Karnataka High Court
The Divisional Manager,Oriental ... vs Hanmantha S/O Late Bhimaraya & Ors on 10 January, 2019
Equivalent citations: AIRONLINE 2019 KAR 1790
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE P.G.M.PATIL
MFA NO. 32018/2012 (MV) C/W
MFA CROB NO.200074/2014 (MV)
IN MFA NO. 32018/2012 (MV)
BETWEEN:
THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO.LTD.
N.G.COMPLEX, FIRST FLOOR
OPP: MINI VIDHANA SOUDHA, GULBARGA
PRESENTLY REP. BY
THE SENIOR DIVISIONAL MANAGER,
ORIENTAL INSURANCE CO. LTD.
... APPELLANT
(BY SRI SUDARSHAN M. ADVOCATE)
AND:
1. HANMANTHA S/O LATE BHIMARAYA
AGE 26 YEARS, OCC: NIL
2. SHASHAPPA S/O LATE BHIMARAYA
AGE: 24 YEARS, OCC: NIL
2
BOTH ARE R/O KUDLOOR (V)
TQ, & DIST. YADGIRI
3. AYYAPPA S/O HANMANTHA DASAR
AGE: 36 YEARS, OCC: OWNER OF JEEP
NO. AP-1/T-6166,
R/AT HANDERKI VILLAGE, TQ. SEDAM
DIST. GULBARGA
... RESPONDENTS
(BY SRI S. S. SAJJANSHETTY, ADVOCATE
FOR R1 & R2; R3 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLE ACT PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 16.06.2012 PASSED
IN MVC NO.19/2006 BY THE SENIOR CIVIL JUDGE
AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-
II AT YADGIR.
IN MFA.CROB NO 200074 OF 2014
BETWEEN:
1. HANMANTH S/O LATE BHIMARAYA
AGE: 28 YEARS, OCC: COOLIE
2. SHASHAPPA S/O LATE BHIMARAYA
AGE: 26 YEARS, OCC: AGRI - COOLIE
BOTH ARE R/O KUDLOOR VILLAGE
TQ. & DIST. YADGIRI
... CROSS-OBJECTORS
(BY SRI S.S. SAJJANSHETTY, ADVOCATE)
3
AND:
1. AYYAPPA S/O HANMANTHA DASAR
AGE: 38 YEARS OCC:OWNER OF JEEP
NO.AP-1/T-6166, R/O: HANDERKI VILLAGE
TQ:SEDAM, DIST:GULBARGA
2. THE DIVISIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.
N.G.COMPLEX, IST FLOOR
OPP: MINI VIDHAN SOUDHA, GULBARGA
TQ: & DIST:GULBARGA
PRESENTLY REPRESENTED BY
THE SENIOR DIVISION MANAGER
ORIENTAL INSURANCE CO. LTD.
... RESPONDENTS
(BY SRI SUDARSHAN M. ADVOCATE FOR R2;
NOTICE TO R-1 DISPENSED WITH V/O
DATED.19.11.2018)
THIS MFA CROB IS FILED U/O 41 RULE 22 OF
CPC PRAYING TO ALLOW THE CROSS OBJECTION BY
DISMISSING THE MFA FILED BY THE RESPONDENT
NO.2 AS DEVOID OF MERITS AND SET ASIDE THE
IMPUGNED JUDGMENT AND AWARD DT: 16.06.2012
IN MVC NO.19/2006 ON THE FILE OF THE MEMBER
M.A.C.T II AT YADGIR AND TO MODIFY THE AWARD
BY SUITABLE ENHANCEMENT OF COMPENSATION
PAYABLE IN ACCORDANCE WITH LAW WITH
INTEREST AT 9% PER ANNUM FROM THE DATE OF
PETITION.
4
THIS APPEAL AND CROSS OBJECTION HAVING
BEEN HEARD ON 06.12.2018 AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
Heard learned counsel for the appellants and the respondents in both the cases.
2. The appeal is filed by the Oriental Insurance Company and MFA CROB is filed by the claimants, being aggrieved by the judgment and award dated 16.06.2012, passed by the MACT-II, Yadgiri in MVC No.19/2006.
3. For the sake of convenience, I shall refer the parties with their ranks before the Tribunal.
4. It is the case of the claimants that on 01.09.2005 at about 11.30. p.m., the petitioners and their mother Bhagamma were proceeding in the Jeep 5 bearing No.AP-1/T-6166 on Yadgiri-Hattikuni road and when they were so proceedings near Ganga Nagar village, the driver of the said jeep drove the same in a high speed and in the rash and negligent manner resulting that it fell down on the side of the road. The deceased Bhagamma sustained multiple grievous injuries and she died in the government hospital while under treatment. The petitioners have stated that she was hale and healthy prior to the accident and she was aged about 40 years and doing coolie work and was earning Rs.100/- per day. The petitioners were depended on the income of the deceased and they have lost their bread-winner. Hence they claimed compensation of Rs.5,75,000/- under Section 163A of Motor Vehicle Act.
