Karnataka High Court
The Manager vs Manjamma D/O Kanakappa on 7 November, 2017
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7th DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
MISCELLANEOUS FIRST APPEAL NO.20390 of 2011
c/w MISCELLANEOUS FIRST APPEAL NOs.20391 to 20396 of 2011(MV)
IN MFA NO.20390 OF 2011
BETWEEN
THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
NO. 40, 1ST FLOOR, SLV TOWER,
PARVATHI NAGAR,
MOKHAN ROAD, BELLARY,
REP. BY ITS DEPUTY MANAGER,
LEGAL CLAIMS, # 28, 5TH FLOOR, CENTENARY
BUILDING, BANGALORE 1.
... APPELLANT
(By Sri NAGARAJ C KOLLOORI, ADV.)
AND
1. MANJAMMA D/O KANAKAPPA
AGE: 15 YEARS, OCC: STUDENT,
REP BY HER FATHER
KANAKAPPA S/O HANUMAPPA
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O GUDDADA HANUMASAGAR,
NOW R/AT GINIGERA, TQ.& DIST. KOPPAL
2. MALLANAGOUDA S/O AMARESHAPPA
AGE: 25 YEARS, OCC: DRIVER,
R/O HULIHYDER, TQ. GANGAVATHI
DIST. KOPPAL
3. DODDANAGOUDA S/O BASANAGOUDA
2
AGE: MAJOR, OCC: BUSINESS
R/O BIJAKAL, TQ. KUSHTAGI,
DIST. KOPPAL
... RESPONDENTS
(By Sri M AMAREGOUDA, ADV. FOR R1
SRI H.N. GULARAQDDI, ADV. FOR R3.
R2 SERVED.)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:08.11.2010 PASSED IN MVC
NO.731/2008 ON THE FILE OF THE ADDITIONAL MACT & FAST
TRACK COURT-I, AT KOPPAL, AWARDING THE COMPENSATION
OF RS.85,000/- WITH INTEREST AT THE RATE OF 8% P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
IN MFA NO.20391 OF 2011
BETWEEN
THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
NO. 40, 1ST FLOOR, SLV TOWER,
PARVATHI NAGAR,
MOKHAN ROAD, BELLARY,
REP. BY ITS DEPUTY MANAGER,
LEGAL CLAIMS, # 28, 5TH FLOOR, CENTENARY
BUILDING, BANGALORE 1
... APPELLANT
(By Sri NAGARAJ C KOLLOORI, ADV.)
AND
1. RENUKA D/O HANUMANTH ILAKAL,
AGE: 18 YEARS, OCC: STUDENT,
REP BY HER FATHER
HANUMANTHA S/O ILAKAL
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O GUDDADA HANUMASAGAR,
NOW R/AT GINIGERA, TQ.& DIST. KOPPAL
2. MALLANAGOUDA S/O AMARESHAPPA
AGE: 25 YEARS, OCC: DRIVER,
R/O HULIHYDER, TQ. GANGAVATHI
DIST. KOPPAL
3
3. DODDANAGOUDA S/O BASANAGOUDA
AGE: MAJOR, OCC: BUSINESS
R/O BIJAKAL, TQ. KUSHTAGI, DIST. KOPPAL
... RESPONDENTS
(By Sri M AMAREGOUDA, ADV. FOR R1
R2 AND R3 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:08.11.2010 PASSED IN MVC
NO.732/2008 ON THE FILE OF THE ADDITIONAL MACT & FAST
TRACK COURT-I, AT KOPPAL, AWARDING THE COMPENSATION
OF RS.85,000/- WITH INTEREST AT THE RATE OF 8% P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
IN MFA NO.20392 OF 2011
BETWEEN
THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
NO. 40, 1ST FLOOR, SLV TOWER, PARVATHI
NAGAR, MOKHAN ROAD, BELLARY,
REP. BY ITS DEPUTY MANAGER
LEGAL CLAIMS, # 28, 5TH FLOOR,
CENTENARY BUILDING, BANGALORE. 1
... APPELLANT
(By Sri NAGARAJ C KOLLOORI, ADV.)
