Smt. Mallamma W/O S Mallappa Vs Mohammed Ansari S/O Hasamuddin Ansari

VEERESH @ VEERESH SARAYAD S/O. SARAYADA MALLAPPA, AGE: 26 YEARS, OCC. STUDENT, R/O. HOSAKERI (DASAMAPURA) VILLAGE, H.B. HALLI TALUK, BALLARI DISTRICT-583212.

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(BY SRI. AMARE GOUDA, ADVOCATE)

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…APPELLANTS

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AND:

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MOHAMMED ANSARI S/O. HASAMUDDIN ANSARI, AGE: 33 YEARS, OCC. DRIVER OF LORRY BEARING REGN NO.MH-40/N-6264, R/O. AT POST UMBARKHED, TALUK: CHALISGOAN, JALAGAON DISTRCT, MAHARASTRA-445206.

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HC-KAR

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MOHAMMED SAMEER, SHEK OWNER OF LORRY BEARING REG NO.MH-40/N-6264, R/O. SUMTHANA, GUMGAON POST, HINGNA TALUK, NAGAPUR DISTRICT-442902.

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THE NEW INDIA ASSURANCE COMPANY LIMITED NEW INDIA ASSURANCE BUILDING, 9^TH FLOOR, NEW INDIA CENTER, 17/4 COOPARAGE ROAD, MUMBAI, NEAREST OFFICE AT STATION ROAD, HOSAPETE, BALLARI DISTRICT-583201.

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…RESPONDENTS

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(BY SRI.M.K. SOUDHAGAR, ADVOCATE FOR R3; NOTICE TO R1 IS DISPENSED WITH; NOTICE TO R2 IS HELD SUFFICIENT)

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THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,

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1988, AGAINST THE JUDGMENT AND AWARD DATED 06.07.2018 PASSED IN MVC NO.230/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS MOTOR ACCIDENT CLAIMS TRIBUNAL-IV, HOSAPETE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This Miscellaneous First Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘M.V.Act, 1988” for short) by the petitioners being dissatisfied with the compensation awarded by Tribunal in MVC No.230/2015 dated 06.07.2018 by the learned Principal Senior Civil Judge & MACT-IV, Hosapete.

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Brief facts leading rise to the filing of this appeal, are as follows:

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On 12.02.2014, at about 7.50 p.m., a KSRTC bus bearing Reg.No.KA-07/F-913, due to mechanical defect, the bus was stationed on NH-7 Road, near Venkatagiri Kote, Swamy daba. The deceased was lying below the said bus to carryout its repair. At that time, the driver of the bus had taken all precautions by putting the indicator light, showing visibility of the stationed bus for repairs to other moving vehicles on the road. At that time, a lorry bearing

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Reg.No.MH-40/N-6264 came in a rash and negligent manner, and dashed against the stationed bus from the backside. The deceased sustained grievous injuries and succumbed to the injures. The petitioners being the legal representatives of the deceased filed a claim petition seeking compensation on the ground that the deceased was the only bread earner in the family, and they have depending on the income of the deceased. Hence, prays to allow the claim petition.

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The owner and the driver of the offending lorry despite service of notice remained unrepresented, and they were placed ex-parte.

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The Insurance Company filed a statement of objections admitting that the offending lorry was covered with the policy from 25.11.2013 to 24.11.2014. It is contended that the driver of the offending lorry did not possess a valid and effective driving license as of the date

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of the accident. Hence, prays to dismiss the claim petition

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against the Insurance Company.

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The Tribunal, based on the pleadings of the parties, framed the relevant issues.

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To substantiate their case, petitioner No.2 was examined as P.W.1, and marked 6 documents as Exs.P1 to P6. The official of the Insurance Company was examined as R.W.1 and RTO Office was examined as R.W.2 and 7 documents were marked as Exs.R1 to R7. The Tribunal, after assessing the verbal and documentary evidence allowed the claim petition in part with costs, and awarded compensation of Rs.21,40,188/-. It is held that respondent Nos.1 and 2 are jointly and severally liable to pay the compensation, and the claim petition against the Insurance Company was dismissed. The petitioners, being dissatisfied with the quantum of compensation awarded by the Tribunal and dismissal of the claim petition against the Insurance Company , have filed this Miscellaneous First Appeal.

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HC-KAR

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Heard the arguments of the learned counsel for

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the petitioners and the learned counsel for the respondentInsurance Company.

