Karnataka High Court
Syed Zaheer @ Sayyued Jahiruddin ... vs Smt Puttamadamma on 7 December, 2023
-1-
NC: 2023:KHC:44432-DB
MFA No. 5745/2016
C/W MFA No. 4811/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL No. 5745/2016 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL No. 4811/2016
IN MFA No.5745/2016
BETWEEN:
1. SYED ZAHEER
@ SAYYUED JAHIRUDDIN BOKHARI,
S/O SYED MIYA @ SAHEB MIYA BOKHARI,
AGED 43 YEARS,
R/AT # 1287/17/B,
Digitally signed JEEVANPOUR MOHALLA,
by PRABHU CHANNAPATNA,
KUMARA NAIKA
RAMANAGARAM DISTRICT - 571501.
Location: High
Court of ...APPELLANT
Karnataka
(BY SRI SRIDHAR D. S., ADVOCATE)
AND:
1. SMT. PUTTAMADAMMA,
W/O SRI PUTTASWAMY,
MAJOR,
PROP. OF M/S JATHIN MOTOR SERVICE,
R/AT No.369/C, V. CROSS,
LAKSHMI ROAD,
SHANTHINAGAR,
BANGALORE - 560027.
-2-
NC: 2023:KHC:44432-DB
MFA No. 5745/2016
C/W MFA No. 4811/2016
2. M/S ICICI LOMBARD GEN. INSURANCE CO. LTD.,
NO 89, 2ND FLOOR,
S. V. R. COMPLEX,
HOSUR MAIN ROAD,
BENGALURU - 560068
REPRESENTED BY ITS MANAGER
...RESPONDENTS
(BY SRI PUTHIGE R. RAMESH, SENIOR ADVOCATE FOR
SMT. LAKSHMI S. HOLLA, ADVOCATE FOR R1;
SRI S. KRISHNA KISHORE, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 3.5.2016 PASSED IN MVC NO.4119/2013 ON THE FILE OF
THE MEMBER, MACT, 16TH ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.4811/2016
BETWEEN:
SMT. PUTTAMADAMMA,
AGED ABOUT 65 YEARS,
W/O PUTTASWAMY,
PROP: JATHIN MOTOR SERVICE,
NO. 369C, 5TH CROSS,
LAKSHMI ROAD, SHANTHINAGARA,
BANGALORE - 560 027.
...APPELLANT
(BY SRI PUTHIGE R. RAMESH, SENIOR ADVOCATE FOR
SMT. LAKSHMI S. HOLLA, ADVOCATE)
AND:
1. SYED ZAHEER @
SAYYED JAHIRUDDIN BOKHARI,
AGED ABOUT 43 YEARS,
S/O SYED MIYA @ SAHEB MIYA BOKHARI,
No. 1287/17/B,
JEEVAN POUR MOHALLA,
CHENNAPATTANA,
RAMANAGARA DISTRICT - 562 138.
-3-
NC: 2023:KHC:44432-DB
MFA No. 5745/2016
C/W MFA No. 4811/2016
2. ICICI LOMBARD GENERAL INS. CO. LTD.,
No. 89, 2ND FLOOR, SVR COMPLEX,
HOSURU MAIN ROAD,
MADIVALA,
BENGALURU - 560 068.
...RESPONDENTS
(BY SRI SRIDHAR D. S., ADVOCATE FOR R1;
SRI S. KRISHNA KISHORE, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 03.05.2016 PASSED IN MVC NO.4119/13 ON THE FILE OF
THE MEMBER, MACT, 16TH ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, BENGALURU, AWARDING COMPENSATION OF
RS.2,87,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF PAYMENT.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
DICTATION THIS DAY K.S. MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
Challenging the judgment and award in MVC No.4119/2013, the claimant has preferred MFA No.5745/2016 and the owner of the offending vehicle has preferred MFA No.4811/2016.
2. Syed Zaheer - appellant in MFA No.5745/2016 was the claimant and respondent Nos.1 and 2 in the said case were respondent Nos.1 and 2 in MVC No.4119/2013 on the file of -4- NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 XVI Additional Judge, Court of Small Causes and MACT, Bengaluru.
3. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.
