Karnataka High Court
Lokesh S/O Thimmaiah vs A P Devi D/O A Ponnaswamy on 21 April, 2011
Equivalent citations: (2012) 3 ACC 444, 2011 AAC 2812 (KAR), (2011) 108 ALLINDCAS 634 (KAR), 2011 (3) AIR KANT HCR 549, (2012) 1 CIVLJ 41, (2011) 5 KANT LJ 643, (2012) 2 TAC 76, (2013) 2 ACJ 826
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF K. res DATED THIS THE 215T DAY OF APRIL OLE. os BEPORE THE HON'BLE MR. J USTICE. ARAVIND KUMAR M. FF. A. NO. 27 ¢ QF 2007 BETWEEN : LOKESH, S/O THIMMAIAH, AGED ABOUT 19-YEARS- ARASINAGARA BEEDI., CHICKPET, : TUMKUR, APPELLANT (By Mrs. Brnashani. Kumar, Adv. ANT : , ONNASWAMY, AGED SE YEARS, 25 B, ASePE TEAL, NAMAKAL DISTRIC Ty, --CTAMIBNAD = fOWNE . 2 THE UNITED INDIA ISURANCE CO.. LTD. NOUZ, DR.SANKARAM ROAD, AM JAVISAL. T oe Y ADU, "NO O40¢ 42% PALALD UPTO 6398, RESPONDENTS
E BSS RNAS CSS SESS ELT ESS SUS LUZSSL LS SUS Bia CSU ENS) oe as sa (By Sri. R. Rajagopalan. Adv. for R-2 3 served) This MPA is filed U/S 17301} of MV Act. Judgement and award dated 27.9. 2006 pa No.29/1998 on the file of the A 4 lowine. the ok: ith, Set tier Addl. MACT, Tumkur, partly al 2 for compensation and seeking | onbanice compensation. | ; -
THIS appeal ae beer. heard and -reseived for judgment on 21-38-2011 e oming oiler pronouncement of J By :
judgment, this day the C. ourt 'del iv € réd the folowing:
» JUDGMENT appeal questioning the correctnicss and ik wjudgment and award passed by Civil Judge (Sr.Dnd 'and MACT, Tumkur in MVC . No. 29/ As 27-2006 whereunder claim petition " Came to be allowed in part by awarding a compensation OP R.4.29,866/ with interest at 6% per annuni from the date or petition till date of payment and insurer has been Tat sn apsoived of its Hability and fastening liability "respondent /owner. ae EE A OS eR reo YW?
2. A claim petition under Section 166 of Vehicles Act, 1988 was filed by the appellant. seeki compensation of Rs.5,00,G00/- with interest, at. annum contending that on 16-11-1997 at about:6.20. pam. when he was travelling in a geods veriicle bearing NOTN25 2566 as loader/unioader.. along with m account of said lorry being driven ina rash 2 nd. if neg) igerit manner and as such if was. confencdec. tie u miimant sustained crush injury to his. lett leg amongst ather injuries sustained ne consequ anti a suffered disability
3. ist Respondent did not appear and contest the and. was placed ex-parte. Respondent Narmely. insurer: alone filed written statement and averme nts made in the claim petilion was denied. It was a2 anh luring the course of his em ployment accident in que stion occurred. It was contended that claimant was ee je e eS B s 2 pave a minor and was Aveo beh 17 years only and as such he was ee ma prohibited to be employed under Section S of t We Chikd Labour Act and provisions of Child Labour ASRS. attracted. Hf was also contended #har ther AW: aS: V 'olation. of the terms of the policy and on these sought for dismissal of claimpétition.- pleadings of parties trtt yanal framed fou lowing fasues. 4 :
(l} Whether the claime mio proves that on iG.L 17 at.6.30 pan, 'aesr Kora Vill age on avelling in lorry bearing NHe4 when he was No. TNOS 25686 as loader and urilloader of said aecident chie to rash
2. a es gape dene fds é t of said lorry by its s ; '*. A 2 : + ' ae oe ee Ph arakyy fhe gs PePeG soe t ete epee eg oe eee LAS EYAL 4 VE ERT E RSF ¥ LA EA BPR Rese Ab RodLEZALREE EEL sustained ir = 2p "WH ether the claimant is entitled for
- compensation? If so, from whom?
