IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.8326/2013 C/W M.F.A.Nos.8074/2013 AND 8532/2013 (MV) M.F.A.No.8326/2013 BETWEEN:
SMT. JAYANTHI AGED ABOUT 27 YEARS W/O SRINIVAS R/O HAMPASANDRA VILLAGE GAURIBIDANUR TALUK CHIKKABALLAPUR DISTRICT–561208.
(BY SRI.NAGARAJA REDDY D, ADV.) AND:
1. THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE AT NO.4445 LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE – 560025.
2. SRI LALITHA KUMAR MAJOR S/O N GOVINDARAJA N R/AT NO.107, 7TH BLOCK HERITAGE ESTATE ...APPELLANT YELAHANKA BANGALORE-560064.
(BY SRI.S SRISHAILA, ADV. FOR R1 …RESPONDENTS R2- SERVICE OF NOTICE H/S V/O DT:28.02.2019) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.11.2012 PASSED IN MVC NO.5270/2011 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE, & XXVIII ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.No.8074/2013 BETWEEN:
SMT. SHOBA DEVI @ SHOBA AGED ABOUT 32 YEARS W/O SHIVANNA R/O KUNDIHALLI VILLAGE GAURIBIDANUR TALUK CHIKKABALLAPUR DISTRICT-561208.
(BY SRI.NAGARAJA REDDY D, ADV.) AND:
1. THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE AT NO.4445 LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE – 560025.
2. SRI LALITHA KUMAR MAJOR S/O N GOVINDARAJA N ...APPELLANT R/AT NO.107, 7TH BLOCK HERITAGE ESTATE YELAHANKA BANGALORE-560064.
(BY SRI.S SRISHAILA, ADV. FOR R1 …RESPONDENTS R2- SERVICE OF NOTICE H/S V/O DT:05.03.2018) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.11.2012 PASSED IN MVC NO.5269/2011 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE, AND XXVIII ACMM, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.No.8532/2013 BETWEEN:
SMT. MALATHI AGED ABOUT 28 YEARS W/O MANJUNATH R/O HAMPASANDRA VILLAGE GAURIBIDANUR TALUK CHIKKABALLAPUR DISTRICT-561208.
...APPELLANT (BY SRI. D. NAGARAJA REDDY, ADV.) AND:
1. THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE AT NO.4445 LEO SHOPPING COMPLEX RESIDENCY ROAD BANGALORE – 560025.
2. SRI LALITHA KUMAR MAJOR S/O N GOVINDARAJA N R/AT NO.107, 7TH BLOCK HERITAGE ESTATE YELAHANKA BANGALORE-560078.
(BY SRI.S SRISHAILA, ADV. FOR R1 R2- SERVICE H/S V/O DT:28.02.2019) …RESPONDENTS THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.11.2012 PASSED IN MVC NO.5268/2011 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE, AND XXVIII ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE M.F.A.s COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The above three appeals are taken up together for hearing with the consent of the learned counsel for the parties since they arise out of common judgment and award dated 28.11.2012 passed in MVC Nos.5270, 5269 and 5268 of 2011, respectively, on the file of the Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as 'the Tribunal' for short).
2. The claimants are in appeals, aggrieved by saddling of liability on respondent No.2/owner of the offending vehicle and praying for enhancement of compensation.
3. Heard the learned counsel for the appellants and learned counsel for the respondent/insurer.
4. Learned counsel for the appellants would submit that the Tribunal committed an error in saddling the liability on the second respondent/owner. It is his submission that the Tribunal on two counts saddled the liability on respondent No.2/owner of the offending vehicle. One is that the driver of the offending vehicle had no valid and effective driving licence as on the date of accident and the second ground is that at the time of accident, the offending vehicle was carrying 20 passengers as against the seating capacity of 12+1. Learned counsel for the claimants/appellants would submit that the driver of the offending vehicle had licence to drive LMV (Non-Transport) vehicle as on the date of accident. Learned counsel for the respondent/ insurer has placed on record Ex.R2/driving licence extract which would indicate that the driver was having licence to drive the LMV (Non-Transport) vehicle. He submits that in view of the decision of the Hon'ble Apex Court in the case of MUKUND DEWANGAN v/s ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663, the driver holding the LMV(Non Transport) could also drive LMV (transport) vehicles of the same category. Further he submits that in respect of the accident, there were only three claims which are within the seating capacity i.e. 12+1. He relied upon a decision of the Hon'ble Apex Court reported in 2011 AIR SCW 2802 in the case of UNITED INDIA INSURANCE COMPANY LIMITED v/s K.M.POONAM AND OTHERS and submits that the liability of the insurer would be confined to the number of persons covered by insurance policy and not beyond the same.
