Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 747 (KAR)

B. S. Subbegowda v. P. P. Pramod

2021-07-09

H.P.SANDESH

body2021
JUDGMENT : H.P. SANDESH, J. 1. This appeal is filed by the appellants/claimants challenging the judgment and award dated 06.07.2013 passed in M.V.C. No. 8269/2011 on the file of the Motor Accident Claims Tribunal Court of Small Causes at Bengaluru (the Tribunal for short) questioning the quantum of compensation, apportioning 50% negligence on the driver of both the vehicles and fastening the liability on the owner of one of the offending vehicle. 2. The parties are referred to as per their original rankings before the Tribunal to avoid the confusion and for the convenience of the Court. 3. The factual matrix of the case is that on 30.07.2009, the deceased B.S. Vijaya Kumar was travelling as an inmate of Tata Sumo bearing registration No. KA-05: C-123 on Mysuru-Bengaluru road, near Indoorpalya (Bidadi), the driver of Lorry bearing registration No. KA-05: B-8596 drove the same at high speed in a rash and negligent manner and in the process of overtaking Tipper Lorry bearing registration No. KA-42: 1291 came to the extreme right and dashed the Tata Sumo as a result of which B.S.Vijaya Kumar along with 8 others sustained grievous injuries and succumbed to the same on the spot. 4. The Tribunal, after considering the material on record, came to the conclusion that both the vehicles had negligence to the extent of 50% and no negligence on the part of the driver of the Tata sumo. Hence, apportioned 50% negligence each on both the vehicles. 5. The claimants in order to substantiate their claim examined claimant No. 3 as P.W.1 and examined one more witness as P.W.2 got marked the documents at Exs.P1 to 22. On the other hand, the respondents have examined two witnesses as RWs.1 and 2 and got marked the documents as Exs.R1 and R2. 6. The Tribunal, after considering both oral and documentary evidence available on record, allowed the claim petition of the petitioners in part granting compensation of Rs.13,03,200/- with 6% interest per annum from the date of petition till the date of deposit. Being aggrieved by the Judgment and Award of the Tribunal, the present appeal is filed by the claimants. 7. 6. The Tribunal, after considering both oral and documentary evidence available on record, allowed the claim petition of the petitioners in part granting compensation of Rs.13,03,200/- with 6% interest per annum from the date of petition till the date of deposit. Being aggrieved by the Judgment and Award of the Tribunal, the present appeal is filed by the claimants. 7. The main contentions urged in this appeal before this Court are that the Insurer has to satisfy such violation or infringement on the part of the insured was willful so as to absolve itself from the liability but in the instant case there is no evidence adduced by the 4th respondent Insurance Company to prove that insured was guilty of an infringement or violation of a promise. The Tribunal has failed to appreciate the law laid down by the Apex Court in the case of Sohan Lal Passi v. P. Sesh Reddy, (1996) ACJ 1044 (SC). 8. The Tribunal has failed to appreciate the fact that the Motor Vehicles Act is a beneficial statute enacted for the welfare of the victims of accident. If the liability is fastened against the owner as against the insurer as it is done in the instant case the main objective of the beneficial statute goes unfulfilled. The Tribunal committed an error in not appreciating the law laid down by the Apex Court in the case of S Iyyappan v. United India Insurance Company Ltd, (2013) 3 SCC(Cri) 11, wherein, it is held that irrespective of the fact that the driver of the vehicle not possessing valid licence as on the date of accident, the liability has to be fastened against the insurer and the insurer is at liberty to get indemnified in accordance with law. The Tribunal has failed to appreciate the fact that the 4th respondent but for contending in its written statement that the driver of the Tipper Lorry was not possessing valid license as on the date of accident has not produced any evidence in support of its contention. 9. The other ground urged by the learned counsel for the appellants is that the deceased was aged 27 years at the time of death and he was drawing a salary of Rs.11,800/- per month. The Tribunal has committed an error in not considering the educational qualification of the deceased and only taken 50% of future prospects. 9. The other ground urged by the learned counsel for the appellants is that the deceased was aged 27 years at the time of death and he was drawing a salary of Rs.11,800/- per month. The Tribunal has committed an error in not considering the educational qualification of the deceased and only taken 50% of future prospects. The other contention is that the age of the mother was taken while calculating loss of dependency . Hence, it requires an interference of this Court. 10. The learned counsel for the appellants would vehemently contend that the accident was occurred due to negligence on the part of the Lorry, who made an attempt to overtake the Tipper Lorry, which was proceeding in the same direction. In the circumstances, ought to have apportioned the negligence of 75% against the Lorry and 25% against the Tipper Lorry and the same has not been done. 11. The learned counsel for the appellants in support of his arguments would vehemently contend that the Apex Court in the case of Khenyei v. New India Assurance Company Limited and others, (2015) 9 SCC 273 , when the accident is on account of composite negligence Joint tortfeasors Liability Joint and several nature of (1) Apportionment of, nor, (2) determination of inter se liability, nor, (3) impleadment of all joint tortfeasors, held, required in case of joint and several liability Entire compensation can be awarded against sole impleaded tortfeasor Inter se liability of joint tortfeasors is to be worked out independently. 