Partly allowed

Sri. Manjunath a v. Smt. Reshmabai

Karnataka HC4 Aug 2023MFA/2763/2019

Case brief

AI extract

What is this about?

In a motor accident case, the High Court modified the Trial Court judgment. It lifted liability from the owner and driver of a violated auto rickshaw policy, replacing it with the insurer's liability. Additionally, the compensation was enhanced by ₹60,700/- based on revised notional income calculations and judicial precedents.

What did the court decide?

Personal liability of driver and vehicle owner in discharging compensation claim was dismissed; Insurance company directed to pay compensation with enhancement of ₹60,700/-.

Sri. Manjunath a Vs Smt. Reshmabai — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:27460 MFA No. 2763 of 2019 C/W MFA No. 3968 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI

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MISCELLANEOUS FIRST APPEAL NO. 2763 OF 2019 (MV-D)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 3968 OF 2019 (MV-D)

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IN M.F.A NO. 2763 OF 2019

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BETWEEN:

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1 . SRI. MANJUNATH A, S/O. SRI.ANJINAPPA, AGED ABOUT 25 YEARS, DRIVER,

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R/O. HOSA KUNDWADA VILLAGE, DAVANGERE TALUK, DAVANGERE-577 006.

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2 . SRI.MANJUNATH T, S/O. SRI.TIPPESWAMY, AGED ABOUT 43 YEARS,

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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R/O NO.670/12, 11TH CROSS, I MAIN ROAD, BHAGAT SINGH NAGAR, DAVANGERE-577 006.

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...APPELLANTS

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(BY SRI M V HIREMATH, ADVOCATE)

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AND:

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1 . SMT. RESHMABAI, W/O. SRI.BADI NAIK, AGED ABOUT 33 YEARS, COLLIE.

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2 . KUM.NANDINI.A.B, D/O. SRI.BADINAIK,

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NC: 2023:KHC:27460 MFA No. 2763 of 2019 C/W MFA No. 3968 of 2019

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AGED ABOUT 14 YEARS, STUDENT.

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SINCE MINOR, REP BY RESPONDENT NO.1, THE NATURAL GUARDIAN

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BOTH ARE RESIDENTS OF DOOR NO.104, ANNAPURNESHWARI NILAYA, NEAR LAST BUS STOP, VIDYANAGAR, DAVANAGERE-577 006.

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NOW R/AT: NO.3594/3, HONGIRANA NILAYA, 1ST MAIN ROAD, 1ST CROSS, S S BADAVANE, DAVANAGERE-577 006.

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3 . THE MANAGER,

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SRI RAM GENERAL INSURANCE COMPANY LIMITED, BELLI ANKALA MAIN ROAD, J P NAGAR, BENGALURU-566 078.

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…RESPONDENTS (BY SMT. SARITHA KULKARNI, ADVOCATE FOR R-1, R-2 MINOR REP. BY R-1, SRI B.C SHIVANNEGOWDA, ADVOCATE FOR R-3)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.01.2019 PASSED IN MVC NO.61/2018 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE & VII MACT, DAVANAGERE, AWARDING COMPENSATION OF RS.5,41,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN M.F.A NO. 3968 OF 2019

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BETWEEN:

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1 . SMT.RESHMABAI, W/O. BADI NAIK, AGD ABOUT 33 YEARS, OCC:COOLIE.

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2 . NANDINI.A.B, D/O. BADINAIK, AGED ABOUT 14 YEARS, STUDENT.

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NC: 2023:KHC:27460 MFA No. 2763 of 2019 C/W MFA No. 3968 of 2019

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BOTH R/O: DOOR NO.104, ANNAPURNESHWARI NILAYA, NEAR LAST BUS STOP, VIDYANAGAR, DAVANAGERE. SINCE MINOR, REP BY NATURAL GUARDIAN ANOTHER WHO IS APPELLANT NO.1. NOW R/O AT :DOOR NO.3594/3, HONGIRANA NILAYA, 1ST MAIN, 1ST CROSS, SS BADAVANI, DAVANAGERE.

