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2019 DIGILAW 1397 (KAR)

Hanamaraddi v. Govindraddi S Shidnal

2019-06-24

B.A.PATIL, BELLUNKE A.S.

body2019
JUDGMENT : B.A. Patil, J. M.F.A.No.101310/2015 has been preferred by the appellants/claimants (for the sake of convenience, hereinafter referred to as "petitioners/claimants") and M.F.A.Crob No.100214/2015 has been preferred by the cross-objector (for the sake of convenience, hereinafter referred to as "cross-objector/insurer") challenging the judgment and award passed by the Additional District and Sessions Judge, Gadag in MVC No.362/2011, dated 10.12.2014. 2. We have heard the learned counsel appearing for the parties. 3. Though these cases are posted for admission, with the consent of learned counsel for parties, they are taken up for final disposal. 4. As per the petitioners/claimants, the facts leading to file a claim petition are that on 03.04.2011 at about 3.00 p.m., the son of petitioners/claimants was proceeding on a motorcycle bearing registration No.KA- 24/J-2578 and when he came near Acanatti cross, the driver of JCB No.KA-26/M-2382 came in a rash and negligent manner and dashed to the motorcycle on which the son of petitioners/claimants was proceeding. Due to the said impact, he sustained grievous injuries and was shifted to government hospital, Nargund, but he died due to the injuries sustained in the alleged accident. It is the contention of the petitioners/claimants that the deceased was working as a driver and was earning Rs.15,000/- per month and the petitioners/claimants have incurred expenses for his funeral and transportation of dead body. On these grounds, they claimed to award compensation. 5. On service of notice, respondent No.1/owner of JCB and Respondent No.2/insurer appeared before the Tribunal and filed their respective objections. Respondent No.1, by denying the contents of the claim petition contended that the JCB vehicle was stopped by side of the road and deceased himself came in a rash and negligent manner, with a pillion rider and dashed to the stopped JCB by losing control over the motorcycle. Therefore, he is not liable to pay any compensation. It is further contended that the said JCB is insured with respondent No.2/insurer and policy was also in force as on the date of the accident and hence, the respondent No.2/insurer is liable to pay the compensation. Respondent No.2/insurer, by denying the contents of the claim petition has contended that the accident took place due to the rash and negligent driving of the rider of motorcycle. Respondent No.2/insurer, by denying the contents of the claim petition has contended that the accident took place due to the rash and negligent driving of the rider of motorcycle. It is further contended that the liability of the insurer is subject to the validity of insurance police and validity of driving license of the driver of the vehicle involved in the accident. On these grounds, prayed to dismiss the petition. On the basis of the said pleadings, the Tribunal framed issues. In order to prove their case, the petitioner No.1 got examined as P.W.1 and got marked nine documents as per Ex.P.1 to Ex.P9. The respondents did not lead any evidence, however got marked Ex.R.1/insurance policy. After considering the arguments, the Tribunal allowed the petition in part and awarded the compensation. Challenging the same, the petitioners/claimants as well as insurer are before this Court. 6. The main grounds urged by the learned counsel for petitioners/claimants is that the compensation, which has been granted by the Tribunal is not adequate and even the compensation awarded under conventional heads is also incorrect. He further submitted that the deceased was aged about 27 years, but the Tribunal, while awarding the compensation, by taking the age of the youngest parent, has awarded the compensation on lower side. He further submitted that the deceased was holding a valid and effective driving license to drive a heavy transport vehicle under such circumstances, the income which has been taken by the Tribunal to assess the compensation is also on the lower side. On these grounds, he prayed to allow the appeal and enhance the compensation. 7. Per contra, the learned counsel appearing for cross-objector/insurer has vehemently argued and submitted that the Trial Court without looking into the material fact that the driver of the JCB was not holding a valid and effective driving license has wrongly fastened the liability on the insurance company. Even the charge-sheet material clearly establishes the fact that the driver of the said JCB was not holding any driving license and has been prosecuted for the offence punishable under Section 3 read with section 181 of the Motor Vehicles Act, 1988 (hereinafter referred to as "M.V.Act" for short). Under these circumstances, the liability ought not to have been fixed on the insurance company. Under these circumstances, the liability ought not to have been fixed on the insurance company. It is further submitted that when the deceased is a bachelor and the dependency of the parents is to be considered, logically it is the age of the youngest parent has to be taken for the purpose of multiplier and accordingly, the Trial Court has come to a right conclusion and has awarded a just compensation. In order to substantiate his arguments, he has relied upon the decisions of the Hon'ble Apex Court in the case of U. P. State Road Transport Corporation and others v. Trilok Chandra and others, (1996) 4 SCC 362 , General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas and others, (1994) AIR SC 1631, Meena and others v. Rani Ammal and another, in Special Leave to Appeal C Nos.34648/2015 dated 15.02.2017, Ramesh Singh and others v. Satbir Singh and others, (2008) AIR SC 1233. 8. It is his further submission that even though in the case of National Insurance Company Limited v. Pranay Sethi and another, (2017) AIR SC 5157 no ratio has been laid down and it is only observed that the age of the deceased has to be taken. It is his further submission that in the case of Trilok Chandra (stated supra) a ratio has been laid down by three bench decision and the same has not been yet over-ruled or distinguished. Under such circumstances, the age of the youngest parents has to be taken for the purpose of awarding the compensation. On these grounds, he prayed to allow the cross-objection and modify the judgment and award passed by the Tribunal. 9. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for parties and perused the records. 