4. On 15.06.2013 at 9.00 p.m., when the claimant was traveling in bus bearing No.KA-11-8582 near Chamundeshwari Textiles Factory, Vinayakanagar within the limits of Ramanagar Traffic Police Station, while crossing the humps, the claimant was thrown from his seat and dashed against the steel bar of the door of the bus and suffered injuries. Regarding the accident, on the complaint of one Sayed Nadeem, Ramanagar Traffic Police registered FIR as per Ex.P1 in Crime No.94/2013 against the bus driver. On investigation, the said police filed charge sheet as per Ex.P2 against the driver of the bus for the offences punishable under Sections 279, 338 of the Indian Penal Code, 1860 (for short 'IPC'). It was alleged that the driver of the bus drove the same in rash and negligent manner and caused accident leading to grievous injuries to the claimant. At the relevant time, -5- NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 respondent No.1 was registered owner and respondent No.2 was the insurer of the offending bus.
Claimant filed MVC No.4119/2013 against the respondents claiming compensation of Rs.25 lakhs alleging that the accident occurred due to the actionable negligence on the part of the driver of the bus. He further claimed that due to the accident, he suffered grievous injuries and consequential permanent physical disability, thereby he lost his earning capacity. He claimed that the respondents are liable to compensate the damages.
5. Respondent No.1 did not contest the matter before the Tribunal. Respondent No.2 alone contested the matter denying the actionable negligence on the part of the driver of the bus, age, occupation, income of the claimant, injuries suffered by him and his permanent physical disability. Respondent No.2 contended that the vehicle was being operated without valid permit and thereby there was breach of policy condition therefore, it was not liable to indemnify the damages.
-6-
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016
6. To substantiate his claim, the claimant got himself examined as PW.1 and examined PW.2 - the Medical Record Technician and the Doctor who treated him as PW.3. On behalf of claimant, Exs.P1 to P15 were marked. Respondent No.1 did not lead any evidence. Respondent No.2 examined it's legal manager as RW.1. The concerned RTO was examined as RW.2 to substantiate his claim that vehicle was being operated without route permit. On behalf of respondent No.2, Exs.R1 to R6 were marked.
7. The Tribunal on hearing the parties, relying on the claimant's evidence and the police records held that the accident occurred due to the actionable negligence on the part of the driver of the bus bearing No.KA-11-8582. The Tribunal relying on the evidence of PW.1 - the claimant and PW.3 - the Doctor, assessed the permanent physical disability of the claimant at 8% to the whole body. Based on Ex.P7 - Voter ID considered his age as 43 years, applied 14 multiplier and assessed the income of the claimant notionally at Rs.7,000/- p.m. The Tribunal awarded a sum of Rs.94,080/- on the head of loss of future income. The Tribunal in all, awarded the -7- NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 compensation at Rs.2,86,080/- on different heads as per the table below:
1. Pain and sufferings Rs. 50,000/-
2. Medical Expenses Rs. 6,000/-
3. Nourishment, conveyance Rs. 15,000/-
and attendant charges
4. Loss of income during laid Rs. 21,000/-
up period
5. Loss of future income Rs. 94,080/-
(84000 x14x8%)
6. Disability Rs. 50,000/-
7. Loss of amenities Rs. 50,000/-
Total Rs.2,86,080/-
Rounded off Rs.2,87,000/-
8. The Tribunal relying on the evidence of RW.1 and RW.2 and Exs.R1 to R6 held that the route permit to the bus in question was from T. Narasipura to Bengaluru, but respondent No.1 operated the same on Ramanagar route. It was held that at the time of the accident there was no permit for the bus-in-
question to operate at Ramanagar and thereby there was breach of policy condition, therefore insurer is not liable to indemnify the damages. Thus, the Tribunal fastened the liability to respondent No.1 - Registered owner and dismissed the claim petition against the respondent No.2 - insurer.
9. The claimant has challenged the said award questioning the adequacy of the compensation and exoneration -8- NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 of the insurer. The registered owner has challenged the award questioning the exoneration of the insurer.
Submissions of Sri. D.S.Sridhar, learned counsel for the claimant:
10. Though the Doctor - PW.3 assessed the permanent physical disability of the claimant at 14% to the whole body, the Tribunal without any justifiable cause, reduced the same to 8%, which is unsustainable. The income of the claimant assessed by the Tribunal is on the lower side. The compensation awarded on the head of pain and suffering, medical expenses, loss of income during laid-up period and all other heads, is on lower side. The trial Court's findings that at the time of accident, the vehicle was operated without route permit and exoneration of the insurer are not sustainable.
