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Karnataka High Court · body

2014 DIGILAW 60 (KAR)

Sundaramma v. M. P. Manjegowda

2014-01-20

H.G.RAMESH

body2014
JUDGMENT 1. This appeal is by the claimants seeking enhancement of compensation against the award passed by the Fast Track Court, Channarayapatna in MVC No.77/2011 dated 01.03.2011 and also challenging the finding of Tribunal with respect to dismissal of case against the Insurance Company of auto rickshaw – respondent No.4 as not liable. 2. The brief facts of the case are as follows: "On 16.04.2008 around 3.00 p.m. when the deceased Narasimhegowda @ Chandru was returning to his village from Channarayapatna in an auto rickshaw bearing registration No.KA-18-7853 near Mattanavile, he met with an accident due to the negligence on the part of driver of the canter lorry bearing registration No.KA-13-A-2175, which came from the opposite direction and dashed against the auto rickshaw, due to which, Narasimhegowda sustained grievous injuries. He was treated at Adi Chunchanagiri Hospital, and later he succumbed to the injuries. The claimants claim that the deceased was earning Rs.8,000/- per month from agriculture. They filed the claim petition against the owner of the insurer of lorry as well as owner of the insurer of auto rickshaw in question. The matter was contested and the Tribunal looking to the oral as well as documentary evidence, held that the accident was due to the negligence on the part of driver of both the lorry and auto rickshaw and there is composite negligence on the part of driver of both vehicles in the ratio of 50:50 and awarded compensation of Rs.1,69,500/-. Being not satisfied with the quantum of compensation awarded and also being aggrieved by the findings of Tribunal with regard to absolving the liability of the Insurance Company of auto rickshaw in question, the claimants are before this Court. The owner of auto rickshaw is also made party in this appeal." 3. Heard. 4. Learned Counsel appearing for the claimants relying on the decision of Apex Court reported in 2013 ACJ 1944 (S. Iyappan Vs United India Insurance Co., Ltd., and another), submitted that Insurance Company is also liable at the first instance and it can proceed to recover from the owner of vehicle, if it is found that there is any violation of the policy condition. 5. 5. In Iyappan’s case, a similar situation arise as to whether the Insurance Company can disown its liability on the ground that driver although duly licenced of a light motor vehicle, but there was no endorsement in the licence to drive the light motor vehicle used as commercial vehicle, for this the Apex Court held that Insurance Company is liable, however, it may proceed to recover the amount from the owner for violation of the policy condition. 6. In the case on hand as to the liability of Insurance Company of auto rickshaw in question, the driver of auto rickshaw was having only non transport vehicle licence and not to drive transport vehicle. In the instant case, the capacity of driver to drive the vehicle is not in dispute, except there is breach of condition that he was driving the transport vehicle, though he was having commercial vehicle permission. Except minor violation of policy condition, in my opinion, the driver would not have been absolved from driving such transport vehicle. Even otherwise, this is a matter between the owner and the Insurance Company, whether there is any breach of policy condition so as to absolve itself and to disown liability and to claim reimbursement from the owner of vehicle. 7. Heard the learned Counsel for appellants on the quantum of compensation awarded. It appears as per the postmortem report, the age of deceased is 55 years and the Tribunal applying the multiplier of ‘9’ instead of ‘11’ and the income at Rs.1,500/- per month, after deducting 1/4th towards personal expenses, awarded the compensation. 8. Looking to the facts and circumstances of the case, the claimants are entitled for another sum of Rs.20,000/- over and above in addition to the compensation awarded by the Tribunal. 9. Accordingly, the appeal is allowed in part. The claimants are entitled to the enhanced compensation of Rs.20,000/- in addition to the compensation awarded by the Tribunal with interest @ 6% per annum from the date of petition till deposit. "The findings given by the Tribunal with regard to absolving the liability of the insurer of the auto rickshaw in question is hereby set aside. If there is any breach of condition by the owner of auto rickshaw, the Insurance Company is at liberty to proceed against the owner to recover the amount if so permissible, in accordance with law. "The findings given by the Tribunal with regard to absolving the liability of the insurer of the auto rickshaw in question is hereby set aside. If there is any breach of condition by the owner of auto rickshaw, the Insurance Company is at liberty to proceed against the owner to recover the amount if so permissible, in accordance with law. However, so far as payment of compensation is concerned, as the Tribunal held that the accident occurred due to the negligence of driver of both the vehicles in the ratio of 50:50, the insurer and owner of both the vehicles in question are liable to pay the compensation as a matter of joint several liability. The insurer to deposit the amount within three months for the enhanced amount."