Loading judgment…
No AI summary yet for this case.
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 01ST DAY OF JULY, 2022
BEFORE
THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR
M.F.A. NO.23109/2013 (MV-D) C/W M.F.A. NO.100064/2014 (MV-D)
IN MFA NO.23109/2013 BETWEEN:
THE DIVISIONAL MANAGER DIVISIONAL OFFICE, ORIENTAL INSURANCE CO.LTD., 2ND FLOOR MADIVALE ARCADE, BELAGAVI. NOW R/O BY BALAKRISHNA K.NAYAK, ASSISTANT MANAGER, ORIENTAL INSURANCE CO.LTD, REGIONAL OFFICE. SUMANGALA COMPLES OPP: H.D.M.C. LAMINGTON ROAD. HUBBALLI. ...APPELLANT (BY SHRI S. S.KOLIWAD, ADVOCATE)
AND: 1. SMT. KASTURI W/O. SIDAGOUDA PATIL, AGE: 52 YEARS, OCC: HOUSEHOLD WORK.
SHRI. KENCHAGOUDA S/O. SIDAGOUDA PATIL, AGE: 34 YEARS, OCC: AGRICULTUARE & BUSINESS.
SRI MALAGOUDA S/O. SIDAGOUDA PATIL, AGE: 30 YEARS, OCC: AGRICULTUARE & BUSINESS.
SMT. SIDALINGAWWA W/O. BHIMAPPA PATIL, AGE: 84 YEARS, OCC: NIL.
ALL ARE R/O: NAGANUR VILLAGE, TQ: GOKAK, DIST: BELAGAVI.
SHRI SIDDAPPA S/O. SHETTEPPA PUJERI, AGE: MAJOR, OCC: AGRICULTURE, R/O: AJJANAKATTI, TQ: GOKAK, DIST: BELAGAVI. ... RESPONDENTS
(BY SHRI SANJAY S.KATAGERI, ADVOCATE FOR R1 TO 4) (BY SHRI GIRISH HIREMATH, ADVOCATE FOR R5)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET-ASIDE JUDGMENT & AWARD DATED 27.04.2013 PASSED IN MVC NO.1524/2011 ON THE FILE OF II ADDL. SENIOR CIVIL JUDGE & ADDL.M.A.C.T, GOKAK WITH COSTS AND INTERESTS IN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A.NO.100064/2014 BETWEEN: 1. SMT. KASTURI W/O SIDAGOUDA PATIL, AGE: 52 YEARS, OCC: HOUSEHOLD WORK.
SHRI. KENCHAGOUDA S/O SIDAGOUDA PATIL, AGE: 34 YEARS, OCC: AGRICULTUARE & BUSINESS.
MALAGOUDA S/O SIDAGOUDA PATIL, AGE: 30 YEARS, OCC: AGRICULTUARE & BUSINESS.
SMT. SIDALINGAWWA W/O BHIMAGOUDA PATIL, AGE: 84 YEARS, OCC: NIL.
ALL ARE R/O: NAGANUR VILLAGE, TQ: GOKAK, DIST: BELAGAVI. ...APPELLANTS
(BY SHRI SANJAY S.KATAGERI, ADVOCATE) AND: 1. SHRI SIDDAPPA S/O SHETTEPPA PUJERI, AGE: MAJOR, OCC: AGRICULTURE, R/O: AJJANAKATTI, TQ: GOKAK, DIST: BELAGAVI. (OWNER OF CAR BEARING NO.KA-22/C-6699)
THE DIVISIONAL MANAGER DIVISIONAL OFFICE, ORIENTAL INSURANCE CO.LTD., 2ND FLOOR MADIVALE ARCADE, CLUB ROAD, BELAGAVI. ... RESPONDENTS
(BY SHRI GIRISH S.HIREMATH, ADVOCATE FOR R1; SHRI S.S.KOLIWAD, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT & AWARD DATED 27.04.2013 PASSED IN MVC NO.1524/2011 ON THE FILE OF II ADDL. SENIOR CIVIL
JUDGE & ADDL.M.A.C.T, GOKAK ENHANCING TO RS.15,00,000/- WITH INTEREST @ 18% P.A FROM THE DATE OF PETITION, TILL THE DATE OF PAYMENT, BY HOLDING RESPONDENT NOS.1 AND 2 HEREIN JOINTLY AND SEVERALLY LIABLE TO PAY THE COMPENSATION, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS ARE COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The M.F.A.No.100064/2014 is preferred by the claimants against the impugned judgment and award passed by the II Addl. Senior Civil Judge and Addl. M.A.C.T, Gokak (for short ‘the tribunal’) in MVC.No.1524/2011, dated 27.04.2013. MFA.No.23109/2013 is preferred by the insurer is to set-aside the judgment and award on the ground that there is no liability on the insurer. Whereas, the appeals preferred by the claimants is on the ground of inadequacy and meager compensation. 2. Though these matters are listed for admission, with consent of learned counsel on both sides, matters are taken up for final disposal. 3. Parties to the appeal shall be referred to as per their status before the tribunal. 4. Brief facts of the case is as under:
On 17.05.2011 one Sidagouda S/o Bhimagouda Patil was proceeding along with one person by name Ravi
