Karnataka High Court
Sri Ramesh Poojari vs Smt Pushpa Y Nayak on 25 September, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA, AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2024
R
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.4671 OF 2014 (MVC)
C/W
MISCELLANEOUS FIRST APPEAL CROB NO.112 OF 2014
IN MFA NO.4671 OF 2014
BETWEEN:
THE DIVISIONAL MANAGER,
ORIENTAL INSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE, VISHNY PRAKASH,
II FLOOR, COURT ROAD, UDUPI,
BY
THE ORIENTAL INSURANCE CO.LTD.,
REGIONAL OFFICE, 2ND FLOOR,
SUMANGALA COMPLEX,
LAMINGTON ROAD, HUBBALLI-580020.
...APPELLANT
(BY SRI O. MAHESH, ADVOCATE.)
AND:
1. RAMESH POOJARY,
AGED ABOUT 39 YEARS,
S/O NARAYANA POOJARY,
R.O MANOOR VILLAGE & POST,
UDUPI TALUK-576101.
2. PUSHPA Y. NAYAK, MAJOR,
W/O YOGISH NAYAK,
R/O. SRI SHANTHERI KAMAKSHI,
ENTERPRISES, BHARATHA GAS,
DISTRIBUTORS, BYNDOOR,
KUNDAPURA TALUK-576201.
...RESPONDENTS
(BY SRI NAGARAJ HEGDE, ADVOCATE FOR R1;
SRI GURURAJ R. ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLE ACT, PRAYING TO SET ASIDE
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THE JUDGMENT AND AWARD DATED 08.04.2014 PASSED BY THE
COURT OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL UDUPI (SITTING AT
KUNDAPURA) IN MVC NO.1147 OF 2005 WITH COSTS.
IN MFA CROB NO. 112 OF 2014
BETWEEN:
SRI RAMESH POOJARI
S/O NARAYANA POOJARI,
AGED ABOUT 39 YEARS,
R/O MANNUR GRAMA
KUNDAPURA TALUKA,
UDUPI DISTRICT-576201.
...CROSS OBJECTOR
(BY SRI NAGARAJ HEGDE, ADVOCATE)
AND:
1. SMT. PUSHPA Y. NAYAK,
W/O YOGESH NAYAK,
R/O SRI SHANTERI KAMAKSHI ENTERPRISES,
BHARAT GAS DISTRIBUTORS,
BYNDOOR, KUNDAPURA TALUK,
UDUPI DISTRICT-576201.
2. THE ORIENTAL INSURANCE COMPANY LIMITED,
VISHNU PRAKASH COMPLEX,
COURT ROAD, UPUDI DISTRICT-576201.
REP. BY ITS BRANCH MANAGER
...RESPONDENTS
(BY SRI GURURAJ R., ADVOCATE FOR R1;
SRI O. MAHESH, ADVOCATE FOR R2)
THIS CROSS APPEAL IS FILED UNDER ORDER XLI RULE 22 (1 )
OF CODE OF CIVIL PROCEDURE, PRAYING TO ENHANCE THE
COMPENSATION GRANTED BY THE TRIBUNAL BELOW AND AWARD
JUST AND REASONABLE COMPENSATION CONSIDERING THE
DISABILITIES AND OTHER SURROUNDING CIRCUMSTANCES BY
MODIFYING THE JUDGMENT AND AWARD DATED 08.04.2014
PASSED BY THE ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
MACT, UPUDI (SITTING AT KUNDAPURA) KUNDAPURA IN MVC
NO.1147/2005, WHICH PRODUCED AT ANNEXURE-A.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.07.2024 AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
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CAV JUDGMENT
MFA No.4671/2014 is filed by the Insurance Company challenging the judgment and award dated 08.04.2014 passed in MVC No.1147/2005 by the Additional District and Sessions Judge and MACT, Udupi sitting at Kundapura, questioning the liability to pay the compensation and also quantum of compensation awarded by the Tribunal.