AND
1. SHARANAPPA S/O BASAPPA
AGE: 16 YEARS, OCC: STUDENT,
REP BY FATHER
BASAPPA S/O YALLAPPA BACHAPUR
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O GUDDADA HANUMASAGAR,
NOW R/AT GINIGERA, TQ. & DIST. KOPPAL
2. MALLANAGOUDA S/O AMARESHAPPA
AGE: 25 YEARS, OCC: DRIVER,
R/O HULIHYDER, TQ. GANGAVATHI,
DIST. KOPPAL
3. DODDANAGOUDA S/O BASANAGOUDA
4
AGE: MAJOR, OCC: BUSINESS,
R/O BIJKAL, TQ. KUSHTAGI
DIST. KOPPAL
... RESPONDENTS
(By Sri M AMAREGOUDA, ADV. FOR R1,
H.N. GULARADDI, ADV. FOR R3
R-2 SERVED.)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:08.11.2010 PASSED IN MVC
NO.733/2008 ON THE FILE OF THE ADDITIONAL MACT & FAST
TRACK COURT-I, AT KOPPAL, AWARDING THE COMPENSATION
OF RS.85,000/- WITH INTEREST AT THE RATE OF 8% P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
IN MFA NO.20393 OF 2011
BETWEEN
THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
NO. 40, 1ST FLOOR, SLV TOWER,
PARVATHI NAGAR,
MOKHAN ROAD, BELLARY,
REP. BY ITS DEPUTY MANAGER,
LEGAL CLAIMS, # 28, 5TH FLOOR, CENTENARY
BUILDING, BANGALORE 1.
... APPELLANT
(By Sri. NAGARAJ C KOLLORI, ADV.)
AND
1. SHARANAPPA S/O PARASAPPA SUBEDAR,
AGE: 15 YEARS, OCC: STUDENT,
REP BY HIS MOTHER
SMT. KANKAMMA W/O PARASAPPA SUBEDAR,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O GUDDADA HANUMASAGAR,
NOW R/AT GINIGERA, TQ.& DIST. KOPPAL
2. MALLANAGOUDA S/O AMARESHAPPA
AGE: 25 YEARS, OCC: DRIVER,
R/O HULIHYDER, TQ. GANGAVATHI
DIST. KOPPAL
5
3. DODDANAGOUDA S/O BASANAGOUDA
AGE: MAJOR, OCC: BUSINESS
R/O BIJAKAL, TQ. KUSHTAGI,
DIST. KOPPAL
... RESPONDENTS
(By Sri M AMAREGOUDA, ADV. FOR R1
SRI. H.N. GULARADDI, ADV. FOR R3.
R2 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:08.11.2010 PASSED IN MVC
NO.734/2008 ON THE FILE OF THE ADDITIONAL MACT & FAST
TRACK COURT-I, AT KOPPAL, AWARDING THE COMPENSATION
OF RS.85,000/- WITH INTEREST AT THE RATE OF 8% P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
IN MFA NO.20394 OF 2011
BETWEEN
THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
NO. 40, 1ST FLOOR, SLV TOWER,
PARVATHI NAGAR,
MOKHAN ROAD, BELLARY,
REP. BY ITS DEPUTY MANAGER,
LEGAL CLAIMS, # 28, 5TH FLOOR, CENTENARY
BUILDING, BANGALORE 1
... APPELLANT
(By Sri NAGARAJ C KOLLORI, ADV.)
