Karnataka High Court
The Reliance General Insurance Company ... vs Kiran Kumar on 23 November, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 4371 of 2018
C/W MFA No. 6885 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 4371 OF 2018 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6885 OF 2018 (MV-I)
IN MFA No.4371/2018:
BETWEEN:
THE RELIANCE GENERAL
INSURANCE COMPANY LTD.,
EAST WING, 5TH FLOOR, NO.28,
CENTENARY BUILDING,
M.G. ROAD, BENGALURU-560 001,
NOW REPRESENTED BY MANAGER LEGAL.
...APPELLANT
(BY SRI ASHOK N PATIL, ADVOCATE)
AND:
1. KIRAN KUMAR
S/O. LATE LAKSHMAN,
AGED ABOUT 27 YEARS,
R/AT No.123/1, II CROSS,
HARANDURU (ASLIGRAM),
KOPPA TALUK,
CHIKKAMAGALURU-577 126.
2. PRAMODH. S
S/O. SATYANARAYANA. N,
R/O. No.470/59/4,
6TH CROSS, 5TH MAIN ROAD,
K. N. LAYOUT,
YESHWANTHAPURA,
BENGALURU-560 022.
...RESPONDENTS
(BY SRI GIRIMALLAIAH, ADVOCATE FOR R1
SRI SURESH M LATUR, ADVOCATE FOR R2)
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MFA No. 4371 of 2018
C/W MFA No. 6885 of 2018
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:22.03.2018
PASSED IN MVC No.2122/2016 ON THE FILE OF THE X
ADDITIONAL JUDGE AND MACT, COURT OF SMALL CAUSES,
BENGALURU(SCCH-16), AWARDING COMPENSATION OF
Rs.2,07,000/- WITH INTEREST AT THE RATE OF 9% P.A.,
(EXCLUDING FUTURE MEDICAL EXPENSES OF Rs.15,000/-)
FROM THE DATE OF PETITION TILL REALISATION.
IN MFA No.6885/2018:
BETWEEN:
SRI KIRAN KUMAR
S/O. LATE LAKSHMAN,
AGED ABOUT 28 YEARS,
RESIDING AT:
No.123/1, II CROSS,
HARANDURU (ASLIGRAM),
KOPPA TALUK,
CHIKKAMAGALURU-577 126.
CHIKKAMAGALURU DISTRICT. ...APPELLANT
(BY SRI GIRIMALLAIAH, ADVOCATE)
AND:
1. THE RELIANCE GENERAL
INSURANCE COMPANY LTD.,
BRANCH OFFICE, EAST WING
5TH FLOOR, No.28,
CENTENARY BUILDING,
M.G. ROAD, BENGALURU-560 001
BY IT'S MANAGER.
2. SRI PRMODH S
S/O SATYANARAYANA N
MAJOR, R/O No.470/59/4
6TH CROSS, 5TH MAIN
K.N.LAYOUT, YESHWANTHAPURA
BENGALURU - 560 022. ...RESPONDENTS
(BY SRI ASHOK N PATIL, ADVOCATE FOR R1
SRI SURESH M LATUR, ADVOCATE FOR R2)
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MFA No. 4371 of 2018
C/W MFA No. 6885 of 2018
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:22.03.2018
PASSED IN MVC No.2122/2016 ON THE FILE OF THE X
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT,
BENGALURU (SCCH-16), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE APPEALS COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.4317/2018 is filed by the appellant- insurance company challenging liability saddled on it to pay the compensation and also quantum of compensation.
MFA No.6885/2018 is filed by the appellant-claimant for seeking enhancement of compensation.
2. Brief facts of the case are as under:
On 09.02.2016 at 6.00 p.m. the petitioner was going on his motorcycle bearing No.KA-18-EA-0980 on the left side of the pipeline road, at that time the driver of the water tanker bearing Reg.No.KA-12-7-484 drove the same rashly and negligently and dashed against the motorcycle. Due to the impact, the petitioner sustained severe injuries. Hence, due to the said accident, the appellant-claimant has suffered permanent disablement and lost earning -4- MFA No. 4371 of 2018 C/W MFA No. 6885 of 2018 capacity. As such, the respondents are liable to pay compensation jointly and severally.
