Karnataka High Court
The Tata Aig vs Nirmala And Ors on 3 July, 2024
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NC: 2024:KHC-K:4558
MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3 RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 200592 OF 2018 (MV-D)
C/W
MISCL. FIRST APPEAL NO. 200593 OF 2018 (MV-D)
MFA CROSS OBJ NO. 200078 OF 2021 (MV-D)
MFA CROSS OBJ NO. 200080 OF 2021 (MV-D)
IN MFA.NO.200592 OF 2018
BETWEEN:
THE TATA AIG GENERAL INSURANCE CO., LTD,
Digitally signed PENINSULA CORPORATE PARK, PIRMAL TOWER,
by KHAJAAMEEN
L MALAGHAN 9TH FLOOR,
Location: HIGH GANPATHRAO KADAM MARG LOWER PAREL,
COURT OF
KARNATAKA MUMBAI-400013.
NOW REPRESENTED BY,
DULY CONSTITUTED ATTORNEY,
BANGALORE
...APPELLANT
(BY SRI S. S. ASPALLI, ADVOCATE)
AND:
1. SHANTAMMA W/O MOHAN @ MONAPPA
AGE: 42 YEARS, OCC: HOUSEHOLD
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
2. YANKAPPA S/O MOHAN @ MONAPPA
AGE: 23 YEARS, OCC: NIL
3. KAMALAMMA D/O MOHAN @ MONAPPA
AGE: 22 YEARS. OCC: NIL
4. GOVIND S/O MOHAN @ MONAPPA
AGE: 19 YEARS, OCC: NIL
5. DEVAMMA D/O MOHAN @ MONAPPA
AGE: 19 YEARS, OCC: NIL
6. RAMU S/O MOHAN @ MONAPPA
AGE: 18 YEARS, OCC: NIL
7. TAYAMMA W/O MANIKAPPA
AGE: 67 YEARS OCC: NIL,
ALL R/O. KALABELAGUNDI TANDA,
TQ. & DIST. YADGIR-585301.
8. SUKENDAR REDDY S/O SHIVAPUTRAPPA
AGE: 42 YEARS, OCC: OWNER OF BULERO JEEP,
REGN.NO.KA-33/M-3463,
R/O. MUDNAL LAYOUT, STATION ROAD,
YADGIR-585301.
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL, ADVOCATE,
FOR R1 TO R7;
VIDE ORDER DATED 13.03.2023, NOTICE TO R8 IS HELD
SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V.
ACT, PRAYING TO CALL FOR THE RECORDS IN
MVC.NO.90/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MACT-II, YADAGIR. B) SET ASIDE THE JUDGMENT AND
AWARD DATED 19.12.2017 IN MVC.NO.90/2015 PASSED BY
THE SENIOR CIVIL JUDGE AND MACT-II, YADGIR, BY
ALLOWING THE ABOVE APPEAL.
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
IN MFA.NO.200593 OF 2018.
BETWEEN:
THE TATA AIG GENERAL INSURANCE CO., LTD,
PENINSULA CORPORATE PARK, PIRMAL TOWER,
9TH FLOOR,
GANPATHRAO KADAM MARG LOWER PAREL,
MUMBAI-400013. NOW REPRESENTED BY,
DULY CONSTITUTED ATTORNEY,
BANGALORE
...APPELLANT
(BY SRI S. S. ASPALLI, ADVOCATE)
AND:
1. NIRMALA W/O ANJAPPA
AGE: 34 YEARS, OCC: HOUSEHOLD
2. RAJAMMA D/O ANJAPPA
AGE: 14 YEARS, OCC: NIL
3. SURESH S/O ANJAPPA
AGE: 12 YEARS, OCC: NIL
4. NAGAMMA D/O ANJAPPA
AGE: 11 YEARS, OCC: NIL
5. LALITHAMMA D/O ANJAPPA
AGE: 9 YEARS, OCC: NIL
6. AMBIKA @ SHIVAMMA D/O ANJAPPA
AGE: 7 YEARS, OCC: NIL,
RESPONDENTS NO.2 TO 6 ARE MINORS U/G OF,
THEIR NATURAL MOTHER NEXT FRIEND,
RESPONDENT NO.1, NIRMALA,
ALL R/O. KALABELAGUNDI TANDA,
TQ. & DIST. YADGIR-585301.
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
7. SUKENDAR REDDY S/O SHIVAPUTRAPPA
AGE: 42 YEARS, OCC: OWNER OF BULERO JEEP,
REGN.NO.KA-33/M-3463
R/O. MUDNAL LAYOUT STATION ROAD,
YADGIR-585301.
