined herself as PW1 and also examined one

witness as PW2 apart from marking Exs.P1 to P34. 1st

Respondent examined himself as RW1 and marked

documents as Exs.R1 to R3. On behalf of respondent No.2,

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account officer examined as RW2 apart from marking

documents Exs.R4 to R11.

6. The Tribunal on consideration of the material on

record awarded total compensation of Rs.65,40,000/- with

interest @ 9% per annum from the date of petition till

realization. While awarding the above compensation, the

income of the deceased is assessed at Rs.56,251/- per

month, deducted 1/4th towards personal expenses of the

deceased adopted multiplier of '12' and added 15% towards

future prospects, since the deceased was in government

employment.

7. Heard learned counsel Sri G.N.Raichur for

appellant/insurance company, learned counsel Sri Sanjay

S.Katageri for respondent Nos.1 to 5 and learned counsel Sri

Hanumant R.Latur for respondent No.6. Perused the appeal

papers along with original records.

8. Learned counsel for the appellant would contend

that the Tribunal ought to have applied split multiplier since

the deceased was in government employment. He submits

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that deceased would not have received the said salary on his

retirement. Therefore, he submits that it would be

appropriate to apply split multiplier while calculating the

compensation on the head of loss of dependency. Further

learned counsel would submit that the vehicle in question

had no permit to ply in Maharashtra State where the

accident had taken place. Hence, there is violation of policy

conditions and the insurer would not be liable to indemnify

the owner. It is further submitted that the accident had

taken place at Kowad-Belagavi road in Maharashtra whereas

the permit in respect of offending truck, which is placed on

record as Ex.R2 would indicate that Truck had permitted to

ply within Karnataka. Thus, placing reliance on the decision

of the Hon'ble Apex Court in Amrit Paul Singh and

another V/s TATA AIG General Insurance Company

Limited and others1, learned counsel would submit that it

is a case of pay and recovery.

9. Further learned counsel Sri G.N.Raichur would

submit that the compensation awarded on conventional head

(2018) 7 SCC 558

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including consortium is on the higher side. He would submit

that as against Rs.3,20,000/-, the claimants would be

Rs.2,30,000/-. Thus, prays for allowing the appeal and to

modify the compensation.

10. Per contra, learned counsel Sri. Sanjay S.Katageri

for respondent Nos.1 to 5 would submit that no ground is

made out to interfere with the impugned judgment and

award and he would further submit that the compensation

granted by the Tribunal is just compensation, which needs

no interference. Further, learned counsel would submit that,

in case, this Court comes to the conclusion that there is

violation of permit condition, in terms of Amrit Paul Singh

case supra, the insurer may be directed to pay compensation

at the first instance with liberty to recover the same from the

6th respondent-owner.

11. Learned counsel Sri Hanumant R.Latur for

respondent No.6-owner would submit that the vehicle had

permit to drive within Karnataka and it is not a case of not

having the permit and it is also not a case of fundamental

breach of terms and conditions of the policy. Therefore, he

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justifies saddling of liability on Insurance Company. In that

regard, learned counsel places reliance on the decision of

co-ordinate bench of this Court in MFA No.201648/2015 and

connected appeals dated 26.11.2020. Thus, he prays for

dismissal of the appeal.

12. Having heard the learned counsel for the parties

and on perusal of the appeal papers along with original

records, the points that would fall for consideration in this

appeal are as follows:

i. Whether as contended by the appellant/ insurer, split multiplier is applicable in the facts and circumstances of the case?

ii. Whether the Tribunal is justified in saddling liability on the insurer?

13. Answer to the above points would be in the

negative and affirmative respectively for the following

reasons.

14. The accident which took place on 05.03.2015

involving motorcycle bearing No.KA-22/L-6318 and truck

bearing No.KA-26/6432 and the resultant death of Shivaji

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Tukaram Patil-husband of 1st claimant is not in dispute in this

appeal.

15. The insurer contends that since deceased was

government employee, split multiplier ought to have been

applied. The said contention is no more res-integra and the

Hon'ble Apex Court in the case of R.Valli and others V/s

Tamil Nadu State Transport Corporation Limited2 has

made it clear that the method of determination of

compensation applying two multipliers is clearly erroneous

and run counter to the judgment in National Insurance

Company Limited V/s Pranay Sethi and others3.

