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. 6640 OF 2015 (MV) BETWEEN THE CLAIM MANAGER TATA AIG GENERAL INSURANCE COMPANY LIMITED 5TH FLOOR, WEST ENTRANCE KHANIJA BHAVANA, RACECOURSE ROAD BANGALORE – 560 001.
NOW AT TATA AIG GENERAL INSURANCE CO. LTD., JP & DEVI JMABHUKESHARI ARCADE NO. 69, MILLER’S ROAD BANGALORE – 560 052. ... APPELLANT (BY SRI. O. MAHESH, ADVOCATE) AND 1. SUSHMITA, MINOR AGED ABOUT 15 YEARS D/O SHIVALINGAIAH RESPONDENT IS MINOR HENCE REPRESENTED BY HER FATHER AND NATURAL GUARDIAN SHIVALINGAIAH, AGE 42 YEAR S/O. LATE MASRIYAYYA RESIDENT AT : No. 119 UDIPALYA, UTTARAHALLI HOBLI BANGALORE SOUTH, BANGALORE KANAKAPURA ROAD, BANGALORE – 562 117.
2. VENKATESH, MAJOR S/O. VENKATESHAPPA, NO. 355 DODDAKAMMANAHALLI MAIN ROAD BTM. BADAVANE, BANGALORE – 560 083.
... RESPONDENTS (BY SRI. PRAKASH M.H. – ADVOCATE FOR R-1 V/O DATED 02.04.2018 SERVICE OF NOTICE HELD SUFFICIENT IN RESPECT OF R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.06.2015 PASSED IN MVC NO. 3750/2013 ON FILE OF THE XX ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS. 1,75,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this matter is listed for admission, with the consent of learned counsel for both parties, the same is taken up for final disposal.
2. Heard the learned counsel for the appellant – Insurer and the learned counsel for the respondent no.1 – claimant and perused the records. Notice to respondent no.2 is held sufficient vide order dated 2.4.2018.
3. This appeal is preferred by the Insurance Company against the judgment and award dated 27.06.2015 passed by the Tribunal in MVC No.3750/2013 questioning the liability as well as the quantum of compensation awarded by the Tribunal.
4. The factual matrix of the appeal is as under: It is stated in the claim petition that on 14.09.2012 at about 8.30 a.m. when the injured, a minor girl aged 13 years was proceeding by foot on O.B. Chudahalli Rao near Government School, Uttarahalli Hobli, Bangalore, at that time the driver of an autorickshaw bearing Reg.No.KA-05-AD-2468 came from the opposite direction without observing traffic rules and in a rash and negligent manner and dashed against the claimant, as a result of which she fell down and sustained grievous injuries all over her body. Immediately, she was admitted to Sanjay Gandhi Hospital, Bangalore and was provided treatment and her parents spent a huge sum towards her medical expenses. Prior to the accident she was hale and healthy and good at studies but due to the accident, she had become mentally upset and greatly depressed. Hence, she filed a claim petition against the respondents seeking compensation.
5. In pursuance of issuance of notice, respondents appeared through their respective counsel and filed their separate objections. During the enquiry before the tribunal, the claimant has established the occurrence of the accident, injuries sustained by her, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the appellant.
6. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending vehicle and thereby awarded compensation of Rs.1,75,000/- with interest at 8% from the date of petition till realisation and directed the Insurer to deposit the compensation. It is this judgment which is under challenge in this appeal by the Insurer, urging various grounds.
7. The learned counsel for the appellant – Insurer vehemently contended that the Insurer was not liable to pay the compensation, in view of the fact that the driver of the autorickshaw was required to possess a driving licence with transport endorsement. But however, the Driving Licence at Exhibit R4 discloses that the driver of the offending autorickshaw possessed the licence to drive an LMV non-transport and has thus committed breach of policy conditions.
It is the further contention of the learned counsel for the Insurer that the as per the permit conditions, the passenger autorickshaw was required to ply only within the jurisdiction of Bangalore but however admittedly, the offending autorickshaw had plied beyond the permit area. On this ground also, the learned counsel submits that the Insurer was not liable to pay the compensation.