...RESPONDENTS
(BY SRI VEERANAGOUDA MALIPATIL ,ADVOCATE FOR,
R1 TO R6;
VIDE ORDER DATED 11.07.2022 NOTICE TO R7 IS,
HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173 (1) OF M.V.
ACT, PRAYING TO A) CALL FOR RECORDS IN MVC.NO.89/2015
ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT-II,
YADGIR. B) SET-ASIDE THE JUDGMENT AND AWARD DATED
19.12.2017 IN MVC.NO.89/2015 PASSED BY SENIOR CIVIL
JUDGE AND MACT-II, YADAGIR, BY ALLOWING THE ABOVE
APPEAL.
IN MFA CROSS OBJ NO.200078 OF 2021.
BETWEEN:
1. NIRMALA W/O ANJAPPA
AGE: 37 YEARS, OCC: HOUSEHOLD
2. RAJAMMA D/O ANJAPPA
AGE: 17 YEARS, OCC: NIL
3. SURESH S/O ANJAPPA
AGE: 15 YEARS, OCC: NIL
4. NAGAMMA D/O ANJAPPA
AGE: 14 YEARS, OCC: NIL
5. LALITHAMMA D/O ANJAPPA
AGE: 11 YEARS, OCC: NIL
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
6. AMBIKA @ SHIVAMMA D/O ANJAPPA
AGE: 10 YEARS, OCC: NIL,
THE APPELLANTS NO.2 TO 6 ARE MINORS,
U/G OF THEIR NATURAL MOTHER/NEXT FRIEND,
APPELLANT NO.1,
ALL ARE R/O KALABELAUNDI TANDA,
TQ. AND DIST. YADGIR.
...CROSS OBJECTORS
(BY SRI VEERANAGOUDA MALIPATIL, ADVOCATE)
AND:
1. SUKENDAR REDDY S/O SHIVAPUTRAPPA
AGE: 45 YEARS, OCC: OWNER OF BULERO JEEP,
REG.NO.KA-33-M-3463,
R/O. MUDNAL LAYOUT,
STATION ROAD, YADGIR-585202.
2. THE TATA AIG GENERAL INSURANCE COMPANY LTD.,
PENINSULA CORPORATE PARK, PIRMAL TOWER,
9TH FLOOR, GANPATRAO KADAM MARG,
LOWER PAREL, MUMBAI-400013,
THROUGH ITS REGIONAL MANAGER.
...RESPONDENTS
(BY SRI. S.S. ASPALLI, ADVOCATE FOR R2;
VIDE ORDER DATED 26.06.2024 NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA CROB. IS FILED UNDER ORDER 41 RULE 22 OF
CPC, PRAYING TO ALLOW THE CROSS OBJECTION, THE
JUDGMENT AND AWARD DATED 19.12.2017 IN
MVC.NO.89/2015 PASSED BY THE LEARNED SENIOR CIVIL
JUDGE AND MACT II, YADGIR, MAY KINDLY BE MODIFIED BY
ENHANCING THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION.
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
IN MFA CROSS OBJ NO. 200080 OF 2021.
BETWEEN:
1. SHANTAMMA W/O MOHAN @ MONAPPA
AGE: 46 YEARS, OCC: HOUSEHOLD
2. YANKAPPA S/O MOHAN @ MONAPPA
AGE: 27 YEARS, OCC: NIL
3. KAMALAMMA D/O MOHAN @ MONAPPA
AGE: 27 YEARS, OCC: NIL
4. GOVIND S/O MOHAN @ MONAPPA
AGE: 25 YEARS, OCC: NIL
5. DEVAMMA D/O MOHAN @ MONAPPA
AGE: 23 YEARS, OCC: NIL.
6. RAMU S/O MOHAN @ MONAPPA
AGE: 22 YEARS, OCC: NIL
7. TAYAMMA W/O LATE MANIKAPPA
AGE: 71 YEARS, OCC: NIL,
ALL ARE R/O. KALABELAUNDI TANDA,
TQ. AND DIST. YADGIR.
...CROSS OBJECTORS
(BY SRI VEERANAGOUDA MALIPATIL, ADVOCATE)
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
AND:
1. SUKENDAR REDDY S/O SHIVAPUTRAPPA
AGE: 45 YEARS, OCC: OWNER OF BULERO JEEP,
REG.NO.KA-33-M-3463,
R/O. MUDNAL LAYOUT, STATION ROAD,
YADGIR-585202.
2. THE TATA AIG GENERAL INSURANCE COMPANY LTD.,
PENINSULA CORPORATE PARK, PIRMAL TOWER,
9TH FLOOR, GANPATRAO KADAM MARG,
LOWER PAREL, MUMBAI-400013,
THROUGH ITS REGIONAL MANAGER.
