Karnataka High Court
The Divisional Manager, United India ... vs Smt.T.G.Shobha W/O Late T.G.Sripad on 10 October, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF OCTOBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
MFA No.31886/2010
C/W
MFA NO.31883/2010, 31885/2010, 31887/2010
(MV)
MFA 31886/2010
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
V.V.SUKHANI COMPLEX,
1ST FLOOR, P.B.NO.53,
GANDHI CHOWK,
RAICHUR.
... APPELLANT
(BY SRI. NAGARAJ PATIL, ADVOCATE FOR
MANVENDRA REDDY, ADVOCATE)
2
AND:
1. SMT. T.G.SHOBHA W/O LATE T.G.SRIPAD,
AGE: 56 YEARS,
OCC: HOUSEHOLD AFFAIRS & TAILOR,
R/O GULBARGA NOW AT H.NO.7-6-28/10,
VASAVI NAGAR, RAICHUR-3.
2. BHAGAWAN SINGH S/O VITHAL SINGH RAJPUT,
AGE: MAJOR, OCC: DRIVER CUM REGISTERED
OWNER OF BAJAJ TOOFAN TRAX
BEARING NO.KA-36/M-2661,
R/O JAIL QUARTERS,
OPP. JAIL QUARTERS,
OPP. DISTRICT JAIL,
BUS-STAND ROAD, RAICHUR-584101.
... RESPONDENTS
(BY SRI. BASAVARAJ R. MATH, ADVOCATE FOR R1 -
ABSENT;
NOTICE TO R2 D/W V/O DATED 16.12.2016,
R2-BHAGAWAN SINGH-SD)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT, AGAINST THE
JUDGEMENT AND AWARD DATED 24.03.2010
PASSED IN MVC NO.41/2009 ON THE FILE OF THE
MACT & FAST TRACK COURT-I, RAICHUR, PARTLY
ALLOWING THE CLAIM PETITION AND AWARDING
THE COMPENSATION OF RS.1,75,986/-.
3
MFA NO.31883/2010
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
V.V.SUKHANI COMPLEX,
1ST FLOOR, P.B.NO.53,
GANDHI CHOWK,
RAICHUR.
... APPELLANT
(BY SRI. NAGARAJ PATIL, ADVOCATE FOR
MANVENDRA REDDY, ADVOCATE)
AND:
1. G.R.RAMCHANDRA SHETTY
S/O R.SAKRAIAH,
AGE: 54 YEARS,
OCC: AGRICULTURE & BUSINESS,
R/O H.NO.7-6-28/10,
VASAVI NAGAR,
RAICHUR.
2. BHAGAWAN SINGH S/O VITHAL SINGH RAJPUT,
AGE: MAJOR, OCC: DRIVER CUM REGISTERED
OWNER OF BAJAJ TOOFAN TRAX
BEARING NO.KA-36/M-2661,
R/O JAIL QUARTERS,
OPP: DISTRICT JAIL,
BUS-STAND ROAD, RAICHUR-584101.
... RESPONDENTS
4
(BY SRI. BASAVARAJ R. MATH, ADVOCATE FOR R1 -
ABSENT;
R2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT, AGAINST THE
JUDGEMENT AND AWARD DATED 24.03.2010
PASSED IN MVC NO.38/2009 ON THE FILE OF THE
MACT & FAST TRACK COURT-I, RAICHUR, PARTLY
ALLOWING THE CLAIM PETITION AND AWARDING
THE COMPENSATION OF RS.4,02,086/- WITH
INTEREST 6% P.A.
MFA NO.31885/2010
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
V.V.SUKHANI COMPLEX,
1ST FLOOR, P.B.NO.53,
GANDHI CHOWK,
RAICHUR.
... APPELLANT
(BY SRI. NAGARAJ PATIL, ADVOCATE FOR
MANVENDRA REDDY, ADVOCATE)
AND:
1. SMT. R.LAXMI W/O G.R.RAM CHANDRA SHETTY
AGE: 49 YEARS, OCC: HOUSEHOLD
AGRICULTURE & BUSINESS,
R/O H.NO.7-6-28/10,
VASAVI NAGAR, RAICHUR.
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2. BHAGAWAN SINGH S/O VITHAL SINGH RAJPUT
AGE: MAJOR, OCC: DRIVER CUM REGISTERED
OWNER OF BAJAJ TOOFAN TRAX
BEARING NO.KA-36/M-2661,
R/O JAIL QUARTERS,
OPP: DISTRICT JAIL,
BUS-STAND ROAD, RAICHUR-584101.
... RESPONDENTS
(BY SRI. BASAVARAJ R. MATH, ADVOCATE FOR R1 -
ABSENT;
R2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGEMENT AND AWARD DATED 24.03.2010
PASSED IN MVC NO.40/2009 ON THE FILE OF THE
MACT & FAST TRACK COURT-I, RAICHUR, PARTLY
ALLOWING THE CLAIM PETITION AND AWARDING
THE COMPENSATION OF RS.10,000/- WITH INTEREST
6% P.A.
