Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 658 (KAR)

Rajamma v. Manager, United India Insurance Co.

2022-05-24

H.T.NARENDRA PRASAD

body2022
JUDGMENT H.T. Narendra Prasad, J. - This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants being aggrieved by the judgment dated 24.10.2017 passed by the Motor Accident Claims Tribunal, Chikkamagaluru in MVC No. 540/2014. 2. Facts giving rise to the filing of the appeal briefly stated are that on 13.05.2014 at about 10.45 a.m. the deceased Srinivas was proceeding on TVS XL motorcycle bearing registration No. KA-01/ED-9204 along with a pillion rider near Vishwanathapura, Koppa Taluk. At that time, a Tata 407 Van bearing registration No. KA-19/6624 which was being driven in a rash and negligent manner, dashed against the deceased. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on the way to the hospital. 3. The claimants filed a petition under Section 166 of the Act seeking compensation for the death of the deceased along with interest. 4. On service of summons, the respondent No. 2 appeared through counsel and filed written statement in which the averments made in the petition were denied. The age, occupation and income of the deceased are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the motorcycle by the deceased himself. The driver of the offending vehicle did not possess valid driving licence as on the date of the accident. It was further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimants is exorbitant. Hence, he sought for dismissal of the petition. The respondent No. 1 did not appear before the Tribunal inspite of service of notice and hence was placed ex-parte. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No. 2 as PW-1 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P11. On behalf of respondents, two witnesses were examined as RW-1 and RW-2 and got exhibited documents namely Ex.R1 to Ex.R4. The claimants, in order to prove their case, examined claimant No. 2 as PW-1 and another witness as PW-2 and got exhibited documents namely Ex.P1 to Ex.P11. On behalf of respondents, two witnesses were examined as RW-1 and RW-2 and got exhibited documents namely Ex.R1 to Ex.R4. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the deceased sustained injuries and succumbed to the injuries. The Tribunal further held that the claimants are entitled to a compensation of Rs. 3,55,000/- along with interest at the rate of 6% p.a. and since the driver of the offending vehicle was not holding a valid and effective driving licence to drive the said vehicle, directed the owner of the offending vehicle to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed. 6. Sri H.C. Sundaresh, the learned counsel for the claimants has raised the following contentions: Firstly, the claimants claim that the deceased was aged about 62 years at the time of the accident and he was earning Rs. 12,000/- per month. But the Tribunal is not justified in taking the monthly income of the deceased as only Rs. 5,000/-. Secondly, as per the judgment of the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. v. Nanu Ram, 2018 ACJ 2782 , each of the claimants are entitled for compensation of Rs. 40,000/- under the head of 'loss of love and affection and consortium'. Thirdly, the compensation awarded by the Tribunal under the conventional heads is on the lower side. Fourthly, in respect of liability is concerned, as on the date of the accident the driver of the offending vehicle was having valid and effective driving licence to drive LMV (non-transport), but he was driving the transport vehicle. The Hon'ble Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in, (2017) 14 SCC 663 , has held that the licence to drive LMV (non-transport) includes licence to drive LMV transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road roller, the unladen weight of any of which, does not exceed 7500 kgs. In the case on hand, the unladen weight of the vehicle involved in the accident is less than 7,500 kgs. In view of the above, the driver of the offending vehicle was holding a valid and effective driving licence to drive the said vehicle. But the Tribunal has erred in fastening liability on the owner of the offending vehicle. Hence, he prays for allowing the appeal. 7. On the other hand, Sri S. Krishna Kishore, the learned counsel for the Insurance Company has raised the following counter-contentions: Firstly, even though the claimants claim that the deceased was earning Rs. 12,000/- per month, the same is not established by the claimants by producing documents. Therefore, the Tribunal has rightly assessed the income of the deceased notionally. Secondly, the compensation awarded by the Tribunal under the heads 'loss of estate' and 'funeral expenses' is on the higher side contrary to the law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. v. Pranay Sethi And Others reported in AIR 2017 SC 5157 . Thirdly, on appreciation of oral and documentary evidence and considering the age and avocation of the deceased, the overall compensation awarded by the Tribunal is just and reasonable. Fourthly, as on the date of the accident the driver of the offending vehicle was holding licence to drive LMV (non-transport) but was driving the transport vehicle. Since the insured has violated the policy conditions, the Insurance Company is not liable to pay the compensation The Tribunal has rightly exonerated the insurance company. Hence, he sought for dismissal of the appeal. 8. Heard the learned counsel for the parties. Perused the judgment and award and the original records. 9. It is not in dispute that deceased Srinivas died in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver. The claimants claim that deceased was earning Rs. 12,000/- per month. But they have not produced any documents to prove the income of the deceased. In the absence of proof of income, the notional income has to be assessed. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2014, the notional income of the deceased has to be taken at Rs. 8,500/- p.m. The Tribunal has rightly deducted 1/3rd towards personal expenses of the deceased. As per the guidelines issued by the Karnataka State Legal Services Authority, for the accident taken place in the year 2014, the notional income of the deceased has to be taken at Rs. 8,500/- p.m. The Tribunal has rightly deducted 1/3rd towards personal expenses of the deceased. The amount comes to Rs. 5,667/-. The deceased was aged about 62 years at the time of the accident and multiplier applicable to his age group is 7'. Thus, the claimants are entitled to compensation of Rs. 4,76,028/-(Rs. 5,667*12*7) on account of 'loss of dependency'. In addition, the claimants are entitled to compensation of Rs. 15,000/- on account of 'loss of estate' and compensation of Rs. 15,000/- on account of 'funeral expenses'. Claimant No. 1, wife of the deceased is entitled for compensation of Rs. 40,000/- under the head of 'loss of spousal consortium'. In view of the law laid down by the Supreme Court in the case of 'Magma General Insurance' (supra), claimant Nos. 2, 3 and 4, children of the deceased are entitled for compensation of Rs. 40,000/- each under the head of 'loss of parental consortium'. 10. Thus, the claimants are entitled to the following compensation: The claimants are entitled to a total compensation of Rs. 6,66,028/- as against Rs. 3,55,000/- awarded by the Tribunal. Re. liability: 11. It is not in dispute that as on the date of the accident the driver of the offending vehicle was holding a driving licence to drive LMV (non-transport) but he was driving the transport vehicle. In view of the law laid down by the Hon'ble Apex court in the case of Mukund Dewngan (supra), licence to drive light motor vehicle includes licence to drive transport vehicle, and therefore, the insurer is liable to pay compensation to the claimant. 12. In view of the above, the Insurance Company is directed to deposit the entire compensation amount along with interest at 6% per annum from the date of petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment. To the aforesaid extent, the judgment of the Claims Tribunal is modified. Accordingly, the appeal is allowed in part.