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Judgment
A.V. Chandrashekara, J.—Heard the learned counsel appearing for the appellant and the learned counsel appearing for the insurer-second respondent herein.
Appellants were the claimants in MVC No. 674/2007 which was pending on the file of MACT, Kunigal, Tumkur District.
Facts leading to filing of claim petition before MACT at Kunigal are as follows:
"Siddaiah the husband of the first claimant and father of claimants No. 2 to 3 died in a road traffic accident that occurred on 26.3.2007 while walking on the foot path of Goragondanahalli village. According to the claimants, a Hero Puch two wheeler bearing No. KA.25 R. 1954 belonging to the first respondent being driven rashly and negligently by its rider dashed against Siddaiah, as a result of which he sustained severe injuries and died. Claimants have filed claim petition seeking compensation of Rs. 20,00,000/-." 4. The said claim was contested by the insurer-2nd respondent herein. The first respondent who was rider of the said motor bicycle did not appear before MACT. Claimants had called up to prove the contents of their claim strictly. They had called upon the claimants to prove the manner in which the accident took place, last view, dependency etc.,. According to them, the rider of the vehicle did not have a valid effective driving licence to ride the said vehicle and therefore Insurance Company was not liable to indemnify the claimants. Ultimately, the following issues came to be framed by Tribunal.
"i. Whether the petitioners prove that one Siddaiah died due to the injuries sustained in the motor vehicle accident which took place on 26.3.2007 at 9.30 a.m. on Y.T. Road, Opposite Survey Siddalingappa''s house, Goragondanahalli, Tiptur Town, due to the actionable negligence riding of the Hero Puch vehicle bearing Reg. No. KA.25 R. 1954 by its rider?
ii. Whether the 2nd respondent proves that the petition is bad for non-joinder of necessary parties?
iii. Whether the 2nd respondent proves that the rider of the above said Hero Puch was not holding valid and effective driving licence to ride the same as on the date of accident?
iv. Whether the petitioners are entitled for compensation? If so for how much amount and from whom?
v. To what order or award?"
Smt. Nagarathna, wife of the deceased Siddaiah has been examined as P.W. 1 and one Kumar, an eyewitness to the incident in question was examined as P.W. 2. Exs. P1 to P11 were marked on their behalf. H. Shrinidhi is examined as R.W. 1 and insurance policy is marked as Ex. R1.
The fact that the vehicle in question had been insured and valid as on the date of accident is not in dispute. Ultimately, the learned Judge of MACT has allowed the claim petition partly granting compensation of Rs. 6,44,000/-, fastening the liability on the 1st respondent only and the claim petition against the 2nd respondent is dismissed. It is this judgment and award of the Tribunal which is called in question on various ground set out in the appeal memo. Enhancement of the compensation is also sought on the ground that compensation awarded by the Tribunal is meager and inadequate.
Perused the Lower Court Records. Heard the learned counsel appearing for the parties.
The fact that Siddaiah died in a road traffic accident is not in dispute. The trial Court has specifically held that the accident took place solely due to the negligent riding of the Hero Puch bearing Registration No. KA.25 R.1954. The fact that the claimants are the dependents of deceased Siddaiah is also not in dispute. What is disputed by the Insurance Company is in regard to its liability to indemnify the claimants. It had been contended before the trial Court that the rider of the said Hero Puch vehicle did not have valid and effective driving licence and therefore insurance company is not liable to indemnify the claimants. That contention has been upheld by the trial Court.
As could be seen from the records, the rider of the vehicle in question was one by name Kumar Sethi, aged about 21 years, resident of Tiptur town. Owner of the said Hero Puch two wheeler was Sri Shankar Laxman Rao Savant, resident of Tiptur to whose vehicle the second respondent Insurance Company had issued the policy. A case in Crime No. 63/2007 against the driver Kumar Shetty was registered for the offences punishable under Sections 279, 337 and 338 r/w Section 304(A) of IPC and under Section 181 of Motor Vehicles Act, 1988. The police have came to the conclusion that the said rider did not have a driving licence at all and this is evident from the particulars furnished to the claimants vide Ex. P11. It is mentioned in Ex. P11 information issued by the police to the claimant that rider Kumar Shetty did not hold a driving licence. Therefore, the trial Court has exempted the insurer from indemnify the claimants.
