MFA No.32864/2013 C/w MFA No.200431/2014 1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE6H DAY OF MARCH, 2021 BEFORE THE HON’BLE MR.JUSTICE M.NAGAPRASANNA AND THE HON’BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR MFA No.32864/2013 C/W MFA NO.200431/2014 (MV) In MFA No.32864/2013 Between: The Branch Manager, National Insurance Co. Ltd., Near Allahabad Bank, Near Gandhi Chowk, Raichur, now represented by its Authorized Signatory, Divisional Office, Main Road, Gulbarga-585 102. ... Appellant (By Smt. Sangeeta Bharashetty, Advocate) And:
1. Smt. K.Laxmi W/o Late Laxmi Narasimha, Age:
33. years, Occ: Household, 2. K.Raghavendra S/o Late Laxmi Narasimha, Age:
14. years, Occ: Student, 3. K.Vaishnavi D/o Late Laxmi, Narsimha, Age:
12. years, Occ: Student, 4. K.Narasmihamurthy S/o RAghavendra, Age:
60. years, MFA No.32864/2013 C/w MFA No.200431/2014 2 All respondents 1 - 4 herein are R/o H.No.8-11-181/1/1, NGO Colony, Faruk Layout, Raichur-584101.
5. Abdul Nabi S/o Shaik Mahamood, Age:
65. years, Occ: Driver, R/o Siyatalab, New Mydarwadi, Beside Haseena Hotel, Raichur-584101.
6. Mahamood Hussain S/o Rajab Ali, Age: Major, Occ: Business & Owner of Lorry bearing Reg.No.CNJ-7306, R/o H.No.9-7-26, Ayyab Bhavi Road, Maddipet, Raichur-584 102. ... Respondents (By Sri.Sanganagouda.V.Biradar, Adv. for R1 & R4, R2 & R3 are minors represented by R1; By Sri.Arunkumar Amargundappa, Adv. for R5 &
6) This MFA is filed under Section 173(1) of MV.Act, praying to call for records in MVC No.225/2013 on the file of the II-Addl. District Judge and Member, Motor Accident Claims Tribunal, at Raichur. Allow this appeal by setting aside the impugned judgment and award passed in MVC No.225/2013, dated 17.09.2013, by the II-Addl. District Judge and Member, Motor Accident Claims Tribunal, at Raichur in the interest of justice and equity. In MFA No.200431/2014 Between:
1. Smt.K.Laxmi W/o Late Laxmi Narasimha, Age:
34. years, Occ: Household, MFA No.32864/2013 C/w MFA No.200431/2014 3 2. K.Raghavendra S/o Late Laxmi Narasimha, Age:
15. years, Occ: Student, 3. K.Vaishnavi D/o Late Laxmi Narasimha, Age:
13. years, Occ: Student, 4. K.Narasimhamurthy S/o Raghavendra, Age:
61. years, 5. K.Geetabai W/o K.Narasimhamurthy, Age:
61. yeas, Occ: Household, Appellants No.2 and 3 are Minor, Represented by their M/G Mother Appellant No.1 All are R/o H.No.8-11-181/1/1, NGO Colony, Farul Layout, Raichur-584102. ... Appellants (By Sri. Sanganagouda V. Biradar, Advocate) And:
1. Abdul Nabi S/o Shaik Mahamood, Age:
66. years, Occ: Driver, R/o Siyatalab, New Mydarwadi, Beside Haseena Hotel, Raichur-584102.
2. Mehamood Hussain S/o Rajab Ali, Age: Major, years, Occ: Business and Owner of Lorry No.CNJ-7306, R/o H.No.9-7-26, Ayyab Bhavi Road, Maddipet, Raichur-584102. MFA No.32864/2013 C/w MFA No.200431/2014 4 3. The Branch Manager, National Insurance Co. Ltd., Near Allahabad Bank, Near Gandhi Chowk, Raichur-584101. ... Respondents (By Smt. Sangeeta Bhadrashetty, Advocate for 3; Notice to R1 & R2 is dispensed with v/o dated 28.01.2015) This MFA is filed under Section 173(1) of MV.Act, praying to enhance the compensation amount payable to the appellant by suitably modifying the judgment and award dated 17.09.2013 passed by the Member Motor Accident Claims Tribunal and II ADJ at Raichur in MVC No.225/2013, in the interest of justice and equity. These appeals coming on for final hearing this day, M.Nagaprasanna, J.