Therefore, the said contention raised by the appellant is

rejected.

16. Insofar as next contention that the offending

truck had only permit to ply within Karnataka and it had no

permit to ply in Maharashtra, hence, the liability could not

have been saddled on insurer, needs consideration. Ex.R2 is

document issued by the Senior Regional Transport Officer,

(2022) 5 SCC 107

(2017) 6 SCC 680

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Belagavi with regard to truck bearing No.KA-26/6432, which

indicates that the truck had permit for the period from

31.12.2014 to 30.12.2019 to ply within Karnataka. The

accident had taken place at Kowad, Chandagad Taluk of

Maharashtra. The Hon'ble Apex Court in Amrit Paul Singh

case supra has made it clear that use of a vehicle in a public

place without a permit is a fundamental statutory infraction

and has further affirmed the direction to the Insurance

Company to pay the compensation amount to the claimant

with interest at the first instance with liberty to recover the

same from the owner. But in the instant case, it is not the

case of the Insurance Company that the offending truck had

no permit to ply, but it is the case of the insurer that it had

no permit to enter Maharashtra or the vehicle is plied beyond

the permit limit. In an identical fact situation, the co-ordinate

bench of this Court in MFA No.201648/2015 supra at

paragraphs 7 and 8 has observed as follows:

"7. The insurance company has not seriously disputed the accident, involvement of the offending vehicle in the same and also the liability to satisfy the award amount. However, grievance of the learned

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counsel for the appellant-insurance company is that the direction of the learned Tribunal to satisfy the award amount entirely by the insurance company without giving a further direction to recover the same from the owner of the offending vehicle in the factual background that the accident has taken place within the State of Andhra Pradesh where the offending vehicle had no permit to ply is clearly unjustified. The fact that the offending vehicle was having valid permit to ply in the State of Maharashtra is not in dispute. Further it was brought to our notice that Ex.R7 (policy of Insurance) does not contain any term regarding the aspect of permit. The observation of a co-ordinate bench of this Court in MFA No.30752/2011 C/W MFA No.30753/2011 and MFA No.30388/2012 (MV) dated 11.07.2018 at para-10 reads as follows:

"There is no dispute about the autorickshaw having insurance coverage as on the date of occident, according to the insurance company, since six passengers travelled in it and that the accident occurred at a place beyond the area permitted for plying and therefore its liability to indemnify the owner gets exonerated. It is not possible to accept this argument. It is not the case that there was no permit at all for the autorickshaw. It had a valid permit, but it was taken beyond the permitted limit. There is some difference between the two. If there is no permit at all, or if a transport vehicle is used for

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a purpose not allowed by the permit as envisaged in S.149 (2) (a) (i) (c), the insurance company need not indemnify the liability of the insured for violation of policy condition. But where a vehicle is taken beyond the limits, it cannot be said that there is violation of policy condition, it is contravention of permit condition which is punishable according to S.192A of the Motor Vehicles Act."

8. In view of the above, the contention of the learned counsel for the insurance company that since the offending vehicle did not have any permit to ply in the State of Andhra Pradesh, insurance company has no liability to satisfy the award amount cannot be accepted and accordingly the contention put forth in this behalf is rejected."

17. In view of the above, we are not inclined to

accept the contention of the insurer.

18. The claimants would be entitled for compensation

under conventional heads at Rs.70,000/- and claimant

Nos.2 to 5 would be entitled for Rs.40,000/- each on

parental and filial consortium. Thus, the compensation

awarded at Rs.3,20,000/- is reduced to Rs.2,30,000/-. In

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all, the claimants would be entitled for modified

compensation as under:

Sl.No.              Particulars                        Amount
1.       Loss of dependency                        Rs.62,14,582.00
2.       Towards conventional heads                    Rs.70,000.00
3.       Towards parental      and       filial     Rs.1,60,000.00
         consortium
                       Total                      Rs.64,44,582.00

19. Thus, the claimants would be entitled to total

compensation of Rs.64,44,582/- as against Rs.65,40,000/-

awarded by the Tribunal.

20. The Tribunal committed an error in granting 9%

interest on the compensation. Taking note of the present day

bank interest rate, we reduce the rate of interest from 9% to

6%. The entire compensation amount will bear interest at

the rate of 6% per annum from the date of petition till

realization.

21. The appeal stands disposed off to the extent

indicate above.

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