12. Per contra, learned counsel appearing for respondent No. 4/Insurance Company would vehemently contend that the Tribunal considered the material on record and rightly came to the conclusion that the negligence to the extent of 50% each and the said finding cannot be disturbed. Further, the learned counsel would contend that license has not been challenged and the Tribunal has also considered the sketch and rightly fastened the liability on the owner and fastening the liability against respondent No. 4 does not arise. The learned counsel also would submit that Pappu and others v. Vinod Kumar Lamba and another, (2018) 3 SCC 208 , case is not applicable and he was not having any license at all and no pay and recovery. The learned counsel would submit that the Tribunal has rightly assessed the negligence and it does not require any interference of this Court. 13. The learned counsel would submit that the Tribunal has rightly assessed the negligence and it does not require any interference of this Court. 13. The learned counsel for respondent No. 6/Insurance Company would submit that the Tribunal rightly came to the conclusion that no negligence on the part of the driver of the Tata Sumo. 14. Having heard the arguments of learned counsel for the appellants and learned counsel for respondent No. 2/Insurance Company, learned counsel for respondent No. 4/Insurance Company and learned counsel for respondent No. 6/Insurance Company and on perusal of the material available on record, the points that arise for consideration of this Court are: (i) Whether the Tribunal has committed an error in fastening the liability on the owner when the vehicle was insured and whether it is a case for order for pay and recovery as against respondent No. 4? (ii) Whether the Tribunal committed an error in apportioning the negligence of 50% each and it requires modification? (iii) Whether the Tribunal has committed an error in taking the age of the deceased mother and committed an error in taking the multiplier considering the age of the mother? (iv) What order? Point No. (i): 15. Having perused the material on record, it is not in dispute that the police have filed the charge sheet against the owner of the tipper lorry that the driver was not possessive of the driving license and the charge sheet has been filed against the drivers of both the vehicles, the same has been discussed by the Tribunal in paragraph No. 11 of the Judgment and also observed that the owner of the Tipper Lorry was prosecuted for allowing the persons to drive the same, who have no driving license. Hence, came to the conclusion that respondent No. 3 has violated the policy conditions. It is not in dispute that the vehicle is covered with policy. In the case on hand, the claimants are the legal heirs of third party, who were proceeding in the Tata Sumo. 16. The judgment of the Apex Court in the case of New India Assurance Company Limited v. Kusum and others with United India Insurance Company Limited v. Darshan Singh and others, (2009) 8 SCC 377 , discussing Sections 147, 149(2)(a)(ii), 168 and 169 - Primary liability to pay held to be of driver not possessing valid driving licence and owner of the vehicle. The Apex Court held that the Insurance Company is directed to pay the amount, faces immense difficulties in executing a decree and further held that executing courts directed to proceed with the execution and Insurer is not required to file a civil suit for recovery of the amount. 17. The judgment of the Apex Court in the case of Oriental Insurance Company Limited v. Angad Kol and others, (2009) 11 SCC 356 , held that, if any breach of a condition of the insurance policy Effect of Valid driving licence not held by driver If the insurer could recover from the person responsible for breach of the condition. The vehicle being driven by a person not having a valid driving license, held that, appellant could recover amount paid to claimants from driver and owner of the vehicle. 18. The judgment of the Apex Court in the case of United India Insurance Co. Ltd., v. Lehru and others, (2003) 3 SCC 338 , even gone to the extent of even the driving license is a fake driving license if the insurer has not established that the owner had knowledge, ordered to pay and recover. 19. The Apex Court in Pappu s case (supra), held that, Insurer taking plea that driver of offending truck had no valid license, Insurance Company is directed to pay award amount to the claimant in the first instance and in turn, recover the same from the owner of the vehicle. 20. The Apex Court also in Khenyei s case (supra), held that the order can be made against sole impleaded tortfeasor. But in the case on hand, the claimants have filed the claim petition against all the tortfeasors and also they are represented and contested the matter and also apportioned the liability against each of them and in view of the representation made by respondent Nos.2 and 4, the question of awarding the entire compensation against the sole tort feasor does not arise. 21. In view of the judgments referred supra, the Tribunal has committed an error in exonerating the Insurer of the Tipper Lorry and committed an error in directing the owner to pay the compensation and ought to have ordered for pay and recovery. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the same from the insured. I have already pointed out that the policy is in force. Under the circumstances, the Insurer of the Tipper Lorry to pay the compensation and recover the same from the insured. Hence, I answered point No. (i), accordingly. Point No. (ii): 22. With regard to apportionment of negligence, in the case on hand, it has to be noted that except the claimants none have questioned the negligence and the Tribunal after considering both oral and documentary evidence placed on record including the sketch and the evidence available on record came to the conclusion that the negligence is on the part of both the vehicles is 50% each other. It is also important to note that the claimants, who have been examined before the Tribunal only the legal heirs of the deceased. No doubt, the claimant examined another witness P.W.2 before the Tribunal and he was proceeding behind the Tata Sumo and in his evidence he categorically says that the Lorry crossed the median and dashed against the Tata Sumo. He categorically says that the accident was occurred on account of negligence on the part of the driver of the Lorry and he has not spoken anything about the manner of the accident taken place between the Lorry and the Tipper and the fact that both the Lorry and Tipper colluding with each other is not in dispute. But in the cross-examination, he categorically admits that there is a road median and he admits that in between the two vehicles, the accident was taken place and as a result lorry came crossing the road divider. Hence, he has not witnessed with regard to the collusion between the two vehicles i.e., Lorry and Tipper. 23. The other witness, who has been examined as R.W.1, who is an Administration Officer and not an eyewitness. R.W.2 is also a Legal Manger of 4th respondent/Insurance Company and only the available eyewitness to the incident is P.W.2. I have already pointed out that an accident was taken place between the Lorry and the Tipper has not been explained. The police have filed the charge sheet against both the vehicles. 24. On perusal of Ex.P4 IMV report, it is clear that both the Lorry and Tipper were damaged and Ex.P5 Mahazar discloses the manner of the accident. I have already pointed out that an accident was taken place between the Lorry and the Tipper has not been explained. The police have filed the charge sheet against both the vehicles. 24. On perusal of Ex.P4 IMV report, it is clear that both the Lorry and Tipper were damaged and Ex.P5 Mahazar discloses the manner of the accident. Ex.P6 sketch also discloses the place of accident and it clearly depicts that there was collusion between the two vehicles i.e., Lorry and Tipper and thereafter the Lorry crossed the road divider and dashed against the Tata Sumo in which the deceased was travelling. The Tribunal also considered the material available on record and rightly came to the conclusion that the accident was on account of the negligence on the part of both the drivers of the Lorry and Tipper and apportioned the negligence 50% each. The very contention of the learned counsel for the appellants is that the driver of the lorry will be the architect of the accident cannot be accepted in the absence of any cogent evidence before the Tribunal. The fact that the tipper also fell on the ditch is also not disputed. Hence, I do not find any error in fastening 50% negligence on both the vehicles. Hence, I answered point No. (ii) as negative. Point No. (iii): 25. Now coming to the quantum of compensation is concerned, it is not in dispute that the deceased was working as Executive HR and drawing salary of Rs.11,800/- per month. The Tribunal has also taken 50% of the income and deducted 1/3rd but committed an error in applying the relevant multiplier taking the age of the mother of the deceased. Hence, the judgment and award of the Tribunal requires to be modified. The date of birth of the deceased was 14.05.1982 as per the SSLC., certificate Ex.P13. In the post-mortem report, it was mentioned as 27 years. Hence, it is clear that the deceased was aged about 27 years. Having taken the income of the deceased as Rs.11,800/- per month, 50% is to be added towards future prospects which comes to Rs.5,900/-. After adding the future prospects, the monthly salary of the deceased would be Rs.17,700/- per month. Since, the claimants are three in number, 1/3rd is to be deducted from Rs.17,700/- which comes to Rs.11,800/- (17,700-5,900). The relevant multiplier applicable to the case on hand is 17. After adding the future prospects, the monthly salary of the deceased would be Rs.17,700/- per month. Since, the claimants are three in number, 1/3rd is to be deducted from Rs.17,700/- which comes to Rs.11,800/- (17,700-5,900). The relevant multiplier applicable to the case on hand is 17. Taking the income of the deceased at Rs.11,800/- and applying the relevant multiplier 17, the loss of dependency comes to Rs.24,07,200/- (11,800x12x17). 26. The claimants are also entitled for an amount of Rs.70,000/- towards conventional heads in view of the principles laid down in National Insurance Company Limited v. Pranay Sethi and Others, (2017) 16 SCC 680 . The Apex has also observed that after expiry of every three years from the date of that judgment, 10% is to be added to Rs.70,000/- which comes to Rs.7,000/-. Hence, the claimants are entitled for Rs.77,000/- towards conventional heads. 27. In the circumstances, the claimants are entitled for compensation of Rs.24,84,200/- as against Rs.13,03,200/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till its deposit. 28. Xxx xxx xxx Point No. (iv): 29. In view of the discussions made above, I pass the following: ORDER: (i) The appeal is allowed in part. (ii) The judgment and award dated 06.07.2013 passed in M.V.C.No. 8269/2011 on the file of the Motor Accident Claims Tribunal Court of Small Causes at Bengaluru, is modified granting compensation of Rs.24,84,200/- as against Rs.13,03,200/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till its deposit. (iii) The respondent No. 4 is directed to pay and recover the compensation amount from the insured. (iv) Respondent Nos.2 and 4-Insurance Company are directed to pay the compensation equally i.e., 50% each with interest within six weeks from today. (v) The Registry is directed to send the records to the concerned Tribunal, forthwith.