IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE BELLUNKE A. S MISCELLANEOUS FIRST APPEAL NO. 3786 OF 2013 (MV) BETWEEN:
Cholamandalam MS General Insurance Company Limited, ‘Dare House’, II Floor, No.2, N.S.C. Bose Road, Chennai-600 001 Also at The Claims Manager, Cholamandalam MS General Insurance Company Limited, Unit No.04, Ninth Floor (Level-06) “Golden Heights” Complex, 59th ‘C’ Cross, Industrial Suburb, Rajajinagar, 4th ‘M’ Block, Bengaluru-560 010 By its Senior Manager-Claims ...Appellant (By Sri.O.Mahesh, Advocate) AND:
1. Mallappa @ Mallanna Aged about 43 years S/o. Late Siddappa, Kamalli Village, Nanjanagud Taluk, Mysore District-571201 2. Prabha Aged 33 years, S/o Siddaiah, R/o. Vatalu village, T.Narasipura Taluk-571 124 3. Basavaraju Aged 42 years, S/o Late Thimmasetty, R/o. No.40, Vinayaka Colony, T.Narasipura Town-571 124 ...Respondents (By Sri. Shivananda D.S., Adv., for Sri. M.V.Hiremath, Adv., for R1; Sri. Abdul Ansar, Adv., for Sri.Abubacker Shafi, Adv., for R2 and R3) This MFA is filed under Section 173(1) of M.V.Act against the judgment and award dated 11.02.2013 passed in MVC No.42/2010 on the file of the Senior Civil Judge, JMFC, MACT, T.Narasipura, awarding a compensation of Rs.8,81,750/- with interest @ 7% p.a. from the date of petition till realization.
This MFA coming on for hearing, this day, the Court delivered the following:
JUDGMENT Heard the learned counsel for the appellant Sri. O.Mahesh and the learned counsel for respondent Nos. 2 and 3 i.e., owner and driver of the offending vehicle in question. The learned counsel for the claimant/respondent No.1 was not present. Later he appeared. Heard arguments of R.1/claimant also.
2. It is submitted that respondent No.1/claimant has not filed any appeal for enhancement of compensation. The judgment and award passed in M.V.C. No.42/2010 dated 11.02.2013 has been challenged by respondent No.3 - Insurance Company as appellant in this case.
3. The brief facts for the purpose of this appeal are:
On 09.12.2009 at about 1.45 p.m., respondent No.1-claimant was walking on the road near Harsh Military Hotel of T.Narasipura town. At that time, the Goods Auto rickshaw bearing registration No.KA 55 1151 driven by its driver in a rash and negligent manner dashed to the injured-claimant from his behind. As a result, he sustained injuries to his right leg. Immediately he was taken to the hospital. His right leg came to be amputed. As a result of this accident, the claimant suffered loss of income and he has sustained huge medical expenses. He suffered permanent disability on account of amputation of his right leg. As on the date of accident, the claimant was aged about 45 years and he was coolie by profession. Therefore, the petition came to be filed in M.V.C.No.42/2010 by the learned MACT. The petition was resisted by the owner, driver and the insurance company independently.
4. Respondent Nos.1 and 2 had denied the allegations that the accident in question is due to rash and negligent driving of the driver of the vehicle i.e., respondent No.1. The compensation claimed is excessive. The respondent No.1 - driver had valid driving licence as on the date of accident. The vehicle was insured with respondent No.3–insurance company. Therefore, liability if any is to be satisfied by respondent No.3 - Insurance company. After making formal denial of another averments in the petition they sought for compensation. Respondent No.3 - Insurance company filed objections denying the averments made in the petition. The main defence of the insurance company is that the liability if any is subject to the compliance of terms and conditions of the policy issued by it. Respondent No.2 - owner has violated the policy conditions by allowing an unauthorized person to drive the vehicle who had no valid driving licence. The vehicle was not at all involved in the accident. The compensation claimed is highly excessive and hence, sought for dismissal of the petition.
5. On the above said rival contentions, the learned MACT framed the following issues:
1. “Whether petitioner proves that on 09.12.2010 at about 1.45 p.m. when the petitioner along with one Ravi S/o Shivananjappa were returning to their village at T.Narasipura town Link road near Harsha Military hotel, the 1st respondent driver of the Goods Auto bearing Regn.No.KA 55 1151 caused an accident?
2. Whether petitioner further proves that alleged accident was occurred due to rash and negligent act on the part of the respondent No.1 driver of the Goods Auto bearing Regn.No.KA 55 1151 hit the petitioner from back side and the petitioner sustained grievous injuries in the alleged accident?