It is his further contention that the compensation awarded by the Tribunal towards ‘Loss of income due to disability’ at an exorbitant sum of Rs.1,00,000/- relying on the decision of this Court in Master Mallikarjun vs. Divisional Manager, National Insurance Co. Ltd. and another (ILR 2013 KAR 4891) is perverse and requires to be set-aside. He contends that in the said judgment, since the disability was at 10%, the said amount was awarded whereas in the present case on hand, when the disability is at 4%, the Tribunal ought not to have granted such an exorbitant sum. Thus he seeks for reduction of compensation under the head ‘Loss of income due to disability’. Further, it is his contention that the rate of interest awarded by the Tribunal at 8% is also on the higher side and requires to be reduced to 6% and thus on all these grounds the learned counsel for the Insurer prays for setting aside the impugned judgment and reducing the compensation suitably and thereby exonerate the Insurer of the liability.
8. Per contra, the learned counsel appearing for Respondent No.1 - claimant submitted that the Tribunal, on appreciation of the evidence on record and taking into consideration the judgment in Master Mallikarjun (supra), has awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
It is his further contention that though the driver of the offending autorickshaw possessed a licence without transport endorsement, the Apex Court in the case of MUKUND DEWANGAN VS. ORIENTAL INSURANCE CO.LTD., ((2017) 14 SCC 663) has held that the absence of transport endorsement per se cannot be a ground to absolve the insurer from the award liability and the MACT could not let the insurer go free even in the absence of transport endorsement on the driving license of the driver of the offending vehicle.
Further, as regards violation of permit conditions, the learned counsel relies on 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 and submits that the same 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 shall be required to pay the compensation along with interest to the claimant in the first instance, the Insurer shall be 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.
9. In the background of the contentions taken by learned counsel for the appellant – Insurer and the learned counsel for the first respondent - claimant as stated supra, it is relevant to state that there is no dispute with regard to the accident that occurred on 14.09.2012 and the injuries sustained by the claimant.
I find justification in the contention of the learned counsel for the Insurer as regards excessive compensation granted under the head ‘Future loss of income due to disability’. The claimant having suffered 4% whole body disability, the Tribunal has erred in equating it to 10% disability as in Master Mallikarjun’s case and thus I find that it has erred in awarding Rs.1,00,000/- towards the said head which is undoubtedly excessive compensation. Hence, in view of the fact that the claimant – injured had sustained 4% whole body disability, I hereby reduce the compensation towards ‘Future loss of income due to disability’ to a sum of Rs.75,000/- as against Rs.1,00,000/- awarded by the Tribunal. Thus it results in a reduction in compensation to an extent of Rs.25,000/-. However, the compensation granted under other heads being just and proper, the same does not require any interference.
Further, I find the rate of interest awarded by the Tribunal at 8% is also on the higher side and the rate of interest is hereby scaled down to 6% instead of 8% awarded by the Tribunal.
Thus, in all, the first respondent - claimant is entitled to a total compensation of Rs.1,50,000/- as against Rs.1,75,000/- awarded by the tribunal, which shall carry interest at the rate of 6% from the date of petition till the date of realisation.
Further, the issue of absent of transport endorsement in the driving licence is no longer res integra in view of the judgment of the Apex Court in Mukund Devangan (supra).
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 – Tata AIG General Insurance 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 The appeal is allowed in part. The impugned judgment and award dated 27.06.2015 in MVC No.3750/2013 is modified. The compensation payable to the claimant – first respondent is reduced to Rs.1,50,000/- as against Rs.1,75,000/- awarded by the Tribunal, which shall carry interest at the rate of 6% per annum from the date of petition till the date of realisation. The appellant - Insurer shall pay the compensation amount along with interest to the claimant – first respondent 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 – Tata AIG General Insurance Company Ltd. shall deposit the entire compensation with accrued interest, before the Tribunal, within four weeks from the date of receipt of copy of this judgment and on such deposit, since the claimant has now attained majority, the entire amount shall be disbursed to the claimant, on proper identification. 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