Partly allowed

Shabeena Banti @ Shabeenabi v. M Manjunath

Karnataka HC16 Jun 2021MFA/1875/2014

Case brief

AI extract

What is this about?

The High Court allowed appeals in part against a Motor Accidents Claims Tribunal award. The Court held the insurer liable for compensation because the deceased was an Hamali, not an unauthorized passenger. While rejecting the claimant's request for higher income assessment, the Court enhanced the compensation from Rs. 4,74,000 to Rs. 6,55,000 based on a 13-year multiplier.

What did the court decide?

Judgment award modified to grant compensation of Rs. 6,55,000 with interest at 6% p.a.; insurer directed to deposit amount.

Shabeena Banti @ Shabeenabi Vs M Manjunath — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.1875/2014 (MV)

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C/W. M.F.A.NO.7347/2013 (MV)

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IN MFA NO.1875/2014 (MV)

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BETWEEN:

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1 . SHABEENA BANTI @ SHABEENABI W/O LATE MOHAMMED GHOUSEPEER, @ CHANDPEER,

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AGED ABOUT 55 YEARS,

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2 . NEHA BANU

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D/O LATE MOHAMMED GHOUSPEER @ CHANDPEER AGED ABOUT 12 YEARS

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3 . RUKHIYA BANU

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W/O LATE MOHAMMED GHOUSEPEER, @ CHANDPEER, AGED ABOUT 6 YEARS,

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APPELLANT NOS.2 AND 3 ARE MINORS REP. BY THROUGH THEIR NATURAL GUARDIAN MOTHER APPELLANT NO.1

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ALL ARE R/O SHIKARI MOHALL, CHANNAGIRI TOWN, DAVANGERE DISTRICT-577001

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… APPELLANTS (BY SRI A.HANUMANTHAPPA, ADVOCATE)

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AND:

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1 . M. MANJUNATH S/O SADASHIVAPPA, AGED ABOUT 32 YEARS, DRIVER OF APE GOODS AUTO BEARING REG.NO.KA-16/9010, R/O SURESH NAGAR MAIN ROAD, NEAR SHIVALI TALKIES, DAVANAGERE-577 001.

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2 . P.K.NAGABHUSHANA REDDY, S/O KESHAVA REDDY OWNER OF APE GOODS AUTO, BEARING REG.NO.KA-16/9010, R/O KALPANA COMPOUND, EGG CENTER, NHR ROAD, 2^ND CROSS, CHITRADURGA-577501.

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3 . THE MANAGER ORIENTAL INSURANCE CO., LTD., DIVISIONAL OFFICE NO.10, DWARKA, 2^ND FLOOR, 79, UTTAM ARGANDHI SALAI CHENNAI (TAMILNADU) REP. THROUGH ITS BRANCH MANAGER BRANCH OFFICE, ORIENTAL INSURANCE CO., LTD, THILUVALLY COMPLEX, PB ROAD, DAVANAGERE-577 001.

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... RESPONDENTS

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(BY SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R3; NOTICE TO R1 AND R2 IS DISPENSED WITH VIDE ORDER DATED 14.01.2015)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.06.2013 PASSED IN MVC.NO.34/2010(OLD NO.942/2008) ON THE FILE

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OF THE SENIOR CIVIL JUDGE AND MACT, CHANNAGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.7347/2013 (MV):

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BETWEEN:

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THE ORIENTAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE NO.10, 2^ND FLOOR, DWARKA, No.79, UTTAM ARAGANDHI SALAI CHENNAI (TAMILNADU)

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REPRESENTED THROUGH ITS BRANCH MANAGER BRANCH OFFICE, THE ORIENTAL INSURANCE COMPANY LIMITED, THILUVALLY COMPLEX, P.B.ROAD, DAVANAGERE.

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FURTHER REPRESENTED BY THE REGIONAL MANAGER THE ORIENTAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, 2^ND FLOOR, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI-580 020.

