Karnataka High Court
The Branch Manager vs Padiyapppa S/O Neelappa Kindri on 11 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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MFA No. 100406 of 2023
C/W MFA No. 103878 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 100406 OF 2023 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 103878 OF 2022
IN MFA NO. 100406 OF 2023
BETWEEN:
THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD,
PLOT NO.D/38, SECTOR NO.25,
NEAR HESCOM OFFICE,
NAVANAGAR, BAGALKOT-361001.
Digitally signed
by JAGADISH T R
Location: High
NOW REPRESENTED BY ITS
Court of
Karnataka, DULY CONSTITUTED ATTORNEY.
Dharwad Bench
...APPELLANT
(BY SRI. RAJASHEKHAR S. ARANI, ADVOCATE)
AND:
1. PADIYAPPPA S/O. NEELAPPA KINDRI,
AGE 59 YEARS, OCC. COOLIE.
2. SMT. SHANTAVVA W/O. PANDIYAPPA KINDRI,
AGE 49 YEARS, OCC. HOUSEHOLD WORK.
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MFA No. 100406 of 2023
C/W MFA No. 103878 of 2022
3. SHIVAPPA S/O. PADIYAPPA KINDRI,
AGE 24 YEARS, OCC. STUDENT.
4. SRI. NEELAPPA S/O. PADIYAPPA KINDRI,
AGE 22 YEARS, OCC. STUDENT,
ALL ARE R/O. SHANTAGERI,
TQ. RON, DIST. GADAG-582211.
5. SRI. ASIF S/O. JANGLISAB ITAGI,
AGE 34 YEARS, OCC. OWNER OF OFFENDING
VEHICLE, R/O. NO.07, RAJIVGANDHI ASHAYA
CALANI, NAVNAGAR, BAGALKOT-361001.
...RESPONDENTS
(BY SRI. B. S. SANGATI, ADV. FOR R1 TO R4;
SRI. B. C. JNANAYYASWAMI, ADV. FOR R5)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO CALL THE RECORDS, HEAR THE PARTIES, AND
ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 02.08.2022 PASSED BY
BEFORE THE MEMBER MACT NO.VIII BADAMI IN M.V.C NO.556 OF
2019 WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.
IN MFA NO. 103878 OF 2022
BETWEEN:
1. SRI. PADIYAPPA S/O. NEELAPPA KINDRI,
AGE. 58 YEARS, OCC. COOLIE,
R/O. SHANTAGERI, TQ. RON, DIST. GADAG.
2. SMT. SHANTAVVA W/O. PADIYAPPA KINDRI,
AGE. 48 YEARS, OCC. HOUSEHOLD,
R/O. SHANTAGERI, TQ. RON, DIST. GADAG.
3. SRI. SHIVAPPA S/O. PADIYAPPA KINDRI,
AGE. 23 YEARS, OCC. STUDENT,
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MFA No. 100406 of 2023
C/W MFA No. 103878 of 2022
R/O. SHANTAGERI, TQ. RON, DIST. GADAG.
4. SRI. NEELAPPA S/O. PADIYAPPA KINDRI,
AGE. 22 YEARS, OCC. STUDENT,
R/O. SHANTAGERI, TQ. RON, DIST. GADAG.
...APPELLANTS
(BY SRI. B. S. SANGATI, ADVOCATE)
AND:
1. SRI. ASIF S/O. JANGLISAB ITAGI,
AGE. 33, OCC. OWNER OF THE OFFENDING
VEHICLE, R/O. NO 07, RAJIVGANDHI
ASHAYA CALANI, NAVANAGAR,
BAGALKOT, TQ & DIST. BAGALKOT.
2. THE BRANCH MANAGER,
NATITIONAL INSURANCE CO. LTD,
PLOT NO. D/38, SECTOR NO.25,
NEAR HESCOM OFFICER,
NAVANAGAR, BAGALKOT.
