Smt. Laxmi and Ors. Vs Sri Budesab and Anr.

SRI BUDESAB S/O HUSEINSAB, AGE: 46 YEARS, OCC: BUSINESS, OWNER OF MOTORCYCLE NO.KA-36/EF-2911, R/O KANYAPUR, HUTTI, TQ. LINGASUGUR, DIST. RAICHUR-584115.

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THE BRANCH MANAGER, NATIONAL INSURANCE CO. LTD., HARELAGI BUILDING, BEHIND S.S. TEMPLE, VIJAYAPURA-586101.

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…RESPONDENTS

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(BY SRI. MAHAMMED ABDUL QUAYUM, ADVOCATE FOR R-2; NOTICE TO R-1 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS AND MODIFY THE JUDGMENT AND AWARD PASSED BY THE III ADDL. SENIOR CIVIL JUDGE AND MACT - XII AT VIJAYAPURA IN M.V.C. NO. 1568/2016, DATED 01.10.2019 AND ENHANCE THE COMPENSATION AMOUNT AS PRAYED FOR, HOLDING BOTH THE RESPONDENTS LIABLE TO PAY THE COMPENSATION TO THE APPELLANTS.

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

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CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE K NATARAJAN)

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This appeal is filed by the claimants under Section 173 (1) of Motor Vehicles Act, (for short, hereinafter referred to as ‘the Act’) challenging the judgment and award dated 01.10.2019 passed in MVC.No.1568/2016 by the III Additional Senior Civil Judge and Member MACTXII, Vijaypur.

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Though this matter is listed for hearing on interlocutory application, with the consent of learned counsel for both parties, it is taken up for final disposal.

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Parties are referred to as per their ranking before the Tribunal.

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The case of the claimants is that they have filed claim petition under Section 166 of M.V. Act for claiming compensation for the death of one Kalindra who died in the road traffic accident. It is alleged that on 09.04.2015 at about 3.30 p.m., the deceased along with his friend Maheboobpasha proceeding from Thinthani bridge to

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Guraguntha on the motorcycle bearing registration No.KA36/EF-2911 as a pillion rider. The said motor cycle was ridden by Maheboobpasha with high speed in a rash and negligent manner, due to which the vehicle was met with an accident and the deceased Kalindra sustained severe injuries all over the body and subsequently he succumbed to the injuries. Hence, they filed the claim petition seeking compensation.

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The respondent No.1-owner of the vehicle did not appear and he was placed ex-parte. The respondent No.2–Insurance Company appeared through its counsel and filed the written statement by denying the rash and negligent riding and also contended that the claimants are not entitled for compensation as the deceased was riding the motorcycle and the vehicle was met with an accident due to rash and negligent riding by the rider of the motorcycle and the deceased was sustained injuries due to his own negligence. Therefore, the claimants are not entitled for any compensation in view of Section 147 of

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M.V.Act. It is further contended that the rider of the motorcycle did not have any valid and effective driving license as on the date of the accident. Hence, prayed for dismissal of the appeal.

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Based upon the above pleadings the Tribunal framed the following issues:-

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I. Whether petitioners prove that, the deceased Kalindra S/o: Hanamantraya Nayak died due to actionable rash and negligent act of rider of motorcycle bearing registration No.KA-36/EF2011 in the motor vehicle accident on the date, time and the place as being asserted?

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II. Whether the respondent No.2 proves that, due to violation of policy conditions, insurer is not liable to pay compensation?

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III. Whether the petitioners are entitled for the compensation? If so how much and from whom?

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IV. What order or award?

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To prove the case, the claimant No.1 examined herself as PW.1 and examined one more witness Shrinivas

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as PW.2 and got marked documents as Ex.P.1 to 9. On the other hand, the respondent-Insurance Company examined its official as RW.1 and got examined the Senior Clerk of RTO Office as RW.1 and got marked 11 documents as Exs.R1 to R11.