Submissions of Sri. Puthige R. Ramesh, learned Senior counsel for Smt. Lakshmi S. Holla, advocate on record for respondent No.1/registered owner:
11. Respondent No.2 did not dispute that vehicle was covered under the valid policy at the time of accident. It was also not disputed that the vehicle had a permit as per Exs.R2 and R3. According to respondent No.2, the driver of the bus only deviated from stipulated route. That does not amount to -9- NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 no permit at all. At the most, that amounts to deviation of the route permit. Under such circumstances, the defence under Section 149(2)(a)(i)(a) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the MV Act' for short) is not available in the insurer. The defence under the said provision is available only in the cases, where the vehicle was not covered by the permit or if the vehicle was used for the purpose other than the one permitted. Therefore, the Tribunal committed error in exonerating the insurer.
12. In support of his submissions, he relied on the judgment in ORIENTAL INSURANCE COMPANY LIMITED Vs. K.C. PAPANNA1.
Submissions of Sri. S. Krishna Kishore, learned counsel for the Insurer:
13. Though there was no dispute with regard to coverage of the vehicle by the policy, Ex.R1 that itself does not entail the liability on the insurer. The insured is bound by the conditions of the policy. In Ex.R1 - the policy, the limitation clause clearly says that the policy covers risk which occurs within the permit area. Since the vehicle was operated in 1 MFA NO.8742 OF 2008 (MV) DD: 09.10.2012
- 10 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 violation of permit conditions and there was also no permit to operate in Ramanagar town, there is a clear breach of policy conditions and the provisions of Section 66 of the MV Act. Respondent No.1/owner neither filed his statement of objections nor led any evidence nor cross-examined any of the witnesses. The trial Court rightly exonerated the insurer in view of the aforesaid facts and circumstances, which does not warrant any interference.
14. In support of his submissions, he relied on the following judgments:
i) National Insurance Co. Ltd., Vs. Challa Upendra Rao & Others2,
ii) Rani and others Vs. National Insurance Co.
Ltd.,3
iii) Sri Venkatesh Vs. IFFCO TOKIO General Insurance Co. Ltd.,4 and 3 others,
15. On consideration of the submissions of all the parties and on examination of the records, the questions that arise for consideration are:
2
2004 AIR SCW 5301 3 (2018)8 SCC 492 4 MFA No.967/2017 (MV-D) DD 22.04.2022.
- 11 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016
1. Whether the quantum of compensation awarded by the trial Court is just one?
2. Whether the finding of the Tribunal that insurer is not liable to indemnify the insured damages is sustainable?
ANALYSIS Reg. Quantum:
16. The occurrence of the accident is not in dispute. So far as actionable negligence on the part of the driver of the bus, respondent No.1 - the registered owner did not contest the matter nor examined the driver of the bus. Admittedly, the driver of the bus was charge-sheeted as per Ex.P2 for rash and negligent driving and causing grievous injuries to the victim.
The trial Court relying on the evidence of insurer, the claimant, PW.2 and the police records as per Exs.P1 to P6 rightly held that the accident occurred due to actionable negligence on the part of the driver of the bus.
17. The evidence of PW.1 and the Doctor - PW.3 coupled with Ex.P6 - wound certificate, Ex.P8 - OPD records, Ex.P11- Accident Register, Ex.P12 - OP record, Ex.P13 - IP
- 12 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 Record, P14 - OP Records, and Ex.P15 - X-rays show that the claimant had suffered following injuries.
i) Epistaxis from both nostrils.
ii) Passing blood coloured urine.
iii) Pain in lower back.
iv) Intraperitoneal bladder rupture.
18. The aforesaid evidence further shows that the claimant was admitted in Victoria Hospital from 16.06.2013 till 22.06.2013 and he was treated as in-patient for a period of seven days. The Doctor, who examined and treated the claimant assessed the permanent physical disability of the claimant at 14% to the whole body. In his cross-examination, he denied the suggestion that the injuries suffered by the claimant do not cause any functional disability. He deposed that bladder of the petitioner was compressed and ruptured and the muscular layer of the petitioner was damaged. He further deposed that he has assessed the disability based on the AUA/EUA guidelines issued by the Government of India. His evidence regarding the percentage of permanent physical disability was not impeached in the evidence. However, the Tribunal without assigning any cogent reasons, on its own
- 13 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 reduced the permanent physical disability to the whole body at 8%. No other expert was examined or no other medical authority was cited for such reduction of permanent physical disability. Therefore, such reduction of permanent physical disability against the evidence of PW.3 is erroneous.
