IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.112 OF 2013 (MV) BETWEEN:
SMT.SAROJAMMA, AGED 62 YEARS, W/O KANNAPALLI NAIDU, R/O NO.44, II CROSS, GUBBALALA, RAMANJANEYA LAYOUT, KANAKAPURA MAIN ROAD, BENGALURU. ... APPELLANT (BY SRI. GIRIMALLAIAH, ADVOCATE) AND:
1. BHARTI GENERAL INSURANCE CO. LTD., 1ST FLOOR, NO.28, NEXT TO AKME BALLET DODDANEKUNDI, OPP. OUTER RING ROAD, BENGALURU – 560 037. BY ITS MANAGER.
2. MAMATHA, AGE: MAJOR, D/O ANANTHA PADMANABHA, R/O HAROHALLI, KANAKAPURA TALUK, RAMANAGAR DISTRICT. ... RESPONDENTS (BY SRI.H.N.KESHAVA PRASHANTH, ADVOCATE FOR R1; SRI.H.G.SHIVANANDA, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.09.2012 PASSED IN MVC NO.132/2011 ON THE FILE OF 7TH ADDITIONAL JUDGE, MEMBER MACT – 3, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal under Section 173(1) of the Motor Vehicles Act, not being satisfied with the quantum of compensation awarded by the Tribunal as well as aggrieved by the saddling of liability on respondent No.2- Owner of the offending vehicle under judgment and award dated 24/9/2012 in MVC.No.132/2011 on the file of the VII Additional Judge, Member, MACT-3, Bengaluru.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries sustained by the claimant in a road traffic accident. It is stated that on 15/2/2010, when the claimant was travelling in an Autorickshaw bearing Reg.No.KA-42-5048, the driver of the Autorickshaw suddenly applied brake, which resulted in accident. Due to which, the claimant suffered injuries. It is stated that the claimant was earning Rs.4,000/- per month from self employment. She was aged about 60 years as on the date of accident.
3. On service of notice, respondent Nos.1 & 2 appeared before the Tribunal and filed their written statement denying the claim petition averments. Respondent No.1- Insurer contended that the driver of the vehicle had no valid and effective driving licence and the owner has violated the policy condition. Respondent No.2-Owner contended that the vehicle is insured with respondent No.1-Insurer.
4. The claimant in support of her case examined herself as PW-1 and also examined Doctor as PW-2, apart from marking documents Exs.P-1 to P-8. The respondent- Insurer examined RW-1 and RW-2 and got marked documents Exs.R-1 to R-4.
5. The Tribunal on assessing the material on record, awarded total compensation of Rs.37,080/- with interest at the rate of 6% per annum from the date of petition till its realization on the following heads:
The Tribunal absolved the respondent No.1-Insurer from the liability and saddled the liability on respondent No.2- Owner of the vehicle on the ground that there is violation of permit condition. Aggrieved by the same, the claimant is in appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent-Insurer. Perused the material on record including the lower court records.
7. Learned counsel for the appellant/claimant submits that the Tribunal could not have absolved the insurer from its liability and saddled the liability on respondent No.2- owner of the vehicle. Even though there was violation of permit condition, the Insurer was liable to pay compensation and ought to have recovered it from the owner-respondent No.2. Learned counsel further relied on the decision of the Hon’ble Supreme Court in the case of AMRIT PAUL SINGH AND ANOTHER vs. TATA AIG GENERAL INSURANCE COMPANY LIMITED AND OTHERS (2018) 7 SCC 558 and submits that the present case is of pay and recovery. He further submits that the claimant had suffered digloving injury of left leg and tenderness in the left hand. Ex.P4-wound certificate and Ex.P5-Discharge summary would indicate the injuries sustained and treatment taken by the claimant. It is his further submission that even though the Doctor opined that the claimant suffers from 14% whole body disability, the Tribunal failed to award any compensation on the head “Loss of Income due to disability”. Thus, he prays for allowing the appeal.
