K. Surya Prabha vs Leelavathi and Others

N.K. Patil, J—This is claimant''s appeal filed against the impugned judgment and award dated 4th October 2012 passed in MVC No. 4708/2011 on the file of the XI Additional Judge & MACT, Court of Small Causes, Bangalore City (SCCH-12) (hereinafter referred to as ''Tribunal'' for short), for enhancement of compensation.

The Tribunal by its judgment and award has awarded a sum of Rs. 8,67,000/- under different heads with interest at 6% per annum from the date of petition till the date of deposit as against the claim of the claimant for a sum of Rs. 30,00,000/-, on account of the death of the deceased late Sri M Suresh A Babu @ M Suresh Kumar in the road traffic accident and directed the 1st respondent-owner of the Vehicle to pay the compensation. Not being satisfied with the compensation awarded by the Tribunal, the appellant has presented this appeal, for enhancement of compensation and to set aside the direction issued to the 1st respondent to indemnify the award.

In brief, the facts of the case are:

"The appellant is the wife of the deceased and she had filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation of Rs. 30,00,000/- on account of the death of the deceased in the road traffic accident, contending that, the deceased M Suresh A Babu @ M Suresh Kumar, aged about 32 years, was working as a cameraman at Kasthuri T.V Bangalore, earning Rs. 10,000/- per month and he met with an accident when he was walking towards his house on Kamasamudram-KGF Main Road, in front of cocks block, Marikuppam. On account of rash and negligent driving by the driver of a TATA ACE vehicle bearing registration No. KA-08-3927 which came from SP office side at high speed. Due to the impact, He sustained grievous head injuries and became unconscious and died on the spot. Immediately he was taken to Government Hospital, Robertsonpet, KGF. After first aid he was referred to NIMHANS, Bangalore. After treatment he was again referred back to Government Hospital, KGF, but unfortunately, during the course of treatment the deceased succumbed to the injuries in the hospital at about 4.00 p.m on 04.05.2011. The appellant performed the funeral and obsequies. It is further case of the appellant that due to his untimely death, she suffered socially and economically."

The said claim petition had come up for consideration before the Tribunal. The appellant examined herself as PW1 and M Ramesh as PW2 and got marked documents as Exs. P1 to P11. The respondents have examined RW1 and RW2 and got marked documents at Exs. R1 to R5. The Tribunal after appreciating the oral and documentary evidence and other material available on record, has allowed the claim petition in part and awarded compensation of Rs. 8,67,000/- under different heads with interest at 6% p.a., from the date of petition till the date of deposit and directed the 1st respondent/owner of vehicle to indemnify the award amount. Not being satisfied with the compensation awarded by the Tribunal and also the directions issued to the owner of the offending vehicle to indemnify the award, appellant has presented this appeal, for enhancement of compensation and also to set aside the direction issued to the owner to indemnify the award.

Sri. N. Gopalkrishna, learned counsel appearing for the appellant at the outset submitted that, the Tribunal has erred in not awarding reasonable compensation towards loss of dependency and also conventional heads and it requires enhancement. The deceased was aged about 32 years as on the date of the accident and was the sole bread earner of the family. The appellant is dependent upon the earnings of her husband. The income assessed by the Tribunal at Rs. 6,500/- p.m is on the lower side and it requires reassessment and from that 1/3rd is to be deducted towards personal expenses for calculation of loss of dependency. Further he submitted that in the light of the judgments of Apex Court and this Court in catena of decisions, the compensation awarded by the Tribunal is liable to be modified. The reasoning given by the Tribunal for issuing direction to the 1st respondent to indemnify the award amount in para-18 of the Judgment is contrary to law laid down by the Apex Court in the case of S. Iyyapan Vs. United India Insurance Company Ltd. and Another, (2013) 5 ABR 385 : (2013) 3 ACC 19 : (2013) ACJ 1944 : (2013) 7 AD 202 : AIR 2013 SC 2262 : (2013) 10 JT 85 : (2013) 172 PLR 409 : (2013) 3 RCR(Civil) 654 : (2013) 7 SCALE 637 : (2013) 7 SCC 62 and therefore, the judgment and award passed by the Tribunal may be set aside holding that the respondent Nos. 1 and 2 both are liable to pay the compensation, reserving liberty to the Insurance Company to proceed against the insured for the alleged breach of policy. He further placed reliance on the judgment of the division bench of this Court dated 10th February 2014 passed in MFA No. 4535/2010, in the case of Sandhya Sudhakaran v. Oriental Insurance Co. Ltd., and other connected cases wherein this Court has also taken the same view and decided the matter under Sections 2(21) and 2(47) r/w Section 10 of the Motor Vehicles Act. Therefore he submitted that appropriate direction may be issued to the insurance company to indemnify the award amount with a liberty to it to proceed against the insured for alleged breach of policy terms and conditions in accordance with law and also submitted that the rate of interest awarded at 6% per annum is also on the lower side since the accident is of the year 2011 and the same may be enhanced to 9% to 10% per annum.

