IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.3351/2012 [MV] BETWEEN:
SHRI CHANDRANNA S/O LATE PANJU KULAR AGED ABOUT 59 YEARS R/A NO.7/141 VITTAL TIFFAN CENTRE NEAR TOWN CO-OPERATIVE BANK V V LAYOUT, HOSAKOTE.
(BY SMT. BHANU H.M., ADV. FOR SRI. M R KUMARASWAMY, ADV.) AND:
1. SRI A SANJAY KUMAR S/O D. AMBANNA R/AT SRI MAHADEVI TRANSPORT NEAR RAMKRISHNA THEATRE RAILWAY STATION ROAD MADKARI NAGAR, CHALLAKERE CHITHRADURGA.
2. THE NATIONAL INSURANCE COMPANY LIMITED REGIONAL OFFICE NO.144, SHEEBARAM COMPLEX M G ROAD BANGALORE 560 001.
(BY SRI. H B NAGARAJA, ADV. FOR R1 SRI SHIVARAJ PATIL, ADV. FOR R2) ... APPELLANT ... RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD 27.07.2011 PASSED IN MVC NO.3624/2009 ON THE FILE OF XI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BANGALORE CITY, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant/claimant is before this Court not being satisfied with the quantum of compensation awarded under the judgment and award dated 27.07.2011 passed in MVC No.3624/2009 on the file of XI Additional Judge, MACT, Bangalore City, and also aggrieved by the saddling of liability on 1st respondent instead of 2nd respondent - Insurance Company.
2. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries sustained in the Road Traffic Accident that occurred on 01.03.2009. The claimant states that on 01.03.2009 when he was crossing the road on NH-4, near T.Dasarahalli, at that time a Bus bearing No.KA-28-A-2509, came in a rash, negligent manner and dashed against the claimant, due to the impact he fell down and sustained grievous injuries. It is stated that he was aged 56 years on the date of accident and was working as helper in the bakery earning Rs.6,000/- per month.
3. On issuance of summons, the 2nd respondent – Insurance Company appeared and filed its objection denying the petition averments. It is stated that the compensation awarded by the Tribunal is excessive and exorbitant apart from contending that the driver of the offending vehicle had no valid and effective driving license to drive the said vehicle. The claimant examined himself as PW.1 and got marked Exs.P1 to P9. The Official of Insurance Company was examined as RW.1 and got marked the documents Exs.R.1 to R3. The Tribunal on analyzing the material on record awarded total compensation of Rs.95,500/- with interest at 6% p.a. from the date of petition till the date of deposit, saddling the liability on 1st respondent – owner of the vehicle, on the ground that the driver of the offending vehicle had no valid and effective permit and as such there is violation of permit condition. Aggrieved by the same, the claimant is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the 2nd respondent – Insurance Company. Perused the entire material on record.
5. The learned counsel for the appellant would submit that the income taken at Rs.3,500/- per month to determine the compensation on the head ‘Loss of income during laid up period’ is on the lower side. The accident is of the year 2009, the claimant was working as helper in the bakery earning Rs.6,000/- per month.
It is stated that the claimant was inpatient for 5 days and has suffered the following injuries :-
“Thin SDH as Left Fronto parietal convexity, Multiple hemorrhage contusion in left cerebral temporal and high parietal region with fracture left occipital region.”
Further relying on the decision of the Hon’ble Supreme Court in AMRIT PAUL SINGH AND ANOTHER v/s. TATA (AIG) GENERAL INSURANCE CO. LTD., AND OTHERS reported in (2018) 7 SCC 558 submits that it is a case of pay and recovery as the Tribunal has found that there was violation of terms of policy.
6. Per contra, the learned counsel for the 2nd respondent – Insurance Company submits that the Tribunal has awarded just compensation and needs no interference. Further he submits the Tribunal has rightly saddled the liability on the 1st respondent, since there is violation of permit condition.
7. The appeal of the claimant is for enhancement of compensation and also against the saddling of liability on 1st respondent. The accident that occurred on 01.03.2009 involving the Bus bearing No.KA.28.A.2509 and the accidental injuries suffered by the claimant is not in dispute in this appeal. On determination of compensation, the Tribunal has saddled the liability on the 1st respondent on the ground that there is violation of terms of permit conditions. The accident had taken place within the limits of Peenya Traffic Police Station, Bangalore. The permit granted to the bus in question was to ply in Davanagere and back to Davanagere, which had no permit to ply in Bangalore. Hence there is violation of terms and conditions of the policy. The Hon'ble Supreme Court in AMRIT PAUL SINGH cited supra has held as follows :-
“11. A distinction has to be made between "route permit" and "permit" in the context of Section 149 of the Act. Section 149(2) provides the grounds that can be taken as defence by the insurer. It enables the insurer to defend on the ground that there has been breach of a specific condition of the policy, namely, (i) a condition that excludes the use of the vehicle,- (a) for hire or reward, where the vehicle is, on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward, or (b) for organized racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without sidecar being attached where the vehicle is a motor cycle. That apart, it also entitles the insurer to raise the issue pertaining to a condition that excludes driving by a named person or persons or by any person who is not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification or that excludes liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion. A further defence that can be availed of by the insurer is that the policy is void on the ground that it has been obtained by nondisclosure of the material fact or by representation of act which is false in the material particular.
24. 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 and Lakhmi Chand 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 and other cases pertaining to pay and recover principle.”
A reading of the above decision would indicate when there is violation of policy condition, it is for the insurer to pay and recover the same from the owner. Following the above decision, the liability is shifted from 1st respondent to 2nd respondent and the 2nd respondent - Insurance Company is directed to pay the compensation with liberty to recover the same from the 1st respondent owner of the vehicle.
8. The accident is of the year 2009. The injured claimant was working as helper in the Bakery and earning Rs.6,000/- per month. The Tribunal has taken Rs.3,500/- per month as notional income of the claimant. This Court and Lok Adalath while settling the accidental claims of the year 2009 would normally take notional income of Rs.5,000/- per month. In the instant case also, in the absence of any material to indicate the exact income of the claimant, it would be appropriate to take the notional income at Rs.5,000/-
p.m. The claimant has suffered injuries as stated above.
It is stated that the claimant was inpatient for 5 days. Ex.P.6 is the wound certificate. Looking to the injuries suffered and as the claimant was inpatient for 5 days, I am of the view, the claimant would be entitled for enhanced compensation on the head of loss of amenities, attendant charges, conveyance and nourishment by Rs.10,000/- and Rs.5,000/- respectively in addition to Rs.10,000/- awarded by the Tribunal on both the heads. Loss of income for laid up period is awarded at Rs.15,000/-, taking the monthly income at Rs.5,000/-. Thus the claimant would be entitled for the following enhanced compensation:-
9. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified and the claimant is entitled to enhanced compensation in a sum of Rs.1,15,000/- as against Rs.95,500/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
Sd/- JUDGE NG* CT:bms