Karnataka High Court
The New India Assurance Co Ltd vs Sri.B.N.Jagadeesh Kumar on 10 December, 2018
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.7564 OF 2009 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.8231 OF 2009 (MV)
IN MFA NO.7564/2009:
BETWEEN:
THE NEW INDIA ASSURANCE CO., LTD.,
A.M.ARCADE, C.G.HOSPITAL ROAD
P.J.EXTENSION, DAVANGERE
REPRESENTED BY REGIONAL OFFICE
NO.2-B, UNITY BUILDING ANNEX, MISSION ROAD
BANGALORE - 560 027
BY ITS DULY CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI.C.R.RAVISHANKAR, ADVOCATE)
AND:
1. SRI.B.N.JAGADEESH KUMAR
AGED ABOUT 25 YEARS
S/O SRI.NAGENDRAPPA
R/AT BASAPURA VILLAGE
DAVANAGERE TALUK.
2. SRIPATHI NARAYANA BATKAL
S/O NARAYANARAO BATKAL
OWNER OF AUTO NO.KA-17-6700
TARALABALU NAGARA, HADADI POST
DAVANAGERE TALUK.
...RESPONDENTS
-2-
(BY SRI.H.C.PRAKASH & SMT.KAVITHA H.C.,
ADVOCATES FOR R1
R2-SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
20.07.2009 PASSED IN MVC NO.70/2007 ON THE FILE OF
I ADDITIONAL CIVIL JUDGE (SR.DN.) & MEMBER,
MACT-III, DAVANGERE, AWARDING A COMPENSATION OF
RS.1,17,200/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL DEPOSIT.
IN MFA NO.8231/2009:
BETWEEN:
B.N.JAGADEESH KUMAR
S/O NAGENDRAPPA
AGED ABOUT 25 YEARS
BASAPURA VILLAGE
DAVANAGERE TQ.
...APPELLANT
(BY SRI.PRAKASH H.C. & SMT.KAVITHA H.C., ADVOCATES)
AND:
1. THE DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
A.M.ARCADE, C.G.HOSPITAL ROAD
P.J.EXTENSION
DAVANAGERE.
2. SRIPATHI NARAYANA BATKAL
MAJOR
S/O NARAYANARAO BATKAL
TARALABALU NAGARA, HADADI POST
DAVANAGERE TALUK.
...RESPONDENTS
-3-
(BY SRI.C.R.RAVISHANKAR, ADVOCATE FOR R1
R2-SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
20.07.2009 PASSED IN MVC NO.70/2007 ON THE FILE OF
I ADDITIONAL CIVIL JUDGE (SR.DN.) & MEMBER,
MACT-III, DAVANGERE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.7564/2009 is filed by the Insurance Company and MFA No.8231/2009 is filed by the claimant challenging the judgment and award passed in MVC No.70/2007 by the I Additional Civil judge (Sr.Dn.) & MACT-III, Davangere questioning the liability fixed on the Insurance Company and quantum of compensation, respectively.
2. In MFA No.7564/2009, the appellant-Insurance Company has contended that the very award passed against the Insurance Company to pay the compensation and recover the same from the insured is not correct and -4- further contended that the Tribunal has rightly observed that there was violation of permit condition viz., the auto- rickshaw had permit to ply within a radius of 7.5 kms from Davangere City and the accident was taken place in Kondajji Taluk, which is about 20 kms. away from Davangere City and the auto-rickshaw had no permit to ply outside the radius of 7.5 kms. of Davangere City and hence, the appellant-Insurance Company is not liable to indemnify the owner of the auto-rickshaw and pay any compensation to the claimant. The Tribunal has erred in not applying judicial mind and coming to the conclusion that the Insurance Company is liable to pay and recover the same from the owner and the same is illegal and erroneous and the same has to be set aside.