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...APPELLANT

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(BY SMT. SARITHA KULKARNI, ADVOCATE)

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AND:

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1 . MANJUNATH A, S/O ANJINAPPA, AGED ABOUT 24 YEARS, R/O HOISA KUNDAVADA VILLAGE, DISTRICT AND TALUK, DAVANAGERE 577 001.

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2 . MANJUNATH T, S/O. THIPPESWAMI B, AGED ABOUT 42 YEARS, OCC:MEDICAL SHOP, R/O DOOR NO.670/12, 11TH CROSS, 1ST MAIN, BAGATHSINGH NAGAR, HOISA KUNDAVADA VILLAGE, DAVANAGERE 577 001.

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3 . THE MANAGER,

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SAI RAM GENERAL INSURANCE CO.LTD., BALLI ANKALA MAIN ROAD, J.P.NAGAR, BENGALURU 560 078.

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…RESPONDENTS (By SRI B.C. SHIVANNE GOWDA, ADVOCATE FOR R-3, SRI M.V HIREMATH, ADVOCATE FOR R-2, NOTICE TO R-1 IS DISPENSED WITH V/O DATED 27.05.2022)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.01.2019 PASSED IN MVC NO.61/2018 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE & VII MACT, DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Being aggrieved by the judgment and award passed by the III Additional Senior Civil Judge and VII Additional MACT at Davanagere in MVC No.61/2018 dated 01.01.2019, the owner and driver of the auto rickshaw have filed MFA No.2763/2019 questioning the liability fastened on them and the claimants have filed MFA No.3968/2019 seeking enhancement of the compensation.

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2. The brief facts are as below:

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The petitioner No.1 and 2 are mother and sister of Niranjan Naika. Niranjan Naika was hale and healthy boy studying in 6^th standard at Government School, Shamanur. Niranjan Naika was not feeling well, the petitioner No.1 is being mother of Niranjan Naika, she was carrying him by auto rickshaw bearing No.KA-17-B-7416 and moving towards hospital on 02.10.2017. At 11.00 a.m., the driver/respondent

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No.1 drove said auto rickshaw in rash and negligent manner and near last bus stop at Vidyanagar, Davanagere, he suddenly applied brake. Niranjan Naika fell down from the auto rickshaw and sustained grievous injuries over head and other parts of the body. Immediately, injured Niranjan Naika admitted to Bapuji Hospital and thereafter, shifted to SSIMS Hospital, Davanagere. As per the advise of the Doctors, the petitioner No.1 has shifted the Niranjan Naika from SSIMS Hospital and admitted to Kasturba Hospital, Manipal. Despite treatment, Niranjan Naika died due to head injuries on 03/04-10-2017 at 00.15 a.m.. The petitioners have performed last rites of deceased Niranjan Naika by spending amount of Rs.2,50,000/-.

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Due to untimely death of Niranjan Naika, the petitioner No.1 has suffered mentally and she has lost love and affection of Niranjan Naika. The accident was occurred due to rash and negligent driving of respondent No.1. Driver of auto rickshaw bearing No.KA-17-B-7416 and respondent No.2/RC owner and respondent No.3 has issued policy to auto rickshaw and it was in force from 28.01.2017 to 27.01.2018. The traffic Police, Davanagere have registered a criminal case against respondent No.1 in Crime No.156/2017 for offence punishable

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under Sections 279, 304-A of IPC and under Section 187 of IPC. The accident in question occurred due to rash and negligent act of respondent No.1. Hence, the respondents Nos.1 to 3 are jointly and severally liable to pay compensation.

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On receipt of summons the respondent No.1 to 3 appeared through their counsel and filed objection to petition. The respondents denied that the deceased-Niranjan Naika sustained grievous injuries in road traffic accident and he died due to injuries sustained in the alleged accident. They contended that the accident was not due to rash and negligent act of respondent No.1. They contended that the mother of the deceased has not taken proper care towards her son and she had no control over him; there is no nexus between cause of death of Niranjan Naika and use of auto belonging to respondent No.2. They also contended that the driver was having a valid driving licence and the vehicle was covered under the insurance policy.

