Partly allowed

Imthiyaz v. Sri Susheel Kumar

Karnataka HC6 Aug 2024MFA/3979/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal under Section 173(1) of the Motor Vehicles Act to the extent of modifying the liability to be shared between the insurers of the maxi cab and the autorickshaw, holding the latter insurer liable based on an applicable Supreme Court decision regarding driver licenses.

What did the court decide?

Appeal allowed in part; Tribunal judgment modified to hold respondent No.4 liable for 35% of compensation; no interest on enhanced amount for delay.

Imthiyaz Vs Sri Susheel Kumar — Cheque Dishonour | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:31090 MFA No. 3979 of 2019

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 6^TH DAY OF AUGUST, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 3979 OF 2019 (MV)

¶6

BETWEEN:

¶7

IMTHIYAZ @MOHAMMED BASHEER S/O LATE.V.KUNCHALY AGED ABOUT 40 YEARS

¶8

SMT. ZOHARA W/O IMTHIYAZ@ MOHAMMED BASHEER AGED ABOUT 43 YEARS

¶9

BOTH ARE R/AT JANATHA HOUSE MUNDOOR VILLAGE, MELANTHABETTU POST BELTHANGADY TALUK PRESENTLY REISDING AT D SILVA COMPOUND JEPPU BAPPAL, MANGALURU D.K. DISTRICT-575003.

¶10

…APPELLANTS

¶11

(BY SRI. RAVISHANKAR SHASTRY G.,ADVOCATE)

¶12

Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

¶13

AND:

¶14

SRI SUSHEEL KUMAR S/O CHANDREGOWDA ADULT

¶15

R/O ENASANDI HOUSE, BELUR HASSAN DISTRICT-587114.

¶16

THE MANAGER

¶17

RELIANCE GENERAL INSURANCE CO.LTD., MAXIMUS COMMERCIAL COMPLEX 4TH FLOOR, LIGHT HOUSE HILL ROAD HAMPANAKATTA, MANGALURU D.K-575001.

¶18

2 - NC: 2024:KHC:31090 MFA No. 3979 of 2019

¶19

MR.MOHAMMED SHARIEF S/O ADAM BEARY MAJOR R/AT JANATHA HOUSE MUNDOOR VILLAGE MELANTHABETTU POST BELTHANGADY TALUK D.K. DISTRICT-574212.

¶20

4. THE MANAGER

¶21

RELIANCE GENERAL INSURANCE CO.LTD. BRANCH OFFICE: RELIANCE CENTRE 19 WALCHAND HIRACHAND MARG BALLARAD ESTATE, BOMBAY-400001

¶22

…RESPONDENTS

¶23

(BY SRI.RAVI S SAMPRATHI, ADVOCATE FOR R2 & R4: NOTICE TO R1 IS DISPENSED WITH V/O DATED: 06.08.2024: NOTICE TO R3 IS SERVED AND UNREPRESENTED)

¶24

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT

¶25

AGAINST THE JUDGMENT AND AWARD DATED:24.4.17 PASSED IN MVC NO.36/15 ON THE FILE OF THE MEMBER, MACT & II ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU D.K, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶26

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶27

CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

¶28

3 - NC: 2024:KHC:31090 MFA No. 3979 of 2019

¶29

ORAL JUDGMENT

¶30

This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimants challenging the judgment and award dated 24.04.2017 passed by the MACT, Mangaluru, D.K., in MVC 36/2015.

¶31

Facts giving rise to the filing of the appeal briefly stated are that on 20.10.2013, when the deceased Safwan (aged 2 years) along with others was proceeding in an autorickshaw bearing registration No.KA-21-A-8961 towards Belthangady, at that time, a maxi cab bearing registration No.KA-13-A-4641 which was being driven in a rash and negligent manner, dashed against the autorickshaw. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries.

¶32

4 - NC: 2024:KHC:31090 MFA No. 3979 of 2019

¶33

The claimants filed a petition under Section 166 of

¶34

the Act seeking compensation for the death of the deceased along with interest.

¶35

Upon service of notice, the respondent Nos.1, 2 and 3 appeared through counsel and filed written statements denying the averments made in the claim petition. The respondent No.3, despite service of notice, did not appear before the Tribunal and was placed ex-parte.

¶36

On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimants, in order to prove the case, examined claimant No.2 as PW-6, and got exhibited common documents namely Ex.P1 to Ex.P28. On behalf of respondents, two witnesses were examined as RWs-1 and 2 and got exhibited documents namely Ex.R1 to Ex.R9. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of contributory negligence, as a result of which, the deceased

¶37

5 - NC: 2024:KHC:31090 MFA No. 3979 of 2019

¶38

sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs.4,25,000/- along with interest at the rate of 9% p.a. and directed the insurer of the maxi cab to deposit 65% of the compensation amount and directed the owner of autorickshaw to deposit 35% of the compensation amount along with interest. Being aggrieved, this appeal has been filed.