5. In pursuance of notice to respondent Nos.1 and 2, they appeared before the Tribunal and filed their written statement, denying the entire allegations made 6 in the claim petition. Respondent No.2, insurance Company denied the liability on the ground that the deceased was a fare paid passenger in a private vehicle and therefore respondent No.1 has violated the policy and permission conditions. The driver of the vehicle was not holding effective driving license but drove the vehicle and as such he is not liable to pay compensation, on these grounds, he prayed for dismissal of the claim petition.
6. On the pleadings of the parties, the Tribunal framed the issues. Claimant No.2 was examined as PW- 1 and got marked 8 documents; respondent No.1/owner of the vehicle got himself examined as RW-1 and respondent No.2 got examined one witness as RW-2 and they have got marked three documents. The learned Member of the Tribunal after hearing all the parties, passed the impugned judgment awarding the compensation of Rs.4,00,000/- with interest at 6% per 7 annum from the date of filing of the petition till the date of realization.
7. The insurer being aggrieved by the impugned judgment and award has filed MFA 32018/2012, contending that the award is arbitrary and without appreciating the evidence on record. The Tribunal has not appreciated that the risk of the occupants of the jeep in question is not covered under the policy issued and that it is a private jeep-liability only policy. Therefore, the liability should not have been saddled on the insurance company.
8. The claimants have filed MFA CROB No.200074/2014 seeking enhancement of the compensation. They have contended that the Tribunal has committed an error in taking the income of the deceased as Rs.3,000/- per month instead of Rs.4,500/- per month and that the Tribunal has not 8 awarded the compensation towards future prospects for assessing the loss of dependency.
9. Learned counsel for the insurance Company submitted that the policy issued in respect of the offending vehicle is 'Act policy' and it is a private jeep and that the deceased was inmate in the said jeep. Therefore, the risk of the inmates of the private jeep is not covered under the 'Act policy' and as such liability cannot be saddled on the insurance company. The learned counsel for the insurance company has relied on the decision of the Division Bench of this Court in the case of The Branch Manager, New India Assurance Company Limited vs. Mahadev Pandurang Patil and Another (ILR 2012, KAR 1841).
10. Per contra, learned counsel for the claimants submitted that the insurance company has not led any evidence to prove its contention even after the matter was remanded from this Court as per the judgment in 9 MFA NO. 4554/2008 dated 05.08.2011. The insurance Company has not proved that the deceased was a fare paid passenger travelling in the private jeep. Therefore the liability saddled on the insurance company need not be interfered with. The learned counsel further submitted that enhancement may be made wherever it is permissible in law. The claim petition was filed under Section 163A of Motor Vehicle Act. This provision provides for awarding the compensation as provided in The Second Schedule of the Motor Vehicle Act. In order to claim compensation under Section 163A of the M.V.Act, the income of the deceased must not exceed Rs.40,000/- per annum and the compensation towards loss of estate, funeral expenses have to be awarded as provided in The Second Schedule.
11. The main contention of the insurance company in the present case is that, the policy issued in respect of the offending vehicle is 'Act policy' and it is a 10 private jeep in which the deceased was travelling. Therefore the risk of the inmate of the private jeep is not covered under the policy. Therefore, insurer cannot be saddled with the liability to indemnify the owner of the vehicle. Learned counsel for the insurance Company has relied on the above referred decision in the case of Branch Manager New India Assurance Company vs. Mahadev Pandurang Patil and Another. It is a Division Bench decision of this Court. This Court considered Chapter XI of the Motor Vehicle Act and the scheme of the Chapter 'Insurance of the Motor Vehicles against Third Party Risks' - Public Service Vehicle and the statutory insurance coverage -- the liability of the insurer and 'Act Policy' or 'Liability only policy'. In paragraph 16 held as follows:
"16. If the risk of an occupant of a car, inmate of a vehicle or passenger in a private car, is to be covered, additional premium has to be paid. If no additional premium is paid, their risk is not covered. The statutory 11 liability under Sections 146 and 147 of the Act has to be read with the terms of the insurance policy issued under Section 146 of the Act. But that does not prevent an insurer from entering into a contract of insurance covering a risk wider than the minimum requirement of the statute, whereby the risk to gratuitous passengers could also be covered. A third party policy does not cover liability to gratuitous passengers who are not carried for hire or reward. If a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. The liability is restricted to the liability arising out of the statutory requirements under Section14 only."