In the instant case as there are only three claims as against the policy coverage of 12+1, the insurer is liable to pay the compensation.
5. With regard to quantum of compensation, learned counsel for the appellants would submit that the quantum of compensation awarded by the Tribunal is on the lower side. He submits that the claimants in all the claim petitions sustained injuries and they have taken treatment for which, the claimants have placed on record Ex.P5, Ex.P8 and Ex.P9 wound certificates. The Tribunal, without looking to the documents on record awarded compensation which is on the lower side. Thus, prays for enhancement of compensation.
6. Per contra, learned counsel for the respondent/insurer submits that the Tribunal rightly saddled the liability on the owner since the driver of the offending vehicle had no driving licence to drive the transport vehicle as on the date of accident. It is his further submission that admittedly the offending vehicle was carrying more than the permitted capacity i.e., 20 passengers at the time of accident. Since there is violation of permit conditions, the Tribunal is justified in saddling the liability on the second respondent/owner of the offending vehicle. Further, with regard to quantum of compensation, learned counsel would submit that the quantum of compensation awarded by the Tribunal is just compensation. The claimants have not placed on record the medical records nor have examined the doctor in support of their case. In the absence of any material on record, the compensation awarded is just compensation and prays for dismissal of the appeals.
7. Having heard the learned counsel for the parties and on perusal of the material on record, the following points would arise for consideration:
(i) Whether the Tribunal is justified in saddling the liability on the second respondent/owner of the offending vehicle?
(ii) Whether the claimants would be entitled for enhanced compensation?
8. Answer to the above points would be in the negative for the following reasons:
The accident had occurred on 08.07.2011 involving the Swaraj Mazda tempo bearing registration No.KA-03/B-7551 and the accidental injuries sustained by the claimants in all the three claim petitions are not in dispute in these appeal. The Tribunal committed an error in saddling the liability on the second respondent/owner of the offending vehicle. The Tribunal could not have absolved the insurer of its liability. The driver of the offending vehicle admittedly was possessing the licence to drive LMV (Non- Transport). The insurer has placed on record Ex.R2/driving licence extract which would establish that the driver of the offending vehicle was possessing LMV (Non-Transport) licence which was valid upto 16.09.2028. The accident had taken place on 08.07.2011. As on the date of accident, the driver of the offending vehicle was possessing LMV (Non-Transport) licence. The Hon’ble Apex Court in the case of MUKUND DEWANGAN (supra) has held that the driver who possesses LMV (Non Transport) licence could also drive transport vehicles of the same category. In the instant case, the driver of the offending vehicle was driving the vehicle of the same category i.e., light motor vehicle.
9. The next ground on which, the Tribunal absolved the insurer of its liability is that at the time of accident, the offending vehicle was carrying more passengers than the permitted limit. Though the permit allowed only 12+1, 20 passengers were traveling at the time of accident. Admittedly, only three claim petitions are filed and the insurer is to satisfy only three claims. When the policy issued in respect of the offending vehicle was in force as on the date of accident, the liability of the insurer would be confined to number of persons covered by the insurance policy and not beyond the permitted category. Therefore, when the claim is only by three persons, the insurer is bound to satisfy the same. The Hon’ble Apex Court in K.M.POONAM case (supra) at paragraph 24 has held as follows:
“24. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons travelling in the vehicle in excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the compensation amount from the insurer, who could then recover it from the insured owner of the vehicle.”
For the discussions made above, I am of the view that the Tribunal is not justified in saddling the liability on the second respondent/owner of the offending vehicle. The first and second respondents are jointly and severally liable to pay the compensation and the first respondent/insurer shall deposit the compensation amount within a period of four weeks.
10. With regard to quantum of compensation, the compensation awarded by the Tribunal is just compensation which needs no interference. The claimants have not placed on record any material to indicate the treatment taken by them except wound certificate and medical expenses. Further, the claimants have also not examined the Doctor in support of their case. The Tribunal based on the wound certificate and medical bills made available by the claimants, awarded total compensation of Rs.30,000/- with interest at the rate of 6% p.a., from the date of petition till realization in MVC No.5268/2011; compensation of Rs.12,000/- in MVC No.5269/2011 and compensation of Rs.25,000/- in MVC No.5270/2011, which in the facts and circumstances of the case is just compensation, which needs no interference.
11. Accordingly, the appeals are allowed in part and it is held that respondents No.1 and 2 are jointly and severally liable to pay the compensation, whereas respondent No.1 shall deposit the compensation amount within a period of four weeks.
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