Karnataka High Court
Oriental Insurance Co Ltd vs Kumari Chandravathi on 22 March, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A.No.627/2010
C/W
M.F.A.No.628/2010 (MV)
IN MFA No.627/2010:
BETWEEN
ORIENTAL INSURANCE CO LTD.,
UDUPI BRANCH,
VISHNUPRAKASH BUILDING,
III FLOOR, COURT ROAD,
UDUPI,
NOW REPRESENTED BY ITS
REGIONAL MANAGER,
ORINETAL INSURANCE CO LTD.,
REGIONAL OFFICE, No.44/45, LEO
SHOPPING COMPLEX,
RESIDENCY ROAD CROSS,
BANGALORE - 560 025.
...APPELLANT
(BY SRI A N KRISHNA SWAMY, ADVOCATE)
AND
1. KUMARI CHANDRAVATHI
D/O LATE NARAYAN SHETTY
NOW AGED ABOUT 21 YEARS
R/O SRI KRIPA, KUNJIBETTU POST
UDUPI TALUK & DISTRICT.
2
2. MANJUNATH
S/O SHIVAPPA GOWDA
NOW AGED ABOUT 47 YEARS
R/O ALADAGIRI MANE, MUTTURU
BYADAGI TALUQ, HAVERI DISTRICT.
3. MAMATHA SHETTY
W/O SURESH SHETTY
NOW AGED ABOUT 41 YEARS
R/O SEETHANADI NADPALU VILLAGE
KARKALA TALUK.
...RESPONDENTS
(BY SRI K PRASANNA SHETTY, ADVOCATE FOR R-1
R-2 AND R-3 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:13.10.2009 PASSED IN MVC No.379/2007 ON THE
FILE OF PRINCIPAL CIVIL JUDGE (SR.DN.) AND MEMBER,
ADDITIONAL MACT, UDUPI, AWARDING A COMPENSATION
OF RS.1,13,320/- WITH INTEREST AT 8% FROM THE DATE
OF PETITION TILL REALIZATION AND TO SET ASIDE THE
SAME.
IN MFA No.628/2010:
BETWEEN
ORIENTAL INSURANCE CO LTD.,
UDUPI BRANCH,
VISHNUPRAKASH BUILDING,
III FLOOR, COURT ROAD,
UDUPI, NOW REPRESENTED BY ITS
REGIONAL MANAGER,
ORINETAL INSURANCE CO LTD.,
REGIONAL OFFICE,
No.44/45, LEO
SHOPPING COMPLEX,
RESIDENCY ROAD CROSS,
3
BANGALORE - 560 025.
...APPELLANT
(BY SRI A N KRISHNA SWAMY, ADVOCATE)
AND:
1. SMT.GIRIJA POOJARTHY
W/O SUNDARA POOJARY
NOW AGED ABOUT 47 YEARS
R/O SRI KRIPA, KUNJIBETTU POST
UDUPI TALUK & DISTRICT.
2. MANJUNATH
S/O SHIVAPPA GOWDA
NOW AGED ABOUT 47 YEARS
R/O ALADAGIRI MANE, MUTTURU
BYADAGI TALUQ, HAVERI DISTRICT.
3. MAMATHA SHETTY
W/O SURESH SHETTY
NOW AGED ABOUT 41 YEARS
R/O SEETHANADI NADPALU VILLAGE
KARKALA TALUK.
...RESPONDENTS
(BY SRI K PRASANNA SHETTY, ADVOCATE FOR R-1
R-2 AND R-3 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:13.10.2009 PASSED IN MVC No.380/2007 ON THE
FILE OF THE ADDITIONAL MEMBER MACT & PRINCIPAL
CIVIL JUDGE (SR.DN.), UDUPI, AWARDING A
COMPENSATION OF RS.1,29,660/- WITH INTEREST AT 8%
FROM THE DATE OF PETITION TILL REALIZATION AND TO
SET ASIDE THE SAME.
THESE MFAs COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
4
JUDGMENT
These two appeals are preferred by the Insurance Company against the judgment and award dated 13/10/2009 passed by the Principal Civil Judge (Sr.Dn) and Member, Additional MACT, Udupi, in the claim petitions registered and disposed of as under:
MFA Nos. MVC Nos. Effect Result and and and date of amount preferred disposal awarded by whom 627/2010 379/2007 Injuries to Allowed in Insurance 13/10/2009 Chandravathi part granting Company Rs.1,13,320/-
628/2010 380/2007 Injuries to Allowed in Insurance 13/10/2009 Smt. Girija part granting Company Poojarthy Rs.1,29,660/-
2. The appellant-Insurance Company in both the appeals has questioned the legality and enforceability of the judgment and award on the ground lack of genuineness in the claim of the victims of the accident.