AND
1. GANGA YAMUNA D/O YELLAPPA
AGE: 15 YEARS, OCC: STUDENT,
REP BY HER MOTHER
SMT. MALLAMMA W/O YELLAPPA
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O GUDDADA HANUMASAGAR,
NOW R/AT GINIGERA, TQ.& DIST. KOPPAL
2. MALLANAGOUDA S/O AMARESHAPPA
AGE: 25 YEARS, OCC: DRIVER,
6
R/O HULIHYDER, TQ. GANGAVATHI
DIST. KOPPAL
3. DODDANAGOUDA S/O BASANAGOUDA
AGE: MAJOR, OCC: BUSINESS
R/O BIJAKAL, TQ. KUSHTAGI,
DIST. KOPPAL
... RESPONDENTS
(By Sri M AMAREGOUDA, ADV. FOR R1
SRI. H.N. GULARADDI, ADV. FOR R3
NOTICE TO R2 DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:08.11.2010 PASSED IN MVC
NO.735/2008 ON THE FILE OF THE ADDITIONAL MACT & FAST
TRACK COURT-I, AT KOPPAL, AWARDING THE COMPENSATION
OF RS.85,000/- WITH INTEREST AT THE RATE OF 8% P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
IN MFA NO.20395 OF 2011
BETWEEN
THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
NO. 40, 1ST FLOOR, SLV TOWER,
PARVATHI NAGAR,
MOKHAN ROAD, BELLARY,
REP. BY ITS DEPUTY MANAGER,
LEGAL CLAIMS, # 28, 5TH FLOOR, CENTENARYBUILDING,
BANGALORE 1
... APPELLANT
(By Sri NAGARAJ C KOLLORI, ADV)
AND
1. VEERESH S/O HANUMAPPA KURAKUNDI,
AGE: 16 YEARS, OCC: STUDENT,
REP BY HIS MOTHER
SMT. MALLAMMA W/O HANUMAPPA KURAKUNDI,
AGE: 40 YEARS, OCC: HOUSEHOLD,
R/O GUDDADA HANUMASAGAR,
NOW R/AT GINIGERA, TQ.& DIST. KOPPAL
7
2. MALLANAGOUDA S/O AMARESHAPPA
AGE: 25 YEARS, OCC: DRIVER,
R/O HULIHYDER, TQ. GANGAVATHI
DIST. KOPPAL
3. DODDANAGOUDA S/O BASANAGOUDA
AGE: MAJOR, OCC: BUSINESS
R/O BIJAKAL, TQ. KUSHTAGI,
DIST. KOPPAL
... RESPONDENTS
(By Sri M AMAREGOUDA, ADV. FOR R1
SRI. H.N. GULARADDI, ADV. FOR R3
NOTICE TO R2 DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:08.11.2010 PASSED IN MVC
NO.736/2008 ON THE FILE OF THE ADDITIONAL MACT & FAST
TRACK COURT-I, AT KOPPAL, AWARDING THE COMPENSATION
OF RS.85,000/- WITH INTEREST AT THE RATE OF 8% P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
IN MFA NO.20396 OF 2011
BETWEEN
THE MANAGER
RELIANCE GENERAL INSURANCE CO. LTD.,
NO. 40, 1ST FLOOR, SLV TOWER,
PARVATHI NAGAR,
MOKHAN ROAD, BELLARY,
REP. BY ITS DEPUTY MANAGER,
LEGAL CLAIMS, # 28, 5TH FLOOR, CENTENARY
BUILDING, BANGALORE 1
... APPELLANT
(By Sri NAGARAJ C KOLLORI, ADV.)
AND
1. BHIMAPPA S/O BALAPPA
AGE: 16 YEARS, OCC: STUDENT,
REP BY HIS MOTHER
SMT. LAXMAMMA W/O BALAPPA BHIMAPPANAVAR
8
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O GUDDADA HANUMASAGAR,
NOW R/AT GINIGERA, TQ.& DIST. KOPPAL
2. MALLANAGOUDA S/O AMARESHAPPA
AGE: 25 YEARS, OCC: DRIVER,
R/O HULIHYDER, TQ. GANGAVATHI
DIST. KOPPAL
3. DODDANAGOUDA S/O BASANAGOUDA
AGE: MAJOR, OCC: BUSINESS
R/O BIJAKAL, TQ. KUSHTAGI,
DIST. KOPPAL
... RESPONDENTS
(By Sri M AMAREGOUDA, ADV. FOR R1
RESPONDENTS 1 AND 3 ARE SERVED.)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:08.11.2010 PASSED IN MVC
NO.737/2008 ON THE FILE OF THE ADDITIONAL MACT & FAST
TRACK COURT-I, AT KOPPAL, AWARDING THE COMPENSATION
OF RS.85,000/- WITH INTEREST AT THE RATE OF 8% P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
These appeals have been preferred by the appellant- insurer challenging the judgment and award dated 8th November 2010 passed by the Additional MACT and Fast Track Court-I, Koppal, in MVC Nos.731 to 737 of 2008.
2. Brief facts as averred in the petitions are that on 2.08.2008 at about 8.00 a.m., when the petitioners were 9 going by the side of the road on Lingadalli- Guddadahanumansagar road, at that time a Tata Ace bearing registration No.KA-37/6877 driven by its driver came rashly and negligently and dashed to the petitioners. As a result of the same, the petitioners who were walking on the road, sustained grievous injuries. Immediately they were taken to the Government Hospital, Tavaragera. After receiving first aid, they were shifted to Government Hospital, Gangavathi. For having sustained the injuries and having incurred expenses, claim petitions were filed before the MACT, Koppal, under Section 166 of the Motor Vehicles Act, 1988.
