Karnataka High Court
Reliance General Insurance Company ... vs B Mohammed Fazil @ Fazil on 20 June, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20th DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.6577/2010 (MV)
C/W
M.F.A NO.9022/2010 (MV)
IN MFA NO.6577/2010 (MV)
BETWEEN:
RELIANCE GENERAL INSURANCE
COMPANY LIMITED,
REGIONAL OFFICE:NO.28,
5TH FLOOR,
CENTENARY BUILDING, M.G.ROAD,
BANGALORE-560001.
BY DEPUTY MANAGER(CLAIMS)
... APPELLANT
(BY SRI H.S. LINGARAJ, ADVOCATE
APPEARING THROUGH V/C)
AND:
1. B. MOHAMMED FAZIL & FAZIL,
AGED ABOUT 38 YEARS,
S/O B. MOHAMMED ZAMEER AHAMED,
OCC:BUSINESS,
R/A NO.1, BROADWAY CROSS,
NALA CROSS, 3RD STREET,
SHIVAJINAGAR, BANGALORE.
2. TIPPU ASIF, MAJOR,
S/O TIPPU NOOR,
R/A NO.54, BAZAAR STREET,
NEELASANDRA MAIN ROAD,
2
SHANTHINAGAR,
BANGALORE-560021.
... RESPONDENTS
(BY SRI SURESH M. LATUR, ADVOCATE FOR R1
APPEARING THROUGH V/C
R2-SERVED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:02.03.2020 PASSED IN MVC NO.7143/2008 ON
THE FILE OF THE XXII ADDITIONAL SMALL CAUSE JUDGE,
MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE,
AWARDING A COMPENSATION OF RS.1,47,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT AND ETC.,
IN MFA NO. 9022/2010 (MV)
BETWEEN
SRI. B. MOHAMMED FAZIL @ FAZIL,
S/O. B. MOHAMMED ZAMEER AHAMED,
AGE: 38 YEARS, OCC:NIL,
R/O No.1, BROADWAY ROAD,
NALA CROSS, 3RD STREET,
SHIVAJINAGAR, BANGALORE
... APPELLANT
(BY SRI. SURESH M. LATUR, ADVOCATE
APPEARING THROUGH V/C)
AND:
1. SRI. TIPPU ASIF,
S/O TIPPU NOOR,
R/O NO.54, BAZAR STREET,
NEELASANDRA MAIN ROAD,
SHANTHI NAGAR,
BANGALORE-27.
3
2. THE MANAGER,
RELIANCE GENERAL INSURANCE
CO. LTD.,
NO.28/5, SENTANARY BUILDING,
EAST WING, M.G. ROAD,
BANGALORE-1.
... RESPONDENTS
(BY R1-NOTICE DISPENSED WITH
SRI. H.S. LINGARAJ, ADVOCATE FOR R2
APPEARING THROUGH V/C)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:02.03.2020 PASSED IN MVC NO.7143/2008 ON
THE FILE OF THE XXII ADDITIONAL SMALL CAUSE JUDGE,
MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,
THESE MFAs HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR "PRONOUNCEMENT OF
JUDGMENT" THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
MFA No.6577/2010 is filed by the appellant - insurance company under Section-173(1) of the Motor Vehicles Act, 1988, (hereinafter referred to as 'MV Act' for brevity), challenging the judgment and award dated 02.03.2020, passed in MVC No.7143/2008 on the file of the XXII Additional Small Cause Judge, Member, MACT, 4 Court Of Small Causes, Bangalore (hereinafter referred to as 'the Tribunal' for brevity).
2. MFA No.9022/2010, is filed by the appellant- claimant, challenging the judgment and award dated 02.03.2020 passed in MVC No.7143/2008, on the file of the XXII Additional Small Cause Judge, Member, MACT, Bangalore, seeking enhancement.
Brief facts:
3. That on 26.01.2008, at about 3.15 p.m., he was traveling in a Lorry bearing registration No.KA-01-A- 106, with goods i.e., load of Goats and Sheep from Ananthapura towards Bengaluru. At that time, on Bengaluru-Chikkaballapur Road, the driver of the said vehicle drove the same in high speed and in rash and negligent manner and lost control over the vehicle due to which the lorry turtled on left side of the road, as a result of which, he sustained grievous injuries and the Goats and Sheeps in all 175 numbers died. The claimant was shifted to Government Hospital, Chikkaballapur, wherein only first 5 aid was given and later shifted to Santhosh Hospital, Bangalore for further treatment.