2. The claimant has filed MFA Crob.No.112/2014 in MFA No.4671/2014 for seeking enhancement of compensation awarded by the Tribunal.
Brief facts of the case:
3. It is the case of the claimant that the claimant was working as Gas Cylinder delivery boy under the employment of Owner of Bharat Gas Distributors and on 28.08.2005 at 12:15 p.m., the claimant was travelling in the Goods Auto Rickshaw bearing Registration No.KA-20 A-2743, from Tekkatte to Kundapura and the said Auto Rickshaw was driven by one Ganesh Marakala and the claimant was sitting beside the driver and due to driving of the Goods Auto Rickshaw with high speed, rash and negligent manner, the Goods Auto Rickshaw was toppled down and hence, the -4- claimant has sustained injuries and claimed compensation by filing the claim petition under Section 166 of the Motor Vehicles Act.
4. The Tribunal after considering the documentary evidence on record has awarded compensation by fastening the liability on the appellant-Insurance Company under various heads as follows:
Sl. Heads Amount in
No. (Rs.)
1. Towards Pain and Suffering Rs.1,00,000/-
2. Towards Medical Expenses Rs.70,629/-
3. Towards Future Medical Expenses Rs.20,000/-
4. Towards Loss of Amenities of life Rs.30,000/-
5. Towards Loss of Income Rs.30,000/-
6. Towards Loss of Future Earning Capacity Rs.5,10,000/-
7. Towards Nourishing Food, Conveyance and Rs.30,000/-
Attendant charges
8. Towards Marriage Prospectus Rs.20,000/-
Total Rs.8,10,629/-
5. The Insurance Company has challenged the
liability and quantum of compensation awarded by the Tribunal.
Grounds raised:
6. Learned counsel for the Insurance Company in support of the appeal has argued and raised two grounds as follows:-5-
a. Admittedly, the vehicle is Goods Auto Rickshaw and the seating capacity is one as per the RC book and insurance policy, but the claimant was sitting beside the driver therefore, there were two persons travelling in the Goods Auto Rickshaw one is driver and another one is claimant therefore, there is violation of conditions of insurance policy hence, the Insurance Company is not liable to pay the compensation.
b. PW-1 has admitted and also it is proved from the documentary evidence at Ex.R-4-B Registered Extract of Goods Auto Rickshaw, which shows the seating capacity of the Goods Auto Rickshaw is one. Further, Ex.R-5-Insurance Policy shows seating capacity is one therefore, only driver alone can travel by driving the Goods Auto Rickshaw and no other person is allowed to travel in the Goods Auto Rickshaw thus, there is violation of conditions of insurance policy. Accordingly, the Insurance Company is not liable to pay the compensation.
Submissions of counsel for appellant-Insurance Company:
7. It is argued that even if the Insurance Company is liable to pay the compensation, that is according to the Employees Compensation Act, 1923, by complying with Section 147 of the Motor Vehicles Act. Therefore, whatever the amount of compensation awarded by the Tribunal is as per the Employees Compensation Act, 1923, and if it -6- exceeds the amount the claimant can claim by the owner, but not by the Insurance Company. Hence, on these two grounds, the Insurance Company prays to allow the appeal.
Submissions of counsel for claimant:
8. On the other hand, learned counsel for the claimant submitted that Ex.R-4-B Register Extract proves the seating capacity is one plus one, therefore, the Insurance policy covers risk of the claimant also. Hence, justified the judgment and award passed by the Tribunal.
9. Further, submitted that Ex.R-5-Insurance Policy, it is mentioned that the Goods Auto Rickshaw is used only for carrying the goods within a meaning of Motor Vehicles Act, and the policy does not cover carrying passengers in the Goods Auto Rickshaw except employee, not exceeding the number of members permitted in the Registration Document and coming under the purview of Workmen Compensation Act, 1923. Therefore, submitted that the nature of insurance policy itself permits carrying employees according to the numbers permitted in the Registration Certificate and coming under the purview of Workmen Compensation Act, 1923.-7-
Therefore, the claimant being employee is permitted to travel in the Goods Auto Rickshaw.