...RESPONDENTS
(BY SRI S.S. ASPALLI, ADVOCATE FOR R2;
VIDE ORDER DATED 13.03.2023 NOTICE TO R1 IS
DISPENSED WITH)
THIS MFA CROB. IS FILED UNDER ORDER XLI 41 RULE 22
OF CPC, PRAYING TO ALLOW THE CROSS OBJECTION, THE
JUDGMENT AND AWARD DATED 19.12.2017 IN
MVC.NO.90/2015 PASSED BY THE LEARNED SENIOR CIVIL
JUDGE AND MACT-II, YADGIR MAY KINDLY BE MODIFIED BY
ENHANCING THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 24.06.2024, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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MFA No. 200592 of 2018
C/W MFA No. 200593 of 2018
MFA.CROB No. 200078 of 2021
MFA.CROB No. 200080 of 2021
JUDGMENT
The above said appeals and cross-objections are
arising out of judgment and award passed by the learned
Senior Civil Judge and MACT-II, Yadgir, (for short
'Tribunal') in MVC.No.89/2015 and MVC.No.90/2015.
02. The MFA.No.200592/2018 and MFA.No.
200593/2018 are filed by the insurer against the judgment
and award passed by the Tribunal in MVC.No.90/2015 and
MVC.No.89/2015 respectively, challenging the liability
fastened on the insurer to pay the compensation.
03. The claimants have filed MFA.Crob.
No.200078/2021 and MFA.Crob.No.200080/2021
challenging the judgment and award passed by the
Tribunal in MVC.No.89/2015 and MVC.No.90/2015, for
enhancement of the compensation.
04. Both these MVC cases arise out of a common
accident. The legal heirs of the deceased persons have
filed different claim petitions for compensation. Both the
NC: 2024:KHC-K:4558
claim petitions were clubbed together and common
judgment and award was passed by the Tribunal on
19.12.2017.
05. The parties will be referred to as per their ranks
before the Trial Court for sake of convenience.
06. It is the case of the claimants that on
12.06.2014 at 05.45 p.m. in Narayanpeth Town, on
Eklaspur road, when the deceased Mohan and Anjappa
were proceedings on their motorcycle, the driver of Bolero
Jeep bearing its Reg.No.KA-33-M-3463 (for short 'offended
vehicle') came from opposite direction in a rash and
negligent manner and dashed against their motorcycle; As
a result of which, both sustained fatal injuries and
succumbed to the said injuries.
07. In MVC.No.89/2015, the contentions of the
claimants are that the deceased - Anjappa was aged about
34 years and he was earning Rs.20,000/- per month. The
claimants were depending upon his earnings. With these
reasons, they prayed to award the compensation of
Rs.20,70,000/-.
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08. Similarly, in MVC.No.90/2015 the claimants
have contended that they are the legal heirs of the
deceased - Mohan @ Monappa. He was aged about 45
years at the time of accident and he was a coolie and
agriculturist and earning Rs.20,000/- per month. With
these reasons, they prayed to award the compensation of
Rs.17,70,000/-.
09. The respondent No.1 is the owner of offended
vehicle, though appeared, did not file his counter to the
claim petitions. However, the respondent No.2 - insurer
had filed its counter, denying the contention of the claim
petitions in both the cases and further strongly contended
that the driver of the offended vehicle had no valid and
effective driving license to drive such class of vehicle, at
the time of accident. Therefore, insurer was not liable to
pay the compensation.
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10. From the rival contentions of both the parties,
the Tribunal had framed the necessary issues for its
determination.
11. The claimants in both the cases have examined
PW.1 and 2 and got marked Ex.P.1 to Ex.P.5 and closed
their evidence. The respondent No.2 examined RW.1 and
got marked Ex.R.1 to Ex.R.4 and closed its side.
12. The Tribunal after hearing both the parties and
appreciating the materials available on record, held that
the accident had taken place due to rash and negligent
driving of the car by its driver. The respondent No.2 failed
to establish that the driver of Jeep had no valid and
effective driving license to drive the same. Therefore,
fastened the liability on the respondent No.2 - insurer, to
pay the compensation. The Tribunal after assessing the
age, multiplier etc., had awarded the following amount of
compensation in both the cases :-
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IN MVC.NO.89/2015 :-
Sl. Heads of Compensation Amount
No. (in Rs.)
01. Loss of dependency 8,64,000/-
02. Loss of consortium 1,00,000/-
03. Love and affection 50,000/-
04. Funeral expenses 25,000/-
05. Transportation of dead body 10,000/-
Total 10,49,000/-
IN MVC.NO.90/2015 :-
Sl. Heads of Compensation Amount
No. (in Rs.)
