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2013 DIGILAW 802 (KAR)

Lakkamma v. Srikanth

2013-07-16

B.MANOHAR, N.K.PATIL

body2013
JUDGMENT 1. All these appeals arise out of the same accident. All these appeals arise of two judgments and awards, both dated 17th January 2008, passed in MVC Nos.3607/2007 & 3608/2007, by the IV Additional Judge, Member, Motor Accident Claims Tribunal, Bangalore City (SCCH No.6), (for short, Tribunal). 2. MF.A.No.3129/2008 is filed by Smt. Lakkamma and others, claimants in M.V.C.No.3607/2007, on the ground that the compensation of Rs.6,35,912/- awarded by Tribunal as against their claim for Rs.30,00,000/-is inadequate and requires enhancement; M.F.A.No.7535/2008 and M.F.A.No.7536/2008 are filed by the Insurer -the United India Insurance Company Limited in M.V.C.No.3607/2007 and M.V.C.No.3608/2007 respectively, on the ground that the driver of the Lorry bearing Registration No.KA-53/896 did not possess an effective and valid Driving licence as on the date of accident and that there is breach of the terms and conditions of Insurance Policy by the owner of the said vehicle and therefore, the direction issued by the Tribunal to indemnify the award amount in both the claim petitions is liable to be set aside. 3. The facts in brief are that, the claimants in M.F.A.No.3129/2008 (M.V.C.No.3607/2007) are the mother, father, sister and brother of deceased Raju @ Raja. They filed the claim petition under Section 166 of the Motor Vehicles Act, seeking compensation of Rs.30.00 lakhs, contending that, at about 2:15 A.M, on 25-02-2007, when the deceased Raju @ Raja was riding the Motor Cycle bearing Registration No.KA-02/EX-174 from Bangalore towards Channapatna on B.M. Road, near Channapatna Town, Bangalore Rural District, at that time, a Lorry bearing Registration No.KA-53/896, driven by its driver in a rash and negligent manner, at a high speed, so as to endanger human life, came from Mysore side and dashed against the motor cycle of the deceased. Due to the impact, the deceased Raju fell down and sustained grievous injuries all over the body. Immediately he was shifted to Government Hospital, Channapatna and later he succumbed to the injuries while taking treatment. 4. The claimants in M.F.A.No.7536/2008 (M.V.C.No.3608/2007) are the mother, father and brother of deceased Guru @ Gurumurthy. Due to the impact, the deceased Raju fell down and sustained grievous injuries all over the body. Immediately he was shifted to Government Hospital, Channapatna and later he succumbed to the injuries while taking treatment. 4. The claimants in M.F.A.No.7536/2008 (M.V.C.No.3608/2007) are the mother, father and brother of deceased Guru @ Gurumurthy. They filed the claim petition under Section 163-A of the Motor Vehicles Act, seeking compensation of Rs.6.00 lakhs, contending that, at about 2:15 A.M, on 25-02-2007, when the deceased Guru @ Gurumurthy was travelling in the Motor Cycle bearing Registration No.KA-02/EX-174, as a pillion rider, from Bangalore towards Channapatna on B.M. Road, near Channapatna Town, Bangalore Rural District, at that time, a Lorry bearing Registration No.KA-53/896, driven by its driver in a rash and negligent manner, at a high speed, so as to endanger human life, came from Mysore side and dashed against the motor cycle of the deceased. Due to the impact, the deceased Gurumurthy fell down and sustained grievous injuries all over the body and died on the spot. 5. Both the deceased persons were bachelors and the claimants in these two Motor Vehicle Cases are none other than the parents, brother and sister of deceased Raju @ Raja and Guru @ Gurumurthy in the road traffic accident. 6. Both the claim petitions filed by the respective claimants in M.V.C.Nos.3607/2007 and 3608/2007 had come up for consideration before the Tribunal on 17th April, 2007. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petitions in part, by passing two separate judgments, awarding a sum of Rs.6,35,912/- under different heads on account of the death of deceased Raju @ Raja and Rs.4,36,500/-on account of the death of deceased Guru @ Gurumurthy, with 6% interest per annum, from the date of petition till the date of deposit. Being aggrieved by the quantum of compensation of Rs.6,35,912/-awarded by the Tribunal, the claimants in M.V.C.No.3607/2007 have filed M.F.A.No.3129/2008, seeking enhancement of compensation and being aggrieved by the direction issued by the Tribunal to indemnify the award in both M.V.C.Nos.3607/2007 and 3608/2007, the Insurer has filed the two appeals in M.F.A.No.7535/2008 and M.F.A.No.7536/2008, on the ground that the driver of the Lorry bearing Registration No.KA-53/896 did not possess an effective and valid Driving Licence as on the date of accident and hence, they are not liable to indemnify the award. 