Partly allowed

V. Velumurugan v. Smt. Kavitha L

Karnataka HC6 Aug 2024MFA/5973/2013

Case brief

AI extract

What is this about?

The High Court modified a Motor Accident Claims Tribunal award. It held the insurer liable despite the driver's lack of endorsement because compelling the owner to indemnify would be unjust. However, the initial compensation was enhanced to Rs.15,29,000/- based on Supreme Court principles for quantum assessment.

What did the court decide?

The appeal by the vehicle owner was dismissed. The cross-objection by petitioners allowed for enhancement of compensation to Rs.15,29,000/- with interest. The insurance company directed to deposit the

V. Velumurugan Vs Smt. Kavitha L — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:31229 MFA No. 5973 of 2013 C/W MFA.CROB No. 80 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

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MFA NO. 5973 OF 2013 C/W MFA CROB NO. 80 OF 2021 (MV-D)

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IN MFA NO. 5973/2013

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BETWEEN:

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V. VELUMURUGAN S/O VENUGOPALA, AGED 40 YEARS R/A N.199,RAMAGOPALA LAYOUT NEAR SBI,SUBBANAPALYA BANASAWADI MAIN ROAD BANGALORE-33 …APPELLANT

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(BY SRI. PRAKASH M H., ADV.)

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AND:

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SMT. KAVITHA L W/O LATE SRINIVASA K AGED 24 YEARS

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Digitally signed by PRAJWAL A Location: HIGH COURT OF KARNATAKA

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SMT MUNIYAMMA W/O LATE KRISHNAPPA AGED 63 YEARS

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KUM PALLAVI S D/O LATE SRINIVASA K AGED 6 YEARS

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MAST.GIRISH S/O LATE SRINIVASA K AGED 1 YEAR

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RESPONDENT NOS. 3 AND 4 ARE MINOR AND REP. BY RESPONDENT NO.1

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NC: 2024:KHC:31229 MFA No. 5973 of 2013 C/W MFA.CROB No. 80 of 2021

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ALL ARE R/AT D NO.10-53 NEAR DHARMARAYA SWAMY TEMPLE HOSAKOTE TOWN HOSAKOTE 562 114

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THE MANAGER NEW INDIA ASSURANCE CO LTD T P HUB,2^ND FLOOR MAHALAKSHMI CHAMBERS M G ROAD,BANGALORE-01 …RESPONDENTS

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(BY SRI.K.L.SREENIVAS, ADV. FOR R1 TO R4; R3 AND R4 ARE MINORS REP. BY R1; SRI. A. N. KRISHNA SWAMY, ADV. FOR R5)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 1.4.2013 PASSED IN MVC NO.4553/2012 ON THE FILE OF THE 22^ND ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.11,48,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA CROB NO. 80/2021

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BETWEEN:

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1 . SMT. KAVITHA L W/O LATE SRINIVASA K

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AGED 31 YEARS

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2 . SMT MUNIYAMMA W/O LATE KRISHNAPPA AGED 71 YEARS

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3 . KUM PALLAVI S. D/O LATE SRINIVASA K

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AGED 14 YEARS

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4 . MAST GIRISH

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S/O LATE SRINIVASA K AGED 9 YEARS

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CROSS OBJECTOR NO. 3 AND 4 ARE MINORS AND REP. BY CROS OBJECTOR NO.1.

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ALL ARE R/AT D NO.10-53 NEAR

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NC: 2024:KHC:31229 MFA No. 5973 of 2013 C/W MFA.CROB No. 80 of 2021

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DHARMARAYA SWAMY TEMPLE HOSAKOTE TOWN, HOSAKOTE 562 114

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… CROSS OBJECTORS

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(BY SRI.K.L.SREENIVAS, ADV.)

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AND:

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1 . THE MANAGER, NEW INDIA ASSURANCE CO LTD. TP HUB 2^ND FLOOR, MAHALAKSHMI CHAMBERS, M G ROAD BANGALORE-01

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2 . V. VELUMURUGAN S/O VENUGOPALA, AGED 48 YEARS R/A N.199, RAMAGOPALA LAYOUT NEAR SBI,SUBBANAPALYA BANASAWADI MAIN ROAD BANGALORE-33 … RESPONDENTS

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(BY SRI.A.N.KRISHNA SWAMY, ADV. FOR R1; SRI. PRAKASH M.H., ADV. FOR R2)

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THIS MFA.CROB IS FILED UNDER ORDER XLI RULE 22 OF THE CPC AGAINST THE JUDGMENT AND AWARD DATED 01.04.2013 PASSED IN MVC NO. 4553/2012 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL AND CROB, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

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ORAL JUDGMENT

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In these two appeals, the owner as well as the

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petitioners have challenged the judgment and award dated 01.04.2013 passed in M.V.C.No.4553/2012 by the

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XXII Additional Small Causes Judge and Member, MACT, Bengaluru ('the Tribunal' for short).

