1

IN THE HIGH COURT OF

CIRCUIT BENCH AT

DATED THIS THE 30 th DAY OF JANUARY, 2013

BEFORE

THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA

MFA.20185/13 C/w. MFA.CROB.726/13, MFA.20184/13, MFA.CROB.725/13 (MV)

MFA.20185/13 BETWEEN:

United Insurance Co. Ltd., Srinivas Talkies, 1 st Floor, Market, P.B. No.54, Dharwad. Reptd. through its Divisional Office, Ankola Arcade, P.B. Road, Dharwad. Reptd. by its Divisional Manager, Dr.P.M. Kulkarni. … Appellant

(By Mrs.Preethi Shashank, Adv. )

AND:

1. Hanamantappa, S/o Kashappa Patil, Aged about 52 years. Occ: Nil but physically handicapped, R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad. 2

2. Kumar Shilpa, D/o Hanamantappa Patil, Aged about 23 years, Occ: Student. R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad.

3. Asif Allabaksh Shaikh, Age: Major. Occ: Owner of rickshaw bearing No.KA-25/A-5007 (A/R Cab), R/o Pendar Galli, Dharwad. … Respondents

(By Sri S. N. Banakar, Adv. for C/R.1 & 2)

This MFA is filed u/s 173(1) of the Motor Vehicles Act, 1988, praying to set aside the award dated 30.08.2012 in MVC.363/2011, on the file of the Court of Fast Track Court-III, Dharwad, as against the appellant.

IN MFA.CROB.726/13 BETWEEN:

1. Hanamantappa, S/o Kashappa Patil, Aged about 52 years. Occ: Nil but physically handicapped, R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad.

2. Kumari Shilpa, D/o Hanamantappa Patil, Aged about 23 years, Occ: Student.R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad. .. Cross Objectors

(By Sri. S. N. Banakar, Adv.) 3

AND:

1. The United India Insurance Co. Ltd., Srinivas Talkies, 1 st Floor, Market, P.B. No.54, Dharwad. Reptd. through its Divisional Manager, Ankola Arcade, P.B. Road, Dharwad.

2. Asif Allabaksh Shaikh, Age: Major. Occ: Owner of rickshaw bearing No.KA-25/A-5007 (A/R Cab), R/o Pendar Galli, Dharwad. … Respondents

(By Mrs Preeti Shashank, Adv.)

This MFA.CROB. is filed under Order 41 Rule 22 of CPC read with section 173(1) of the Motor Vehicles Act, 1988, praying to dismiss MFA.20185/13 and enhance the compensation by modifying the Judgment and Award dated 30.08.2012 in MVC.363/2011, on the file of the Court of Fast Track Court-III, Dharwad.

IN MFA.20184/13: BETWEEN:

United India Insurance Co. Ltd., Srinivas Talkies, 1 st Floor, Market, P.B. No.54, Dharwad. Reptd. through its Divisional Office, Ankola Arcade, P.B. Road, Dharwad. Reptd. by its Divisional Manager, Dr.P.M. Kulkarni. … Appellant

(By Mrs.Preethi Shashank, Adv. ) 4

AND:

1. Hanamantappa, S/o Kashappa Patil, Aged about 52 years. Occ: Nil but physically handicapped, R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad.

2. Kumar Shilpa, D/o Hanamantappa Patil, Aged about 23 years, Occ: Student. R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad.

3. Asif Allabaksh Shaikh, Age: Major. Occ: Owner of rickshaw bearing No.KA-25/A-5007 (A/R Cab), R/o Pendar Galli, Dharwad. … Respondents

(By Sri S. N. Banakar, Adv.)

This MFA is filed u/s 173(1) of the Motor Vehicles Act, 1988, praying to set aside the award dated 30.08.2012 in MVC.362/2011, on the file of the Court of Fast Track Court-III, Dharwad, as against the appellant.

IN MFA.CROB.725/13 BETWEEN:

1. Hanamantappa, S/o Kashappa Patil, Aged about 52 years. Occ: Nil but physically handicapped, R/o Tejaswi Nagar, 5

Kalaghatagi Road, Lakamanahalli, Dharwad.

2. Kumari Shilpa, D/o Hanamantappa Patil, Aged about 23 years, Occ: Student.R/o Tejaswi Nagar, Kalaghatagi Road, Lakamanahalli, Dharwad. .. Cross Objectors

(By Sri. S. N. Banakar, Adv.)