4. Hence, a claim petition was filed by the appellant under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.1,47,000/-, along with interest at 6% per annum from the date of petition till the date of deposit. The Tribunal held respondent Nos.1 and 2 therein, jointly and severally liable to pay the compensation.
5. Heard arguments of the learned counsel for the parties and perused the materials on record.
6. The learned counsel appearing for the appellant-insurance company submitted that the claimant was traveling as an unauthorized passenger in the goods vehicle. Therefore, there is violation of the condition policy. Hence, the appellant insurance company is not liable to pay the compensation. Further, submitted that the driver 6 of the lorry was having Driving License only to drive Light Motor Vehicles but the driver of Lorry had not possessed the Driving License for driving the Heavy Goods Vehicle Lorry (HGV), in which goats were being carried. Therefore, submitted that the driver was not holding valid and effective Driving License for driving the Lorry and also it amounts to violation of condition of the policy. Therefore, the insurance company is not liable to pay the compensation. Therefore, prays for setting-aside the judgment and award passed by the Tribunal.
7. Further, argued that the Lorry in question was over-loaded with more than 170 goats/sheep, which were being transported. Therefore, submitted that upon considering the quantity of goats/sheep that were being transported which are more than 170 in numbers, it proves the fact that the lorry was Heavy Goods Vehicle. But the driver was holding Driving License for driving Light Motor Vehicle only. Therefore, submitted that the insurance company is not liable to pay the compensation. Further, submitted that there is violation of Rules-74 and 78 of 7 Karnataka Motor Vehicles Rules (hereinafter referred to as 'Karnataka MV Rules' for short). Therefore, prays for setting-aside the impugned judgment and award passed by the Tribunal.
8. On the other hand, learned counsel appearing for the appellant-claimant in MFA No.9022/2010, submitted that the claimant was not traveling as an unauthorized passenger, but was traveling along with the goods which is permissible. Hence, he is not gratuitous passenger. Therefore, the risk of the coolie traveling along with the goods is also covered. Hence, the insurance company is liable to pay the compensation. Further, submitted that the amount of compensation awarded under various heads are not sufficient. Therefore, submits the same needs enhancement.
9. Further, submitted that the Tribunal has erred in holding the disability of the claimant at 8% as against doctor evidence that the claimant was suffering from 41.16%, to Right Upper Limb, which is about 13.72% to the Whole-body. Therefore, without having any 8 justification in deduction of the percentage of the disability, the Tribunal has held 8% disability. Therefore, prayed for enhancement of compensation. Further, submitted that the driver of the lorry was holding valid and effective Driving License to drive the Lorry. Therefore, there is no infraction. Hence, the insurance company is liable to pay the compensation.
10. Considering the submission of the learned counsel for the appellant - insurance company that the driver of the lorry was not holding effective Driving License and the nature and capacity of the lorry is considered. This Court comes to the conclusion that in the absence of any other evidence on record that the lorry is a Heavy Goods Vehicle since morethan 170 goats/sheeps were being transported in the lorry. Exhibit-R2 is the extract of Driving License, which proves that the driver was holding Driving License to drive Light Motor Vehicle and Light Goods Vehicle. Therefore, it is proved that the driver of the offending lorry was holding Driving License to drive Light Motor Vehicle and Light Goods Vehicle only but not Heavy 9 Goods Vehicle. What is the class of vehicle involved in the accident, there is no record of it but from the statement Exhibit-P3, it is stated that moredhan 170 goats/sheep were being transported. Therefore, considering the sizeable numbers of goats/sheep have been transported, it is proved that the lorry must have been Heavy Goods Vehicle. But the driver was holding Driving License to drive only Light Motor Vehicle and Light Goods Vehicle. Therefore, it is proved that the driver of the Lorry bearing No.KA-01-A-106 was not having Driving License to drive HGV. Therefore, the Insurance company is not liable to pay the compensation.
11. As per Rule-125E of the Central Motor Vehicles Rules, 1989 (for short 'Central MV Rules') stipulates regarding special requirement of motor vehicle transporting livestocks. Sub-section-2(2) of Section-125E reads as follows:
"2. Subject to sub-rule (1), the motor vehicles for carrying animals shall have permanent partitions in the body of the vehicle so that the animals are carried individually in each partition where the size of 10 the partition shall not be less than the following namely:-
(i) Cows and buffalos=2 sq. mts.
