Partly allowed

Bajaj Allianz General Insurance Company Ltd. v. E.C. Asha

Karnataka HC6 Dec 2022MFA/4793/2016

Case brief

AI extract

What is this about?

The High Court held that a license for Transport or Passenger vehicles does not authorize driving a special Hydraulic Mobile Crane, rendering the policy void. However, applying the principle of pay and recovery, the insurer must pay compensation to the petitioners but can recover it from the vehicle owner. The appeal was partly allowed with an enhancement in compensation.

What did the court decide?

Compensation enhanced by Rs. 55,000/- with interest at 6%; Insurance Company held liable to pay and recover the amount from the owner of the offending vehicle.

Bajaj Allianz General Insurance Company Ltd. Vs E.C. Asha — Cheque Dishonour | Karnataka HC (2022)

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MFA No. 4793 of 2016 C/W MFA No. 4556 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF DECEMBER, 2022

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 4793 OF 2016 (MV)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 4556 OF 2016 (MV)

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In MFA. No.4793/2016:

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Digitally signed by D K BHASKAR Location: High Court of Karnataka

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Between:

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Bajaj Allianz General Insurance Company Ltd GE Plaza, Airport Road, Yerawada, Pune - 411006, Represented by its Assistant Vice President (Claims) Regional Office, Golden Heights, IV Floor, Rajajinagar, Entrance, Bangalore-560010.

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…Appellant

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(By Smt. H R Renuka., Advocate)

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And:

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E.C. Asha W/o Late Changalaraya Shetty, Aged about 34 Years, R/o No.15/1, 8th C Cross,

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MFA No. 4793 of 2016 C/W MFA No. 4556 of 2016

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Sanjeeveninagar, Mudalapalya, Nagarabhavi Main Road, Bengaluru-560072.

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E. S. Kanthamma W/o Late E Srinivasalu Shetty, Aged about 60 Years, R/o No.15/1, 8th C Cross, Sanjeeveninagar, Mudalapalya, Nagarabhavi Main Road, Bengaluru-560072.

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Sukanya .L W/o Devaraju, Aged about 42 years, No 17, I Cross, Byraveshwari Nagar, Sunkadakatte, Bengaluru-560091.

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…Respondents

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(By Sri. Sharanagouda S. Patil ., Advocate for R-1 & R-2; Vide order dated 17.11.2021, notice to R-3 held sufficient)

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This MFA is filed u/s 173(1) of the Motor Vehicle Act, praying this Hon’ble court may be pleased to allow this appeal and set aside the judgment and award dated 02.03.2016 in M.V.C.No.1655/2014 by the Motor Accidents Claims Tribunal, Court of Small Causes, Bengaluru consequently dismiss the claim petition.

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MFA No. 4793 of 2016 C/W MFA No. 4556 of 2016

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In MFA No.4556/2016:

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BETWEEN:

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E.C. Asha W/o Late Changalaraya Shetty, Aged about 34 Years, R/o No.15/1, 8th C Cross, Sanjeeveninagar, Mudalapalya, Nagarabhavi Main Road, Bengaluru-560072.

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E S Kanthamma W/o Late E Srinivasalu Shetty, Aged about 60 Years, R/o No.15/1, 8th C Cross, Sanjeeveninagar, Mudalapalya, Nagarabhavi Main Road, Bengaluru-560072.

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…Appellants

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(By Sri. Sharanagouda S. Patil., Advocate)

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AND:

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Bajaj Allianz General Insurance Company Ltd GE Plaza, Airport Road, Yerawada, Pune 411006, Represented by its Assistant Vice President (Claims) Regional Office, Golden Heights, IV Floor, Rajajinagar, Entrance, Bangalore-560010.

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Sukanya L W/o Devaraju, Aged about 42 years, No 17, I Cross,

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MFA No. 4793 of 2016 C/W MFA No. 4556 of 2016

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Byraveshwari Nagar, Sunkadakatte, Bengaluru-560091.

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…Respondents

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(By Smt. H R Renuka., Advocate for R-1; Vide order dated 22.01.2018, notice to R-2 is dispensed with)

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This MFA is filed u/s 173(1) of the Motor Vehicle Act – 1988, praying this Hon’ble court may be pleased to modify the judgment and award passed by the leaned XXII ASCJ & XX ACMM & Member of MACT, Bengaluru in MVC No.1655/2014 dated 02.03.2016 and enhance the compensation from Rs.27,55,000/- to Rs.60,00,000/- value restricted to 15,00,000/- by allowing this appeal.

