Partly allowed

Sharmila v. Basavaraju

Karnataka HC6 Nov 2020MFA/4541/2017

Case brief

AI extract

What is this about?

The High Court dismissed the insurer's appeal challenging liability and queenntum while partly allowing the claimants' appeal. The Court held no endorsement was needed for light motor vehicles under Motor Vehicles Act and enhanced compensation to Rs.28.36 lakhs.

What did the court decide?

Total compensation enhanced from Rs.20.40 lakhs to Rs.28.36 lakhs. Liability of Bajaj Allianz General Insurance Co. Ltd. confirmed. Appeal of claimants partly allowed.

Sharmila Vs Basavaraju — Banking and Recovery | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF NOVEMBER, 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.3608/2017 c/w M.F.A.No.4541/2017 (MV)

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IN M.F.A.No.3608/2017:

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BETWEEN :

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THE LEGAL EXECUTIVE BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, NO.324/1, D.SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSORE-570024 BY BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., REGIONAL OFFICE, GOLDEN HEIGHTS, 4^TH LEVEL, NO.1/2, 59^TH CROSS, 4^TH "M" BLOCK, RAJAJINAGAR, BANGALORE-560010 BY ITS MANAGER. ...APPELLANT

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(BY SRI O.MAHESH, ADV.)

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AND :

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1 . SMT.SHARMILA W/O LATE BHARATH KUMAR @ BHARATH, AGED 44 YEARS

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2 . KUM. POOJA D/O LATE BHARATH KUMAR @ BHARATH,

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AGE 24 YEARS

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3 .	KUM. LIZA D/O LATE BHARATH KUMAR @ BHARATH, AGE 22 YEARS
4 .	KUM. SIMRAN D/O LATE BHARATH KUMAR @ BHARATH, AGE 17 YEARS A MINOR REP BY HER NATURAL GUARDIAN MOTHER RESPONDENT No.1.
	ALL ARE R/O KAILASH JEWELLERS, M.G.ROAD, CHIKKAMAGALURU CITY-577101.
5 .	BASAVARAJU S/O GANGE GOWDA, AGED 36 YEARS, R/O CHIKKOUZA VILLAGE, HIREGOUZA POST, CHIKKAMAGALURU TALUK & DISTRICT-577101.
6 .	SMT.GANGAMMA W/O SIDDEGOWDA AGED 84 YEARS, R/O MAGADI KAIMARA VILLAGE, CHIKKAMAGALURU TQ & DISTRICT-577101.
7 .	JITHENDRA @ JITHENDRA KUMAR S/O HEMARAJ, AGED ABOUT 44 YEARS, R/O KAILASH JEWELLERS, M.G.ROAD, CHIKKAMAGALURU CITY-577101.
8 .	THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, CRESENT COURT, K.M.ROAD, CHIKKAMAGALURU CITY-577101. …RESPONDENTS
	(BY SRI GIRISH B. BALADARE, ADV. FOR R-1 TO R-3; SRI K.S.GANESH, ADV. FOR R-5 TO R-6; SRI P.B.RAJU, ADV. FOR R-8;
	R-4 IS MINOR REP. BY R-1; R-7 SERVED.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 18.02.2017 PASSED IN MVC No.521/2013 ON THE FILE OF THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT CHIKKAMAGALURU AND MACT, AWARDING COMPENSATION OF Rs.20,40,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE REALIZATION.

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IN M.F.A.No.4541/2017:

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BETWEEN :

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1 . SHARMILA W/O LATE BHARATH KUMAR @ BHARATH, AGED ABOUT 44 YEARS

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2 . KUM. POOJA D/O LATE BHARATH KUMAR @ BHARATH, AGED ABOUT 24 YEARS

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3 . KUM. LIZA D/O LATE BHARATH KUMAR @ BHARATH, AGED ABOUT 22 YEARS

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4 . KUM. SIMRAN D/O LATE BHARATH KUMAR @ BHARATH, AGED ABOUT 17 YEARS BEING MINOR REP BY HER NATURAL GUARDIAN MOTHER i.e., THE APPELLANT HEREIN

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ALL ARE R/AT KAILASH JEWELLERS, M.G.ROAD, CHIKKAMAGALURU CITY-577101. ...APPELLANTS

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(BY SRI GIRISH B. BALADARE, ADV.)