4. Tribunal after considering the pleadings of the "partiés and also evidence on record allowed the claim petition in part and awarded compensation of ry rest poo pend 9 Ks.4,29, 8606/- w terest at 6% per annum payable dismissing the claim petition against © Mmsurarice™ ' Company. ft is this judgment -and. aw: are, which is.
£ e . bined 7 -
questioned in the present appeal seek ing for enhancement and fo fix lability on, the', Insurance company.
5. Heard Smt. Shushani Kumar. learned counsel appearing .for® .the -. appellant/claimant and pearing for the Sri. Rajagop elas ie armed cequns: 34
rod is served and unrepresented. t. Rhushani Kumar that poet
6. It is the canterition of Sm tribunal was not justified in holding that second anGent insurer is riot iiable to pay compensation since. there. was valid insurance policy issued by the Second respondent to the offending vehicle and same
-Was-in force and vogue as on the date of the accident.
"She would further contend that petitioner was travelling % by first respondent owner anc absolved tne insurer. by eae us Nua ceciaein eens ee ee a ee Cee Be a ce as a loader/unloader in the offending vehicle and insurer having collected premium for employees there would be ys gatishy & Alternatively she would also draw the attention. of the. Court to the Policy issued to the. offending. vehicle which has been produced by the leariied counsel forthe second respondent on 12.11.2010 to a premium of indemnify the insured. "She would also contend that compensation. awarded under various heads is 'abysmaliy low and tribunal erred in awarding a very low "compensation. and seeks for enhancement of the compensation under all heads. a ee legal Habillty on the insurer to indemnify the insured. anc:
the amount awarded-~by the "Tribunal. PLES Ny EPO ee Se nes
7. in upon fi) "8061 ~& 8062/2007. Master the lolowing Unreported Judgment dated support of her uission she has 'relied 'judgments:
ILE 2007 Kar 3885.
Branch Manager, M/s United Indie Insurance Co., Ltd., Vs. Kalavathi and others.
Unreported. dated passed in MFA 969/2054 (MV) DB Judgment Govindamma., Venkat Rao and another. . | , Z-4- 2071 passed: in MPA 8060/2007 CA Arun , Kumar Vs. B.AIsmail and others. BS Perce onira Sri.R. Rajagopalan, learned counsel "OPEC?
appearing. fer 1h an award, ch ability of the Inst mate ria) was We passed by the tribunal and gratuitous placec insurer would support the judgment 2 contends that passenger and hence the rance Company does not arise and to demonstrate that ee was working as a loader and as such the claimant has been held to be a paid passenger and as such ne liability can be fixed on the Insurance Company. o, the attention of the Court to IMT 1S to contend: that. additional premium collected in the instant.case. would. cover such of those persons as 'envisaged under Clause
(i) OF IMT 13 and claimant in the.
mstant casé would not come under any of the categcries enutnerated in (a) to {¢} of Clause Hi) eb IMT 1S and tribunal was justified "in. ahsokuing the insurer trom oni payment of -award> ameunt... He would elaborate his submission by cormention the policy in question issued to the oending vehicie does not cover the claimant even 'Hohe-is construed to be a non-fare paid passenger since premium is collected to cover those persons as :
enumerated in clause-130i) and mone else and as such . iasurance Company cannot be fastened with liability. & AS TERS Shure SEs oe Le or fy ages
9. Having heard the learned advocates appearing seed pny t Faget aed + the parties following points arise for. "ory consideration:
) Whether the judgment and aware! of the: payment oF. compensanion iS. in accordance with the provisions of the MLVAGt, contract of Insurance Policy lations? *.