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These MFAs’ coming on for hearing this day, C. M. Joshi .J ., delivered the following:

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J U D G M E N T

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These appeals arise out of the judgment and award dated 02.03.2016 passed in MVC No.1655/2014 by the XXII A.S.C.J and XX A.C.M.M and Member MACT, Bengaluru, whereby the Tribunal awarded compensation of Rs.27,55,000/- together with interest at 6% p.a., to the

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MFA No. 4793 of 2016 C/W MFA No. 4556 of 2016

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petitioners who are wife and mother of the deceased – Changalaraya Shetty who succumbed to the injuries in road traffic accident on 10.03.2014.

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The petitioners contend that on 10.03.2014, the deceased was traveling in the motor bike bearing Reg.No.KA02-HV-3824 on Pattegarpalya near Lingegowda building, at about 4.45 p.m, an Hydraulic Mobile Crane bearing Reg.No.KA-41-N- 6228 driven by its driver in a high speed and in rash and negligent manner hit the motorcycle driven by the deceased and also there was chain of accident involving other vehicles due to negligent driving of the driver of Hydraulic Mobile crane. As a result, the deceased died on the spot. Later, it appears that a case was registered against the driver of the crane in Crime No.37/2014 by Kamakshi Palya Traffic police and ultimately charge sheet has been laid for the offences punishable under Sections 279, 337 and 304(A) of the Indian Penal Code and Sections 134(A) & (B) and 187 of MV Act. The petitioners who are the wife and mother of the deceased filed claim petition for compensation

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before the Tribunal and claimed compensation of Rs.60,00,000/-. On issuance of notice by the Tribunal respondent – Insurance company appeared and filed objections to the petition contending that petition is not maintainable either on law or facts and denied all the allegations made in the claim petition.

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It was contended that policy was issued for commercial vehicle – Class D and liability of the Insurance company is subject to terms and conditions mentioned therein in the policy. It was also contended that at the time of accident driver – Nagaiah was authorized to drive LMV(TR) till 06.02.2017 and motor cycle with gear and LMV(NT) till 09.01.2032. Therefore, the driver of the insured crane was not holding valid driving license to drive the said vehicle. Apart from that it was also contended that the said Crane was not holding valid permit and Fitness certificate to drive on public road. Further it was alleged that the accident occurred due to negligence on part of the deceased while riding motor cycle on a busy road in negligent manner etc

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MFA No. 4793 of 2016 C/W MFA No. 4556 of 2016

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and ultimately the respondent – Insurance company denied its liability.

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Per contra, respondent No.2 contended that the petition is not maintainable and denied the age, avocation, income of the deceased and contended that the petitioners be put to strict proof of the contentions raised by them. On the basis of such pleadings, Tribunal framed necessary issues and by answering the issues in affirmative, proceeded to pass judgment and award granting the compensation of Rs.27,55,000/- by fastening the liability on the Insurance company.

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Being aggrieved by the said judgment, petitioners have approached this court in MFA.No.4556/2016 contending that the compensation awarded by the Tribunal is meager and proper income of the deceased has not been considered and Tribunal has erred in considering the income at Rs.15,000/- per month. It is contended by the appellants/petitioners that increase in the income in the

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successive years has not been considered by the Tribunal and income from the year 2010-2011 is alone considered. The increase in income till 2014 should have been considered by the Tribunal.

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On the other hand, respondent No.1 – Insurance company has approached this Court in appeal contending that it was not provided with sufficient opportunity to defend its case and MACT failed to appreciate the fact that steps was taken to examine ARTO, Bhalki and requisite fee was paid and warrant was issued through special bailiff. It was contended that ARTO did not appear before the Tribunal and therefore, opportunity was not granted to the insurance company so as to summon and secure ARTO to know about veracity of the driving license of the driver of the mobile crane. Further contention is that MACT recorded a finding that Ex.R1 – Driving License in respect of the driver of the insured vehicle authorized him to drive motor cycle with gear, LMV, Transport vehicle, PSV bus and he also possessed badge number. But the MACT failed to notice