...RESPONDENTS
(BY SRI. RAJASHEKHAR S. ARANI, ADV. FOR R2;
SRI. B. C. JNANAYYASWAMI, ADV. FOR R1)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO MODIFYING THE JUDGMENT AND
AWARD PASSED BY THE BEFORE THE MEMBER M.A.C.T NO.VIII,
BADAMI AT BADAMI IN M.V.C NO.556/2019 DATED 02.08.2022 AND
THE APPEAL MAY KINDLY BE ALLOWED, IN THE INTEREST OF
JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 100406 of 2023
C/W MFA No. 103878 of 2022
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T)
MFA No.100406/2023 is filed by the Insurance Company
challenging the judgment and award dated 02.08.2022 passed
by the Member, MACT-VIII, Badami (for short 'Tribunal') in
MVC No.556/2019, whereas, MFA No.103878/2022 is filed by
the claimants seeking enhancement of compensation granted
by the Tribunal.
2. For the sake of convenience, the parties are
referred to as per their rankings before the Tribunal.
3. Brief facts of the claimants' case before the Tribunal
are as under:
On 23.06.2019, the deceased Manjunath was proceeding
on his motorcycle bearing registration No.KA-26/EA-3992
towards Malligeri village of Bagalkote Taluka, when he reached
near Haveri Hotel at about 2.00 p.m., the driver of TATA Tipper
bearing temporary registration No.KA-22/TMP-2019/21122
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(KA-29/B-7676) drove the same in a rash and negligent
manner and caused accident, due to which, the said Manjunath
sustained grievous injuries to his both legs. He was shifted to
Dr. R.G. Karudagimath Hospital for treatment but, on the same
day he died at about 10.15 p.m., in the hospital. The claimants
filed a claim petition under Section 166 of the Motor Vehicles
Act, 1988 (for short 'MV Act') before the Tribunal seeking
compensation on account of death of Manjunath.
4. On appreciation of entire oral and documentary
evidence on record, the Tribunal allowed the claim petition in
part, awarding a sum of Rs.20,54,000/- with interest at the
rate of 6% per annum from the date of petition till realization,
with a direction to respondent-Insurance Company of offending
vehicle to pay the entire compensation amount to the
claimants. Being aggrieved by the same, the Insurance
Company has preferred an appeal in MFA No.100406/2023 on
the ground of liability. The claimants also filed an appeal in MFA
No.103878/2022 seeking enhancement of compensation.
5. Learned counsel for Insurance Company has
contended that as on the date of accident, there was no permit
and fitness certificate to the offending vehicle and the same is
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violation of permit condition under the Motor Vehicles Act,
1988, the condition of the policy has been violated by the
insured. He further contended that the Tribunal has committed
an error in considering Ex.R4-the vehicle permit issued by the
RTO. Therefore, the Insurance Company is not liable to pay the
compensation to claimants. Hence, he prayed to allow the
appeal filed by the Insurance Company and dismiss the appeal
filed by the claimants.
6. The learned counsel for the claimants has
contended that the Tribunal has committed error in awarding
meager compensation of Rs.20,54,000/- with interest at the
rate of 6% per annum from the date of petition till payment.
The Tribunal has not considered the facts and circumstances of
the case and material evidence on record. He further contended
that the deceased Manjunath was doing agriculture and also
coolie work prior to the accident and was earning Rs.20,000/-
per month. But the Tribunal has not considered this aspect.
Further, the Tribunal has not properly awarded fair
compensation under the different heads. He further contended
that the Tribunal has not considered the loss of earning
properly without assigning any reasons and has committed an
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error in awarding meager interest at the rate of 6% per annum,
hence, it has to be enhanced to 12% per annum. Therefore, he
prayed to allow the appeal filed by the claimants and dismiss
the appeal filed by the Insurance Company.
7. Considering the submissions made by the learned
counsel for the parties and on perusal of the appeal papers, the
points that would arise for our consideration in these appeals
are:
a) Whether the compensation awarded by the Tribunal
is just and reasonable or does it call for reduction
of enhancement?
b) Whether the Insurance Company has made out
sufficient grounds that as on the date of accident
the owner of the offending vehicle do not possess
valid permit, hence it is not liable to pay any
compensation to the claimants?