Mallappa Badiger by walk from his house towards Naganur bus-stand. While he was walking on the left side of the Mudalagi-Gokak road and when he reached near Gadadi Farm house school, at about 4:00 p.m, an ambassador car bearing Reg.No.KA.22/C-6699 came from behind in a rash and negligent manner so as to endanger human life and safety, lost control over the vehicle and dashed against Shri Siddagouda Bhimagouda Patil and his friend Shri Ravi Mallappa Badiger. Due to the accident, the Siddagouda Bhimagouda Patil and Ravi Mallappa Badiger, who is his friend suffered serious injuries and the Siddagouda Bhimagouda Patil died on the spot whereas, his friend Ravi Mallappa Badiger was taken to the hospital for treatment. The deceased was aged about 60 years and was involved in agriculture and business and he was income tax payee and was earning a sum of Rs.10,000/- per month. The claimants are none other than his widow, two sons and mother. In view of the sudden and untimely death of deceased, the claimants have suffered mentally, emotionally and financially. Thereby, they filed the claim petition seeking
compensation for the loss of sole earning member of a family. 5. On issuance of notice, respondent No.1, who is the owner of car did not represent and hence, was placed exparte. Respondent No.2-Insurer filed detailed statement of objections denying the occurrence of accident inter-alia contending that the driver of the car was not holding a valid and effective driving license and that the compensation claimed is exorbitant and liability would be in terms of the conditions of the policy. On the basis of these pleadings, he sought for dismissal of the claim petition. 6. On the basis of pleadings, the tribunal has framed relevant issues for consideration. 7. In order to substantiate the issues and to establish the case, the claimant No.2-son of deceased got examined himself as PW.1. PW.2 came to be examined, who was working along with the deceased and met with injuries and one more independent witness as PW.3 and got marked documents as Exs.P.1 to P.26 and closed their evidence whereas, the respondents did not adduce
any evidence. However, they got marked two documents namely certified copies of statement of PW.3 before the police and the insurance policy as Exs.R.1 and R.2. 8. On the basis of material evidence both oral and documentary and on hearing the arguments of learned counsel appearing for both the parties, the tribunal awarded total compensation of Rs.5,06,000/- to the claimants with interest @ 6% p.a. from the date of petition till realization and held respondent Nos.1 and 2 to be jointly and severally liable and directed respondent No.2-Insurance Company to deposit the award amount. 9. Being aggrieved by the exorbitant, unreasonable compensation awarded, the insurance company has preferred appeal challenging the judgment and award of tribunal. Being aggrieved by the inadequacy and meager compensation awarded, the claimants preferred appeal seeking enhancement of compensation. 10. It is vehement contention of learned counsel appearing on behalf of the claimants that the judgment and award passed by the tribunal is erroneous and
perverse for the reason that the tribunal has not assessed the income properly and has assessed meager amount as income of the deceased for computation, which is contrary to the material evidence placed on record and the exhibits produced by the claimants more specifically Exs.P.10 and 11. Learned counsel also contends that the Tribunal has failed to award compensation under the head loss of estate and funeral expenses. It is also contended by learned counsel that tribunal has not awarded future prospects thereby causing miscarriage of justice to the claimants. On the basis of these submissions, he seeks to allow these appeal consequently enhance the compensation. 11. Per Contra, the learned counsel Sri Sharanappa S. Koliwad representing on behalf of Insurance Company vehemently contends that the Judgment and Award passed by the Tribunal is contrary, illegal and perverse. He also contends that the Tribunal has mechanically passed the order without considering the material evidence on record and contrary to the evidence and documents produced. The Tribunal has assessed the income and awarded
compensation which is erroneous and the same requires to be set aside.
