Partly allowed

Hanumanthappa S/O Siddappa Chukai v. Ashok S/O Shivappa Bandi

Karnataka HC8 Jul 2020MFA/103619/2015

Case brief

AI extract

What is this about?

The High Court enhanced motor accident compensation from Rs.10,35,000 to Rs.11,84,000 by correcting future prospects addition, multiplier, and expense deduction. Liability was shifted to the insurer, who must pay first and recover from the owner, following Supreme Court rulings.

What did the court decide?

Compensation enhanced to Rs.11,84,000 with 6% interest. Liability shifted to insurer to pay at first instance and recover from owner.

Hanumanthappa S/O Siddappa Chukai Vs Ashok S/O… — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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Dated this the 8^th day of July 2020

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Present

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THE HON’BLE MR. JUSTICE S.G. PANDIT

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and

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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M.F.A. No.103619 of 2015 (MV)

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Between

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Hanumanthappa, S/o Siddappa Chukai, Age: 52 Years, Occ: Coolie,

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Smt.Kamalamma, W/o Hanumanthappa Chukai, Age: 47 Years, Occ: Household,

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Both are R/o: Kudatini, Tq: Dist: Bellary, Now R/o: Bhagyanagar,

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Tq: Dist: Koppal. ...Appellants

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(By Sri. Chandrashekar P. Patil, Advocate)

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And

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Ashok, S/o Shivappa Bandi, Age: 27 Years, Occ: Owner of vehicle bearing No.KA-37/9269, R/o: Mangalore, Tq: Yelburga, Dist: Koppal.

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The Divisional Manager United India Insurance Company Limited, Yalamanchali Complex, Station Road, Hosapete, Tq: Hosapete, Dist: Ballari. ...Respondents

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(By Sri. R.R.Mane, Advocate for R2) (R1 – served)

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This MFA is filed under Section 173(1) of the Motor Vehicles Act, against the judgment and award dated 07.08.2014 passed in M.V.C. No.88/2013 on the file of the Senior Civil Judge and Member Additional Motor Accident Claims Tribunal, Koppal, partly allowing the clam petition for compensation and seeking enhancement of compensation.

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This MFA coming on for Hearing this day, S.G.PANDIT, J, delivered the following:

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JUDGMENT

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The claimants/appellants are in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 07.08.2014 passed in M.V.C. No.88/2013 on the file of Senior Civil Judge & Additional Motor Accident Claims Tribunal, Koppal (for short, ‘the Tribunal’) and also questioning

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the liability saddled on respondent No.1 owner of APE Auto under the impugned judgment and award.

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Anjanamma who died in a road traffic accident. They filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming compensation for the accidental death of Anjanamma in the road traffic accident that occurred on 18.03.2012 involving APE Auto bearing No.KA-37/9269. It is stated that the deceased was aged 23 years and was working as a Nurse getting salary of Rs.12,000/- per month. On issuance of notice, respondent Nos.1 and 2 appeared and filed their written statements. Respondent No.1 denied the rash and negligent driving of the APE Auto and further contended that the APE Auto was insured with respondent No.2 and as such, respondent No.2 is liable to pay compensation. Respondent No.2, in its written statement admitted issuance of policy to the offending vehicle and that the insurance was in force as

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on the date of the accident. However, respondent No.2insurer denied the occurrence of the accident. It also contended that the driver was not holding driving licence as on the date of the accident and there was violation of policy conditions. The claimants, in support of their case, examined claimant No.2 as P.W.1 and examined one more witness as P.W.2, apart from marking the documents as Exs.P.1 to P.7. The respondents examined R.W.1 to R.W.3 apart from marking documents as Exs.R.1 to R.5. The Tribunal on considering the entire material on record awarded total compensation of Rs.10,35,000/- with interest at 6% per annum, on the following heads:

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HEADS	AMOUNT IN RUPEES
Funeral expenses	10,000-00
Loss of dependency	10,20,000-00
Loss of love and affection	5,000-00
Total	10,35,000-00

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While awarding the above compensation, the Tribunal assessed the income of the deceased at Rs.7,500/- per month, deducted 1/3^rd towards personal and living

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expenses of the deceased and adopted multiplier of 17. Claimants not being satisfied with the quantum of compensation awarded by the Tribunal and questioning saddling of liability on respondent No.1-owner of the APE Auto, are before this Court in this appeal.

