Karnataka High Court
C. Devaraj vs Hanumanthaiah on 16 December, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.7461 OF 2015(MV)
BETWEEN:
C.Devaraj,
S/o Chikkahanumaiah,
Aged about 26 years,
R/at Minnapura,
Jakkunahalli Post,
Thyamagondlu Hobli,
Nelamangala Taluk,
Bangalore Rural District Pin-562123.
.... Appellant
(By Sri. Bopanna B., Adv.)
AND
1. Hanumanthaiah,
S/o Doddakariyappa,
Mylonagathihalli,
Hosur Village,
T.Begur Post,
Kasaba Hobli,
Nelamangala Taluk,
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Bangalore Rural District - 571 109.
2. The Manager,
Cholamandalam MS General
Insurance Co. Ltd.,
No.9/1, Ulsoor Road,
Bangalore-560 042.
3. Yesu,
S/o Mahalakshmi,
H.No.148/79/8,
Near Pipe Company,
Gangavathi Road,
Sindhanur pin-584128,
Raichur District.
4. The Manager,
Shriram General Insurance Co. Ltd.,
E-8, RII Co., Industrial Area,
Sitapura, Rajasthan-302 022.
...Respondents
(By Sri.B.Pradeep, Adv. for R2:
Sri.H.N.Keshava Prashanth, Adv. for R4:
R1 & R3 are served and unrepresented)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:22.01.2015
passed in MVC No.2559/2012 on the file of the 8th
Additional Small Causes Judge and 33rd ACMM,
Member, MACT, Bengaluru, partly allowing the claim
petition for compensation and seeking enhancement
of compensation.
This MFA coming on for admission, this day, H.T.
Narendra Prasad J., delivered the following:
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JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being aggrieved by the judgment dated 22.01.2015 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 19.09.2011 at about 4.30 a.m., the claimant was traveling as a cleaner in lorry bearing registration No.KA-52/4534 from Bangalore to Gulbarga on Sirajuppa - Sindhanoor main road. When he reached near Budivala Cross, the driver of the lorry drove the same at a high speed, in a rash and negligent manner and dashed against another lorry bearing registration No.KA-37/6447 which was parked on the road. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
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3. The claimant filed a petition under Section 166 of the Act on the ground that he was working as a cleaner in the lorry and was earning Rs.6,000/- per month. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
4. On service of notice, the respondent Nos.1, 2 and 4 have filed separate written statements in which the averments made in the petition were denied. It was pleaded by respondent No.1 that the driver of the offending vehicle was holding a valid and effective driving licence, hence, the liability has to be saddled on the insurer. It was further pleaded that the accident occurred due to the fault of the lorry which was parked in the middle of the road.
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It was pleaded by respondent No.2 that the petition is not maintainable since claimant being employee under the respondent No.1, he can prefer petition under Workmen's compensation Act, but not before the Tribunal. It was further pleaded that the liability is subject to the condition of production of driving licence, policy and other relevant documents. It was further pleaded that the driver of the offending lorry was not holding valid and effective driving licence and due to breach of condition of policy, insurance company may be absolved from any liability. It was further pleaded that premium has not been paid covering the cleaner, therefore, the plea of petitioner being employed under the respondent No.1 cannot be covered under the policy issued. It was further pleaded that there is contributory negligence on the part of the driver of another lorry. 6
It was pleaded by respondent No.4 that the petition does not survive against this respondent and it shall be dismissed in limine. It was further pleaded that subject to production of original documents as per the provisions of MV Act, any liability of this respondent may arise. It was further pleaded that he is not liable to pay any compensation since neither the owner nor the jurisdictional police have informed the respondent about the incident as per Sections 134(c), 158(6) and 147 of the Act. It was further pleaded that the accident occurred due to rash and negligent driving of the offending lorry. It was further pleaded that the petition be dismissed for mis-joinder of necessary parties. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, they sought for dismissal of the petition. The 7 respondent No.3 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1, Medical record officer of Hosmat Hospital as PW-2 and Dr.Ramesh B., as PW-3 and got exhibited 25 documents namely Ex.P1 to Ex.P25. On behalf of the respondents, an officer of the second respondent insurance company was examined as RW- 1 and an officer of the fourth respondent insurance company as RW-2 and got exhibited 2 documents namely Ex.R1 to Ex.R2. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident occurred on account of contributory negligence of drivers of both the vehicles at 60% and 40% respectively. The Tribunal further held that since the claimant was a cleaner he is not covered under 8 Section 147(5) of the Act and insurance company is not liable to pay the compensation and hence dismissed the claim petition against the insurer of the lorry bearing registration No.KA-52/4534 and directed the owner of the said lorry to pay 60% of the compensation amount and the insurer of the lorry bearing registration No.KA-37/6447 to pay 40% of the compensation amount. The Tribunal further held that the claimant is entitled to a compensation of Rs.10,23,300/- along with interest at the rate of 8% p.a. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimant has raised the following contentions:
Firstly, the claimant was a cleaner in the lorry bearing registration No.KA-52-4534 which belongs to the respondent No.1. On 19.09.2011 he was proceeding in the lorry from Bangalore to Gulbarga on Sirajuppa - Sikndhanoor main road. When the lorry 9 reached near Budivala cross, the driver of the lorry drove the same at a high speed and in a rash and negligent manner dashed against another lorry which was parked in the middle of the road. The claimant sustained injuries in the accident arising out of employment. Since the lorry is insured with the respondent No.2 the insurance company is liable to pay the compensation amount. The Tribunal is not justified in dismissing the claim petition against the respondent No.2. In support of his contention, he relied on the judgment of the Hon'ble Apex court in the case of 'NATIONAL INSURANCE COMPANY LIMITED vs. PREMBAI PATEL AND OTHERS' (2005) 6 SCC 172.
Secondly, even though the Tribunal assessed the notional income of the claimant as Rs.6,000/- per month, but it is not justified in deducting 50% of the income for his personal need and maintenance. 10
Thirdly, even though the Tribunal considered the functional disability of the claimant as 100%, it has failed to consider addition of future prospects. In support of his contention he relied on the judgment of the Hon'ble Apex Court in the cases of 'PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS' 2020 SCC Online SC 752 and 'ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020' SCC Online SC 601.
Fourthly, the compensation granted under other heads are on the lower side. Hence, he sought for allowing the appeal.
7. On the other hand, the learned counsel for the second respondent insurance Company has raised the following counter-contentions:
Firstly, since the policy is not a package policy and no additional premium has been paid for driver or 11 cleaner, the Tribunal rightly dismissed the claim petition against the respondent No.2.
Secondly, since the driver of the offending lorry was not holding a valid and effective driving licence, hence he has violated the policy conditions. In support of his contentions, he relied on the judgment of the Hon'ble Apex Court in the case of 'BELI RAM vs. RAJINDER KUMAR AND ANOTHER' 2020 SCC Online 769. Hence, he sought for dismissal of the appeal.
8. The learned counsel appearing for the respondent No.4 - insurance company has raised the following contentions:
Firstly, the accident occurred due to the rash and negligent driving of the driver of the lorry bearing registration No.KA-52-4534. The Tribunal is not justified in holding that there is a contributory 12 negligence of 40% on the part of the driver of the lorry bearing registration No.KA-37/6447.
Secondly, the Tribunal is not justified in considering the functional disability at 100% without there being any materials on record. Hence, he sought for dismissal of the appeal.