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that this was not sufficient to prove that he was authorized to drive Hydraulic Motor Crane as it is a special vehicle with a special design and belongs to a separate class of vehicles under the Motor Vehicles Act. Therefore, it is contended that provisions of Section 3 of the Motor Vehicle Act were violated by the driver of the crane and therefore policy contents have been violated and as such liability on the insurance company should have been dismissed by the Tribunal and therefore the impugned judgment is erroneous. It is contended that the distinction between a ‘Light Motor Vehicle’ and a ‘transport vehicle’ is therefore evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct license is required to be obtained. The distinction between a ‘Transport Vehicle’ and a ‘Passenger Vehicle’ can also be noticed from Section 14 of the Act. Therefore, it is contended that the license to driving of the transport vehicle will be effective for 20 years and Tribunal fell in error in not placing reliance on these judgments. Apart form that the quantum determined by the

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Tribunal has also been questioned by the appellant – Insurance company.

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We have heard arguments of learned counsel appearing for petitioners Sri.Sharanagouda S Patil and learned counsel appearing for the Insurance company – Smt.H R Renuka.

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On careful perusal of the records available, it is seen that the driving license of the crane has been produced at Ex.R1 and it shows that driver – Nagaiah was authorized to drive motor cycle with gear from 10.01.2012, LMV from 10.01.2012, Transport vehicle from 07.02.2014 and PSV bus from 07.02.2014. The validity of the license to drive the Transport vehicle was up to 06.02.2017 and for non transport vehicle it was up to 09.01.2032. This shows that there is no mention of the license to the drive special vehicle. Further, the Tribunal in page No.27 has considered the question regarding liability. This observation made by the Tribunal that the policy was in force and it was for Hydraulic

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MFA No. 4793 of 2016 C/W MFA No. 4556 of 2016

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Mobile Crane and as the coverage of the policy cannot be disputed. It is also referred to the evidence of RW.1 who is official of the Insurance company. It has considered the fact that RW.1 had contended that ARTO, Bhalki was to be called to explain the driving license of the driver – Nagaiah. Ultimately, the Tribunal came to the conclusion that the driver had driving license to drive the type of vehicles mentioned in Ex.R2 and when the driving license shows that the passenger vehicle as well as transport vehicle were allowed to be driven by said Nagaiah it cannot be said that he was barred from driving the crane. It is opined that respondent No.1 had not placed any material before the Tribunal to show the driver of the said Hydraulic Mobile Crane had no license to drive the said special vehicle and as such fastened the liability on Insurance company. It is relevant to note that question whether driver having license to drive LMV or HMV is authorized to drive transport vehicle also is seized of the reference to the larger bench in the case

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of G Puttaswamy and Others Vs. Mohammed Shanawaz

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MFA No. 4793 of 2016 C/W MFA No. 4556 of 2016

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Pasha and Others in SLP (C) Nos.304200-30421/2019

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wherein it is observed that basic issue involved in this matter is covered by the referral order in the case of Bajaj

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Alliance General Insurance Co.Ltd Vs. Rambha Devi and

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Others and the Apex Court had gone into question in the case of Mukund Dewangan as a result of referral order dated 08.03.2022 in Bajaj Alliance General Insurance Co.Ltd Vs. Rambha Devi and Others and connected matters has to be decided by the larger bench and correctness of the decision of the case in Mukund Dewangan has to be decided by the larger bench.

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Further on carefully examining the judgment rendered by the Tribunal it is evident that skill to drive motor cycle is entirely different than driving LMV or other passenger vehicles. The skill to drive the crane is special skill and therefore, provisions of MV Act provided for obtaining license to drive any such other special vehicle. This aspect has been over looked by the Tribunal and therefore, it cannot be said that the person who is

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MFA No. 4793 of 2016 C/W MFA No. 4556 of 2016

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authorized to drive passenger vehicle or transport vehicle was also authorized and permitted to drive special Hydraulic Mobile Crane. We are conscious that Hydraulic Mobile Crane is driven with the help of Hydraulic equipment but other vehicle are axle driven. Therefore, we are unable to accept the views expressed by the Tribunal that the vehicle driven by the said driver – Nagaiah comes within the driving license granted to him. It is also obvious that charge sheet also indicted the offences punishable under Sections 279, 337 and 304(A) of the Indian Penal Code and Sections 134(A) & (B) and 187 Of MV Act which is obviously for non possession of valid driving license for specialized vehicles.

