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.
M.F.A. NO.1224 OF 2013 (MV) BETWEEN:
EKANTHAMMA W/O KENCHALINGAPPA AGED ABOUT 47 YEARS AGRICULTURIST RESIDENT OF DODDERI, CHALLAKERE TALUK APPELLANT (BY SRI. R. SHASHIDHARA, ADVOCATE) AND 1. DEVARAJ R S/O RANGAPPA AGE: MAJOR, OWNER OF THE AUTO RICKSHAW BEARING NO. KA-16/A-1020 RESIDENT OF JAIN COLONY, M H ROAD CHITRADURGA TALUK 2. THE BRANCH MANAAGER NATIONAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, B M COMPLEX LAKSHMI BAZAR, CHITRADURGA RESPONDENTS (BY SRI. C.M. KEMPEGOWDA, ADVOCATE FOR R-1 SRI. K.S. LAKSHMINARASAPPA, ADVOCATE FOR SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R-2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 2.6.2012 PASSED IN MVC NO.171/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, CHALLAKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the claimant against the judgment and award dated 02.06.2012 passed in MVC No.171/2011 by the Senior Civil Judge, MACT, Challakere and also directing the respondent No.2 – Insurance Company to satisfy the award and seeking to enhance the compensation.
2. The facts briefly stated are as under:-
That on 13.07.2011 at about 8.30 a.m., the claimant/petitioner was traveling in an autorickshaw bearing Registration No.KA-16/A-1020 from Dodderi to Challakere. In front of A.K.Colony, Dodderi, the driver of auto rickshaw drove his vehicle in a rash and negligent manner without following the traffic rules and regulations, and the auto toppled down to road side pond. As a result the petitioner fell down from auto and she sustained injuries to her right knee and all over the body. Immediately, she got admitted to Government Hospital and Private Hospital, Challakere about one week as an inpatient. She had to spend Rs.50,000/- towards medical expenses. The petitioner was hale and healthy prior to the accident. The petitioner was doing coolie work and earning Rs.5,000/- per month. Due to the impact, petitioner was suffering from severe pain, mental shock and agony due to injuries sustained to her vital part of the body. She has lost her working capacity. She was sole earning person in her family. Hence, the petitioner and her family members are facing severe difficulties. The accident occurred due to the rash and negligent driving of the autorikshaw bearing No.KA-16/A-1020 by its driver under the employment of 1st respondent and insured with 2nd respondent. Hence, petitioner filed the Claim Petition seeking enhancement of compensation.
3. The respondent No.1 appeared and made formal denial. Respondent No.1 contended that the vehicle in question is insured with the respondent No.2. Hence, respondent No.2 alone is liable to pay the compensation.
4. Respondent No.2-Insurance Company contended that respondent No.1 knowingly and willfully allowed the driver who did not possess valid and effective driving licence to drive the autorickshaw as on the date of the accident. It is further contended that the vehicle in question plied beyond the territorial limits of the permit and thereby, the permit conditions has been violated. Hence, the Insurance Company is not liable to satisfy the award.
5. The learned Tribunal after holding trial of the petition awarded a sum of Rs.3,000/- with interest @ 6% p.a. from the date of petition till deposit. Respondent No.1-owner was directed to satisfy the award and the liability of respondent No.2 was exonerated.
6. The learned Counsel for the appellant contended that the Tribunal has awarded very meager compensation and the Tribunal also committed an error in fastening the liability on respondent No.1-owner of the offending vehicle. It is further contended that even though the driver had valid and effective driving licence and the offending vehicle had valid permit to ply, the Tribunal committed an error in not fastening the liability on the respondent No.2-Insurance Company to satisfy the award.
7. Heard the learned Counsel appearing for both sides at length.
8. The learned Counsel for the appellant submitted that the petitioner had suffered swelling over upper foot to the right leg (over the anterior aspect) just below knee. It is further contended that though the injury was simple in nature, she was admitted to hospital for one day and had to take rest and she has spent Rs.50,000/- towards medical expenses. Therefore, the learned counsel prays for enhancement of the compensation. It is also urged that the liability to satisfy the award be saddled on the Insurance Company.
9. The learned Counsel for respondent No.2- Insurance Company submitted that the vehicle had only permit to ply the same within the District of Chitradurga Town. The accident in question occurred in the territorial jurisdiction of Challakere and therefore, there is a violation of policy conditions. Hence, the Tribunal has rightly exonerated the liability of the Insurance Company to satisfy the award. Hence, the impugned award does not call for any interference.
10. On the basis of the above submission, the points that arise for consideration is:
i) Whether the appellant is entitled for enhancement of compensation?
ii) Whether the Tribunal committed an error in fastening the liability on the owner of the offending vehicle to satisfy the award?
