Partly allowed

Shobharani v. Dastagir Sab

Karnataka HC23 Aug 2021MFA/7272/2017

Case brief

AI extract

What is this about?

High Court modified a Motor Vehicles Act claim award against the insurer. Relying on Supreme Court precedents, it held the driver was validly licensed despite non-transport vehicle registration, imposing liability on the insurer. Compensation was enhanced based on assessed notional income and dependent count.

What did the court decide?

Compensation enhanced to Rs. 20,50,800 with interest at 6% payable by insurance company; appeal disposed of.

Shobharani Vs Dastagir Sab — Insurance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23RD DAY OF AUGUST, 2021

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PRESENT

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THE HON’BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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M.F.A. NO.7272 OF 2017 (MV-D)

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BETWEEN:

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SHOBHARANI,

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W/O LATE GANGADHARA,

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NOW AGED ABOUT 30 YEARS.

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BHAGYASHREE,

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D/O LATE GANGADHARA,

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NOW AGED ABOUT 8 YEARS.

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MAHADEVAPPA CHANNAPPA MALAGI W/O CHANNAPPA,

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NOW AGED ABOUT 67 YEARS.

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BASAVVA @ BASAVVA MAHADEVAPPA MALAGI W/O MAHADEVAPPA CHANNAPPA MALAGI NOW AGED ABOUT 62 YEARS, APPELLANT NO.2 IS MINOR REP. BY HER MOTHER AND NATURAL GUARDIAN APPELLANT NO.1 ALL ARE PERMANENT R/AT SHIDLEHALLI VILLAGE, KARADI POST, KIBBANAHALLI HOBLI, TIPTUR TALUK, TUMAKURU DISTRICT.

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NOW R/A C/O THIMMAIAH, S/O RANGAPPA MALLASANDRA VILLAGE & POST,

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KASABA HOBLI, TUMKUR TALUK & DISTRICT.

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... APPELLANTS

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(BY SRI PRAMOD R, ADVOCATE)

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AND:

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DASTAGIR SAB, MAJOR, S/O NASIR SAB, R/A NO.26, 3RD CROSS, GANDHINAGARA, TIPTUR TOWN, TUMAKURU DISTRICT.

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THE MANAGER, THE ORIENTAL INSURANCE CO. LTD., JAYADEVA HOSTEL BUILDING, B H ROAD, TIPTUR TOWN, TUMKUR DISTRICT. ... RESPONDENTS

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(BY SRI S.V.HEGDE MULKUND, ADVOCATE FOR R2, R1 SERVED AND UNREPRESENTED)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.01.2017 PASSED IN MVC NO.1342/2015 ON THE FILE OF THE I ADDITIONAL DISTRICT & SESSIONS JUDGE, TUMAKURU. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR ORDERS, THIS DAY, HEMANT CHANDANGOUDAR J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) is filed against the judgment dated 16.01.2017 in MVC No.1342/2015 passed by the I Addl. District and Sessions

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Judge, Tumakuru (hereinafter referred to as 'the Tribunal' for short).

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Facts giving rise to the filing of the appeal briefly

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stated are that on 18.09.2015, when Gangadhara was proceeding on his vehicle, Mahindra Maximo from K B Cross to Tiptur by carrying passengers and when he reached near Narasimhaiah's Garden land, Kibbanahalli Hobli, at that time, the driver of tractor and trailer drove the same in a rash and negligent manner, due to which, the front wheel of the said tractor got punctured and the driver lost control over the same and the said tractor and trailer fell on the middle of the road. Hence, the said Gangadhara being the driver of Mahindra Maximo lost his control and dashed to the said tractor and trailer, as a result of which, Gangadhara fell down on the road and sustained grievous injuries to his head and all over his body. Immediately, he was shifted to General Hospital, Tiptur, wherein he took first aid treatment and on the advice of the doctors, he was shifted to NIMHANS Hospital, Bangalore and took treatment as an inpatient upto 7.10.2015. After discharge from the said hospital, he was further admitted to Kumar Hospital, Tiptur and took

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treatment as an inpatient till 23.10.2015. In spite of the treatment, he succumbed to the injuries on 23.10.2015 as a result of head injury suffered by him in the accident.

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The claimants thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the deceased was aged about 32 years at the time of accident and was earning Rs.25,000/- to Rs.30,000/- per month by carrying passengers in his vehicle. It was further pleaded that the accident took place solely on account of rash and negligent driving of the tractor and trailer by its driver. The claimants claimed compensation to the tune of Rs.32,00,000/- along with interest.

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In response to the notice, the respondents appeared through their counsel and filed written statement.

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The respondent No.1 in his written statement denied all the allegations made in the claim petition. It was contended that the vehicle was insured with the 2nd respondent and the policy was in force at the time of accident. The driver of the vehicle was having valid driving license as on the date of accident. Hence, prayed for dismissal of the claim petition.

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The respondent No.2 - Insurance Company filed written statement denying all the allegations made in the petition. The Insurance Company denied the mode and manner of the accident. It was contended that the police have filed charge sheet against the driver of the offending vehicle. The said driver was holding driving license to drive the tractor and trailer (non-transport) and not holding valid and effective driving license to drive the tractor and trailer which was registered for commercial purposes. It was contended that the offending vehicle is a transport vehicle. It was further contended that the 1st respondent in violation of policy conditions allowed the driver to drive his vehicle. Therefore, prayed for dismissal of the petition.