Learned counsel vehemently contends that the driver of offending vehicle did not possess a valid and effecting driving licence as on the date of occurrence of accident i.e. on 17.05.2011. Hence, the liability fastened on the Insurer is erroneous, illegal and arbitrary, it has to be set aside, if at all any liability arising the same will have to be fastened on the owner of the offending vehicle and not on the Insurer. Learned counsel vehemently contends that the Tribunal has committed a gross error in taking 1/4th deduction towards personal and living expenses, whereas the sons of the deceased namely claimant Nos.1 and 2 are major in age and hence being adults they could not be categorized as dependants and the deduction of 1/4th made by the Tribunal is erroneous and same requires to be set aside. Learned counsel vehemently opposes the argument of the learned counsel for claimants with regard to granting of 10% future prospects in view of the fact that the agricultural land and status in which the business was conducted by the deceased does not got diminished as the land continues to be in the possession and cultivation of sons of deceased-Siddagouda. Therefore, the question of
awarding 10% of future prospects would not arise. On the basis of these submissions, learned counsel seeks to allow his appeal and set aside the liability fastened as against him-Insurer and reduce the exorbitant compensation by fastening the liability on the owner of the offending vehicle. 13. Learned counsel also vehemently contends that the Tribunal has committed a gross error in appreciating Ex.P.21, the driving licence of driver of offending vehicle, per se on a primary look through the naked eye it is seen that the licence which was issued in favour of the driver of the offending vehicle was issued in the year 1998, it is to be assumed to be issued on 23.10.1998. The 2nd page of driving licence shows that the licence came to be renewed on 21.05.2011 and to be valid till 20.05.2016 for the purpose of driving motorcycle other than transport vehicles and also to drive transport vehicles for a period from 21.05.2011 to 20.05.2014. On the basis of this Ex.P.21, it is the contention of learned counsel for the Insurer that as on the date of occurrence of accident i.e., 17.05.2011, the driver of the offending vehicle did not possess a valid and effective driving licence. Therefore, the Insurance Company
cannot be fastened with liability; same will have to be shifted on the owner of the offending vehicle.
To controvert the statement made by the learned counsel for Insurer, the learned counsel for claimants vehemently contends that the issuance of licence to driver of the offending vehicle is admittedly dated 23.10.1998 and since the licence issued to the driver was on 3 categories one to ride motor vehicle and one for medium goods vehicle and one for heavy goods vehicle. He contends that the licence came to be issued on 23.10.1998. He contends that when the licence was issued in the year 1998, the Rules governed for issuance of licence is covered under Section 14 of Motor Vehicles Act, 1988 and the same would be effective for a period of 20 years from the date of such issuance or renewal or until the attainment of 50 years age of the driver. On these grounds he contends that the argument of the learned counsel for the Insurer would have to be negatived.
Be that as it may, we will deal with the issue during the course of Judgment.
Now coming to the age, avocation and income of the deceased, it is seen that the deceased was admittedly
aged 60 years as on the date of occurrence of accident. The Tribunal has assessed the income to be at Rs.6,000/- per month after considering Ex.P.1 and 11. But on careful perusal of Ex.P.10 and 11, it cannot be disputed that it is the acknowledgement receipt of the ITR-V issued by the Centralized Processing Centre of the Income Tax Department and also the Income Tax returns for the assessment year 2010-11 specifies the name of Siddanagouda the deceased herein, being a proprietor of Basaveshwar Fertilizers and he has paid an income tax returns showing gross income at Rs.1,09,697/-, which is submitted on 21.09.2010 and there is a certificate issued by Vishwaraj Sugars Industries Limited, Bellad Bagewadi on 21.03.2013 showing that the deceased supplied sugarcane to the sugar factory and the bills are showing amounting to Rs.10,23,417/- for the season 2010-2011 as per Ex.P.12. On the basis of Ex.P.10 and 11, which are the licences and income tax returns filed by the deceased. It is apparently seen that deceased was the proprietor of business of Basaveshwar Fertilizers and his income was assessed at Rs.1,09,697/-. On dividing the said income by 12 multiplier, the income comes to Rs.9,141/-. Under these circumstances since the income tax returns Ex.P.11 shows
ITR filed by the deceased himself as a proprietor the income requires to be taken at Rs.9,000/- per month as against Rs.6,000/- assessed by the Tribunal.
I am in agreement with the contention put forth by the learned counsel for Insurer that the calculation of the deduction towards personal and living expenses at the rate of 1/4th is erroneous as they are the major adult children cannot be taken as dependants as they cannot be considered financially depending on the deceased. Therefore, considering the wife of deceased and the mother to be dependants, 1/3rd would be the proper deduction towards personal and living expenses.
I am in agreement with the learned counsel for claimants that the Tribunal has failed to award future prospects for the death of deceased. Therefore, deceased being aged 60 years, he is entitled to 10% addition towards future prospects. Therefore, if income is taken at Rs.9,000/- per month + 10% addition of future prospects, it would be Rs.9,900/- - 1/3rd , it comes at Rs.6,600/-, which would be the amount for the benefit of welfare of the family and dependants.
Deceased being aged 60 years as on the date of occurrence of accident. The appropriate multiplier would be ‘9’ which is rightly applied by the Tribunal and the same is not disturbed. Therefore, loss of dependency would be (Rs.6,600/- X 12 X9 =) Rs.7,12,800/- as against Rs.4,86,000/- awarded by the Tribunal.
