Partly allowed

Smt. Saraswathamma v. Tata Aig General Insurance Co. Ltd.

Karnataka HC21 Jun 2023MFA/9289/2017

Case brief

AI extract

What is this about?

In two related appeals, the High Court upheld the liability of the lorry owner for a motor accident compensation claim because the driver lacked a valid license for a medium goods vehicle. The Court enhanced the compensation awarded by the Tribunal by re-calculating loss of dependency and other heads to a higher amount.

What did the court decide?

Appellant challenging liability dismissed; Appellant seeking compensation enhancement obtained; compensation enhanced to Rs. 32,01,515/- with interest.

Smt. Saraswathamma Vs Tata Aig General Insurance Co. Ltd. — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:21377 MFA No.9289 of 2017 C/W MFA No.5347 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.9289 OF 2017 (MV-D)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 5347 OF 2013

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MFA NO.9289 OF 2017

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BETWEEN:

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SMT. SARASWATHAMMA W/O VEMANNA NO.105/26, DVG ROAD BASAVANAGUDI BANGALORE-560004

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Digitally signed by VIJAYALAKSHMI B N Location: HIGH (BY SRI. A.K,. BHAT, ADVOCATE COURT OF FOR SRI RAJU S.,ADVOCATE) KARNATAKA

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…APPELLANT

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AND:

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TATA AIG GENERAL INSURANCE CO. LTD., 5TH FLOOR, WEST ENTRANCE KANIJA BHAVAN RACE COURSE ROAD BENGALURU-560020 REPRESENTED BY ITS BRANCH MANAGER

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SMT AMBUJA W/O LATE NARAYANASWAMY R/A DWARNAHALLI SRINIVASAPURA TALUK KOLAR DISTRICT

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SMT CHOWDAMMA W/O ESHWAR REDDY R/A DWARNAHALLI SRINIVASAPURA TALUK KOLAR DISTRICT

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SRI ESHWAR REDDY S/O NARAYANAPPA R/A DWARNAHALLI SRINIVASAPURA TALUK KOLAR DISTRICT

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SRI VAIBAV S/O LATE NARAYANASWAMY MINOR REPRESENTED BY HER NATURAL GUARDIAN MOTHER RESPONDENT NO.2 R/A DWARNAHALLI SRINIVASAPURA TALUK KOLAR DISTRICT

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…RESPONDENTS

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(BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R1; SRI K.SHANTHARAJ, ADVOCATE FOR R2 TO R5)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.12.2012 PASSED IN MVC NO.7527/2010 ON THE FILE OF THE MEMBER, MACT, 4TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU (SCCH NO.6), AWARDING COMPENSATION OF RS.11,52,815/WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TO TILL ITS COMPLETE PAYMENT.

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NC: 2023:KHC:21377 MFA No.9289 of 2017 C/W MFA No.5347 of 2013

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MFA NO. 5347 OF 2013 BETWEEN:

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SMT.AMBUJA W/O LATE NARAYANA SWAMY AGED ABOUT 31 YEARS R/AT NO 10, DWARNAHALLI SRINIVASAPUR TALUK KOLAR DISTRICT

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CHOWDAMMA W/O ESHWAR REDDY AGED ABOUT 63 YEARS R/AT NO 10, DWARNAHALLI SRINIVASAPUR TLAUK KOLAR DISTRICT

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ESHWAR REDDY S/O NARAYANAPPA AGED ABOUT 70 YEARS R/AT DWARNAHALLI, SRINIVASAPUR TALUK KOLAR DISTRICT

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VAIBAV S/O LATE NARAYANA SWAMY AGED ABOUT 11 YEARS MINOR REP BY MOTHER AMBUJA R/AT NO 10, DWARNAHALLI, SRINIVASAPUR TALUK KOLAR DISTRICT

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…APPELLANTS

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(BY SRI. K. SHANTHARAJ, ADVOCATE)

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NC: 2023:KHC:21377 MFA No.9289 of 2017 C/W MFA No.5347 of 2013

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AND:

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TATA AIG GENERAL INSURANCE CO LTD 5TH FLOOR WEST ENTRANCE KANIJA BHAVAN RACE COURSE ROAD BANGALORE 560 001

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SMT SARASWATHAMMA W/O VEMANNA NO 105/26, DVG ROAD, BASAVANAGUDI BANGALORE 560 004

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…RESPONDENTS

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(BY SRI. RAVI S. SAMPRATHI, ADVOCATE FOR R1; SRI NARASIMHARAJU, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 3.12.2012 PASSED IN MVC NO.7527/2010 ON THE FILE OF THE 4TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.OUT OF TIME.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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MFA No.9289/2017 is filed by the owner of lorry

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No.KA-51/3492 questioning the liability fixed on him to

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pay compensation.

