Gangamma and Others vs K. Nagaraj and Others

B. Veerappa, J.—1. The unfortunate claimants are before this Court for enhancement of compensation against the judgment and award dated 7.1.2010 made in MVC No. 1190/2008 on the file of the Presiding Officer FTC II Member, MACT, Bellary, granting compensation of Rs. 4,29,000/- with interest at 6% p.a. from the date of petition till the date of realization against the owner/respondent Nos. 1 and 2 jointly and dismissing the petition against the 3rd respondent - Insurance Company.

The claimants are the wife, mother and children of the deceased. They have filed claim petition claiming compensation of Rs. 13,00,000/- on account of the unfortunate accident that occurred on 31.12.2007 at 12.30 p.m. That the deceased Honnurappa along with his younger Brother K. Shivalinga and his son claimant No. 4 Shankar were going towards Moka road to go to Dr. Parvatha Reddy Clinic, when they came near the Durgamma Temple Cross, Bellary, at that time, the 1st respondent drove his auto rickshaw bearing No. KA.28/3019 in rash and negligent manner with high speed and dashed against Honnurappa from behind, due to which, he fell down and sustained grievous injuries to his left thigh and left femur. Immediately the 1st respondent ran away from the accident spot and that deceased Honnurrappa was shifted in an autorickshaw to VIMS Hospital, Bellary. Accordingly, a crime was registered in Crime No. 1/2008 for the offence punishable under Sections 279, 337 of IPC r/w Section 187 of MV Act. According to the claimants the deceased was earning Rs. 10,000/- per month from agricultural land and milk vending and maintaining the family of the appellants. Due to the sudden death of the deceased, the appellants are deprived of love and affection of the deceased. Therefore, the claimants/appellants filed the petition for compensation as prayed for.

In response to the notice, respondent Nos. 1 and 3 appeared through Counsel. Respondent No. 2 remained absent and has been placed ex-parte. Respondent Nos. 1 and 3 have filed separate written statement denying the petition averments and factum of the accident. According to the respondents, the deceased Honnurappa was suffering from backache, while crossing the road, he fell down and died and not due to any injury caused in the accident.

Based on the pleadings, the Tribunal framed the following issues:--

"1. Whether the petitioners prove that, the accident dated 31.12.2007 was due to rash and negligent driving of auto rickshaw bearing its reg. No. KA.28/3019 by the first respondent and that petitioner sustained injuries due to the said accident?

Whether the petitioners are entitled for award of compensation ? If so, how much and from whom?

What order or award?"

In order to establish their case, the 1st claimant was examined as PW. 1 and 2nd claimant - eye witness was examined as PW.2 and marked the documents Exs.P1 to P20. The defendant was examined as RW.1. Considering the entire material on record the Tribunal recorded a finding that the accident occurred due to rash and negligent driving by the driver of the auto-rickshaw bearing No. KA.28/3019 and the deceased sustained injuries and died, therefore the claimants are entitled to compensation of Rs. 4,29,000/- with interest at 6% p.a. from the date of petition till the date of realization. Hence the present appeal is filed for enhancement of compensation.

I have heard the learned counsel for the parties to the lis.

Sri. Shivaraj Hiremath, learned counsel for the appellants contended that the Tribunal erred in fixing the liability on the owner of the vehicle holding that the driver had valid driving license of Light Motor Vehicle License from 5.11.1997 to 4.11.2017 and dismissed the petition against the 3rd respondent and also contended that the compensation awarded by the Trial Court is meager and not proportionate to the income of the deceased. The Tribunal has not granted sufficient compensation in respect of other heads also. Therefore, he sought to set aside the impugned judgment and award passed by the Tribunal. In support of his contention he relied upon the decision of this Court in the case of national insurance company ltd., rep. by its ADMINISTRATIVE OFFICER v. YALGURDAPPA, SINCE DECEASED BY his LRs. and another reported in ilr 2010 kar 4733 and also laid down by the Hon''ble Supreme Court in the case of S. IYYAPAN v. UNITED INDIA INSURANCE COMPANY LTD., reported in , 2013 ACJ 1944, therefore, he sought for further enhancement fixing the liability on the 3rd respondent- Insurance Company.