(ij: Whether the claimant is entitled for of the compensation and
-ennencenu 3, fe what extent?
i) "Po whatvarder?
iG. Phe decident in question, issuance of policy to . the offending vehicle and same being in force/vogue as on. (he. date. of accident is not in dispute. Herice, these facts are'not-delved upon in this a ppeal. » DL. Claimant sought for compensation by filing a claim petition under Section 166 of M.V. Act, 1988 epee £ 'ca! contending that he was travelling in the offending vehicle on the date of accident as a loader/unioader. Except-the sell serving testimony of claimant no other material has"
I poet os tae x= the vehi neither appeared nor. contested the claim eh woo petition. He was not examined.by the clahmant a WILNeESS. ig venicle was also mot u Ds jee om pond Se nos in pn oe wn soot "on, eet ite! jen team erat te ey helet ead je pole om, Neegar a su poh i vent a.
ether hand WIStirer las comtended that. Claimant. was net' working as a the | an fend ing vehicle on date of the loader;
accident iIn-ine ter nd aitig lo in its statement of Le fis defence insurer exarmined objections . To substanti¢ its olfieer as R.W.2-and it has been brought on record by the insurer ° that claimg unt was a minor as on the date of Ue aceident: The letter issued by the Arvan High SchooF Association, G8). B.H.Road. Tumkur, dated 20-77-2006 o€ame fo.be produced and marked as Ex.R.i which
-. Gepicts that claimant was studying during the academic 11.1997) in the said school in VHI Standard. Even in the claim petition at columiy No.3 the age of the injured has been snow Vas 17 vears as also in column No.2¢ However, BOISE claim petition as well as in eVicence it as beer. specifically stated by claimant t that he was working as a loader/unloader in the offending lorrye.. | - material whatsoever has been producca to. cstaplish this fact. Hi was also noticed by the. Tribunal frofa the evidence of P.W.1 itself that. claimant and 'his J father had gone to their native plave te. bring: Pagi fand s hile so returning they nad boarded "ihe % fending vehicle. The Tribunal having moticed: these e diserepancies held that claimant was trav ellir as a-paid passeng ie oo ER, ae 60 far as the Hability of the Insurance Com aN 7 c OT] eermed tribunal held that claimant was a L paid passenger and applied the law laid down by Hon'ble ie o> oe fae ~Suprem e Court in Asha Rani's case reported iz oo ACI i and held that Insurance Com pany is not Hable to a a a BOGGLES GR NISC LEDS pay compensation to the claimant and hence petitio a against Msurance Compariy came to be dismissed. iG. The accident in question took plac IS-T1-1997 ie. alter coming inte coperation. of. i Amendment Act of the Act of 1988. inst aranice "Company would be Hable to pay compernsatioi: for injuries sustained by the owner of the: godds.or his authorised representative travelling ir Company to pay e of the insured who is eric: Age CaS & driver, ' cork schuct tor or an employee carried in a goods carriage to the. extent of Hability payable under _ the Workmen's Compensation Act, 1923. Under the Act and nen Sratuitous Passenger are not cove l4--In the instant case it is the contention of the that an additional premium of Rs.50/- has "peer collected to cover "legal liability to non-fare paying & L % ae passengers' as per IMT No 13" and as such it is a contract entered into between the Insurance Company and the insurer to cover those persons who do i0t 4 under the Act Habpility and hence Insurance Conipany. PA ee i5. In order to examine this coritention, it would be necessary to extract Se O, 145 and 147(5) of IMV Act anc IMP 13...
"Section 140; Liability te pay compensation in certain coses on the principle of no fault:(1). Where death or permanent disablement of any person has-been, resulted from an accident arising be the owners of the vehicles shall, jointly ane severally, be liable to pay compensation in respect death or diablement in accordance with the " provis ions of this section. _ (2) OOOO Cipeeaee Cipeeaes [5] XXX i alb SUH neu BS CRE proviso XXXXXXx Section 145. Definitions: In this chapter:
fa) "authorised insurer" means XXRXMANX - ;
(b) "certificate of Insurance" means XNXNKN
(c) "Liability" wherever used.inr relation to the death.
Gof or bedily injury liability in respect thereof under Sechon 140.