8. In order to prove the contention that the owner of
the offending vehicle did not possess valid permit, to drive the
vehicle on public road, the respondent examined Sri. Ashif
Janglisab Itagi as RW1 and Gunje Sanathkumar as RW2 and
relied upon Ex.R1 to R7. On the other hand, claimant No.1
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examined on oath as PW1 and relied upon Ex.P1 to P13. As per
the charge sheet, the driver of offending vehicle has been
charge sheeted by the Investigating Officer as the accident
occurred due to his rash and negligent driving. So far as
permit is concerned, none of the parties produced the permit
before the Tribunal.
9. From the perusal of Ex.R4-Vehicle Permit, it clearly
establishes that respondent No.5 being the owner of the vehicle
got Temporary Certificate of Registration dated 30.05.2019 and
it was valid from 30.05.2019 to 29.06.2019 only for a period of
one month. But respondent No.2 has not obtained Permit as
required under Section 66 of the MV Act, which is mandatory to
drive the vehicle on a public road. Section 66 of the MV Act
reads as under:
"66. Necessity for permits. - (1) No owner of
a motor vehicle shall use or permit the use of the
vehicle as a transport vehicle in any public place
whether or not such vehicle is actually carrying any
passengers or goods save in accordance with the
conditions of a permit granted or countersigned by a
Regional or State Transport Authority or any prescribed
authority authorising him the use of the vehicle in that
place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall,
subject to any conditions that may be specified in the
permit, authorise the use of the vehicle as a contract
carriage:
Provided further that a stage carriage permit
may, subject to any conditions that may be specified in
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the permit, authorise the use of the vehicle as a goods
carriage either when carrying passengers or not:
Provided also that a goods carriage permit shall,
subject to any conditions that may be specified in the
permit, authorise the holder to use the vehicle for the
carriage of goods for or in connection with a trade or
business carried on by him.
[Provided also that where a transport vehicle has
been issued any permit or permits, as well as a licence
under this Act, such vehicle may be used either under
the permit, or permits, so issued to it, or under such
licence, at the discretion of the vehicle owner.]
(2) The holder of a goods carriage permit may
use the vehicle, for drawing of any trailer or semi-trailer
not owned by him, subject to such conditions as may be
prescribed:
[Provided that the holder of a permit of any
articulated vehicle may use the prime-mover of that
articulated vehicle for any other semi-trailer.]
(3)The provisions of sub-section (1) shall not
apply
(a) to any transport vehicle owned by the Central
Government or a State Government and used for
Government purposes unconnected with any
commercial enterprise;
(b) to any transport vehicle owned by a local
authority or by a person acting under contract with a
local authority and used solely for road cleansing, road
watering or conservancy purposes;
(c) to any transport vehicle used solely for
police, fire brigade or ambulance purposes;
(d)to any transport vehicle used solely for the
conveyance of corpses and the mourners accompanying
the corpses;
(e) to any transport vehicle used for towing a
disabled vehicle or for removing goods from a disabled
vehicle to a place of safety;
(f) to any transport vehicle used for any other
public purpose as may be prescribed by the State
Government in this behalf;
(g)to any transport vehicle used by a person who
manufactures or deals in motor vehicles or builds
bodies for attachment to chassis, solely for such
purposes and in accordance with such conditions as the
Central Government may, by notification in the Official
Gazette, specify in this behalf;
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[* * *]
(i) to any goods vehicle, the gross vehicle weight
of which does not exceed 3,000 kilograms;
(j) subject to such conditions as the Central
Government may, by notification in the Official Gazette,
specify, to any transport vehicle purchased in one State
and proceeding to a place, situated in that State or in
any other State, without carrying any passenger or
goods;
(k) to any transport vehicle which has been
temporarily registered under section 43 while
proceeding empty to any place for the purpose of
registration of the vehicle;
[* * *]
(m) to any transport vehicle which, owing to
flood, earthquake or any other natural calamity,
obstruction on road, or unforeseen circumstances, is
required to be diverted through any other route,
whether within or outside the State, with a view to
enabling it to reach its destination;
(n) to any transport vehicle used for such
purposes as the Central or State Government may, by
order, specify;
(o) to any transport vehicle which is subject to a
hire-purchase, lease or hypothecation agreement and
which owing to the default of the owner has been taken
possession of by or on behalf of, the person with whom
the owner has entered into such agreement, to enable
such motor vehicle to reach its destination; or
(p) to any transport vehicle while proceeding
empty to any place for purpose of repair.