MFA NO.31887/2010
BETWEEN:
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
V.V.SUKHANI COMPLEX,
1ST FLOOR, P.B.NO.53,
GANDHI CHOWK, RAICHUR.
... APPELLANT
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(BY SRI. NAGARAJ PATIL, ADVOCATE FOR
MANVENDRA REDDY, ADVOCATE)
AND:
1. DODAPPA S/O AYYANNA
AGE: 46 YEARS,
OCC: GUMASTA,
R/O GURGUNTA VILLAGE,
NOW AT VASAVI NAGAR,
RAICHUR.
2. BHAGAWAN SINGH S/O VITHAL SINGH RAJPUT
AGE: MAJOR, OCC: DRIVER CUM REGISTERED
OWNER OF BAJAJ TOOFAN TRAX
BEARING NO.KA-36/M-2661,
R/O JAIL QUARTERS,
OPP: DISTRICT JAIL,
BUS-STAND ROAD, RAICHUR-584101.
... RESPONDENTS
(BY SRI. BASAVARAJ R. MATH, ADVOCATE FOR R1 -
ABSENT;
R2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGEMENT AND AWARD DATED 24.03.2010
PASSED IN MVC NO.42/2009 ON THE FILE OF THE
MACT & FAST TRACK COURT-I, RAICHUR, PARTLY
ALLOWING THE CLAIM PETITION AND AWARDING
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THE COMPENSATION OF RS.79,977/- WITH INTEREST
6% P.A.
THESE APPEALS COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The learned counsel for appellant in all the cases is present. None of the counsels appearing for the respondents are present. As the matter was listed under Final Hearing. Date of hearing was notified in advance besides, the matter is of the year 2010. They are taken up for final disposal. And accident is concerned, is of the year 2008.
2. Absence of the learned counsel for the claimant-respondent No.1 in all the cases is placed on record. Though the respondent No.2 was served, he remained absent.
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3. Having heard the learned counsel for the appellant-Insurance company and perusing the records in all the cases, the matter is taken up for disposal.
4. All the four appeals are directed against the judgment and award passed by the MACT, Raichur in MVC No.41/2009, MVC No.38/2009, MVC No.40/2009 and MVC No.42/2009 on 24.03.2010. Since because all the claim petitions are of the same accident dated 04.09.2008, they are taken up for common disposal.
5. The appellant-insurance company has challenged the grant of compensation in all the four appeals on the point of liability.
6. In order to avoid overlapping and confusions, hereinafter the parties will be referred with reference to their ranks as they stood before the Tribunal respectively.
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7. As the facts unfurled, the accident that gave rise to file claim petitions under Motor Vehicle Act is that on 4.9.2008 at 8.30 p.m. when all the claimants were travelling in Bajaj Toofan bearing registration No.KA-36/M-2661, which was driving by respondent No.1 and when the jeep was near Shree Yallalingeshwar Temple Mutt at 9.00 p.m. was driven the in a rash and negligent manner thereby the driver lost control over the vehicle and hit to tractor and trailer and caused accident due to which the persons travelling in the said vehicle Bajaj Toofan Trax sustained injuries.
8. These appeals are preferred by the Insurance Company disputing its liability and obligation to compensate the injured on the ground of breach of terms of the policy inasmuch as the offending vehicle was not supposed to accommodate the passengers for remuneration, however, what was allowed to them is the 10 exclusive use of the vehicle for private purpose. The Tribunal has adjudicated the matter in all the cases giving consideration to accident dated 4.9.2008, negligence and liability for the purpose of compensation.
9. Insofar as the liability of compensation is concerned, the calculation made for grant of compensation is as under:
In MVC No.41/2009 (MFA No.31886/2010), the Tribunal has granted compensation of Rs.1,75,986/- under the following heads:
1. Pain and agony - Rs.15,000/-
2. Medical expenses - Rs.53,186/-
3. Loss of income during the period of treatment - Rs.3,800/-
4. Loss of future earning - Rs.99,000/-
5. Future unhappiness and loss of amenities - Rs.5,000/-
Total - Rs.1,75,986/-11
In MVC No.38/2009 (MFA No.31883/2010), the Tribunal has granted compensation of Rs.4,02,086/-
under the following heads:
1. Pain and agony - Rs.35,000/-
2. Medical expenses - Rs.56,086/-
3. Loss of income during the period of treatment - Rs.9,000/-
4. Loss of future earning - Rs.2,97,000/-
5. Future unhappiness and loss of amenities - Rs.5,000/-
Total - Rs.4,02,086/-
In MVC No.40/2009 (MFA No.31885/2010), the Tribunal has granted global compensation of Rs.10,000/-.12
In MVC No.42/2009 (MFA No.31887/2010), the Tribunal has granted compensation of Rs.79,977/- under the following heads:
1. Pain and agony - Rs.30,000/-
2. Medical expenses - Rs.41,977/-
3. Loss of income during the period of treatment - Rs.3,000/-
4. Future unhappiness and loss of amenities - Rs.5,000/-
Total - Rs.79,977/-
10. Learned counsel for the appellants would submit vehemently that the vehicle was meant for personal use and it was not commercial. Thus it was used for commercial purpose for consideration.