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The respondent No.3 has taken specific contention that there was two days delay in lodging complaint. The petitioner and respondents Nos.1 and 2 colluding with Police

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have created false story of accident to get wrongful gain from respondent No.3-Insurance Company. The respondent No.3 Insurance Company stated that its liability is subject to fulfillment of terms and conditions covered under policy issued to auto rickshaw belonging to respondent No.2.

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It also contended that according to RC and policy, auto rickshaw is a transport vehicle. According to licence issued to respondent No.1, he is permitted to drive the three wheeler vehicle non transport vehicle only. Hence, the respondent No.1 is not having valid driving licence to drive auto rickshaw involved in the accident. Further, at the time of accident, auto rickshaw had no valid permit and fitness certificate to ply on place of accident. Hence, respondent No.3 is not liable to indemnify the owner of auto rickshaw and therefore, the respondent No.3 is not liable to pay compensation.

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On the bases of the above pleadings, the Tribunal framed appropriate issues and the petitioner was examined as PW.1 and Exs.P1 to 17 were marked in evidence. The respondent-Insurance Company examined the official of the RTO as RW.1 and its own official as RW.2. The respondent No.2

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was examined as RW.3 and Exs.R1 to 7 were marked in evidence.

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After hearing the arguments, the Tribunal has

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awarded the compensation of Rs.5,40,593/- under following heads:

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PARTICULARS	AMOUNT (IN RS.)
Loss of dependency	3,84,000/-
Towards filial consortium	40,000/-
Conveyance	50,000/-
Medical expenses and nourishment	66,593/-
TOTAL	5,40,593/-
ROUNDED OFF TO	5,41,000/-

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Being aggrieved by the said judgment and award, the petitioners have filed MFA No.3968/2019 seeking enhancement of the compensation and the respondent Nos.1 and 2 have filed MFA.No.2763/2019 assailing the fastening of the liability to pay the compensation on them.

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In both these appeals, the rival parties have appeared through their counsel and the Insurance Company has appeared through its counsel on issuance of notice by this Court. The Tribunal records have been secured and both the appeals are heard together.

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The appellants in MFA.No.2763/2019 have filed an application under Order XLI Rule 27 of CPC seeking to produce the ‘B’ register extract of auto rickshaw bearing registration No.KA-17-B-7416 showing the validity of the permit and the fitness certificate. The affidavit filed in support of the application contends that though he had procured the ‘B’ register extract as per Ex.R7, it did not disclose the validity and fitness of the vehicle and basing its finding on Ex.R7, the Tribunal has fastened the liability on appellants/applicants. It is submitted that the appellants were not in possession of the said document at the time of the trial and these documents are essential in order to show that the vehicle had valid permit and also that it was fit to ply on the road.

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This application is not opposed by any of the respondents by filing any objection. However, an application under Order XLI Rule 27 of CPC has to be decided only if such additional evidence is necessary for a just and proper decision in the matter. The provisions cannot be invoked just for asking. The affidavit filed in support of the application shows that the applicant No.2 was not in possession of the same as on the

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date of his examination before the Tribunal. It is evident that the Tribunal basing its finding on Ex.R2 has fastened the liability on the applicants. In that view of the matter, the application is allowed and the RC extract of the vehicle and the copy of the permit are taken on record.

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Learned counsel appearing for the appellants i.e., driver and owner of the vehicle in MFA.No.2763/2019 contend that the auto rickshaw owned by the respondent No.2 was covered under the insurance policy issued by the respondent No.3 and it was a package policy. He submits that the auto rickshaw was having valid permit as on date of the accident and it was valid from 04.04.2013 to 03.04.2018. The permit holder was the previous owner of the vehicle i.e., Syed Peer. The area of the permit was Davanagere City Corporation Limit in the radius of 7.5 kilometers. It is also relevant to note that Ex.R7 which is available in the records show that the permit was valid up to 03.04.2018.

