Karnataka High Court
National Insurance Co. Ltd., vs T Ramana Reddy on 9 December, 2020
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 9TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.No.6267/2010 (MV)
C/W
M.F.A.No.5622/2010 (MV)
IN M.F.A.No.6267/2010:
BETWEEN:
NATIONAL INSURANCE CO. LTD.,
D O NO.2, NO.64, SATHI COMPLEX,
3RD FLOOR, UNITY BUILDING ANNEXE,
LALBAGH ROAD (MISSION ROAD),
BENGALURU - 560 027.
NOW REPRESENTED BY ITS
REGIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
SUBHARAM COMPLEX,
144, M.G. ROAD,
BENGALURU - 560 001. ... APPELLANT
[BY SRI A.N. KRISHNA SWAMY, ADVOCATE (VIDEO CONFERENCE)]
AND:
1. T. RAMANA REDDY,
S/O LATE THIMMANNA REDDY @ THIMMALAPPA,
NOW AGED ABOUT 40 YEARS,
R/AT NO.59, II CROSS,
NANDINI LAYOUT, 3RD BLOCK,
NEAR KATHRIGUPPE, BENGALURU.
2
2. PRABBU,
S/O KRISHNAM NAIDU,
MAJOR,
#20, 3RD MAIN, 8TH CROSS,
J C NAGAR, BENGALURU - 560 086. ... RESPONDENTS
(BY SRI JAGADISH G. KUMBAR, ADVOCATE
FOR SRI A. SREENIVASAIAH, ADVOCATE FOR R-1,
NOTICE TO R-2 IS DEEMED TO HAVE BEEN COMPLETED
VIDE ORDER DATED 25.10.2016)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 10.02.2010 PASSED
IN MVC.NO.6695/2008 ON THE FILE OF XIII ADDITIONAL SMALL
CAUSE JUDGE, MEMBER, MACT, BENGALURU, AWARDING A
COMPENSATION OF Rs.25,000/- WITH INTEREST @ 6% P.A. FROM
THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A.No.5622/2010:
BETWEEN:
T. RAMANA REDDY,
S/O LATE THIMMANNA REDDY,
AGED ABOUT 40 YEARS,
R/AT NO.59, II CROSS,
NANDINI LAYOUT, 3RD BLOCK,
NEAR KATHRIGUPPE,
BENGALURU. ... APPELLANT
(BY SRI JAGADISH G. KUMBAR, ADVOCATE
FOR SRI A. SREENIVASAIAH, ADVOCATE)
AND:
1. PRABHU,
S/O. KRISHNAM NAIDU,
MAJOR,
#20, 3RD MAIN, 8TH CROSS,
J.C. NAGAR, BENGALURU - 560 086.
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2. NATIONAL INSURANCE CO. LTD.,
DO-2, NO.64, SATHI COMPLEX,
LALBAGH ROAD (MISSION ROAD),
BENGALURU - 560 027. ... RESPONDENTS
(BY SRI M. NARAYANAPPA, ADVOCATE FOR R-2,
NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER DATED
05.11.2015)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 10.02.2010 PASSED
IN MVC.NO.6695/2008 ON THE FILE OF THE XIII ADDITIONAL
SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES
- 15, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE M.F.As. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.11.2020, THIS DAY THE COURT PRONOUNCED
THE FOLLOWING:
JUDGMENT
These two appeals are filed by the Insurance Company and the claimant, respectively challenging the judgment and award dated 10.02.2010 passed in M.V.C.No.6695/2008, on the file of the MACT, Court of Small Causes, Bengaluru (SCCH-15) questioning liability and the quantum.
2. The factual matrix of the case is that on 06.03.2007 at about 4.30 p.m., the petitioner was proceeding on a Hero Honda Passion motor bike bearing No.KA-02-EV-798 towards Madigabanda Village from Gummakallu Village on the way to 4 Palamaner-Bangalore Road, NH-4. When he reached near RTO check post, at that time, a container lorry was stationed on the road. The petitioner hit the container lorry from behind which resulted in the accident and sustained grievous injuries on his legs and other parts of the body. Immediately, he was shifted to Government Hospital, Palamaner for first aid and thereafter to R.L.Jalappa Hospital, Kolar and he took treatment as an inpatient. He had spent huge amount for medical expenses and also sustained permanent disability. Hence, the claimant filed the claim petition under Section 163A of the Motor Vehicles Act, 1988 ('MV Act' for short), claiming the compensation of Rs.4,00,000/-.