Further, under paragraph No.17, it is held as follows:
"17. In view of the authoritative pronouncement of the Apex Court holding that an occupant/inmate/passenger in a private car, is not a third party, the finding recorded by the Tribunal that the insurance policy 12 issued covers the risk of such persons and therefore the insurance company is liable to pay compensation amount is illegal and contrary to the law declared by the Apex Court. In fact, in the policy, no additional premium is received by the insurance company to cover the risk of such persons. It is clear from the terminology used in the policy which fact is not in dispute. In one of the cases, additional premium is collected to loading the risk of third party only, as is clear from the policy that loading was not meant to cover risk of inmates of a private car and therefore, merely because an additional premium is collected under the said policy, it cannot be inferred that the risk of inmates of a car are covered. The words are specific that the loading is done in order to cover only third party risk, it is not a case of additional premium being collected to cover the risk of inmates along with third parties. Therefore, in the facts of this case, we are satisfied, as the insured has not paid additional premium and the insurance company has not collected any additional premium, the risk of the 13 occupants of a private car was not covered. Therefore, liability foisted on the insurance company cannot be sustained and accordingly, it is hereby set aside."
12. Further, it is crystal clear that when 'Act policy' is issued in respect of private jeep, the risk of the occupants/inmates/passengers is not covered by the policy, unless additional premium is collected and that the risk of the third party alone is covered under the said policy. It is further made clear that where the additional premium is collected to loading the risk of third party only, it does not mean to cover the risk of the inmates of the private jeep. In the present case, the copy of insurance policy in respect of the offending vehicle is produced at Ex.R-2. This policy goes to show that it is issued as 'Liability Only Policy' for Zone B private jeep. No additional premium is collected to cover the risk of the inmates but an extra loading premium is collected for Rs.700/-. This does not mean 14 that it was collected to cover the risk of the inmates as held in the above referred decision. The learned counsel for the claimants submitted in the course of his arguments that the insurer has not led any evidence in the case even after remand of the matter. But the record shows the insurer has got examined its Assistant Manager Sri Shireddy Bheemanna S/o Hanmanthraya as RW-2 and he was examined on 25.02.2012 before the Tribunal. He has deposed in clear terms that the policy issued in the case is "Liability Only Policy" and it does not cover the risk of the occupants of the vehicle. He has also deposed that vehicle was used for the commercial purpose at the time of accident and as such, insurance company has to be exonerated from the liability. Therefore, in view of evidence of RW-2 and Exhibit R-2, being the 'Act Policy' or 'Liable Only Policy', the insurer cannot be made liable to pay the compensation to the inmates of the private jeep, since the risk of the inmates is not covered under the policy. 15
13. Under these circumstances, I hold that the finding of the Tribunal saddling the liability on the insurance company is liable to be set aside and the insurer has to be exonerated from the payment of compensation. Thus, the appeal filed by the insurer deserves to be allowed.
14. The claimants filed the claim petition under Section 163A of Motor Vehicle Act and as such the Tribunal has to award the compensation in terms of the Second Schedule of the Motor Vehicle Act. Under the Second Schedule the general damages in case of death are quantified as follows: towards funeral expenses Rs.2,000/-; loss of consortium, if beneficiary is the spouse Rs.5,000/-; and loss of estate Rs.2,500/-. Therefore the tribunal cannot award compensation under these conventional heads over and above the compensation prescribed under the Second Schedule. The Tribunal has assessed the loss of dependency of the 16 deceased by taking the income of the deceased as Rs.36,000/- per year; 1/3 of the income of the deceased is deducted towards her personal and living expenses. Thereafter, multiplier 14 is applied in view of the age of the deceased as 45 years and as such a sum of Rs.3,60,000/- is awarded towards loss of dependency which needs no interference. However, the tribunal has awarded Rs.20,000/- towards loss of love and affection. Rs.10,000/- in respect of loss of estate and Rs.10,000/- towards funeral expenses which is in excess of the compensation provided under the Second Schedule. The claimants are entitled for compensation of Rs.2,500/-towards loss of estate and Rs.2,500/- towards funeral expenses. They are not entitle for compensation towards loss of consortium as deceased is their mother. Thus, in all Rs.5,000/- under the conventional head in addition to loss of dependency of Rs.3,60,000/-. Therefore, the claimants are entitled for Rs.3,65,000/- as against the compensation awarded by 17 the Tribunal at Rs.4,00,000/- The award needs to be modified, accordingly. In the result, I proceed to pass the following:
ORDER MFA NO.32018/2012 filed by the Oriental Insurance Company limited is allowed. The judgment and award dated 16.06.2012 passed by the MACT-II Yadigiri in MVC No.19/2016 so far as saddling liability on the insurance company is set aside.
MFA CROB NO.200074/2014 is disposed of as follows:
The claimants are entitled for compensation of Rs.3,65,000/- together with interest at 6% per annum from the date of filing of petition till its realization from respondent No.1, the owner of the vehicle.
The order as to deposit and disbursement of the compensation as passed by the tribunal holds good. 18
The amount of compensation deposited by the insurance company shall be refunded to it.
Sd/-
JUDGE VNR