IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.3079 OF 2014 (MV) CONNECTED WITH MFA NO.3211 OF 2014 (MV) IN MFA NO.3079 OF 2014 BETWEEN The Branch Manager New India Assurance Company Ltd., A M Arcade near Vidyarthi Bhavan Davanagere, through its Bangalore Regional Office No.9, II Floor Mahalaxmi Complex MG Road Bangalore Represented by its Regional Manager.
... Appellant (By Sri. S V Hegde Mulkhand , Advocate for Appellant) AND 1. Yusuf Khan S/o Razak sab Aged about 25 years Manson R/o Kadajji Village Davanagere Taluk – 577002.
2. K. Somappa S/o Duggappa, major Driver, R/o Guttur Village Harihara Taluk – 577601.
3. Sakamma W/o Late Yellappa Major R/o Guttur Village Harihara Taluk – 577601.
... Respondents (By Sri. Prakash . H. C- Advocate for R-1; R-2 and R-3 served) This MFA is filed under Section 173(1) Of MV Act against the judgment and award dated 26.12.2013 passed in MVC No. 207/2012 on the file of the II Additional Senior Civil Judge and VI Additional, MACT, Davanagere awarding a sum of Rs. 1,77,500/- with
1. K. Somappa S/o Duggappa Aged about 30 years Driver of Tractor - Trailer R/o Guttur Village Harihara Taluk Pin Code – 577601.
2. Sakamma W/o Late Yellappa Major R/o Guttur Village Harihara Taluk Pin Code– 577601.
3. The Branch Manager New India Insurance Co. Ltd., A M Arcade Near Vidyarthibhavan Davanagere Pin Code:577001.
... Respondents (By Sri. S. V. Hegde Mulkhand – Advocate for R-3; R-1 and R-2 - served.) This MFA is filed under Section 173(1) Of MV Act against the judgment and award dated 26.12.2013 passed in MVC No. 207/2012 on the file of the II Additional Senior Civil Judge and VI Additional MACT, Davanagere, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFAs coming on for final hearing, this day, the court delivered the following:
JUDGMENT Though these matters are listed for admission, with the consent of learned counsel for both parties, the matters are taken up for final disposal.
2. MFA No.3211/2014 is preferred by the appellant/claimant against the judgment and award dated 26.12.2013 passed by the Tribunal in MVC No.207/2012 seeking enhancement of compensation. MFA No.3079/2014 is preferred by the Insurance Company against the very same judgment and award passed by the Tribunal questioning the liability as well as the quantum of compensation awarded by the Tribunal.
3. The factual matrix of the appeals is as under:
It is stated in the claim petition that on 22.10.2011 at about 10.15 a.m. when the injured - claimant was proceeding as a pillion rider on a motorbike bearing Reg.No.KA-19-Q-4373 from Davanagere towards Ranebennur and when his motorcycle reached near Amaravathi Colony, Old P.B. Road, a Tractor-Trailer bearing Reg.No.HP-37-9276 and KA-17-TA-8860 which was driven by its driver in a rash and negligent manner from Harihar side, had dashed against the motorcycle and caused the accident. As a result, the claimant sustained grievous injuries and was admitted to Government Hospital, Harihar where he underwent treatment. Further, he was shifted to Navodaya Hospital, Davanagere where he was treated as an in-patient from 22.10.2011 to 5.11.2011 and incurred huge medical expenses. Prior to the accident he was hale and healthy and was working as a mason and building centering work and was earning Rs.11,000/- per month. Hence, he filed a claim petition against the respondents seeking compensation.
4. In pursuance of issuance of notice owner as well as the driver of the tractor-trailer put in appearing and filed their written statement denying negligence on the part of the tractor-trailer and contending that the accident occurred due to the rash and negligent riding of the rider of the motorcycle and further that the liability if any may be fastened on the Insurer, since the tractor-trailer was duly insured as on the date of the accident. Further, the driver also held a valid and effective driving licence.
The insurer in turn filed its objection disputing the manner of the accident, nature of injuries and also quantum of compensation claimed. According to him, the accident occurred due to the negligence of the rider of the motorcycle. The insurer further contended that the driver did not possess a valid and effective driving licence and further that the said tractor-trailer was being used for commercial purpose for transporting bricks and thereby the owner as well as the driver of the tractor-trailer have violated the policy conditions and hence sought that the Insurer was not liable to pay the compensation.
Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, the claimant got examined himself as PW.1 and got Dr. Nagabhushan examined as PW.2 and got marked 11 documents as per Ex.P1 to P11. On behalf of the respondents, the Insurance Policy was got marked as Exhibit R1. The Tribunal after hearing the learned counsel for the parties, and on an evaluation of oral and documentary evidence on record, passed the impugned judgment awarding compensation of Rs.1,77,500/- with interest @ 8% p.a. from the date of petition till the date of realization. It is this judgment which is challenged in these appeals by the claimant seeking enhancement of compensation and by the Insurer questioning the liability as well as the quantum, by urging various grounds.
5. Learned counsel for the appellant in MFA No.3211/2014 contends that in the accident that occurred on 22.10.2011, the claimant sustained fracture of shaft of left femur and other two simple injuries and he was an in-patient from 22.10.2011 to 05.11.2011 and in spite of treatment, he suffered with disability. He contends that the injured was a mason by profession and was earning substantial income by doing skilled work. Even without proof of income, the accident being of the year 2011, the Tribunal should have adopted the notional income of the injured at Rs.6,500/- per month as per the settled norms of the Lok Adalath instead of Rs.5,000/-. It is the further contention of the learned counsel that in spite of the opinion of the Doctor PW-2 in the Disability Certificate that the injured sustained 25% disability, the Tribunal was not justified in taking the whole body disability at just 5% in order to compute the compensation towards ‘Loss of earning’ and hence contends that these aspects be taken into consideration by this court and the compensation be re-assessed accordingly. It is his further contention that the loss of income during laid up period also be enhanced proportionately.