3. Heard the arguments advanced by the learned counsels appearing on both sides and perused the records.
4. The counsel for respondent -owner of the vehicle had filed application under Order LXI Rule 27 of CPC for production of registration certificate of water tanker bearing Reg.No.KA-12-7484. It is not objected by the appellant-insurance company. Accordingly, the said application is allowed and the claimant-respondent No.2 is permitted to produce the documentary evidence sought to be relied on and therefore, the said documentary evidence is taken on record. Considering the appreciation of evidence regarding adjudication of issue involved in the present case. Accordingly, the said application is allowed. -5- MFA No. 4371 of 2018 C/W MFA No. 6885 of 2018 LIABILITY:
5. Learned counsel for the appellant-insurance company Sri. Ashok N Patil vehemently submitted in the present case, the offending vehicle water tanker bearing Reg.No. KA-12-7484 is medium goods vehicle having gross vehicle weight more than 7500 kgs. Therefore, the same is not light motor vehicle and it does not come under definition Section 2(21) of the Motor Vehicles Act. He placed reliance on the registration certificate of the water tanker in which the gross vehicle weight is mentioned as 8720kgs. Therefore, he submitted that the gross vehicle weight exceeds 7500kgs and hence the water tanker is medium goods vehicle as per definition stated under Section 2(23) of the Motor Vehicles Act. But in the present case, the driver of the water tanker was holding driving licence to drive light motor vehicle. Therefore, there is breach of conditions of insurance policy. Hence, the insurance company is liable to take defence and it has successfully established the defence with regard to driver -6- MFA No. 4371 of 2018 C/W MFA No. 6885 of 2018 of the water tanker was not holding valid and effective driving license. Hence, the insurance company is not liable to pay the compensation. Therefore, prays to exempt from payment of compensation by saddling the liability on the owner of the water tanker.
6. On the other hand, Sri. Suresh M Latur, learned counsel for respondent No.2 who is the owner of the water tanker submitted that the water tanker which is in question is a light motor vehicle as its unladen weight is less than 7500kgs. Therefore, he also placed reliance on additional evidence produced i.e. registration certificate book in which the unladen weight of the vehicle is mentioned as 3490kgs. Hence, he submitted that the water tanker in question is light motor vehicle as per definition under Section 2(21) of Motor Vehicles Act. Hence, the water tanker is not medium goods vehicle but it is a light motor vehicle. Therefore, he submitted that the driver who was driving the water tanker was holding driving license to drive light motor vehicle and water tanker in question is light motor vehicle. As such, the -7- MFA No. 4371 of 2018 C/W MFA No. 6885 of 2018 driver of the water tanker was holding valid and effective driving license. Hence, the Tribunal is correct in fastening the liability on the appellant-insurance company to pay compensation is undisputable stating that the insurance policy was in existence as on the date of accident. Therefore, he justified the judgment and award passed by the Tribunal.
7. Learned counsel for the respondent-claimant submitted that the amount of compensation awarded by the Tribunal is on lesser side. He further submits that the Tribunal has not awarded compensation under the head 'loss of future income due to disability' and the same has to be compensated and also prays to enhance the compensation under other heads.
8. Upon considering the contention urged by the learned counsel for the appellant, the documentary evidences placed by both sides are to be appreciated. Undisputedly, in the present case, the accident is between motorcycle bearing Reg.No.KA-18-EA- 0980 and water tanker bearing Reg.No.KA-12-7484. -8- MFA No. 4371 of 2018 C/W MFA No. 6885 of 2018 It is the contention of the Insurance Company that the water tanker is not a light motor vehicle, but it is a medium good vehicle. But the said submission is disputed by the learned counsel for the respondent No.2- owner. In this regard, it is worthwhile to mention as to what are the definition of Light Motor Vehicle, Medium Goods Vehicle and Heavy Goods Vehicle.