It is seen that the Tribunal has awarded consortium of Rs.10,000/-. However, there are four dependants, though two children being adults, they would be certainly entitled to loss of consortium, love and affection of deceased-father. In view of the Judgment of Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, Rs.40,000/- is required to be awarded. Accordingly, it comes to (Rs.40,000/- X 4 dependants) = Rs.1,60,000/-.
Towards loss of estate and funeral expenses, Tribunal has awarded Rs.5,000/- each, which is erroneous in view of the Judgment of Pranay Sethi (supra) and on each head Rs.15,000/- requires to be awarded. Accordingly, it is awarded. Therefore, in view of the above discussions, the claimants would be entitled to a total
compensation of Rs.9,02,800/- as against Rs.5,06,000/- as mentioned in the table below: Heads As awarded by the tribunal (in Rs.) As awarded by this Court (in Rs.) Loss of dependency 4,86,000 7,12,800 Loss of consortium and love and affection. 10,000 1,60,000 Loss of estate 5,000 15,000 Funeral expenses 5,000 15,000 TOTAL 5,06,000 9,02,800
To answer the question of whether the liability should be fastened on the Insurance Company or the owner, as the defence taken by the Insurer with regard to validity of the licence and there being no effective and valid driving licence as on the date of occurrence of accident and violation of terms and conditions of the policy. I am of the opinion that it is necessary to run through the Section 14 of the Motor Vehicles Act, 1988 (for short, ‘the Act’), which reads as under : 14. Currency of licences to drive motor vehicles.— (1) A learner’s licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence.
(2) A driving licence issued or renewed under this Act shall,— (a) in the case of a licence to drive a transport vehicle, be effective for a period of three years: Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and (b) in the case of any other licence,— (i) if the person obtaining the licence, either originally or on renewal thereof, has not attained the age of [fifty years] on the date of issue or, as the case may be, renewal thereof,— (A) be effective for a period of twenty years from the date of such issue or renewal; or (B) until the date on which such person attains the age of 3[fifty years], 3[fifty years]," whichever is earlier; (ii) if the person referred to in sub-clause (i), has attained the age of fifty years on the date of issue or as the case may be, renewal thereof, be effective, on payment of such fee as may be prescribed, for a period of five years from the date of such issue or renewal: Provided that every driving licence shall, notwithstanding its expiry under this sub-section continue to be effective for a period of thirty days from such expiry.”
On perusal of Section 14 of the Act, it is seen that for any other licence either originally or on renewal when the person has not attained the age of 50 years, the licence shall be effective for a period of 20 years from the date of such issue or renewal, or it would be effective till such person attains the age of 50 years whichever is earlier. In the present case on hand, the licence to the driver of the offending vehicle is admittedly issued on 23.10.1998. Two other dates mentioned for issuance of licence and the validity for driving transport vehicle and motor vehicles other than the transport vehicle. Keeping in view the above provision, since the licence is issued on 23.10.1998, the licence would be valid for 20 years, it would be till 2018. Accident has occurred on 17.05.2011. Notwithstanding the entry made in the Driving Licence as per the provisions of Section 12 (2)(B AB the licence would be effective till for a period of twenty years from the date of issuance i.e., 1998. 24. I am of the considered opinion that the driving licence issued to the driver of the offending vehicle would be valid till 2018. Hence, as on the date of occurrence of accident there was valid and effective driving licence. In
view of there being effective policy in favour of the owner of the offending vehicle, the Insurer invariably will have to indemnify the owner of the offending vehicle. Therefore, I do not find any illegality committed by the Tribunal in fastening the liability on the Insurer. Accordingly, the same is affirmed and the liability is fastened on the Insurance Company.
Accordingly, I pass the following: ORDER (i) The appeal preferred by the Insurance Company is dismissed and appeal preferred by the Claimants is allowed in part. (ii) The Judgment and Award dated 27.04.2013 passed in MVC.Nos.1524 2011 by the II Additional Senior Civil Judge and Additional MACT, Gokak is modified.
(iii) Claimants in MVC.No.1524/2011 are entitled to total compensation of Rs.9,02,800/- as against Rs.5,06,000/- awarded by the Tribunal.
(iv) All other terms and conditions stipulated by the Tribunal shall stand intact. Same is not disturbed. (v) The enhanced compensation shall be paid by the Insurance Company along with interest at the rate of 6% per annum within a period of six weeks from the date of receipt of a copy of this Judgment. (vi) The amount in deposit, if any, may be transmitted to the jurisdictional Tribunal forthwith. (vii) The original records shall also be transmitted to the Tribunal forthwith.
SD/- JUDGE
AM/CKK