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On the basis of the material evidence both oral and documentary, the Tribunal, answered issue Nos.1 and 2 in the affirmative, issue No.3 in the partly affirmative and finally the claim petition was partly allowed and ordered that the claimants are entitled for the following compensation as under:-

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Sl. No.	Heads	Compensation Awarded
1.	Loss of income due to dependency	Rs.9,45,000/-
2.	Towards love and affection	Rs.25,000/-
3.	Towards loss of estate	Rs.20,000/-
4.	Towards loss of consortium	Rs.30,000/-
5.	Towards funeral expenses	Rs.15,000/-
	Total	Rs.10,35,000/-

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The Tribunal has fixed the liability on the

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respondent No.1-owner of the motorcycle by exonerating the respondent-Insurance Company. Being aggrieved by the same, the claimants have filed this appeal.

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The learned counsel for the appellants - claimants contended that the Tribunal has committed an error in fastening the liability on the respondent No.1 even though the vehicle was covered with the Insurance Policy which was package policy. Therefore, as per the judgment of the Hon’ble Supreme Court in the case of National

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Insurance Company Ltd. Vs. Swaran Singh and Others, reported in (2004) 3 SCC 297 and in the case of Shamanna vs The Divisional Manager The Oriental Insurance Co. Ltd, and Others, reported in 2018 (9) SCC 650, the Insurance Company is liable to pay compensation and in turn they have to recover the same from the owner of the offending vehicle which is ignored by the Tribunal. Hence, prayed for fastening the liability on the respondent No.2-Insurance Company. Learned counsel

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also contended that the Tribunal has not assessed the income of the deceased as per the accident for the year 2015 and also not added 40% of the assessed income towards loss of future prospects as per the judgment of the Hon’ble Supreme Court in the case of National Insurance Co., Ltd., Vs. Pranay Sethi and others reported in AIR 2017 SC 5157. He also contends that the Tribunal has not awarded proper consortium to the claimants as they are five in number. Hence, prayed for enhancing the compensation by allowing the appeal.

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Per contra, learned counsel for the respondent-

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Insurance Company supports the judgment and award passed by the Tribunal. He admits that the coverage of

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policy to the pillion rider of the motorcycle and it was package policy. However, as per the evidence of RW.2, the rider of the motorcycle did not possess valid and effective

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driving license as on the date of the accident and also contended that the injuries sustained by the deceased

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were non-fit injuria which is not covered for the purpose of

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granting any compensation in view of Section 147 of

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M.V.Act. Hence, prayed for dismissal of the appeal.

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Having heard the arguments and perused the

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records, the points that would arise for our consideration

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are as under:-

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I. Whether the Tribunal is justified in fixing liability on the respondent No.1 by exonerating the respondent No.2-Insurance Company which calls for any interference?

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II. Whether the claimants are entitled for enhancement of compensation? If so to what extent?

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Regarding Point No.1 :-

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On careful reading of the evidence of PW.2 who

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is said to be an eyewitness to the accident and the evidence on record especially FIR, complaint and charge sheet and Motor Vehicle Inspection report which reveals

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that the accident dated 09.04.2015 occurred at 3.30 p.m.

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due to rash and negligent riding by the rider of the motorcycle by one Maheboobpasha and the same was not seriously disputed by respondent No.1 and did not lead any evidence to show that there is no negligence on his part. Considering the evidence of PWs.1 and 2 and Exs.P1 to P8, the Tribunal has rightly held that the accident was occurred due to rash and negligent riding by the rider of the motorcycle due to which the deceased Kalindra sustained injures and died in the accident. However, the Tribunal while fixing the liability has considered the evidence of RWs.1 and 2, wherein the claimants said to be produced Ex.P9, driving license which was controverted by respondent in their evidence and it is examined by RW.2 which clearly goes to show that the alleged driving license produced by the claimants as per Ex.P9 is not a genuine document and a fake document. The Ex.R11 which is produced and marked by respondent-RTO clearly reveals that there is no valid and effective driving license by the rider of the motorcycle Maheboobpasha as on the date of