01. Loss of dependency 7,48,800/-
02. Loss of consortium 1,00,000/-
03. Love and affection 50,000/-
04. Funeral expenses 25,000/-
05. Transportation of dead body 10,000/-
Total 9,33,800/-
(rounded up to
Rs.9,34,000/-)
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13. The learned counsel for the insurer has
vehemently contended that the Tribunal did not consider
the evidence on record properly and erroneously held that
the insurer had failed to prove that the driver of the
offended vehicle had no valid and effective driving license
to the drive the same. It is pertinent to note that though
owner of the vehicle had appeared before the Tribunal, but
he did not file counter to the claim petition and produce
the driving license. The insurer has sent notices to the
owner of the vehicle, but owner did not produce the valid
driving license held by the driver of the offended vehicle,
which clearly indicates that the driver of the offended
vehicle did not have valid and effective driving license to
drive the said class of vehicle.
14. The learned counsel for the insurer has further
submitted that the insurer even filed an application before
the Tribunal, to examine the concerned investigating
officer. However, the said investigating officer did not
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attend the Court and gave evidence. Therefore, the insurer
had taken all the steps to prove that the driver of the
offended vehicle had no valid and effective driving license,
to drive the said offended vehicle, at the time of accident.
15. The learned counsel for the insurer would
further submit that the Tribunal ought to have taken
adverse inference and held that the driver of the offended
vehicle had no valid and effective driving license. However,
the Tribunal shifting entire burden on the insurer and held
that the insurer had failed to establish that the driver of
the offended vehicle had no valid and effective driving
license. It also observed that since the driver of the
offended vehicle was not charge-sheeted for driving the
said vehicle, without license, therefore, the contention of
the insurer cannot be considered. The said finding is highly
erroneous. Therefore, interference by this Court is
required.
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16. The learned counsel for the appellant - insurer
has relied on some judgments and submitted that in the
said judgments, it is held by the Division Bench as well as
the learned Single Judge of this Court held that in case if
the insurer had taken all the steps and showed that the
driver of the offended vehicle had valid and effective
driving license, then the insurer has to be exonerated its
liability to pay compensation and the owner is liable to pay
the compensation. He has alternatively submitted that
even if this Court comes to the conclusion that the insurer
was unable to prove that driver of offended vehicle did not
have valid driving license, then this Court be direct the
insurer to pay the compensation with liberty to recover it
from the owner of the vehicle. With these reasons prayed
to allow the appeals.
17. The learned counsel for the claimants in cross-
objections has submitted that time and again the Hon'ble
Supreme Court has held that if the insurance policy is in
force, then the insurer is liable to pay the compensation to
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the third party and it cannot deny its liability to pay the
compensation to the third party on the technical grounds.
The learned counsel for the claimants has further
submitted that no proper steps were taken by the insurer
to secure the driving license particulars from the
concerned RTO. No efforts were made to examine the
concerned RTO to ascertain whether the driver had valid
and effective driving license to drive said vehicle.
18. Te learned counsel for the claimants has further
submitted that though the insurer had filed an application
before the Tribunal to summon the concerned
investigating officer, but did not take proper steps to
secure his presence. He has further submitted that it is
also pertinent to note that as rightly held by the Tribunal,
the driver was not charge-sheeted for the offence
punishable under Section 181 of Motor Vehicles Act i.e.,
driving of the vehicle without having valid and effective
driving license. The respondent No.2 - insurer had
examined one of its officer as RW.1 and he has not
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knowing anything about the driving license of driver of the
offended vehicle. In his cross-examination he has stated
that only on the basis of charge-sheet, he has been
contending that the driver of the offended vehicle was not
holding valid and effective driving license. However, the
charge-sheet does not reveal the said fact. Therefore, the
evidence of RW.1 is not helpful in any way to the insurer
to prove his contention.
19. It is further contended by the learned counsel
for the claimants that it is settled principles of law that
when the respondent - insurer disputing the liability on
the ground that the driver of the offended vehicle had no
valid and effective driving license, then burden shifts upon
the insurer to prove its contention. In this case, without
proving the same, the insurer has been contending that
adverse inference has to be drawn against driver of the
vehicle and hold hat he had no valid license.
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20. The learned counsel for the claimants has
further contended that the law laid down in the above said
judgments are not applicable to the facts of this case. The
facts stated in the above cases are totally different. In the
above said cases, the concerned investigating officer had
charge-sheeted the driver of the offended vehicle for not
holding the valid and effective driving license. Therefore, it
was held that the insurance company was not liable to pay
the compensation since it was a fundamental breach of
terms of the policy. The learned counsel for the claimants
also relied on some of the judgments in this regard.
