Karnataka High Court
Vittal S/O. Basavantappa Yenagi vs Vittal S/O, Balappa Naikar on 12 August, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12 T H DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
MFA NO. 22407/2012 (MV)
BETWEEN:
VITTAL S/O. BASAVANTAPPA YENAGI
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O. SOMANATTI, TQ: BAILHONGAL,
DIST: BELGAUM.
... APPELLANT
(BY SRI. HANAMANT R.LATUR, ADV.)
AND
1. VITTAL S/O, BALAPPA NAIKAR
AGE: 50 YEARS, OCC: BUSINESS,
R/O. SUTAGATTI, TQ: BAILHONGAL,
DIST: BELGAUM.
2. THE BRANCH MANAGER,
ORIENTAL INSURANCE CO. LTD.,
C/O. MERCHANT BANK BUILDING,
S.R. CIRCLE, BAILHONGAL,
DIST: BELGAUM.
... RESPONDENTS
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(BY SRI.M.G.GADGOLI, ADV. FOR R2
R1 NOTICE HELD SUFFICIENT)
MFA FILED U/SEC.173(1) OF MV ACT, AGAINST
THE JUDGMENT AND AWARD DTD:31-03-2012
PASSED IN MVC NO.351/2011 ON THE FILE OF
SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT,
BAILHONGAL, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 10.08.2020,
COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT PASSED
THE FOLLOWING
JUDGMENT
The appellant-claimant has preferred this appeal aggrieved by the impugned judgment and award dated 31/3/2012 passed in MVC No.351/2011 on the file of the learned Senior Civil Judge and Additional Motor Accident Claims Tribunal, Bailhongal (for short referred to as "the Tribunal"), whereunder the claim petition filed by the claimant was allowed in part directing -3- respondent No.1-insured to pay the compensation of Rs.73,250/- with interest @ 6% p.a.
2. Heard the learned counsel for the appellant Sri.Hanmant R.Latur and Sri. M.G.Gadgoli, learned counsel for respondent No.2-Insurance Company. Respondent No.1-insured remained absent inspite of service of notice.
3. Brief facts of the case before the tribunal is as follows:
It is the contention of the claimant before the Tribunal that he was traveling in the goods vehicle bearing registration No.KA-23/4508 belonging to respondent No.1-insured, along with his ox, which met with an accident on 28/4/2010 due to the rash and negligent driving of the goods vehicle by its driver. As a result of the accident, the claimant sustained grievous -4- injuries and taken treatment at Government Hospital Saundatti. Thereafter, at Civil Hospital, Belgaum, and again got treated by Dr.C.D.Kulkarni at Bailhongal. He had taken treatment as indoor patient for eight days, as he had sustained fracture of left superior Pubic Rami. He suffered permanent disability and lost his earning capacity. It is stated that the claimant was doing agricultural work and claimed compensation from the respondents.
4. Respondent No.1-insured remained absent before the Tribunal. Respondent No.2-insurer contested the claim petition denying that the claimant was traveling in the goods vehicle with his ox and contending that he was an unauthorized passenger in the goods vehicle and therefore, the insurer is not liable to pay the compensation. It is also contended that there was no -5- permanent disability caused to the claimant and therefore, he is not entitled for the compensation.
5. The claimant examined himself as PW1 and got examined PW2 and got marked Exs.P1 to 14 in support of his contention. The insurer got examined RW1 in support of his defence.
6. The Tribunal after taking into consideration all these materials on record, came to the conclusion that the claimant was traveling in the goods vehicle as passenger and there was violation of terms and conditions of the policy. Hence, it is only respondent No.1-insured is liable to pay the compensation. The Tribunal further held that the claimant has not proved suffering of permanent disability and awarded compensation of Rs.73,250/- to be payable by the insured with interest @ 6% pa.
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7. Respondent No.1-insured has not challenged the impugned judgment and award passed by the Tribunal. The claimant has preferred this appeal on various grounds.
8. Learned counsel Sri Hanmant R.Latur submitted that the documents produced before the Court disclose that the transport vehicle was carrying cattle and under such circumstances, the Tribunal has committed an error in forming an opinion that the claimant was an unauthorized passenger in the goods vehicle and absolving the insurer from liability. Since he was the owner of the goods, i.e. ox, it cannot be held that there was any breach of conditions of the policy and hence, the insurer should have been made liable to pay the compensation. He also contended that even though the claimant has produced Ex.P3-wound certificate, Ex.P6- discharge summary, Ex.P8-medical report, Ex.P13- -7- disability certificate and examined PW2 who spoke about the permanent disability suffered by the claimant, the Tribunal has committed an error in not awarding any compensation towards permanent disability which has resulted in loss of his future earning capacity. Therefore, he prays for allowing the appeal by enhancing the compensation and directing respondent No.2-insurer to pay the compensation.
9. Per contra, the learned counsel Sri M.G.Gadgoli for respondent No.2 submitted that as per the finding of the Tribunal, the claimant was traveling in the goods vehicle as an unauthorised passenger and therefore, there was fundamental breach of conditions of the policy. The Tribunal rightly absolved the insurer from liability and there is no reason to interfere with the said finding. He also contended that from the materials on record, the Tribunal formed an opinion that the -8- claimant had not suffered permanent disability and even this finding do not require interference. Hence, he prays for dismissal of the appeal as devoid of merits.
10. Since the liability of the insurer to pay compensation is in dispute, let me consider this point at the first instance. The undisputed facts of the case is that the claimant was traveling in the goods vehicle at the time of accident in question. It is the contention of the claimant that he was traveling with his ox and hence, he was the owner of the goods, as defined under Section 2(13) of the Motor Vehicles Act and therefore, the insurer is liable to pay compensation.