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MFA No.5347/2013 is filed by the claimants

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seeking enhancement of compensation.

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Brief facts:

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On 12.07.2010 at about 9.00 a.m., deceased was

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riding the motor cycle bearing No.KA-04/ER-7683 on the left side of B.B.Road near Yelahanka by following traffic rules. Suddenly, lorry bearing No.KA-51/3492 driven in a high speed dashed to the motor cycle and he sustained severe head injuries and injuries to other parts of the body. He was shifted to hospital, where he succumbed to the injuries. Claimants 1 to 3 filed a claim petition before the Tribunal. It was pleaded that deceased was earning a sum of Rs.12,000/- p.m., working as an Accountant. On the basis of the written statement and documents on record, the Tribunal partly allowed the claim petition and awarded a compensation of Rs.11,52,815/- with 6% interest p.a., from the date of petition till payment. Further, it was ordered to distribute the compensation to

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Respondents 1, 2 and 4 in the ratio of 40:20:40, respectively.

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Heard arguments of both sides and perused the

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records.

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Learned counsel for the appellant-owner submitted that in the present case, the driver was holding a valid and effective driving licence to drive light motor vehicle. In the present case, the vehicle involved is light goods vehicle and the driver of the offending lorry was holding driving licence to drive light motor vehicle and the vehicle is not the heavy goods vehicle, but the Tribunal has wrongly fastened the liability on the owner. Therefore, prayed to set aside the Judgment and Award so far as fixing liability on the owner of the lorry.

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Learned counsel for the Insurance Company submitted that in the present case, the lorry is a medium goods vehicle having gross vehicle weight of 8,800 kgs. Therefore, the offending vehicle is medium goods vehicle which is correctly held by the Tribunal based on the

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evidence on record. But the driver was holding driving licence, admittedly, is a light motor vehicle and the Tribunal correctly fastened liability on the owner of the lorry. Therefore, prayed for dismissal of the appeal filed by the owner.

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Learned counsel for the claimants submitted

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that the Tribunal has taken the salary of the deceased on lesser side. Hence, awarded lesser amount of compensation and prays for enhancement of the compensation.

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In the present case, undisputedly, the offending vehicle is a lorry bearing No.KA-51/3492. The Tribunal, in detail, in the Judgment, appreciated the evidence on record and came to the conclusion that the vehicle is a medium goods vehicle having gross weight of 8,800 kgs. Ex.R3 is the R.C extract which shows that the gross vehicle weight is 8,800 kgs and unladen weight is 2,800 kgs. The Insurance Company had examined the R.T.O, Yeshwanthpur as RW.1, who has stated that the offending

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vehicle is a medium goods vehicle having gross vehicle weight of 8,800 kgs.

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Section 2(21) of the Motor Vehicles Act, reads

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as follows:

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" 2. Definitions :

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xxxxxxxxxx

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xxxxxxxxxx

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(21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms".

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The lorry involved in the present case is a

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transport vehicle. Section 2(21) of M.V.Act shall be read with disjunction and conjunction. As stated in the said sub-section, upon interpretation, in order to call a transport vehicle a 'Light Motor Vehicle', the gross vehicle weight shall not exceed 7,500 kilograms. The criteria for holding transport vehicle or omnibus as Light Motor Vehicle, the gross vehicle weight shall not exceed 7,500

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kilograms. For any other vehicle like motor car or tractor or road-roller, the criteria is, unladen weight does not exceed 7,500 kilograms. Therefore, as per provisions of Section 2(21) of the Act, the lorry in the present case is having gross vehicle weight of 8,800 kilograms which exceeds 7,500 kilograms, and hence, it is a transport vehicle falling under the class of 'Medium Goods Vehicle' as defined in Section 2(23) of M.V.Act. Therefore, certainly, the lorry number KA-51/3492 involved in the present case, is not a light motor vehicle.

