Dismissed

K P Ramesh v. Smt a Vani

Karnataka HC4 Dec 2020MFA/1629/2018

Case brief

AI extract

What is this about?

The High Court examined two motor vehicle accident compensation appeals. It set aside joint liability on the vehicle owner and driver, holding the insurer liable instead per Mukund Dewangan. The court recalculated loss of dependency by deducting personal expenses and enhanced conventional heads per National Insurance guidelines, reducing the total compensation to Rs.19.64 Lakhs.

What did the court decide?

Total compensation reassessed to Rs.19,64,573 with interest at 6% p.a.; liability fastened on the insurer; registry to refund appellant.

K P Ramesh Vs Smt a Vani — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF DECEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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M.F.A.No.1629/2018 C/w. M.F.A.No.3306/2018 (MV)

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IN M.F.A.No.1629/2018:

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BETWEEN :

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K.P.RAMESH S/O MAHESHWARAPPA.K.P. OWNER OF AUTO RICKSHAW BEARING No.KA-43/2881 R/AT 9^TH CROSS, 3^RD MAIN VINOBHANAGARA DAVANAGERE-577001. ...APPELLANT

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(BY SRI SHASHIDHAR.R., ADV.)

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AND :

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SMT.A.VANI W/O LATE A.VEERANNA AGED 47 YEARS HOUSEHOLD WORK.

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A.V.ADITYA S/O LATE A.VEERANNA AGED 21 YEARS, STUDENT.

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3. A.KALAMMA W/O LATE UMAPATHIYAPPA AGED 84 YEARS

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R-3 IS DEAD, R-1 AND R-2 ARE THE LRS OF R-3

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[ CAUSE TITLE AMENDED AS PER ORDER DATED 30.11.2020.] ALL ARE R/AT #1904/1-2 2^ND CROSS, ‘A’ BLOCK S.S. LAYOUT, DAVANAGERE-577001.

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SWAMY @ P.ANJANEYA S/O PANDURANGAPPA AGED 30 YEARS DRIVER OF AUTO RICKSHAW BEARING No.KA-43/2881 R/AT RANGANATHA SWAMY NILAYA 7^TH CROSS, 4^TH MAIN, VINOBANAGARA DAVANAGERE-577001.

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THE LEGAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., A.M. ARCADE COMPLEX C.G.HOSPITAL ROAD NEAR VIDYARTHI BHAVAN DAVANAGERE-577001. …RESPONDENTS

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(BY SRI V.B.SIDDARAMAIAH, ADV. FOR R-1 AND R-2; V/O. DATED 30.11.2020, R-1 & R-2 ARE LR’s OF DECEASED R3; V/O DATED 30.11.2020, NOTICE TO R-3 IS DISPENSED WITH.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 19.01.2018 PASSED IN MVC No.565/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND VI MACT AND JMFC AT DAVANAGERE, AWARDING COMPENSATION OF Rs.25,11,885/- WITH INTEREST AT 8% P.A., FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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IN M.F.A.No.3306/2018:

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BETWEEN :

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SMT.A.VANI W/O LATE A.VEERANNA AGED ABOUT 47 YEARS

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A.V.ADITYA S/O LATE A.VEERANNA AGED ABOUT 21 YEARS

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A.KALAMMA W/O LATE UMAPATHIYAPPA AGED ABOUT 84 YEARS

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ALL ARE R/AT No.1904/1-2, 2^ND CROSS, ‘A’ BLOCK, S.S. LAYOUT DAVANAGERE-577101. ...APPELLANTS

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(BY SRI V.B.SIDDARAMAIAH, ADV.)