3. Whether respondent No.3 proves that driver of the Goods Auto bearing Regn.No.KA 55 1151 was not possess valid and effective driving licence as on the date of the accident?
4. Whether the petitioner is entitled for compensation? If so, to what extent? From whom?
5. What order or award? ”
6. After holding trial, the learned MACT answered the issues as under:
“ 1. Issue No.1: In the Affirmative.
2. Issue No.2: In the Affirmative.
3. Issue No.3: In the negative.
4. Issue No.4: Partly in the Affirmative.
The petitioner is entitled for compensation of Rs.8,81,750 with interest at the rate of 7% from the date of petition till the date of realization.
Respondents No.1 to 3 are jointly and severally liable to pay a compensation of Rs.8,81,750/- to the petitioner. Respondent No.3 being the insurer, insurance Policy No.3379/00395746/000/0 0 which is valid from 11.11.2009 to Midnight 10.11.2010 of the Goods Auto bearing Regn.No.KA 55 1151, liable to pay the compensation and deposit the same within two months from the date of order.
5. Issue No.5: As per final order for the following;”
7. Consequently, the compensation payable to the injured petitioner was quantified as under:
”
The said amount is ordered to be payable at the rate of interest 7% p.a., from the date of petition till realization.
8. The said judgment and award has been challenged by respondent No.3-insurance company on following grounds:
The Tribunal ought to have seen that there was no compliance of mandatory provisions of Section 134(c) of Motor Vehicle Act either by insured or of Section 158(6) of Motor Vehicle Act. The owner and driver had not at all informed about the accident to the insurance company, though the accident took place on 09.12.2009 at about 1.45 p.m. The complaint came to be filed on 14.12.2009 at about 6.30p.m. when a police constable visited the hospital. There is an unexplained delay of 5 days. Looking at the nature of injuries suffered by the petitioner, the possibilities of causing of accident in the light manner of alleged injury in the petition was impossible. The mahazar was not drawn in the presence of eyewitnesses. The trial Court failed to note that the investigation records were concocted. It was with the sole purpose to implicate the vehicle having insurance coverage and driver having valid driving licence. The injured hatched a plan to implicate the insured vehicle with co-operation of insured. The driver was not authorized to drive the transport vehicle. He was authorized to drive only non transport vehicle. Therefore, the insurance company has sought to set aside the judgment on the above said main grounds.
9. As regards quantum of compensation is concerned, it is contended that it is excessive. There is duplication of award on two grounds i.e., loss of earning capacity and also loss of income during treatment period. Hence, on all these grounds appellant has prayed to set aside the judgment and award passed by the Tribunal.
10. During the course of argument, learned counsel for the appellant Sri.O.Mahesh, Senior counsel strenuously urged before me that the driver had no valid driving licence to drive the transport vehicle and he was having a licence only to drive non transport vehicle. Though the learned counsel conceded that as per the decision of the Hon’ble Apex Court in the case of MUKUND DEWANGAN v. ORIENTAL INSURANCE COMPANY LIMITED, but he also submitted that some provisions have not been considered and there was also another decision on this point. Now, the matter is referred to the larger bench. In view of the ruling of the Hon’ble Apex Court in Mukund Dewangan’s case, the same would be binding on this Court. Merely because the issue is said to be pending before the larger Bench would not allow this Court to distinguish the said judgment and come to an another conclusion.
11. On the basis of the above said facts and circumstances, following point would arise for consideration:
“ Whether the appellant-Insurance Company proves that the vehicle in question was falsely implicated as the driver of the vehicle had no valid driving licence as on the date of accident and therefore its liability is exonerated?”
12. In addition to that, I am of the firm opinion that a person knowing an art of driving basically will be given a licence by the Competent Authorities which would validate his driving of any vehicle or a class of vehicle to which he is authorized to drive in public. The endorsement of professional driving licence or transport licence are mainly issued to recognize that the driver would be an paid employee of the owner of a vehicle. To obtain transport licence, he will have to undergo driving first aid training and obtain a badge. Except these two difference, absolutely there is no difference between driving licence issued as non transport and the driving licence issued with transport endorsement. Moreover, the art of driving does not change unless there is a change in the class of vehicle that is from two wheeler to three wheeler, three wheeler to four wheeler, light motor vehicle and heavy goods vehicle or specific classified vehicles defined under the provision of the Motor Vehicle Act. Apart from that, there is no difference between a driving licence which is issued with an endorsement as transport vehicle or non transport vehicle. Therefore, the arguments of the learned counsel for respondent No.1 - driver had no valid driving licence to drive the goods Auto rickshaw are not sustainable in law.
