Karnataka High Court
Sri Munikrishna vs M/S K N R Constructions Ltd on 17 December, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:52072
MFA No. 2732 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2024 R
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.2732 OF 2013 (MV)
BETWEEN:
SRI. MUNIKRISHNA
S/O. SRI. CHIKKAPPAIAH,
AGE:37 YEARS, OCC: NIL,
R/O KASAVAGUTTAHALLI,
PERESANDRA POST,MANDAKAL HOBLI
CHIKKABALLAPUR TALUK
...APPELLANT
(BY SRI. SURESH M LATUR, ADVOCATE)
AND:
1. M/S. K.N.R. CONSTRUCTIONS LTD
12TH SQUARE BUILDING,
3RD FLOOR, ROAD NO.12,
BANJARA HILLS, HYDERABAD
ANDHRA PRADESH - 560 038.
2. THE DIVISIONAL MANAGER
Digitally signed by
RAMYA D
NEW INDIA ASSURANCE CO. LTD.,
Location: HIGH
COURT OF
DO.NO.3, NO.9/2, 2ND FLOOR,
KARNATAKA
MAHALAXMI COMPLEX,
OPP. ANJANTHA HOTEL, M.G.ROAD,
BANGALORE- 560 001
...RESPONDENTS
(BY SRI. G N RAJENDRA, ADVOCATE FOR R2;
V/O DATED 26.07.2018 SERVICE OF NOTICE TO R1 HELD
SUFFICIENT)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 01.01.2013 PASSED IN MVC
NO.3450/2011 ON THE FILE OF THE XIX ADDITIONAL SMALL
CAUSE JUDGE, MACT, AND XLI ACMM, BANGALORE, PARTLY
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NC: 2024:KHC:52072
MFA No. 2732 of 2013
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
This Miscellaneous First Appeal is filed by the appellant/claimant challenging the judgment and award dated 01.01.2013 passed in MVC No.3450/2011 on the file of XIX Additional Small Causes Judge, MACT and XLI ACMM, Bangalore (hereinafter referred to as 'the Tribunal' for short), questioning the liability fastened on the owner of the double drum roller/respondent No.1 by exonerating the insurance company/respondent No.2 and also for seeking enhancement of compensation.
2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Tribunal.
3. It is the case of claimant that on 13.04.2011 at about 2:00 p.m., when the claimant was riding the -3- NC: 2024:KHC:52072 MFA No. 2732 of 2013 motorcycle bearing Reg.No.KA-03/ES-4299 on NH-7 road to go to Kasavaguttahalli village along with one Munikrishnappa and when they reached Guvvalakanahali gate, at that time the driver of a double drum roller bearing Reg.No.TR-DD-90 which was proceeding in front of claimant's motorcycle with high speed and in a rash and negligent manner suddenly applied brakes without giving any signal, due to which the motorcycle dashed against the said double drum roller and the claimant had sustained grievous injuries and motorcycle got damaged. Therefore, for having sustained injuries in the accident as above stated, the claimant has filed claim petition under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as 'the MV Act' for short) and the Tribunal has granted compensation of Rs.1,24,100/- with interest at the rate of 8% p.a. from the date of petition till its realization by exonerating the insurance company/respondent No.2 and fastened liability on the owner of the double drum roller/respondent No.1. Hence, appeal came to be filed for both enhancement of compensation as well as modification -4- NC: 2024:KHC:52072 MFA No. 2732 of 2013 of liability fastened on respondent No.1/owner of double drum roller.
4. Heard the arguments from both the learned counsel appearing for the parties and perused the records.
5. Learned counsel for the appellant/claimant submitted that the offending vehicle/double drum roller is a motor vehicle as per Section 2(28) of the MV Act and is also categorized as light motor vehicle as per Section 2(21) of the MV Act. Thus, in the present case, the double drum roller which involved in the accident is a motor vehicle. Hence, while issuing insurance policy to the double drum roller compulsorily the risk is covered so far as third-party is concerned as per Section 147 of the MV Act. Therefore, submitted that just because the insurance policy is issued in the present case is Contractor's Plant and Machinery Policy (CPM Policy) that does not exempt compulsory coverage of risks under Section 147 of the MV Act. Therefore, insurance company cannot shirk its responsibility just because the insurance policy is -5- NC: 2024:KHC:52072 MFA No. 2732 of 2013 contractor's plant and machinery policy by contending that premium is not collected to cover the risk to third parties and hence not liable. Therefore, when the double drum roller is categorized as a motor vehicle then as per Section 147 of the MV Act, the third-party risk is compulsorily covered. Therefore, if premium is collected or not collected that is only for the insurance policy, but the risk of third-party is compulsorily/statutorily covered and in this regard, the observation made by the Tribunal in exonerating the insurance company is not correct. Further, submitted that upon considering the nature of injuries sustained by the claimant, the claimant is entitled to enhancement of compensation. Therefore, prays to allow the appeal.