3. In pursuance of the claim petition, notice was issued against respondent Nos.1 and 2. Respondent No.1 did not appear before the Tribunal and was placed exparte. Respondent No.2 - Insurance Company filed the written statement contending that the petitioner has not made the owner and the insurer of the lorry as parties to the petition. Hence, the petition is not maintainable. However, admitted the policy and contended 5 that the liability is subject to terms and conditions of the policy. It is also contended that the accident had taken place due to rash and negligent driving of the petitioner himself. The alleged accident is a self-accident and the petitioner is not a third party. Hence, the Company is not liable to pay any compensation.
4. The claimant in order to substantiate his claim, examined himself as P.W.1 and also examined the doctor as P.W.2 and got marked the documents at Exs.P.1 to 7. The respondent - Insurance Company examined one witness as R.W.1 and also got marked the documents at Exs.R1 to 3. The Tribunal after considering both oral and documentary evidence placed on record, allowed the claim petition granting compensation of Rs.25,000/- under Section 140 of the MV Act with interest at 6% per annum from the date of petition till the date of deposit. Hence, the present two appeals are filed by the claimant as well as the Insurance Company.
5. In M.F.A.No.5622/2010, the claimant/appellant would contend that the Tribunal has grossly erred in invoking Section 140 of the MV Act when the petition was filed under 6 Section 163A of the MV Act. The learned counsel in his argument would contend that it is a self-accident and the petition is filed under Section 163A of the MV Act. The Trial Judge ought not to have invoked Section 140 of the MV Act, instead should have considered the matter on merits. The Tribunal has not awarded just and reasonable compensation.
6. The learned counsel in support of his contentions relied upon the unreported judgment of this Court passed in M.F.A.No.21243/2013 disposed of on 20.01.2020 and would submit that this Court considered the judgment of the Apex Court in the case of RAMKHILADI AND ANOTHER v. UNITED INDIA INSURANCE COMPANY in C.A.No.9393/2019, wherein it is held that where the accident in question occurred due to the own negligence of the driver or rider of the vehicle and no other vehicle is involved in the accident, in case, the rider of the motor cycle is the owner of the vehicle, he being the insured cannot maintain claim petition under Section 163A of the MV Act. The Apex also considered the arguments advanced on behalf of the claimant that in view of the amendment of second 7 schedule in respect of Section 163A of the MV Act, the compensation is to be fixed at Rs.5,00,000/-. This Court also referring paragraph No.5.8 of the judgment held that claimants are entitled for compensation of Rs.1,00,000/- as per the terms of the contract of insurance, which is not disputed. As they are the legal heirs of the claimants, they are not entitled for compensation under Section 163A of the MV Act, referring the policy in respect of personal accident claim. The learned counsel referring this judgment would contend that even this Court can consider the policy and in the case on hand, a premium of Rs.50/- is collected towards PA claim.
7. The learned counsel also relied upon the Division Bench judgment of this Court in M.F.A.No.3889/2011 disposed of on 11.06.2019. The learned counsel would contend that the Division Bench referring the judgments of the Apex Court in the case of United India Insurance Co. Ltd. v. Sunil Kumar and another reported in AIR 2017 SC 5710 , in the case of Shivaji and another v. Divisional Manager, United India Insurance Company Limited and others reported in AIR 2018 SC 3705 8 and in the case of Kaushnuma Begum and others v. New India Assurance Co. Ltd., and others reported in 2001 ACJ 428, held that the principle of strict liability has been incorporated under Section 163A of the MV Act. Therefore, even in a case where there is no tort-feasor and no negligence caused by any tort-feasor but on account of use of the motor vehicle in a public place an injury or death is caused, in such a situation under Section 163A of the MV Act read with second schedule on structured formula basis, the claim petition would have to be considered dehors the aspect of negligence. The Division Bench observing the same, set aside the judgment and remanded the matter to the Tribunal to consider the case afresh.
