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2010 DIGILAW 350 (KAR)

Srinivasagowda v. Sannamma

2010-03-18

V.GOPALA GOWDA

body2010
Judgment :- Dr.Bhakthavatsala, J., The owner and driver of the scooter involved in the accident have filed appeal in M.F.A.No.1133/2003 praying to set aside the judgment and award made in M.V.C.No.824/1998 dated 08.11.2002 or in the alternative to declare that the driver had valid driving licence as on the date of accident and to saddle the liability of the owner on the Insurance Company and direct the insurance company to pay the compensation to the claimants. 2. M.F.A.No.5498/2003 is filed by the claimants in MVC No.824/98 under Section 173 (1) of the Motor Vehicles Act, 1988, for enhancement of compensation from Rs.2,20,200/- to Rs.8,55,000/- and direct the Insurance Company to pay the entire compensation to the claimants, by modifying the judgment and award dated 8.11.2002 made in MVC No.824/1998 on the file of Addl. Claims Tribunal/Civil judge (Senior Division), Srirangapatna. 3. Since these two appeals are directed against one and the same judgment and award made in MVC No.824/1998 on the file of Claims Tribunal, heard common arguments and the appeals are disposed of by this common Judgment. 4. The appellants in M.F.A.NO.5498/2003 are hereinafter referred to as ‘the claimants’. The appellants in M.F.A.No.1133/2003 are referred to as ‘the owner’ and ‘the driver’ of the scooter. The vehicle in question has been insured with the Oriental Insurance Company Limited, and hereinafter referred to as ‘the insurer’. 5. The brief facts of the case leading to the filing of the appeals may be stated as under: On 22.08.1993 at about 10.30 a.m., when the deceased Chikkaputtegowda was going on the left side of the road and when he was in front of Government Primary School at T.S.Chatra at Pandavapura Road, the driver of the scooter bearing No.CND-5826 came in a rash and negligent manner and dashed against Chikkaputtegowda from behind and he sustained fatal injuries. He was admitted to K.R.Hospital, Mysore. Later on shifted to NIMHANS Hospital and then to Victoria Hospital, Bangalore, where it was declared that he would not survive. On 15.09.1993 the victim was taken to their house and on the same day he died. The claimants, viz., the wife and three minor children have filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation in all amounting to Rs.8,55,000/- with costs and interest from the owner, the insurer and the driver of the scooter respectively. The claimants, viz., the wife and three minor children have filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation in all amounting to Rs.8,55,000/- with costs and interest from the owner, the insurer and the driver of the scooter respectively. On service of notice in the claim petition, the owner and the driver of the scooter entered appearance through their counsel, but they did not file written statement. The insurer of the scooter filed written statement denying the averments of the claim petition and sought for dismissal of the petition. The Trial Court framed in all three issues. In support of the case of the claimants, the wife of the deceased Chikkaputtegowda got herself examined as P.W.1 besides examining one Rajegowda as P.W.2 and got marked Exs.P-1 to P-6. The insurer has got examined one Putta Nanjaiah, Asst. Administrative officer as R.W.1 and copy of Insurance Policy, extract of the History Sheet for Drivers and driving licence were marked as Exs.D-1 to D-3. The claims Tribunal, after hearing arguments and perusing the evidence and material on record, held that the victim died in the accident due to negligent driving of the scooter by the driver and awarded compensation of Rs.2,20,200/- with costs and interest at the rate of 9% p.a., from the date of petition till realization, in favour of the claimants against the owner and the driver of the scooter holding that they are jointly and severally liable to pay the compensation. The claim petition was dismissed as against the insurer. The claimants are praying for enhancement of compensation as prayed for in the claim petition and to direct the insurer to pay the compensation. 6. The owner and the driver of the scooter in question have filed the appeal in MFA No.1133/2003 contending that death of Chikkaputtegowda was not due to the injuries sustained in the accident and the compensation awarded is exorbitant. It is also contended that the driver of the scooter had valid driving licence to drive HMV and therefore, he was holding valid driving licence to drive the scooter, which was insured and the Insurance Company is liable to pay the entire compensation to the claimants. 