In pursuance of the notice, respondent No.2-owner of the vehicle appeared and filed his written statement. By denying the contents of the petitions, he further contended that the driver was not rash and negligent at the time of the alleged accident and the said vehicle has been insured with respondent No.3 and the driver was holding a valid and effective driving licence as on the date of the accident and if at all any liability is there, it is the 3rd respondent who has to 10 pay the compensation. On these grounds, he prayed for dismissal of the petitions.
Respondent No.3 filed written statement. By denying the contents of the petitions, he further contended that the vehicle in question is a goods vehicle and the petitioners were occupants of the said vehicle as fare paid passengers in the goods vehicle and as such, they are not entitled to any compensation. It was further contended that the driver of the offending vehicle was not holding a valid and effective driving licence, as such, the insurer is not liable to pay any compensation. On these grounds, he prayed for dismissal of the petitions.
Respondent No.1 did not appear and was placed exparte.
On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether the claimants prove that they suffered the grievous injuries in the accident referred to in the petitions?11
2. Whether the accident occurred due to rash and negligent driving the vehicle No.KA-37/6877 by the first respondent?
3. Whether the claimants prove the income as pleaded?
4. Whether the claimants prove the pecuniary and non- pecuniary damages claimed?
5. Whether the claimants are entitled compensation amount claimed from the respondents?
After hearing the parties to the lis, the impugned judgment and award came to be passed whereunder compensation of Rs.85,000/- with interest at 8% per annum is awarded in all the cases.
Assailing the same, the appellant-insurer is before this Court.
3. The main grounds urged by the learned counsel appearing for the appellant are that the driver of the Tata Ace goods carrying vehicle was not holding a valid and effective driving licence. Hence, the Tribunal ought not to have fixed the entire liability on the appellant-insurer. He further contended that the Tribunal ought to have fixed the liability on the respondent-owner of the vehicle. He further contended that the petitioners were traveling in the goods 12 vehicle as a gratuitous passengers and the said vehicle was carrying more than the capacity and actually, the insurer is liable only to the extent of 4 passengers. But the Tribunal has fastened the liability in respect of other passengers who were also traveling in the said vehicle. He further contended that the records of crime including the complaint clearly indicate the fact that the said passengers were traveling in the goods vehicle as a fare paid passengers and as such the Tribunal ought not to have fixed the liability on the appellant-insurer. He further contended that the compensation awarded to an extent of Rs.85,000/- in all the cases is on the higher side and without discussing the injuries, disability and other aspects, the Tribunal has awarded the compensation which is not sustainable in law. On these grounds, he prayed for allowing the appeals by setting aside the impugned judgment and award.
4. Per contra, learned counsel appearing on behalf of the respondents-claimants vehemently argued and justified the impugned judgment and award. He further contended that the injuries suffered by the claimants are 13 serious in nature and as per Ex.P-3, the further statement of the complainant indicates that the said vehicle ran over the petitioners who were proceeding by the side of the road. He further contended that the insurance company has not discharged its liability and as such the Tribunal has rightly fixed the liability on the appellant-insurer and there are no justifiable grounds to interfere with the judgment and award of the Tribunal and the same deserves to be confirmed. On these grounds, he prayed for dismissal of the appeals.
5. The accident is not in dispute so also involvement of the offending vehicle insured with the respondent insurance company.
6. The first contention which has been raised by the learned counsel for the appellant is that the driver of the vehicle in question was not holding a valid and effective driving licence to drive the type of vehicle which had been involved in the accident.
7. As could be seen from the judgment and award passed by the Tribunal it indicates that the driver of the 14 offending vehicle was having a valid and effective driving licence to drive LMV(non-transport) as per Ex.P-8 and Ex.R-2. But he was not having an endorsement to drive the transport vehicle and as such, the insurer contended that the liability fixed on him is not sustainable in law. The Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Ltd and others reported in AIR 2017 SC 3668 has held that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act.. The observation which has been made at paragraphs 45 and 46 of the said judgment reads as under:
"45. Transport vehicle has been defined in section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Public service vehicle has been defined in section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motor cab, contract carriage, and stage 15 carriage. Goods carriage which is also a transport vehicle is defined in section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and the Amendment Act 54/1994.
