Karnataka High Court
Dhakalu Laxman Ghadi vs Mansoor Umar Sanadi on 31 May, 2024
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MFA No. 21568 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 31ST DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO.21568 OF 2013(MV-D)
BETWEEN:
1. SHRI. DHAKALU LAXMAN GHADI,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O. GHADI GALLI, KHANAPUR,
TAL: KHANAPUR, DIST: BELGAUM.
2. SHRI. JOTIBA S/O. DHAKALU GHADI,
AGE: 46 YEARS, OCC:AGRICULTURE,
R/O: GHADI GALLI, KHANAPUR,
TAL: KHANAPUR, DIST: BELGAUM.
...APPELLANTS
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1. SHRI. MANSOOR S/O. UMAR SANADI,
AGE: MAJOR, OCC: MECHANIC,
R/O. H NO.826, MARUTI NAGAR,
KHANAPUR, DIST: BELGAUM.
Digitally signed 2. THE MANAGER, RELIANCE GENERAL
by MANJANNA INSURANCE CO. LTD, 1357/A, NEAR
E
KOLHAPUR CIRCLE, NEHRU NAGAR, BELGAUM.
Location: HIGH
COURT OF ...RESPONDENTS
KARNATAKA (BY SRI SURESH S. GUNDI, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
THE MOTOR VEHICLES ACT, PRAYING TO THE JUDGMENT AND
AWARD DATED 11.01.2013 IN MVC NO.1625/2012 PASSED BY THE
LEARNED MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL AND
SENIOR CIVIL JUDGE, KHANAPUR, WHEREIN THE CLAIM IS PARTLY
ALLOWED, BY AWARDING COMPENSATION OF RS. 35,000/- WITH
INTEREST AT 6% P.A. BE KINDLY MODIFIED BY ENHANCING TO RS.
10,00,000/- @ 18% PER ANUM FROM THE DATE OF PETITION, TILL
THE DATE OF PAYMENT, BY HOLDING RESPONDENTS NO.1 AND 2
HEREIN JOINTLY AND SEVESRALLY LIABLE TO PAY THE
COMPENSATION IN THE INTEREST OF JUSTICE AND EQUITY.
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MFA No. 21568 of 2013
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimants seeking
enhancement of compensation awarded by Motor
Accidents Claims Tribunal, Khanapur ("the Tribunal" for
short).
2. For the sake of convenience, the parties are
referred to as per their ranking referred to in the claim
petition before the Tribunal.
3. Brief facts of the case of the claimants are as
under:
On 13.03.2012 at 3.45 p.m., on Khanapur Station
road, Khanapur, the driver of the auto rickshaw bearing
registration No.KA.51/9539, came in a rash and negligent
manner and dashed against Smt.Ramakka, the wife of
claimant No.1 and mother of claimant No.2, hence, she
died on the spot on account of the accidental injuries.
Hence, the claimants filed claim petition under Section 166
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of the Motor Vehicles Act, 1988 seeking compensation of
Rs.10,00,000/-.
4. The Tribunal considering Ex.P.1 to 8 and oral
evidence of PW.1, awarded compensation of Rs.35,000/-.
Aggrieved by the impugned judgment and award, the
claimants preferred this appeal for enhancement.
5. Learned counsel for the claimants contended
that, the Tribunal was not justified in denying the claim of
the claimants towards loss of dependency on the ground
that, they are earning income from agricultural sources
and as such they cannot be considered as dependents on
the deceased. The said finding of the Tribunal is not in
accordance with law.
6. Learned counsel for the claimants further
contended that, the Tribunal ought to have considered the
income of deceased Smt.Ramakka at Rs.6,000/- per
month as the deceased was working as vegetable vendor
and household work. The deceased was aged about 70
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years as on the date of accident, but due to oversight in
the postmortem report her age was mentioned as 73
years. But, the Tribunal has awarded a compensation of
Rs.10,000/- towards loss of love and affection,
Rs.10,000/- towards loss of estate, Rs.10,000/- towards
transportation of dead body and funeral expenses and
Rs.5,000/- towards loss of consortium, which is not
reasonable one.