delivered the following: JUDGMENT
These appeals are filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short). The Insurance Company has filed M.F.A.No.32864/2013 questioning the liability and quantum of compensation and MFA No.200431/2014 is filed by the claimants seeking enhancement of compensation determined by the MFA No.32864/2013 C/w MFA No.200431/2014 5 Motor Accident Claims Tribunal ('Tribunal' for short) in its judgment and award dated 17.09.2013 MVC No.225/2013.
2. Since both the appeals arise out of the same Award, they were heard together and are being decided by this common judgment.
3. Brief facts leading to the filing of the present appeals are that on 15.03.2013 the deceased who was working as driver in SLN College of Engineering was proceeding on a motorcycle bearing Regn.No.KA-33/J-3762, at which point in time, a Lorry bearing Reg.No.CNJ-7306 being driven by the first respondent in a rash and negligent manner came from Tippu Sultan circle side and dashed against the motorcycle of the deceased, due to which the deceased fell down and the lorry ran over the body of the deceased and he died on the spot. MFA No.32864/2013 C/w MFA No.200431/2014 6 4. The claimants namely wife, children and mother of the deceased filed claim petition before the MACT and II Additional District Judge at Raichur on the ground that the deceased was earning Rs.6,000/- per month working as a driver and with the loss of the bread earner the family is put to jeopardy and accordingly claimed a compensation of Rs.30,45,000/- along with interest.
5. Upon service of notice, the respondent No.1- driver appeared but did not file the written statement and respondent No.2 and 3 the owner of the vehicle and insurance company filed their written statements. The first respondent driver of the vehicle adopted the written statement filed by the owner of the vehicle. The second respondent while admitting the involvement of the vehicle in the accident and the manner in which the accident occurred contended that the insurance policy was in force and insurance MFA No.32864/2013 C/w MFA No.200431/2014 7 company was liable to pay the compensation determined.
6. On the other hand, the 3rd respondent- insurance company denied the accident and the contention that the accident was due to the rash and negligent driving of the driver of the lorry. According to the Insurance company, the accident took place, but not due to the negligence of the driver, but on account of the negligence of the deceased himself. It is also contended that the first respondent driver had no valid driving licence at the time of accident and the vehicle had no permit to ply on the road. The age, avocation and income of the deceased were also disputed.
7. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. MFA No.32864/2013 C/w MFA No.200431/2014 8 8. The claimants, in order to prove their case, produced about 11 documents as Ex.P1 to Ex.P11 and claimant No.1 examined herself as P.W.1. On the other hand, the Insurance Company marked about 5 documents as Ex.R1 to Ex.R5 and examined one witness as R.W.1.
9. The Claims Tribunal, inter alia, by the impugned judgment, held that the accident had occurred due to the rash and negligent driving of the driver of the lorry - respondent No.1 and further held that the claimants were entitled to a compensation of Rs.9,91,000/- with interest at the rate of 6% per annum from the date of petition till realization. Being aggrieved by the fastening of the liability in its entirety upon the insurance company, the insurance company has preferred MFA No.32864/2013. Feeling aggrieved by the quantum of compensation awarded MFA No.32864/2013 C/w MFA No.200431/2014 9 by the Tribunal, the claimants have preferred MFA No.200431/2014.
10. We have heard Smt. Bhadrashetty Sangeeta C., learned counsel for the Insurance Company, Sri Sanganagouda V. Biradar, learned counsel for respondent Nos.1 and 4 - claimants and Sri Arunkumar Amargundappa, learned counsel for respondent Nos.5 and 6.