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… APPELLANT (BY SRI S.V.HEGDE MULKHAND, ADVOCATE)

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AND:

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1 . SMT. SHABEENA BANTI @ SHABEENABI AGED ABOUT 53 YEARS,

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2 . KUM.NEHA BANU AGED ABOUT 10 YEARS

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3 . KUM.RUKHIYA BANU AGED ABOUT 4 YEARS,

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1^ST RESPONDENT IS THE WIFE AND RESPONDENTS 2 AND 3 ARE THE CHILDREN, RESPECTIVELY OF LATE SHRI MOHAMMED GHOUSE PEER @ CHANDPEER;

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RESPONDENTS 2 AND 3 BEING MINORS ARE REPRESENTED BY THEIR MOTHER/NATURAL GUARDIAN THE 1^ST RESPONDENT.

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RESPONDENTS 1 TO 3 ARE RESIDING AT SHIKARI MOHAL, CHANNAGIRI TOWN, DAVANGERE DISTRICT-577001

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4 . SHRI M. MANJUNATH S/O SADASHIVAPPA, AGED ABOUT 30 YEARS, DRIVER OF APE GOODS AUTO BEARING REG.NO.KA-16/9010, NEAR SHIVALI TALKIES MAIN ROAD, SURESH NAGAR, DAVANAGERE-577 001.

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5 . SRI P.K.NAGABOOSHANA REDDY S/O KESHAVA REDDY, AGE: MAJOR, OWNER OF APE GOODS AUTO NO.KA-16/9010, RESIDING IN KALPANA COMPOUND, 2^ND CROSS, EGG CENTER, NHR ROAD, CHITRADURGA-577501

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... RESPONDENTS (BY SRI A.HANUMANTHAPPA, ADVOCATE FOR R1; SRI SREEHARSHA A.K., ADVOCATE FOR R4; R2 AND R3 ARE MINORS AND REPRESENTED BY R1; NOTICE TO R5 IS HELD SUFFICIENT VIDE ORDER DATED 16.10.2019)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.06.2013 PASSED IN MVC.NO.34/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, CHANNAGIRI, AWARDING A COMPENSATION OF Rs.4,74,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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THESE MFAs’ COMING ON FOR ADMISSION THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though the matters are listed for admission today, with the consent of the learned counsel for both the parties, they are taken up for final disposal.

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These two appeals are filed by the claimants and the Insurance Company respectively challenging the judgment and award passed in MVC No.34/2010 dated 22.06.2013 on the file of Senior Civil Judge and MACT at Channagiri (‘the Tribunal’ for short), questioning the quantum of compensation and the liability.

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case is that the deceased

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Mohammed Ghousepeer @ Chandpeer died in a motor vehicle accident due to the rash and negligent act of the driver of the goods auto bearing registration No.KA-16/9010, in which he was proceeding as an Hamali. Hence, the claim petition was filed by the wife and two children contending that the deceased was earning an amount of Rs.150/- per day and he was aged about 45 years. Due to the untimely death of the deceased, the family members have lost the bread earner of the family and hence, they are entitled for the compensation. In pursuance of the claim petition, notice was issued against the respondents. Respondent No.3 appeared and resisted the claim petition by filing the statement of objection, wherein the allegations made in the claim petition have been denied by the Insurance Company. It is further contended that the deceased was travelling in the goods auto as an unauthorized passenger and the driver of the auto was not holding the valid and effective driving licence to drive the said vehicle at the time of alleged accident. The accident caused auto was not having the valid permit and fitness

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certificate. Hence, the Insurance Company is not liable to pay the compensation.

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The claimants, in order to substantiate their claim, examined the first claimant as P.W.1 and another witness as PW.2 and got marked the documents at Exs.P1 to P9. On the other hand, the respondent-Insurance Company examined RW.1 and also got marked the document i.e., the copy of the policy at Ex.R1. The Tribunal, after considering both oral and documentary evidence, allowed the claim petition by granting compensation of Rs.4,74,000/- with interest at the rate of 6% per annum from the date of petition till realization and fastened the liability on the Insurance Company. Being aggrieved by the said award, both the claimants and the Insurance Company are before this Court by filing these two appeals.

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In the claimants’ appeal in MFA No.1875/2014, the learned counsel for the claimants would vehemently contend that the deceased was earning Rs.150/- per day, but the Tribunal assessed the income of the deceased at Rs.125/- per day, which is opposed to the evidence on record. The Tribunal

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has committed an error in granting a meagre compensation on other heads as well. Learned counsel also would contend that the Tribunal has grossly erred in awarding an interest on the compensation, at the rate of 6% per annum, which ought to have been 12%. Hence, the judgment and award of the Tribunal requires to be interfered with by this Court.