7. Learned counsel appearing for the claimants in M.F.A.No.3129/2008 (M.V.C.No.3607/2007) vehemently submitted that the Insurer has not taken any contention in their written statement that, the Driver of the Lorry bearing Registration No.KA-53/896 did not possess an effective and valid Driving Licence and that there is violation of the terms and conditions of the policy. Further, he vehemently submitted that, in fact, the driver of the aforesaid Lorry, did possess an effective and valid Driving licence and it was effective as on the date of accident for driving LMV (Non transport). This aspect has been rightly considered by Tribunal, and after due appreciation of the oral and documentary evidence available on file and after recording reasoning at paragraph 13 of its judgment and placing reliance on various judgments of the Apex Court and this Court, has come to the conclusion that, the Insurer is liable to indemnify the award. Hence, interference in the same is not called for. 8. Regarding quantum of compensation awarded by Tribunal, he vehemently submitted that the compensation awarded by Tribunal under all the heads is on the lower side inasmuch as the claimants have filed the income tax returns, out of which, the permissible deduction is only income tax paid by the deceased. Therefore, the Tribunal is not justified in assessing the monthly income of the deceased. Further, the Tribunal erred in awarding only Rs.10,000/-towards conventional heads, when in fact, the claimants are entitled to Rs.45,000/-under the said heads, as per the decision of the Hon'ble Apex Court in Sarla Verma's case ( 2009 ACJ 1298 ). Therefore, he submitted that, the impugned judgment and award passed by Tribunal is liable to be modified, by awarding reasonable compensation. 9. Therefore, he submitted that, the impugned judgment and award passed by Tribunal is liable to be modified, by awarding reasonable compensation. 9. As against this, learned counsel appearing for Insurer in M.F.A.Nos.7535/2008 and 7536/2008 vehemently submitted that the Tribunal has committed a grave error, resulting in serious miscarriage of justice inasmuch as the Tribunal, without considering the specific stand taken by the Insurer in their written statement filed on 3rd/11th October 2007, at paragraph 6 has proceeded to conclude the proceedings. At paragraph 6, it is stated that the driver of the Lorry bearing Registration No.KA-53/896 did not possess any licence as on the date of accident and the owner, by entrusting the vehicle to such a person has violated the terms and conditions of the policy issued and therefore, the Insurer is not liable to pay the compensation to the claimants in both the M.V.Cs. and the claim petitions are liable to be dismissed as against the Insurer. Further, he submitted that as no issues are as such are framed by the Tribunal for consideration as to whether the Driver of the Lorry possessed the effective Driving Licence as on the date of accident and whether there is any breach of the terms and conditions of the Insurance Policy, the impugned judgment and award passed by Tribunal is liable to be set aside at the threshold on these two grounds only. 10. To substantiate the aforesaid submission, he placed reliance on the oral evidence of RW1 and documentary evidence at Ex. R1, DL extract and EX.R2, copy of the policy and drew our specific attention to ink page 62 of the original records available on file. At Sl.No.8 "Validity" column, of Ex.R1, it is specifically stated that, the driver of the offending vehicle possessed Driving Licence (Non Transport) valid from 15-11-1993 to 31-05-2012; DL (Transport) valid from 09-09-1999 to 08-09-2002, RDL No.2295/2002 Renewed from 18-12- 2002 to 17-12-2005 and RDL No.3214/2006-07 renewed from 26-02-2007 to 25-02-2010. From this it is crystal clear that the driver of the said Lorry did not possess the Driving Licence to drive the vehicle from 18- 12-2005 to 25-02-2007. The accident has occurred on 25-02-2007. From this it is crystal clear that the driver of the said Lorry did not possess the Driving Licence to drive the vehicle from 18- 12-2005 to 25-02-2007. The accident has occurred on 25-02-2007. Therefore, he vehemently submitted that, on this ground alone, the direction issued to the Insurer to indemnify the award amount is liable to be set aside and the matter be remanded back to the Tribunal to enable them examine the driver of the said Lorry and also to produce additional oral and documentary evidence, to substantiate the stand taken at para.6 of their written statement. 11. After careful consideration of the submission of the learned counsel appearing for claimants and Insurer, after perusal of the impugned judgment and award passed by Tribunal and after critical evaluation of the original records placed before us, it emerges that, occurrence of accident at about 2:15 A.M. on 25-02- 2007 and resultant death of deceased persons, viz. Raju @ Raja and Guru @ Gurumurthy in the road traffic accident are not in dispute. Further, it is not in dispute that both the deceased persons were bachelors and the claimants are the parents, brother and sister. It is also not in dispute that the deceased persons died in the common accident and the claimants filed their individual claim petitions in M.V.C.Nos.3607/2007 and 3608/2007 respectively and the Tribunal has passed two separate judgments on the same day awarding compensation. 