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AND :

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1 . BASAVARAJU S/O GANGEGOWDA, AGED ABOUT 36 YEARS, R/AT CHIKKOUZA VILLAGE,

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HIREGOUZA POST, CHIKKAMAGALURU TALUK & DISTRICT-577 101.

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2 . GANGAMMA W/O SIDDEGOWDA, AGED ABOUT 84 YEARS, R/AT MAGADI KAIMARA VILLAGE, CHIKKAMAGALURU TALUK & DISTRICT-577 101.

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3 . THE LEGAL EXECUTIVE BAJAJ ALLIANZ GENERAL INS. CO. LTD., NO.324/1, D. SUBBAIAH ROAD, CHAMARAJA MOHALLA, MYSORE-570001.

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4 . JITHENDRA @ JITHENDRA KUMAR S/O HEMARAJ, AGED ABOUT 44 YEARS, R/AT: KAILATH JEWELLERS, M.G. ROAD, CHIKKAMAGALURU CITY & DISTRICT-577 101.

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5 . THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, CRESENT COURT, K.M. ROAD, CHIKKAMAGALURU CITY & DISTRICT-577 101. …RESPONDENTS

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(BY SRI O.MAHESH, ADV. FOR R-3; NOTICE TO R-1, R-2, R-4 & R-5 ARE DISPENSED WITH VIDE COURT ORDER DATED 05.11.2019.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 18.02.2017 PASSED IN MVC No.521/2013 ON THE FILE OF THE 2^ND SENIOR CIVIL JUDGE AND JMFC, CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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J U D G M E N T

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The insurer and the claimants are in appeal challenging the judgment and award dated 18.2.2017 passed in MVC No.521/2013 by the II Addl. Sr. Civil Judge & JMFC, Chikkamagaluru & MACT (‘Tribunal’ for short).

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The claimants being the wife and children of

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the deceased Bharat Kumar instituted the petition under Section 166 of the Motor Vehicles Act ['Act' for short] seeking compensation for the death of the said Bharath Kumar in the motor vehicle accident. The claimants contended that the said Bharat Kumar while proceeding in Maruthi Wagon R car belonging to the respondent No.4-Sri.Jithendra from Chikkamagaluru to Bengaluru, met with the road traffic accident on 10.3.2013 at about 7.15 a.m. to 7.30 a.m. owing to the actionable negligence of the driver of the Tractor and Trailer bearing Reg. No.KA-16-T-6787 and KA-18-TA-

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3492 (offending vehicle). Due to the said impact, he sustained fatal injuries and died on the spot.

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It was averred in the claim petition that the

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deceased died in harness. He was doing jewellery business in the name and style of ‘Kailsah Jewelers’ at

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Chikkamagaluru. He was also the owner of textiles shop situated at Bengaluru and earning Rs.80,000/per month. The deceased was maintaining his family. He was an income tax assessee and paying taxes regularly. Due to the sudden and untimely death of the deceased, the family has suffered shock, pain, mental agony etc., The claimant Nos.2 to 4 are the students and claimant No.4 is a minor. The untimely death of the sole earning member of the family has caused unbearable loss to the family. Accordingly they sought for compensation.

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In response to the notice issued by the Tribunal, the respondents 1, 2, 3 and 5 appeared

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before the Tribunal through their counsel. Respondent No.4 though duly served, remained absent. Hence, he was placed exparte.

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The appellant in MFA No.3608/17 insurer

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has set up the defence that the accident in question occurred due to the sole negligence of the deceased. However, the issuance of policy in respect of the tractor and its coverage was accepted. It was contended that the trailer was not insured with the said insurer. It was further contended that the driver of the tractor and the deceased were not holding valid Driving Licence to drive the vehicles and as such, the insurer is not liable to indemnify the owner of the offending vehicle. The tractor and trailer being used for transportation of sand, using the vehicle for commercial purpose being prohibited under law, the insurer is not liable to pay any compensation to the claimants for breach of terms and conditions of the policy.

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The insurer of the Maruthi Wagon R car

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vehicle appeared and filed statement of objections denying the petition averments. It was contended that the driver of the Maruthi Wagon R car and Tractor and Trailer were not holding valid Driving Licence to drive the vehicles on the date of accident. It was specifically contended that the accident in question took place due to the sole negligence of the driver of the tractor and trailer, as such the owner and the insurer of the tractor and trailer are jointly and severally liable to pay the compensation to the claimants.