21. The learned counsel for the claimants has
further contended that the Tribunal had accepted the
notional income at Rs.6,000/- per month, though, the
claimants had contended that the deceased was earning
Rs.20,000/- per month. This Court can take into
consideration the chart of notional income prepared by the
Karnataka Legal Services Authority and assessed the
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notional income. According to the said chart notional
income of a person who met with an accident during the
year 2014, is Rs.7,500/- per month and same could be
applied to this case. The learned counsel for the claimants
has further submitted that in both the cases, the Tribunal
has not added future prospects as per the law laid down
by the Hon'ble Apex Court in the case of National
Insurance Company Limited vs. Pranay Shethi and
others1.
22. The learned counsel for the claimants would
further submit that in MVC.No.89/2015 the age of the
deceased was below 40 years. Therefore, 40% of his
income has to be added towards his future prospects. In
MVC.No.90/2015 the age of the deceased is below 50
years. Therefore, 25% of his income has to be added
towards future prospects. He has also submitted that the
(2017) 16 SCC 680
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amount of compensation awarded under the head of loss
of consortium is not in accordance with law as laid down
by the Hon'ble Supreme Court in the case of Magma
General Insurance Company Limited vs. Nanu Ram
Alias Chuhru Ram and others2. With these reasons he
prayed for enhancement of the compensation and
dismissal of the appeals filed by the insurer.
23. From the submission of learned counsel for both
the parties, the following questions arise for my
determination:-
A. Whether the insurer was able to prove that the driver
of the offended vehicle had valid and effective driving
license.?
B. Whether the claimants are entitled for enhancement
of compensation.?
(2018) 18 SCC 130
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Regarding Question No.1 :-
24. It is not in dispute that driver of the offended
vehicle i.e., Balero Jeep has been charge-sheeted for the
accident in question. It is also not in dispute that the
driver of the said vehicle was not charge-sheeted for
driving the vehicle without having valid and effective
driving license. It is also not the case of insurer that it had
secured report from its own investigating agency or police
agency to believe that the driver of the offended vehicle
had no valid and effective driving license. The insurer has
not disclosed the source of information to contend that the
driver of the offended vehicle had no valid and effective
driving license to drive the offended vehicle. Therefore, it
appears that the said defense was general defense of
insurer taken on assumption and presumption.
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25. It was an assertive case of insurer that the
driver of offended vehicle had no valid and effective
driving license to drive the said vehicle. Therefore, the
burden lies on the insurer to prove the said contention.
26. It may be true that the insurer had issued a
notice to the owner of the vehicle to produce the driving
license of the driver of the offended vehicle. The owner did
not produce it. It is also true that initially, the owner had
appeared before the Tribunal, but did not file written
statement or cooperated with the insurer to contest the
matter. The Trial Court records also reveal that an
application was filed to summon the concerned
investigating officer to examine on behalf of the insurer.
However, insurer did not initially take proper steps to
secure his presence and later on the summons sent
through RPAD, was not served on the concerned
investigating officer and the insurer did not persuade the
said process. Therefore, the Tribunal rejected the prayer of
the insurer and the evidence was closed. Therefore, the
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concerned investigating officer was not examined by the
insurer to prove that the driver of offended vehicle had no
valid and effective driving license.
27. The insurer did not issue any notice to the
Motor Vehicle Inspector / RTO concerned, seeking the
details about the driving license of driver of the offended
vehicle. The concerned RTO was not summoned before the
Court and examined to prove that the driver of the
offended vehicle had valid and effective driving license to
drive the offended vehicle. As rightly submitted by the
learned counsel for the claimants, evidence of RW.1 does
not help much to prove the contention of the insurer
regarding the driving license. Under these circumstances,
there are no materials to show that the driver of the
offended vehicle did not possess valid and effective driving
license to drive the said class of vehicle. Therefore,
contention of the insurer was not at all proved.
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28. The learned counsel for the insurer had relied
on the following judgments.
A. In MFA.No.840/2001 decided on 02.03.2010
in the case of The Oriental Insurance Company
Limited vs. K. Shivarao and another.
The above case is not relevant to the facts of the
present case. In the above said case, the defense of
insurer was that the said vehicle was private vehicle; And
the passengers were traveling in the said vehicle by
paying the fare charges. Hence, this Court held that the
insurer has to pay the compensation and it is at liberty to
recover from the owner of the vehicle. It is not applicable
to the facts of the present case.
B. The Iffco-Tokio General Insurance
Company Limited vs. K. Prabhakar Reddy and
another3.