(ii) Horses and mares-2.25 sq. mts.
(iii) Sheep and goat=0.3 sq.mts.
(iv) Pig=0.6 sq. mts;and
(v) Poultry=40 sq.cm."
12. Further, Rule-74 of the Karnataka MV Rules, stipulates regarding carriage of animals in goods vehicles. Rules-74(1)(A), reads as follows:
"74. Carriage of animals in goods vehicle. (1) No cattle shall be carried in a goods vehicle in a public place unless,-
(A) in the case of goat, sheep, deer or pig,-
(i) a minimum floor space of 0.2 square metre per head of such cattle is provided in the vehicles;
(ii) proper arrangements for ventilation are made; and
(iii) if carried in a double decked goods vehicle."
13. Therefore, as per the above Rules a partition in the body of the vehicle was to be made so that the animals should be carried in each partition, according to the size 11 and type of the animals carried in the said partition. In the present case, there is no evidence on record, to state whether the lorry had a partition or not. Therefore, if partition is made in the body of the vehicle, then the number of goats/sheep would have been less in the offending vehicle. But as per the complaint averments more than 170 goats/sheep were being transported to prove the fact, the vehicle in question must have been Heavy Goods Vehicle. Therefore, as per Exhibit-R2, the driver of the lorry was holding a Driving License to drive Light Motor Vehicle and Light Goods Vehicle. But in the present case, it is proved that the offending lorry is a Heavy Goods Vehicle. Therefore, the insurance company primarily is not liable to pay the compensation.
14. So far as other contentions raised by the insurance company that the claimant was traveling as gratuitous passenger. Hence, the claimant is not entitled for compensation is concerned, the evidence on record are to be appreciated once again. It is to be appreciated that Exhibit-P2, Complaint and Exhibit-P3 Statement, wherein it 12 is stated that 175 goats/sheep were being transported in the lorry and they died in the accident and it is stated that the claimant was traveling in the lorry along with the goats/sheep which is highly unbelievable. Further, in the said complaint and statement i.e., Exhibits-P2 and P3, it is stated that the claimant was taken to the hospital by one Tippu Asif and Naseer, who were coming in another lorry. Therefore, if at all Tippu Asif and Naseer, were traveling in another lorry then, the complainant would have been traveling in the lorry in which the owner was traveling. But it is found that the claimant was traveling in the goods lorry even as per his own statement, his owner was coming in another lorry behind the offending lorry. Therefore, what prevented the claimant to come in the lorry in which Tippu Asif and Naseer, who is stated to be the owner of the lorry was coming. Therefore, it proves that the fact that the claimant was traveling as gratuitous passenger. Therefore, the insurance company is not liable to pay the compensation. It is proved that even though the owner of the lorry was coming behind the offending lorry then, the claimant would have travelled in the lorry coming 13 behind the offending lorry, when the lorry in which the claimant was traveling is loaded with goats/sheeps, which means the claimant has travelled in the goods vehicle as a gratuitous passenger. The claimant has not produced any evidence to show that he has travelled along with his goods or he is authorized by his owner. Therefore, under these circumstances, it is proved that the claimant has traveled as gratuitous passenger. Hence, the insurance company is not liable to pay the compensation. Therefore, the Tribunal held both the owner and insurance company to pay the compensation is not correct, as the first respondent alone is liable to pay the compensation.
15. The Tribunal has awarded compensation under various heads as follows:
1 Pain & Suffering : Rs. 30,000.00 2 Medical Expenses : Rs. 10,000.00 3 Loss of earnings during the period of Rs.
: 15,000.00
treatment
4 Conveyance & Nourished food : Rs. 10,000.00
5 Loss of Future Earning : Rs. 72,000.00
6 Loss of Amenities : Rs. 10,000.00
Total Rs. 1,47,000.00
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16. Exhibit-P6 is the Wound Certificate, which shows tat the claimant had sustained the following injuries:
"Commuted fracture of head x neck of right radius, Anterior dislocation (RL) elbow."