7. It is also contended that the driver of the scooter had valid driving licence to drive HMV and therefore, he was holding valid driving licence to drive the scooter, which was insured and the Insurance Company is liable to pay the entire compensation to the claimants. 7. In support of the case of the claimants, learned counsel Sri.H.C.Shivaramu submitted that the Tribunal has awarded meager compensation towards loss of dependency, loss of consortium, loss of estate, funeral expenses, medical expenses, transportation charges and the rate of interest awarded is also on the lower side. Therefore, he submits that compensation awarded by the Tribunal may be enhanced as prayed for in the claim petition. He further urged that the Tribunal erred in absolving the Insurance Company from the liability even though the insurer neither pleaded nor proved the ingredients of Section 149(2) read with Section 149(7) of the Motor Vehicles Act. It is further contended that the Tribunal erred in not making the insurer liable to satisfy the award. 8. Learned Senior Counsel, Sri.S.P.Shankar, appearing for the owner and the driver of the scooter has not urged withy regard to the cause of death of Chikkaputtegowda and quantum of compensation awarded by the Tribunal. What is urged before this Court is with reference to not saddling the liability on the Insurance Company. He vehemently contended that since the driver of the scooter had valid driving licence to drive H.M.V (Heavy Motor Vehicle), he was entitled to drive scooter and therefore, he had valid driving licence to drive scooter and therefore, he had valid driving licence to drive the scooter and there is no breach of terms of the insurance policy and the insurer is liable to indemnify the owner of the scooter in question. In support of the case of the owner of the vehicle in question, he has cited the following decisions: i) ILR 2003 KAR 3511 (UNITED INDIA INSURANCE COMPANY LIMITED v/s. BHARAMAPPA DODDABIRAPPA PUJARI AND ANOTHER) on the point that the rider who had effective driving licence to drive L.M.V as on the date of accident could drive motor cycle and the Insurance Company cannot avoid its liability to pay compensation to a third party. ii) 2005 (1) 704 (PUNJAB & HARYANA) (NATIONAL INSURANCE CO.LTD., v/s. PARVEEN KUMAR AND OTHERS) on the point that Insurance Company cannot be absolved of its liability to pay compensation by simply pleading that the licence granted to the driver being for one class or description, but vehicle involved in accident was different class or description. iii) 2004 ACJ (1) (NATIONAL INSURANCE COMPANY LIMITED v/s. SWARAN SINGH AND OTHERS) on the point that the Insurance Company is liable to satisfy the award in favour of the third party at the first instance and then to recover the award amount from the owner or driver of the vehicle even where the Insurance Company could establish breach of terms of policy on the part of the owner of the vehicle. 9. Sri.Rajagopalan, learned counsel appearing for the insurer, submitted that the claims Tribunal has rightly held that the driver of the scooter had no valid driving licence to drive the vehicle and therefore, insurer was not liable to pay the compensation. He has cited the following decisions: i) 2009 ACJ 581 (NATIONAL INSURANCE CO.LTD., v/s. TULNA DEVI AND OTHERS) on the point that when no evidence to prove that owner had not taken care before the vehicle was given to the driver to drive it or owner was guilty of negligence and failed to exercise reasonable care before the vehicle was given to the driver regarding use of vehicle by a duly licenced driver. Insurance Company is exempted from liability. ii) 2009 ACJ 1426 (BHUWAN SINGH v/s. ORIENTAL INSURANCE CO. LTD., AND ANOTHER) on the point that the driver was holding a learners’ licence which had expired 14 days before the accident, had no valid driving licence and therefore, Insurance Company was not liable to pay compensation to the claimants. iii) 2008 ACJ 1307 (SARDARI AND OTHERS v/s.SUSHIL KUMAR AND OTHERS) on the point that the tractor driver had no licence to drive a tractor and the Insurance Company was exempted from liability. iii) 2008 ACJ 1307 (SARDARI AND OTHERS v/s.SUSHIL KUMAR AND OTHERS) on the point that the tractor driver had no licence to drive a tractor and the Insurance Company was exempted from liability. iv) 2008 ACJ 1928 (ORIENTAL INSURANCE CO.LTD., v/s. ZAHARULNISHA AND OTHERS) on the point that the driver had licence to drive heavy motor vehicle, but he was driving two-wheeler-scooter, had no valid and effective licence and the Insurance Company is not liable as he ws