(d) ANN KRXNRXNN EN | io AXNAXERKAAKENN () XXXXSxREKKES | (8) XXNMNXXMRMRXMR™ Section 147: Requirement of policies and limits of. lability: (iy in order" io comply with the ree irements, 3 Of this Chapter, a policy of insurance must be a 'policy y Which.
(2) 2x PRAKK wan leg _ 3) AXKMAMANANNNAXE Te " a) XX, XXKK CXXXXNAMAX
5) Notwithstanding anything contained in any law a hetime being in force, an insurer iSSuINg a policy of Insurance under this Section shall be Hable to indemnify the person or classes of
- persons specified in the policy in respect of any £ a "es liability which the policy purports to cover in ine case of that person or those classes of persons"
(Emphasis supplied by m re) | IMT 13: Legal Liability to Nou- fure paying passengers other than - 'Statutory ta ability. except the Fatal Accidents Act, . "ass (Commercial Vehicles only) a | In consideration 'of the "payrient _ of an additional pr emium of RS .dind notwithstanding anything to the CO vary, contained im Section [1-1fb} and (¢) it is hereby un der: stood arc 3 i Agreed that the company will inderhniify "the insured agaisnt his / "other u ae 2 Hablibby vinider the Statute jexcem the Patal aceid: erits Act 1855) in respect of death of or -bedily i u Lary ior "of the within named insured who is 'Rot a-workman within the meaning of the
- 'worker 1€ ns 'compensation Act prior to the date of $ we tinis endorsement and mot being carried for hire or an ret: ae a.
[hy Any other person not being carried for hire or ré ward provided thal the person is PE
(a) The owner or representative of the owner of the goods Fs CURSOR ERIN SER USS STE "
(b) Charterer or representative of . _the charterer of the truck.
fe} Any other person directly connec the journey in one form or other. Being carried in or upon or enileriig or mounting. Subject otherwise fo the terms exceptions conditions and limitation of his Poliey.""
16. The contract-of Insurance policy is issued to meet the requirerient.of Chanter X and XI of the Motor e Hamllty as defined under clause {c} of Vehicles Acts. Tn section 145 inchides, liability in respect of payment of compensation as required: to be paid under Section 140, _ Thus, legal Vabiity would mean and include liability : Motor Vehicles Act. Section 147 stipulates the requisements 'of the policy and limits of liability there "under. Under sub-section (5) of Section 147 which is a "hon-obstante Clause provides for a contract being ao venfered into between the Insurance Company and the tedowith"
vehicle described. in.
SS US ERS rrr RS insurer to cover the risk of such of those persons who do not fall under Section 147 of the Act and in "sich circumstances those persons specified in the policy to be covered thereunder, an additional premium would he. collected and only enfitled to make a claim against Insurance Company arising out of the injuries sustairied by them and in such indemnity the insurer. ly enis- background it would be mine the Insurance policy in question bfo the obending vehicle. The breakirp of the premim collected by the Insurer while issiung the f contract of Insurance Polic ~ fo fhe offending vehicle is as ives voce leat wh Fauads om such of these persons. would. be is Ms SEC SET RSS SS Se
a) B.LIABILITY TO PUBLIC KISK Less: 20% if the vehicle is used for Rev 245-00 MN carriage of own goods. ; oe Add: for LE to non-fare -paying 0.) 00. jassengers as per IMT No.13. 0 Rs. 50-00. Add: for LL to non-lare paying passengers as per [Mv No. 1s ; Add: For LL to persons employed in'. . connection with the operation and/or. Rs.) (35-00 wading /unioading of Motor vehicl ic IMT Add: For ine reased tnir amagse Sec! PA t o paid di ae Rs.75-00 Rs.90-00 FotarB "Rs. 1595-00 Total A+B YWodt No.6.2 drivers & 1 Rs.5167-00 Cleaner, i Be Each Rs:
PA Bere efits . Itisvan Act policy.issued under Section 147 of the Motor Metates (A . Under the said contract of Insurance ali cy y C 'omipany has collected an additional premium of f ;