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the accident in question. Therefore, the Tribunal though rightly held that there is no valid and effective driving license with the rider of the motorcycle. However, the Tribunal has committed an error while fixing the liability and ignored the decision of the Hon’ble Supreme Court in view of the decision of the Hon’ble Supreme Court in Shamanna’s case stated supra, wherein the Hon’ble Supreme Court in Shamanna’s case re-affirmed the judgment rendered by the Hon’ble Supreme Court in Swaran Singh’s case and ordered that the respondentInsurance Company to pay compensation to the claimants and in turn they shall recover the same in case the Insurance Policy is covered for the vehicle in question. The Judgment of the Hon’ble Supreme Court rendered in paragraph Nos.13 and 14 of Shamanna’s case (supra) as under:

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“13. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award

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passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored.

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So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others wherein this Court held that:

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“8….For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.”

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In view of the aforesaid judgment, the Tribunal has committed an error in fastening the liability solely on the respondent No.1 by exonerating the respondent-

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Insurance Company. Hence, the respondent No.2Insurance Company shall satisfy the compensation first and then recover the same from respondent No.1 owner of the vehicle. Accordingly, we answer point No.1.

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Regarding Point No.2 :-

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With regard to the assessment of

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compensation, the Tribunal has considered the income of the deceased at Rs.7,000/- per month. In our opinion, the Tribunal has committed an error in fixing the income at Rs.7,000/- per month, as per the Lok-Adalath chart the Courts are considering a sum of Rs.8,000/- per month in the absence of proof of income for the accident of the year 2015.

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It is also seen from the records that the Tribunal has not considered future prospects of the deceased as per the judgment of the Hon’ble Supreme Court in Pranay Sethi’s case stated supra. Hence, the claimants are also entitled to an addition of 40% of the

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assessed income under the head of loss of future prospects.

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The age of the deceased was 40 years, the appropriate multiplier applicable is 15. The deceased was married person and there are 05 dependents. Therefore, as per the decision of the Hon’ble Supreme Court in the case SARLA VERMA (SMT) & OTHERS VS. DELHI TRANSPORT CORPORATION & ANOTHER reported in

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(2009) 6 SCC 121, when there is no other rebuttal evidence Hence, there is deduction of 1/4^th to the income of the deceased. If Rs.8,000/- + 40% (Rs.3,200/-) (Rs.11,200 - Rs.2,800) = Rs.8,400/- x 12 x 15 = Rs.15,12,000/-. Hence, the claimants are entitled for Rs.15,12,000/- towards the loss of dependency, as against Rs.9,45,000/- awarded by the Tribunal.

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As regards to the consortium, the Tribunal has awarded only Rs.25,000/- towards the loss of love and affection. As per the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance

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Company Limited vs. Nanuram alias Chuhru Ram &

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others reported in 2018 ACJ 2782, the deceased has left 05 dependents. They are entitled for Rs.40,000/- each, which comes to Rs.40,000/- x 5 = Rs.2,00,000/- towards loss of consortium.

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The Tribunal has awarded the compensation towards loss of estate and funeral expenses at Rs.35,000/is just and proper.

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Therefore, the claimants are entitled for the

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enhanced compensation as under:-

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Description	Amount
Loss of dependency	Rs.15,12,000/-
Loss of consortium	Rs.2,00,000/-
Loss of Estate and Funeral expenses	Rs.35,000/-
Total	Rs.17,47,000/-
Award of the Tribunal	Rs.10,35,000/-
Enhanced Compensation	Rs.7,12,000/-

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As per the above finding on point No.1, the respondent No.2-Insurance Company shall satisfy the

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award amount to the claimants and then recover the same

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for the owner of the offending vehicle.

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For the aforesaid reasons, point No.2 answered partly in the affirmative. Accordingly, we proceed to pass the following:

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O R D E R

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I. The appeal is allowed in part.

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II. The judgment and award passed by the Tribunal is modified.

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III. The appellants/claimants are entitled for the total compensation of Rs.17,47,000/- which shall carry interest at the rate of 6% per annum from the date of petition till the date of realization. However, the appellants are not entitled for interest for the delayed period of 187 days in filing the appeal.

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