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2019 Supreme(Kar) 2212
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.M.SHYAM PRASAD, J.
The New India Assurance Co. Ltd. – Appellant
Versus
Smt. Poulin Wife Of Late Shri Anthonyraj – Appellant
Miscellaneous First Appeal No.2485 of 2009 (MV) C/W Miscellaneous First Appeal Crob No.143 of 2013 (MV)
Decided on : 18-12-2019
Advocate Appeared:
For the Appellant :SRI RAVISHANKAR.L.R., ADVOCATE
For the Respondent:SMT.SUMA KEDILAYA, SRI H.C.SHIVARAMU, ADVOCATE
Headnote:
Motor Accident - Death - Compensation Awarded - Liability of Insurance company - Appeal in MFA is filed by Insurer of lorry - Claimants, who are the dependents of deceased David who succumbed to injuries suffered in road accident involving the offending vehicle - Undisputed facts are that deceased was travelling in an auto rickshaw, when it was involved in an accident with offending vehicle. He succumbed to the injuries suffered in accident - Held, It is undisputed that deceased was working as a painter as of date of accident but there is no proof of his actual income - Family of deceased comprised of his mother, wife and two unmarried daughters. In cases where there is no proof of actual income, schedule evolved for settlement in Lok Adalath is accepted for reasons of uniformity and consistency in granting compensation - There cannot be any debate about deduction to be made towards the personal expenses, and given number of dependents, such deduction should be 1/4th of such income - Further, there will have to be addition towards future prospects at 25% of such income. If compensation is revisited accordingly, claimants will be entitled for a total sum of Rs.5,85,000/towards loss of dependency and another sum of Rs.70,000/under conventional heads - Award modified - Appeal disposed of
JUDGMENT :
The appeal in MFA No.2485/2009 is filed by the Insurer of the lorry bearing registration No.KA126786 (referred to as ‘the offending vehicle’) calling in question the judgment and award dated 13.01.2009 in MVC No.1425/2006 on the file of the Fast Track CourtIII and MACT., Mysuru (for short, ‘the tribunal’). The claimants, who are the dependents of the deceased David who succumbed to the injuries suffered in the road accident involving the offending vehicle, have filed the cross appeal seeking enhancement in the compensation awarded by the Tribunal.
2. The undisputed facts are that the deceased David on 06.11.2006 was travelling in an auto rickshaw, when it was involved in an accident with the offending vehicle. He succumbed to the injuries suffered in the accident. The Tribunal, on appreciation of the evidence, has awarded a total sum of Rs.4,80,000/- along with interest at the rate of 6% per annum from the date of petition till the date of disposal. This amount of Rs.4,80,000/is awarded under the following heads:
| Particulars | Amount |
| Loss of dependency | Rs.4,46,000/- |
| Loss of estate | Rs.14,000/- |
| Loss of love and affection | Rs.10,000/- |
| Conveyance and Funeral expenses | Rs.10,000/- |
| Total | Rs.4,80,000/- |
The Tribunal, accepting the defence of the appellant-Insurance company that the driving licence of the offending vehicle had expired as of the date of the accident, has directed the appellant Insurance Company to pay the aforesaid compensation and interest with liberty to recover the same from the owner of the offending vehicle.
3. The appellant Insurance company contested the claim petition inter alia asserting that the driver of the offending vehicle was duly licensed to drive the heavy goods vehicle viz., the offending vehicle with effect from 22.05.2002 for a period of three years which expired on 21.05.2005. The driver of the offending vehicle had not obtained the necessary renewal until the month of November, 2006, but he obtained the renewal of the driving licence to drive heavy goods vehicle for the period between 08.11.2006 and 07.11.2009. As such, as of the date of the accident viz., 06.11.2006, the driver of the offending vehicle was not duly licensed to drive. Therefore, the appellant-Insurance Company is entitled to deny its liability as contemplated under Section 149 of the Motor Vehicles Act,1988.
4. The learned counsel for the appellant-Insurance company argued in support of the appeal canvassing that in view of the indisputable fact that the license of the driver of the offending vehicle had expired and was not renewed as of the date of the accident, it is established that the owner of the offending vehicle had acted in breach of the policy terms. As such, the Insurance company should be completely absolved of its liability to pay the compensation instead of being called upon to pay the compensation and recover the same from the owner of the offending vehicle.
5. However, the question whether the Insurance Company could be absolved of its liability on the premise that the driver of the offending vehicle did not possess a valid and effective driving license as of the date of the accident will have to be considered in the light of the decision of the Division Bench of this Court in MFA No.103680/2015 C/w MFA No.103681/2015, which is disposed of on 08.02.2019. The Division Bench of this Court in the above case was considering the question, ‘whether the Insurance Company could be absolved of its liability to satisfy the award because there was breach of the terms and conditions of the policy inasmuch as the driver of the offending vehicle did not possess a valid and effective driving licence as of the date of the accident’. The Division Bench