8. Per contra, learned counsel for the respondent- Insurer would submit that the Tribunal rightly saddled the liability on respondent No.2-Owner, since there is violation of permit condition. It is his further submission that the respondent-Insurer placed on record Ex.R1-permit extract wherein, the Autorickshaw was permitted to ply within the Kanakapura Town limits. But the accident had taken place outside the limits of Kanakapura Town. Hence, the liability saddled on respondent No.2 is proper and correct. With regard to quantum of compensation, learned counsel submits that the compensation awarded by the Tribunal is just compensation which needs no interference. He further submits that the claimant has not suffered any fracture or any major injury and he has also not undergone any surgery. Further it is submitted that the claimant was earning Rs.4,000/- per month but she has not specified what was her avocation. In that circumstances, the compensation awarded by the Tribunal is just compensation which needs no interference.
9. Having heard the learned counsels for the parties and on perusal of the material on record including the lower court records the following points would arise for consideration in the facts and circumstances of the case.
1) Whether the Tribunal is justified in saddling liability on respondent No.2-owner?
2) Whether the claimant would be entitled for enhancement of compensation?
Answer to the point No.1 would be partly in the affirmative and point No.2 would be in negative for the following reasons.
10. The accident occurred on 15/2/2010 involving Autorickshaw bearing Reg.No.KA-42-5048 and the accidental injuries sustained by the claimant are not in dispute in this appeal. The claimant not being satisfied with the quantum of compensation as well as saddling of liability on respondent No.2-owner absolving respondent No.1-Insurer from the liability is before this Court in this appeal.
11. The respondent-Insurer placed on record Ex.R1- Permit extract, which would indicate that the vehicle was permitted to ply within Kanakapura Town limit. The accident had taken place at Harohalli Hobli, which is outside town limits of Kanakapura. Therefore, the Tribunal rightly found that there was violation of permit condition. The Hon’ble Apex Court in the case of AMRIT PAUL SINGH AND ANOTHER vs. TATA AIG GENERAL INSURANCE COMPANY LIMITED AND OTHERS (2018) 7 SCC 558 at paragraph No.24 has held as follows:
“24. 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 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 and Lakhmi Chand 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 that the insurer was required to pay the compensation amount to the claimants with interest with 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 and other cases pertaining to pay and recover principle.”
The Hon’ble Apex Court in the above decision has held that wherever the Tribunal finds violation of permit condition, it is a case for pay and recovery and the Insurer shall be directed to pay compensation at the first instance with liberty to recover the same from the owner. In that light of the matter, the first respondent-Insurer is directed to pay compensation with liberty to recover the same from respondent No.2-Owner. With regard to the quantum of compensation, the claimant has placed on record, Ex.P4- Wound Certificate and Ex.P5-discharge summary, which would indicate that the claimant sustained digloving injury of left leg and tenderness in the left hand. Even though the Doctor stated that the claimant suffers from 14% whole body disability, looking to the injuries sustained and treatment taken by the claimant, PW-2-Doctor’s evidence would not inspire the court to assess the whole body disability of the claimant. Admittedly the claimant has not suffered any fracture nor she has undergone surgery. In that circumstances, I am of the view that the Tribunal rightly not assessed the whole body disability. It is stated that the claimant was inpatient for 29 days for taking treatment. She has placed on record Ex.P5-Discharge summary, where she has undergone skin grafting. Looking to the injuries sustained and pain & agony undergone by the claimant, I am of the opinion that the claimant would be entitled for partial enhancement of compensation on the head of pain and agony, Conveyance, food and nutrition and Loss of amenities. Thus, the claimant- appellant would be entitled for modified enhanced compensation as follows:
12. The claimant would be entitled for enhanced modified compensation of Rs.61,080/- as against Rs.37,080/- with interest at the rate of 6% per annum from the date of petition till its realization as awarded by the Tribunal. The first respondent is directed to deposit compensation amount with liberty to recover the same from the second respondent-owner of the vehicle.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