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Learned counsel for the petitioners submits that the driver of the offending lorry possessed a valid and effective driving license, and as of the date of the accident, the license was expired, and subsequently, the license was renewed. He submits that the Tribunal has committed an error in fastening the liability only on the driver and owner of the offending lorry. He submits that once if the driver possessed a driving license, and if it is expired, there is no bar to drive the vehicle. To buttress his arguments, he placed reliance on the judgment of the Division Bench of this court in the case of NAGAPPA @ NAGARAJA AND ANOTHER

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VS RAVI KUPALURU AND OTHERS IN MFA NO.103680/2015 C/W MFA NO.103681/2015 disposed of on 08.02.2019.

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He submits that the Tribunal has committed an error in dismissing the claim petition, and dismissal of the claim petition against the Insurance Company is contrary to the

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aforesaid judgment rendered by this court. He submits that the deceased was working in KSRTC, and was getting a salary of Rs.13,595/- p.m. He also submits that the father of the deceased was aged about 64 years and mother was aged about 55 years. The deceased was having an unmarried brother, who is studying in the college. They were totally depending on the income of the deceased. He submits that the Tribunal ought to have deducted 1/3^rd towards personal expenses of the deceased, but on the contrary, the Tribunal deducted 50%. He submits that the deduction is contrary to the proposition laid down by the Hon’ble Apex Court in the case of MAGMA GENERAL INSURANCE CO.LTD., VS NANU RAM AND OTHERS reported in 2018 ACJ 2782 . He submits that, in the said case, the Hon’ble Apex Court deducted 1/3^rd . Hence, on these grounds he prays to allow the appeal.

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Per contra, the learned counsel for the respondent-Insurance Company submits that as of the date of the accident the driver of the offending lorry did not

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possess a valid and effective driving license. As of the date of the accident, the license was expired, and subsequently, the driver got renewed the license after 2½ years. He placed reliance on the judgment of the Hon’ble Apex Court in the case of RAM BABU TIWARI VS UNITED INDIA INSURANCE CO. LTD., AND OTHERS reported in 2008 ACJ 2654 . He also placed reliance on the judgment of the Division Bench of this court in the case of SMT.PADMA AND OTHERS VS RMANJALI NAIDU AND OTHERS IN MFA NO.100226/2016 C/W MFA NO.100730/2016 disposed of on 22.04.2021. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records and considered the

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submissions of the learned counsel for the parties. The points that arise for consideration is regarding the liability and the quantum of compensation.

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There is no dispute regarding the occurrence of

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the accident, death of the deceased in said road traffic

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accident and the accident occurred due to the rash and negligent driving of the offending lorry by its driver. Further, the charge sheet was filed against the driver of the offending lorry. The Tribunal placing reliance on Ex.P6 has rightly held that the accident occurred due to the rash and negligent driving of the lorry by its driver.

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Regarding liability.

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Respondent-Insurance Company has taken a

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specific defense that as of the date of the accident the driver of the offending lorry did not possess a valid driving license. There is breach of the policy conditions, and the Insurance Company is not liable to pay the compensation as claimed by the petitioners. Admittedly, the driver of the offending lorry was having license, and as of the date of the accident, it was expired. Subsequently, after 2½ years, the driver got renewed the license. The said issue is squarely covered by the judgment of the Division Bench of this court

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in the case of NAGAPPA (SUPRA) . This court in paragraph 27 held as follows:

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“27.The Co-Ordinate Bench has held after referring to various judgments that even if there is no renewal endorsement, it cannot be said that the person driving the vehicle was not a licensed driver. It is not a case where the insured entrusted the vehicle to a person who does not hold a driving licence rather admittedly the driver to whom the vehicle was entrusted by the insured was having a valid driving licence duly granted by transport authority. Merely because of expiry of the period of licence and the omission of the driver to get the licence renewed, it cannot be said by any stretch of imagination that there is breach of condition of policy for which insurance company can be exonerated from the liability. The driver was authorised to drive a transport vehicle and the vehicle was entrusted by the insured to the licensed driver and, therefore, the insurance company cannot absolve itself from the liability. Therefore, it is clear that mere fact that the driver of the vehicle had not got his driving licence renewed on the date of the accident and got it renewed subsequently would not amount to breach of condition of the policy as it cannot be said that there was violation of the condition of the policy. Further, in view of the above findings, the Division Bench also held that the question of ordering any recovery of the amount by the insurance company from the insurer did not arise.”