6. On the other hand, learned counsel for respondent No.2/insurance company justified the judgment and award passed by the Tribunal. -6-
NC: 2024:KHC:52072 MFA No. 2732 of 2013 On Liability:
7. In the present case, the Tribunal has exonerated respondent No.2/insurance company on the reason that the insurance policy issued is contractual policy categorizing as contractor's plant and machinery policy and is not a motor vehicle insurance policy. Hence, the risk of third-party is not covered. Therefore, on this reason, the Tribunal exonerated the respondent No.2/insurance company to pay the compensation.
8. In the present case, the offending vehicle is a double drum roller. It is allegation against the driver of double drum roller that the driver of the double drum roller had applied the brake suddenly without giving any signal therefore, the claimant was constrained to hit the double drum roller from behind and sustained injuries and as such claimant is third-party to the double drum roller. The Tribunal has exonerated respondent No.2/insurance company on the reason that this double drum roller is not a motor vehicle and the insurance policy issued is -7- NC: 2024:KHC:52072 MFA No. 2732 of 2013 contractor's plant and machinery policy. Hence, it is not motor vehicle insurance policy, but it is contractor's plant and machinery policy as such in this contractual policy there is no clause covering the risk of third party. Hence, there is no coverage of third party as per Section 147 of the MV Act. Thus, exonerated respondent No.2/insurance company by fastening the liability on respondent No.1/owner of the double drum roller.
9. Whether, the double drum roller is motor vehicle or not is to be considered with reference to definition of Section 2(28) and Section 2(21) of the MV Act.
10. Section 2(21) of the MV Act, stipulates as follows:
"(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed [7,500] kilograms."
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NC: 2024:KHC:52072 MFA No. 2732 of 2013
11. As per this definition the road roller is also categorized as light motor vehicle. The legislation itself recognized the road roller as a light motor vehicle. Basically the road roller is recognized as motor vehicle and further it is sub categorized as it is a light motor vehicle.
12. Section 2(28) of the MV Act, stipulates as follows:
"(28) "motor vehicle" or "vehicle" means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twenty-five cubic centimeters]"
13. The road roller is a mechanically propelled vehicle adapted for the use upon the roads upon transmission of power of propulsion from internal source. -9-
NC: 2024:KHC:52072 MFA No. 2732 of 2013 The road roller is adapted for carrying out repair of roads, formation of roads and therefore, basically it is adapted for the purpose of use upon the roads. Therefore, considering these two definitions the road roller is certainly to be categorized as a motor vehicle. The road roller is mechanically propelled vehicle and its power of propulsion is transmitted through its internal source and adapted for use upon the roads. Therefore, the road roller is definitely coming within the definition of the motor vehicle as defined under Section 2(28) of the MV Act. It is sub categorized as a light motor vehicle within the definition as per Section 2(21) of the MV Act. It is profitable to bank upon the judgment of the Hon'ble Supreme Court in the case of GOVERNMENT OF ANDHRA PRADESH VS. ROAD ROLLERS OWNERS WELFARE ASSOCIATION1.
14. In the above cited case, question which comes before the Hon'ble Supreme Court is whether the road 1 AIR 2005 SC 1403
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NC: 2024:KHC:52072 MFA No. 2732 of 2013 roller is a motor vehicle or not for the purpose of levying taxes. It is observed at paragraph Nos.4 and 5 as follows:
"4. Undoubtedly, the power to impose taxes on vehicles is derived from Entry-57 of List-II of Schedule-VII of the Constitution of India. This permits levy of taxes on vehicles, whether mechanically propelled or not, suitable for use on roads. The Andhra Pradesh Motor Vehicles Taxation Act, 1963 does not define what is a vehicle. It, however, provides that definition will be as given in the Motor Vehicles Act. The Motor Vehicles Act, 1988 defines a "Motor Vehicle"
under Section 2(28) as follows:-
"2(28) - "motor vehicle" or "vehicle"
means any mechanically propelled vehicle adapted for use upon roads whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding [twenty five cubic centimetres"
Therefore any vehicle which is mechanically propelled and which is adapted for use upon roads falls within this definition. Further Section 2(21) defines a "Light Motor Vehicle" as follows:-
"2(21) - "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed [7500] kilograms"
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NC: 2024:KHC:52072 MFA No. 2732 of 2013 It is to be seen that a road roller is specifically included in the definition of a Light Motor Vehicle. If a road roller is a light motor vehicle then it is a motor vehicle. It is settled law that if the intention of the Legislature is clear and unambiguous, then Courts cannot ignore clear wording and hold to the contrary. As the Act categorically provides that a road roller is a motor vehicle we fail to understand how the High Court, even after noticing the definition, could have held that road roller was not a motor vehicle.