17. Considering the nature of injuries sustained, the amount of compensation awarded under the head Pain And Suffering at Rs.30,000/- is found to be proper and hence, there is no need to make any enhancement under these head.
18. The compensation granted at Rs.10,000/- towards Medical Expenses is as per medical bills produced at Exhibits-P10 to P15. Therefore, the same is as per evidence produced before the Court. Therefore, the same is not needed for enhancement.
19. Further, a compensation of Rs.15,000/- is awarded under the head 'Loss Of Earning During Laid Up Period And During Treatment'. The Tribunal has held the notional income at Rs.5,000/- per month and 15 accordingly awarded loss of earning during laid up period for three months, which is as per the chart of Karnataka State Legal Services Authorities, and hence no interference is required.
20. Further, a compensation of Rs.10,000/- is awarded under the head 'Conveyance And Nourishment And Food'. But considering the nature of injuries sustained and expenses towards follow up treatments, a sum of Rs.25,000/- is awarded under the said head, as against Rs.10,000/- awarded by the Tribunal.
21. Further, the Tribunal has granted a compensation of Rs.72,000/- towards loss of future earning by holding the notional income of Rs.5,000/- per month and 8% as functional disability and adopting multiplier of '15' as per the judgment of the Hon'ble Apex Court in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104. Hence, the compensation awarded under the head 'Loss Of Future Earning Capacity' is appropriate and hence no interference is needed. 16
22. The Tribunal has awarded a sum of Rs.10,000/- towards loss of amenities. Considering the nature of injuries the claimant must have suffered mental, physical inconvenience, loss of enjoyment in life. Therefore, under the head 'Loss Of Amenities', a sum of Rs.30,000/- is awarded.
23. Hence, the appellant is entitled for a total enhanced compensation, under various heads as follows:
1 Pain & Suffering : Rs. 30,000.00 (Kept in tact) 2 Medical Expenses : Rs. 10,000.00 (Kept in tact) 3 Loss of earnings during the Rs. (Kept in tact) : 15,000.00 period of treatment 4 Conveyance & Nourished food : Rs. 25,000.00 5 Loss of Future Earning : Rs. 72,000.00 (Kept in tact) 6 Loss of Amenities : Rs. 30,000.00 Total Rs. 1,82,000.00
24. Therefore, the appellant is awarded a total compensation of Rs.1,82,000/- as against the compensation awarded by the Tribunal at Rs.1,47,000/-. Hence, the appellant is entitled for an additional compensation of Rs.35,000/- (Rs.1,82,000 - 17 Rs.1,47,000), along with interest at 6% per annum from the date of filing of the petition till deposit.
25. As held above, the insurance company is not liable to pay the compensation for violation of condition of policy as the claimant had traveled in the lorry as Gratuitous passenger. As per Section-149(2) of the MV Act (before amendment) the defence raised by the insurance company is established and an order of 'Pay And Recovery' can be applied as per Section-149(1) of the MV Act. Also following the principles laid down by the Hon'ble Supreme Court in the case of Pappu V. Vinod Kumar Lamba reported in (2018) 3 SCC 208, and also in the case of National Insurance Co. Ltd. V. Chellabharatamma reported in AIR 2004 SCC 4882, and also Full Bench decision of this Court in the case of New India Assuranc e Company Limited vs. Yellavva And Another reported in 2020 ACJ 2560, the insurance company shall satisfy the compensation to the claimant at first instance and then recover 18 the same from the o wner of the offending lorry as per law.
26. In the result the appeal, is filed by the insurance company, as well as the claimant are allowed in part.
27. Accordingly, I proceed to pass the following:
ORDER i. MFA No.6577/2010 (MVC No.7143/2008) filed by the appellant - Insurance Company, is allowed in part.
ii. MFA No.9022/2010 (MVC No.7143/2008) filed by the appellant - claimant, is allowed in part.
iii. The appellant-claimant in MFA No.9022/2010, is entitled for an additional compensation of Rs.35,000/- (Rupees Thirty Five Thousand Only), along with interest at 6% per annum from the date of filing of the petition till 19 deposit, in addition to what has been awarded by the Tribunal.
iv. The insurance company shall satisfy the compensation amount to the claimant at the first instance and then recover the same from the owner of Lorry bearing registration No.KA- 01-A-106.
v. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
vi. No order as to cost.
vii. Draw award accordingly.
Sd/-
JUDGE
JJ