(2013) SCC Online KAR 10773.
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In the above said case the insurer has taken the
defense that the driver of the offended vehicle had no
valid and effective driving license to dive the said vehicle.
The learned Coordinate Bench of this Court after
appreciating the evidence available on record and also
observing that the driver of the offended vehicle was not
charge-sheeted for driving the vehicle without the license,
held that the insurer has failed to prove that the driver of
the offended vehicle had no valid and effective driving
license. The said judgment is contrary to the contention of
the learned counsel for the insurer. On the contrary, it is
helpful to the submission of the learned counsel for the
claimants. In this case also, though insurer has been
contending that the driver of the offended vehicle had no
valid and effective driving license, but it is not able to
establish the same. Therefore, it cannot be exonerated
from its liability to pay the compensation.
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C. The judgment passed in MFA.No.32802/2011
dated 21.03.2014 in the case of The Manager, ICICI
Lombard Motor Insurance Company Limited vs.
Anujul Sarkar @ Anukoul Sarkar and others.
In this case also the insurer has contended that the
rider of the motorcycle had no valid and effective driving
license. It has also relied on the charge-sheet wherein it
was mentioned that the rider was charge-sheeted for the
offences punishable under Section 3 read with Section 187
of the Motor Vehicles Act. The Coordinate Bench of this
Court after appreciating the evidence available on record,
held that the insurer was enable to establish that rider of
the offended vehicle was not holding the driving license.
Hence, the said contention was rejected by this Court. The
law laid down in the above said judgment is also supports
the contention of the claimants rather than contention of
the insurer.
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D. In the case of Sri. G. Ranganath vs. St.
Manjula4, the question involved in this case is whether
the Tribunal can pass an order, directing the insurer to pay
the compensation and recover it from the concerned
owner of the vehicle. On the basis of the judgment of the
Hon'ble Apex Court in the case of National Insurance
Company Limited vs. Swarana Singh and Others 5,
and whether it should construed as judicial precedent.
In the said judgment of Swarana Singh's case, it is
mentioned that "the said order may not be considered as
judicial precedent, since it was passed under Article 142 of
the Constitution of India". However, in the subsequent
judgments of the Hon'ble Apex Court in the case of
Shamanna and another vs. Divisional Manager,
Oriental Insurance Company Limited and others6 as
well as Pappu and others vs. Vinod Kumar Lamba and
another7, it is held by the Hon'ble Supreme Court that in
ILR 2014 KAR 2358.
2004 ACJ 1
(2018) 9 SCC 650
(2018) 3 SCC 208
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case of breach of conditions of the policy of insurance, the
insurer is liable to pay the compensation to the third party
and it is at liberty to recover it from the owner of the
vehicle. In view of the subsequent judgments of the
Hon'ble Apex Court, now it is not res-integra that if there
is a violation of the conditions of the policy of insurance,
which is not fundamental condition then insurer is liable to
pay the compensation to the third parties and it can
recover from owner of the vehicle in an appropriate
proceedings.
29. Therefore, the law laid down in the above said
judgments does not help in any way to the contentions of
the learned counsel for the insurer.
E. In MFA.No.25552/2010 and MFA.No.
24501/2010, in the case of Shri. Shivapappa Birappa
Pujari vs. Shri. Lagamappa s/o Jakkappa Guravi and
others, dated 17.04.2018 by the Coordinate Bench of
this Court, held as under:-
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In this case, before the Tribunal the insurer was
unable to prove that driver had no valid and effective
license to drive the said class of vehicle on that count it
cannot disown its liabilities to pay compensation.
It is also contended that by the insurer that the said
offended vehicle was private vehicle and the passengers
who were traveling in the said vehicle, had paid the fare
charges. Therefore, it was a violation of permit condition
and also violation of terms and condition of insurance
policy. The Tribunal had considered the said defense of
insurer and directed the insurance company to pay the
compensation to the claimant and recover it from the
concerned owner of the vehicle. That was challenged by
the owner of the vehicle. The Coordinate Bench of this
Court, after considering the law laid down by the Hon'ble
Supreme Court in the case of Swarana Singh (supra) and
also in the case of Lal Singh Marabi vs. National
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Insurance Company Limited and others8, held that the
owner of the vehicle shall pay the compensation. The
liability of insurer was exonerated.