5. Even otherwise, we cannot understand the reasoning of the High Court. Undoubtedly, a road roller is meant for repairing roads. This itself shows that it is adapted for use on roads. A road roller is not capable of being used off road. Merely because its purpose is to repair roads does not mean that it is not suitable or not adapted for use on roads. We fail to understand from where the High Court concludes that the connotation of vehicle must mean a conveyance for carrying people or goods. The definition of motor vehicle does not so provide. Merely because a vehicle does not carry passengers or goods does not mean that it ceases to be a motor vehicle. So long as it is a vehicle, which is mechanically propelled, and is adapted for use on roads, it is a motor vehicle within the meaning of the Motor Vehicles Act, 1988."
15. Therefore, it is observed that just because a motor vehicle does not carry passengers or goods that does not mean that the road roller is not motor vehicle. As such categorized as it is a vehicle which is mechanically propelled and its power of propulsion is transmitted from
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NC: 2024:KHC:52072 MFA No. 2732 of 2013 external or internal source as in the present case, the double drum roller gets source from internal source. Therefore, it is definitely coming within the meaning of MV Act. Therefore, in this regard, the Tribunal has committed error by categorizing that the double drum roller is not a motor vehicle.
16. The observation made by the Tribunal is that since the double drum roller is not motor vehicle and insurance policy is contractual policy as contractor's plant and machinery insurance policy and as such there is no requirement of compulsorily covering the risk of third- party as per Section 147 of the MV Act, is not correct. Though in the present case, the insurance policy is contractor's plant and machinery policy, but issued towards double drum roller and when the double drum roller is a motor vehicle, then as per Section 146 and 147 of the MV Act, the third-party risk is compulsorily covered as it is statutory mandate. Just because under the contractual insurance policy the premium is not collected
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NC: 2024:KHC:52072 MFA No. 2732 of 2013 towards covering the risk of third-party is at the mercy of the insurance company whether to collect premium or not, but where policy is issued even though under the contractor's plant and machinery just because it is omitted, collection of premium towards third-party or omitted covering the risk of third-party that does not absolve the risk of insurance company as it is statutorily mandate as per Section 146 and 147 of the MV Act. Therefore, the insurance company cannot shirk its responsibility on the guise that there is no clause of covering the risk of the third-party in the contractor's plant and machinery insurance policy that does not absolve covering risk of the third party.
17. In the present case, the claimant is third party therefore the insurance company is compulsorily liable to pay compensation in case of accident is caused to third- party. Therefore, just because there is omission in the contractor's plant and machinery policy regarding covering of third-party risk that does not absolve the liability of the
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NC: 2024:KHC:52072 MFA No. 2732 of 2013 insurance company to indemnify the owner and to pay the compensation. Here, the insurance company while issuing contractor's plant and machinery insurance policy has committed infraction in not adding clause to covering the risk of third-party by collecting premium. The contract between owner and insurer cannot defeat statutory provision. When a compulsion is made covering risk of third party in the statute that can be carried into effect in letter on spirit by both insurer and owner of the vehicle. Therefore, it is proved that the double drum roller is a motor vehicle and is adapted for use upon the roads and the third party risk is compulsorily liable to be covered under Section 146 and 147 of the MV Act. Therefore, for the aforesaid reasons the observation made by the Tribunal in exonerating the insurance company is not correct. Hence, the insurance company shall indemnify the owner and pay compensation to the claimant.
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NC: 2024:KHC:52072 MFA No. 2732 of 2013 Quantum of compensation:
18. From the medical evidence on record it is proved that the claimant has suffered following injuries:
a. Type III B Compound (open
supracondylar fracture with Inter
Condylar extension of left femur.
b. Type 1 open fracture both bone (Tibia & Fibula) of fracture of proximal tibia and other grievous injuries all over the body.
19. Further the Tribunal has granted compensation under various heads as follows:
Sl. Heads Amount
No.
1. Towards pain and sufferings Rs.50,000/-
2. Towards medical expenses Rs.22,100/-
3. Towards future medical expenses Rs.15,000/-
4. Towards loss of earnings Rs.12,000/-
5. Towards conveyance, attendant and Rs.10,000/-
nourishing food
6. Towards discomfort loss of Rs.15,000/-
amenities in life and future
unhappiness
Total Rs.1,24,100/-
20. The Tribunal has not held correct parameters while assessing and quantifying the compensation.
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NC: 2024:KHC:52072 MFA No. 2732 of 2013 Therefore, the claimant is entitled to enhanced compensation.