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On the basis of the pleadings, the Tribunal

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framed the following issues:

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Whether the petitioners prove that on 10.3.2013 at 7.15 to 7.30 a.m. 1^st petitioner husband Bharat @ Bharatkumar sustained grievous injuries and later on succumbed to the injuries in motor vehicle accident near Mugulavalli Gate on Chikkamagaluru-

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Belur road due to rash and negligent driving of Tractor bearing Reg.No.KA-16T 6787 and bearing Reg.No.KA-18-TA3492 that has been hit to the Wagon-R car bearing Reg.No.KA-05-MM-3344 driven by the petitioner’s husband Bharat @ Bharatkumar?

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Whether the petitioner is entitled for compensation amount? If so, for what amount and from whom?

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What order or award?

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In order to the establish the case, petitioner

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No.1 was examined as PW-1 and got documents marked as per Exs.P1 to P18.

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On behalf of the respondents, the Asst. Manager, T.P.Claims Legal Cell of the appellant-insurer was examined as RW-1 and the Office Superintendent of RTO, Chikkamagaluru was examined as RW-2. The documents Exs.R1 to R4 were marked.

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On analyzing the material evidence, the Tribunal answered the issue No.1 in the affirmative, issue No.2 in partly affirmative and finally the petition has been allowed in part awarding total compensation of Rs.20,40,000/- with interest @ 6% p.a. from the date of petition till its realization.

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Being aggrieved, the insurer is challenging the liability as well as the quantum of compensation awarded by the Tribunal, whereas the claimants are seeking for enhancement of compensation.

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Learned counsel for the insurer submitted that PW-1, wife of deceased was admittedly not an eye witness and her evidence was only an hearsay and so also the complaint at Ex.P2. In the absence of direct evidence, the Tribunal ought to have given credence to Ex.P9, IMV report which evinces that the right side front tyre and right wheel of the tractor and trailer were damaged. The driver of the car had brushed the tractor

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and trailer and the rash and negligent act of the driver of the car was the cause for the accident. The Tribunal even otherwise grossly erred in fastening the liability on the appellant-insurer though it was pleaded and proved that the driver of the insured tractor had no valid and effective Driving Licence to drive the transport vehicle, more particularly, when the tractor was used for transporting the sand. The use of the insured tractor for commercial purpose could be breach of the policy conditions and against law. Hence no liability would have been saddled on the appellant-insurer.

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Learned counsel further argued that the compensation awarded under the different heads is exorbitant and the same cannot be construed as just compensation in the eye of law being unilateral not supported by cogent material evidence. The Tribunal erred in relying on the income tax returns filed by the wife of the deceased subsequent to the death of the deceased to determine the income of the deceased.

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14. Learned counsel for the claimants argued

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that the laden weight of the tractor and trailer was 4000 kgs as per Ex.R3. In terms of the ruling of the Hon'ble Apex Court in Mukund Dewangan V/s. Oriental Insurance Company Limited reported in [2017] 14 SCC 663, no endorsement was required to drive the transport vehicle, the offending vehicle in question being a light motor vehicle as per the definition clause of Section 2 (21) of the Act. It was further argued that the charge sheet was filed against the driver of the offending vehicle. No independent evidence was let in by the appellant insurer to establish the factum of negligence on the part of the driver of the Maruthi Wagon R car. Acquittal of the driver in the criminal proceedings would have no relevance for determining the negligence aspect in the present proceedings.

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Learned counsel appearing for the insurer of

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the Maruthi Wagon R car submitted that the Tribunal has analysed the material evidence in a right

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perspective and has rightly fixed the liability on the appellant-insurer. The same requires to be confirmed rejecting the appeal filed by the insurer.

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We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the original records.

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17. Arguments of the learned counsel for the

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appellant-insurer regarding the issue of negligence and liability requires to be rejected for the reason that admittedly the laden weight of the offending vehicle is 4000 kgs as per Ex.R3. Section 2(21) of the Act contemplates that “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or motor car or tractor or road roller the unladen weight of any of which, does not exceed 7500 kgs.