Per contra, Sri. B.M. Angadi, learned Counsel for 3rd respondent sought to justify the impugned judgment and award passed by the Tribunal and contended that as on the date of the accident, the Driving License bearing No. 524/1997-1998 was not in existence, it was effected from 12.11.1997 to 11.11.2000. Hence, he was not authorized to drive commercial vehicle while holding LMV Licence. Therefore, he sought to sustain the impugned judgment and award. He sought to rely upon the judgment of new Indian assurance co. ltd., v. ROSHANBEN RAHEMANSHA FAKIR reported in , ACJ 2008/2161. Paragraph 5 reads as follows:--

"5. Section 10 of the Act provides for classes of the driving licence. Different classes of vehicle have been defined in different provisions of the Motor Vehicles Act. The transport vehicle'' is defined in Section 2 (47) of the Act to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. We have noticed hereinbefore the provisions of sub-section (4) of Section 41. We have also noticed the notification issued by the Central Government in this behalf. The said notification clearly postulates that a three wheeled vehicle for transport of passengers or goods comes within the purview of class 5 of the table appended thereto. The licence granted in favour of the said Salim Amadbhai goes to show that the same was granted for a vehicle other than the transport vehicle. It was valid from 13.05.2004 to 12.05.2024. Section 14(2)(a)provides that a driving licence issued or renewed under the Act shall, in case of a licence to drive a transport vehicle will be effective for a period of three years whereas in the case of any other vehicle it can be issued or renewed for a period of 20 years from the date of issuance or renewal. The fact that the licence was granted for a period of 20 years, thus, clearly shows that Salim Amadbhai, driver of the vehicle, was not granted a valid driving licence for driving a transport vehicle"

wherein the Hon''ble Supreme Court directed the Insurance Company to pay and recover the amount from the owner.

I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and carefully perused the entire material on record.

In view of the rival contentions urged by the learned counsel for the parties to the lis, the point that arise for consideration of this Court is as to

"a. Whether the Insurance Company is liable to pay compensation as claimed by the claimants in the claim petition, in the absence of any valid driving license in respect of the commercial vehicle which was involved in the accident?

b. Whether the Tribunal is justified in dismissing the claim petition against the Insurance Company foisting the liability upon the owner of the vehicle, when the driver was holding LMV license as on the date of the accident?"

The admitted facts are that the deceased Honnurappa died due to rash and negligent driving by the driver of the autorickshaw bearing No. KA-28/3019 on 31.12.2007 at 12.30 p.m. Admittedly in the present case, the respondents have not challenged the finding recorded by the Tribunal with regard to the rash and negligent driving of the autorickshaw. It is also not in dispute as per Ex. R-3 the endorsement dated 30.11.2009 issued by the licensing authority - Regional Transport Officer, Bellary, which depicts that the driver Nagaraj was holding LMV license from 5.11.1997 to 4.11.2017, which means he was holding driving license of LMV and due to the rash and negligent driving by him the autorickshaw which was used for commercial purpose dashed against the deceased. The Hon''ble Supreme Court while considering the Division Bench Judgment of this Court in the case of national INSURANCE CO. LTD., REP. BY ITS ADMINISTRATIVE OFFICER v. YALGURDAPPA, SINCE DECEASED BY HIS LRS. AND ANOTHER reported in , ILR 2010 KAR 4733 held that if a driver had a valid driving license to drive the light motor vehicles and license was issued prior to the accident at the relevant point of time, the person who has license to drive the light motor vehicles was also competent to drive autorickshaw if gross weight of the vehicle was 7,500 kgs and ultimately the Division Bench of this Court held that the Insurance Company was liable to indemnify owner-cum-driver of the autorickshaw. Accordingly, the appeal filed by the Insurance Company was dismissed.

It is relevant to state at this stage, the latest judgment of the Hon''ble Supreme Court in the case of S. IYYAPAN v. UNITED INSURANCE COMPANY LTD., reported in , 2013 acj 1944 while considering the provisions of Section 149(2) (a) (ii) holding that the driver had licence to drive LMV but the vehicle was being used a commercial vehicle the Insurance Company can repudiate its liability to pay the compensation and recover from the owner the relevant paragraphs at 18, 19 and 20 reads as under:--

"18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer''s right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.