3. The incident that gave raise to filing of claim petitions is, that on 29.9.2005 at about 8.30 a.m. 5 claimants in both the appeals connected to MVC Nos. 379/2007 and 380/2007, said to be traveling in a tempo bearing Registration No.KA.20.A.5869 from Magadde to Seethanandi, near Ajjoli Darkhas, the driver of the tempo drove it in a rash and negligent manner and dashed against the pedestrians who are the petitioners in MVC Nos. 957/2006 and 958/2006 and thereafter dashed against the tree. As a result, petitioners in MVC Nos. 379/2007 and 380/2007 who were traveling in the tempo and pedestrians, sustained grievous injuries. Immediately, they were shifted to hospital and they spent money towards medicine, conveyance and other incident charges. Hence, they claimed compensation of Rs.5.00 lac and Rs.7.00 lac respectively.
4. The Insurance Company in both cases entered appearance and denied its liability to pay compensation contending that it was not liable to indemnify the risk 6 of either gratuitous passengers or the fare paying passengers being carried in a goods carriage.
5. The learned Member adjudicated the matter on the aspects of accident, negligence, injuries, disability and entitlement of compensation and on the basis of the oral evidence of PWs 1 to 5 and documentary evidence at Exs.P1 P27 has allowed the claim petitions in part granting the compensation as mentioned above, fastening liability on the Insurance company to indemnify the same.
6. Aggrieved by the said judgment and award, the Insurance Company has presented these appeals seeking to set aside the same.
7. The prime contention of the learned counsel Shri. A.N.Krishna Swamy, for the Insurance Company in both the appeals is that, the vehicle was mis used for the purpose other than the one for which it was permitted that invariably amounted to violation of terms 7 of the policy. Therefore, the Insurance Company is not liable to pay compensation amount, as it is held that the goods vehicle was not permitted to carry passengers either paid or gratuitous and in such cases, the owner of the vehicle would be liable to pay compensation by virtue of the Insurance company being absolved from its liability.
8. Learned counsel for Insurance Company would further submit that his submission is fortified by the decision of the Apex Court in the case of (1) The New India Assurance Co.,Ltd. Vs. Asha Rani and others (AIR 2003 SC 607) and (2) National Insurance Co.,Ltd., Vs. Baljit Kaur and others (2004(1) TAC 366 (SC). Thus, according to the learned counsel for the Insurance Company, liability to pay compensation will have to be passed as under:
In case of Goods vehicle: an exemption from liability for the Insurance Company is 8 available in case of a passenger authorized or unauthorized or gratuitous.
Thus, the three applicable factors are:
(i) Goods vehicle;
(ii) Passengers; and
(iii) Injuries sustained.
9. In this connection, a cursory glance of Sections 190, 216 and 214, 215, 216 and 218 of Code of Criminal Procedure are necessary with reference to Section 190 of MV Act.
10. In criminal jurisprudence, the Court trying an offence takes cognizance of the offence and not the offender.
11. In this connection, the submission of the learned counsel for the Insurance Company is that, a goods vehicle was used for transport purpose and thereby there is threshold bar for seeking compensation against the Insurance Company. It cannot be forgotten for a while that offences is investigated under the 9 provisions of Section 154, 155 and 156 later facilitate the consideration under Section 190 of the Code of Criminal Procedure. The invariable pre supposed is, whenever the vehicle has been wrongly used for the purpose other than the purpose for which it is permitted, becomes abuse of the permit.
12. In this connection, the definitions of the following words are worth to mention.
"the Insurer" as defined under Section 2 Sub Section 9 of the Insurance Act is as under:
"Insurer" means - (a) any individual or unincorporated body of individuals or body corporate incorporated under the law of any Country other than India, carrying on insurance business not being a person specified in Sub Clause -(c) of this Clause which -
(i) carries on that business in India, or
(ii) has his or its principal place of business or is domiciled in India, or
(iii) with the object of obtaining insurance business, employs a representative, or maintains a place of business, in India;10
(b) Any body corporate [not being a person specified in sub clause (c) of this clause] carrying on the business of insurance, which is a body corporate incorporated under any law for the time being in force in India; or stands to any such body corporate in relation of a subsidiary company within the meaning of the Indian Companies Act, 1913 (7 of 1913), as defined by sub section (2) of Section 2 of that Act, and
(c) Any person who in India has a standing contract with underwriters who are members of society of Lloyd's whereby such person is authorized within the terms of such contract to issue protection notes, cover notes, or other documents granting insurance Cover to others on behalf of the underwriters but does not include the principal agent, chief agent, special agent or any insurance agent or a provident society as defined in Part-(III) "Permit" as defined under Section 2 sub section (31) of M.V.Act is as under:
"Permit" means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act 11 authorizing the use of a motor vehicle as a transport vehicle."
"Goods Vehicle" as defined under Section 2(8) of .1939 Act" :
"2(8) "Goods vehicle" means any motor vehicle constructed or adopted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers."
"Transport Vehicle" as defined under Section 47 of M.V. Act is as under:
"Transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle."