[(q) to any transport vehicle having been issued
a licence under a scheme, under sub-section (3) of
section 67 or sub-section (1) of section 88A, or plying
under such orders as may be issued by the Central
Government or by the State Government.]
(4) Subject to the provisions of sub-section (3),
sub-section (1) shall, if the State Government by rule
made under section 96 so prescribes, apply to any
motor vehicle adapted to carry more than nine persons
excluding the driver."
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10. As per the material available on record, the date of
accident occurred is on 23.06.2019, whereas Ex.R4 shows that
permit of the offending vehicle is valid for a period from
03.07.2019 to 02.07.2024 i.e., after the accident he secured
permit. It shows that as on the date of accident, there was no
permit for the offending vehicle. Under such circumstances, in
view of the law laid down in the judgment of the Hon'ble Apex
Court in the case of Amrit Paul Singh and another Vs. TATA
AIG General Insurance Company Limited and others1, the
insurer is required to pay compensation amount to the
claimants and the insurer is entitled to recover the same from
the owner or driver of the offending vehicle.
11. Hence, in view of the law laid down in the case of
Amrit Paul Singh (supra) and in view of the facts and
circumstances of the present case, it is just and necessary to
order 'Pay and Recovery'. Hence, the Insurance Company is
liable to pay the entire compensation amount with interest to
pay first and then recover the same from the owner of
offending vehicle.
(2018) 7 SCC 558
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12. So far as quantum of compensation is concerned,
the Tribunal considered the notional income of the deceased at
Rs.13,250/- per month, as the accident is of the year 2019.
The age of the deceased was 23 years as on the date of
accident. The Tribunal has rightly deducted 50% towards
personal expenses of the deceased, as he was a bachelor.
Further, the multiplier applicable for the age is '18'. The
Tribunal has also added future prospectus at 40% to the
monthly income of the deceased and has rightly granted
Rs.20,03,400/- towards loss of dependency. Further, the
Tribunal has rightly granted compensation of Rs.15,000/-
towards funeral expenses, Rs.15,000/- towards loss of estate.
13. However, the Tribunal has granted a sum of
Rs.20,000/- towards loss of consortium. Admittedly, there are
two dependents who are the parents of the deceased and they
are entitled to Rs.40,000/- each towards loss of consortium.
Hence, only Rs.60,000/- is to be enhanced towards loss of
consortium.
14. So far as interest is concerned, the appellants
contended that, the rate of interest awarded by the
Tribunal @ 6% per annum on the compensation is on the
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lower side and same has to be enhanced to 12% per
annum. In light of the Division Bench decision of this Court in
the case of MS.JOYEETA BOSE AND OTHERS -V-
VENKATESHAN.V AND OTHERS (MFA 5896/2018 and
connected matters disposed of on 24.8.2020), the rate of
interest on the compensation is to be awarded at the rate of
6% per annum. Accordingly, the Tribunal has rightly taken the
rate of interest at to 6% per annum.
15. Thus, the claimant is entitled to Rs.80,000/-
towards loss of consortium instead of Rs.20,000/-.
16. In the result, we pass the following:
ORDER
a) Both appeals are allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimants are entitled to an enhanced
compensation amount of Rs.60,000/-, which
shall carry interest at the rate of 6% per
annum from the date of petition till
realization.
c) The appellant/Insurance Company shall
deposit the enhanced compensation amount
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with accrued interest before the Tribunal
within six weeks from the date of receipt of
copy of this judgment.
d) It is made clear that the appellant/Insurer
shall pay, at the first instance, the entire
compensation amount with accrued interest
and then recover the same from the owner of
the offending vehicle.
e) Amount in deposit, if any, shall be
transmitted to the Tribunal.
f) Draw modified award accordingly.
g) No order as to costs.
Sd/-
(H.T.NARENDRA PRASAD)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
SMM/ct-an