Per contra, the learned counsel appearing for the Insurer inter alia contended and substantiated that, the impugned judgment and award passed by the Tribunal is just and proper. He further placed reliance on the judgment of this Court reported in Vishwanath Shetty Vs. Vincent Pinto and The National Insurance Company Limited, (2011) ILR (Kar) 2827 in the case of New India Assurance Company Limited, v. Kamala and others and submitted that in the instant case also the driver did not possess effective driving licence to drive the goods vehicle.

After considering the submission made by the learned counsel appearing for both the parties and on perusal of the material available on record, including the impugned judgment and award passed by the Tribunal, the points that arise for consideration are:

"1. Whether the Tribunal is justified in directing the 1st respondent-owner to indemnify the award passed by it?

Whether the quantum of compensation awarded by the Tribunal is just and reasonable?"

Re-point No. 1: It is significant to note that the driver of the vehicle bearing regn. No. KA-08-3927 possessed the DL only for LMV (NT). But as on the date of alleged accident, he had DL for light goods (LGV) vehicle and thereby he has violated the terms and conditions of the policy. The inspector of the motor vehicles-RW2 has produced Ex. P5, B Register Extract and deposed that the licence holder having DL only to drive light motor vehicle non-transport and as per Ex. R4, vehicle is light commercial vehicle (Transport) unless he has driving licence to drive the transport vehicle he cannot drive the vehicle as mentioned in Ex. R4 and produced Exs. R1 to R5. Ex. R1 discloses that licence holder is authorized to drive light motor vehicle and Ex. R4 discloses that the driver was authorized to drive only LMV (NT). It is further pertinent to note that as per Ex. R5 B register extract the unladen weight is 1,550 Kg and it is significant to note that in view of the judgments of the Apex Court and this Court, the light motor vehicles are treated as light goods vehicle. The unladen weight is 7,500 Kg and unladen weight of the instant vehicle is 1,500 kg which is less than the same and seating capacity is only 1+1. As rightly pointed out by the learned counsel appearing for the appellant, the Hon''ble Apex Court in the case of S. Iyyapan Vs. United India Insurance Company Ltd. and Another, (2013) 5 ABR 385 : (2013) 3 ACC 19 : (2013) ACJ 1944 : (2013) 7 AD 202 : AIR 2013 SC 2262 : (2013) 10 JT 85 : (2013) 172 PLR 409 : (2013) 3 RCR(Civil) 654 : (2013) 7 SCALE 637 : (2013) 7 SCC 62 has held thus:

"16. The heading "Insurance of Motor Vehicles against Third Party Risks" given in chapter XI of the Motor Vehicles Act, 1988 (Chapter VVIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons traveling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force.

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 Vehicle 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 license, 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.

For the reasons stated above, this appeal is allowed. It is directed that the compensation amount awarded by the Tribunal shall be paid by Respondent No. 5 -Insurance Company within a period of two months. It is for the insurance company to proceed against the insured for alleged breach of policy."