13. Further, Section 192-A of the Motor Vehicle Act, provides exhaustive meaning of the term "permit" .
The above Section provides that violation of permit as: (1) whenever the motor vehicle is driven of or caused to be driven or is used for contravention of the terms of Sub Section (1) of Section 66 or any 12 contravention of any conditions of a permit, relating to the route on which or the area in which or the purpose for which the vehicle may be used shall be punishable as under:
For the first offence: With a fine which may extend to Rs.5,000/- but shall not be less than Rs.2,000/-;
For subsequent offence: The punishment would be imprisonment which may extend to one year, but shall not be less than three months or the fine which may extend to Rs.10,000/-, but shall not be less than Rs.5,000/- or with both.
However, for the reasons to be recorded by the Court in writing for lesser punishment if were to be passed and necessary as contemplated.
14. The case that is charge sheeted and filed report under Section 173(2) of the Code of Criminal Procedure are for the offences punishable under 13 Sections 279, 337, 338 IPC (later Section 304A IPC is included).
15. The contention of the learned counsel for Insurance Company is that, the offending vehicle basically being a goods vehicle has been used for transport purpose and that was not permitted to claim compensation from the insurer.
16. To a question regarding charges or final report against the accused in the connected criminal cases for the offence regarding violation of permit as it was an offence, it is submitted that there are no provisions of law for punishing violation of permit. The Court does not accept the answer, for the reason that, an offence may be a commission or forbidden act or omission of legal and positive act. The police in the beginning filed FIR under Section 154 of the Code of Criminal Procedure for the offences punishable under Sections 279, 337 and 338 and on completion of the investigation, final report came to be filed for the 14 offences punishable under Sections 279, 338, 304-A of Indian Penal Code and cognizance of the offence was taken under Section 190 of Code of Criminal Procedure for the offences punishable under Sections 279, 338 and 304A of Indian Penal Code.
17. Thus it is crystal clear that the cognizance for the offence punishable under section 192-A MV Act was neither taken or was agitated by the prosecution. Thus the contention of the learned counsel that there was violation of permit by a goods vehicle cannot be considered.
18. The learned counsel also wanted to draw a point regarding mentioning of the word "passenger" in the petition for compensation to fortify the contention of goods vehicle as passenger.
19. It is also necessary to mention that cognizance is not challenged by the Insurance Company. Charge is not framed for the offences. Under such circumstances, 15 the Insurance Company cannot place the contention of its presumption that it is a goods vehicle. There was no mention in the FIR and there was no statement recorded under Section 161 of Code of Criminal Procedure. Thus, when the basic requirement is not available in the entire investigation which is comparatively better reliable other than the oral submission, then that question does not arise, as the requirement are conjunctive or disjunctive or independent. Thus, I do not find any legal force in the submission that there was violation of permit conditions and the goods vehicle was used for transport purpose.
20. Further, insofar as quantum of compensation is concerned, monthly income of the petitioners in both petitions are stated to be Rs.9,000/- and Rs.4,000/- per month, but the learned Member has considered their income at Rs.3,000/- per month and arrived the compensation. The breakup compensation is as under: 16
In MFA No.627/2010 (MVC No. 379/2007) Pain and sufferings Rs. 25,000/-
For conveyance Rs. 2,000/-
For attendant and nourishing Rs. 5,000/-
food
For medical expenses Rs. 4,000/-
For loss of income during Rs. 9,000/-
treatment period
For future loss of income Rs. 58,320/-
For discomfort and loss of Rs. 10,000/-
Amenities
Total Rs.1,13,320/-
In MFA No.627/2010 (MVC No.380/2007) Pain and sufferings Rs. 30,000/-
For conveyance Rs. 2,000/-
For attendant and nourishing Rs. 3,000/-
food
For medical expenses Rs. 19,500/-
For loss of income during Rs. 9,000/-
treatment period
For future loss of income Rs. 56,160/-
For discomfort and loss of Rs. 10,000/-
Amenities
Total Rs. 1,29,660/-
21. Petitioner in MVC No.379 /2007 (MFA No. 627/2010) has sustained the following injuries as per Ex.P4-Wound Certificate:
1. Pain/swelling in the right inguinal region.
2. Multiple laceration/abrasion all over the body.17
She took treatment for 48 days and PW5-Doctor has deposed that she has sustained permanent disability of 18% of locomotor functions of the body.
22. Petitioner in MVC No.380/ 2007(MFA No.628/2010) has sustained the following injuries as per Ex.P9-Wound certificate.
1. Pain left hip
2. Bleeding from mouth
3. Bisicerversal fracture left femur
4. Dento-alveolar fracture She took treatment for 16 days and PW2-Doctor has deposed that he has suffered 23% disability to left lower limb.
23. Considering the breakup of compensation granted by the learned Member and the nature of injuries sustained by the petitioners and also percentage of disability at 18% and 9% respectively, I find it is just and ideal to treat the said amount of 18 respective compensation as global compensation and to confirm the judgment passed by the learned Member.
24. For the foregoing reasons and in the circumstances, both the appeals filed by the Insurance Company are devoid of merits and they are rejected.
Amount in deposit in both the appeals shall be transmitted to the jurisdictional Tribunal, forthwith.
Sd/-
JUDGE tsn*