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Admittedly, as proved from Ex.R2-extract of driving licence of the driver, as on the date of accident, the driver of the lorry was holding driving licence to drive the light motor vehicle. Therefore, in the present case, the driver was holding licence to drive all types of vehicles falling under the class "light motor vehicle." Therefore, the driver did not have valid and effective driving licence to drive Medium Goods Vehicle, as he possessed only the Driving Licence of Light Motor Vehicle. Therefore, the

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Tribunal has correctly held that there is violation of conditions of insurance policy and accordingly, fastened liability on the appellant-owner of the lorry. The said finding by the Tribunal making the appellant-owner of the lorry liable to pay compensation by exonerating the insurance company, is correct. Hence, on the liability issue involved in the present case, the owner of the lorry bearing No.KA-51/3492 shall pay the compensation. Even though the Insurance Company is able to establish the fact as per sub-section (2) of Section 149 of M.V.Act that the driver of the lorry was not holding valid and effective driving licence to drive the lorry as on the date of accident, but as per Sub-sections (1), (5) and (7) of Section 149 of the Motor Vehicles Act, the Insurance Company, as if a judgment debtor, shall satisfy the claim to the third party and then recover it from the owner of the lorry as per the principle laid down by the Hon'ble Supreme Court in the case of PAPPU AND OTHERS v.

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VINOD KUMAR LAMBA AND ANOTHER reported in AIR 2018 SC 592; in the case of NATIONAL INSURANCE

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COMPANY v. SWARAN SINGH AND OTHERS reported

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in (2004)3 SCC 297; and the decision of Full Bench of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED, BIJAPUR v. YALLAVVA AND ANOTHER reported in ILR 2020 KAR 2239 . Therefore, an order of pay and recovery is made.

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Further, in the context of the submissions made by the learned senior counsel appearing for the appellantowner that the driver of the offending vehicle has not been prosecuted for not having driving licence and just because the driver is not prosecuted in the charge sheet, that does not mean that the insurance company has not proved the defence as per Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 as the driver did not have requisite driving licence. The driver was holding driving licence to drive light motor vehicle but drove medium goods vehicle. Therefore, the investigating officer might not have charged the driver for the offence for not holding driving licence. Therefore, just because the name of the driver was not

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mentioned in the charge sheet, does not mean that the driver was holding valid and effective driving licence.

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Apart from charge sheet, the insurance company is able to prove that the driver was not holding requisite driving licence by producing Ex.R2-extract of driving licence. Although the insurance company might not have issued notice as per Section 133 of the Motor Vehicles Act, that does not absolve the owner of the vehicle to produce driving licence. Therefore, when the owner is made party in the claim proceedings and the owner appeared in the claim proceedings before MACT, an opportunity was given to the appellant-owner to produce driving licence. But he did not avail the benefit of it. Although the appellantowner has an opportunity to produce driving licence even before this Court in this appeal, he did not produce the same. Therefore, the insurance company has proved by relying on documentary evidence i.e., Ex.R2 - extract of driving licence that the driver was not holding driving licence to drive medium goods vehicle.

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Further, the learned senior counsel for the appellant-owner placing reliance on judgment of Hon'ble Apex Court in the case of National Insurance Co. Ltd., vs. Swaran Singh¹ , highlighted regarding summary of finding contained in para No.107 of the judgment, which reads as under:

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”We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under subclause

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(ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act . However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one

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1 reported in 2004 ACJ 1

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reason or the other, the insurer was not given opportunity to defend at all. Such a course of action may also be resorted when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.”

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Learned senior counsel further contended that non-holding of driving licence to drive medium goods vehicle is different and the occurrence of accident by sheer negligence is different. Therefore, it is submitted that it is incumbent upon the insurance company to prove that on sheer negligence of the driver, the accident is caused, where the driver was holding driving licence for one class of vehicle but driving another class of vehicle and has caused accident. It is highly difficult to prove what is the exact reason for causing accident whether negligence in applying brake or not sitting properly on the seat or driving the vehicle with single hand or doing some other activity while driving the vehicle. It is not at all possible to

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prove what is the exact reason while proving sheer negligence on the part of the driver. Therefore, at the

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most, what best the insurance company has to do is depending upon the class of vehicle of driving licence, they can prove which class of vehicle is involved in the present case. Therefore, as per the principle of law laid down by the Hon'ble Apex Court in Swaran Singh's case stated supra , the insurance company is able to prove that the driver is not holding requisite driving licence to drive medium goods vehicle involved in the accident in the present case. As such, while considering overall facts, circumstances and evidence on record are concerned, it is proved that the driver was holding driving licence to drive light motor vehicle but not to drive medium goods vehicle. Therefore, there is breach of condition of policy. The owner before allowing the driver to drive medium goods vehicle ought to have verified whether the driver was having valid and effective driving licence to drive medium goods vehicle. But without doing so, the appellant has allowed the person who was holding the driving licence to drive light motor vehicle. This shows the negligence on the part of appellant/owner in entrusting the person to

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drive the medium goods vehicle. Therefore, this breach of duty on the part of the appellant/owner is responsible for the consequent act. Therefore, the violation of conditions of policy by the driver as he was not holding valid and effective driving licence is proved. Therefore, the Tribunal is correct in fastening liability on the appellant-owner by exonerating the insurance company.