11. The vehicle which is met with accident is a jeep. On questioning, the learned counsel appearing for 13 the appellants would submit that the document in this connection was not filed by the appellant.
12. Documents available on record i.e., FIR wherein the complainant in that case is Ramchandra Shetty who is claimant in MVC No.38/2009 said to have stated that he has got the vehicle on hire. However, it is to be seen that in the evidence by way of affidavit what he has filed before the Tribunal he swears to the effect that the entire family members secured the vehicle from his close friend for the purpose of going to Mysore for getting his son who is deaf to be admitted to the school and he has been cross-examined by the learned counsel for the insurance company wherein the questions are related to the income and the nature of injury and the sworn testimony of the said petitioner is not challenged nor suggested to be false during the cross-examination by the learned counsel for insurance company. Thus, 14 in the absence of positive or independent material other than the allegation is not placed on record by the insurance company. The right of the claimants for compensation survives and the duty of the insurance company to pay the compensation cannot be dislodged.
13. Learned counsel for the appellant would further submit that the complaint lodged by the claimant in MVC 38/2009 - Ramchandra Shetty states that the vehicle was hired and he is estopped from claiming compensation.
14. It is to be seen each and every word or term in a document, whether deposition, a deed in writing, judgment, to be read with reference to context not by relying on a stray sentence or a term to get the convenient interference and to apply to the context.
Moreover such approach of the insurance company for 15 denying the compensation does not appear to be proper. They go on issuing commercial to secure the customers to subscribe policy promising that they will be joining hands for compensation and when it matters under Insurance Companies came at simply take themselves just another litigant. During dealing with genuine claims a lot of sympathy and humanity are also to be extended by them.
15. It is true that the counsel for the claimants has not discharged his duty by staying in the court and submitting on behalf of his clients when the matter is listed for final hearing. No representation is seen to state the facts and grounds of the claimants. However, Motor Vehicles Act, 1988 being a social legislation bears the object of 'just and reasonable compensation'. The domain of just and reasonable compensation may go beyond the assessment on hyper technical assessment. 16 Thus, it is a fact that the Court or the Tribunal will have to assess the 'just compensation' 'under just' circumstances' with reasonable approach, however, without instituting legal norms.
16. It cannot be called a just compensation just by prefixing the word 'just'. The term 'just' used with reference to concept "right". The job of the court is not just as the unit to calculate and arrive at a figure. There must be a maximum blending of reasonability, humanity balance between what is dispensable and the required finally it cannot be just compensation, by just prefixing just to it. The concept "UBI JUS IBI REMEDIUM" thus means wherever there is right, there is a remedy. Thus, to grant remedy more particularly in a social legislation like the present one the Act of 1982 there is no embargo to this court even to increase the compensation amount regardless of non preferring the 17 appeal by the claimant and further regardless of the counsel for the claimants staying away from attending the case. But strictly ensuring it is perfectly reasonable and not a means to compensate the emotional factors or exercising sympathy at the cost of legal norms.
17. Insofar as the compensation of Rs.10,000/- granted in MVC No.40/2009 (MFA No.31885/2010) is concerned, in the circumstances, considering the discomfort suffered by the claimant it is just and proper to enhance compensation of Rs.15,000/- to make it Rs.25,000/-. Thus, in the circumstances, the claim of the appellant- insurance company seeking the relief to set aside the award granted by the Tribunal holds no justification and deserves to be rejected. Hence I proceed to pass the following..
ORDER Appeals filed by the appellants-Insurance company are dismissed.
18However the compensation granted in MVC No.40/2009 (MFA No.31885/2010) stands enhanced by Rs.15,000/- to make it Rs.25,000/-. Consequently the appellant -insurance company is hereby directed to deposit entire compensation amount including the enhanced compensation of Rs.15,000/- together with interest at the rate of 6% per annum from the date of petition till realisation within four weeks from the date of receipt of certified copy of the judgment and award. Insofar as the equation regarding the appropriation the formula applied by the learned Member is upheld. Amount in deposit shall be transferred to the Tribunal for disbursement.
Send back the records to the Tribunal along with copy of this judgment.
Sd/-
JUDGE NSP / SMP