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The learned counsel for the Insurance Company placed reliance on the judgment of the Hon’ble Apex Court in RAM BABU TIWARI (SUPRA) . The Division Bench in NAGAPPA (SUPRA) referring the judgment of the Hon’ble Apex Court , has held that the Insurance Company is liable to pay the compensation amount. Further, the learned counsel for the Insurance Company placed reliance on the judgment of Division Bench in the case of SMT.PADMA (SUPRA) . Admittedly, in the said case, the police have filed a charge sheet against the driver of the offending lorry under Section 3 of the M.V.Act. Admittedly, in the instant case, the police have not filed a charge sheet against the driver of the offending lorry under Section 3 of the M.V.Act. Further, the learned counsel for the petitioner submits that above said matter was settled in a Lok Adalath and the Insurance Company was directed to deposit the compensation amount. The said fact has not been disputed by the learned counsel for the Insurance Company. In view of the submission made by the learned counsel for the

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petitioner, question of considering the proposition laid down in the judgment relied by the learned counsel for the Insurance Company in the case of SMT.PADMA (SUPRA) would not arise. Hence, considering the proposition laid down by the Division Bench in NAGAPPA (SUPRA) , the liability is fastened on the owner and the Insurance Company to pay the compensation to the petitioners.

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Regarging quantum.

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The deceased was aged about 26 years as of the date of the accident. He was working as a mechanic in KSRTC, Chikkaballaur Division, and was drawing a salary of Rs.13,595/- p.m. The said fact has not been seriously disputed by the Insurance Company. The Tribunal was justified in taking the monthly income of the deceased at Rs.13,595/-. While deducting personal expenses of the deceased, the Tribunal has deducted 50% of the income of the deceased. The Hon’ble Apex Court in the case of MAGMA (SUPRA) in paragraph 8.2, held as follows:

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HC-KAR

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“With respect to the issue of deduction from the inc ome of the deceased, the Insurance Company contended that the deduction ought to have been ½, and not 1/3^rd , since the deceased was a bachelor.

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This issue has been dealt with in paragraph 32 of the judgment in Sarla Verma (supra) wherein this Court took the view that where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third, as contribution to the family will be taken as two-third.

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Considering that the deceased was living in a village, where he was residing with his aged father who was about 65 years old, and Respondent No.2 an unmarried sister, the High Court correctly considered them to be dependents of the deceased, and made a deduction of 1/3^rd towards personal expenses of the deceased.”

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15. Admittedly, in the instant case, petitioner No.2 is

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the father of the deceased, who was aged about 64 years. Petitioner No.1 is the mother of the deceased, who was aged about 55 years, and petitioner No.3 is the unmarried brother. They are all depending on the income of the deceased. The Tribunal committed an error in deducting 50% towards personal expenses of the deceased.

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Considering the monthly income of the deceased at Rs.13,595/-, and 50% must be added towards future

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prospects, which comes to Rs.20,392/-. There are three petitioners, 1/3^rd is to be deducted, which comes to Rs.13,595/-. The deceased was aged about 26 years, as of the date of the accident. The multiplier applicable to the age group is ‘17’. Thus, the petitioners are entitled to a compensation of Rs.27,73,380/- (Rs.13,595/-x 12 x 17) under the head loss of dependency. The petitioners are also entitled to a compensation of Rs.48,000/- each, under the head loss of consortium, Rs.36,000/- under the head funeral expenses and loss of estate.

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Thus, the petitioners are entitled to total

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compensation, which is as follows:

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Particulars	Compensation amount in (Rs.)
Loss of dependency (Rs.13,595/-x 12x 17)	27,73,380
Loss of consortium (Rs.48,000 x 3)	1,44,000
Funeral expenses and loss of Estate	36,000
Total	29,53,380

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HC-KAR

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In view of the above discussion, I proceed to

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pass the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and the award dated 06.07.2018 passed in MVC No.230/2015 by the learned Principal Senior Civil Judge & MACT-IV, Hosapete is hereby modified.

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(iii) The petitioners are entitled to a total compensation of Rs.29,53,380/as against Rs.21,40,188/- awarded by the Tribunal with interest at 6% per annum from the date of petition till realisation of the amount.

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(iv) Respondent Nos.2 i.e., the owner of the offending lorry and respondent No.3, the insurance company are jointly and severally liable to pay the compensation amount.

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