11. The Tribunal considered the oral and documentary evidence placed before it and recorded its finding that the claimant was a passenger in the goods vehicle. Even though in the FIR and the complaint there is reference to the 10 cattles and 11 persons -9- carried in the goods vehicle at the time of accident, there is no reference to any ox being carried in it. Moreover, the claimant has not produced any material to contend that he was transporting the ox in the vehicle in question. Therefore, I am not inclined to accept the contention of the claimant that he was the owner of the ox alleged to have been carried in the goods vehicle. I do not find any irregularities in the finding recorded by the Tribunal that he was traveling as a passenger in the goods vehicle at the time of accident.
12. Now, the question arises as to whether the insurer is liable or whether it is the insured who is liable to pay the compensation?
13. Learned counsel for the appellant has placed his reliance on the judgment of the full Bench of this Court in MFA No.30131/2010 (MV) dated 12/5/2020.
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While answering the reference, this Court has held as under:-
"i) Having regard to Section 149(1) read with Section 149(7) whenever a case falls under Section 149(2)(a) and the same is successfully established or proved by the Insurance Company, as per the twin tests laid by the Hon'ble Supreme Court in Swaran Singh, nevertheless, the insurer or Insurance Company is liable to satisfy the award vis-à-
vis a third party and is entitled to recover from the insured. This is irrespective of, the policy being an Act policy in terms of Section 147 pertaining to compulsory coverage of risks of third parties and other classes of persons stated therein or a policy covering other risks by specific contract being entered into in that regard and where additional premium is paid by the insured i.e., a contractual policy.
ii) to vi) xxxx
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In the instant case, the appellant-
Insurance Company was directed to discharge its liability, subject to the result of this reference. The vehicle involved in the instant case is a goods vehicle and the injured claimant was travelling in a goods carriage. The Tribunal awarded compensation of Rs.1,000/- with interest at 6% p.a. from the date of petition till deposit and to recover the same from the insured - respondent No.2 herein. If the appellant - insurer has deposited the amount, it is entitled to recover the said amount from the first respondent - insured, as this is a case which falls under Section 149(2)(a) of the Act as the insured claimant was permitted to travel as a passenger in a goods vehicle namely, tempo."
14. In view of the above, the position of law is settled and the contention of the learned counsel for the insurer that since there was fundamental breach of terms of the policy, the insurer cannot be held liable to
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pay compensation and recover the same from the insured, cannot be accepted. Hence, I am of the opinion that the principle of pay and recover is applicable to the facts and circumstances of the present case. The Tribunal has committed an error in absolving the insurer from its liability which calls for interference by this Court. Therefore, it is held that respondent No.2 is liable to pay the compensation to the claimant and will be at liberty to recover the same from respondent No.1- insured, in accordance with law.
15. The next contention raised by the learned counsel for the claimant is with regard to non awarding of the compensation for the permanent disability suffered by the claimant. The claimant has produced Ex.P3-the wound certificate, according to which he had sustained i) abrasion at right side face measuring 2 X 1 cm. and ii) tenderness at lower back and left side hip.
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As per the opinion of orthopedic surgeon, the claimant had fracture of left superior Pubic Rami. Injury No.1 is simple and injury No.2 is grievous in nature.
16. The claimant produced Ex.P6-the discharge summary issued by Belgaum Institution of Medical Science, District Hospital, Belguam. According to which, the claimant was admitted to the hospital on 29/4/2010 i.e. on the next day of the incident and was discharged on 7/5/2010. He also produced the disability certificate as per Ex.P13, according to which the claimant suffered 10% permanent disability to the left lower limb. Dr. Chidambar D. Kulkarni, who treated the claimant and issued the disability certificate was examined before the Tribunal.
17. According to the claimant, he is an agriculturist and also a vegetable vendor. As per the
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medical records, he had sustained fracture of left superior Pubic Rami and got treated for 8 days. The doctor who treated the claimant issued the disability certificate and also deposed before the Tribunal in support of his finding. The very nature of the injury sustained by the claimant definitely result in some disability. The observation of the Tribunal that the claimant walked into the Court hall without any difficulties and PW2 had not explained how the permanent disability suffered by the claimant at 10% to the left lower limb is causing trouble to the claimant in performing agricultural work or vending vegetables; is perverse. When the claimant is successful in placing sufficient material to prove that he had sustained fracture of left superior Pubic Rami in the accident and got treated by PW2, the Tribunal could not have rejected all those materials on record to deny the compensation for loss of earning capacity or for the permanent
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disability. As per the disability certificate, the claimant suffered 10% permanent disability to his left lower limb. Therefore, I am of the opinion that the total percentage of permanent disability to the whole body can be taken at 3% and the claimant is entitled for compensation for loss of earning capacity.
18. The claimant has not produced any documents before the Court to prove his income. This Court consistently considered the notional income of an able bodied person during 2010 at Rs.5,500/-p.m. The age of the claimant as per the medical record is 23 years. Therefore, appropriate multiplier would be '18' and the claimant is entitled for compensation of Rs.35,640/- i.e (5500X12X18X3/100).
19. Since the respondents have not challenged the quantum of compensation already awarded by the Tribunal, the claimant is entitled for the same. In
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addition to the same, the claimant is entitled for compensation of Rs.35,640/- towards loss of income due to permanent disability.
20. In view of the above, I proceed to pass the following:
ORDER Appeal is allowed.
The appellant-claimant is entitled for additional compensation of Rs.35,640/- with interest at 6% p.a. from the date of petition till realization. The respondent Nos.1 and 2 are jointly and severally liable to pay the compensation.
Respondent No.2-insurer is directed to deposit the entire compensation amount within 30 days from the date of receipt of copy of this order and it will be at
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liberty to recover the compensation amount from respondent No.1-insured, in accordance with law.
SD/-
JUDGE Vmb