19. Though the petitioner claims that he was aged 40 years, Ex.P7 the voter ID Card produced by the claimant himself shows his age as on 01.01.1995 as 25 years. Therefore, the Tribunal rightly assessed his age as 43 years as on the date of the accident.
20. Though the claimant contended that he was doing cloth business and earning Rs.10,000/- p.m., actual proof of such occupation or income was not furnished. Therefore, it was inevitable for the Tribunal to assess the income notionally. The accident has taken place in the year 2013. Having regard to the prevailing wage rates, age, occupation of the claimant and cost of living, the Tribunal should have assessed his notional income reasonably at Rs.8,000/- p.m. For the age of 43 years, the applicable multiplier is 14. Therefore, the compensation payable on the head of loss of future earnings
- 14 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 comes to Rs.1,88,160/- (Rs.8,000*14%= Rs.1,120/- *12*14=Rs.1,88,160/-).
21. Having regard to the nature of injuries and the evidence of PWs.1 and 3, the Tribunal has rightly considered the laid-up period as three months. Therefore, the compensation payable on the head of loss of income during laid-up period comes to Rs.24,000/- (Rs.8000*3).
22. Compensation on the head of medical expenses is awarded based on the medical records produced. Therefore, that does not warrant any interference of this Court.
23. The claimant was treated in Victoria Hospital for a period of seven days as in-patient. Therefore, the compensation awarded on the head of nourishment, conveyance and attendant charges is just one that does not warrant any interference.
24. Having regard to the nature of the injuries and medical evidence, the compensation awarded on the head of pain and sufferings is just one and does not warrant any interference of this Court. Since the compensation was
- 15 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 awarded on the head of pain and sufferings, loss of income during laid-up period and loss of future income, the compensation on the head of disability again is not warranted.
25. Having regard to the nature of injuries, the medical evidence and evidence of the claimant, compensation awarded on the head of loss of amenities i.e. Rs.50,000/- also does not warrant any interference. Therefore, the just compensation payable to the petitioner is as follows:
Sl. Particulars Compensation in
No. Amount (Rs.)
1. Loss of income during laid Rs. 24,000/-
up period
2. Medical expenses Rs. 6,000/-
3. Nourishment, conveyance Rs. 15,000/-
and attendant charges
4. Pain and sufferings Rs. 50,000/-
5. Loss of amenities Rs. 50,000/-
6. Loss of future income Rs. 1,88,160/-
Total Rs.3,33,160/-
Minus awarded by Tribunal Rs. 2,87,000/-
ENHANCEMENT Rs. 46,160/-
Reg. liability:
26. There was no dispute that as on the date of the accident, the offending bus was covered under the policy Ex.R1. But the insurer disputed its liability on the ground that the respondent No.1 operated the bus in Ramanagar town, contrary to the route permit. Insurer contended that since there was no permit to operate in Ramanagar town, there was
- 16 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 breach of policy condition and therefore, it was not liable to indemnify the damages. To substantiate its contention, the insurer examined RW.2 - The RTO, Mandya. The evidence of RW.2 and Ex.R4 - copy of the permit, Ex.R5 - route map and Ex.R6 - B extract show that, the time-table in the route as per the permit was as follows:
"T. NARASIPURA D: 6-40AM A: 9-20PM
TALAKADU A: 7-35AM D: 8-15PM
D: 7-40AM A: 8-10PM
MALAVALLY A: 8-30A.M. D: 7-15PM
D: 8-40AM A: 7-00PM
MADDUR A: 9-25AM D: 6-15PM
D: 9-30AM A: 5-55PM
KESTUR A/D 10-00AM A/D 5-25PM
HULIYUR DURGA A: 10-35AM D:4-55PM
D: 10-45AM A: 4-50PM
MAGADI A: 11-45AM D:3-48PM
D: 11-50AM A: 3-40PM
BANGALORE A: 1 - 30PM D: 2-15PM"
27. The above chart goes to show the respondent No.1 had no permit to operate the bus in Ramanagar town. Therefore, it is clear that the vehicle was operated at a place where it had no permit. In fact, respondent No.1 - RC owner of the bus did not contest the petition at all. She did not
- 17 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 controvert the evidence of RW.2. Even in this appeal it is not the contention of respondent No.1 that there was permit to operate in Ramanagar, but it was contended that if there is permit to operate and if the vehicle is operated in deviation of said permit in some other area that does not amount to no permit. Therefore, it is contended that the insurer is not exonerated of its liability. It was also contended that the same does not amount to fundamental breach of the policy conditions.