3. The appellant-claimant in MFA No.8231/2009 in the appeal memorandum contended that the Tribunal has committed an error in granting meager compensation of Rs.10,000/- on the head of pain and suffering even though the claimant had suffered fracture of left femur. -5- Further, it is contended that the Tribunal has awarded compensation of Rs.35,000/- restricting the medical claim as against Rs.59,073/-. The Tribunal has also erred in assessing the income of the claimant at Rs.3,000/- p.m. even though the salary certificate was produced before it. The Tribunal has committed an error in awarding the meager compensation on the head of nutritious food and has erred in not awarding compensation on the head of attendant charges and conveyance. The Tribunal ought to have awarded more compensation. It is also the contention of the claimant's counsel that the Tribunal ought to have adopted the multiplier '18' instead of '17' and the doctor who has been examined as PW-2 has assessed the disability to the extent of 25% to 30% and the Tribunal has taken only 10% and hence, the compensation has to be re-looked into. Based on the material available on record, it requires interference by this Court and judgment and award has to be modified. -6-
4. Counsel appearing for the appellant-Insurance Company has vehemently contended that the Tribunal has committed an error in fastening the liability on the Insurance Company even though there was no permit to ply the vehicle and further this accident was of the year 2006 and hence, the Tribunal has taken note of the income of the year 2006 and awarded just and reasonable compensation and there are no grounds to interfere with the judgment and award of the Tribunal with regard to quantum of compensation and the judgment and award with regard to fastening of the liability on the Insurance Company has to be set aside.
5. Per contra, learned counsel for the claimant in his arguments contends that the Tribunal has not taken note of both oral and documentary evidence available before the Tribunal and awarded meager compensation on all the heads and also restricted the claim of the claimant in respect of medical bills which have been produced before the Tribunal and only awarded Rs.35,000/- on the -7- head of medical expenses and the same is without any basis and the reasons assigned is capricious and hence, the judgment and award has to be modified and he also contended that no compensation is awarded on the head of attendant charges and conveyance.
6. After having heard the arguments of both counsels and on perusal of judgment and award, the points that arise for my consideration are:
1) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company?
2) Whether the Tribunal has committed an error
in awarding meager compensation as
contended by the claimant's counsel and it requires reconsideration and enhancement?
7. Regarding point no.1:
The main contention of the Insurance Company in the appeal is that the Tribunal did not consider the material on record and there was no dispute with regard to the fact that there was no permit in respect of -8- the way the vehicle was plied and the same is away from Davanagere City. On perusal of the judgment and award of the Tribunal regarding permit is concerned, in Para 13, the Tribunal has held that no reason to disbelieve the evidence of RW-1 who has been examined before the Tribunal regarding violation of terms and condition of the permit and policy of the offending vehicle and further proceeded to hold that the respondent No.1 has violated the policy terms and conditions during the occurrence of the accident in question and hence, respondent no.2 is not jointly and severally liable to indemnify the respondent No.1. However, by considering the judgment reported in 2004 ACJ SC 2094 in the case of National Insurance Co. Ltd., held that if the insured has not obtained permit to ply the vehicle, the Insurance Company is not liable to pay the compensation. In another case reported in 2006 KAR ACJ 126 [NEW INDIA ASSURANCE CO. VS. PAPAIAH & OTHERS] it is held that when there is breach of permit conditions and terms of policy, the Insurance Company is exempted from its liability. In both these decisions, it is -9- also further held that Insurance Company has to pay the compensation awarded to the third parties and then, in turn they have to recover the amount from the insured. Hence, the Tribunal passed an order to pay and recover amount.
