IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 11023 OF 2010 (MV/INS) BETWEEN The Legal Manager Royal Sundaram Alliance Insurance Co.Ltd., “Sundaram Towers” No.45 & 46, whites Road Chennai-600 014 By its Manger.
... Appellant (By Sri.O.Mahesh, Advocate) AND 1. Sadiq S/o Nisar Ahmed Aged about 22 years R/o Ahmedpur Taluk Arasikere, Hassan District Now R/o 1st Cross Bashanagar, Davanagere.
2. Syed Rownaq Basha Major S/o Syed Hammed Basha Masthafa Manzil, Maruthi Nagar Haliyar Taluk Chikkanayakanahalli Tumkur District.
... Respondents (By Smt.Saritha Kulkarni, Advocate for R1; R2-Served) This MFA is filed under Section 173(1) of M.V. Act against the judgment and award dated 21.10.2010 passed in MVC No.521/2009 on the file of the II Additional District Judge, Davangere, Awarding a Compensation of Rs.3,34,011/- with interest @ 6% P.A. from the date of petition till deposit.
This MFA coming on for hearing, this day, the court delivered the following:
JUDGMENT Heard the learned counsel for the appellant – Insurer and the learned counsel for the respondent no.1 – claimant and perused the records. Respondent no.2 is served and remains unrepresented.
2. This appeal is preferred by the Insurance Company against the judgment and award dated 21.10.2010 passed by the Tribunal in MVC No.521/2009 questioning the liability as well as the quantum of compensation awarded by the Tribunal.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 1.9.2008 at about 12.30 a.m., when the injured, aged 21 years who was working as a cleaner in a goods truck bearing No.KA-44/1532 was proceeding from Huliyar towards Sandur via Chitradurga, near Hiremallanahole, Donnehalli Cross on NH-13 in the said truck, the driver of the truck had driven the same in a rash and negligent manner and dashed against another truck bearing No.KA-07/5213 and caused the accident. As a result, the claimant sustained grievous injuries and was admitted to Bapuji Hospital, Davanagere wherein he took treatment from 1.9.2008 to 8.9.2008. He had sustained fracture of right maxilla bone and orbit bone and nasal bone and loss his right eye vision. Prior to the accident he was hale and healthy and working as a cleaner in the goods truck and earning Rs.200/- per day as salary and batta. But after the accident, he could not attend to the said work. Hence, he filed a claim petition against the respondents seeking compensation.
4. In pursuance of issuance of notice, petition came to be dismissed against Respondent No.1 – driver and Respondent No.2 remained exparte. Respondent No.3 – Insurer appeared through counsel and filed its written statement denying all the petition averments. During the enquiry before the tribunal, the claimant has established the occurrence of the accident, injuries sustained by him, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the appellant.
5. 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.3,34,011/- with interest at 6% from the date of petition till deposit 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.
6. The learned counsel for the appellant – Insurer vehemently contended that when it is stated in the claim petition that the injured was a cleaner, the Tribunal has erred in allowing the claim petition treating the same to be the claim of a third party. Whereas the Tribunal ought to have treated the same as under Workmen’s compensation liability under the policy which was produced and marked as Exhibit P-7. It is the contention of the counsel for the Insurer that the Tribunal has erred in granting excessive compensation considering the petition under the MV Act when the same should have been considered under WC Act and limited compensation ought to have been granted to the injured. In support of his contention, he relies on a judgment of the Apex Court in the case of Ramchandra vs. Regional Manager, United India Insurance Co. Ltd (2013) 12 SCC 84 relating to limit on statutory liability of insurer under Section 147(1)(i) only to the amount payable under the WC Act, 1923. Hence, he seeks to set aside the judgment of the Tribunal and thereby re-assess the compensation according to WC Act, 1923.
7. Per contra, the learned counsel appearing for Respondent No.1 - claimant submitted that the Tribunal, on appreciation of the evidence on record has awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
As regards the contention raised by the Insurer that since the injured was a cleaner in the offending truck, the Tribunal ought to have awarded compensation as per the Workmen’s Compensation Act, the learned counsel Smt. Saritha Kulkarni, has placed reliance on a judgment of this Court in the case of The New India Assurance Company Ltd. vs. R. Thippeswamy and Others (ILR 2007 KAR 533), wherein the relevant portion reads as under:
“16. … If the claim is under the provisions of Workmen's Compensation Act, the liability of the insurance company will be only to that extent as provided under the Workmen's Compensation Act. If the claim is under the provisions of Motor Vehicles Act, as a third party, then the liability would be unlimited as provided under Section 147(2) of the Act. It is to be remembered that both the Workmen's Compensation Act and the Motor Vehicles Act are beneficial legislation which are enacted to protect the interest of victims to the accident either in the course of employment or on account of use of motor vehicle. Any interpretation to be placed on these provisions should be in consonance with the object with which these enactments are enacted. Any other view would defeat the very purpose of the Act. If the victim of an accident is entitled to compensation under both the aforesaid enactments, then that enactment which is more beneficial to him is to be adopted. …”
Hence, the learned counsel contends that there is no fault committed by the Tribunal in granting compensation to the injured under the provisions of the Motor Vehicles Act.
Further, as regards ‘wider coverage policy’ which has been issued by the Insurer in this appeal, the learned counsel points out that the insured pays additional premium, to secure wider coverage to such employees, wherein the insurer undertakes to insure those employees against any liability under the WC Act, 1923, the Fatal Accidents Act, 1855 or at Common Law in respect of such employment injury or death by issuing an endorsement IMT 39 in the case of goods vehicle and IMT 40 in the case of passenger carrying commercial vehicles. IMT 28 is generally used for all classes of vehicles for wider coverage to driver and / or conductor and or cleaner employed in connection with the operation of the insured vehicle.
Hence, the learned counsel contends that the impugned judgment and award passed by the Tribunal is just and proper and thus requires no interference.
8. 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 1.09.2008 and the injuries sustained by the claimant.
I find justification in the contention of the learned counsel for the first respondent – claimant. Hence, there is no error in the order passed by the Tribunal granting compensation to the injured under the provisions of the MV Act, though he being a cleaner. Hence, the judgment passed by the Tribunal requires no interference, Hence, I proceed to pass the following:
ORDER The appeal is dismissed. The impugned judgment and award dated 21.10.2010 in MVC No.521/2009 is hereby confirmed. The appellant – Insurance Company is directed to deposit the entire compensation of Rs.3,34,011/- awarded by the Tribunal with interest at 6% per annum within four weeks from the date of receipt of a copy of this order. On such deposit, the entire compensation shall be disbursed to the first respondent – claimant in terms of the award, on proper identification. Any amount in deposit in this appeal shall be transmitted to the concerned Tribunal, forthwith.
Office to draw the decree accordingly.
Sd/- JUDGE KS