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In the present case, the Tribunal has awarded compensation of Rs.11,52,815/-. The deceased was aged 31 years as on the date of the accident and was earning Rs.12,000/- per month by working as an Accountant in Meda and Company, Auditors and Tax Consultants. Exhibit P12 is the Voter Identity Card which shows the Date of Birth of the deceased as 20^th June, 1979. The accident occurred on 12^th July, 2010. Exhibit P15 is letter issued by M/s. Meda and Company which shows that the deceased was working as Accountant in the said Company and was getting a salary of Rs.12,000/- per month. The Tribunal has rejected the said evidence on the ground that

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the author of the document was not examined. It is to be noted that, where a document inspires the confidence of the Court/Tribunal, that document can be considered without examining the author of the said document; and where the Tribunal wants some more evidence to inspire the documentary evidence, then the examination of the author is necessary. Therefore, examination of the author of the document is a mere rule of evidence and what is more important to be considered in this regard is, whether the document produced by the claimant inspires confidence of the Court or not. Merely because the author of the document is not examined, the document cannot be rejected mechanically. Upon perusal of Exhibit P15 the letter issued by M/s. Meda and Company, it inspires confidence of the Court that the deceased was working as an Accountant in the said Company and was getting salary of Rs.12,000/- per month. The said fact is also not disputed either by the owner of the lorry or by the insurance company. Therefore, considering this, it is proved that the deceased was working as an Accountant

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and was earning salary of Rs.12,000/- per month. The deceased was doing a job which is permanent in nature and therefore, as per the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI reported in (2017)16 SCC 680 , 50% of his income is to be added towards loss of future prospects in life. There are four dependants and hence, one-fourth has to be deducted for personal and living expenses of the deceased. Therefore, the loss of dependency is hereby re-assessed and the same comes to Rs.25,92,000/- (Rs.12,000/- + Rs.6,000/x 16 x 12 x 3/4). Each claimant is entitled for Rs.40,000/as consortium with 10% escalation and accordingly, the compensation would be Rs.1,76,000/- (Rs.40,000/- + Rs.4,000/- x 4). Further, towards loss of estate, Rs.15,000/- is awarded with 10% escalation which would be Rs.16,500/-; and Rs.15,000/- towards transportation of dead body and funeral expenses with 10% escalation which would be Rs.16,500/-. The compensation awarded by the Tribunal under other heads remain unaltered. In

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all, the claimants are entitled for a compensation of Rs.32,01,515 /- as against Rs.11,52,815/- awarded by

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the Tribunal. Thus, the claimants are entitled to compensation as under:

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Medical expenses Rs.	3,84,015/-
Loss of dependency Rs.	25,92,000/-
Loss of consortium Rs.	1,76,000/-
Loss of estate Rs.	16,500/-
Transportation of dead body Rs.	16,500/
Funeral expenses Rs.	16,500/
Total Rs.	32,01,515/-

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In the result, I pass the following:

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O R D E R

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i. Miscellaneous First Appeal No.9289 of 2017

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preferred by the * owner is dismissed ;

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ii. Miscellaneous First Appeal No.5347 of 2013 preferred by the claimants is allowed in part by modifying the judgment and award

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*Corrected vide chamber order dated 30.09.2023

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of the Tribunal and awarding enhanced compensation of Rs.20,48,700/- (Rs.32,01,515 - Rs.11,52,815/-) in addition to what has been awarded by the Tribunal;

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iii The enhanced amount carries interest at the rate of 6% per annum from the date of claim petition till realisation.

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iv It is made clear that the claimants are not entitled for interest for the delayed period of * 278 days;

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v Since the order of pay and recovery is made, the Insurance Company shall pay the compensation to the claimants at the first instance and then recover it from the owner of the lorry bearing registration No.KA51/3492.

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*Corrected vide chamber order dated 30.09.2023

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