In Ex.R1, the clause 'Limitations as to use' reads as follows:
"1. The policy covers use only under a permit within the meaning of Motor Vehicles Act, 1988 or such a carriage falling under Sub Section (3) of Section 66 of the Motor Vehicles Act, 1988. The policy does not cover (1) Use for organised racing, pace making, reliability trails or speed testing.
(2) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle."
- 18 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016
28. It was contended that since the vehicle is operated under a permit, that does not amount to the breach of policy conditions. The defence available to the insurer are enumerated under Section 149(2)(a & b). The provisions relevant for the purpose of this case are Section 149 (2)(a)(i-
a)(i-c) and (ii), which reads as follows:
"149 (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:--
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:--
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or"
29. Section 149(2)(a)(i)(a) of the Act says that using the vehicle for hire or reward not covered by the permit to ply for hire or reward amounts to breach of policy conditions. Section 66 of the MV Act describes the necessity for permits, which reads as follows:
- 19 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 "66. Necessity for permits:- (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage:
Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:
Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder use of the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.
[Provided also that where a transport vehicle has been issued any permit or permits, as well as a licence under this Act, such vehicle may be used either under the permit, or permits, so issued to it, or under such licence, at the discretion of the vehicle owner.] (2) The holder of a goods carriage permit may use the vehicle, for the drawing of any public or semitrailer not owned by him, subject to such conditions as may be prescribed.
[Provided that the holder of a permit of any articulated vehicle 2 may use the prime-mover of that articulated vehicle for any other semi-trailor.] (3) The provisions of sub-section (1) shall not apply--
(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise;
(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes;
(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;
(d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses;
- 20 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016
(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety;
(f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf;
(g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf;
(h) [*****]
(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;
(j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods;
(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle;
(l) [******]
(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;
(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;
(o) to any transport vehicle which is subject to a hire-
purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of, the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or
(p) to any transport vehicle while proceeding empty to any place for purpose of repair.
[(q) to any transport vehicle having been issued a licence 5 under a scheme, under sub-section (3) of section 67 or sub-section (1) of section 88A, or plying under such orders as may be issued by the Central Government or by the State Government.] (4) Subject to the provisions of sub-section (3), sub-section (1) shall if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver."
- 21 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 The reading of the above provisions shows that the owner of the transport vehicle cannot operate the said vehicle in any public place except on the prescribed/stipulated route.
30. In this context, it is also necessary to refer to Section 72 of the Act, which deals with grant of stage carriage permit. Admittedly, in this case the vehicle-in-question was stage carriage permit.
31. Section 72(1) of the Act says that the Regional Transport Authority may on the application, grant a stage carriage permit in accordance with the application or with the modification etc.. The proviso to the said Section states that no such permit shall be granted in respect of any route or area not specified in the application.
32. Section 72(2) of the Act authorizes the Regional Transport Authority to stipulate the conditions of permit.
33. Section 72(2)(i) of the Act states that the vehicles shall be used only in a specified area or on a specified route/s.
- 22 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016
34. Section 72(2)(vi) of the Act states that the passengers or goods shall not be picked up or dropped down except at specified points within municipal limits and such other areas as may be prescribed.
35. Section 72(2)(xxi) of the Act states that condition of the permit shall not be departed from, save with the approval of the said authority.
36. In the present case, the permit was issued to operate as per the aforementioned route and time-table. The accident has taken place on 15.06.2013 at 9.00 p.m. within Ramanagar Town limits. The evidence of RW.2 and Ex.R4 to R6 more particularly, Ex.R5 show that the respondent No.1 had to start the operation of the bus at 6.40 a.m. from T. Narasipura and reach Bengaluru by 1.30 p.m. via Talakadu- Malavalli-Madduru-Kestur-Huliyurdurga-Magadi. The return trip had to start at 2.15 p.m. from Bengaluru and end at T. Narasipura at 9.20 p.m. Even in the return trip, Ramanagar town is not the stipulated route. Therefore, there was clear violation of route map as well as time-table. That amounts to
- 23 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 fundamental breach of permit and fundamental breach of the policy condition.