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For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.

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Brief facts of the case are, on 15.06.2012 at about 3.30 p.m., the husband of 1^st petitioner and father of petitioner Nos.3 and 4 and son of petitioner No.2 by name Srinivasa K., the deceased, was riding the motor cycle bearing Reg.No.KA-53/K-9800 as a pillion rider, in front of Raghavendra Talkies, Sulibele road, Hospet, a tanker lorry bearing Reg.No.KA-03-AA-1156 dashed against the motor cycle. Due to which, the deceased fell down and sustained injuries and he was treated at MVJ Hospital, Hospet, but he succumbed to the injuries. Petitioners being dependants of the deceased have approached the Tribunal for grant of compensation. Claim was opposed by the respondents. The Tribunal, after taking the evidence and hearing both the sides by

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the impugned judgment allowed the claim petition granting compensation of Rs.11,48,000/- with interest at the rate of 6% p.a. directing the owner of the vehicle to pay the compensation and rejected the claim petition against the insurance company. Challenging the quantum of compensation and liability, the owner of the vehicle has filed MFA.No.5973/2013, whereas the petitioners have filed MFA.Crob.80/2021 seeking enhancement of compensation on various grounds.

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Heard the arguments of Sri Prakash M.H, learned counsel for the owner of the vehicle, Sri.K.L.Sreenivas, learned counsel for the petitioners and Sri A.N.Krishna Swamy, learned counsel for the Insurance Company.

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It is contended by the learned counsel for the owner of the tanker that the driver was holding valid and effective driving licence to drive the heavy goods vehicle. He was also trained to drive the special category of vehicle and he has also obtained the certificate. Unfortunately, the certificate was not endorsed on the

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driving licence. The purpose of making an endorsement compulsory in driving licence, to enforce the driver to acquire required training to drive a specified class of vehicle. The driver since already taken the driving licence, mere omission in not getting an endorsement is not a ground for the insurance company to avoid its liability and sought for direction to the insurance company to indemnify his liability.

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Per contra, learned counsel for the insurance company has contended that the tanker involved in the accident was a heavy goods vehicle, which was carrying the petrol, hazardous controlled goods. In order to drive such type of vehicle, a special endorsement is required in the driving licence, which is not complied by the driver in question. It is further contended that the Proviso to Section 14(2) of the Motor Vehicles Act (for short, 'M.V.Act') mandates training of the driver every year when renewal of licence takes place. Mere obtaining a certificate that he has trained to drive the special category of vehicle is not sufficient. Therefore, the

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insurance company can avoid its liability to pay the compensation.

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It is contended by the learned counsel for the petitioners that the Tribunal has taken income of the deceased at Rs.6,000/- and a person with no proof of income in the year 2012 will earn not less than Rs.10,000/per month. Hence, he sought for enhancement of compensation claiming that the award of the Tribunal is inadequate.

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I have given my anxious consideration to the arguments addressed on behalf of the parties and perused the records.

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The material on record clearly pointed out that there was an accident on 15.06.2012 at 3.30 p.m., at Hoskote involving the petrol tanker and the motor cycle. That the deceased was the pillion rider and the tanker was a heavy goods vehicle, which was carrying hazardous material i.e. petrol.

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As rightly pointed out by the learned counsel for the insurance company that an ordinary person having a driving licence to drive the heavy goods vehicle is not authorized to drive special category of vehicle in view of the endorsement is mandated in the driving licence. Admittedly, the vehicle is a petrol tanker and a person with having licence to drive heavy goods vehicle is not permitted to drive the special category of vehicle. In this regard, learned counsel for the owner of the vehicle relies upon the judgment of Division Bench of this

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Court in VIJAYAKUMARI R. Vs. KALPANA reported in

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2018 ACJ 1462 . At para 12 of the said judgment, this Court discussed in detail with reference to the Section 14(2) of the M.V.Act, where a special driving licence is mandated in order to drive a tanker. The vehicle involved in this case is a tanker wherein the abrasions are noted as non-owning of medical fitness certificate, age proof of the driver and minor breaches in the licensing conditions. These are the minor abrasions, which can be ignored as they are inconsequential deviations. But herein this case,

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the driver of the vehicle did not have valid endorsement authorizing him to drive the special category of vehicle which carrying a hazardous goods (controlled goods petrol). Petrol is an highly inflammable material which fall within the purview of the hazardous goods. Hence, the judgment of this Court is not going to help the owner of the vehicle to force the insurance company to shoulder his responsibility.