8. Now the counsel appearing for the claimant has relied upon the judgment reported in LAWS (KAR) 2016 1140 in the case of DURUGAMMA YALLAMMA VS. S.G.NARESH AND OTHERS and contends that this Court has comes to the conclusion that the liability fastened on the Insurance Company is not fit to be sustained in as much as liability aspect is concerned. Liability fastened on the registered owner and further directed the respondent No.3 shall be liable to satisfy the award and further discussed the judgment of CHALLA BHARATHAMMA'S and also referring the judgment of NEW INDIA ASSURANCE CO. LTD., VS. ASHA RANI AND OTHERS reported in [2003 [2] SCC 223] held that Section 149(2) of the 1988 Act enables the insurers to raise defences against the claim of -10- the claimants. In terms of clause [c] of sub-section [2] of Section 149 of the Act, one of the defences which are available to the insurer is that the vehicle in question has been used for a purpose not allowed by the permit under which the vehicle was used. Such a statutory defence available to the insurer would be obliterated in view of the decision of this Court in Satpal Singh's case and further considering the ASHA RANI's case held that unauthorized passengers travelling in a goods vehicle and it was held that it is one of the defence which is available to the insurer under Section 149[2][a][i][c] of the Act, whether the vehicle has been used for a purpose not allowed by the permit under which the vehicle was used and further observed that the case on hand is distinguishable from ASHA RANI's case and this Court in Durugamma Yallamma's case set aside the liability fixed on the owner and fastened the liability on the Insurance Company. The counsel also relied upon the judgment reported in AIR 2018 SC 2662 in the case of AMRIT PAUL SINGH AND ANOTHER VS. TATA AIG GENERAL INSURANCE CO LTD. -11- AND OTHERS submitted that the Hon'ble Supreme Court held that the exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. Pay and recover is ordered and further held that the insurer though liable to pay compensation to claimants but entitled to recover the same from the owner and driver.
9. Now keeping the principles laid down in the judgments referred supra in the case of Amrut Paul's case, there was no permit at all. Hence, the Tribunal has directed the Insurance Company to pay and recover the compensation from the insured. In the case of DURUGAMMA YELLAMMA VS. S.G.NARESH AND OTHERS, this Court by referring the judgments of Challa Bharathamma's and Asha Rani's case distinguished both the cases and further held that the case on hand is different from those two cases and the liability fastened on the registered owner of the vehicle has been set aside on -12- the ground that the deviation does not amount to fundamental breach and hence, fastened the liability on the Insurance Company. In view of the principle laid down in the judgment referred supra and also referring the judgment of the Apex Court and as already pointed out the judgment of the Apex Court in the case of Amrut Paul, there was no permit and in the case on hand, there is a permit but the vehicle was plied where there was no permit and when this Court has come to the conclusion that it does not amount to fundamental breach and fastened the liability on the Insurance Company to pay the compensation by distinguishing the judgments of Challa Bharathamma's and Asha Rani's case and in the case on hand, there is no fundamental breach and there is no any such infraction and in this case, there is a permit but there is a violation with regard to plying the vehicle outside the permit area and hence, I am of the opinion that there is no fundamental breach and hence the Insurance Company is liable to pay the compensation and the question of pay and recovery also does not arise. However, the insured has -13- not filed any appeal before this Court questioning the judgment and award passed by the Tribunal with regard to the pay and recovery. There is no appeal at all for pay and recovery. When such being the case, this Court cannot consider the aspect whether it amounts to fundamental breach when there is no appeal on the part of the insured and the Tribunal has already passed an order to pay and recover and hence, I do not find any reasons to interfere with the findings given by the Tribunal with regard to pay and recovery and hence, point No.1 is answered in negative.
10. Point no.2: It is the contention of the claimant that the Tribunal has awarded only compensation of Rs.10,000/- towards pain and suffering and having considered the nature of injury and also considering the fact that the accident is of the year 2006, the Tribunal ought to have awarded more compensation instead of awarding only Rs.10,000/- on the head of pain and sufferings which is very meager and this Court finds it -14- appropriate to enhance the same since the claimant has sustained the fracture of left femur which is a main bone of lower limb and hence, an amount of Rs.25,000/- is awarded on this head.