8. Per contra, the learned counsel for the Insurance Company would contend that the Tribunal has committed an error in awarding compensation under Section 140 of the MV Act. The compensation payable either under Section 140 of the MV Act or under Section 163A of the MV Act, would be in respect of third parties and not to the owner of the vehicle or the rider of the vehicle and fastening of the liability of Rs.25,000/- on the 9 Insurance Company is contrary to the provisions of the MV Act and terms and conditions of the policy. The learned counsel in his argument vehemently contend that Section 147 of the MV Act is clear that the owner is liable to pay the compensation. In the case of hand, the claimant himself was riding the vehicle. He met with an accident and admittedly it is a self-accident and hence the Insurance Company cannot indemnify the owner and the liability of the owner has to be indemnified by the insurer. When such being the case, passing the order under Section 140 of the MV Act is illegal.
9. In support of his contentions, the learned counsel relied upon the judgment of the Apex Court in the case of ORIENTAL INSURANCE COMPANY LIMITED v. RAJNI DEVI AND OTHERS reported in (2008) 5 SCC 736. The learned counsel referring this judgment would contend that Section 163A of the MV Act cannot be said to have any application in regard to an accident wherein the owner of the motor vehicle himself is involved, since a person cannot be both, a claimant as also a recipient.
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10. The learned counsel referring to the judgment of the Apex Court in the case of Ramkhiladi (supra), would contend that the Apex Court reaffirming the principles laid down in the case of NINGAMMA v. UNITED INDIA INSURANCE CO. LTD. reported in (2009) 13 SCC 710, held in paragraph No.5.5 that in a claim under Section 163A of the MV Act, there is no need for the claimants to plead or establish the negligence and/or that the death in respect of which the claim petition is sought to be established was due to wrongful act, neglect or default of the owner of the vehicle concerned. The Apex Court also observed that the claim petition under Section 163 of the MV Act is based on the principle of no fault liability. However, at the same time, the deceased has to be a third party and cannot maintain a claim under Section 163A of the MV Act against the owner/insurer of the vehicle which is borrowed by him, as he will step into the shoes of the owner and he cannot maintain a claim under Section 163A of the MV Act against the owner and insurer of the vehicle. The learned counsel referring this judgment would contend that the claimant cannot claim the compensation since 11 he steps into the shoes of the owner as he was riding the vehicle.
11. Having heard the learned counsel for the appellant/claimant and the learned counsel for the Insurance Company, the points that arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error in coming to the conclusion that the claimant is entitled for a compensation of Rs.25,000/-
under Section 140 of the MV Act?
(ii) Whether the Tribunal has committed an error
in awarding compensation of Rs.25,000/-
invoking Section 140 of the MV Act, as
contended by the Insurance Company?
(iii) What order?
Point Nos.(i) and (ii):
12. Having heard the submissions of the respective learned counsel, it is not in dispute that the petition is filed under Section 163A of the MV Act. The claimant is the injured who was riding the motor cycle involved in the accident. It is 12 also not in dispute that the policy was issued in respect of the said motor cycle in terms of Ex.R.1. On perusal of the claim petition, the claimant has stated that he was riding the motor cycle and he met with an accident by hitting the lorry which was parked abruptly on the left side of the road. The owner and the Insurance Company of the said lorry have not been made as parties to the proceedings, but the claim is made in respect of the owner of the insurer of the vehicle in which he was riding. The petitioner in his petition has pleaded that on 06.03.2007 at about 4.30 p.m., he was proceeding in his Hero Honda Passion motor bike towards Madigabanda Village from Gummakallu Village on the way to Palamaner-Bangalore Road and he met with an accident.
13. Having perused the pleadings available at column No.22, it is specifically pleaded that he was proceeding on his Hero Honda Passion motor bike and hence it is clear that the motor cycle belongs to him. But, it is not stated specifically as to whether he was the owner or the borrower or employee of the owner, who has been arrayed as respondent No.1. The 13 Insurance Company in the written statement has not taken any defence that the petition is not maintainable. However, averred with regard to the extent of liability under Section 163A of the MV Act. When P.W.1 was examined, he did not depose anything about on what capacity he was proceeding in the motorcycle except stating that he was riding the motor cycle. In the cross- examination of P.W.1 also, the Insurance Company did not elicit anything whether he was a borrower or whether he was an employee of the owner of the motor cycle or whether he was proceeding in his capacity as owner of the motor cycle, but elicited that the motor cycle belongs to one Prabhu, who is respondent No.1. Hence, it is clear that the motor cycle belongs to one Prabhu and the same is also evident from the document Ex.R.1. He admits that the police have filed the charge-sheet against him stating that it is a self-accident.