(Underling is by us)

Taking into consideration the judgments of the Apex Court and the Division judgments of this Court 10th February 2014 in MFA NO.4535 of 2010 between A. Sandhya Sudhakaran and Oriental Insurance Co. Ltd., also the judgment of Division Bench of this Court dated 25th July 2014 passed in MFA No. 1328/2011 between Goojabai and Arjunman Ara @ Arjun Ara and others, we hold that both the owner and insurer are jointly and severally liable to indemnify the award amount.

Further we direct the insurer to indemnify the award amount as it is not in dispute as on the date of accident, the vehicle was insured with the insurer. However liberty is reserved to the insurer to proceed against the insured for alleged breach of policy terms and conditions and if the insurer is so advised or need arises, in accordance with law.

Re-point No. 2 : It is not in dispute that the deceased died in the road traffic accident. Further it is not in dispute that, the deceased was aged about 32 years, hale and healthy and looking after the welfare of the appellant. The claimant is none other than the wife of the deceased, who has lost her future security due to his untimely death. The deceased was Cameraman at Kasthuri T.V, Bangalore and earning Rs. 10,000/- p.m Having regard to the age, avocation and year of accident, the Tribunal has assessed the income of the deceased at Rs. 6,000/- p.m the same is just and proper and we accept the same.

Out of Rs. 6,500/-, if 1/3rd is deducted towards the personal expenses of the deceased, it comes to Rs. 4,334/-. In the light of the decision in Sarla Verma''s case, for the age of the deceased who was 32/35 years, the appropriate multiplier applicable is ''16''. Accordingly, the appellant is entitled towards loss of dependency at Rs. 8,32,128/- (Rs. 4,334/-x12x16).

Considering the facts and circumstances of the case, the wife has lost her life partner at an young age, lost the love and affection and lost future security, we deem it fit to award Rs. 1,00,000/- towards loss of consortium, Rs. 25,000/- towards loss of estate, Rs. 25,000/- towards loss of love and affection and Rs. 25,000/- towards funeral and transportation expenses. In all, the claimant is entitled for Rs. 10,07,128/- as against Rs. 8,67,000/- awarded by the Tribunal.

As rightly pointed out by the learned counsel appearing for the claimant the rate of interest awarded by the Tribunal at 6% is also on the lower side as the accident occurred in the year 2011. In the light of catena of Judgments, we deem it fit to award 9% interest per annum on the enhanced compensation.

Having regard to the facts and circumstances of the case as stated above, appeal is allowed in part. The impugned judgment and award passed by the Tribunal dated 4th October 2012 in MVC No. 4708/2011 is hereby modified awarding compensation of Rs. 10,07,128/- as against Rs. 8,67,000/- awarded by the Tribunal.

The liability fixed by Tribunal on the owner is hereby set aside and the same is jointly and severally fixed on the owner and the insurer. However, the insurer is directed to deposit the entire compensation of Rs. 10,07,128/- with interest at 6% p.a on Rs. 8,67,000/- and 9% p.a on enhanced compensation of Rs. 1,40,128/- from the date of petition till the date of realization, within three weeks from the date of receipt of copy of this judgment.

However liberty is reserved to the 2nd respondent-insurer to proceed against the owner if there is any violation of terms and conditions of the policy issued.

Apportionment ordered by the Tribunal in respect of the compensation awarded by it remains undisturbed.

Out of the enhanced compensation of Rs. 1,40,128/-, Rs. 1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the appellant/wife for a period of ten years and renewable for another ten years, with liberty to her to withdraw the interest accrued on it.

The remaining Rs. 40,128/- with proportionate interest shall be released in favour of the appellant, immediately, on deposit by the 2nd respondent-insurer.

Draw the award, accordingly.

Sri O Mahesh, learned counsel is permitted to file vakalath for the 2nd respondent within four weeks.