11. Smt. Bhadrashetty Sangeeta C., learned counsel appearing for the insurance company would vehemently argue and contend that the deceased himself was negligent as he had hit the rear portion of the lorry which was parked and had caused the accident. Therefore, certain amount of contributory negligence ought to have been attributed to the deceased by the Tribunal and she would further submit that the lorry that was involved in the accident MFA No.32864/2013 C/w MFA No.200431/2014 10 did not have a valid permit to ply on the street as no permit was produced before the Tribunal. The production of a tax paid receipt would not suffice or would not be a presumption of existence of a valid permit.
12. On the other hand, learned counsel appearing for the claimants and the owner of the vehicle would in unison contend that once the tax is paid, it would be a presumption that the tax is paid on a goods vehicle that has a valid permit and they would also submit that the owner of the vehicle is in possession of the valid permit. On the quantum of compensation, learned counsel for the claimants would submit that the Tribunal has grossly erred in awarding compensation which is on the lower side and seeks its interference at the hands of this Court. MFA No.32864/2013 C/w MFA No.200431/2014 11 13. We have given our anxious consideration to the rival submissions made by the respective learned counsel appearing for the parties and have perused the material on record.
14. Insofar as the issue with regard to the contributory negligence of the deceased himself is concerned, the Tribunal on the basis of Ex.P.2 Spot Panchanama, held that the accident spot was on the extreme left side of the road at a distance of 3 feet from the edge of the road, which was under repair and the lorry admittedly came from Tippu Sultan circle and dashed the motorcycle in such a way that even after the crash, the motorcycle did not stop and tyre of the lorry ran over the motorcycle rider which was self- explanatory for rash and negligent driving by the driver of the lorry. It is also to be noticed that the driver of the lorry has been charge sheeted for rash and negligent driving and causing the death of the MFA No.32864/2013 C/w MFA No.200431/2014 12 deceased. These are circumstances enough to hold that the driver of the lorry was rash and negligent in driving the vehicle and caused the death of the deceased.
15. The Hon'ble Apex Court in the case of Sunita and Others vs Rajasthan State Road Transport Corporation and Others reported in (2020) 13 SCC486at paragraph No.27 has held as follows:-
"27. The Tribunal’s reliance upon FIR No.247/2011 (Ext.
1) and charge-sheet (Ext.
2) also cannot be faulted as these documents indicate the complicity of respondent No.2. The FIR and charge-- sheet, coupled with the other evidence on record, inarguably establishes the occurrence of the fatal accident and also point towards the negligence of the Respondent 2 in causing the said accident. Even if the final outcome of the criminal proceedings against Respondent 2 is MFA No.32864/2013 C/w MFA No.200431/2014 13 unknown, the same would make no difference at least for the purposes of deciding the claim petition under the Act. This Court in Mangla Ram, noted that the nature of proof required to establish culpability under criminal law is far higher than the standard required under the law of torts to create liability."
In the light of the judgment of the Hon'ble Apex Court, the fact of chargesheet being filed against the driver of the offending vehicle for rash and negligent driving and causing death of deceased and Ex.P2 spot panchanama clearly indicating the lorry running over the body of the deceased, the contention of the Insurance Company that certain amount of contributory negligence ought to have been attributed upon the deceased is unfounded and unacceptable. MFA No.32864/2013 C/w MFA No.200431/2014 14 16. A perusal at the evidence before the Tribunal and the cross-examination of the witnesses by the Insurance Company would clearly indicate that the Insurance Company has not discharged its burden to disprove what has been contended by the claimants. The claimants have in the cross- examination by the Insurance Company sustained every one of the statements made in the examination- in-chief. Having done nothing before the Tribunal, the Insurance Company cannot now contend with regard to attribution of contributory negligence.