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Heard the learned counsel for the appellants and the learned counsel for the respondent No.2insurance company. Perused the trial Court records.

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The learned counsel for the appellants would

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submit that the Tribunal committed an error in not awarding any compensation on the head of future prospects. The deceased was working as a Junior Health Assistant at Community Health Centre, Kudarimothi village, and was drawing consolidated salary of Rs.7,500/- per month. Learned counsel submits that since the deceased was having a permanent job, the Tribunal ought to have taken 50% of the assessed income towards future prospects. He

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invites the attention of this Court to Ex.P.7-salary certificate issued by the Medical Officer, Community Health Centre, Mangaluru, Yelburga Taluk. Further, learned counsel submits that the Tribunal ought to have adopted multiplier ‘18’ instead of ‘17’ since the deceased was aged 23 years.

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With regard to saddling of liability on

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respondent No.1-owner of the APE Auto, learned counsel for the appellants submits that the Tribunal committed an error in saddling the liability on respondent No.1-owner of the APE Auto on the ground that the vehicle was being plied in a non-permitted area and that the driver was not having a valid and effective licence to drive motor vehicle. He further submits that the driver was having licence to drive light motor vehicle (non-transport) and as such, in view of the decision of the Hon’ble Apex Court in the case of Mukund Dewangan

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Vs. Oriental Insurance Company Limited and Others reported in AIR 2017 SC 3668, respondent No.1 could

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also drive light motor vehicle (transport). Further, he also submits that in view of the decision of the Hon’ble Apex Court in the case of Amrit Paul Singh and another

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Vs. TATA AIG General Insurance Co. Ltd. and others reported in AIR 2018 SC 2662 , the ground that the vehicle was being plied in a non-permitted area would also be not available for the insurer. Thus, he prays for allowing the appeal by enhancing the compensation and by saddling the liability on respondent No.2-insurer.

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Per contra, the learned counsel for

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respondent No.2-insurance company would submit that the deceased was not a permanent employee of the Health Department. Referring to Ex.P.7, he submits that the deceased was working under a scheme on a contract basis and she was receiving a sum of Rs.7,500/- per month as consolidated pay. As such, he submits that the claimants would not be entitled for addition of 50% of the assessed income, but they would be entitled for addition of 40% of the assessed income towards future

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prospects. Further, the learned counsel would submit that since the deceased was aged 23 years and unmarried, deduction made by the Tribunal at 1/3^rd towards personal and living expenses of the deceased is not proper, and the Tribunal ought to have deducted 50% of the income towards personal and living expenses of the deceased. Thus, he prays for deducting 50% of the income towards personal and living expenses of the deceased. With regard to saddling of liability on respondent No.1, learned counsel submits that the Tribunal is justified in saddling the liability on respondent No.1 since the owner had violated the terms and conditions of the policy.

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On hearing the learned counsels for the parties and on perusal of the records, the following points would arise for our consideration:

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i) Whether the claimants would be entitled for future prospects? If so, at what percentage?

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ii) Whether the multiplier adopted by the Tribunal at ‘17’ is proper and correct?

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iii) Whether the Tribunal is justified in saddling the liability on respondent No.1 – owner of the APE Auto?

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The answer to point No.i) would be in the

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affirmative, point No.ii) in the negative and point No. iii) partly in the affirmative, for the following reasons:

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Point No.i): The accident is of the year 2012. The

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deceased was aged 23 years as on the date of the accident. Ex.P.7-salary certificate issued by the Community Health Centre, Mangaluru, Yelburga Taluk, Koppal District, indicates that the deceased was working as Junior Health Assistant under the National

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Rural Health Scheme, on contract basis, on a consolidated salary of Rs.7,500/- per month. Ex.P.7 itself states that the deceased was working on contract basis which means the employment was not

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permanent. Ex.P.7 would also indicate that the deceased was receiving consolidated salary of Rs.7,500/- per month. The Hon’ble Apex Court in National Insurance Company Ltd. Vs. Pranay Sethi reported in 2017 ACJ 2700 has held that claimants would be entitled for addition of 40% of the assessed income towards future prospects where the deceased was aged below 40 years and was not having a permanent employment and, if the deceased was having permanent employment, the claimants would be entitled for addition of 50% of the assessed income. In the instant case, the deceased was not having permanent employment, but she was working on contract basis as Junior Health Assistant at Community Health Centre, Mangaluru, Sub-Centre Kudarimothi village, Yelburga Taluk, Koppal District. Therefore, the claimants would be entitled for addition of 40% of the assessed income towards future prospects.