AND:

1. The United India Insurance Co. Ltd., Srinivas Talkies, 1 st Floor, Market, P.B. No.54, Dharwad. Reptd. through its Divisional Manager, Ankola Arcade, P.B. Road, Dharwad.

2. Asif Allabaksh Shaikh, Age: Major. Occ: Owner of rickshaw bearing No.KA-25/A-5007 (A/R Cab), R/o Pendar Galli, Dharwad. … Respondents

(By Mrs Preeti Shashank, Adv.)

This MFA.CROB. is filed under Order 41 Rule 22 of CPC read with section 173(1) of the Motor Vehicles Act, 1988, praying to dismiss MFA.20184/13 and enhance the compensation by modifying the Judgment and Award dated 30.08.2012 in MVC.362/2011, on the file of the Court of Fast Track Court-III, Dharwad.

These MFAs and Cross Objections coming on for Admission, this day, the Court delivered the following: 6

JUDGMENT

Though these appeals and Cross Objections are listed for admission, with the consent of learned Counsel on both sides they are heard finally.

2. MFA.20185/13 and MFA.20184/13 are filed by the Insurance Company assailing the liability of the

Insurance Company, while MFA.Crob.726/13 and

MFA.Crob.725/13 are filed in the respective appeals by claimants seeking enhancement of compensation.

3. According to the respondent-claimants, Renuka wife of Hanumanthappa and her son Amar were traveling in an autorickshaw bearing registration No.KA.25/A.5007 from Dharwad to , 17.10.2010 at about 22.45 hrs when it was driven in a rash and negligent manner and dashed against a Jeep bearing registration

No.KA.22/F.1830, as a result both Renuka and Amar sustained grievous injuries as the vehicle in which they were traveling turned turtle. They were shifted to KIMS 7

hospital, Hubli, where despite treatment they died on

18.10.2010. The driver of the autorickshaw also died on

20.10.2010. The police had filed a chargesheet against the driver of the autorickshaw .

4. Contending that wife of 1 st claimant and mother of 2 nd claimant, the son of 1 st claimant and brother

of the 2 nd claimant, had died in the accident two claim petitions were filed. The said claim petitions were contested by respondent-Insurance Company as well as by the owner of the autorickshaw .

In support of their case, the claimants let-in evidence of two witnesses and produced eight documents whch were marked as Ex.P.1 to P.8, while the respondents let-in evidence of three witnesses and produced eleven documents as Ex.R.1 to R.11.

5. On the basis of the said evidence, the Tribunal awarded compensation of Rs.5,44,000/- with interest at the rate of 6% p.a. from the date of petition till realization in MVC.362/11 and Rs.3,59,000/- with interest at the rate 8

of 6% p.a. from the date of petition till realization in

MVC.363/11. The Tribunal fastened the liability jointly and severally on the owner and insurer of the autorickshaw.

6. Being aggrieved by the judgment and award

on the question of liability, the Insurance Company has

preferred the appeals, while respondents-claimants have

filed cross objections seeking enhancement of

compensation.

7. I have heard the learned Counsel for the

parties.

8. It is contended on behalf of the Insurance

Company that the Tribunal was not right in fastening the

liability on the Insurer. In the instant case the

autorickshaw had the permit to ply from the limits of

HDMC within a distance of 10 Kms. But in the instant case

the autorickshaw was proceeding towards Tegur which is

22 Kms away from Dharwad Jubilee Circle. Therefore,

there was violation of terms of the policy and hence the 9

defence under section 149 of the Act was available to the

Insurance Company. The Tribunal ought to have exonerated the Insurance Company in view of there being a clear violation of the terms and conditions of the policy.

In support of this submission learned Counsel for appellant has drawn my attention to the certified copies of the documents which have been produced by the Insurance

Company before the Tribunal, particularly, Ex.R.10 which is a Notification dated 12.10.1995 issued by the

Government of Karnataka delimiting the limits of HDMC, and Ex.R.11, which is a Distance Certificate issued by the

Engineer of the Highway Authority. She therefore would contend that since the autorickshaw was plying beyond 10

Kms of radius from HDMC limits, there was violation of the permit and under Section 149 of the Motor Vehicles Act, the Insurance Company is exonerated.