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Learned counsel appearing for Insurance company has submitted that in view of the decision in the case of

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Pappu and Others Vs. Vinod Kumar Lamba and Another (AIR 2018 SC 592) if there is dispute in respect of driving license held by the driver the principle of pay and recovery is to be adopted. The decision in the case of Pappu and Others Vs. Vinod Kumar Lamba and Another (AIR 2018

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SC 592) shows that “the Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle - that the vehicle was not only duly insured but also that it was driven by an authorized person having a valid driving license. Without disclosing the name of the driver in the written Statement or producing any evidence to substantiate the fact that the copy of the driving license produced in support was of a person who, in fact, was authorized to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle ”. In view of the said decision, the petitioners herein are entitled to the compensation by the insurance company. But Insurance company is also entitled to recover the same from the owner of the vehicle which was involved in the accident.

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Coming to the question of quantum, learned counsel appearing for parties submits that the Tribunal has erred in assessing the income of the deceased. He contends that Income Tax Returns is for the assessment year 2010-2011 shows the gross income of the deceased is Rs.1,80,143/- per annum and escalation of the income in the year 2014-2015 has not been considered by the Tribunal. It is relevant to note that petitioners have produced income tax returns from the year 2003-2004 to 2010-2011 and not produced income tax returns for the assessment year 2013-2014 and 20142015. It is evident that the deceased was running a grocery shop and there was no fixed income and therefore income available on record has been considered by the Tribunal and sum of Rs.15,000/- per month has been considered. In the absence of any documentary evidence which would have been the best evidence to show the income of the deceased we are unable to accept the contention of the learned counsel for the petitioners that projection of income has got be done in respect of the year 2013-2014 is concerned. It is

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MFA No. 4793 of 2016 C/W MFA No. 4556 of 2016

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a fact that the Tribunal has already considered this aspect by adding 50% of the income i.e. sum of Rs.15,000/- per month and therefore future prospects have been taken into consideration. Hence, we are unable to accept the contention raised by the learned counsel appearing for the petitioners that the income of the deceased should have been considered at higher rate. Coming to the other heads of the compensation i.e. loss of consortium, in view of the decision in the case of Magma General Insurance Limited Vs Nanu Ram @ Chuhru Ram and others each of the petitioners are entitled for consortium and loss of love and affection at the rate of Rs.40,000/- each. Therefore, increased sum of Rs.20,000/under the heads of consortium and love and affection and same are to be replaced to sum of Rs.40,000/- each. So far as transportation expenses, funeral expenses and obsequies are concerned by applying principles in the case of National

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Insurance Company Vs. Pranay Sethi and others sum of

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MFA No. 4793 of 2016 C/W MFA No. 4556 of 2016

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Rs.15,000/- is to be granted under these heads. Hence,

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compensation is reworked out as below :

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Loss of dependency	Rs. 27,00,000/-
Loss of consortium	Rs. 40,000/-
Loss of love and affection	Rs. 40,000/-
Transportation expenses	Rs. 15,000/-
Funeral expenses	Rs. 15,000/-
Total entitlement	Rs. 28,10,000/-
Less: awarded by Tribunal	Rs. 27,55,000/-
Enhancement would be	Rs. 55,000/-

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Under these circumstances and in view of the aforesaid

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reasons and findings, we pass the following:

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ORDER

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(i) The appeals in MFA.No.4793/2016 and

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MFA.No.4556/2016 are allowed in part.

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(ii) The petitioners / appellants are entitled for

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additional compensation of Rs.55,000/- along with interest at 6% from the date of petition till its realization.

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(iv) Enhanced amount shall be deposited by the Insurance Company within a period of three months from the date of receipt of the copy of this order before the Tribunal.

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(v) Insurance Company is held liable to recover compensation amount from the owner of the offending vehicle i.e. Hydraulic Mobile Crane bearing No. Reg.No.KA-

41-N- 6228.

Sd/JUDGE

Sd/JUDGE

Bajaj Allianz General Insurance Company Ltd. v. E.C. Asha

Case brief

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Bajaj Allianz General Insurance Company Ltd. v. E.C. Asha

Case brief

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