10. Further, it is submitted that the claimant has option to choose either Motor Vehicles Act or provisions of Employees Compensation Act, 1923 to make claim, therefore, the claimant has chosen the Motor Vehicles Act, but not both. Therefore, justified the judgment and award passed by the Tribunal, hence, prays to dismiss the appeal.
Analysis regarding liability:
11. In the Insurance policy, the seating capacity is mentioned as one, but in Ex.R-4-B Register Extract of the Goods Auto Rickshaw, the seating capacity is mentioned as one plus one. Though, PW-1 has admitted that the claimant was sitting beside the driver, it is not disputed that the claimant was not a driver and was traveling in the Goods Auto Rickshaw only as a delivery boy to deliver the Gas Cylinders to the customers under the employment of owner. In the complaint-FIR, charge sheet, and police documentary evidence, it is proved that the claimant, while traveling in the Goods Auto Rickshaw to deliver the Gas Cylinders, met with accident and sustained grievous injuries. Therefore, the -8- claimant was working under the employment of owner as delivery boy of Gas Cylinder is proved. Considering the nature of Goods Auto Rickshaw in the insurance policy, the seating capacity might have been mentioned as one, but that is after all the insurance policy is a contract between insurer and insured, but to decide what is the seating capacity and nature of vehicle in the RC book or B Register Extract, the seating capacity is mentioned as one plus one. Therefore, admittedly, when the vehicle is a Goods Auto Rickshaw, the seating capacity mentioned as one plus one is definite meaning that one is for driver and another one is for employee. When the employee is traveling in the Goods Auto Rickshaw, it cannot be termed as the employee is traveling in the Goods Auto Rickshaw as a gratuitous passenger but on the capacity of an employee was traveling in the Goods vehicle. As in the present case, from the police documentary evidence as discussed above, it is proved that the claimant while traveling in the Goods Auto Rickshaw for delivering the Gas Cylinders, met with an accident and sustained grevious injuries, therefore, the claimant has sustained injuries out and during the course of employment. Since in Ex.R-4-B Register Extract shows the seating capacity mentioned as -9- one plus one; therefore, the employee is permitted to travel in the Goods Auto Rickshaw. Hence, in this context, claimant cannot be considered as a gratuitous passenger who traveled in the Goods Auto Rickshaw.
12. Further, upon perusal of Ex.R-5-Insurance Policy, carrying employees is permitted according to the number of employees permitted in the Registration Certificate and coming under the purview of Workmen Compensation Act, 1923. For easy reference the said conditions mentioned in insurance policy under the caption as 'subject to endorsements' and 'limitations as to use' is as follows:
"Use only for carriage of goods within the meaning of Motor Vehicles Act. The policy does not cover (a) Organised racing, Pace making, reliability trials or speed testing (b) drawing a trailer except the lowing
(c) carrying passengers in vehicles except employees not exceeding the number permitted in registration document and coming under purview of WC Act, 1923."
(Emphasis supplied)
13. Therefore, as per Ex.R-5-Insurance Policy, though in the Goods Auto Rickshaw, carrying passengers is prohibited but there is no prohibition to carrying the
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employees according to the number of employees permitted in the Registration Certificate. Admittedly, in the present case, the claimant was working as a Gas Cylinder delivery boy, being employee he has travelled in the Goods Auto Rickshaw. In the RC Book, it is permitted to travel in the Goods Auto Rickshaw is one plus one, which means one driver and one employee. Therefore, as per Ex.R-5- Insurance Policy and Exs.R-2 and R-4-B Register Extract of RC Book, the persons permitted to travel in the Goods Auto Rickshaw is one plus one, therefore, the claimant is very well covered under the Insurance Policy.
14. Hence, from all these documentary evidence, it is proved that the claimant has travelled in the Goods Auto Rickshaw as an employee, but not as gratuitous passenger.