driving a different class of vehicle in violation of Section 10(2) of the Motor Vehicles Act, 1988 and the Insurance Company was directed to satisfy the award and shall have right to recover the amount from owner. v) 2008 ACJ 2855 (UNITED INDIA INSURANCE CO.LTD. V/s. RAKESH KUMAR ARORA AND OTHERS) on the point that 15 years old boy was driving the car at the time of accident, hd no driving licence, the Insurance Company was not liable. vi) 2008 ACJ 2161 (NEW INDIA ASSURANCE CO.LTDE., V/s. ROSHANBEN RAHEMANSHA FAHIR AND ANOTHER) on the point that the driver of offending vehicle had licence to drive three-wheeler who had not driving licence to drive transport vehicle. It was held that he was not possessing valid driving licence and the Insurance Company to satisfy the award and recover the amount from the owner. vii) 2008 ACJ 2654 (RAM BABU TIWARI V/s. UNITED INDIA INSURANCE CO.LTD. AND OTHERS) on the point that driving licence of the driver had expired about three years prior to the accident and it was got renewed after the accident. It was held that the driver of the offending vehicle had no valid driving licence on the date of accident and Insurance Company is not liable to indemnify the insured. viii) 2007 ACJ 1067 (ISHWAR CHANDRA AND OTHERS V/s. ORIENTAL INSURANCE CO.LTD., AND OTHERS) on the point that the licence of the driver of offending vehicle had expired on 27.08.1984 and the licence was got renewed only on 28.04.1995 and as on the date of accident, driver had no valid driving licence and the Insurance Company is not liable to pay compensation to the claimants. ix) 2007 AJ 2816 (ORIENTAL INSURANCE CO. LTD., v/s. SYED IBRAHIM AND OTHERS) on the point that the driver who had licence to drive light motor vehicle was driving heavy goods vehicle at the time of accident. ix) 2007 AJ 2816 (ORIENTAL INSURANCE CO. LTD., v/s. SYED IBRAHIM AND OTHERS) on the point that the driver who had licence to drive light motor vehicle was driving heavy goods vehicle at the time of accident. It was held that the driver had no valid licence and exonerated the Insurance Company. x) 2007 ACJ 1336 (NATIONAL INSURANCE CO. LTD., v/s. KUSUM RAI AND OTHERS) on the point that the driver had licence to drive light motor vehicle, but was driving a jeep which was being plied as a taxi-a commercial vehicle. It was held that the driver did not possess a valid licence to drive commercial vehicle and the Insurance Company was exempted from liability. xi) 2000 ACJ 319 (ASHOK GANGADHAR MARATHA v/s. ORIENTAL INSURANCE CO. LTD.) on the point that the driver possessed a licence to drive light motor vehicle, but he was driving the goods carriage (transport vehicle). The driver who ws holding licence to drive light motor vehicle was driving a transport vehicle. There was no endorsement authorizing the driver to drive transport vehicle. It was held that the driver had a valid licence and the Insurance Company is liable to pay compensation since the vehicle in question would remain a light motor vehicle, s the vehicle was weighing less than 6,000 kilos and not carrying any goods at the time of accident though the vehicle is designed to be used as transport vehicle. 10. In view of the arguments addressed by the learned counsel for the parties, we formulate the following points for our consideration: i) Whether finding recorded by the claims Tribunal that the accident occurred on 22.08.1993 due to rash and negligent driving of the scooter bearing No.CND-5826 by its driver and in that accident, Chikkaputtegowda sustained fatal injuries and died and awarded exorbitant compensation of Rs.2,20,200/- in favour of claimants and as against the owner and the driver of scooter calls for interference? ii) Whether the claimants are entitled for enhancement of compensation as prayed for in the claim petition? iii) Whether the driver of the scooter who was possessing valid driving licence to drive H.M.V on 22.08.1993 can be deemed that he had valid driving licence to drive scooter and there is no violation of Section 3(1) of the Motor Vehicles Act, 1988? iv) Whether the insurer is liable to indemnify the owner of the scooter in question? v) What order? iv) Whether the insurer is liable to indemnify the owner of the scooter in question? v) What order? 11. Our answer to the above points is as under: Point No.1 – in the negative. Point No.2- partly in the affirmative Point Nos.3 and 4 – in the affirmative Point No.5 – as per final order. 