9. Section 2(21) of the MV Act defines "Light Motor Vehicle" as follows:
"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 1[7500] kilograms"
Section 2(23) of the MV Act defines "Medium Goods Vehicle" as follows:
"Medium Goods Vehicle" means any goods carriage other than a light motor vehicle or a heavy goods vehicle;"
Section 2(16) of the MV Act defines "Heavy Goods Vehicle" as follows:
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"Heavy Goods Vehicle" means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;"
10. It is the contention of the respondent No.2- owner that the driver of the water tanker was holding valid and effective driving licence to drive the water tanker. In this regard, evidence produced by the Insurance Company are to be ascertained. Ex.R.2 is the driving licence. Upon perusal of Ex.R.2- driving licence pertaining to the water tanker bearing Reg.No.KA-12-7484, where it is mentioned by the RTO authority that the class of vehicle is shown as medium goods vehicle and its unladen weight is 3490kg and the gross vehicle weight is 8720kg. Undisputedly, the above said water tanker is a transport vehicle, which means a goods carriage vehicle. Therefore, if transport vehicle is to be considered as light motor vehicle, then the gross vehicle weight shall not exceed 7500 kg. In the definition under Section 2(21) of the MV Act, if the
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018 vehicle is a transport vehicle or omnibus and it is said that it can be a light motor vehicle, then its "gross vehicle weight" shall not exceed 7500 kg, but not the unladen weight. The category of unladen weight is applicable to a motor car or tractor or road roller, then its unladen weight shall not exceed 7500kg, then only these three types of vehicles are to be considered as light motor vehicles. But so far as transport vehicle or omnibus is concerned, if it is said to be a light motor vehicle, then the category is to be determined as to what is the "gross vehicle weight" and if the "gross vehicle weight" does not exceed 7500kg, then it can be considered as light motor vehicle. The transport vehicle or omnibus shall be considered as light motor vehicle only when gross vehicle weight is less than 7500kg. Therefore, admittedly, in the present case, water tanker is a transport vehicle. Therefore, in the present case, whether the water tanker is a light motor vehicle or medium goods vehicle, the criteria is to be considered based on the "gross vehicle weight". The gross vehicle weight and registered laden weight are one
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018 and the same. In Ex.R2 the gross vehicle weight is mentioned as 8720kg. The unladen weight is mentioned as 3490kg, but the unladen weight is not a deciding factor to classify the vehicle in case of transport vehicle or omnibus. But in the case of transport vehicle or omnibus, the criteria is "gross vehicle weight" or "gross laden weight". As per Ex.R2
- driving licence of the water tanker, the registered laden weight, which means the gross vehicle weight is 8720kg. Therefore, as per Section 2(21) of the MV Act, if the gross vehicle weight of the water tanker exceeds 7500 kg, then the water tanker cannot be termed as light motor vehicle.
11. Then coming to the definition of "Medium Goods Vehicle" and "Heavy Goods Vehicle", as per Section 2(23) and Section 2(16) of the MV Act respectively. "Medium Goods Vehicle" is any goods carriage other than a Light Motor Vehicle or a Heavy Goods Vehicle. To say a vehicle is heavy goods vehicle the gross vehicle weight exceeds 12000 kg, then it is
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018 a Heavy Goods Vehicle. In the present case, the registered laden weight that means the permitted gross vehicle weight is 8720 kg, it is less than 12000 kg. Therefore, it is coming in between the category of light motor vehicle and heavy goods vehicle. Therefore, as per Section 2(23) of the MV Act, water tanker Reg.No.KA-12-7484 is proved to be medium good vehicle as per Section 2(23) of the Act.
12. Exs.R2 and R3 are the driving licence of the water tanker produced by the Insurance Company, which proves the fact that the driver - Pramod S who was driving the water tanker was holding the driving licence or authorized to drive the vehicle of the class light motor vehicle. There is no authorization in Exs.R.2 and R.3 that the driver was also authorized to drive medium goods vehicle. Therefore, it is proved that as on the date of the accident, the driver of the water tanker was holding driving licence only to drive the light motor vehicle, but not having driving licence to drive medium goods vehicle.
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018
12. Therefore, after appreciating the evidences on record and taking into consideration the rival submissions made by the owner and Insurance Company, it is proved that the water tanker Reg.No.KA- 12-7484 is a medium goods vehicle and its driver was having driving licence to drive the light motor vehicle only, but not medium goods vehicle. Therefore, under these circumstances, it cannot be said that the driver of the water tanker was holding valid and effective driving licence. The appellant/owner has authorized person to drive the medium goods vehicle, but the driver was holding light motor vehicle licence only. In this regard, the Insurance Company was successful in taking its defence and establishing its defence as applicable under Section 149(2) of the MV Act. Therefore, the Insurance Company is not liable to pay the compensation and the appellant/owner alone is liable to pay the compensation and the findings given by the Tribunal in this regard is correct, proper and justified.