F. In the case of Hemalatha @ Hema @
Hemavathi w/o Renukappa and others vs. Bajaj
Allianz General Insurance Company Limited in
MFA.No.6154/2019 (DB) date of judgment
14.12.2023, the Division Bench of this Court held that if
the driver of the offended vehicle had no valid and
effective driving license, then the insurer was not liable to
pay the compensation. The Division Bench of this Court did
not accept contention of the claimants to direct the
insurance company to pay the compensation and recover
the same from the owner of the vehicle as held in the
cases of Swarana Singh, Pappu, Shamanna and
Bhisen Devi. The Division Bench of this Court directed the
owner of the vehicle to pay the compensation.
2017 ACJ 1362
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30. The facts of above case is different from the
facts of the present case. In that case, the driver of the
offended vehicle was charge-sheeted for not holding the
valid and effective driving license. Considering the said
defense, the Division Bench of this Court held that in such
events insurer is not liable to pay compensation and owner
has to pay the same.
31. In this case, the insurer was unable to establish
that the driver of the offended vehicle had no valid and
effective license to drive the said class of vehicle.
Therefore, law laid in the above said judgment is not
applicable to the facts of the present case.
32. In MFA.No.3288/2013 connected with
2337/2014 in the case of Sriram General Insurance
Company Limited vs. Mis. Sunita @ Nagaveni,
delivered on 29.01.2024, the Coordinate Bench of this
Court followed the law laid down in the case of Hemalatha
@ Hema (supra) and directed the owner to pay the
compensation.
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NC: 2024:KHC-K:4558
33. In the above said case, the driver of the vehicle
was charge-sheeted for not holding the valid and effective
driving license to drive the said class of vehicle; that is not
facts in the present case.
34. The learned counsel for the claimants has relied
on the judgment in the case of Rukmani and others vs.
New India Assurance Company and others9. In this
case, it is observed by the Hon'ble Supreme Court in Para
No.3 as under:-
"We have seen the only evidence which the
Insurance Company produced in support of the
plea. This is the evidence of Inspector of Police
who investigated the accident. In this evidence,
PW.1 who was the Inspector of Police, stated in his
examination-in-chief, "My enquiry revealed that
the 1st respondent did not produce the licence to
drive the abovesaid scooter. The 1st respondent
even after my demand did not submit the license
since he was not having it." In his cross-
examination he has said that it is the inspector of
(1998) 9 SCC 160
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Motor Vehicles who is required to check whether
the licence is there but he had not informed the
Inspector of Motor Vehicles that the 1st respondent
was not having a license since he through it was
not necessary. In our view, this evidence is not
sufficient to discharge the burden which was cast
on the Insurance Company. It did not summon the
driver of the vehicle. No record from the Road
Transport Authority has also been produced. In
these circumstances, the Insurance Company has
not discharged the burden cast upon it under
Section 96 (2) (b) (ii) of the Motor Vehicles Act,
1939. the impugned order of the High Court is,
therefore, set-aside and the order of the Tribunal is
restored. The appeal is allowed accordingly, No
order as to costs."
35. In the case on hand, the insurer was not able to
establish before the Tribunal that the driver of the
offended vehicle had no valid and effective driving license
to drive the said class of vehicle. The insurer did not
disclose the source of information to contend that the
driver of the offended vehicle had no valid and effective
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driving license. The contention of the insurer appears to be
based on the presumption, assumption and surmises.
Merely, the owner has failed to produce driving license of
the driver of the offended vehicle, is not sufficient to hold
that the driver of the offended vehicle had no valid and
effective driving license. There was no evidence on record
to show that the owner had obtained a copy of the driving
license from the driver of the vehicle. The insurer did not
try to secure the information from the driver of the vehicle
or at least to secure the driving license number so that it
could secure the true copy of the said license from the
RTO. Therefore, the insurer utterly failed to establish that
the driver of the offended vehicle had no valid and
effective driving license to drive the said class of vehicle.
Hence, said contention of the insurer has not liable to pay
the compensation is proved. Accordingly, question No.1 is
answered in the affirmative.
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Regarding Question No.2 :-
36. Let us go to the second point regarding the
quantum of compensation awarded by the Tribunal.
37. In MVC.No.89/2015 the Tribunal has accepted
the age of the deceased as 34 years. His notional income
as Rs.6,000/- per month; deducted 1/4th towards personal
expenses, applied multiplier as 16 and the calculated the
compensation under the head of loss of dependency. The
contention of the claimants that income assessed by the
Tribunal is on much lower side. According to their
contention, the deceased was earning Rs.20,000/- per
month. Admittedly, the claimants have not produced any
reliable materials on record to accept their contention.
Therefore, the notional income of the deceased has to be
assessed. As per the chart prepared by the Karnataka
Legal Services Authority the notional income of the victim
could be taken as Rs.7,500/- per month.