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The perusal of the impugned judgment show that in paragraph No.19, the Tribunal holds that the vehicle was not having valid permit in the year 2017. This observation of the

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Tribunal is contrary to Ex.R7, which show that the permit was valid up to 03.04.2018. So also, the additional evidence produced by the respondent Nos.1 and 2/appellants show that the permit was valid up to 03.04.2018 but it was in the name of Syed Peer and not the respondent No.2. Therefore, to that extent, the impugned judgment is suffering from perversity.

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The evidence of RW.1-the official of the RTO discloses that the Ex.R3-endorsement was issued by his office and the information sought was to furnish the permit standing in the name of the respondent No.2 pertaining to the vehicle bearing No.KA-17-B-7416. He had replied it that there is no such permit.

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Learned counsel for the appellants/respondent Nos.1 and 2 contend that the permit was obtained by the previous owner-Syed Peer and though the ownership of the vehicle was transferred to respondent No.2, the permit was not transferred. He submits that the decision in the case of K.M. VISWANATHA PILLAI VS K.M. SHANMUGAM PILLAI¹ lays

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down that person in whose favour permit has been granted

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1 AIR 1969 SC 493

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NC: 2023:KHC:27460 MFA No. 2763 of 2019 C/W MFA No. 3968 of 2019

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need not necessarily be the owner of the vehicle covered by it and the Motor Vehicles Act does not bar the benami transactions. In other words, to ascertain whether there was violation of permit conditions as contemplated under the policy of insurance, it is necessary to see that the vehicle had valid permit to ply on the road as a public carriage vehicle. The permit, may be attached to any other vehicle owned by the holder of the permit. In the case on hand, there is nothing on record to show that the permit held by Syed Peer attached to the auto rickshaw covered by policy issued by respondent No.3 was withdrawn and attached to any other vehicle. Therefore, the contention of the respondent No.3/Insurance Company that the vehicle did not have a permit as on date of the accident cannot be accepted.

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Though a feeble attempt is made by the learned counsel for the respondent No.3-Insurance Company by arguing that the auto rickshaw was driven beyond the area permitted, there is no evidence to show that the spot of the accident was outside the radius of 7.5 kilometers from Davanagere town limits.

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The second contention raised by the respondent No.3/Insurance Company is regarding the driving licence held by the respondent No.1. Obviously, the evidence of RW.1, the official of the RTO show that the respondent No.1 was having licence to drive 3 wheeler non-transport vehicle. Therefore, the auto rickshaw being a transport vehicle, the respondent No.1 was not having a valid driving licence. It is necessary to note that the question in respect of the driving licence is covered by the judgment in the case of MUKUND DEVANGAN V/S ORIENTAL INSURANCE COMPANY LIMITED² . It was held by the Hon'ble Apex Court that any vehicle which is a light motor vehicle can validly be driven by a person having a licence to drive an LMV and there is no necessity of obtaining a separate licence as a transport vehicle. Applying the said decision, it is evident that the respondent No.3 is liable to pay the compensation to the petitioner. The evidence of RW.1 that respondent No.1 was not having a valid driving licence cannot be accepted as it is contrary to the law laid down by the Hon'ble Apex Court in the case of MUKUND DEVANGAN (Supra). Hence, the finding of the Tribunal that the liability has

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2 (2017) 14 SCC 663

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to be fastened upon the respondent Nos.1 and 2 is not sustainable under law. The argument of the learned counsel for respondent No.3/Insurance Company that the permit will not go along with the vehicle even if the vehicle is transferred cannot be accepted in view of the decision noted supra.