In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside.

We, therefore, allow this appeal, set aside the impugned judgment of the High Court and hold that the insurer is liable to pay the compensation so awarded to the dependants of the victim of the fatal accident. However, there shall be no order as to costs."

In the present case, the driver of the autorickshaw bearing No. KA 28/3019, which was involved in the accident that occurred on 31.12.2007 at 12.30 p.m., the driver had a valid LMV license i.e., from 5.11.1997 to 4.11.2017. Therefore, the insurance company is liable to pay the compensation to the claimants and recover from the owner of the vehicle as per the conditions of licence in view of the dictum of the Division Bench of this Court and in the light of the decision of the Supreme Court stated above.

The records reveal that the driver of the Autorickshaw was holding license from 5.11.1997 to 4.11.2017. Therefore, he was authorized to drive the autorickshaw for commercial use and the Insurance Company cannot disown the liability merely because the driver of the autorickshaw was owning only LMV license as on the date of the accident. In view of the reasons assigned the lst issue is answered in the affirmative holding the Insurance Company is liable to pay compensation. The 2nd issue is answered in the negative holding that the Tribunal is not justified in dismissing the claim petition against the Insurance Company and foisting the liability upon the owner of the vehicle.

Coming to the quantum of compensation, PW.1 -wife was examined as PW.1. Eye witness is examined as PW.2, who stated on oath that the accident took place on account of the rash and negligent driving on the part of the driver of the Autorickshaw. The same was accepted by the Tribunal and adverse finding was recorded against the driver of the autorickshaw. Admittedly adverse finding is not challenged either by the owner of the vehicle or the Insurance Company before this Court.

The claimants further contended that the claimant was earning Rs. 10,000/- per month by doing agricultural work and milk vending and also produced the documents Exs.P.18 to Exs.P.20 - ROR extracts. In view of the dictum of the Hon''ble Supreme Court in smt. SARLA VERMA & OTHERS v. DELHI TRANSPORT CORPORATION and another reported in , (2009) 6 SCC 121 and the subsequent judgment of the Hon''ble Supreme Court, and taking into consideration that the accident took place on 31.12.2007 and the proportionate income should be taken at Rs. 4,000/- per month, since the claimants have not produced any material to show that the deceased was earning Rs. 10,000/- per month from the agricultural work. It is appropriate to take the income of the deceased as on the date of the accident at Rs. 4,000 x 12 x 13 = Rs. 6,24,000/-. There are seven claimants therefore the proper deduction would be 1/5th which comes to Rs. 4,99,200/-.

The Tribunal considering the income of the deceased as Rs. 3,000/- has granted Rs. 3,64,000/- towards loss of dependency, which is contrary to law; the Tribunal has granted Rs. 22,000/- towards loss of consortium to the lst petitioner and love and affection to petitioners 2 to 7, and Rs. 8,000/- towards funeral expenses which are inadequate and cannot be sustained.

Considering the entire material on record by re-appreciating both oral and documentary evidence. This Court is of the considered opinion, that the claimants wife, mother and children of the deceased are entitled to the compensation as under:--

In view of the aforesaid reasons, the appeal filed by the claimants is allowed in part modifying the impugned judgment and decree. The claimants are entitled to the enhanced compensation of Rs. 3,25,000/- with interest @ 6% p.a. from the date of petition till the date of realization. The Insurance Company is liable to pay compensation to the claimants and recover the same from the owner in accordance with law.

The 3rd respondent - Insurance Company is liable to pay compensation to the claimants in view of the dictum of the Division Bench of this Court and Hon''ble Apex Court stated supra and recover the same from the owner in accordance with law.

Out of the enhanced compensation of Rs. 3,25,000/-, 90% of the award amount is ordered to be shared amongst the claimant Nos. 1, 3 to 7 and 10% shall be given to the 2nd claimant the mother. Out of 90% of the enhanced compensation, the claimants are entitled to withdraw 40%. The remaining 50% shall be deposited in the name of the claimant Nos. 1, 3 to 7 in any Nationalized Bank for a period of 3 years. The balance 10% of the enhanced compensation amount shall be released in favour of the mother of the deceased who is aged 73 years, forthwith.