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018
13. Therefore, as discussed above, while considering the category of transport vehicle whether it is a light motor vehicle or not, the criterion to be adopted is the gross vehicle weight and not the unladen weight of the vehicle. As per definition under Section 2(47) of the MV Act, Transport vehicle includes the goods carriage vehicle also. In the present case, the offending vehicle is water tanker. The water tanker is regarded as goods carriage vehicle. Therefore, to come within the purview of the definition of light motor vehicle is as per Section 2(21) of the MV Act, the gross vehicle weight of the transport vehicle must be less than 7500kg. But in the present case as discussed above, after appreciating the documentary evidence of registration certificate, the gross vehicle weight of the water tanker is 8720 kgs. Therefore, water tanker involved in the present case is not light motor vehicle but it is a medium goods vehicle coming within the definition under Section 2(23) of the MV Act.
14. Admittedly, in the present case, Ex.R2 and Ex.R3 are the driving licence and certified copy of driving
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018 licence extract respectively which proves that the driver of the water tanker was holding driving licence authorizing him to drive light motor vehicle. Therefore, there is a mismatch between the class of vehicle stated in the driving license and the water tanker involved in the accident. Therefore, under this circumstance, it can be stated that the driver of the water tanker was not holding valid and effective driving licence to drive medium goods vehicle. Hence, the appellant-insurance company has taken the defence and successfully established the same.
15. Learned counsel for the respondent-claimant submitted that even though there is violation of conditions of policy, the claimant-respondents are third parties and the interest of third parties is to be safeguarded. Therefore, he prays for order of 'pay and recovery'. Further, it is submitted that when the insurance company is successful in taking its defence and establishing the said defence that the driver of the water tanker was not holding the driving licence, but as per Section 149(2) of the MV Act and also as per the principles of law laid down
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018 by the Hon'ble Apex Court in the case of PAPPU AND OTHERS-V-VINOD KUMAR LAMBA AND ANOTHER1 and full bench decision of this Court in the case of New India Assurance Company Limited vs. Yellavva and Another2 an order of pay and recovery can be made, directing the insurance company to satisfy the claim amount at the first instance to the claimants as the claimants are third party and then recover it from the owner of water tanker. Accordingly, an order of 'pay and recovery' is made.
QUANTUM OF COMPENSATION:
16. In the present case, the Tribunal has awarded compensation under various heads as follows:
1 Pain and suffering Rs. 40,000/- 2 Attendant charges, extra nutritious Rs. 6,000/-
food and conveyance expenses 3 Loss of income during laid up period Nil 4 Medical expenses Rs. 95,742/- 5 Loss of future income due to Nil permanent disability 6 Towards disablement Rs. 30,000/- 7 Loss of future amenities Rs. 20,000/- 8 Future medical expenses Rs. 15,000/-
TOTAL Rs. 2,06,742/- 1 Reported in (2018) 3 SCC 208 2 2020 ACJ 2560 (HCK) - 17 - MFA No. 4371 of 2018 C/W MFA No. 6885 of 2018
17. The appellant-claimant was aged 26 years old and was working as Sales Executive in Vijay Chemicals Agency claiming to earn Rs.12,000/- p.m. and sustained injuries of fracture of tibia and fibula bones of right leg.
The above said injuries are grievous in nature. The tibia and fibula bones are weight bearing bones. Therefore, compensation of Rs.40,000/- awarded under the head 'pain and suffering' is on the lesser side and the same is enhanced to Rs.50,000/-.
18. The compensation of Rs.6,000/- awarded under the head 'Attendant charges, extra nutritious food and conveyance expenses' is on the lesser side and the same is enhanced to Rs.15,000/-. The medical expenses granted is as per the actual bills produced and the same is kept intact.