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Per contra, the Insurance Company in another appeal in MFA No.7347/2013 would vehemently contend that the Tribunal has failed to consider the materials available on record and committed an error in coming to the conclusion that the deceased was travelling as an Hamali being engaged by the owner of the auto. Neither the driver of the auto has been examined nor the owner of the auto. Though a specific defence was taken that the deceased was travelling as a passenger in the goods auto and not as an employee of its owner, the same has not been considered. The Tribunal also erred in relying upon the evidence of PW.2, who is none other than the father of the driver of the goods auto in question, who is an interested witness.

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Learned counsel also would vehemently contend that the gross-weight of the goods auto in question measures 975 kgs. but the Tribunal has wrongly applied the provisions of Rule 100 of the Karnataka Motor Vehicle Rules. The Tribunal failed to appreciate that even as per the proviso to Rule 100 of the Karnataka Motor Vehicles Rules, a person, either the owner of the vehicle or the hirer or a bona fide employee of its owner or the hirer of the vehicle, other than the driver of the said vehicle could have been carried in the said vehicle.

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Learned counsel also would vehemently contend that the Tribunal has rightly assessed the income of the deceased at Rs.3,750/- per month. Hence, there is no ground to enhance the compensation. On the other hand, the Insurance Company is also not liable to pay the compensation. Learned counsel also would vehemently contend that the compensation ought to have been calculated under the Workmen’s Compensation Act and not under the Motor Vehicles Act. Hence, it requires interference of this Court.

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Having heard the respective counsel and on perusal of the grounds urged in the respective appeals, the points that

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would arise for the consideration of this Court are :-

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Whether the Tribunal has committed an error in fastening the liability on the Insurance Company by coming to the conclusion that the deceased was an employee of the owner of the goods auto and he was working as an Hamali and not a passenger ?

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Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and hence it requires interference of this Court ?

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Whether the Tribunal has committed an error in awarding an exorbitant compensation as contended by the Insurance Company?

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Point No.1:-

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The main pleadings of the claimants before the Tribunal is that the deceased was working as an Hamali and he was travelling as an Hamali in the goods auto involved in the accident. The main contention of the Insurance Company is that the deceased was an unauthorized passenger and hence,

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the Insurance Company is not liable to pay the compensation. In order to prove the fact that he was working as an Hamali and travelling as an Hamali in the said auto, the claimant, who is the wife of the deceased has been examined before the Tribunal and also the doctor has been examined as PW.2. On the other hand, Insurance Company examined the official witness as R.W.1 to prove the fact that the deceased was a gratuitous passenger. Except the oral evidence of RW.1, nothing has been elicited from the cross-examination of PW.1 and PW.2 that he was proceeding as an unauthorized passenger as contended by the Insurance Company. Mere taking of defence is not enough to hold that the deceased was an unauthorized passenger and the same has to be proved by placing the cogent evidence before the Tribunal.

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The Tribunal, considering the material on record has come to the conclusion that the deceased was proceeding as an Hamali as contended by the claimants. In order to substantiate the contention of the Insurance Company that the deceased was a passenger, no document has been placed before the Court. However, the Insurance Company is not disputing the fact that a

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person other than the driver is permitted to travel in the said vehicle. This Court in Shiva @ Shivashankar v. Rajesh and Another reported in 2019 (1) KCCR 860 discussed Sections 173(1), 168 and 147 of the Motor Vehicles Act (‘the MV Act’ for short), wherein it is observed that, in the said vehicle, while carrying “Ganesha” idol in a goods vehicle, two workers accompanied the owner of goods in the vehicle and due to the negligence of the driver of the vehicle, the accident took place and one of them was seriously injured and the other died. The Tribunal awarded the compensation and fastened the liability on the owner of the vehicle. Hence, the appeals were filed by the claimants seeking enhancement and owner for fixing the liability on the insurer. This Court considering the provisions under Section 147 of the MV Act discussed the liability of the insurer under the package policy and held that the policy covers the driver and a person other than the driver who has been carried in the goods vehicle. When the deceased was proceeding as a Coolie along with the owner for transporting the “Ganesha” idol, as per Section 147 of the MV Act, the person who travelled along with the owner also covers. It is also held that the owner has

