Dismissed

The Divisional Manager v. Huligevva W/O Channappa

Karnataka HC19 Aug 2017MFA/22396/2009

Case brief

AI extract

What is this about?

The High Court of Karnataka heard an appeal by an insurance company seeking to avoid liability after killing a passenger in a bus accident where the vehicle was leased to a transport corporation. The court rejected the appeal, affirming the insurer's liability and the tribunal's compensation quantum.

What did the court decide?

The appeal was rejected; the amount deposited by the appellant was ordered to be transferred to the Motor Accident Claims Tribunal.

The Divisional Manager Vs Huligevva W/O Channappa — Insurance | Karnataka HC (2017)

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M.F.A.No.22396/2009

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 19^TH DAY OF AUGUST, 2017

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BEFORE

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THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

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M.F.A. NO.22396/2009 (MV)

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BETWEEN:

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THE DIVISIONAL MANAGER, ORIENTAL INSURANCE COMPANY LIMITED, PARVATHI NAGAR, BELLARY, (INSURED AT SECUNDRABAD) BEARING POLICY COVER NOTE NO.535323, VALID FROM 21.10.2005 TO 20.10.2006, BY ITS REGIONAL OFFICE, SUMANGALA COMPLEX, IIND FLOOR, LAMINGTON ROAD, HUBLI, REPRESENTED BY ITS ASSISTANT MANGER.

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... APPELLANT

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(BY SRI.S.C.JAINAR, ADVOCATE)

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AND:

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HULIGEVVA W/O LATE CHANNAPPA, AGE: 34 YEARS, OCC: HOUSEHOLD, R/O LACHANKERI VILLAGE, KOPPAL TALUK AND DISTRICT.

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SANNA HULIGAMMA W/O RAMESH, AGE: 30 YEARS, OCC: HOUSEHOLD, R/O LACHANKERI VILLAGE, KOPPAL TALUK & DISTRICT.

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HULIGAMMA W/O ERAPPA, AGE: 27 YEARS, OCC: HOUSEHOLD, R/O LACHANKERI VILLAGE,. KOPPAL TALUK & DISTRICT.

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S.VIJAY KUMAR S/O S.P. PRASAD RAO, AGE: MAJOR, OWNER OF THE BUS BEARING REGN.NO.KA.34/4233, R/O B-1, 4^TH FLOOR, JAGRUTHI RESIDENCY EAST MOREDPALLY, SECUNDRABAD A.P.

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THE DIVISIONAL CONTROLLER, NEKSRTC, BELLARY,

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NAVAZ PATEL S/O RASHEED PATEL, AGE: 28 YEARS, MUSLIM, OCC: DRIVER OF NEKRTC BUS BEARING NO.KA-34/4233, R/O HOUSE NO.11/8, KURMUNTA, SEDAM TALUK, GULBARGA DISTRICT.

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... RESPONDENTS

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(SRI.SHIVAKUMAR S BADAWADAGI, ADV. FOR R5, R1, R2, R3 & R6 SERVED & UNREPRESENTED, NOTICE TO R4 DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 31.01.2009, PASSED IN MVC NO.418/2006, ON THE FILE OF THE XI MOTOR ACCIDENT CLAIMS TRIBUNAL, BELLARY, II ADDITIONAL CIVIL JUDGE (SR.DN) AND MEMBER, MACT-XI, AWARDING A COMPENSATION OF RS.4,48,000/- ALONG WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE REALIZATION.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present appellant was the respondent No.2

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before the XI Motor Accident Claims Tribunal, Bellary, II Additional Civil Judge (Sr.Dn) and Member, MACT-XI (hereinafter referred to as the ‘Tribunal’ for brevity). The

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M.F.A.No.22396/2009

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present respondents No.1 to 3 were the claimants in the Tribunal below. The other respondents in this appeal were the respondents in the Tribunal below. The claimants had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, against the respondents in the Tribunal below seeking a compensation of `15,00,000/- on account of death of one Huligeppa, who is said to be the brother of the claimant No.1.

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The summary of the case of the claimants in the Tribunal below was that on 13.02.2006 at about 8.15 p.m. on H.B.Halli Road, while deceased Huligeppa was traveling in KSRTC bus bearing Reg.No.KA-34/4233 as paid passenger from Hospet to Milar Lingeshwara Jatra, the said bus due to rash and negligent driving by its driver dashed against a stationed lorry from its hind side. In the said accident Huligeppa and other passengers sustained injuries. The said Huligeppa succumbed to the injuries.

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The claimants stating that they were fully dependant on

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the income of the deceased and holding respondents liable

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to pay compensation to them had claimed a compensation of `15,00,000/-.