9. Per contra, learned Counsel for respondents- claimants has referred to these documents to contend that Ex.R.3 which is a permit issued in respect of the 10

vehicle in question states that the area of the permit “had limits beyond 10 Kms.” and that the evidence on record particularly Ex.R.11 states that Tegur is 22 Kms from

Dharwad Jubilee Circle whereas permit to drive the autorickshaw is within 10 Kms radius from the limits of

HDMC. No material is placed before the Tribunal as to what was the limit of the Corporation and under the circumstances, document produced by the Insurance

Company is of no assistance to the Insurer to be exonerated of its liability. On the other hand, he submitted that the Tribunal has rightly fixed the liability on the Insurance Company as well as on the owner of the vehicle and that these are fit cases for enhancement of compensation.

10. On that aspect, learned Counsel for the respondent has submitted in so far as MVC.363/2011 is concerned, it pertains to the death of Amar who was 18 years of age earning Rs.5000/- per month. But the

Tribunal has assessed the notional income at Rs.3,000/- 11

per month which is on the lower side and therefore, the compensation awarded on the head of Loss of Dependency is meager.

As far as MVC.362/2011 is concerned, it is submitted that the deceased Renuka was earning Rs.9,000/- per month by doing tailoring work. She was also a housewife.

But the Tribunal has assessed a meager amount of

Rs.4000/- as the notional income and hence award of compensation on the head of Loss of Dependency is on the lower side. He, therefore, submitted that the Cross

Objections may be allowed and that the appeals may be dismissed.

11. Replying to the said argument learned Counsel for the appellant-Insurer reiterating the arguments as far as liability is concerned, has supported the judgment and award on the question of quantum of compensation. She submits that in the absence of there being any corroboration the Tribunal was right in awarding the compensation which does not call for interference in these 12

appeals in the Cross Objections. She, therefore submits that there is no merit in the cross objections.

One other argument made by the learned Counsel for the appellant is that, the driver of the vehicle at the time of the accident did not possess a valid and effective driving license. Drawing my attention to Ex.R.1 she states that the driver had a license to drive non-transport vehicle effective from 19.4.2008 to 28.4.2028. But in the instant case, as far as vehicle in question is concerned, it being a passenger autorickshaw, transport endorsement is issued only for 3 years. The said license would show that there was no transport endorsement. Therefore, the insurance company is not liable to satisfy the award.

12. Countering the said submission, learned

Counsel for respondent-claimants has drawn my attention to Ex.R.7 which is produced by RW.1, owner of the vehicle, which shows that the license was issued in the year 1996 for a period of 20 years i.e. upto 2016 and therefore, transport endorsement is not necessary in respect of 13

licenses issued prior to 2001. Therefore, there is no merit in this submission.

13. Having regard to the rival contentions the following points would arise for my consideration:

1. Whether the Tribunal was right in fastening the

liability on the Insurance Company on the premise

that there was no violation of the terms and

conditions of the policy?

2. Whether the Tribunal was right in fastening the

liability on the Insurance Company on the premise

that the driver of the autorickshaw possessed a

valid and effective driving license?

3. Whether the respondent-claimants who have filed

Cross Objections are entitled to additional

compensation?

14. From the material on record it is not in dispute that, on 18.10.2010 Renuka and her son Amar who were traveling in a passenger autorickshaw bearing registration

No.KA.25/A-5007 from Dharwad to Tegur died on account 14

of rash and negligent driving of the autorickshaw by the driver when it dashed against a jeep bearing Registration bearing No.KA.22/F-1830. The question is as to whether the owner of the autorickshaw, viz., insured had violated the terms and conditions of the permit. Ex.R.3 is the permit in respect of the vehicle in question. Column 5 of the same reads as follows:

“Area for which the permit/s valid: HDMC limits beyond 10 Kms radius.”

On a reading of the said document, what is implied is that for a radius of 10 Kms. beyond the limits of HDMC the autorickshaw is permitted to ply. In order to contend that the autorickshaw which was proceeding to Tegur was beyond the said limits what has been produced by the

Insurance Company is a Government Notification dated

12.10.1995 prescribing the limits of the municipal corporation, which is Ex.R.10 and Ex.R.11 is a Distance

Certificate which has been issued by the Engineer. On a consideration of these 3 documents what is to be ascertained is with regard to the limits of HDMC and as to 15

whether Tegur is within the radius of 10 Kms from the limits of HDMC. The notification which is dated 12.10.1995 shows the limits of the Corporation as on the said date.

