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2009 DIGILAW 442 (KAR)

New India Assurance Co. Ltd. v. Mahadevamma

2009-06-26

B.SREENIVASE GOWDA

body2009
JUDGMENT :- (This MFA is filed u/s.173(1) of MV Act against the judgment and award dated 21-12-2006 passed in MVC.No.4405/2006 on the file of the XIII Addl. SCJ & Addl. Judge & Member MACT, Court of Small Causes, Metropolitan Area, Bangalore, (SCCH.No.15), awarding compensation of Rs.3,40,000/- with interest at 6% p.a. from the date of petition till date of deposit.) It is a case of death of one Nagaraju in a motor road accident occurred on 19-5-2006. His wife and son are the claimants before the Tribunal and they are in appeal seeking enhancement of compensation. 2. Brief facts of the case are, that on 19-5-2006 at about 6.30 a.m. when the deceased Nagaraju was proceeding in a maxi cab bearing registration No.KA-03-A-0847, the vehicle was driven in a rash and negligent manner by its driver on Anekal – Chandapura Road and it hit against a Banyan tree near Havadadenahalli village. The deceased Nagaraju sustained grievous injuries and he was immediately shifted to Anekal Government Hospital, wherein first aid treatment was given, and thereafter he was referred to Bangalore Hospital and he succumbed to injuries on the way to the hospital. 3. Both the owner of the vehicle and the Insurance Company have filed their separate statement of objections. The Insurance Company in its statement of objections though has denied the case of the claimants, but admitted the insurance, stating that its liability is subject to the terms and conditions of the insurance policy and to the validity of the RTO records, permit, provisions of Motor Vehicles Act and effective valid driving license of the driver of the vehicle involved in the accident. 4. On the basis of the pleadings of the parties, the Tribunal has framed as many as three issues. 5. The claimants, in order to prove their case, have examined the first claimant Mahadevamma as P.W.1, one Prabhakar Reddy as P.W.2 and another witness by name Chandrashekar Shetty as P.W.3 and produced ten documents which are marked as Ex.P-1 to Ex.P-10. The owner did not enter the box. On behalf of the appellant-Insurance Company, its Administrative Officer by name B.R. Ravi Shankar was examined as R.W.1 and produced a copy of the Insurance Policy and vehicle permit which are marked as Ex.R-1 and Ex.R-2 respectively. 6. The owner did not enter the box. On behalf of the appellant-Insurance Company, its Administrative Officer by name B.R. Ravi Shankar was examined as R.W.1 and produced a copy of the Insurance Policy and vehicle permit which are marked as Ex.R-1 and Ex.R-2 respectively. 6. The Tribunal, on appreciation of the oral and documentary evidence, has held that Nagaraju was died in a motor road accident occurred on 19-5-2006, due to the rash and negligent driving of the maxi cab by its driver and thereby the claimants have established the actionable negligence on the part of the driver of the maxi cab and they are entitled to seek compensation. Thereafter, the Tribunal considering the age of the deceased, his salary and other material evidence on record, has awarded a sum of Rs.2,80,000/- under the head of loss of dependency and Rs.60,000/- under the conventional heads. In all, it has awarded a sum of Rs.3,40,000/- with interest at 6% p.a. from the date of petition till the date of deposit. 7. The Insurance Company has challenged the award of the Tribunal in this appeal both on the ground of fastening of the liability against the Insurance Company as bad in law and on the ground that the quantum of compensation awarded by the Tribunal is excessive. 8. Sri. O. Mahesh, learned counsel appearing for the Insurance Company, contends that the liability of the Insurance Company is subject to the terms and conditions of the Insurance policy and permit of the vehicle. He contends that admittedly the vehicle involved in the accident has got contract carriage permit, but it plied as a stage carriage, as per the information furnished to the Police by one Sri. Manjunath and as such, there is violation of terms of the vehicle permit and therefore, the Insurance Company is not liable to pay any compensation. 