11. Second issue is no more res-integra. The coordinate Bench as well as Division Bench of this Court at Dharwad Bench has categorically laid down law that every violation of permit condition would not absolve the Insurance Company from its liability to satisfy the award. Crossing the territorial limits of the Town or a village in which the vehicle is to be plied would amount to violation of permit condition which attracts the relevant provisions of M.V.Act, and RTO authority can impose fine on the driver. If the purpose for which the permit has been issued i.e., transporting goods or passenger is violated, then the Insurance Company can contend that the permit condition is violated and its liability is exonerated. The requirements of policies and limits of liability are stated in Section 147 of the MV Act and unless those conditions enumerated in Section 147 (1) (a) (b), (i, ii) and proviso (i) are violated, the liability casted under Section 147(5) of the Act is strict liability, and the Insurance Company has to indemnify the person or class of persons specified in the insurance policy. The liability of the Insurance Company is the statutory liability. Death or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place, the insurer is liable to satisfy the award.
12. In MFA No.102428/2017 disposed of on 07.06.2019, the Co-ordinate Bench of this Court at Dharwad Bench once again examined the issue in question that is whether plying the vehicle beyond territorial limits fixed in the permit would absolve the Insurance Company from satisfying the award of compensation passed against the owner of the vehicle in question. The decision of the learned Single Judge of this Court in MFA No.1201/2011 dated 07.11.2016 (Durgamma vs. S.G.Naresh and others) had extensively dealt the above the said issue in question. The issue in question is answered in MFA No.102428/2017 in Paras 15 to 18, which reads as under:-
“15. The law is well settled with regard to the ground on which the Insurance Company can avoid its liability. The liability of Insurance Company can be avoided only on the ground that are enumerated under Section 149(2)(a)(i)(c) of the M.V. Act. Then Section 66 of the M.V. Act is also of ground on which the insurer can avoid liability if the vehicle was playing without any permit.
16. In this case also the vehicle in question had a valid permit to ply within the jurisdiction of Karnataka State. The accident took place beyond the territorial jurisdiction of Karnataka State. Whether that violation would attract Section 149(2)(a)(i)(c) of the Act. For that, the definition of permit has to be considered. Violation of the permit conditions are contemplated u/s 86 of the Act where the permit can be cancelled and penalty can be imposed u/s 192(a) of the Act. Even seizure of the vehicle is also permitted u/s 207(1) of the M.V. Act.
17. It is held in Durgamma’s case stated supra that, “there are different kinds of contravention of the permit, one of which is relating to the route on which or the area in which the vehicle may be used. The purpose for which the vehicle may be used is distinguishable from the terms and conditions of the permit. At last, the route on which or the area in which the vehicle may be used, is one of the terms and conditions of the permit. But the same cannot be construed as the purpose for which the vehicle was to be used. Making the distinction, the learned Single Judge of this Court rightly came to the conclusion that the terms and conditions attached to each type of permit cannot be construed as a purpose of the permit. The purpose and the terms and conditions are two different aspects.” Therefore, the learned Single Judge interpreted that the legislature in its wisdom has restricted the defence that are available to the insurer under Section 149(2)(a)(i)(c) of the Act for a purpose and it is not allowed by the permit and not for violation of any terms and conditions of the permit. For example, if a vehicle has a goods carriage permit but has carried passengers or vice versa, then it can be held that the offending vehicle goods carriage permit is being used for a purpose not allowed by the permit.
18. Therefore, the sole distinction on which the authorities relied on by the learned counsel for the appellant can be distinguished is on the ground that whether there was any violation of the purpose for which the vehicle was to be used and whether the violation of exceeding the territorial jurisdiction granted on the ground to ply the vehicle would amount to violation of purpose for which the vehicle was to be used. If that distinction is understood and kept in mind, we find that whether the Insurance Company can absolve its liability on the ground that the vehicle in question has plied beyond the territorial limits granted under the permit and therefore there is no permit for the vehicle can be decided. Further, the Insurance Company cannot contend that its liability is absolves on the ground that the purpose for which the vehicle was to be used, is violated. Because in this case the sole ground taken is violation of permit condition.”
The Division Bench also approved the decision rendered by the learned Single Judge in Durgamma’s case.
13. In view of the aforesaid law laid down by this Court, I find that the finding of the Tribunal fastening the liability on the owner of the vehicle is erroneous.
14. As regards the grant of compensation is concerned, admittedly, the petitioner has suffered swelling over upper foot to the right leg (over the anterior aspect) just below the knee. The claimant has produced the medical bills and prescriptions, Ex.P6 and Ex.P7, respectively in order to show the expenses incurred towards medical expenses. The Tribunal found that the some of the bills are not genuine. Having regard to the nature of injuries suffered by the petitioner, a considerable amount is required for the treatment. The claimant being a household lady is required to engage a servant during the period of treatment. If that period is taken into consideration, injured is entitled for reasonable enhancement of compensation. Having regard to the nature of injuries, I award a sum of Rs.2,000/- is towards medical expenses. An amount of Rs.1,000/- is awarded as incidental charges and transportation charges.
15. For the aforesaid reasons, I answer the points in affirmative and I pass the following:
ORDER The appeal is partly allowed. The compensation is enhanced to Rs.3,000/-. The order of the Tribunal fastening the liability on respondent No.1-owner is hereby set aside. Respondent No.2-Insurance Company is directed to satisfy the entire award amount including the compensation awarded by the Tribunal with interest as ordered by the Tribunal within a period of four weeks from the date of receipt of certified copy of this order.
Registry is directed to send back the records to the Tribunal forthwith.
(Sd/-) JUDGE Prs*