12. Point No.1: The case of the claimants is that on 22.08.1993 at about 10.03 a.m., when the deceased was going on the left side of the road, scooter bearing No.CND-5826 driven by the driver (with two pillion-riders) came from behind and dashed against Chikkaputtegowda, as a result of which, the injured sustained fatal injuries and he was admitted to various hospitals. The Medical Officer at Victoria Hospital opined that he would not survive and therefore on 15.9.1993 he was taken to his house at Pandavapura and he died on the same day. The deceased was subjected to postmortem examination on 18.09.1993, Post Mortem report Ex.P-5 reveals bedsores on both hip joints. There was a communited fracture with deformity of both bones on right leg. Cause of death is due to septicemia secondary to leg injuries sustained in road traffic accident. The post mortem report of the deceased is not challenged. Nothing worthwhile is elicited in the cross-examination of PW-1 and 2. The respondents have not adduced evidence to establish that the death was not as a consequence of the injuries sustained in the motor accident. The owner and the drive of the scooter neither filed statement of objections nor entered the witness box to deny the case of the claimants. The claimants have proved that Chikkaputtegowda died on 15.09.1993 as a consequence of the injuries sustained by Chikkaputtegowda in the motor accident that occurred on 22.08.1993. The finding recorded by the claims Tribunal that the accident occurred solely due to rash and negligent driving of the scooter by its rider and in the accident, Chikkaputtegowda sustained fatal injuries and died, does not call for interference. Further, the compensation awarded in a sum of Rs.2,20,000/- cannot be said as exorbitant. Therefore, we answer the Point No.1 in the negative in favour of the claimants and against the owner and the driver of the scooter. 13. Point No.2: It is the case of the claimants that the deceased was 45 years at the time of accident and agriculturist by profession. Therefore, we answer the Point No.1 in the negative in favour of the claimants and against the owner and the driver of the scooter. 13. Point No.2: It is the case of the claimants that the deceased was 45 years at the time of accident and agriculturist by profession. The Tribunal has fixed earning of the deceased at Rs.1,800/- per month and applied multiplier 13 and awarded compensation of Rs.1,87,200/- towards loss of dependency. Keeping in view that the deceased was 45 years old and an agriculturist by profession, he would have earned a sum of Rs.3,000/- per month. If a sum of Rs.1,000/-is deducted towards personal expenses, loss of dependency of the family is Rs.2,000/-. As per the ration laid down in Sarala Verma case ( 2009 ACJ 1298 ) multiplier 14 is for the age group of 41 to 45 years; whereas the tribunal has applied multiplier 13. No doubt, the claimants have not produced medical bills, other vouchers. But it is stated on oath that the victim was given first aid treatment at Pandavapura, thereafter, shifted to Mysore and from there, he was shifted to NIMHANS Hospital at Bangalore and two days later, he was shifted to Victoria Hospital. On 15.9.1993, the Medical Officer at Victoria Hospital told that the victim would not survive. Hence, he was taken to the house and on the very same day, the victim died. Though the claimants have not produced documents, the claimants are entitled for reasonable compensation towards medical expenses, conveyance expenses and incidental and diet charges etc., as under: Rs. i) Loss of Dependency (Rs.2,000/- x 12 x 14) 3,36,000-00 ii) Medical Expenses 15,000-00 iii) Conveyance Charges 10,000-00 iv) Loss of Consortium 20,000-00 v) Loss of Estate 20,000-00 vi) Attendant charges 3,000-00 vii) Funeral expenses 5,000-00 viii) Loss of filial affection 10,000-00 Total 4,19,000-00 Less: Compensation awarded by the Tribunal 2,20,200-00 1,98,800-00 Thus, the claimants are entitled for additional compensation of Rs.1,98,800/-. Accordingly, we answer Point No.2 partly in the affirmative in favour of the claimants. 14. Point No.3: So as to answer Point No.3, we shall make reference to Section 10 of the Motor Vehicles Act, 1988 (in short ‘the Act’. Accordingly, we answer Point No.2 partly in the affirmative in favour of the claimants. 14. Point No.3: So as to answer Point No.3, we shall make reference to Section 10 of the Motor Vehicles Act, 1988 (in short ‘the Act’. According to sub-section (2) of Section 10 of the Act, driving licence shall be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, viz., a) motor cycle without gear; b) motor cycle with gear; c) invalid carriage; d) light motor vehicle; e) transport vehicle; f) road-roller; g) motor vehicle of a specified description. Section 11 of the Act says that any person holding a driving licence to drive any class or description of motor vehicles, who is not for the time being disqualified for holding or obtaining a driving licence to drive any other class or description of the vehicles, may apply to the licensing authority having jurisdiction in the area in which he resides or carries on his business in such form and accompanied by such, documents and with such fees as may be prescribed by the Central government for the addition of such other class or description of the motor vehicles to the licence. 