15. Therefore, accordingly, as per Section 167 of the Motor Vehicles Act, the claimant has chosen the Motor Vehicles Act for filing the claim petition which cannot be found fault with or it does not mean that the claimant is entitled to compensation only under the Employees Compensation Act, 1923 but not under the Motor Vehicles Act. Therefore, the Insurance Company is liable to pay
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compensation as it is validly covered under the insurance policy for the reasons and interpretation made above and in this regard, the Tribunal is justified in fastening the liability on the appellant-Insurance Company.
16. From the Medical evidence on record, it is proved that the claimant has sustained injuries of comminuted fracture of both tibia and fibula bones of left leg resulting into amputation of left leg below the knee and other injuries.
Compensation:
17. Upon considering the compensation awarded by the Tribunal is found to be on lesser side, which is as per the table extracted above.
18. The Tribunal has taken functional disability only at 50%, which is on lesser side. The claimant was working as Gas Cylinder delivery boy, which requires physical strength for delivering the Gas Cylinders to house to house. The claimant has suffered amputation of left leg below the knee therefore, the claimant is not able to do work as a delivery boy of Gas Cylinder, which is permanent in nature functionally disabled 100%. In this regard, I place reliance
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on the judgment of the Hon'ble Apex Court in the case of RAJ KUMAR VS. AJAY KUMAR AND ANOTHER reported in (2011) 1 SCC 343. Wherein at Paragraph Nos.12, 13 and 19, it is held as follows:
12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
13. We may now summarize the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that
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percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.
"19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income.
19. Further the Hon'ble Supreme Court in the case of REKHA JAIN VS., NATIONAL INSURANCE CO., LTD., AND OTHERS reported in (2013) 8 SCC 389 were pleased to consider that the injured has suffered 100% of functional disability as the injured was a woman working in a film and a TV actress and was aged about 24 years. The injured has suffered injury on the face and her face was
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disfigured. The injured is no longer to work in film or as a TV actress and had lost her entire earning capacity as a TV actress. Therefore, the Honble Supreme Court considered it as 100% of functional disability. The principle of law laid down therein is squarely applicable to the case on hand.
20. The Hon'ble Supreme Court in the case of JAKIR HUSSEIN VS. SABIR AND OTHERS reported in (2015) 1 SCC 252 were pleased to hold that the permanent disability and functional disability are two different aspects. Even though, there would not be 100% of permanent physical disability, but it affects the avocation of the injured to carry out the profession as he was doing before the accident. Then it would amount to 100% of functional disability. The injured being a driver met with an accident and as per the doctor's evidence, he suffered 55% of permanent physical disability and cannot drive any motor vehicle in future. Therefore, with such disability, when the driver is not able to carry on the profession as driver, then it is amounting to functional disability and accordingly, awarded compensation by holding functional disability at 100%. Further the Hon'ble Supreme Court in the case of MOHAN SONI VS. RAM AVTAR
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TOMAR AND OTHERS reported in (2012) 2 SCC 267 had held that the injured being a cart-puller met with an accident and left leg was amputated below the knee. Under these circumstances, the Hon'ble Supreme Court held the functional disability at 100%. Since, the injured is not able to work as a cart-puller and had suffered functional disability at 100% and accordingly, awarded compensation.
21. In the present case the disability suffered by the claimant is permanent in nature, with single leg the claimant is not able to do work as delivery boy, inevitably, the claimant was terminated from the service by owner as a delivery boy therefore, it is amounting to 100% permanent functional disability affecting the entire functional capacity to the extent of 100% of working as delivery boy. Therefore, the following principle of law laid down above stated it is held that the claimant has suffered 100% of functional disability.
22. The claimant was aged 30 years old at the time of accident, therefore, appropriate multiplier applicable is '17'. The claimant has stated that he was receiving salary of Rs.12,000/- p.m. But, in support of Ex.P-7 is the salary certificate issued by Owner of Bharatgas Distributers, that
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the claimant was getting salary of Rs.5,000/- p.m. Accordingly it is held that the claimant was getting salary of Rs.5,000/- per month only.