11. The Tribunal while considering the medical expenses in Para 5 of the judgment discussed with regard to the medical bills and the claimant has produced Ex.P6 to P25 in all Rs.59,073.50 and on verification of those documents, these bills are final bills of three different hospitals where he took the treatment. The Tribunal while considering Ex.P9 made an observation that the said bill has not been attested by any person. The Tribunal restricted the bills to the tune of Rs.35,000/- as against Rs.59,073/-. The Tribunal has failed to take note of the fact that it is a computerized bill and also there is a seal on the bill indicating that the amount has been paid. No cogent reasons has been assigned in order to disallow the bills and hence, the Tribunal committed an error in considering the medical bills and the same has to be -15- interfered with and set it right by allowing the bills which have been produced which appears to be genuine bills since those bills are of three different hospitals and I consider the same and award Rs.60,000/- on the head of the medical expenses as against Rs.35,000/- awarded by the Tribunal.
12. Now coming to the quantum of compensation awarded on the head of disability is concerned, the counsel appearing for the claimant contends that the Tribunal has taken lesser disability though the doctor who has been examined as PW-2 categorically states the disability is 25- 30%. The Tribunal has taken 10% of disability by holding that PW-2-doctor is not the doctor who treated the claimant. But no doubt he is not the treated doctor. The Tribunal while considering the disability has taken 1/3rd of disability assessed by the doctor. I do not find any reasons to enhance the disability.
13. The Tribunal has taken the income of the claimant at Rs.3,000/- p.m. No doubt, the accident was -16- occurred in the year 2006. The Tribunal ought to have taken the income at Rs.3,500/- p.m. instead of Rs.3,000/- p.m. By adding income of Rs.500/- to the amount which has been taken by the Tribunal, it comes to Rs.3,500/-. The annual income of the claimant is 42,000/-. On perusal of the judgment and award, the Tribunal has taken the multiplier as '17' which is not correct. Since all the medical records and also the complaint which has been given immediately after the accident, the age is mentioned as 23 years. Hence, relevant multiplier is '17' which comes to Rs.75,600/- [Rs.42,000 x 18 x 10/100].
14. Regarding loss of amenities, the Tribunal has awarded Rs.3,000/- and the claimant has sustained fracture of left femur and the doctor has assessed the disability at 10% and the claimant is aged 23 years as on the date of the accident. Hence, it is appropriate to enhance the compensation to 25,000/- on the head of loss of amenities as against Rs.3,000/-. -17-
15. On perusal of Para 21 of the judgment and award, the Tribunal has awarded a sum of Rs.3,000/- on the head of laid up period for one month and the Tribunal has also committed an error in taking the period of one month. The claimant has sustained fracture of femur. It minimally requires three to four months to unite the fracture and hence I am of the opinion that minimum four months ought to have been taken by the Tribunal and he was also inpatient for a period of 11 days in three different hospitals. Hence, the same has to be enhanced to Rs.14,000/- [3500 x 4] as against Rs.3000/-.
16. The Tribunal has only awarded an amount of 3,000/- on the head of nutritious food and no compensation is awarded on the head of conveyance and attendant charges. He was inpatient for 11 days that too in three different hospitals. The Tribunal ought to have considered the conveyance, attendant charges along with nutritious food and hence, the amount awarded on the head of nutritious food without considering the conveyance -18- and attendant charges is requires to be enhanced. It is appropriate to award Rs.15,000/- as against 3,000/-.
17. In view of the discussions made above, point no.2 is answered in affirmative partly in enhancing the compensation to the tune of Rs.2,14,600/- as against Rs.1,17,200/-. Hence, I pass the following:
ORDER
i) MFA No.7564/2009 filed by the Insurance Company is dismissed.
ii) MFA No.8231/2009 filed by the Claimant is partly allowed.
iii) The compensation awarded by the I Additional Civil Judge (Sr.Dn.) & MACT-
III, Davangere in M.V.C.No.70 of 2007 is modified by enhancing the compensation to Rs.2,14,600/- (Rupees Two Lakhs Fourteen Thousand and Six Hundred only) as against Rs.1,17,200/- with interest @ 6% per annum from the date of the petition till realization.
iv) Insurance Company is directed to pay the compensation amount with interest @ -19- 6% p.a., within six weeks from the date of receipt of the copy of this Order and recover the same from the insured.
Office is directed to transmit the amount in deposit, if any, to the Tribunal forthwith.
Sd/-
JUDGE Prs*