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Karnataka High Court · body

2019 DIGILAW 1147 (KAR)

Boraiah v. Shambhulingegowda C. P.

2019-06-07

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. 1. Since these appeals arise out of the same impugned judgment, they are heard together and are disposed of by this common order. The appellants in all the four appeals are common who were the petitioners before the Tribunal. 2. Mfa No.8221/2014 is filed by the appellants/claimants in MVC.No.4898/2013 challenging the impugned judgment and award dated 03.11.2014 of the Tribunal not being satisfied with the compensation of Rs.2,87,000/- awarded by the Tribunal for the death of Siddaraju and seeking enhancement of compensation. 3. Mfa No.8222/2014 is filed by the appellants/claimants in MVC.No.4899/2013 challenging the impugned judgment and award dated 03.11.2014 of the Tribunal not being satisfied with the compensation of Rs.2,14,000/- awarded by the Tribunal for the death of Smt. Shanthamma and seeking enhancement of compensation. 4. Mfa No.8223/2014 is filed by the appellants/claimants in MVC.No.4900/2013 challenging the impugned judgment and award dated 03.11.2014 of the Tribunal not being satisfied with the compensation of Rs.1,80,000/- awarded by the Tribunal for the death of Shivaraju and seeking enhancement of compensation. 5. Mfa No.8224/2014 is filed by the appellants/claimants in MVC.No.4901/2013 challenging the impugned judgment and award dated 03.11.2014 of the Tribunal not being satisfied with the compensation of Rs.1,80,000/- awarded by the Tribunal for the death of baby Yogesh and seeking enhancement of compensation. 6. Heard the learned counsel for the appellants as well as the respondents in the respective appeals. 7. The factual matrix of the appeals is that on 07.08.2013 at about 4.00 p.m. when the deceased four in number namely, Siddaraju, his wife Shanthamma and children Shivaraju and baby Yogesh were proceeding in a motor bike bearing Regn.No.KA-01-EF- 2025 on Nayandahalli Ring Road Junction on Bangalore-Mysore Road, a Swaraj Mazda bearing Reg.No.KA-01-EF-2025 had come in a rash and negligent manner and dashed the said bike, as a result of which the bike moved further and dashed to a Maruthi Omni car. As a result, all of them fell down from the bike and the said offending Swaraj Mazda ran over the four of them and caused their death. The claimants/appellants in these appeals being the parents, parents-in-law and grandparents of the four deceased, filed four claim petitions before the Tribunal seeking compensation for the death of four members of their family. The petitions were clubbed together and the Tribunal had passed a common judgment. The claimants/appellants in these appeals being the parents, parents-in-law and grandparents of the four deceased, filed four claim petitions before the Tribunal seeking compensation for the death of four members of their family. The petitions were clubbed together and the Tribunal had passed a common judgment. It is this judgment which is under challenge in the present appeals questioning the quantum of compensation awarded in all the appeals seeking enhancement of compensation, as well as the liability fastened on the owner of the offending vehicle. 8. Learned counsel for the appellants contends that though the deceased Siddaraju was doing the business of flower decoration and was earning Rs.18,000/- per month, the Tribunal erred in taking his income at Rs.6,000/- per month in order to arrive at the compensation towards 'Loss of dependency'. It is the further contention of the learned counsel that the Tribunal in respect of all the four cases, has awarded very meager compensation under all the heads and hence, contends that the compensation granted in respect of all the four petitions be enhanced suitably. Learned counsel for the appellants further contends that the Tribunal erred in absolving the second respondent - insurer of its liability on the ground that driver of the vehicle involved in the accident had no valid and effective driving license i.e., he had driving license to drive LMV but did not possess a licence to drive a Medium Goods Vehicle (MGV). This finding of the Tribunal is contrary to law declared by the Hon'ble Apex Court. He further contends that the Tribunal ought to have directed the second respondent - Insurance company at the first instance to pay compensation awarded to the claimants/appellants and thereafter should have given liberty to the insurer to recover the compensation so paid from the insuredowner. This settled principle of law is applied by the Supreme Court in the case of PAPPU and Others. Vs. VINOD KUMAR LAMHA AND ANR., (2018) AIR SC 592. The Tribunal has misread these decisions and held that the owner of the vehicle alone was liable to pay the compensation. In support of his contention learned counsel for the appellants has relied on a decision of the Apex Court in the case of MUKUND DEWANGAN VS. Vs. VINOD KUMAR LAMHA AND ANR., (2018) AIR SC 592. The