21. The claimant has suffered three major fractures of femur, tibia and fibula bones of left leg. Therefore, the compensation of Rs.65,000/- is awarded for the injuries, pain and suffering as against Rs.50,000/- awarded by the Tribunal.
22. The Tribunal has awarded compensation of Rs.22,100/- towards medical expenses based on the medical bills produced by the claimant. Hence, same does not call for interference and is kept intact.
23. The doctor who is examined as PW2 has deposed that the claimant has suffered 60% disability to the left lower limb and 30% to whole body disability. The claimant has difficulty in standing, walking and bearing weight on his left leg and cannot sit crossed leg, squat and his left leg was shortened and he walks with the support of walker. The claimant is an agriculturist and vegetable
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NC: 2024:KHC:52072 MFA No. 2732 of 2013 vendor by profession and the accident has certainly affected the earning capacity of the claimant. Therefore, the tribunal is not correct in awarding compensation under the head 'loss of earning capacity due to disability'. Therefore, considering the principle of law laid down by Hon'ble Supreme Court in the case of RAJ KUMAR V. AJAY KUMAR AND ANR.2 in assessing the functional disability affecting the earning capacity of the claimant, it is just and proper to take 25% as functional disability affecting earning capacity of the claimant.
24. The accident was caused on 13.04.2011, as such the notional income is taken at Rs.6,500/- per month is taken for consideration. The claimant was aged 35 years as on the date of accident and the appropriate multiplier applicable is '16'. Since the claimant has suffered significant disability, 40% income is added towards 'loss of future prospects in life'. Therefore, 'loss 2 (2011) 1 SCC 343
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NC: 2024:KHC:52072 MFA No. 2732 of 2013 of earning capacity due to disability including loss of future prospects in life' is reassessed as under:
Rs.6,500/- + 40% (Rs.2,600/-) = Rs.9,100 /-
Rs.9,100/- x 25/100 x 16 x 12 = Rs.4,36,800/-
25. Further, compensation of Rs.39,000/- (Rs.6,500/- x 6) is awarded towards 'loss of income during laid up period'.
26. Further, compensation of Rs.30,000/- is awarded towards incidental expenses as against Rs.10,000/- awarded by the Tribunal.
27. A compensation of Rs.40,000/- is awarded under the head 'loss of amenities' as against Rs.15,000/- awarded by the Tribunal.
28. A sum of Rs.20,000/- is awarded under the 'future medical expenses' as against Rs.15,000/- awarded by the Tribunal.
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NC: 2024:KHC:52072 MFA No. 2732 of 2013
29. Thus, in all the appellant/claimant is entitled to compensation under various heads as follows:
1 Pain and sufferings Rs. 50,000/- 65,000/- 2 Medical expenses Rs. 22,100/- 22,100/-
3 Loss of earning capacity
including loss of future
prospects in life Rs. -- 4,36,800/-
4 Loss of income during laid Rs. 39,000/-
12,000/-
up period
5 Incidental expenses Rs. 10,000/- 30,000/-
6 Loss of amenities Rs. 15,000/- 40,000/-
7 Future medical expenses Rs. 15,000/- 20,000/-
Total Rs. 1,24,100/- 6,52,900/-
30. The Tribunal has awarded compensation of Rs.1,24,100/-, but the appellant/claimant is entitled to total compensation of Rs.6,52,900/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs.5,28,800/- (Rs.6,52,900/- - Rs.1,24,100/-).
Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.5,28,800/- along with interest at the rate of 6% per annum from the date of petition till realization, in addition to what has been awarded by the Tribunal.
31. Accordingly, I proceed to pass the following
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NC: 2024:KHC:52072
MFA No. 2732 of 2013
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award dated
01.01.2013 passed in MVC No.3450/2011 by the XIX Addl. SCJ and MACT, Bangalore (SCCH-17), is modified.
iii. The appellant/claimant is entitled to enhanced compensation of Rs.5,28,800/- along with interest at the rate of 6% per annum from the date of petition till realization, in addition to what has been awarded by the Tribunal.
iv. No order as to costs. v. Amount in deposit, if any, shall be
transmitted to the Tribunal forthwith. vi. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.
vii. Draw award accordingly.
SD/-
(HANCHATE SANJEEVKUMAR) JUDGE SRA,DR List No.: 1 Sl No.: 19