Further, the learned counsel contends that the compensation granted by the Tribunal towards ‘Discomfort & Loss of amenities in life’ also being on a lower side, the compensation under the said head also be enhanced suitably. On all these grounds, the learned counsel for the appellant in MFA 3211/2014 seeks this court to allow his appeal and enhance the compensation awarded by the Tribunal suitably.
6. Per contra, the learned counsel for the Insurer – appellant in MFA No.3079/2014 contends that the offending vehicle was an agricultural tractor and was duly insured for agricultural purpose. But however, the owner of the tractor-trailer had used the same for transporting bricks for hire and reward in violation of the terms and conditions of the policy issued. In view of the same having been used for commercial purpose, the owner had violated the specific terms and conditions of the policy. The learned counsel contends that since there is violation of the permit condition, the judgment of the Apex Court in the case of Amrit Paul Singh vs. TATA AIG General Insurance Co. Ltd and others reported in ((2018) 7 SCC 558 would squarely apply to the facts of the case. The relevant portion of the said judgment reads as under:
“22. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66.
The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle.
In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.”
Hence, the learned counsel contends that in view of the law declared by the Apex Court, the Insurance Company though was required to pay the compensation along with interest to the claimant in the first instance, the Insurer was at liberty to recover the same from the owner as well as the driver. Hence, he contends that the appeal filed by the Insurer be disposed of with the above observation.
7. In the background of the contentions taken by learned counsel for the appellant - injured in MFA 3211/2014 and the learned counsel for the appellant – insurer in MFA No.3079/2014, as stated supra, it is relevant to state that there is no dispute with regard to the accident that occurred on 22.10.2011 and the injuries sustained by the claimant.
The accident being of the year 2011, as contended by the counsel for the appellant in MFA No.3211/2014, I find that the Tribunal has erred in taking the income of the injured who was a mason by profession at Rs.5,000/- to compute the compensation towards ‘Loss of earning’. Hence as per the Lok Adalath chart, I hereby take the income of the injured at Rs.6,500/- per month to re-assess the compensation towards the said head. Further, though the Doctor PW-2 had opined that the injured had sustained 25% disability, the Tribunal ought to have taken it at a slightly higher percentage than 5%. Hence, I hereby re-assess the whole body disability at 8% as against 5% adopted by the Tribunal.
Hence, with the income of the injured at Rs.6,500/- per month and disability at 8% and multiplier at ‘18’ as adopted by the Tribunal, the compensation towards ‘Loss of earning’ is re-assessed at Rs.1,12,320/- (6500 x 12 x 18 x 8/100) as against Rs.58,320/- awarded by the Tribunal. Further, the compensation towards ‘Loss of income during laid up period’ is re-assessed at Rs.19,500/- (6500 x 3) as against Rs.15,000/- awarded by the Tribunal.
I find that the compensation awarded by the Tribunal towards ‘Discomfort & Loss of amenities’ at Rs.20,000/- is also on the lower side. Hence, I hereby enhanced the compensation under the said head by another Rs.10,000/-. However, the compensation granted under other heads being just and proper, the same does not require any interference.
8. In view of the discussion made above and with the altered factors, the compensation is re-worked out
Thus, in all, the claimants are entitled to total compensation of Rs.2,50,320/- as against Rs.1,77,500/- awarded by the tribunal. The enhanced compensation would come to Rs.72,820/-.
Further, having regard to the contention of the learned counsel for the Insurer, I find that the law declared by the Hon’ble Apex Court in Amrit Paul Singh vs. TATA AIG General Insurance Co. Ltd (supra) holding that the insurer was required to pay the compensation amount to the claimant with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver, are in consonance with the principles stated in Swaran Singh and other cases pertaining to pay and recover principle. Therefore, keeping in view the ratio of reliance in Amrit Paul Singh case stated supra, the liability saddled on the Insurance Company remains undisturbed. However, the appellant – New India Assurance Co. Ltd. shall be entitled to recover the amounts so paid, from the owner, in view of the above judgment.
For the aforesaid reasons and findings, I proceed to pass the following:
ORDER Both the appeals are allowed in part. The impugned judgment and award dated 26.12.2013 in MVC No.207/2012 is modified. The claimant – appellant in MFA No.3211/2014 is entitled for an enhanced compensation of Rs.72,820/- which shall carry interest @ 6% p.a. from the date of petition till realization.
The appellant in MFA 3079/2014 - Insurer shall pay the compensation amount awarded by the Tribunal along with interest to the claimant - appellant in MFA No.3211/2014 herein in the first instance, and thereafter they are granted liberty to recover the same from the owner of the offending vehicle. Accordingly, liability is saddled on the owner of the offending vehicle involved in the accident.
Appellant – New India Assurance Co. Ltd. shall deposit the entire compensation with accrued interest, before the Tribunal, within six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimant in terms of the award, on proper identification. The order of the Tribunal as regards rate of interest and deposit remains unaltered. Any amount in deposit in this appeal shall be transmitted to the concerned Tribunal, forthwith.
LCR shall be forwarded to the concerned Tribunal forthwith.
Office to draw the decree accordingly.
Sd/- JUDGE KS