Tribunal has misread these decisions and held that the owner of the vehicle alone was liable to pay the compensation. In support of his contention learned counsel for the appellants has relied on a decision of the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 wherein it is held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability and the MACT could not have let the insurer go free even in the absence of transport endorsement on the driving license of the driver of the offending vehicle. Hence, the learned counsel contends that these appeals be allowed and the Insurance Company be directed to pay the compensation awarded by the Tribunal in respect of all these appeals, with liberty to recover the same from the owner of the offending vehicle. 9. Learned counsel for the second respondent insurer contends that the policy condition is violated by the owner and the liability of insurer does not arise and the Tribunal has rightly fastened the liability on the owner of the vehicle. Therefore, he contends that the same does not call for any interference of the judgment and award passed by the Court below. Moreover, he contends that the appellants being the parents of deceased Siddaraju have one more son to look after them and hence the Tribunal considering all these aspects, has granted just and fair compensation in respect of the death of four of their family members and hence the judgment passed by the Tribunal does not call for interference, particularly in respect of enhancement of compensation is concerned. 10. Having heard the learned counsel for the parties and having analyzed the material on record, I am of the opinion that as contended by the learned counsel for the Insurance Company, the Tribunal taking into consideration the fact that the appellants have another son to take care of them and having regard to the fact that the deceased Siddaraju was not the only son of the appellants, has arrived at just and fair compensation in respect of each of the appellants. Hence, I find that there is no necessity for any enhancement of compensation in respect of any of these four appeals as claimed by the appellants. Hence, I find that there is no necessity for any enhancement of compensation in respect of any of these four appeals as claimed by the appellants. However, as far as the liability aspect is concerned, the learned counsel for the appellants is justified in contending that the Tribunal erred in absolving the second respondent - insurer of its liability on the ground that driver of the vehicle involved in the accident had no valid and effective driving license i.e., he had driving license to drive LMV but did not possess a licence to drive a Medium Goods Vehicle (MGV). The said question is no longer res integra, in view of the judgment of the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., (2017) 14 SCC 663 wherein Hon'ble Apex Court has answered the question against the insurer and in favour of the claimant holding that the insurer cannot avoid liability only on the ground of absence of Transport Endorsement. Hence, I am of the opinion that the Insurance Company should be directed to pay the compensation awarded at the first instance. In view of the further decision of the Apex Court in the case of PAPPU and Others. Vs. VINOD KUMAR LAMHA AND ANR., (2018) AIR SC 592, the Insurance Company would have to first pay the compensation awarded by the Tribunal to the appellants and then recover it from the owner of the offending vehicle. Accordingly, I proceed to pass the following: ORDER MFA Nos.8221/2014, 8222/2014, 8223/2014 and 8224/2014 filed by the appellants/claimants are hereby allowed in part. The impugned judgment and award dated 03.11.2014 of the Small Causes & MACT, Bangalore (SCCH-9) passed in MVC Nos.4898/2013, 4899/2013, 4900/2013 and 4901/2013 stands modified. The second respondent - M/s. Reliance General Insurance Co. Ltd. is hereby directed to pay the compensation awarded by the Tribunal in respect of each of these appeals to the appellants/claimants, at the first instance. However, liberty is reserved to the Insurance Company to recover the same from the owner of the offending vehicle. M/s. Reliance General Insurance Co. Ltd. is hereby directed to deposit the compensation amount awarded by the Tribunal in respect of MVC.Nos.4898/2013, 4899/2013, 4900/2013 and 4901/2013 along with interest at the rate of 6% per annum, before the Tribunal, within a period of four weeks from the date of receipt of a copy of this order. M/s. Reliance General Insurance Co. Ltd. is hereby directed to deposit the compensation amount awarded by the Tribunal in respect of MVC.Nos.4898/2013, 4899/2013, 4900/2013 and 4901/2013 along with interest at the rate of 6% per annum, before the Tribunal, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the same shall be disbursed to the appellants in terms of the award, on proper identification. Registry to return the LCR to the concerned Tribunal forthwith. Office to draw the decree accordingly.