9. Per contra, Sri. Papireddy, learned counsel appearing for the owner of the vehicle, contends the owner has also filed his detailed statement of objections contending that the vehicle met with an accident due to failure of brake and not, on account of the alleged rash and negligent driving of the vehicle by its driver. However, it was insured with the appellant's-Insurance Company and therefore the Insurance Company is liable to answer the claim of the claimants. However, it was insured with the appellant's-Insurance Company and therefore the Insurance Company is liable to answer the claim of the claimants. He further contends that by using of a vehicle in breach of a permit conditions does not absolve the insurer from its liability to pay the compensation awarded nor such a plea is available to the insurer under section 149(2) of the Motor Vehicles Act, for short "the Act", and in support of his submission, he relied upon the judgment of this Court in the case of United India Insurance Co.Ltd., & Others vs. Chandamma & Others reported in (ILR 2000 KAR 1302) wherein it has been held as under:- "Merely because these vehicles were stated to have been stopped and picked up passengers on the permitted route, presumably in breach of their permit condition, that by itself does not constitute a statutory defence available in sub-section 2(a)(i)(a) of Section 149. In fact, Section 149(2) of the New Act i.e., Act of 1988, corresponds to Section 96(2) of the Old Act i.e., Act of 1939. The same defence grounds as are contained in Section 149(2) of the New Act were existing as the defence grounds under sub-section (2)(b) and (c) of Section 96 of the Old Act. Similar question had arisen for consideration of the Division Bench of this Court in the case of K.V. Thimmegowda vs. Kamalamma and the same had been answered." 10. I am unable to agree with the contention of Sri. O. Mahesh, learned counsel appearing for the appellant, for more than one reason. Firstly, if the vehicle has got a contract carriage and plied as a stage carriage and thereby violated the terms of the vehicle permit, it may be a ground for the authorities under the Act to take steps for cancellation of the permit, but it cannot be a ground for the Insurance Company to absolve it from its liability to pay the compensation to the third party in view of Section 147 and 149 of the Act. Secondly, whether the maxi cab involved in the accident was plied as a stage carriage or not, is not established through the procedure known to law. Secondly, whether the maxi cab involved in the accident was plied as a stage carriage or not, is not established through the procedure known to law. Merely because the FIR contains an information that the vehicle was stopped in between the starting point and the destination and picked up the passengers cannot be construed as an admission on the part of the owner that the vehicle was used as a stage carriage. If the owner has not stepped into the box, the Insurance Company is not precluded from summoning the owner and confronting the FIR to him. But even after the Insurance Company establishing the said fact, it may succeed in establishing that the vehicle was used as a stage carriage and its permit is liable to be cancelled, but it won't absolve the Insurance Company from its liability to pay compensation to the third party in view of the law declared by this Court in the aforesaid case and in view of sections 147 and 149 of the Act. 11. With regard to the quantum of compensation, it has come in the evidence of the claimants that the deceased was aged about 50 years and was drawing a salary of Rs.5,000/- P.M by working as a cook in a hotel under one Prabhakar Reddy-P.W.2. The Tribunal has assessed his income at Rs.3,500/-per month and deducted 1/3rd of it towards personal expenses and by taking 2/3rd of his income amounting the Rs.2,334/-and applying the multiplier of 10, has awarded a sum of Rs.2,80,080/- under the head loss of dependency and it has awarded Rs.15,000/-towards transportation of dead body, funeral and obsequies ceremonies and Rs.15,000/-under the head of loss of consortium, Rs.15,000/- towards loss of love and affection and Rs.15,000/- under the head loss of estate and in all, it has awarded compensation of Rs.3,40,000/-(after rounding off) with interest at 6% p.a. 12. Sri. O. Mahesh submits that in view of the latest judgment of the Hon'ble Supreme Court in Sarala Verma's case, the multiplier for the age group of 60 if 9' and therefore, the compensation awarded under the head loss of dependency is required to be reduced. 13. Sri. O. Mahesh submits that in view of the latest judgment of the Hon'ble Supreme Court in Sarala Verma's case, the multiplier for the age group of 60 if 9' and therefore, the compensation awarded under the head loss of dependency is required to be reduced. 13. Since the Tribunal has assessed the income of the deceased at Rs.3,500/-per month as against Rs.5,000/- stated by the claimants and also supported by the employer of the deceased, I do not think that there is any scope for reducing the compensation awarded under the head loss of dependency just because the multiplier of 10' instead of 9' is applied by the Tribunal. Viewed from any angle, there is no reason to interfere with the judgment and award passed by the Tribunal. 14. Accordingly, the appeal is dismissed and no order as to costs. The amount, in deposit if any is ordered to be transmitted to the Tribunal for payment.