. Rs. 56/--.to cover a legal liability for non-lare paying "passenger as IMT No.13. Tribunal has held that claimant was travelling as a paid passenger. Thus. the question eee vit SER Ss SSB Eres one that would arise in the instant case would be whether Claimant was a fare paid passe nger or not and sven AP Hot would non-fare paving passenger woul 1 be entitl ied . to Claim compensation from the TISGTANCE » Compe Any OF ] the policy in question would fasten the: Habit lity om. has taken a pried my specific contention "that" he WAS. OW vorkin WAS ioacer /un ile: ader: in the offending vehicle. As observed herein above claimant. had taken 'this specific conterition in the' claim petition as "well as W1 His evidence. To demonstrat ve that "he. was nol a working as a 7 load ert ub log AC lee the Insurance Company has produced a the school "certificate of claimant as per Ex.R.1. The tibial or-appreciation of the pleadings and evidence on record has come to a conclusion that claimant had not proved that at the time of the accident he was ~~ working as a loader. In fact the driver of the lorry has not an a, Py ht been examined. This would also go to show. that conclusion arrived at by the Tribunal that claimant was not working as a loader/unioader in the offending-lorry deserves fo ft 'mae fs statement made before the police as per £ x R2 2 which.
nas been extracted by the Tribunal in paragreph' 20 of the judgment and awerd it has "come to ave one 'tusion that the claimant was. travelling as a paid passenger. Claimant was. ot: confronted with i his statement in his cross-exaniination by respondent. Author of Exhibit R.2 is not éxan nined. Even otherwise | Insurer Nas not raised such a plea in, the written Statement, KW.1 has not stated. to the said. effect in his evidence. Thus. it cannot "he hh eld' that claimant was a paid-passenger.
18. Even if claimant is to be construed as a non . fare paid. passenger further question that would arise is whether it would cover the legal liability of the insurer Since an additional premium of Rs.50/- has been jen -
accepted. -- However. based Son the gS a ye PepH eseniative of the owner of the goods as conten nplated within its sweep all or any of these classes of persons or claimant would be entitled to claim compensa iow 'from iver tg front urance Company dehors those classes e¢ "UH erated in IMT 13. Adn uttedly in the af lant case" ¢ laimant contends that he was travelling as 8 abourer and if iS. € riot the case of claimant tha:
a foal pe a bam, es Pipes | Nett fate] _ pat vf aot it ova joo ns, hie bie Wy passenger or a fare pal a appreciation of ev idence Nas highi tly come fo a conclusion that claimant. Was 110% "awstats. Claimant would also does not come ; sander any of she, Categories enumerated b to ig clause No.(if) of IMP 13. Thus, Tribunal was correet in-arriving at a conclusion that sured had paid additional premitim of Rs SO/- te z "the -rvisk ol! non- fare payin ig passengers as per IMT-13. a front the evidence of claimant and also R.W.] it iS Clear. that claimant was neither owner or Clause (a) and he was neither a charterer or representative of charterer of the truck in terms of clause ue
(b) of IMT-13. It cannot also be said claimant was a person directly connected with the journcy in one-form or other in terms of clause (c} of sub-clause (i) of clause.
13 of IMT. The award if any should he in -corsonarice with statutory requirement and 'not. dehors of ib or contrary to contractual Habulity. Heree; liability of Insurance Company cannot be fixed by transgressing the statutory provision or the contractual. Lability. The Courts are mearit. to enforce the rule Af law and not to pass orders or direction which-are contrary to what has been Injuncted by iaw.as held by the Hon'ble Supreme Court in the following Judgivient:. : (201 OLE Supreme Court Cases 159.
- Maharshi 'Dayanand University Vs. Surjeet "Para-Li: it is settled legal proposition that-neither the Court nor any tribunal has the competence to issue a direction cont rary to law and to act in contravention of a Statutory provision. The Court has no "jeepney 2 a competence to issue a direction contrary to'. law nor the Court can direct an authority te, act in contravention of the statutory. provisions."