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AND :

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THE LEGAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., A.M. ARCADE COMPLEX C.G.HOSPITAL ROAD NEAR VIDYARTHI BHAVAN DAVANAGERE-577101

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SWAMY @ P.ANJANEYA S/O PANDURANGAPPA AGED ABOUT 30 YEARS R/AT RANGANATHA SWAMY NILAYA 7^TH CROSS, 4^TH MAIN, VINOBANAGAR DAVANAGERE-577102. …RESPONDENTS

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(BY SRI SHASHIDHAR.R, ADV. FOR R-3;

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SRI P.B.RAJU, ADV. FOR R-5;

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V/O. DATED 30.11.2020, NOTICE TO R-2 IS DISPENSED WITH.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 19.01.2018 PASSED IN MVC No.565/2016 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND VI MACT AND JMFC AT DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Both the registered owner of the vehicle as well as the claimants are before this Court challenging the judgment and award dated 19.01.2018 passed in MVC No.565/2016 on the file of the II Additional Senior Civil Judge and VI M.A.C.T., at Davanagere ['Tribunal' for short].

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The claimants instituted the petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the death of A.Veeranna in the road traffic accident which occurred on 07.04.2016.

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It was averred that the driver of the auto rickshaw bearing registration No.KA-43/2881 [offending vehicle] dashed to the Hero Honda Activa near Suvarna Enterprises shop on Davanagere-Harihar road while the deceased A.Veeranna was riding the said vehicle on 07.04.2016 at about 05.30 p.m. As a result, he fell down and sustained fatal injuries on his head and other

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parts of the body. Immediately, he was shifted to SSIMS Hospital, Davanagere where he succumbed to injuries on 13.04.2016. The claimants being the mother, widow and son of the deceased have contended that they have suffered loss of dependency due to untimely death of A.Veeranna. It was averred that he was earning Rs.50,000/- from agriculture and business. On these set of facts, they had sought for compensation before the Tribunal.

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On issuance of notice by the Tribunal, the

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insurer as well as the driver of the offending vehicle appeared and filed objection statement.

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The driver of the offending vehicle has stated that the accident occurred due to the sole negligence of the deceased A.Veeranna. The complaint was lodged after six days of the incident. So, there are chances of manipulation. A specific defence was taken that it was a case of vis major, since the auto wheel was cut down

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and thereby the accident occurred. He had the driving licence and the vehicle was duly insured at the time of the accident.

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The insurer admitting the ownership of the offending vehicle and the coverage of the insurance policy at the time of the accident, contended that the driver had no valid and effective driving licence, the offending vehicle did not possess valid permit to ply on road, the delay caused in filing the complaint would indicate that there were chances of implanting the offending vehicle to make wrongful gain. Accordingly, sought for dismissal of the claim petition.

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Based on the pleadings, issues were framed and answered awarding total compensation of Rs.25,11,855/- with interest at 8% p.a., from the date of petition till its realization, fastening the liability on the driver and the owner of the offending vehicle jointly and severally, absolving the insurer from the liability.

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Being aggrieved by the quantum of compensation, the claimants have preferred MFA No.3306/2018 whereas the registered owner of the offending vehicle has preferred MFA No.1629/2018 challenging the liability as well as the quantum awarded by the Tribunal.

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Learned counsel for the owner submitted that the Tribunal has held that the insurer is not liable to indemnify the owner since there is violation of terms of policy conditions as the driver had no driving licence to drive the transport vehicle at the time of accident. The Tribunal proceeded to give such a finding on the premise that the driver having license to drive LMV vehicle, has to mandatorily obtain an endorsement to drive the transport vehicle which indeed was lacking in the present case. Inviting the attention of this Court to the judgment of the Hon'ble Apex Court in the case of Mukund Dewangan V/s. Oriental Insurance

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Company Limited reported in [2017] 14 SCC 663 , learned counsel submitted that the driver possessing a valid and effective driving licence to drive a light motor vehicle is not required to necessarily obtain an endorsement to drive the transport vehicle. It was submitted that in view of this ruling of the Hon'ble Apex Court, the liability fastened on the registered owner of the vehicle has to be set aside, the insurer is required to indemnify the owner. Hence, the liability has to be saddled on the insurer to satisfy the award. It was further argued that the quantum of compensation awarded by the Tribunal is unreasonable primarily for the reason that though the Tribunal observed that 1/3^rd of the income has to be deducted towards personal and living of the expenses of the deceased, while computing the loss of dependency applying the multiplier of 9, failed to deduct 1/3^rd of the income.