But the accident has occurred on 18.10.2010. Therefore, as on the date of the accident what was the limits of the

Corporation is not made known by the Insurance

Company. That apart, Ex.R.11 which is a Distance

Certificate issued by the Engineer states that the distance from Dharwad Jubilee Circle to Tegur is 22 Kms. But what the permit condition states is that it is permissible for the autorickshaw to ply within a distance of 10 Kms from the limits of HDMC. Therefore, the distance between Dharwad

Jubilee Circle to Tegur being 22 Kms is of no relevance. In the absence of there being any concrete evidence as to whether Tegur is beyond the distance of 10 Kms radius from the limits of HDMC, not much reliance can be placed on these documents to come to conclusion that there is violation of terms and conditions of permit. Accordingly,

Point No.1 is answered. 16

15. As far as validity of the driving license is concerned, Ex.R.1 is a photocopy of driving license particulars, which shows that in respect of Light Motor

Vehicle (Non-Transport) was valid from 19.4.2008 to

28.4.2028. But in the instant case, we are concerned with the transport vehicle. As far as that aspect is concerned,

RW.1 the owner of the autorickshaw has produced Ex.R.7 which shows that the driver of the autorickshaw had a driving license to ply the autorickshaw valid from

26.8.1996 to 25.8.2016, i.e. for a period of 20 years. The said license which has been issued prior to 28 th March,

2001, when the amendment was made to the Central

Motor Vehicle Rules which is prospective is valid even with regard to transport vehicles. The Tribunal has rightly taken note of Ex.R.7 since the said license pertains to a transport vehicle as Ex.R.1 driving license pertains to vehicle other than transport vehicle. In that view of the matter, the license of the driver of the autorickshaw as on the date of accident was valid and effective. 17

In this regard, reliance can be placed on a decision of the Apex Court in the case of National Insurance Co.

Ltd., Vs. Annappa Irappa Nesaria reported in 2008 ACJ

728 . Accordingly Point No.2 is answered.

16. As far as the quantum is concerned,

MVC.363/2011 is with regard to the death of Amar who was 18 years. It is stated that he was earning Rs.5,000/-.

In the absence of any corroboration, the Tribunal has assessed the notional income at Rs.3,000/- per month and deducted 50% towards his personal expenses as he was a bachelor and by applying the multiplier of 18 by taking the age of deceased into consideration, has awarded

Rs.3,24,000/- under the head Loss of Dependency. But the Tribunal has lost sight of the fact that the accident occurred in the year 2010 and that even in the case of a non-skilled employee this Court has been assessing the notional income at Rs.4000/- per month and therefore, taking the same by deducting 50% and by applying the multiplier of 18, compensation of Rs.4,32,000/- is awarded 18

under the head of Loss of Dependency.(i.e.

2000x12x18=4,32,000). In addition, an amount of

Rs.35,000 is awarded towards conventional heads and towards medical expenses, thus taking the total compensation to Rs.4,67,000 instead of Rs.3,59,000/-.

The said compensation shall carry interest at the rate of

6% p.a. from the date of claim petition till realization.

17. As far as MVC.362/2011 is concerned, the deceased Renuka was a housewife and it is stated that she was also earning Rs.9,000/- per month from tailoring work. But in the absence of any corroboration the Tribunal has assessed the notional income at Rs.4,000/- per month.

But having regard to the latest decision of the Apex Court in the case of Santosh Devi vs. National Insurance

Company Ltd., 2012 ACJ 1428, wherein even in the case of skilled and unskilled persons such as tailor, barber, blacksmith, cobbler, mason and others, 30% increase in the total income over a period of time has to be considered. The same principle is applicable in the instant 19

case. Therefore, notional monthly income is assessed at

Rs.5,200/- instead of Rs.4,000/-. 1/3 rd of the same is deducted towards living expenses of the deceased. The appropriate multiplier of 14 is applied and compensation on the head of Loss of Dependancy is assessed at

Rs.5,82,456/- rounded of to Rs.5,82,400/- (i.e.Rs.

3467x12x14). In addition, a sum of Rs.40,000/- is granted on conventional heads making the total compensation to Rs.6,22,400/-. The said compensation shall carry interest at the rate of 6% p.a.

The directions with regard to apportionment and deposit given by the Tribunal are maintained.

18. In the result, the appeals filed by the

Insurance Company are dismissed. Cross Objections filed by claimants are allowed. No costs.

The amount in deposit to be transmitted to the

Tribunal.

SD/- JUDGE *sub/