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Point No.ii): The deceased was aged 23 years and as per the decision of the Hon’ble Apex Court in the case of Sarla Verma and Others Vs. Delhi Transport Corporation and Another reported in 2009 ACJ 1298 , the proper multiplier applicable would be ‘18’. The multiplier ‘17’ adopted by the Tribunal is erroneous.

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The Tribunal has made the deduction towards personal and living expenses of the deceased at 1/3^rd of the income which is not proper. The deceased was unmarried and the Tribunal ought to have deducted 50% of the income towards personal and living expenses of the deceased. Thus, only 50% of the income is taken to assess the compensation.

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Point No.iii): The Tribunal has saddled the liability on respondent No.1-owner of the APE Auto on the ground that the driver of the offending vehicle was not possessing valid and effective driving licence as on the date of the accident and also on the ground that the

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vehicle was plied in a non-permitted area. It has come on record that the driver of the APE Auto had licence to drive light motor vehicle (non-transport). Ex.R.1 is the licence of the driver of the APE Auto. However, the licence does not have the endorsement to drive the transport vehicle. The Hon’ble Apex Court in Mukund Dewangan’s case (supra) has held that if a person possesses licence to drive light motor vehicle (nontransport), there is no requirement to obtain separate endorsement to drive transport vehicle and the driver holding licence to drive light motor vehicle (nontransport) could also drive transport vehicle of such class without any endorsement to that effect. Further, the learned counsel for the insurer also contended that the APE Auto was plied outside the permitted area and thus there was violation of terms and conditions of the policy. Admittedly, the accident had taken place on Kudarimoti-Mangalur Road, near Mangalur Hirehalla. Ex.R.3 is the vehicle permit. Ex.R.3 would indicate that

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the vehicle was permitted to ply within the Yelburga Town Panchayat limits. The place of accident was outside the panchayat limits of Yelburga Town. Thus there was violation of condition of permit. The Hon’ble Apex Court in Amrit Paul Singh’s case (supra) has held that wherever there is violation of permit condition, it is for the insurance company to pay the compensation at the first instance and to recover the same from the owner of the vehicle. Following the judgment of the Apex Court in Amrit Paul Singh’s case (supra), respondent No.2-insurance company is directed to pay the compensation to the claimants, at the first instance, and to recover the same from respondent No.1-owner of the APE Auto.

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On taking the income of the deceased at Rs.7,500/- per month, adding 40% towards future prospects, deducting 50% towards personal expenses of the deceased and applying the multiplier ‘18’, the

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claimants would be entitled to a sum of Rs.11,34,000/-

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towards ‘loss of dependency’ including future prospects.

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The claimants would be entitled for a sum of

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Rs.50,000/- towards conventional heads.

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On reassessment, the claimants would be

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entitled for the following modified compensation:

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Loss of dependency Rs. 11,34,000-00 (including future prospects) 2. Conventional heads Rs. 50,000-00 Total Rs. 11,84,000-00

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Thus, in all, the claimants would be entitled to a total compensation of Rs.11,84,000/-, as against Rs.10,35,000/- awarded by the Tribunal, along with interest at 6% per annum from the date of petition till the date of realization.

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Accordingly, the appeal is allowed in part. The judgment and award dated 07.08.2014 passed in M.V.C. No.88/2013 passed by the Tribunal is hereby

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modified. The claimants are entitled to a total compensation of Rs.11,84,000/-, as against Rs.10,35,000/- awarded by the Tribunal, along with interest at 6% per annum from the date of petition till the date of realization. The apportionment and deposit of the compensation between the claimants shall be in the same proportion as ordered by the Tribunal.

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Sd/JUDGE

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Sd/JUDGE

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Kms

Hanumanthappa S/O Siddappa Chukai v. Ashok S/O Shivappa Bandi

Case brief

What is this about?

What did the court decide?

Hanumanthappa S/O Siddappa Chukai v. Ashok S/O Shivappa Bandi

Case brief

What is this about?

What did the court decide?

What the court decided

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