9. We have considered the submissions made by the learned counsel for the parties and have perused the records.
10. The Tribunal on the basis of the evidence and the materials available on record has rightly held that both the drivers of the vehicles have contributed to the extent of 60% and 40% to the occurrence of the accident. It is not in dispute that the claimant was a cleaner in the lorry bearing registration No.KA- 52/4534 which belongs to the respondent No.1. He suffered injury while travelling in the said lorry when the same met with an accident and he has suffered 13 injury in the course of employment. It is also not in dispute that the said lorry is covered by the insurance policy. The owner of the offending vehicle has appeared before the Tribunal and filed written statement taking a specific contention that the offending vehicle was covered by insurance policy and the driver of the offending vehicle was holding a valid and effective driving licence to drive the said vehicle. The same has not been rebutted by the insurance company by adducing any evidence or producing any materials. The Hon'ble Apex Court in the case of PREMBAI PATEL (supra) has held as hereinbelow:
"12. The heading of Chapter XI of the Act is Insurance Of Motor Vehicles Against Third Party Risks and it contains Sections 145 to 164. Section 146(1) of the Act provides that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case 14 may be, a policy of insurance complying with the requirements of Chapter XI. Clause (b) of sub-section (1) of Section 147 provides that a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him in respect of death of or bodily injury to any person or passenger or damage to any property of a third party caused by or arising out of the use of the vehicle in public place. Sub-clauses (i) and (ii) of clause
(b) are comprehensive in the sense that they cover both 'any person' or 'passenger'. An employee of owner of the vehicle like a driver or a conductor may also come within the purview of the words 'any person' occurring in sub-clause (i). However, the proviso (i) to clause (b) of sub-Section (1) of Section 147 says that a policy shall not be required to cover liability in respect of death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising 15 under the Workmen's Act if the employee is such as described in sub-clauses (a) or (b) or
(c). The effect of this proviso is that if an insurance policy covers the liability under the Workmen's Act in respect of death of or bodily injury to any such employee as is described in sub-clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b), it will be a valid policy and would comply with the requirements of Chapter XI of the Act. Section 149 of the Act imposes a duty upon the insurer (insurance company) to satisfy judgments and awards against persons insured in respect of third party risks. The expression - "such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy)" - occurring in sub-section (1) of Section 149 is important. It clearly shows that any such liability, which is mandatorily required to be covered by a policy under clause
(b) of Section 147(1), has to be satisfied by the insurance company. The effect of this provision is that an insurance policy, which covers only the liability arising under the Workmen's Act in respect of death of or bodily 16 injury to any such employee as described in sub-clauses (a) or (b) or (c) to proviso (i) to Section 147(1)(b) of the Act is perfectly valid and permissible under the Act. Therefore, where any such policy has been taken by the owner of the vehicle, the liability of the insurance company will be confined to that arising under the Workmen's Act."
In view of the aforesaid judgment, it is very clear that since the lorry bearing registration No.KA- 52-4534 was insured with the respondent No.2 - insurance company, the respondent No.2 has to pay the 60% of the total compensation to the claimant and if there is any excess of liability under the Workmen's Compensation Act, 1923 he has the liberty to recover the same from the owner or employer. Therefore, respondent No.2 - Cholamandalam MS General Insurance Company is directed to pay the 60% of the total compensation and the remaining 17 40% has to be paid by the respondent No.4 - Shriram General Insurance Company.
Re.Quantum of compensation:
11. The claimant has not produced any evidence with regard to his income. The Tribunal taking into consideration the evidence of the parties, age and avocation of the claimant has rightly assessed the income as Rs.6,000/- per month, but it has erred in deducting 50% of the income towards his personal expenses. Accordingly, the notional income has to be taken at Rs.6,000/- p.m. The Tribunal considering the evidence of the doctor and the claimant and also taking into consideration the documents produced has rightly assessed the functional disability at 100%. Therefore, the claimant is entitled for future prospects in view of the law laid down by the Hon'ble Apex Court in the cases of 'PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS' 2020 SCC Online SC 752 18 and 'ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020' SCC Online SC 601. In view of the law laid down by the Hon'ble Apex Court in the case of 'NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, since the claimant is aged about 26 years, the addition of future prospects has to be considered at 40%. Hence, the monthly income of the claimant comes to Rs.8,400/- (Rs.6,000 + 40%). Thus, the claimant is entitled to Rs.17,13,600/- (Rs.8,400*12*17) on account of 'loss of future income'.
The compensation awarded by the Tribunal under other heads remains unaltered.
12. Thus, the claimant is entitled to the following compensation:
As awarded As awarded
Compensation under by the by this
different Heads Tribunal Court
(Rs.) (Rs.)
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Medical expenses 1,96,300 1,96,300
Food, nourishment, 10,000 10,000
conveyance and
attendant charges
Loss of income during 15,000 15,000
laid up period
Loss of amenities 50,000 50,000
Loss of future income 6,12,000 17,13,600
Future medical expenses 20,000 20,000
Loss of marriage prospects 20,000 20,000
Total 9,23,300 20,24,900
Wrongly shown by the
Tribunal as
Rs.10,23,000
The claimant is entitled to a total compensation of Rs.20,24,900/-.
The respondent No.2 - Cholamandalam MS General Insurance Company is directed to deposit 60% of the total compensation amount and respondent No.4 - Shriram General Insurance Company Limited is directed to deposit 40% of the total compensation amount within a period of four weeks from the date of receipt of copy of this judgment.
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Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 8% p.a. from the date of petition till payment is made.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE Sd/-
JUDGE Cm/-