Kempaiah vs S.S. Murthy <BR> The Divisional Manager,Oriental Insurance Co. Ltd. Vs Kempaiah

B. Sreenivas Gowda, J.—As these two appeals are arising out of a common judgment and award of the Tribunal, they are heard together and disposed of finally by this common judgment.

In a road traffic accident occurred on 10-09-2008, one K. Viji alias Manu died. His parents and younger sister filed a claim petition in MVC No. 1023/2009 before the MACT, Bangalore, seeking compensation u/s 166 of Motor Vehicles Act, from the owner and insurer of the offending vehicle. The Tribunal by impugned judgment and award awarded a sum of Rs. 3,66,000/- with interest at 6% per annum and directed the owner and the insurer to pay the said amount jointly and severally. Aggrieved by the said judgment and award of the Tribunal, the insurer of offending vehicle has preferred MFA No. 2120/2011 challenging the award on the ground of liability, whereas, claimants have preferred MFA No. 8199/2011 seeking enhancement of compensation.

As there is no dispute regarding death of deceased in the road traffic accident occurred on 10-09-2008 due to rash and negligent driving of the offending lorry bearing registration No. KA-05-D-5796 by its driver while deceased was travelling as a pillion rider on a two wheeler--TVS 50 bearing registration No. KA-4-1J-1450.

The only points that arise for our consideration in these appeals are:

i) Whether the finding of the Tribunal on liability in directing the insurer to pay the amount is sustainable in law ?

ii) Whether quantum of compensation awarded by the Tribunal is just and proper or does it call for enhancement?

Sri. O. Mahesh, the learned Counsel appearing for the insurer of offending vehicle submits, admittedly the offending lorry is a heavy motor vehicle and it''s driver having possessed licence to drive light motor vehicle non-transport which was valid from 30-07-1988 to 29-07-2018 could not have driven the offending lorry. The Tribunal without considering this material aspect of the matter has committed an error in fastening liability on the insurer and therefore he prays for allowing the appeal filed by the insurer and dismissing the appeal filed by the claimants against the insurer.

Per contra, learned Counsel appearing for the claimants submits, the driver of the offending lorry having possessed the licence to drive light motor vehicle, non-transport, valid from 30-07-1988 to 29-07-2018 was authorized to drive the offending vehicle as on the date of the accident and therefore the Tribunal considering this aspect of the matter is justified in directing the owner and the insurer of the offending vehicle to pay the compensation amount jointly and severally. As such, there is no error in the said finding of the Tribunal on liability warranting interference of this Court. However, she submits, quantum of compensation awarded by the Tribunal is on the lower side and therefore she prays for allowing the appeal filed by the claimants by enhancing the compensation awarded by the Tribunal and dismissing the appeal filed by the insurer.

Sri. V.Y. Kumar, learned Counsel appearing for the insurer in the appeal filed by the claimants, supported the arguments of Sri. O. Mahesh appearing for the appellant in MFA No. 2120/2011.

It is not in dispute that when deceased was travelling as a pillion rider on a two wheeler--TVS 50 on Mysore road, near Ring road, Bangalore, it was hit by the offending lorry bearing registration No. KA-05-D-5796 and the accident has occurred due to rash and negligent driving of the driver of the lorry. It is also not in dispute that driver of offending lorry had possessed licence to drive light motor vehicle, non-transport, valid from 30-07-1988 to 29-07-2018 and the unladen weight of the offending lorry classified as heavy transport vehicle is more than 7,500 kgs. If that is so, driver having possessed licence to drive light motor vehicle, non-transport, valid from 30-07-1988 to 29-07-2018, was not authorized to drive the offending lorry. Therefore, it has to be held that the driver did not possess valid and effective driving licence/endorsement as on the date of accident. This aspect is corroborated by the fact that the driver subsequent to the accident has obtained an endorsement dated 23-09-2008 valid upto 22-09-2011. If the driver of the offending vehicle could drive heavy transport vehicle with the licence to drive light motor vehicle, non-transport, valid from 30-07-1988 to 29-07-2018, he would not have obtained an endorsement dated 23-09-2008 valid upto 22-09-2011. If the Tribunal had considered this aspect of the matter in a proper perspective manner it would not have fastened the liability on the insurer of the offending vehicle. Further, finding of the Tribunal on liability is not based on several judgments of this Court and of the Hon''ble Supreme Court in such and similar cases and therefore it is liable to be modified and it is held that the insurer of the offending lorry is exonerated from liability to pay compensation to the claimants and the owner of the offending lorry alone is liable to pay the compensation awarded by the Tribunal as well as additional compensation awarded by this Court in the appeal.

Now, we have to consider whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement.

The claimants in support of their contention that deceased by working as a coolie in milk selling was earning more than Rs. 10,000/- per month, have examined the first claimant--father of the deceased as P.W. 1 and have produced the salary certificate of the deceased at Ex. P.9. P.W.3--Ramesh, Proprietor of Mangala Agency, where deceased claimant to have been working as a coolie in milk selling, has not produced relevant document in support of his contention that he was paying salary of Rs. 10,000/- to the deceased. In the absence of proof of income, considering the age of the deceased, year of accident as 2008 and his avocation as a daily wager, his income is assessed at Rs. 4,500/- per month as against Rs. 4,000/- per month assessed by the Tribunal. Since, deceased died as a bachelor, 50% of his income has to be deducted towards his personal and living expenses and remaining 50% has to be taken as his contribution towards family. Multiplier of ''15'' has to be applied, based on the age of his mother who was 38 years at the relevant point of time. So, loss of dependency is reckoned at Rs. 4,05,000/- (Rs. 4,500/- x 12 x 50/100 x 15) and it is awarded as against Rs. 3,36,000/- awarded by the Tribunal under this head.

In addition to that, we award a sum of Rs. 50,000/- under various heads of convention such as love and affection, loss of estate and transportation of dead body and funeral expenses.

Thus claimants are entitled for the following compensation:

Additional compensation comes to Rs. 89,000/-

Accordingly both the appeals are allowed in part and the Judgment and award of the Tribunal is modified both on liability and quantum of compensation. The insurer of offending vehicle is exonerated from liability and the owner of the offending vehicle is directed to pay the compensation awarded by the Tribunal as well as additional compensation awarded by this Court with interest at 6% p.a. from the date of claim petition till the date of realisation.

It is made clear that the claimants are entitled to recover the compensation awarded by the Tribunal as well as additional compensation awarded by this Court with interest at 6% p.a. from the date of claim petition till its realization from the owner of the offending vehicle.

Amount deposited by the insurer in their appeal is directed to be refunded to the insurer.

No order as to costs.