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Learned counsel for the petitioners contend that the Tribunal has not considered the notional income commensurate with the inflation, devaluation of the rupee and cost of living. It is submitted that the decision in the case of KURVAN ANSARI ALIAS KURVAN ALI AND ANOTHER VS. SHYAM KISHORE MURMU AND ANOTHER³ lays down that in view of the ratio laid down in the cases of PUTTAMMA AND OTHERS VS. K.L.NARAYANA REDDY AND ANOTHER⁴ , R.K.MALIK AND ANOTHER VS. KIRAN PAL AND OTHERS⁵ and KISHAN GOPAL AND ANOTHER VS. LALA AND OTHERS⁶ , there should have been escalation of the notional income. Ultimately, by accepting the ratio in the case of KISHAN GOPAL (Supra), the notional income was considered at Rs.25,000/- to consider the 'loss of dependency'. The analogy used was that the

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3 (2022) 1 SCC 317

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4 (2013) 15 SCC 45

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5 (2009) 14 SCC 1

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6 (2014) 1 SCC 244

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structured formula as applicable to a petition under Section 163A of Motor Vehicles Act, 1988 can be applied in respect of the death of a minor also. However, the legislature had not considered the revision of the annual notional income from time to time. Therefore, it was held that the notional annual income has to be held at Rs.25,000/-. When we apply the above ratio to the case on hand, it is evident that the accident had occurred on 02.10.2017. Therefore, it would be just and proper to hold that the annual notional income was Rs.30,000/-.

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The Tribunal has considered the annual notional income of Rs.24,000/- and has applied the multiplier of 16 by considering the age of the younger parents. Obviously, the decision in the case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS⁷ has disapproved the adoption of the age of the younger parent for selecting the multiplier. Therefore, the compensation under the head of 'loss of dependency' is calculated as Rs.30,000/- X 15 =Rs.4,50,000/-.

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7 AIR 2017 SC 5157

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In addition to the 'loss of dependency', the

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petitioners are also entitled for the 'loss of filial love and affection', 'funeral expenses' and 'loss of estate'. Again, by applying the guidelines issued in the case of PRANAY SETHI (Supra), two escalations of 10% for every three years, the compensation under these heads is calculated at Rs.48,400/-, Rs.18,150/- and Rs.18,150/-, respectively.

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The Tribunal has awarded a sum of Rs.66,593/-

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towards 'medical expenses', for which, no interference is needed.

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Thus, the petitioners are entitled for the modified compensation under different heads as below:

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PARTICULARS	AMOUNT (IN RS.)
Loss of dependency	4,50,000/-
Loss of filial love and affection	48,400/-
Funeral expenses	18,150/-
Loss of estate	18,150/-
Medical expenses and nourishment	66,593/-
TOTAL	6,01,293/-
Less awarded by Tribunal	5,40,593/-
Enhancement	60,700/-

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NC: 2023:KHC:27460 MFA No. 2763 of 2019 C/W MFA No. 3968 of 2019

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Thus, the petitioner is entitled for enhanced compensation of Rs.60,700/- with interest and therefore, the appeal deserves to be allowed in part.

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In view of the above conclusions, the liability has to be fastened upon the respondent No.3/Insurance Company and as such, the appeal filed by respondent Nos.1 and 2 deserves to be allowed. The appeal filed by the petitioners also deserves to be allowed in part. Hence, the following:

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ORDER

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(i) The appeal filed by the respondent Nos.1 and 2 in MFA.No.2763/2019 is allowed and the appeal filed by the petitioners in MFA.No.3968/2019 is allowed in part.

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(ii) The impugned judgment and award passed by the Tribunal is modified by setting aside the liability fastened on driver and owner of the offending vehicle holding that the Insurance Company is liable to pay compensation and by awarding a sum of Rs.60,700/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its deposit.

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(iii) The respondent No.3/Insurance company is directed to deposit the entire compensation together with interest amount within a period of six weeks from the date of this order.

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(iv) Rest of the order of the Tribunal stands unaltered.

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Sd/JUDGE

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NR/List No.: 1 Sl No.: 2

Sri. Manjunath a v. Smt. Reshmabai

Case brief

What is this about?

What did the court decide?

Sri. Manjunath a v. Smt. Reshmabai

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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