7. Learned counsel for the claimants relied on the
judgments of the Hon'ble Supreme Court in the case of
National Insurance Company Limited vs. Swaran
Singh and others1 and Shamanna and another Vs.
Divisional Manager Oriental Insurance Co. Ltd., and
others2 in support of his contention. Hence, learned
counsel for the claimants prayed to allow the appeal.
8. Learned counsel for respondent No.2/Insurance
Company contended that, though the vehicle was insured,
but the driver of the offending vehicle (auto rickshaw) was
(2004) 3 SCC 297
AIR 2018 SC 3726
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not holding any valid and effective driving licence to drive
the same. Hence, driver of the offending vehicle was
negligent and therefore respondent No.2/Insurance
Company is not liable to pay compensation in view of the
ratio laid down in the case of Beli Ram Vs. Rajider
Kumar and another3. Hence, learned counsel for
respondent No.2/Insurance Company prayed to reject the
appeal.
9. As there is no dispute regarding death of
deceased Smt.Ramakka aged about 70 years on the date
of accident who died in a road traffic accident that
occurred on 13.03.2012 due to rash and negligent driving
by the driver of auto rickshaw bearing registration
No.KA.51/9539. However, the liability is disputed by the
insurer of the auto rickshaw.
10. The following points that would arise for
consideration in this appeal are :
AIR 2020 SC 4453
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"i) Whether the quantum of compensation
awarded by the Tribunal is just and
reasonable or does it call for any interference?
ii) Whether insurer of the vehicle is liable to pay
compensation on pay and recovery formula?"
11. Respondent No.2/Insurance Company has taken
contention that the driver of the offending vehicle/auto
rickshaw do not possess valid and effective driving licence
as on the date of accident. Thus, the owner of the auto
rickshaw knowingly permitted the said driver to take the
vehicle on road and hence, committed breach of policy
conditions. Thus, the insurer is not liable to pay
compensation to the claimants.
12. In order to substantiate the contention of
Insurance Company, it has not been examined any
witnesses and not furnished any documents in support of
its contention. More particularly, respondent
No.2/Insurance Company placed ex-parte before the
Tribunal.
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13. From perusal of the documentary evidence and
oral evidence of PW.1/Shri Jotiba Dhakalu Ghadi, it
appears that the vehicle involved in the accident was light
motor vehicle i.e., auto rickshaw. The owner of the vehicle
should have permitted the driver who possessed effective
and valid driving licence to drive the vehicle. In this case,
the owner of the vehicle has not furnished any valid
licence. Thus, the Tribunal considering the facts that, none
of the parties have produced driving licence of driver of
Auto Rickshaw and held that the insurer is not liable to pay
compensation. On the other hand, the owner of the vehicle
is liable to pay compensation.
14. In this case, as on the date of accidents policy
was in force in respect of offending vehicle. However
driving licence has not been produced. In the case of
Mukund Dewangan vs. Oriental Insurance Company
Limited and others4, the Hon'ble Apex Court held that,
the insurer is liable to pay compensation on account of
(2016) 4 SCC 298
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negligent caused by the driver of the offending vehicle, in
view of pay and recovery principle as held by the Hon'ble
Apex Court in the case of Swaran Singh's case (supra)
and also in the case of Rani vs. National Insurance
Company Limited5.
15. Learned counsel for respondent No.2/Insurance
Company relied on the decision in the case of Beli Ram Vs.