37. Under such circumstance, the contention that it was a case of no permit, but it is only a case of deviation of the permit cannot be accepted. Respondent No.1 had no permit at the given place and time to operate the vehicle therefore, that amounts to operating without permit at the place and time where risk occurred. In the similar circumstances, the Hon'ble Supreme Court in the case of Challa Upendra Rao & Others and Rani and others's case referred to supra held that operating the vehicle in place where there was no route permit amounts to breach of policy condition and insurer is not liable to pay the compensation. However, in those cases relying on the judgments in the case of Pappu and others vs. Vinodkumar Lamba and another5, it was held that insurer has to pay the compensation and recover from the owner. Pappu and others case referred to supra in-turn was referred relying on the judgment of the Hon'ble Supreme Court in the 5 (2018) 3 SCC 208
- 24 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 case of National Insurance Company Ltd. Vs. Swaran Singh and Others6 .
38. The Hon'ble Supreme Court relying on proviso to Section 149(4) evolved the principle of pay and recover. Section 149(4) says that, if the insurer pays any sum towards discharge of liability of the insured under a policy, even if there is breach of condition, then it is entitled to recover from the insured. It was observed that since the MV Act is social welfare legislation, to prevent the arduous efforts of the victim in recovering the compensation from the insurer, the insurer has to pay the compensation to the victim and recover it from the insured.
39. In the aforesaid facts and circumstances, the contention that insurer is entitled to take such defence under Section 149(2) of the MV Act only if there is change in the purpose of use of the vehicle qua to the permit, cannot be countenanced.
6 (2004) 3 SCC 297
- 25 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016
40. Similarly, the attempt made by learned Senior counsel to distinguish the judgments in Challa Upendra Rao & Others and Rani and other cases referred to supra on the ground that the inter-state permit conditions were violated, thus the said judgments are not applicable and carries no merit.
41. In the light of the aforesaid judgments of Supreme Court, the other judgments of this Court and Supreme Court relied on by Shri. Puthige R. Ramesh, learned Senior counsel cannot be justifiably applied to the facts of the present case. Therefore, primary liability of payment of compensation is on respondent No.1 - the registered owner of the vehicle.
42. In view of proviso of Section 149(2) of the MV Act and the judgments to the Hon'ble Supreme Court in Challa Upendra Rao & Others, Rani and others, Pappu and others and Swaran Singh and Others cases referred to supra, the insurer has to pay the compensation to the claimant and recover the same from respondent No.1 in execution of the decree in this case.
- 26 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016
43. Relying on the judgment in the case of Challa Upendra Rao referred to supra, learned counsel for the insurer submits that even after insurer depositing the award amount, claimant shall not be permitted to withdraw the same until respondent No.1-insured furnishes security for payment of the said amount.
44. A reading of paragraph 13 of the said judgment does not indicate that such proposition was laid down as a ratio. However, consistently, in cases of Pappu, Swaran Singh and Rani referred to supra, the Hon'ble Supreme Court held that the insurer shall pay the compensation to the claimants and recover the same from the insured. Acceptance of submission that withdrawal shall be subject to insured depositing the amount defeats the principle of pay and recover laid down in the judgments in Pappu, Swaran Singh and Rani 's cases referred to supra. Therefore, such condition for withdrawal of the amount by the claimant cannot be imposed. However, it is open to the insurer/respondent No.2 to seek attachment of movable and immovable properties of the insured. Hence, the following.
- 27 -
NC: 2023:KHC:44432-DB MFA No. 5745/2016 C/W MFA No. 4811/2016 Order
i) MFA No.4811/2016 is dismissed with costs.
ii) MFA No.5745/2016 is allowed in-part.
iii) Respondent No.1 is liable to pay the enhanced compensation of Rs.46,160/- with interest thereon at 6% per annum from the date of petition till its realization.
iv) Respondent No.2-insurer shall deposit the award amount before the Tribunal on adjusting the amount deposited, if any, by respondent No.1 before the Tribunal within four weeks from the date of receipt of copy of this order.
v) Respondent No.1 shall pay the amount deposited by the insurer forthwith and in case of default, respondent No.2-insurer shall recover the same in execution of this decree.
vi) Transmit the amount in deposit, if any, and TCRs to the Tribunal forthwith.
Sd/-
JUDGE Sd/-
JUDGE List No.: 1 Sl No.: 34 Pg. No. 1 to 24 - VBS Pg. No.25 to 26 - MV