Karnataka High Court
Smt. Kempamma, vs Ramesh on 8 October, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.NO.7723/2011 (MV)
BETWEEN:
Smt.Kempamma
@ Chikkatayamma
W/o Honnaiah
Aged about 57 years,
R/a: No.410, 13th Cross,
7th Main, Kaveri Nagar,
BSK 2nd Stage,
Bangalore - 560 037. ..APPELLANT
(BY SRI.K.T.GURUDEVA PRASAD, ADVOCATE)
AND:
1. Ramesh
S/o Doddaiah
Major,
R/o No.42,
Mankunda,
Malur Hobli,
Channapatna Taluk,
Ramanagar District.
2. The Manager
IFFCO TOKIO GIC Ltd.,
2
Strategic Business Unit,
No.41, 2nd Floor,
Cristu Complex,
Lavelle Road,
Bangalore -560 001. ..RESPONDENTS
(BY SRI.O.MAHESH, ADVOCATE FOR R-2, R-1 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:09.11.2010 PASSED IN
MVC NO.8069/2009 ON THE FILE OF III ADDITIONAL
SENIOR CIVIL JUDGE, AND MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a claimant's appeal questioning the correctness and legality of the Judgment and award passed by MACT, Bangalore in MVC 8069/2009 dated 09.11.2010 whereunder the insurer has been absolved of its liability to indemnify the claim and owner of the offending vehicle has been directed to pay the compensation amount. Incidentally appellant- claimant is also seeking for enhancement of compensation. 3
2. I have heard the arguments of learned advocates appearing for the parties namely Sri.K.T.Gurudeva Prasad, appearing for appellant-claimant and Sri.O.Mahesh, appearing for second respondent-insurer. Respondent No.1 is served and unrepresented.
3. It is the contention of Sri.K.T.Gurudeva Prasad, learned counsel appearing for the claimant that tribunal committed an error in absolving the insurer of indemnifying the claim on the ground that there is violation of permit condition and he would contend that when policy issued to the offending vehicle would cover the risk of passengers like that of the claimant who is a third party insurer cannot be absolved of its liability merely on the ground that there is violation of permit condition and the words used in section 149(2)(a)(i)(c) would indicate that `if there is any violation of permit condition or offending vehicle being used contrary to permit' then only the said defence is available to the insurer. He would elaborate his submission by contending that clause 4
(c) has to be understood to the use of vehicle and it is in this context the word "Permit" has to be read and not otherwise. He would also contend that compensation awarded by tribunal is abysmally on the lower side and hence he seeks for enhancement. In support of his submission he has relied upon the following judgments:
1. 2004 ACJ 2094 - National Insurance Co. Ltd., Vs Challa Bharathamma and others
2. ILR 1991 KAR 4127 - K.V.Thimmegowda Vs Kamalamma
3. 2006 ACJ 126 - New India Assurance Co. Ltd., Vs Papaiah and others
4. Civil Appeal Nos.8221-8225/2002 - Kamala Mangalal Vayani and others Vs M/s.United India Insurance Co. Ltd., and others
5. ILR 2000 KAR 1302 - United India Insurance Co.
Ltd., and others Vs Chandamma and others
4. Per contra, Sri.O.Mahesh, learned counsel appearing for insurer would support the Judgment and award in question and would contend that clause (c) of sub-section (2) of section 149(2)(a)(i) is a defence available to the insurer 5 for violation of permit condition and in the instant case insurer through its witness has produced the permit issued to the offending vehicle and got it marked as Exhibit R-3 which would clearly indicate that vehicle in question was plying beyond the territorial jurisdiction of Channapatna Taluk and FIR, Charge sheet, registered against the driver of offending vehicle would also indicate that said vehicle was plying in Malavalli Taluk and as such there being violation of permit condition tribunal has rightly negatived the contention of claimant and absolved the liability of insurer which does not call for any interference. He would also supplement his argument by contending even otherwise compensation awarded by tribunal is just and reasonable compensation. In support of his submission he has relied upon the following Judgments:
1. 2004 ACJ 2094 - National Insurance Co. Ltd., Vs Challa Bharathamma and others
2. MFA 9582/2007 - B.T.Venkatesh Vs Jagadeesh Kumar and others - disposed of on 24.08.2012 6
3. MFA 8742/2008 - Oriental Insurance Co. Ltd., Vs K.C.Papanna and anr - disposed of on 09.10.2012
4. MFA 226/2010 - M/s.IFFCO TOKIO General Insurance Co. Ltd., Vs Gadarappa and anr - disposed of on 23.11.2010
5. Having heard the learned advocates appearing for the parties and on perusal of the Judgment and award in question and also records secured from the tribunal it would indicate that on 02.11.2009 at about 2 P.M claimant was proceeding in a autorickshaw bearing No.KA-42-4634 as a passenger and while the autorickshaw was proceeding near Basavanabetta, Halagur Hobli, Malavalli Taluk it got turtled on account of rash and negligent driving of autorickshaw driver resulting in claimant falling down from the offending vehicle and sustaining injuries. Hence, she was administered first aid treatment at Government Hospital, Halagur and later on shifted to St.John's Hospital, Bangalore where she was treated as an inpatient for five days. Hence, a claim petition was filed seeking compensation of `2,00,000/-.7
6. Tribunal on appreciation of evidence allowed the claim petition in part and awarded a total compensation of `1,07,900/- under the following heads:
DESCRIPTION AMOUNT
Pain, injuries and sufferings ` 20,000=00
Medical expenses ` 23,100=00
Loss of future earnings ` 19,800=00
Loss of amenities ` 10,000=00
Loss of income during laid up period ` 10,000=00
Attendant, diet and conveyance ` 10,000=00
Future medical expenses ` 15,000=00
TOTAL `1,07,900=00
Tribunal has absolved the insurer of indemnifying the claim on the ground that there was violation of permit condition and has directed the owner to indemnify the claim.