17. Insofar as the quantum of compensation is concerned, admittedly, the claimants have not produced any evidence with regard to the claim that the deceased was earning Rs.6,000/- per month. Though the claimants have accepted the amount of monthly income of the deceased at Rs.6,000/-, the compensation that is to be awarded to the claimants MFA No.32864/2013 C/w MFA No.200431/2014 15 must be just and proper. Therefore, in the absence of evidence of income, the notional income in terms of the chart of the High Court Legal Services Authority is to be taken into consideration. The accident was of the year 2013. The notional income in terms of the chart is Rs.7,000/- per month to which 25% is to be added towards future prospects in the light of the judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in AIR2017SC5157 Thus, the monthly income comes to 8,750/-. Out of which, we deem it appropriate to deduct 1/4th towards personal expenses of the deceased, which comes to Rs.6,562/- per month. Since the deceased was 42 years at the time of the accident, the applicable multiplier would be 14. Therefore, the claimants are entitled to compensation of Rs.11,02,416/- (6562x12x14) on account of loss of dependency as MFA No.32864/2013 C/w MFA No.200431/2014 16 against Rs.7,56,000/- awarded by the Tribunal. In view of the law laid down by the Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram & Others reported in (2018) 18 SCC130 as reiterated in the case of The New India Assurance Company Limited vs Smt. Somawati and Others reported in 2020 (9) SCC644the claimants who are wife, minor children and parents of the deceased would become entitled to a sum of Rs.40,000/- each on account of loss of spousal, parental and filial consortium, the compensation under this head is assessed at Rs.2,00,000/-. The claimants would be further entitled to a compensation of Rs.15,000/- on account of loss of estate and Rs.15,000/- on account of funeral expenses. Therefore, the claimants in all would be entitled to a compensation of Rs.13,32,416/- as against Rs.9,91,000/- awarded by the Tribunal. MFA No.32864/2013 C/w MFA No.200431/2014 17 18. The contention of the Insurance Company that it should be absolved of payment of compensation in view of violation of policy conditions by the owner of the vehicle as the vehicle did not have a permit to ply on the road though requires to be accepted, but that will not amount to denial of compensation to the claimants from the hands of the Insurance Company, but with liberty being reserved to the Insurance Company to recover the same from the owner of the vehicle, in the light of the full bench judgment of this Court in the case of New India Assurance Co. Ltd., Bijapur by its Divisional Manager vs. Yallavva and Another, reported in ILR2020KAR2239 Therefore, the insurance company is held liable to pay the compensation in its entirety as determined hereinabove to the claimants with liberty to recover the same from the hands of respondent No.2 - owner of the vehicle. MFA No.32864/2013 C/w MFA No.200431/2014 18 19. The learned counsel appearing for the owner of the vehicle would submit that the motor vehicle tax paid receipt was produced before the Tribunal and that would be sufficient to demonstrate that the vehicle had a valid permit. This submission is unacceptable to us as payment of tax cannot be a presumption that the permit is in subsistence. Any transport vehicle to ply on the road shall have a valid permit in terms of the Act. The Apex Court interpreting the provisions of the Act in the case of Amrit Paul Singh v. TATA AIG General Insurance Co. Ltd., reported in (2018) 7 SCC558has held as follows:
"7. The conclusions recorded by the Tribunal and further confirmed by the High Court clearly show that the accident occurred on 19-2-2013 and the competent authority issued the permit on 27-2-2013. In this regard, Sections 2(28) and 2(31) of the Act that MFA No.32864/2013 C/w MFA No.200431/2014 19 define “motor vehicle” or “vehicle” and “permit” are reproduced below: “2. (28) “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty-five cubic centimetres; *** (31) “permit” means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle;” On a perusal of both the definitions, it is quite clear that a permit has to be issued by the competent authority under the Act for use of a motor vehicle as a transport vehicle. The emphasis is on the words “use” as well as “transport vehicle”. MFA No.32864/2013 C/w MFA No.200431/2014 20 8. Section 2(47) states that “transport vehicle” means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Section 66 stipulates necessity for permits. Sub-section (1) thereof provides that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place, whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority. Various provisos have been appended to the main provision stipulating conditions for use of the vehicle and purpose of carriage of goods vehicle. Sub-section (2) of Section 66 states that the holder of a goods carriage permit may use the vehicle for the drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed. It is necessary to mention here that a proviso has been added by Act 54 of 1994 with effect from 14-11-1994 allowing the holder of a permit of any articulated vehicle to use the prime- mover of that articulated vehicle for any MFA No.32864/2013 C/w MFA No.200431/2014 21 other semi-trailer. Section 2(2) defines “articulated vehicle” to mean a motor vehicle to which a semi-trailer is attached.