12. However, after critical evaluation of the oral and documentary evidence available on file, including the original records placed before us, it is manifest on the face of the same that, the Tribunal has grossly erred in passing the impugned judgments and awards, resulting in serious miscarriage of justice. It has proceeded to conclude the proceedings, contrary to the relevant documentary evidence available on file. It is significant to note that the Insurer has taken a specific stand in their written statement, which is available in the original records at ink page Nos.10 to 12. It has proceeded to conclude the proceedings, contrary to the relevant documentary evidence available on file. It is significant to note that the Insurer has taken a specific stand in their written statement, which is available in the original records at ink page Nos.10 to 12. At paragraph 6 of the said written statement, they have taken a specific contention that the driver of the Lorry bearing Registration No.KA-53/896 did not possess any licence as on the date of accident and that the owner, by entrusting the vehicle to such a person has violated the terms and conditions of the policy issued and therefore, the Insurer is not liable to pay any compensation to the claimants and the claim petitions are liable to be dismissed as against the Insurer. 13. When the said objection is taken by the Insurer in their written statement, it is surprising to note that, the Tribunal has not framed any issue, as to whether the Driver of the Lorry bearing Registration No.KA-53/896 possessed the effective Driving Licence or as to whether the owner of the offending vehicle has violated any of the terms and conditions of the policy. Without framing necessary issues for consideration, the Tribunal has proceeded to decide the matter, allowing the claim petitions, contrary to the material on record. The same is not justifiable and is liable to be set aside at the threshold, without going into further merits and demerits of the case. Therefore, we are of the view that this matter requires reconsideration afresh by the Tribunal and to decide the same, after affording reasonable opportunity of hearing to the parties concerned and permitting them to adduce additional oral and documentary evidence, and after framing necessary issues for consideration and decide the matter strictly in accordance with the relevant provisions of the Motor Vehicles Act, Rules and Regulations coupled with the relevant Schedule, as applicable to the facts and circumstances of the case. 14. In the light of the discussion made above, the appeal filed by the claimants and the two appeals filed by the Insurer are disposed of. 14. In the light of the discussion made above, the appeal filed by the claimants and the two appeals filed by the Insurer are disposed of. The impugned judgments and awards, both dated 17th January 2008, passed in M.V.C. Nos.3607/2007 & 3608/2007, by the IV Additional Judge, Member, Motor Accident Claims Tribunal, Bangalore City (SCCH No.6), are hereby set aside; The matters stand remanded back to Tribunal for reconsideration and redetermination of compensation afresh and to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to the parties, personally or through their counsel and dispose of the same, as expeditiously as possible, on top priority basis, as the accident is of the year 2007 and the claimants are parents, brother and sister;. Parties are permitted to file necessary application/s, for adducing additional evidence, oral/documentary, to substantiate their respective cases within four weeks from the date of receipt of a copy of this judgment; In case such application/s is/are filed by the learned counsel for the parties, within the time stipulated above, the Tribunal is directed to receive the same and proceed further and dispose of the same as expeditiously as possible, in compliance of the direction given by this Court, as above; The claimants in M.V.C.Nos.3607/2007 and 3608/2007, the owner of the offending Lorry bearing Registration No.KA-53/896 and the Insurer are directed to appear, personally or through their counsel before the jurisdictional Tribunal on 12-08-2013 at 11:00 A.M.,, to enable them to take further dates of hearing, as requested. The amount deposited by the Insurer in M.F.A.No.7535/2008 and M.F.A.No.7536/ 2008 shall be transmitted to the jurisdictional Tribunal, forthwith, if not already transmitted; Upon receipt of such sum from this Court, the Jurisdictional Tribunal shall invest the said sum in any nationalized/Scheduled Bank, till the disposal of both the claim petitions, upon remand; Registry is directed to return the entire original records to the jurisdictional Tribunal, forthwith. Since the matter is remanded back to the Tribunal, I.A.2/2008 filed in M.F.A.No.7535/2008 does not survive for consideration and is accordingly disposed of as having become infructuous.