7. Fact that the accident in question occurred at Malavalli Taluk is not in dispute. It is also not in dispute that 8 said offending vehicle was issued with policy by appellant-
insurer as per Exhibit-R-1. Though a plea was raised that driver did not possess a valid driving licence and negatived by tribunal and this court is not embarking upon enquiry to find out as to whether said finding is erroneous or otherwise since such plea is not raised by insurer. In the instant case permit issued to offending vehicle was produced and marked as Exhibit -R-3 before tribunal. Perusal of same would indicate that said permit issued to the offending vehicle had to be plied within the jurisdiction of Channapatna Taluk. As already discussed herein above the vehicle in question was plying beyond the jurisdiction of Channapatna Taluk. In other words it was plying at Malavalli Taluk. As to whether violation of permit condition would be a defence available to the insurer or not, is no more res integra as held in the case of National Insurance Co. Ltd., Vs Challa Bharathamma and others reported in 2004 ACJ 2094 whereunder similar factual matrix was present and their Lordships having adjudicated such a claim has answered as under:
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"11. As was observed in the said case the statutory defences which are available to the insurer to contest the claim are confined to those provided in sub- section (2) of section 149.
12. High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis-à-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable".
8. In view of the Judgment of Apex Court referred to herein above it cannot be said that the words used in clause
(c) of 149(2)(a)(i) has to be read in the context of `use of 10 vehicle' and not relating to violation of permit condition. Violation of permit condition is a defence available to the insurer. Infact Division Bench of this court in unreported Judgment in the case of B.T.Venkatesh Vs Jagadeesh Kumar and others in MFA No.9582/2007 disposed of on 24.08.2012 has held as follows:
"6. So far as fastening the liability on insurance company is concerned, the findings of the Tribunal is clear that, there is violation of the policy conditions by the owner and driver of the offending autorickshaw which is insured with the 3rd respondent-insurance company. In the light of the policy conditions being violated, the question of fastening the liability on the insurance company to indemnify the liability of paying compensation does not arise for consideration. Accordingly, the findings of the Tribunal in restricting the liability to pay the compensation on the owner of the offending autorickshaw appears to be just and proper and same does not call for any interference in this appeal. Accordingly, the appeal filed by the claimant fails on both the grounds and it is dismissed without any order as to costs".11
9. So also Co-ordinate Bench of this court in MFA 8742/2008 disposed of on 09.10.2012 and MFA 226/2010 disposed of on 23.11.2010 has applied the principles laid down by Apex Court and accepted the plea put forward by insurer, namely it is entitled to contend violation of permit condition as a ground to stave of its liability. In that view of the matter, I am not inclined to accept the submission made by Sri.K.T.Gurudeva Prasad, learned counsel appearing for claimant and it stands rejected.
10. Tribunal on appreciation of evidence tendered by the insurer has found as per Exhibit-R-3 the permit condition stipulating that offending vehicle ought to have plied within the jurisdiction of Channapatna Taluk and at the time of accident it was plying at Malavalli Taluk. Hence, there was violation of permit condition. In that view of the matter tribunal was fully justified in absolving the insurer of its liability and there is no error much less material irregularity 12 committed by tribunal calling for interference at the hands of this court.
11. Insofar as quantum of compensation is concerned tribunal has taken into consideration entire evidence available on record namely medical evidence tendered by claimant and has awarded just and reasonable compensation which does not call for any interference.
For the reasons aforestated, following order is passed:
ORDER
1. Appeal is hereby dismissed.
2. Judgment and award passed by MACT, Bangalore in MVC 8069/2009 dated 09.11.2010 is hereby affirmed.
3. No order as to costs.
Sd/-
JUDGE SBN