23. Since the claimant has suffered 100% functional disability therefore, according to his age, 40% of income is to be added towards loss of future prospects in life as per the principles of law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO., LTD., VS. PRANAY SETHI reported in (2017) SCC 680 and SIDRAM VS. DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER reported in (2023) 3 SCC 439 and Division Bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY VS. ABDUL S/O MEHABOOB TAHASILDAR in MFA No.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018. Therefore, the loss of future income due to disability is re-assessed and quantified as follows:
Rs.5,000/- + Rs.2,000/- (40% x Rs.5,000/-) = Rs.7,000/-
Rs.7,000/- x 17 x 12 = Rs.14,28,000/-
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24. Accordingly, the claimant is entitled a sum of Rs.14,28,000/- under the head of 'loss of earning capacity due to disability'.
25. The Tribunal has awarded compensation of Rs.1,00,000/- under the head 'injury, pain and suffering' is found to be just and proper. Hence, it is kept intact.
26. The Tribunal has awarded compensation of Rs.70,629/- under the head 'medical expenses' is as per the actual bills produced. Hence, it is kept intact.
27. The Tribunal has awarded compensation of Rs.20,000/- under the head 'future medical expenses' is found to be just and proper. Hence, it is kept intact.
28. The Tribunal has awarded compensation of Rs.30,000/- under the head 'loss of amenities in life' is on the lesser side and the same is enhanced to Rs.70,000/-.
29. The Tribunal has awarded compensation of Rs.30,000/- (Rs.5,000/- x 6) under the head 'loss of income during laid up period' is found to be just and proper. Hence, it is kept intact.
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30. The Tribunal has awarded compensation of Rs.30,000/- under the head 'incidental expenses' like nourishing food, conveyance and attendance charges, is found to be just and proper. Hence, it is kept intact.
31. The Tribunal has awarded compensation of Rs.20,000/- under the head 'loss of marriage prospectus in life' is on the lesser side and the same is enhanced to Rs.75,000/-.
32. Thus, in all, the claimant is entitled to total compensation as follows:
Sl. Heads Awarded by Awarded by
No. the Tribunal this Court
1. Towards injury, pain and Rs.1,00,000/- Rs.1,00,000/-
suffering
2. Towards medical Rs.70,629/- Rs.70,629/-
expenses
3. Toward future medical Rs.20,000/- Rs.20,000/-
expenses
4. Towards loss of amenities Rs.30,000/- Rs.70,000/-
in life
5. Towards loss of income Rs.30,000/- Rs.30,000/-
during laid up period
6. Towards loss of future Rs.5,10,000/- Rs.14,28,000/-
earning capacity
7. Towards initial expenses Rs.30,000/- Rs.30,000/-
like nourishing food,
conveyance etc.,
8. Towards loss of marriage Rs.20,000/- Rs.75,000/-
prospectus
Total Rs.8,10,629/- Rs.18,23,629/-
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33. The Tribunal has awarded compensation of
Rs.8,10,629/- but the claimant is entitled to total
compensation of Rs.18,23,629/-. Hence, the claimant is entitled to enhanced compensation of Rs.10,13,000/- (Rs.18,23,629/- - Rs.8,10,629/-). Therefore, the claimant is entitled to enhanced compensation of Rs.10,13,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal. Accordingly, I proceed to pass the following:
ORDER i. MFA No.4761/2014 is dismissed.
ii. MFA Crob.No.112/2014 is allowed-in-part.
iii. The impugned judgment and award dated 08.04.2014 in MVC.No.1147/2005 passed by the Additional District and Sessions Judge and MACT, Udupi sitting at Kundapura, is modified to the extent that the claimant-respondent No.1 in MFA.No.1147/2005 is entitled to enhanced compensation of Rs.10,13,000/- along with the rate of interest at 6% per annum from the
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date of petition till the date of realization, in addition to what has been awarded by the Tribunal.
iv. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.
v. No order as to costs.
vi. Draw award accordingly.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
SRA
CT:GSM