14. The Insurance Company also examined its official as R.W.1. In the affidavit filed by the Insurance Company, it is contended that the police have filed the charge-sheet as against the petitioner and it is a self-accident caused due to rash and 14 negligent driving on the part of the petitioner. Except the said averment in the affidavit, nowhere in the written statement as well as in the affidavit, took the contention that the petitioner stepped into the shoes of the owner as a borrower or claimed that he was the owner or contended that he was an employee of the owner. It is also important to note that on perusal of Ex.R.1 policy, an amount of Rs.50/- is collected towards compulsory PA cover (Owner Driver). The Insurance Company also did not dispute the same.
15. Having perused the evidence available on record, nowhere it is found in the pleadings or evidence on what capacity he was proceeding, whether he was the owner, borrower or employee of the owner of the motor vehicle. But the fact that in the claim petition, though he has not specifically claimed that he was the owner of the vehicle in which he was riding, the pleading is very clear that he was proceeding on his Hero Honda Passion motor bike. When he pleads that he was proceeding on his bike, the Court has to assume that he was proceeding in the motor cycle as the owner. No doubt, it is 15 settled law that the owner cannot claim the compensation and he cannot be recipient also as held by the Apex Court in the case of Ningamma (supra). The Apex Court in its judgment in the case of Ramkhiladi (supra), held that even as per the contract of insurance, in a case of personal accident, the owner-driver is entitled to a sum of Rs.1,00,000/-. It is further observed that the deceased, who would be in the shoes of the owner shall be entitled to a sum of Rs.1,00,000/- even as per the contract of insurance. It is further observed that the claimants shall be entitled to Rs.1,00,000/- as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.
16. The Apex Court in its judgment in the case of Rajni Devi (supra), referring to the case of Oriental Insurance Co. Ltd., v. Jhuma Saha reported in (2007) 9 SCC 263, Dhanraj v. New India Assurance Co. Ltd., reported in (2004) 8 SCC 553, National Insurance Co. Ltd., v. Laxmi Narain Dhut reported in (2007) 3 SCC 700 and Premkumari v. Prahlad Dev reported in (2008) 3 SCC 193, held that liability under 16 Section 163A of the MV Act is on the owner of the vehicle since a person cannot be both, a claimant as also a recipient. Therefore, the heirs of the deceased could not have maintained the claim in terms of Section 163A of the MV Act. It is further observed that for the said purpose only the terms of the contract of insurance could be taken recourse to. The Apex Court referring to the judgment in the case of NATIONAL INSURANCE CO. LTD. v. ASHALATA BHOWMIK reported in (2018) 9 SCC 801, held that the parties shall be governed by the terms and conditions of the contract of insurance. Therefore, as per the contract of insurance, the Insurance Company shall be liable to pay the compensation to third party and not to the owner, except to the extent of Rs.1,00,000/-, as observed.
17. In the case on hand also, in view of the principles laid down in the case of Ramkhiladi (supra), the Apex Court in detail discussed the question involved in the matter. However, taking note of the contract of insurance between the parties, awarded the compensation of Rs.1,00,000/-. In the case on hand, though not specifically pleaded on what capacity he was 17 proceeding, but this Court on minute examination taken note of the pleading and he has pleaded that he was proceeding on his motor cycle and hence the Court has to come to the conclusion that the same belongs to him in the absence of pleadings and evidence. I have already pointed out that nothing is elicited in the cross-examination of P.W.1 on what capacity he was proceeding and the Insurance Company has also not adduced any evidence with regard to the maintainability of the petition, but only raised the said contention in this appeal. Nowhere in the pleadings and also in the affidavit of R.W.1 took the defence that he cannot maintain a petition specifically and he steps into the shoes of the owner. But this Court has meticulously examined the pleadings. When such being the case, the Apex Court in the case of Ningamma (supra), held that if he is a borrower of the vehicle, he steps into the shoes of the owner. The Apex Court in the case of Ramkhiladi (supra), discussing several judgments comes to the conclusion that the judgment of the Apex Court in the case of Ningamma (supra), has been reiterated and thereafter held that the owner cannot maintain a petition under Section 163A of the MV Act. It is settled law that the said 18 provision of Section 163A of the MV Act and no fault liability is for the benefit of third party.
18. In the case on hand, I have already pointed out that Ex.R.1 clearly discloses that a specific premium of Rs.50/- was collected for compulsory PA cover to owner driver. When this Court comes to the conclusion that the claimant stepped into the shoes of the owner, the Court has to take note of premium collected towards PA cover to owner driver. The learned counsel for the Insurance Company would contend that that is only in respect of owner-cum-driver and this contention cannot be accepted. The learned counsel for the Insurance Company cannot blow hot and cold, in one breath he will step into the shoes of owner and in another breath the premium collected is only for owner.