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The Tribunal below after framing necessary issues and recording evidence led before it, by the impugned judgment and award has allowed the claim petition in part holding that the claimants were entitled to a compensation of a sum of `4,48,000/- with interest thereupon. The Tribunal below also directed the 2^nd respondent-Insurance Company before it (the present appellant herein), to deposit the compensation amount, since it was the insurer of the alleged offending bus. The said judgment and award has been challenged in this appeal by the said Insurance Company on the contention that the alleged offending vehicle, which is a bus bearing Reg.No.KA-34/4233, which is originally owned by respondent No.1 and insured by it, however, the said bus since had been leased to respondent No.3-NEKRTC, the

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insurer stands exonerated from its liability and that entire liability to pay the compensation would be of NEKRTC. The Tribunal below has not accepted the said contention.

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For the sake of convenience, the parties would be referred to with the rankings they were holding in the Tribunal below.

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In the memorandum of appeal, the appellantInsurance Company has taken the very same contention which it had taken in the Tribunal below. Learned counsel for the appellant reiterated the same even in his argument also.

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In the Tribunal below respondent No.3-NEKRTC in its written statement, though has admitted that the bus is originally owned by respondent No.1 and that said bus was taken under lease by it, but stated that the insurance policy extended was to the vehicle, but not to the owner and that the liability of the said insurer continues with that bus, which was lawfully leased to its company.

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Learned counsel for the respondent No.3-

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Insurance Company in his argument while reiterating the

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same also relied upon the judgment of the Hon’ble Supreme Court in the case of Uttar Pradesh State Road

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Transport Corporation vs. Kulsum and Others

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reported in (2011) 8 SCC 142 . In the said case, the facts were that the offending vehicle was a mini bus, which was plying under agreement of contract with State Road Transport Corporation. The bus was plying on the road as per the permit granted by the State Road Transport Corporation. When the question of payment of compensation arose in the matter, observing that the State Road Transport Corporation and the owner of the vehicle had specifically agreed that the vehicle would be insured and the driver would be provided by the owner of the vehicle, but the over all control, not only on the vehicle but also on the driver, would be that of the Corporation, held that insurer cannot escape from its liability. As such, it was held that insurer of the said bus was liable to pay

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compensation. The said observation of the Hon’ble Supreme Court squarely applies to the case on hand also. Admittedly, under an agreement of lease, the bus has been leased from respondent No.1 to respondent No.3Corporation.

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Neither in the Tribunal below nor in this Court, the present appellant could able to produce any document or draw the attention of the Court to any of the condition in their policy restraining the owner of the vehicle for leasing the vehicle in favour of third party including the State Road Transport Corporation. Further, as observed by the Hon’ble Supreme Court in Kulsum’s (supra) case, for a practical purpose for the relevant period, the respondent No.3-Corporation had become the owner of the vehicle for the specific period. If the Corporation had become the owner even for the specific period and the vehicle having been insured at the instance of original owner, it will be deemed that the vehicle was transferred

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with the insurance policy in existence to the Corporation and thus, Insurance Company would not be able to escape from its liability to pay the amount of compensation. As such, no error could be found in the finding of the Tribunal below holding the present insurer as the party liable to pay the compensation to the claimants.

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The next leg of argument of the learned counsel

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for the appellant is with respect to the quantum of compensation awarded by the Tribunal below. Learned counsel for the appellant in his argument submitted that the deceased Huligeppa was a bachelor and the claimants were the sisters, as such, they were not dependent on him. The original claimants who were three in number are admittedly the sisters of deceased Huligeppa.

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The Tribunal below in the impugned judgment and award has not awarded any compensation to the claimant No.3 observing that she was married and residing in her husband’s house. However, after noticing the evidence of

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PW.1 before it, which remained uncontroverted that

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among the claimants No.1 and 2, claimant No.1 was a widow and claimant No.2 was a deserted sister, both of them were dependant upon the deceased for their living, the Tribunal below has considered them as the dependants on the income of the deceased. In view of the said fact and more particularly, the evidence in that regard led by PW.1 not being denied or controverted from any of the respondents, the finding of the Tribunal below holding that the claimants No.1 and 2 as dependants of the deceased cannot be found fault with.

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Learned counsel for the appellant also canvassed in the argument that, the Tribunal below has committed an error in making deduction of one-third of the income of the deceased towards his personal expenses, the Tribunal below was required to make the said personal deduction to the 50% of the income. In this regard, learned counsel for the appellant also relied upon the

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judgment of the Division Bench of this Court in the case of Gulam Khadar and Another vs. United India Insurance Company Limited and Another reported in

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ILR 2000 Karnataka 4416 , wherein this Court has given guidelines regarding percentage of deductions to be made in cases arising out of death of a person(bachelor) towards his personal expenses. In that judgment at paragraph 13, the Court has made an observation where the family of the deceased consisted of defendant parents/siblings, depending on the number and the position of the family, deduction can be one-third or by adopting units method, whichever is appropriate.

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In the case on hand, the Tribunal below after

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discussing the position of the claimants and their relationship with the deceased Huligeppa and the dependency of the claimants upon the deceased Huligeppa has deducted only one-third of the income of the deceased towards his personal expenses. In view of the said facts

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and circumstances of the case, I do not find any error in

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the said finding of the Tribunal below.

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