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not sustained any injury and not made any claim. The very intent of the legislation is to protect the interest of the owner of the goods and representative of the owner and the goods under the provisions of Section 147 of the MV Act. It is also observed that the wisdom and intent of the legislature is not kept in mind while considering the case and circumstances. Under the circumstances, this Court comes to the conclusion that the person, who was travelling in the goods auto as an Hamali is also covered under the package policy. Hence, the very contention of the Insurance Company that they are not liable to pay the compensation, cannot be accepted. I have already pointed out that the Insurance Company has not proved the fact that the deceased was proceeding as a passenger as contended. Hence, I answer point No.1 in the negative.

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Point Nos.2 and 3:-

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Insofar as the quantum of compensation is concerned, it is not in dispute that the Tribunal has taken the income of the deceased at Rs.3,750/- per month which is a coolie @ Rs.125/- per day. The claimants have contended that

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the deceased was earning an amount of Rs.150/- per day and for 30 days, his income would come to Rs.4,500/- per month. Learned counsel appearing for the claimants also would vehemently contend that the claimants are the wife and two children of the deceased. Though they claims that the deceased was aged about 45 years, on perusal of the documentary evidence, it is clear that in the inquest mahazar, the age of the deceased is mentioned as 50 years and so also in the postmortem report, the age of the deceased is mentioned as 50 years. The very contention of the Insurance Company that when the deceased was working as an Hamali, the compensation ought to have been awarded under the Workmen’s Compensation Act and not by applying the provisions under the MV Act.

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Learned counsel appearing for the

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claimants/appellants submits that the petition was filed under Section 166 of the MV Act. On perusal of the statement of objections filed by the Insurance Company, no such defence has been taken therein that the claimants ought to have approached

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the Workmen’s Compensation Commissioner. Except taking defence that the deceased travelled as a passenger and for the first time, the said ground has been urged in the appeal but there are no pleadings with regard to that aspect. When such being the case, the very contention of the Insurance Company, cannot be accepted. It is also important to note that the claimants are also claiming that the income of the deceased was Rs.150/- per month. The notional income for the year 2008 is Rs.4,500/- as claimed by the claimants. Hence, the claimants are not claiming any exorbitant compensation.

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Having considered the materials on record, this Court held that the deceased was aged about 50 years and hence, the relevant multiplier applicable would be 13. Considering the age of the deceased being between the age group of 41 to 50, 25% i.e., Rs.4,500x25%=Rs.1,125/- of the income has to be added, if so added i.e., (Rs.4,500+Rs.1,125=Rs.5,625/-), it would come to Rs.5,625/-. Since the deceased has left behind the three dependents, who are the wife and two children, 1/3^rd of his income i.e.,

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(Rs.5,625x1/3=Rs.1,875/-) has to be deducted towards personal expenses. After deducting 1/3^rd of the income i.e., (Rs.5,625Rs.1,875=Rs.3,750/-), it would come to Rs.3,750/-. The compensation under the head of ‘loss of dependency’ is calculated as under:-

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Rs.3,750x12x13=Rs.5,85,000/-.

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The claimants are also entitled for an amount of

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Rs.70,000/- under other conventional heads in view of Pranay Sethi’s case. Accordingly, an amount of Rs.70,000/- is awarded on the other conventional heads. Thus, in all the claimants are entitled for a sum of Rs.6,55,000/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.4,74,000/-.

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In view of the discussion made above, I pass the

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following:-

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ORDER

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(i) Both the appeals are allowed in part.

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(ii) The judgment and award passed by the Tribunal is modified granting the

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compensation of Rs.6,55,000/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.4,47,400/-.

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(iii) Respondent-Insurance Company is directed to deposit the amount within six weeks’ from today.

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(iv) The amount in deposit, if any, is ordered to be transmitted to the Tribunal forthwith.

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(v) Registry to transmit the Trial Court Records forthwith to the concerned Tribunal.

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Sd/JUDGE

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PYR

Shabeena Banti @ Shabeenabi v. M Manjunath

Case brief

What is this about?

What did the court decide?

Shabeena Banti @ Shabeenabi v. M Manjunath

Case brief

What is this about?

What did the court decide?

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