19. On perusal of Ex.R.1 when the amount of Rs.50/- is collected for compulsory PA cover and the vehicle involved in the accident is a two wheeler, hence the PA cover would be upto Rs.1,00,000/- and if it is a four wheeler, the PA cover would be Rs.2,00,000/-. Hence, in view of the contract of insurance 19 between the parties, the Insurance Company is liable to pay the compensation even though the petition under Section 163A of the MV Act is not maintainable as observed by the Apex Court in the case of Ramkhiladi (supra).
20. Now this Court has to consider the material on record on merits. It is the case of the claimant that he sustained injuries in the accident and suffered Type I compound fracture of the left femur and Type II compound fracture of the right humerus and in order to substantiate the injuries, he relied upon the document Ex.P.3 wound certificate, which discloses that he has suffered five injuries. Out of that, there are four fractures in respect of right elbow humerus and left femur transverse fracture at the junction of distal middle third of femur. The doctor has opined that injury Nos.2 and 4 are grievous in nature and injury Nos.1, 3 and 5 are simple in nature. The claimant also produced the medical bills to the tune of Rs.10,464.69/-. In the cross-examination, nothing is elicited to disbelieve the document of medical bills. The claimant also examined the doctor as P.W.2 and he reiterated the nature of injuries and he assessed the 20 disability at 30% for the left lower limb and 10% for the whole body and 30% for the right upper limb and 7.5% for the whole body and in total he assessed the disability of 17.5%. In the cross-examination, he admits that fractures are united and he was discharged since his condition was satisfactory. But however, he claims that the fracture is united but there is a malunion in respect of humerus fracture and he has not issued any certificate to show that he requires Rs.15,000/- for removal of implants.
21. Having perused the records, it is clear that fracture was united and there was no malunion in respect of humerus. This Court has to take note of what he has pleaded in the claim petition that he was earning Rs.3,300/- per month and it appears that in order to bring the petition under Section 163A of the MV Act, the said pleading was made and not placed any material with regard to his income is concerned. The wound certificate - Ex.P.3 shows that he has suffered two fractures and other three simple injuries. The Trial Judge invoking Section 140 of the MV Act awarded the compensation of Rs.25,000/-, without 21 any basis. Having taken note of that there was no pleading with regard to on what capacity he was proceeding and when the Apex Court held that the Court can take note of premium collected for PA claim, the Court can award the compensation. The doctor evidence is that he is having disability to the extent of 17.5% to the whole body. The claimant was aged about 38 years at the time of the accident. As per General Regulation 36 of India Motor Tariff, Personal Accident (PA) cover of owner- driver shall be applicable under both Liability Only and Package policies. The scope of cover, Capital Sum Insured (CSI) and the annual premium payable under this Section if vehicle is two wheeler is Rs.50/- and the liability is Rs.1,00,000/- which covers
(i) 100% of CSI for death, loss of two limbs or sight of both eyes or one limb and sight of one eye (ii) 50% of CSI for loss of one limb or sight of one eye (iii) 100% for permanent total disablement from injuries other than named above. Having taken note of partial permanent disablement of 17.5% in respect of both lower limb and upper limb under the cover of capital sum insured and taking note of the amount spent towards medical expenses of Rs.10,500/- and implant in situ, it is appropriate to 22 award an amount of Rs.70,000/- since the disability is not to the extent of 100% or 50% and the maximum coverage is only Rs.1,00,000/- and proportionate compensation is awarded under the contract of insurance as the premium is paid for owner/driver.
22. In view of the discussions made above, I pass the following:
ORDER
(i) M.F.A.No.5622/2010 filed by the claimant is allowed partly granting compensation of Rs.70,000/- modifying the judgment of the Tribunal.
(ii) The Insurance Company is directed to pay the compensation amount within eight weeks from the date of receipt of the copy of this order.
(iii) M.F.A.No.6267/2010 filed by the Insurance Company is dismissed.
(iv) The amount deposited by the Insurance
Company is ordered to be transmitted to the
concerned Tribunal.
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(v) The Registry is directed to send the Trial Court records to the concerned Tribunal, forthwith.
Sd/-
JUDGE MD