Rajinder Kumar and another6, wherein the Hon'ble Apex
Court was of the opinion that in case of non renewal of
driving licence for a period of three years, it was gross
negligence on the part of the employer. Under such
circumstances, the Apex Court held that the Insurance
Company not liable to pay compensation. In this case, the
owner of offending vehicle did not step into the witness
box to prove that, his driver had effective driving licence
or has no driving licence or if driving licence was expired,
the driver had made application for renewal of the licence
within 30 days from the date of its expiry as required
(2018) 8 SCC 492
AIR 2020 SC 4534
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under Section 15 of MV Act and therefore, an adverse
inference be taken against the owner of vehicle in question
that he failed to prove the burden saddled on him.
16. The Hon'ble Apex Court in Beli Ram (supra)
at paragraph No.18 to 20 and 22, has observed thus;
"18 The Delhi High Court in Tata AIG General
Insurance Co. Ltd. v. Akansha & Ors.6 found that the
driving licence having expired led to the natural finding
that there was no valid driving licence on the date of
the accident. The initial onus was discharged by the
insurance company in view of the licence not being
valid on the date of the accident. The onus, thereafter,
shifted to the owner/insured to prove that he had taken
sufficient steps to ensure that there was no breach of
the terms and conditions of the insurance policy. Since
no evidence had been led in this behalf, a presumption
was drawn that there was willful and conscious breach
of the terms and conditions of the insurance policy.
19. The Allahabad High Court in The Oriental
Insurance Co. Ltd. v. 6 2015 SCC OnLine 6758: (2015)
2 TAC 52 Manoj Kumar & Ors.7 again deait with the
case of an expired driving licence. The endeavour to
rely on the principle set forth in a fake licence case was
held not applicable in the case of an expired licence
since the owner was supposed to be aware that the
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driving licence of the driver had expired and, thus, it
was held that it was the duty of the owner to have
ensured that the driver gets the licence renewed within
time. In the absence of a valid driving licence, the
vehicle was being driven in breach of the condition of
the policy, requiring the vehicle to be driven by a
person who is duly licensed, and thus, there was breach
of Section 149(2)(a)(ii) of the MV Act, the consequence
being that the insurance company could not be held
liable.
20. The last judgment is of the Himachal Pradesh
High Court in National Insurance Co. Ltd. v. Hem Raj &
Ors. This was, once again, a case of an originally valid
licence, which had expired, there was no question of a
fake licence. It was opined that the conclusions to be
drawn from the observations of the judgment in the
Swaran Singh case of this Court, were that the
insurance company can defend an action on the ground
that the driver was not duly licensed on the date of the
accident, i.e., an expired licence having not been
renewed within thirty (30) days of the expiry of the
licence as provided in Sections 14 & 15 of the MV Act.
In this context it was observed that the Swaran Singh
case did not deal with the consequences if the licence is
not renewed within the period of thirty (30) days. If the
driving licence is not renewed within thirty (30) days, it
was held, the driver neither had an effective driving
licence nor can he said to be duly licenced. The
conclusion, thus, was that the driver, who permits his
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licence to expire and does not get it renewed till after
the accident, cannot claim that it should be deemed
that the licence is renewed retrospectively.
21. xxx xxx xxx
22. We have reproduced the aforesaid
observations as it is our view that it sets forth lucidly
the correct legal position and we are in complete
agreement with the views taken in all the three
judgments of three different High Courts with the
culmination being the elucidation of the correct legal
principle in the judgment in the Hem Raj case."
17. In view of the declaration of law by the Hon'ble
Supreme Court in Beli Ram (Supra), I am of the
considered view that the Tribunal committed error.
Therefore, the insured/owner is liable to pay the
compensation to the claimants. Thus, the Court absolving
the liability saddled on the insurance company.
18. In view of the ratio laid down in the above
stated decisions and facts and circumstances of the above
case, respondent No.2/Insurance Company is directed to
first pay compensation amount to the claimant with liberty
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to recover the same from the owner of the offending
vehicle.