15. In the instant case, the insurer has got examined one Putta Nanjaiah, the Assistant Administrative Officer of the Insurance Company as R.W.1. According to R.W.1 the driver of the scooter was possessing driving licence as per Ex.D-3. He has got marked copy of insurance policy marked as Ex.D-1. The insurance policy was in force from 23.06.1993 to 22.06.1994. The accident occurred on 22.08.1993. Ex.D-2 is the extract of the history of drivers issued by licencing authority, A.R.T.O, Mysore. According to that the driver was born on 21.05.1955 and he was authorized to drive Heavy goods vehicle (HGV). The licence was issued during 1988-89. The driving licence has been renewed from time to time and the same was in force as on the date of accident. 16. A question that occurs to our mind is that a person, who is licensed to drive motor cycle with gear, can he not drive motor cycle without gear? Prudent answer would be in the affirmative. If that is the case, our answer and finding is that the driver of the scooter who was authorized to drive HMV is deemed to had valid driving licence to drive scooter. Prudent answer would be in the affirmative. If that is the case, our answer and finding is that the driver of the scooter who was authorized to drive HMV is deemed to had valid driving licence to drive scooter. Merely because an endorsement has not been made in the driving licence as per Section 11 of the Act, it cannot be said that the driver has violated Section 3 of the Act. Section 3 of the Act says that no person shall drive motor vehicle in any public place unless he holds an effective driving licence to drive the vehicle. In the decision reported in 2008 ACJ 1928 (Oriental Insurance Company Lted. V/S. Jaharulnisha And Others) supra, the driver, who hd licence to drive heavy motor vehicle, was driving two wheeler-scooter held violated Section 10(2) of M V Act. But no reference was made as to whether a person authorized to drive higher capacity vehicle (HMV) was deemed to possess valid licence to drive lower capacity vehicle namely motor cycle or not. But we are of the view that the driver, who has valid licence to driver heavy motor vehicle is deemed to possess valid licence to drive scooter. In our view, none of the decisions cited by the learned Counsel for the insurer can be applied to the case on hand and they re of no avail. Accordingly, we answer Point No.3 in the affirmative. 17. Point No.4: Since We have answered point No.3 in the affirmative holding that the driver of the vehicle in question is deemed to possess valid licence to drive scooter, the liability of the insured shall be saddled on the insurer. Accordingly, We answer the point No.4 also in the affirmative. 18. Point No.5: As per final order. 19. In the result, both the appeals in M F A No.1133/2003 and M F A No.5498/2003 are partly allowed. The claimants are entitled for additional compensation of Rs.1,98,800/-along with costs and interest at the rate of 9% p.a., from the date of petition till realization, holding that the owner, the driver and the insurer of the vehicle in question are jointly and severally liable to pay the compensation. The Oriental Insurance Company is directed to deposit the entire compensation amount awarded by the Claims Tribunal as well as enhanced compensation with the Tribunal, within 30 days from today. The Oriental Insurance Company is directed to deposit the entire compensation amount awarded by the Claims Tribunal as well as enhanced compensation with the Tribunal, within 30 days from today. The compensation amount shall be apportioned among the claimants equally. The share amount of the minor claimants shall be kept in Fixed Deposit until attaining majority. The appellant No.1 shall keep 50% of the compensation amount in Fixed Deposit for a period of five years in any Nationalised Bank, with liberty to draw periodical interest that accrues on the deposit. Accordingly, the impugned judgment and award are modified. Since the owner’s Appeal is partly allowed saddling liability on the Insurance Company, the Office is directed to refund the statutory amount deposited by the appellants in MFA No.1133/2003.