13. The case being urged by the learned counsel for the appellant is that the vehicle has been falsely implicated to make a claim for compensation. The main grounds alleged are that there is a delay of nearly 5 days in filing the complaint. The witnesses who have not seen the incident have attested the spot mahazar. No attempt is made by the persons who accompanied the injured to the hospital to file a police complaint. Lastly, the learned counsel submitted that the nature of injuries suffered by the claimant i.e., fracture of tibia bone would indicate that the accident might not have taken place as alleged by the petitioner.
14. I have gone through the medical evidence available on record. PW.2-Doctor has stated that the X- ray report shows that the tibia bone of right leg on its upper portion has fractured into pieces. Ultimately resulting in amputation of right leg of the petitioner below the knee. Having regard to the vehicle involved in the accident, it cannot be ruled out that such an injury could not have been caused. It is important to know that the auto rickshaw is not a tall vehicle. The front wheel of the auto rickshaw can easily hit the legs of any individual walking on the road. Moreover, the injuries were caused to the upper portion of the tibia resulting in communited fracture. Therefore, on these grounds also it cannot be said that the injuries could not have been caused in the manner in which the accident took place. As regards false implication of vehicle in question, I find that there is no specific denial with regard to the accident in question. In one sentence a mere denial is there and no specific reasons as such is made out to show or to consider prima facie that the vehicle might not have been involved in the accident. The delay in filing the complaint and its validity would be examined in criminal case to find out whether there is a concoction or implication of any innocent person. If the delay is explained and if it is shown that it is not done with any mala fide intension, then delay of any number of days can be just ignored. Further, in the cross- examination made to PW.1 by the learned counsel for the respondent - Insurance Company before the learned MACT, I find that the point now raised in the appeal were not at all even remotely suggested to PW.1. On the other hand, it is suggested that he was driving a auto rickshaw it got toppled and fell down and thereby he sustained injuries and not by vehicle hitting him while he was walking on the road. These suggestion would go to show that the involvement of the vehicle and sustaining of injuries by the injured in Motor Vehicle Accident stands admitted. Lastly, it was urged that the hospital in which the petitioner was admitted had not sent MLC report. The inaction on the part of the hospital or the police officers would not be a ground to deny compensation to victim of road traffic accident. Hence, I find that the main appeal grounds urged by the appellant - Insurance Company to set aside the award passed by the learned MACT are not sustainable in law, facts and evidence on record.
15. As regards quantum of compensation is concerned, the only point that was urged by the appellant - Insurance Company is that, after awarding compensation on the head of ‘loss of future income’ again the petitioner should not have been awarded compensation on the head of ‘loss of income during the laid up period’, that amounts to duplication therein.
Except that, the compensation awarded on rests of the heads are not challenged.
16. In support of his arguments, the learned counsel have relied on the decision of the Division Bench of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED BANGALORE v. VASANTHA KUMAR AND ANOTHER reported in 2010(2) KAR.L.J.477. It is important to note that the compensation payable in a road traffic accident is not only on the conventional heads like pain and sufferings, medical expenses, food and nourishment, attendance charges, transportation charges, loss of future amenities etc. But also on the loss suffered immediately after the accident is also required to be compensated. The application of multiplier having regard to the age of the petitioner is not disputed. The tribunal has assessed the monthly income of the petitioner at Rs.3,750/- per month and he is a coolie by profession.
If he were to be an employee of Government or any other organization where salary will be paid by granting medical leave or any other leave admissible to him, for a coolie it cannot be expected that he would be paid salary. In that context, it cannot be said that the petitioner is not entitled for loss of income during the laid up period.
17. It is held consistently in catena of decisions that, on which heads compensation is payable. This Court and also the Hon’be Apex Court have consistently granted compensation on the head of loss of income during laid up period separately. Therefore, the said argument is also not sustainable in law. Considering the material evidence on record, I find that the impugned judgment and award passed by learned MACT does not call for any interference on the hands of this Court.
18. Consequently, the appeal is liable to be dismissed as devoid of merits. Accordingly, the same is dismissed.
Accordingly, point is answered in negative.
Registry to send back the records to the Court below along with the copy of this order and the amount in deposit, if any, may be transmitted to the jurisdictional tribunal for disposal in accordance with law.
(Sd/-) JUDGE KG