19. It is stated that the appellant-claimant was working as Sales Executive in Vijay Chemicals Agency and the work of Sales Executive requires field work besides which it also requires some physical strength. Even
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018 though the Tribunal has not awarded compensation under the head 'loss of future income due to disability' on the ground that there is no evidence by the appellant-claimant that he is terminated from the service or he was constrained to leave the job for injuries sustained. Therefore, it is presumed that the appellant-claimant might have continued his service and not granted the compensation under the head 'loss of future income due to disability'. It is undisputed fact that the appellant- claimant had sustained fracture of tibia and fibula bones of right leg. Even though there may not be evidence that due to accidental injuries, the company has terminated the appellant-claimant or the appellant-claimant himself has constrained to give up the job and on presumption that the appellant-claimant may be continued in his service but the fact that due to accidental injuries and nature of injuries sustained as discussed above, the appellant- claimant certainly is deprived of carrying out his work effectively as before the accident and unable to show his performance upto the mark. Therefore, considering the evidence of the doctor that the appellant-claimant had
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018 suffered permanent physical disability at 21% towards whole body but presuming the fact that the appellant- claimant may be continued in the service but certainly he would be deprived of taking incentives, bonus, increment etc. because of not showing the performance up to the mark as Sales Executive. Therefore, on this aspect, the appellant-claimant may not perform his job because the work of Sales Executive requires field work and some physical strength as well and due to accidental injuries if the appellant-claimant is not able to show his performance as his colleagues are showing, under this circumstance, the appellant-claimant is losing bonus, increment that would be the economical loss to the appellant-claimant and that has to be compensated by taking the functional disability at 8% affecting the earning capacity of the appellant-claimant. Therefore, this 8% has to be considered as functional disability as per principle laid down by the Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another 3 3 (2011) 1 SCC 343
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018
20. The accident was caused in the year 2016. Therefore, the notional income of Rs.9,500/- as recognized by the Karnataka State Legal Services Authority in absence of proof of income.
21. The appellant-claimant was 26 years old. Therefore, the appropriate multiplier is 17. Hence, the loss of income due to disability affecting is future career such as receiving incentives, increment, bonus etc. is reassessed and quantified as follows:
9,500x8/100x17x12 = Rs.1,55,040/-
22. The Tribunal has awarded Rs.30,000/- towards total disability that is taken care off by the loss of income due to disability. Therefore, the same is set aside.
23. The compensation awarded under the head loss of amenities which is on the lesser side and the same is enhanced to Rs.50,000/-.
24. The Tribunal has not awarded the compensation under the head 'loss of income during laid up period'. The
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018 appellant-claimant is treated as inpatient for the period of 5 days in the hospital and also undergone operation. Due to the injuries suffered, the appellant-claimant might not have attended to work atleast for a period of four months. As such, compensation of Rs.38,000/- (9,500x4 months) is awarded under the head 'loss of income during laid up period'.
25. The amount of compensation awarded under the head 'future medical expenses' is found to be just and proper.
26. The Tribunal has awarded interest at 8% p.a. and the same is scaled down to 6% p.a. Therefore, the appeal filed by the insurance company in MFA No.4371/2018 is liable to be allowed in part to this extent.
27. Thus, in all, this Court has determined the compensation under various heads as follows:
1 Pain and suffering Rs. 50,000/- 2 Attendant charges, extra nutritious Rs. 15,000/-
food and conveyance expenses 3 Loss of income during laid up period Rs. 38,000/- 4 Medical expenses Rs 1,55,040/- 6 Towards disablement Rs. 30,000/-
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MFA No. 4371 of 2018C/W MFA No. 6885 of 2018 7 Loss of future amenities Rs. 50,000/-
8 Future medical expenses Rs. 15,000/-
TOTAL Rs. 3,53,040/-
28. Hence, I proceed to pass the following:
ORDER i. Appeal filed by the appellant-insurance company in MFA No.4371/2018 and the appeal filed by the appellant-claimant in MFA No.6885/2018 are allowed in part.
ii. The judgment and award dated 22.03.2018 passed in MVC No.2122/2016, by the Court of Small Causes and Motor Accident Claims Tribunal, Bengaluru (SCCH-17) is modified to the above extent. iii. The appellant-claimant in MFA No.6885/2018 is entitled to an enhanced compensation of Rs.1,46,298/- (Rs.3,53,040/- - Rs.2,06,742/-) along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.
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C/W MFA No. 6885 of 2018 iv. The appellant-insurance company shall pay the compensation at the first instance and then recover it from the owner of the water tanker bearing Reg.No.KA-12-7484.
v. The amount in deposit shall be transferred to the Tribunal along with TCR and copy of this order forthwith.
vi. Further, the appellant-claimant in MFA No.6885/2018 is not entitled to interest for the delay period of 45 days.
vii. No order as to costs.
viii. Draw award accordingly.
Sd/-
JUDGE SSD