19. Now, as regards quantum, the age of the
deceased at the time of accident was 70 years as per the
complaint Ex.P.1. The claimants have not produced the
actual income of the deceased by producing documentary
evidence. PW.1 has deposed that his mother who was
vegetable vendor and was doing agricultural work during
her life time. In the claim petition, the income of deceased
shown As Rs.6,000/-. Hence, her income should be
considered at Rs.6,000/- per month. Since the age of the
deceased at the time of accident was 70 years, the
appropriate multiplier is to be taken at '5' and since the
claimants are aged about more than 45 years, the
appropriate deduction towards personal expenses would
be 50% as per the law laid down by the Hon'ble Supreme
Court, in the case of Sarla Verma (Smt.) and others
Vs. Delhi Transport Corporation and another7.
(2009) 6 SCC 121
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20. The Tribunal without any basis and reasoning
has held that the claimants are entitle for Rs.10,000/-
towards loss of estate. As per the principles of law laid
down by the Hon'ble Apex Court in the case of Sarla
Verma (supra) towards personal expenses 50% has to
be deducted from her income and her income should be
taken at Rs.3,000/- (Rs.6,000/- - 50%) per month.
Therefore, the compensation under the head of loss of
dependency is calculated as Rs.3,000/- X 12 X 5 =
1,80,000/-.
21. The Tribunal has committed an error in not
awarding fair compensation under the head of loss of
consortium and loss of love and offence. As per the
judgment rendered by the Hon'ble Apex Court in the case
of Magma General Insurance Company Limited Vs.
Nanu Ram Alias Churu Rama and others8 and Pranay
Sethi and others Vs. National Insurance company
Limited9, the claimants are entitled Rs.40,000/- each
(2018) 18 SCC 130
(2017) 16 SCC 680
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towards loss of consortium and accordingly, Rs.80,000/- is
awarded under the head of loss of consortium including
loss of love and affection as against the Rs.15,000/-
awarded by the Tribunal. Further The Tribunal has
awarded a sum of Rs.10,000/- towards transportation of
dead body & funeral expenses and loss of estate, which is
not just and reasonable. Hence, Rs.15,000/- each is
awarded towards loss of estate and transportation of dead
body & funeral expenses.
22. Thus, the claimants are entitled for
compensation on the following heads;
Compensation
Sl. awarded
Description
No. By the By this
Tribunal Court
1 Loss of dependency
(3,000x12x5) Not awarded 1,80,000
2 Loss of estate 10,000 15,000
3 Towards Transportation of dead
body & funeral expenses. 10,000 15,000
4 loss of consortium including loss
of love and affection 15,000 80,000
Total 35,000 2,90,000
Less: Compensation of the Tribunal 35,000
Compensation enhanced by this Court 2,55,000
23. Therefore, the claimant is entitled for
compensation of Rs.2,90,000/- as against the
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compensation of Rs.35,000/- awarded by the Tribunal with
6% interest on the enhanced compensation of
Rs.2,55,000/- from the date of petition till the date of its
realization. Accordingly, I pass the following;
ORDER
i) The miscellaneous first appeal is allowed in
part.
ii) The judgment and award dated 11.01.2013
passed in MVC.No.1625/2012 by the Motor
Accidents Claims Tribunal, Khanapur, is
hereby modified to the extent stated
hereinabove.
iii) The claimant is entitled for compensation of
Rs.2,90,000/- as against the compensation of
Rs.35,000/- awarded by the Tribunal with
interest at the rate of 6% per annum on the
enhanced compensation of Rs.2,55,000/-
from the date of the claim petition, till the
date of its realization.
iv) Respondent No.2/Insurance Company is
directed to first pay compensation with
interest within a period of four weeks from
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the date of receipt of copy of this judgment,
with liberty to recover the same from the
owner of the offending vehicle.
v) Out of the additional compensation, the
Tribunal is directed to disburse the entire
compensation to the claimants equally on
proper identification.
No order as to costs
Sd/-
JUDGE
EM/ct-an