10. The accident in question is not in dispute so also the said JCB insured with respondent-insurance Company. It is the contention of the learned counsel for the insurer that the charge-sheet material clearly establishes the fact that the driver of JCB was not holding any driving license to drive the said vehicle on the material point of time and he has been prosecuted under section 3 read with section 181 of the M. V. Act. Hence, the insurer is not liable to pay any compensation. 11. Hence, the insurer is not liable to pay any compensation. 11. As could be seen from the judgment of the Tribunal and pleadings of the insurer, a general submission has been made that the liability of the insurer is subject to validity of policy and validity of license. However the petitioners/claimants have also got produced the criminal court records, wherein it has been clearly mentioned at Ex.P5 that the driver of the JCB was not having any valid and effective license as on the date of the alleged incident and he has been prosecuted in this behalf. Though respondent No.1/owner of JCB appeared before the Tribunal, it is not his contention that the driver of the JCB was holding valid and effective driving license at the time of the alleged accident, as contemplated under the M.V. Act. In order to drive a JCB vehicle, a skilled driving license is very much required as per Section 3 of the M.V.Act, but no such documents have been produced to contend that he was holding a valid and effective driving license. Under the said facts and circumstances, we feel that the Tribunal has ignored this aspect and has ultimately fixed the liability on the insurer. When the driver of the vehicle, involved in the accident, is not holding valid and effective driving license, then the insurance company cannot be held liable to pay the compensation. 12. As could be seen from the records, it is the contention of the petitioners/claimants that the deceased was working as a driver and was earning Rs.15,000/- per month. But in order to substantiate the said fact, they have not produced any documents. The driving license of the deceased, which has been produced by the petitioners/claimants show that the deceased was holding license to drive a heavy transport vehicle. Under such circumstances, it can be inferred that the deceased was driving some heavy transport vehicle. In the absence of any material, with regard to actual income, as the accident in question is of the year 2011, the Tribunal by taking the notional income @ Rs.6,000/- per month, after deducting 50% of the same towards the personal expenses of deceased and after applying multiplier 7' by taking into consideration the age of youngest parents, has awarded the compensation of Rs.2,52,000/- towards loss of dependency. Though it is contended by the learned counsel for the insurer that as per the case of Trilokchandra and others (state supra) the dependency has to be assessed by taking the age of the youngest parent, logically it holds good because of the reason that the compensation is going to be awarded only for their lifetime, but as could be seen from the subsequent decision of the Hon'ble Supreme Court in the case of Pranay Sethi (stated supra) the constitutional bench has observed that while considering the multiplier, the age of the deceased has to be taken into consideration and subsequently it has also been followed in the case of Magma General Insurance Company Limited v. Nanu Ram and others, (2018) ACJ 2782 and even subsequently it is consistently held by the Hon'ble Apex Court that the age of the deceased has to be taken in consideration. Though Trilokchandra and others (stated supra) case has not either been over-ruled or distinguished, but however subsequent development of the law by the Hon'ble Supreme Court indicates that the age of the deceased has to be taken into consideration for the purpose of applying multiplier. In that light we are of the opinion that the age of the deceased has to be taken into consideration and not the age of youngest parents. If the age of the deceased is taken as 27 years, the proper multiplier would be 17'. Though the notional income of Rs.6000/- is applicable for accident cases of the year 2011, but as the deceased was holding a driving license to drive a heavy transport vehicle and as it is a skilled profession, if extra amount of Rs.1000/- per month is added to Rs.6000/-, it would be justifiable since the driver will always be having permanent avocation or job and he will be on wheels all the times, who gets permanent income. In that light, if 50% of the income is deducted towards personal expenses and multiplier 17' is applied, the petitioners/claimants are entitled to a compensation of Rs.7,14,000/- (Rs.7000/2 x 17 x 12 = 7,14,000/-) and if 40% of the same is added towards future prospectus, then under such circumstances, the petitioners/claimants are entitled to Rs.9,99,600/- towards total loss of dependency. 13. As could be seen from the judgment of the Tribunal the compensation awarded under the conventional head is also appears to be on the lower side. 13. As could be seen from the judgment of the Tribunal the compensation awarded under the conventional head is also appears to be on the lower side. In that light, an amount of Rs.80,000/- is awarded towards love and affection and other incidental charges, Rs.30,000/- is awarded towards transportation of dead body and loss of estate and other things. In that light, the petitioners/claimants are entitled to total compensation of Rs.11,09,600/- with interest @ 6% per annum. 14. As discussed by us above, we come to the conclusion that as on the date of the accident, the driver of the JCB was not holding any valid license and the insurance company is not liable to pay any compensation, but however, in view of the decision of the Hon'ble Apex Court it is made clear that the insurance company has to make payment and in the same proceedings recover the same from respondent No.1-owner. 15. In the light of the discussions held by us above, the appeal as well as the cross-objection are allowed in part and the judgment and award passed by the Additional District and Sessions Judge in MVC No.362/2011 dated 10.12.2014 is modified as indicated above. 16. The insurer is directed to deposit the additional compensation amount within a period of four weeks from the date of receipt of certified copy of this order. 17. The amount in deposit made in cross-objection may be transmitted to the jurisdictional Tribunal, forthwith. 18. Registry is directed to draw the decree accordingly.