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The Hon'ble Apex Court in Mukund Dewangan supra, has categorically held that non-

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possessing of an endorsement on the driving licence to drive the transport vehicle by the driver holding the valid and effective driving licence to drive the light motor vehicle would not be the breach of the policy conditions and the same would not disentitle the claimants in claiming vehicular accident compensation. In the light of the said judgment coupled with Ex.R3, we have no hesitation to hold that no endorsement was required to drive the transport vehicle. Hence, the appellantinsurer cannot be exonerated from the liability to indemnify the owner. Acquittal of the driver of the tractor and trailer in criminal proceedings would certainly have no bearing to adjudicate the issue of negligence in the motor vehicle compensation cases. It is trite that in the criminal proceedings, the order of acquittal may be passed on benefit of doubt and such order would not be considered to be a relevant factor to absolve the insurer from its liability. Moreover, police records support the case of the claimants. Charge

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sheet has been filed against the driver of the offending vehicle. No independent evidence is adduced by the appellant-insurer to rebut the claim of the claimants.

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RW-1 has categorically admitted that tractor and trailer could be used to transport the sand for the purpose of construction of pump house in the land and for agricultural purposes. As per the police records, Smt.Gangamma had entrusted the tractor and trailer to Sri.Basavaraju to take the sand from her house to Karvikere, Beeradevanahalli temple situated at Haliyuru. The appellant-insurer neither in the written statement nor in the evidence has taken a defence that the tractor and trailer was used for commercial purpose. Merely it was carrying sand would not mean that the tractor was being used for commercial purpose and consequently, there was a breach of the condition of policy on the part of the insured. On this ground, appellant-insurer cannot be exonerated from the liability.

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We have perused the income tax returns and

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the letter of jurisdictional income tax officer dated 02.02.2016 which clearly demonstrates that the income tax return was filed by the deceased on 29.3.2012 relating to the assessment year 2011-12 declaring the annual income of Rs.1,48,530/-. Returns were filed on 17.1.2014 relating to the assessment year 2012-13 declaring the income as Rs.1,64,120/-. Thus, it is clear that the income tax returns for the assessment year 2011-12 was filed by the deceased much prior to the accident. It is evident that the deceased was the owner

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of Paridhi Sarees and Dress Materials situated at Bengaluru. Ex.P13 is the Registration Certificate issued under the provisions of the VAT Act. Ex.P15 is the business licence issued by C.M.C, Chikkamagaluru. The material evidence would disclose that the deceased in addition to textile business was engaged in jewellery business.

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Having regard to the business carried on by the deceased, the Tribunal has determined the monthly income at Rs.15,000/- for the purpose of reckoning the loss of dependency which cannot be faulted with. As per the post mortem report Ex.P8, the age of the deceased was 42 years. As per the driving licence at Ex.P10, the age of the deceased at the time of accident was 43 years. Considering the same, the Tribunal has applied the multiplier of 14 deducting 1/4^th of the income towards the personal and living expenses of the deceased to compute the loss of dependency, which in our considered opinion is just and reasonable. However, the Tribunal has failed to award compensation towards future prospects.

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Having regard to the age of the deceased and his self employment, 40% of the income requires to be added towards future prospects. Thus, the total annual income of the deceased would be Rs.2,52,000/-.

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Applying the multiplier of 14, deducting ¼ the of the

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income towards personal expenses of the deceased, loss of dependency would work out to Rs.26,46,000/(Rs.2,52,000 x 14 x ¾). In terms of the judgment of the

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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.1,90,000/- under the conventional heads.

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Sl.No.	Particulars	Amount [in Rs.]
1.	Loss ofdependency	26,46,000
2.	Loss of spousal Consortium	40,000
3.	Loss of parental consortium (Rs.40000 to eachchild)	1,20,000
4.	Funeralexpenses	15,000
5.	Loss ofestate	15,000
	Total	28,36,000

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Thus, in all the claimants shall be entitled to total compensation of Rs.28,36,000/-.

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Hence, the following:

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ORDER

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i) The appeal filed by the Insurance Company in MFA.No.3608/2017 is dismissed and the appeal filed by the claimants in MFA.No.4541/2017 is partly allowed.

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ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.28,36,000/- as against Rs.20,40,000/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 fastened on the appellant/insurer i.e., Bajaj Allianz General Insurance Co. Ltd., is confirmed.

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iv) The portion of the order of the Tribunal inasmuch as apportionment and disbursement remains intact.

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v) 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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