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Learned counsel for the petitioners relying upon the judgment in RENU AND ANOTHER V. THE ORIENTAL INSURANCE CO.LTD. AND ANOTHER , reported in 2014 ILR (Kar) 2592 , contended that the driver of the tanker was holding valid driving licence to drive the heavy goods vehicle. Spot mahazar did not indicate that for the reason of the tanker carrying the petrol, accident was occurred. Hence, his contention that the insurance company has to indemnify him and to pay the compensation. The facts of the said case cannot be equated with the facts of this case as the tanker in

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question was carrying a hazardous material and there is a basic violation of the requirement of the driving licence.

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Learned counsel for the petitioners also relied upon the judgment of the Division Bench of this Court in NEW INDIA ASSURANCE CO.LTD. Vs. KUM.K.MANOGNA AND OTHERS in MFA.No.3751/2012 connected cases, wherein the facts are quiet different and it is not going to help the owner of the vehicle or the petitioners as in the said case, the lorry was carrying empty gas cylinders, herein in this case, there is no evidence on record that the tanker vehicle was empty or it was not carrying the petrol.

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In view of the fact that the essential requirement to honor the policy is an endorsement on heavy goods vehicle, driving licence of the tanker lorry and therefore insurance company can avoid its liability. At the same time, when there is a violation of the terms and conditions of the policy, the insurance company though having no liability, the petitioner cannot be forced

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to go against the owner of the tanker. The insurance company has to pay the compensation and recover the same from the owner of the vehicle in the same proceedings.

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Adverting to the quantum of compensation is concerned, the Tribunal has assessed total compensation at Rs.11,48,000/-. As on the date of accident, the deceased was aged 37 years. There are four dependants of the deceased.

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In a case of this nature, compensation has to be determined by following the principles settled by the Hon'ble Apex Court in National Insurance Co.Ltd. -vsPranay Sethi and Others¹ , Sarla Varma (Smt.) and Others -vsDelhi Transport Corporation and Another² and Magma General Insurance Company Ltd. -vs- Nanu Ram alias Chuhru Ram and others³ .

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By following the said principles, the age of the deceased is taken within the bracket of 36 to 40 years,

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1 (2017) 16 SCC 680

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2 (2009) 6 SCC 121

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3 (2018) 18 SCC 130

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`thereby the multiplier applicable is '15' and in the year 2012, a person with no proof of income will earn not less than Rs.7,000/- per month. Hence, notional income of the deceased is taken at Rs.7,000/- and since the deceased falls under the bracket of 36 - 40 years, 40% of future prospects has to be considered and 1/4 has to be deducted towards personal expenses. Then loss of dependency will be: Rs.7,000/- + Rs.2,800/- (40%) = Rs.9,800/- - Rs.2,450/- (1/4) = Rs.7,350/- x 12 x 15 = Rs.13,23,000/-.

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Under conventional heads, petitioners being dependants of the deceased are entitled to a sum of Rs.40,000/- each towards loss of love and affection. Towards funeral expenses and loss of estate, Rs.15,000/has to be assessed. In view of judgment in Pranay Sethi ’s case (supra), since the claim is of the year 2012, 10% appreciation on the conventional heads has to be given. Thereby the total compensation comes to Rs.15,29,000/- as against Rs.11,48,000/- awarded by the Tribunal. Thus, petitioners are entitled for enhanced

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compensation of Rs.3,81,000/-, it is the just compensation to which the petitioners are entitled, in the facts and circumstances of the case.

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In view of above discussion, the appeal filed by the owner of the vehicle is devoid of merits and Cross Objection filed by the petitioners deserves merit consideration, in the result, the following;

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ORDER

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(i) MFA.No.5973/2013 filed by the owner of the vehicle is dismissed.

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(ii) MFA.Crob.No.80/2021 filed by the petitioners is allowed in part.

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(iii) The impugned judgment and award is modified;

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(iv) The petitioners would be entitled to enhanced compensation of Rs.3,81,000/- with interest at the rate of 6% per annum from the date of petition till deposit excluding interest for the delayed period from 15.11.2013 till 10.03.2021 in filing the Cross Objection;

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