FEyt : ¢ pus, 20 respondent Insurance © compan y is snot Hable to' indemnify the claim of appellant as righ Uv nelel by the Tribunal. Said conclusion arrived.at.by the-tribunal is based on sound appreciation of racis, evidence and law anid does not call for interference' ib this appeal. Hence, finding of the "tribunal. deserves, to be affirmed and accordin ugly or i"
~ Iran £3 2 penal pasad om, i dase + mi 'aby aff firmec io Ife: Point "No.2: Claimant iis seeking for ent ae "CHIC t of. the compensation contending that ~compensavion "awarded under all the heads are abystmally-on the lower side. It is contended that ir ibunal was" not justified in awarding only a sum of faa and suffering when i Rs.50,000/- towards injury, pain veppellant had suffered amputation of lef foot, compound "fracture of left leg, loss of right Httle toe and fracture of SSUES eae ak had lower end of left tibia. It is also contended that when doctor has assessed the permanent disability "io. the whole body at 60%, tribunal ought not to have awarded © only a sum of Rs.90,000/- towards loss. of amenities in life. [t is contended thai tril bunal ought to Nave taken. the income of the claimant. dileast af s.3,000/- per month. On these grotimds leari ed coun sel for appellant seeks for enhancement of comitieneation,
20. Per contra, learned counsel appe saving for the Insurance cGonip;
any sidbmit 7 that question of liability itself having bees: questioned the 1€ Insurance Company is not liable "to pay arty amount and even in the event of 7 liability is fastened on the Insurance company it is a Compensation awarded by the Tribunal ee all Heads is itself on the higher side which jon ey Reena ot Sage! i.
4, ff not call for any interference, Ag EO
21. Having heard learned advocates searing for the parties. it is noticed that the Tribunal has awarded. -- compensation of Rs.4,29,866/- amder, the following heads:
Injury, pain and suffering. © >. .Rs.50,000-00 Rs,90,.000-00 Loss of amenities in fulure. fe Medical Expenses) Rs.4,000-00 ise.of warning curing treatrient Rs. 1,666-00 Loss of Future earning capacity Ks.2,59,200-00 Future, Med ical eXPENSES Rs. 20 000-00 _ Conveyance, nourishment & Rs.5,000-00 Attendant's charges MTotabo ou Rs.4.29, 866-00 As per the wound certificate Ex.P.4 it would reveal that tne claimant had suliered the lollowing injuries: ae a ceca a...
Fe
1. Auto amputation of left foot at the level of ankle.
2, Badly lacerated compound commirated Teli foo Compound fracture of left leg:
A. Lacerated wound over right knee." 5, Loss of right hile toe. .
6. Laceratéd- wound aver right foot.
mud rt Nrnd & ioe on, fet oo wily lacerared. wound over rigni upper eye X-ray shows Fracture of lower end of left tibia. rye The doctor who nas been examined before the tribunal of the claimant is not the doctor who nas created the claimant. The accident im question Has compensation awarded uncer the heading medical pills the tribunal has taken into consideration the . pills produced and the sum total of the bills has been"
awarded which also cannot be found fault with> Even'. the compensation awarded towards loss. of future"
earning by taking into consideration the income 6f the claimant at Rs.2.000/- PB. mm, also-ca nriol be heli to the lower side for the simple reason. that as on the date of the accident claimant was mchision Rout thus tribun al was "justified in arriving at a cc that income ofthe 'claimiant is to be held at Rs.2,000/- pun. Tree said finding. also deserves to be affirmed. E. ma , 'hus,. viewed from any angle it cannot be held that satiGn aN warded by the tribunal to be on the lower fh calle for enhancement. Accordingly point No.2 formulated herein above is ariswered against the . Appecuant.
:
;
In view of the discussion mace following order is passed. Gi} Judgment and award. passed Tumkur 7 fonstat 27-9-2006 is hereby alfirmed.=
(iii) No order as to-cests. . liv) Registry to drav herein above, by "Additional " #elditional.
y-
UMACT, dated the award accordingly.
FERNS Ee ESS Boe Va