46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the 16 vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of 'light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act 'Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and 17 holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."
By going through the aforesaid judgment, it is very clear that if a person has been given a licence for a particular 18 type of vehicle, he cannot be said to have no licence for driving another type of vehicle which is of a same category but of a different type.
8. As could be seen from Ex.P-8-copy of driving licence, the driver of the vehicle in question was having a driving licence of LMV(non-transport) valid from 06.09.2006 to 05.09.2026. But he was not having driving licnece to drive a transport vehicle. In view of the decision quoted supra the said contention of the learned counsel for the appellant is not sustainable in law and as such the same is rejected.
9. The second contention of the learned counsel for the appellant is that the claimants-were traveling in the Tata Ace vehicle as a gratuitous passengers and they are fare paid passengers and as such the insurer is not liable to pay any compensation. In order to substantiate the said fact, he referred to Ex.P-1-copy of FIR and Ex.P-2 copy of the complaint. Though in the complaint Ex.P-2 it has been mentioned that the petitioners were traveling in the vehicle involved in the accident but the further statement of the 19 complainant which has been produced at Ex.P-3 indicates that when the said vehicle came near the place of the accident, it ran over the persons who were walking by the side of the road. Under such circumstances, the contention taken up by the learned counsel for the appellant does not appear to be acceptable in law.
10. Now it is well settled principle of law that if the insurer takes a ground denying the claim, then under such circumstances heavy burden lies upon the insurer to establish the same by substantial evidence. Admittedly, in this case, the insurer has not examined any of the police officers or any other person who are connected to the complaint or further statement as per Ex.P-3. In the absence of the any proof, the said contention is not going to aid the appellant. This proposition of law has also been laid down in the case of Lakhmi Chand v. Reliance General Insurance reported in (2016) 3 Supreme Court Cases 100.
11. Keeping in view the above said facts and circumstances, the second contention of the learned counsel 20 for the appellant does not appear to be sustainable in law and the same is rejected.
12. Insofar as the 3rd contention of the learned counsel is concerned though the claimants have not established the fact that they have sustained fracture and disability and that having not produced any documentary evidence to show that they have incurred medical expenses, to an extent of Rs.5,000/- under the said head has been awarded by the Tribunal and Rs.10,000/- is awarded towards loss of study.
13. As could be seen from the impugned judgment and award, the Tribunal has awarded an amount of Rs.40,000/- towards pain and suffering, Rs.25,000/- towards amenities, Rs.10,000/- towards loss of study, Rs.5,000/- towards medical expenses and Rs.5,000/- towards miscellaneous expenses.
14. By going through the impugned judgment and award, the Tribunal at paragraph 12, it has been observed that the petitioners have sustained the fracture and the 21 Tribunal considering the pain and suffering the petitioners might have undergone, has awarded an amount of Rs.40,000/- pain and suffering and insofar as the other compensation is concerned, the Tribunal has awarded without there being any material to substantiate the said fact. Even the respondents/claimants have not examined the doctor to show that for how many days they were inpatient and even they have not produced any discharge card and other materials. In the absence of such records, the compensation awarded on other heads is on the higher side. In that light, I feel that, if the compensation awarded by the Tribunal is reassessed in all the cases as mentioned below, it would meet the ends of justice.
Towards pain and suffering Rs.30,000/-, Loss of amentias Rs.25,000 and Medical expenses, attendant charges, diet and nourishment etc, together Rs.10,000/-. In all, all the petitioners are entitled to a total compensation of Rs.65,000/- with interest at 6% per annum from the date of petition till the date of realization.
Keeping in view the above said facts and
circumstances, the appeals are partly allowed. The
22
judgment and award dated 8th November 2010 passed by the Additional MACT and Fast Track Court-I, Koppal, in MVC Nos.731 to 737 of 2008 stands modified as indicated above by fastening the liability on the appellant-insurer and the appellant insurer is directed to deposit the compensation awarded by this Court as modified with up to date interest within a period of six weeks from the date of receipt of a certified copy of this judgment.
Registry is directed to draw the award accordingly. Amount in deposit is ordered to be transmitted to the jurisdictional Tribunal and the Tribunal is directed to disburse the same to the claimants in accordance with the directions passed by it.
Sd/-
JUDGE Kmv