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Learned counsel for the claimants fairly

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submitted that the Tribunal has failed to deduct 1/3^rd of the income towards personal and living expenses of the deceased while reckoning the loss of dependency. However, he submitted that the compensation requires to be enhanced, determining the income of the deceased as per the income tax returns. It was further submitted that the compensation under the conventional heads also requires to be enhanced.

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We have carefully considered the rival

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submissions of the learned counsel appearing for the parties and perused the material on record.

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In our opinion, the arguments of the learned counsel for the owner has considerable force and it is not gainsaid. In our opinion, appears to be on terrafirma. We are bound by the decision of the Hon'ble Apex Court in Mukund Dewangan supra, possessing an endorsement in the driving licence not being mandatory

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to drive the transport vehicle for the driver possessing licence to drive the light motor vehicle. The liability fastened by the Tribunal on the driver and owner of the vehicle is set aside. The insurer shall be liable to satisfy the award.

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As regards the quantum, it is ex facie apparent that the Tribunal though noticed that 1/3^rd of the income towards personal expenses of the deceased but failed to deduct the same after applying the multiplier of 9 to calculate the loss of dependency by taking the annual income of Rs.2,61,380/-. We do not find any arbitrariness in determining the annual income of the deceased at Rs.2,61,380/-based on the income tax returns filed as per Ex.P14. No compensation towards future prospects has been awarded by the Tribunal. By adding 10% towards future prospects, the annual income would be Rs.2,87,518/-. Hence, deducting 1/3^rd of the income towards personal

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expenses of the deceased, the loss of dependency would workout to Rs.17,25,108/- [2,87,518 x 9 x 1/3]. The claimants are entitled to compensation of Rs.89,465/towards Medical expenses.

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In terms of the ruling of the Hon'ble Apex Court in National Insurance Company Limited Vs. Pranay Sethi and others ((2017)16 SCC 680) and New India Assurance Company Limited V/s. Somwati and Others [Civil Appeal No.3093 of 2020 and Connected matters, D.D. on September 7, 2020], the claimants are entitled to compensation of Rs.1,50,000/under the conventional heads viz., Rs.40,000/- towards loss of spousal consortium; Rs.40,000/- towards loss of parental consortium; Rs.40,000/- towards loss of filial consortium; Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate.

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15. For the reasons aforesaid, the total

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compensation awarded by the Tribunal is re-assessed as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Loss ofdependency	17,25,108/-
2.	Medicalexpenses	89,465/-
3.	Loss of ParentalConsortium	40,000/-
4.	Loss ofSpousalConsortium	40,000/-
5.	Loss of FilialConsortium	40,000/-
6.	Loss of Estate	15,000/-
7.	Funeralexpenses	15,000/-
	Total	19,64,573/-

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Thus, the claimants shall be entitled to total compensation of Rs.19,64,573/- with interest at the rate of 6% per annum from the date of the claim petition till the date of realization.

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Hence, the following:

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ORDER

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i] MFA.No.1629/2018 filed by the registered owner

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of the vehicle is allowed. MFA.No.3306/2018 filed by the claimants stands dismissed.

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ii] The total compensation awarded by the Tribunal is modified and reduced to Rs.19,64,573/- as against Rs.25,11,885/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iii] The liability is fastened on the insurer to satisfy the award in terms of the judgment of the Hon'ble Apex Court in Mukund Devangan's supra.

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iv] The Insurance Company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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v] The portion of the order of the Tribunal inasmuch as apportionment and disbursement remains intact.

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vi] The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.

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vii] Draw modified award accordingly.

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viii] The Registry shall refund the amount in deposit to the appellant in MFA No.1629/2018 [owner of the vehicle] forthwith in accordance with law after due identification.

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ix] The Registry shall transfer the original records to the jurisdictional Tribunal forthwith.

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x] All pending I.As., if any, stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

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NC.

K P Ramesh v. Smt a Vani

Case brief

What is this about?

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K P Ramesh v. Smt a Vani

Case brief

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