¶39

The learned counsel for the claimants has raised the following contentions:

¶40

LIABILITY:

¶41

As on the date of accident, the driver of the autorickshaw was having driving licence to drive LMV (Non-transport), but he was driving the transport vehicle. As per the decision of the Apex Court in the case of

¶42

MUKUND DEWANGAN vs. ORIENTAL INSURANCE

¶43

COMPANY LIMITED reported in (2017) 14 SCC 663, a person holding driving licence to drive LMV (NonTransport) can also drive transport vehicle, the unladen

¶44

6 - NC: 2024:KHC:31090 MFA No. 3979 of 2019

¶45

weight of which does not exceed 7500 kgs. The unladen weight of the vehicle involved in the accident is less than 7500 kgs. Therefore, the insurer of autorickshaw is liable to pay compensation. The Tribunal is not justified in fastening the liability on the owner of the autorickshaw.

¶46

QUANTUM OF COMPENSATION

¶47

The Safwan (deceased) was aged about 2 years at the time of the accident. Considering the age of the deceased, the Tribunal has awarded Rs.100,000/- towards ‘loss of love and affection’, Rs.3,00,000/- towards 'loss of dependency' and Rs.25,000/- towards ‘funeral and other expenses’. In all, the Tribunal has awarded a total compensation of Rs.4,25,000/-. The total compensation awarded by the Tribunal appears to be inadequate.

¶48

With the above contentions, the learned counsel sought to allow the appeal.

¶49

On the other hand, the learned counsel for the Insurance Company has raised the following countercontentions:

¶50

7 - NC: 2024:KHC:31090 MFA No. 3979 of 2019

¶51

LIABILITY:

¶52

It is not in dispute that as on the date of accident, the driver of the autorickshaw was having driving licence to drive LMV (Non-transport) but he was driving the transport vehicle. Since the insured has violated the policy conditions, the Tribunal has rightly exonerated the Insurance Company from liability and fastened the liability on the owner of the autorickshaw.

¶53

QUANTUM OF COMPENSATION

¶54

The Tribunal, on appreciation of oral and documentary evidence and considering the age of the deceased, has awarded just and reasonable compensation and hence, it does not call for interference.

¶55

With the above contentions, the learned counsel sought to dismiss the appeal.

¶56

Heard the learned counsel for the parties and perused the judgment and award of the Tribunal.

¶57

8 - NC: 2024:KHC:31090 MFA No. 3979 of 2019

¶58

It is not in dispute that Safwan (deceased) died in the road traffic accident occurred on 20.10.2013 due to rash and negligent driving of the maxi cab and autorickshaw by its drivers.

¶59

QUANTUM OF COMPENSATION:

¶60

The deceased was aged about 2 years at the time of the accident. The Tribunal has awarded a sum of Rs.100,000/towards ‘loss of love and affection’, Rs.3,00,000/towards 'loss of dependency' and Rs.25,000/- towards ‘funeral and other expenses’. In all, the Tribunal has awarded a total compensation of Rs.4,25,000/-. Considering the age of the deceased, the overall compensation awarded by the Tribunal is just and reasonable. It does not warrant any interference.

¶61

LIABILITY:

¶62

It is not in dispute that as on the date of accident, the driver of the autorickshaw was having driving licence to drive LMV (Non-transport), but he was driving transport vehicle. The Apex Court in the case of MUKUND DEWANGAN (supra), has held that a person holding

¶63

9 - NC: 2024:KHC:31090 MFA No. 3979 of 2019

¶64

driving licence to drive LMV (Non-transport) can also drive transport vehicle, wherein the unladen weight of said vehicle does not exceed 7500 kgs.

¶65

In the case on hand, the unladen weight of the vehicle involved in the accident is less than 7500 kgs. Therefore, in view of the above said decision of the Apex Court, I am of the opinion that the driver of the autorickshaw was having valid driving licence as on the date of the accident. Since, the autorickshaw was covered with valid insurance policy as on the date of accident, the respondent No.4, Insurance Company is liable to pay compensation to the claimant, as determined by the Tribunal.

¶66

12. In the result, the following order is passed:

¶67

ORDER

¶68

a) The appeal is allowed in part .

¶69

b) The judgment of the Claims Tribunal is modified.

¶70

c) The claimants are entitled to total compensation of

¶71

Rs.4,25,000/- as determined by the Tribunal with

¶72

10 - NC: 2024:KHC:31090 MFA No. 3979 of 2019

¶73

interest at 9% p.a. from the date of claim petition till the date of realization.

¶74

d) The respondent No.2, Insurance Company (insurer of maxi cab) is directed to deposit 65% of the compensation amount and respondent No.4, Insurance Company (insurer

¶75

of autorickshaw) is directed to deposit 35% of the compensation amount, along with interest, from the date

¶76

of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment.

¶77

e) The apportionment, deposit and release of amount shall be made in accordance with the terms of the award

¶78

of the Tribunal.

¶79

f) In view of the order dated 06.08.2024 passed by this Court, the claimants are not entitled for interest on the enhanced compensation for the delayed period of 606 days in filing the appeal.

¶80

Sd/(H.T. NARENDRA PRASAD) JUDGE

¶81

Imthiyaz v. Sri Susheel Kumar

Case brief

What is this about?

What did the court decide?

Imthiyaz v. Sri Susheel Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kempegowda Vs Sunil Kumar S S

Sri M Munikrishnappa Vs Sri Subhranarayan Patra

Sri Purushotham Vs the Managing Director

Baby Manasa Vs Sri Lakshmana Gowda B N

Mrs. Meena Vs Mrs. Rehana Nazeer

Smt. T. Dhanalakshmi Vs Sri. K. Kumar @ Madhukumar