Mangalamma and Others vs G.D. Mahesh and Others

A.V. Chandrashekara, J.—Present appeal is filed challenging the judgment and award dated 14.6.2010 passed by the Court of Fast Track Court IV and MACT, Mysore in MVC 334/2008.

Respondent No. 1-G.D. Mahesh herein is the owner of the offending vehicle and respondent No. 2 is the insurance company.

Facts leading to filing of the claim petition is as follows:

"The deceased Nagendra aged about 30 years was a loader in a tractor and trailor bearing KA-09-T-4671 and 4672. On 8.4.2007, when the deceased was traveling in the said trailor attached to the tractor on T. Narasipura-Talakadu Road, the driver of the said tractor drove the same in a rash and negligent manner as a result of which, the vehicle met with accident and the deceased sustained grievous injuries and succumbed to injuries in K.R. Hospital Mysore on the same day. Hence, the claimants had filed a claim petition under section 166 of MV Act seeking compensation. The Tribunal has awarded compensation of Rs. 5,14,000/- with interest at 6% p.a. by fixing the liability on the owner of the vehicle and dismissing the claim petition against the insurer and awarding lesser compensation. Aggrieved by the same, the claimants have filed this appeal." 4. The Tribunal has assessed the income of the deceased at Rs. 3,000/- per month and has deduction 1/4th of his income towards personal expenses and has thus awarded compensation of Rs. 5,14,000/- with interest under the following heads:

The grievance of the claimants is that the compensation awarded by the Tribunal is inadequate and in view of the fact that the deceased was hardly 30 years at the time of accident and was the only earning member of the family apart from being hale and healthy.

According to the insurance company, the vehicle in question was not driven by the driver who had possessed a valid licence and it was driven by a person at the instance of the driver appointed by the owner and he had driving licence to drive only Light Motor Vehicle Non Transport (LMV-NT). Accepting the contention of the insurer, the Tribunal has not mulcted the liability on the insurer on the ground that the insurance company is not liable to indemnify the claimants in the light of the vehicle being driven by a person other than the person appointed by the owner and the person who had driven the vehicle had no valid driving licence at the time of accident.

Paragraph 15 of the judgment of the Tribunal is relevant and the same is extracted hereinbelow:

"15. Now, who is liable to pay compensation, is to be considered. Admittedly, one B.N. Suresha was the driver of offending vehicle: i.e. tractor-trailer bearing Reg No. KA-09-T-4671/T-4672 at the time of accident, and hence he has been charge sheeted by the concerned police. Admittedly, this offending vehicle is insured with 2nd respondent and policy was in force at the time of accident, and Ex. R1 reveals the same. So, whether it is liable to pay compensation, is to be considered now. Ex. R2 extract of D.L. particulars pertaining to the driver B.N. Suresha reveals that he had driving licence to drive LMV(NT) at the time accident. Contents of Ex. P1 FIR reveals that driver was transporting the size stones at the time of accident. So, he had no valid and effective driving licence to drive the offending vehicle involved in the accident at the time of accident. Against this backdrop, 2nd respondent is not under any obligation to indemnify the 1st respondent. Alternatively, 1st respondent being the owner of offending vehicle is vicariously liable for the tortuous act of his employee. Swamy, including the act of permitting his friend B.N. Suresh to drive the vehicle at the time of accident. Consequently 1st respondent is liable to pay compensation to the petitioners. Accordingly, I answer Issue No. 2 in the affirmative." 8. Whether the insurance company is liable to indemnify the claimants even when the vehicle was driven by a person other than the person appointed by the owner, has been well dealt at length by a Division Bench of this Court in the case of K. Jayaraja Ballal Vs. Alfred Quadres and Another, .

In the said decision it is held that the presumption is that the driver of motor vehicles is driving the vehicle on his master''s business as his authorized servant and the burden is on the owner to rebut the said presumption. Further, it is held that if a person drives a vehicle with the consent of the owner or of his manager, the owner becomes vicariously liable for the accident caused by the driver. In the said decision reliance is placed upon the decision of the Hon''ble Apex Court in the case of Pushpabai Purshottam Udeshi and Others Vs. Ranjit Ginning and Pressing Co. (P) Ltd. and Another, .

The decision rendered in the case of Jayaraj Ballal has been followed upon by another Division bench of this Court in the case of Prabbavati Vs. Anton Francis Nazarath, to hold that if the driver allows an unauthorised person without competence to drive the vehicle, it will be a matter of negligence on the part of the driver in the course of his employment and the owner becomes vicariously liable; so also the insurance company.

As per the facts of the said case, the owner of the vehicle had taken up the plea that the truck was driven without his permission by his cleaner for his own work and that therefore, he was not liable to indemnify the claimants. The insurer had contended that it was not liable to pay compensation as the vehicle was not taken for the purposes of the owner that too without his consent by a person without holding driving licence. The said contention has been negatived by the Division Bench of this Court in Prabavathi''s case. Therefore, there is no merit in the argument advanced by Sri. Arun Ponnappa, the learned counsel for the respondent No. 2. Therefore, the insurer is liable to indemnify the claimants in terms of the decision rendered in Prabavathi''s case.

The deceased was hardly aged about 30 years and he has left behind his wife, children and mother. The accident took place in the year 2007. The income assessed by the Tribunal at Rs. 3000/- per month is on the lower side and it should have been atleast taken at Rs. 4,000/- per month. As per the decision of the Hon''ble Apex Court in the case of Chaturbhuj Pande and Others Vs. Collector, Raigarh, the income of the deceased will have to be assessed on the basis of broad preponderance of probabilities. Therefore, assessing income of the deceased at the rate of Rs. 4,000/- per month would not be excessive. The multiplier ''17'' has been applied by the Tribunal and 1/4th of the income of the deceased is to be deducted towards his personal expenses. Hence, the loss of dependency works out to Rs. 6,12,000/- (4000 x 17 x 12 x 3/4).

Further, a sum of Rs. 25,000/- each is to be awarded under the heads ''loss of consortium'', loss of estate'' and loss of love and affection'' respectively and Rs. 15,000/- is to be awarded towards ''transportation of dead body'' and funeral expenses.

Thus, the claimants are entitled for the following compensation:

ORDER

The appeal is allowed-in-part. The judgment and award passed by the Tribunal is modified. The claimant is entitled for total compensation of Rs. 7,02,000/- as against Rs. 5,14,000/- awarded by the Tribunal. The enhanced compensation of Rs. 1,88,000/- (Rupees One Lakh Eighty Eight Thousand only) shall carry interest at 6% p.a. from the date of claim petition till the date of realisation.

In view of the validity of the contract, the insurance company is directed to deposit the entire compensation amount together with interest within one month from the date of receipt of a copy of this judgment. Apportionment of the compensation to the claimants shall be done as per the apportionment done by MACT.

Parties to bear their own costs.