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On the basis of the pleadings of the parties, the Tribunal framed the issues and thereafter recorded the evidence. The claimant No.1 examined herself as PW1 and exhibited documents namely Ex.P1 to Ex.P14. Sri S Manjunath, officer of the 2nd respondent was examined as RW1 and Exs.R1 to R2 were marked on behalf of the 2nd respondent.

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The Claims Tribunal, by the impugned judgment,

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inter alia, held that the accident took place on account of rash and negligent driving of the tractor and trailer by its driver. It was further held that as a result of the aforesaid accident, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.9,24,400/- along with interest at the rate of 8% per annum. However, the liability to pay the compensation was fastened on the owner of the offending vehicle on the ground that the driver was not holding effective valid driving license to drive. Being aggrieved, this appeal is filed seeking enhancement of the amount of compensation.

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Learned counsel for the claimants submitted that the Tribunal has grossly erred in assessing the income of the deceased as Rs.6,000/- per month instead of Rs.25,000/- per month. He further submitted that in view of the decision of Apex Court in the of the MUKUND DEWANGAN VS THE ORIENTAL INSURANCE COMPANY LIMITED AIR 2017 SC 3668, the liability to pay the compensation should be

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fastened on the insurance company. He further submitted that the compensation awarded under the conventional heads is on the lower side and the same requires to be enhanced.

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Learned counsel for the Insurance Company submitted that the compensation awarded by the Tribunal is just and proper and the claimants are not entitled for enhancement of compensation. He further submitted that the Tribunal has rightly fastened the liability to pay the compensation on the owner of the offending vehicle since the driver was not holding the license to drive the transport vehicle.

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We have considered the submissions made by learned counsel for the parties and have perused the record.

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The questions which arises for our consideration in this appeal is with regard to the liability fastened on the owner of the offending vehicle to pay the compensation and also with regard to the quantum of compensation.

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As on the date of the accident the offending

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tractor trailer was registered for commercial purposes i.e., transport and not for agricultural purposes. It is not in dispute that the driver of the offending transport vehicle was holding a valid driving license to drive non-transport vehicle which is evident from Ex.R.5 -copy of driving license. The Apex Court in the case of MUKUND DEWANGAN supra has held that there is no requirement to obtain separate endorsement to drive transport vehicle when a person is holding a valid license to drive non-transport vehicle. In view of the law laid down by the Apex Court in the case of MUKUND DEWANGAN supra it is held that the driver of the offending transport vehicle in question was holding a valid driving license to drive as on the date of the accident. Hence, the liability fastened on the owner of the offending vehicle to pay the compensation is set aside.

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Admittedly, the claimants have not produced any evidence with regard to the income of the deceased. It is also not in dispute that the deceased at the time of accident was aged about 32 years and was owner-cum-driver of

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Mahindra Maximo vehicle. In the absence of proof of income the notional income of the deceased is assessed as per the guidelines issued by the Karntaka Legal Services Authority for the accidental claims of the year 2015 which comes to Rs.9,000/-.

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In view of the law laid down by the Constitution Bench of the Supreme Court in ‘ NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS’

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AIR 2017 SC 5157, 40% of the amount has to be added on account of future prospects. Thus, the monthly income comes to Rs.12,600/-. Since, the number of dependents are four, therefore, 1/4th of the amount has to be deducted towards personal expenses and therefore, the monthly dependency comes to Rs.9,450/-. Taking into account the age of the deceased which was 32 years at the time of accident, the multiplier of ‘16’ has to be adopted. Therefore, the claimants are held entitled to Rs.18,14,400/- (Rs.9450 x 12 x 16.) on account of loss of dependency.

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In view of law laid down by the Supreme Court in

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‘MAGMA GENERAL INSURANCE CO. LTD. VS. NANU RAM

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& ORS.’ (2018) 18 SCC 130, which has been subsequently clarified by the Supreme Court in ‘UNITED INDIA INSURANCE CO. LTD. Vs. SATINDER KAUR AND ORS.’ IN CIVIL APPEAL NO.2705/2020 DECIDED ON 30.06.2020 each of the claimant’s are entitled to a sum of Rs.40,000/- on account of loss of consortium and loss of love and affection. Thus, the claimants are held entitled to Rs.1,60,000/-. In addition, claimants are held entitled to Rs.30,000/- on account of loss of estate and funeral expenses. The compensation amount of Rs.46,400/awarded towards medical expenses is just and proper and the same is maintained.

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Thus, in all, the claimants are held entitled to a total compensation of Rs.20,50,800/-. The enhanced compensation of Rs.11,26,400/- shall carry interest at the rate of 6% from the date of filing of the petition till the realization of the amount of compensation. The insurance company is fastened with the liability to pay the compensation amount awarded to the claimants. To the

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aforesaid extent, the judgment passed by the Claims Tribunal

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is modified.

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Accordingly, the appeal is disposed of.

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Sd/JUDGE

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Sd/-

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