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38. As per the law laid by the Hon'ble Supreme
Court in the case of Pranay Shethi (as referred supra),
40% of the income has to be added towards future
prospects when the age of the deceased was less than 40
years. In this case, undisputedly the age of the deceased
was 34 years. Therefore, 40% of the income has to be
added towards future prospects. The multiple applicable is
16 and 1/4th sall be deducted towards personal expenses.
On the basis of the said figures, the compensation under
the head of loss of dependency is recalculated.
39. The Tribunal has not awarded just and
reasonable amount of compensation under the
conventional head. Therefore, as per law laid down in the
case of Pranay Shethi (supra) and Magma General
Insurance Company Limited (supra), the compensation
is to be enhanced on conventional heads. Accordingly, the
following amount of compensation is awarded :-
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NC: 2024:KHC-K:4558
Sl. Heads of Compensation Amount
No. (in Rs.)
01. Loss of dependency 15,12,000/-
(Rs.7,500/-+40%x12x16 - ¼)
02. Loss of consortium 02,40,000/-
03. Loss of Estate 00,15,000/-
04. Funeral expenses 00,15,000/-
Total 17,82,000/-
40. The claimants are entitled for enhanced
compensation of Rs.7,33,000/-. They are also entitled for
interest at the rate of 6% on the enhanced amount of
compensation from the date of claim petition till the date
of its realization excluding the delayed period of 605 days
in filing the appeal.
41. In MVC.No.90/2015, the similar calculation
needs to be made as calculated in this case also. In the
said case also the claimants have contended that the
deceased was earning Rs.20,000/- per month who was
aged about 45 years. The Tribunal assessed the age of the
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NC: 2024:KHC-K:4558
deceased as 50 years and income as Rs.6,000/- per
month. The contention of the claimants that the income of
the deceased on lower side. As per the chart prepared by
the Karnataka Legal Services Authorities, the notional
income of the deceased could be taken as Rs.7,500/- per
month. As held in the case of Pranaya Shethi, (referred
supra), 25% of the said income has to be added towards
future prospects, since age of the deceased is 42 years.
The deceased left behind him 07 dependents. Therefore,
1/5th of his income shall be deducted towards his personal
expenses. Undisputedly, the multiplier applicable is 16. On
the basis of the said calculations loss of dependency is
recalculated.
42. The compensation awarded under the
conventional heads are on lower side, which needs to be
awarded on the basis of law laid down in the case of
Pranay Shethi, (supra) as well as in the case of Magma
General Insurance Company Limited, (referred supra).
Accordingly, the following amount of calculation is
recalculated :-
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NC: 2024:KHC-K:4558
Sl. Heads of Compensation Amount
No. (in Rs.)
01. Loss of dependency 14,40,000/-
(Rs.7,500/-+25%x12x16 - 1/5)
02. Loss of consortium 02,80,000/-
03. Loss of Estate 00,15,000/-
04. Funeral expenses 00,15,000/-
Total 17,50,800/-
43. The claimants are entitled for enhanced
compensation of Rs.8,16,000/-. They are also entitled for
interest at the rate of 6% on the enhanced amount of
compensation from the date of claim petition till the date
of its realization excluding the delayed period of 594 days
in filing the appeal.
44. For the above said discussion, I answered the
question No.2 partly in the affirmative and proceed to pass
the following;
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NC: 2024:KHC-K:4558
ORDER
I. The appeal filed in MFA.No.200592/2018 and
MFA.No.200593/2018 are dismissed.
II. The Cross-Objection No.200781/2021 and Cross-
Objection No.200080/2021 are allowed in part.
III. The impugned judgment and award passed by the
Tribunal in MVC.No.89/2015 and MVC.No.90/2015
are modified as under:-
A) The claimants in MVC.No.89/2015 are entitled for
enhancement of Rs.7,33,000/- with the interest at
the rate of 6% per annum on the enhanced amount
of compensation from the date of petition till its
realization excluding the delay period of 605 days in
filing the appeal.
B) The claimants in MVC.No.90/2015 are entitled for
enhancement of Rs.8,16,000/- with the interest at
the rate of 6% per annum on the enhanced amount
of compensation from the date of petition till its
realization excluding the delay period of 594 days in
filing the appeal.
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C) The respondent No.2 shall deposit the enhanced
amount of compensation with the interest within a
period of 08 weeks from the date of receipt of copy
of this order.
D) The orders of the Tribunal pertaining to the deposit,
release and apportionment are not disturbed.
Whatever amount deposited by the insurer including
the statutory deposit shall be transmitted to the Tribunal
for release of the amount in favour of the claimants, if it
was already not paid.
The registry is directed to send back the Trial Court
records along with copy of this judgment.
Sd/-
JUDGE
KJJ
CT:PK