9. It is apt to note here that sub- section (3) of Section 66 carves out certain exceptions to sub-section (1). The relevant part of sub-section (3) is extracted below: “66. (3) The provisions of sub- section (1) shall not apply— (a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise; (b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes; (c) to any transport vehicle used solely for police, fire brigade or ambulance purposes; (d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses; MFA No.32864/2013 C/w MFA No.200431/2014 22 (e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety; (f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf; (g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf; (h)*** (i) to any goods vehicle, the gross vehicle weight of which does not exceed 3000 kilograms; (j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that MFA No.32864/2013 C/w MFA No.200431/2014 23 State or in any other State, without carrying any passenger or goods; (k) to any transport vehicle which has been temporarily registered under Section 43 while proceeding empty to any place for the purpose of registration of the vehicle; (l)*** (m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination; (n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify; (o) to any transport vehicle which is subject to a hire-purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of, the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or MFA No.32864/2013 C/w MFA No.200431/2014 24 (p) to any transport vehicle while proceeding empty to any place for purpose of repair.
10. In the case at hand, the findings would show that Appellant 2 did not have a permit for the vehicle. There is no dispute that the vehicle initially had a temporary registration and eventually the permanent registration. It is the stand of the appellants that the Tribunal and the High Court did not appreciate that the chassis of the vehicle was sent to the workshop where the body of the truck was fabricated and when the vehicle was driven out of the workshop at which point of time it met with an accident. A contention has been made that the insurance policy was in force at the relevant time and, hence, the insurer is legally obliged to indemnify the insured.
11. A distinction has to be made between “route permit” and “permit” in the context of Section 149 of the Act. Section 149(2) provides the grounds that can be taken as defence by the insurer. It enables the insurer to defend on the ground that there has been breach of a specific condition of the policy, namely, (i) a condition that excludes the use of the vehicle, — (a) MFA No.32864/2013 C/w MFA No.200431/2014 25 for hire or reward, where the vehicle is, on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motorcycle. That apart, it also entitles the insurer to raise the issue pertaining to a condition that excludes driving by a named person or persons or by any person who is not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification or that excludes liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion. A further defence that can be availed of by the insurer is that the policy is void on the ground that it has been obtained by non-disclosure of the material fact or by representation of act which is false in the material particular."
(Emphasis applied) MFA No.32864/2013 C/w MFA No.200431/2014 26 Therefore, in the light of the law laid down by the Apex Court the vehicle which did not have permit to ply on the road which fact cannot but be held to be in violation of policy conditions. The contention that the owner should not be made liable even on the principle of pay and recover is rejected.
20. The learned counsel for the second respondent - owner further submits that he is in possession of the permit which was subsisting at the time of the accident which is neither produced before the trial Court nor before this Court, but has placed it for our perusal. Therefore, in the peculiar facts of the case, we deem it appropriate to grant liberty to the second respondent - owner to submit his defence insofar as existence of and subsistence of the permit as on the date of the accident, as and when proceedings are instituted by the Insurance Company MFA No.32864/2013 C/w MFA No.200431/2014 27 for recovery of the amount of compensation afore- determined. For the aforesaid reasons, the following: ORDER
(i) M.F.A.No.32864/2013 filed by the Insurance Company is allowed in part. The Insurance Company shall satisfy the amount of compensation afore- determined with liberty to recover the same from the hands of the second respondent - owner. (ii) M.F.A.No.200431/2014 is allowed in part. The claimants are held entitled to a total compensation of Rs.13,32,416/- as against Rs.9,91,000/-. It is needless to state that the claimants would be entitled to interest at the rate of 6% per annum from the date of petition till the date of its satisfaction by the insurance company. MFA No.32864/2013 C/w MFA No.200431/2014 28 (iii) The amount in deposit shall be transmitted to the Tribunal for disbursement to the claimants. iv) Registry is directed to send back the trial Court records. Sd/- JUDGE Sd/- JUDGE SMP / RSP