If a vehicle is driven by an unlicensed driver, insurance company can request the Tribunal to exempt from indemnifying the claimants. In the case of United India Insurance Co. Ltd. Vs. Gian Chand and others, the Hon''ble Supreme Court has held as follows;
"As regards exoneration of Insurance Company on account of the insured vehicle being driven by an unlicensed driver there are two lines of cases. The first line of cases consists of fact situations wherein the insured are alleged to have committed breach of the condition of Insurance Policy, which required them not to permit the vehicle to be driven by an unlicensed driver. Such a breach is held to be a valid defence for the Insurance Company to get exonerated from meeting the claims of third parties who suffer on account of vehicular accidents which may injure them personally or which may deprive them of their bread winner on account of such accidents caused by the insured vehicles. The other line of cases deals with the insured owners of off ending motor vehicles that cause such accidents wherein the insured owners of the vehicles do not themselves commit breach of any such condition and hand over the vehicles for driving to licensed drivers who on their own and without permission, express or implied, of the insured, hand over vehicles or act in such a way that the vehicles get available to unlicensed drivers for being driven by the latter and which get involved in vehicular accidents by the driving of such unlicensed drivers. In such cases, the Insurance Company cannot get benefit of the exclusionary clause and will remain liable to meet the claims of third parties for accidental injuries, whether fatal or otherwise. When, as in the instant case, no case was put up by the insured that he did not know that the driver to whom the vehicle was being handed over was not having a valid licence nor he stepped in the witness box to prove his case exposing him to an adverse inference being drawn against him to the effect that the vehicle had been handed over by him for being driven by an unlicensed driver and a finding is reached that the insured had handed over the vehicle for being driven by an unlicensed driver, the Insurance Company would get exonerated from its liability to meet the claims of third party who might have suffered on account of vehicular accident caused by such unlicensed driver." 11. Admittedly, charge sheet is filed against Kumar Shetty on the ground that he was responsible for the accident and that he did not hold the driving licence as on the date of accident. Merely because the police have filed a charge sheet against the accused for offence punishable under Section 181 of Motor Vehicles Act, no presumption could be drawn that the said charge has ultimately been proved in the Magistrate Court in which trial has taken place. Section 181 of Motor Vehicles Act provides for punishment to a riders/driver of a vehicle driving the same in contravention of Section 3 or 4 of Motor Vehicles Act. Section 3 of Motor Vehicles Act, 1988 mandates that; ''No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle.''
Section 4 mandates that; ''No person under the age of eighteen years shall drive a motor vehicle in any public place.
Proviso to Section 4 states that; a motor cycle with engine capacity not exceeding 50cc may be driven in a public place by a person after attaining the age of sixteen years.
Nothing is placed on record to show that the Magistrate Court has found the accused guilty for having violated the provisions of Section 181 r/w Sections 3 and 4 of the Motor Vehicles Act, 1988.
In the present case representative of the Insurance Company is examined as R.W. 1. He has filed his affidavit in lieu of examination in chief holding that the said Kumar Shetty did not have a driving licence as on the date of accident and therefore police have filed the charge sheet against him.
To a specific question put to him during the course of cross-examination, he has feigned ignorance as to whether said Kumar Shetty was riding the two wheeler for quite a long time.
Admittedly the owner did not appear before the Tribunal. There is no positive evidence placed on record that the insured had handed over the vehicle to be driven by an unlicensed driver. Though the Insurance Company has been able to probablise that the rider of the vehicle did not have a valid and effective driving licence as on the date of accident, it cannot be said that the vehicle in question had been purposefully handed over by the owner for being driven by an unlicensed driver. Therefore, the finding of the trial Court that the insured had handed over the vehicle for being driven by an unlicensed driver, cannot be accepted and the Insurance Company cannot be exonerated from its liability to meet the claim of third parties who suffer on account of vehicular accidents caused by an unlicensed driver. The learned counsel for the insurer has vehemently argued that the insurer has a valid defence under Section 147 of Motor Vehicles Act to disown the liability in view of vehicle being driven by an unlicenced driver/rider. But in view of the distinction found in the above decision, the insurer is liable to indemnify the claimants.
As far as the quantum of compensation is concerned, the Tribunal has awarded in all a sum of Rs. 6,44,000/- as compensation. Learned counsel for the insurer has submitted, the amount awarded as compensation is otherwise just and proper. Admittedly, the deceased was aged about 45 years and he has left behind his wife, three children and aged mother. The Tribunal has assessed income of the deceased at Rs. 6,000/- per month. He was working as Attender in Syndicate Bank. Ex. P9 is the salary certificate of the deceased issued by Syndicate Bank. As per the salary certificate, the total gross salary is mentioned as Rs. 10,972.08 and net salary is Rs. 6,005.98. A sum of Rs. 1,171.60 is deducted towards EPF loan and Rs. 726.00 towards LIC premium, a sum of Rs. 2,215.00 is deducted towards demand loan. Ex. P9 does not disclose anything about statutory deduction. Therefore, Rs. 4,966/- cannot be deducted to consider the loss of future dependency is concerned. Therefore, the gross salary of Rs. 10,972/- has to be taken into consideration.
On the basis of the preponderance of probability, assessment of his income at Rs. 11,000/- per month would be proper. In view of the five persons depending upon him, 1/4th of his income to be deducted out of his monthly income. A sum of Rs. 2,750/- will have to be deducted towards his personal income and then net monthly loss of income is Rs. 8,250/-. This will have to be multiplied by 14. Then, total loss of future dependency would work out to Rs. 13,86,000 (Rs. 8,250 x 12 x 14).
A sum of Rs. 20,000/- each is awarded under the head love and affection, loss of consortium and loss of estate i.e. Rs. 60,000/- (20,000 x 3).
A sum of Rs. 15,000/- is awarded under the head funeral expenses and transportation of dead body. Thus, claimants are entitled to a total compensation of Rs. 14,61,000/-.
Claimants are entitled to recover the compensation from respondents 1 and 2 jointly and severally.
Accordingly, this appeal is allowed in part, enhancing the compensation from Rs. 6,44,000/- to Rs. 14,61,000/-. Claimants are entitled to additional compensation of Rs. 8,17,000/- with interest at 6% per annum, to be recoverable from the owner and insurer jointly and severally and insurer shall indemnify the claimants.
The apportionment of the enhanced compensation shall be done in accordance with the apportionment done by the Tribunal.
Parties to bear their own costs.