Karnataka High Court
Kumar Kiran S/O Bhramappa Dodamani vs Nabisab S/O Abdulsab Myageri Anr on 6 February, 2020
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
MFA NO.32494/2011 (MV)
BETWEEN:
Kumar Kiran
S/o Bharamappa Dodamani
Age: 17 years, Occ: Student & Coolie
R/o Muddebihal, minor represented by is father
Bharamappa S/o Shekarappa Doddamani
Dist: Bijapur-586101.
... Appellant
(By Sri. Harshavardhan R Malipatil, Advocate)
AND:
1. Nabisab S/o Abdulsab Myageri
Age:46 years, Occ:Business
R/o At Post: Marjuti Nagar
Muddebihal Tq, Muddehihal
Dist: Bijapur-586101.
Since deceased by LRs.
1.(a) Sayeedabi W/o Nabisab Myageri
Age: 55 years
1.(b) Sikandar S/o Nabisab Mayageri
Age: 26 years
Both R/o Cement Road Veeresh Nagar Muddebihal
Dist: Bijapur.
2
2. The Divisional Manager
United Insurance Co. Ltd
S.S. Front Road, Bijapur-586101.
... Respondents
(By Sri.Sanjay M Joshi, Advocate for R2 R1 (A) & (B) are
served)
This Miscellaneous First Appeal is filed under Section
173 (1) of Motor Vehicles Act, 1988 praying to allow this
appeal and award compensation of Rs. 10,11,000/-
(excluding the amount awarded by the Tribunal) along
with interest @ 12% P.A. by modifying the judgment and
award of the Civil Judge (Sr.Dn) & Member MACT No. VIII,
Muddebihal dated 15.06.2010 in MVC 146/2007 in the
interest of justice and equity.
This appeal coming on for admission this day, the
Court delivered the following:
JUDGMENT
This appeal by the claimant is directed against the impugned Judgment and award dated: 15-06-2010 whereby the Tribunal allowed the claim petition filed by the claimant and awarded compensation in a sum of Rs.2,14,000/- together with interest at 6% per annum from the date of claim petition till realization in favour of the claimant. However, by the impugned Judgment and award the Tribunal has absolved the Insurance Company 3 of its liability to pay the compensation and fastened the entire liability upon the respondent No.1-owner of the vehicle.
2. I have heard the learned counsel for the claimant as well as learned counsel for Insurance Company.
3. It is not in dispute that, the claimant before the Tribunal was a minor at the time of accident, which occurred on 26-10-2006 in which he sustained grievous and serious injuries. The vehicle in question was a goods transport vehicle. The Tribunal came to the conclusion that, the claimant was entitled to compensation on account of rash and negligent driving of the driver of the vehicle. However, while fastening the liability, the Tribunal came to conclusion that the claimant was an unauthorized and gratuitous passenger travelling in goods vehicle and consequently the same amounts to breach of the conditions and terms and conditions of the insurance policy produced at Ex.R.2 as well as Sec.147 of the Motor Vehicle Act. The Tribunal held that, the Insurance Company to be 4 absolved of its liability to pay compensation and the entire compensation is to be paid by respondent No.1-owner.
4. Aggrieved by the impugned Judgment and award absolving the Insurance Company of its liability to pay compensation as well as the quantum of compensation awarded by the Tribunal, the claimant is before this court by way of present appeal.
5. Learned counsel for the claimant submits that, notwithstanding finding of the Tribunal that the claimant was an unauthorized passenger travelling in a goods vehicle, in view of the law in the Judgment of Hon'ble Apex Court in the case Anu Bhanvara V/s IFFCO Tokio General Insurance Company Limited and others - AIR 2019 SC 3934, it is necessary to invoke the principle of pay and recover and thereby direct the Insurance Company to pay the compensation by reserving liberty in its favour to recover the same from the owner of the vehicle. 5
6. Secondly it is contended by the learned counsel for claimant that since the claimant was a minor at the time of accident, the law laid down by the Hon'ble Apex Court in case of Master Mallikarjun vs Divisional Manager, the National Insurance Company Limited and another reported in 2013 AIAR (Civil) page 959 would have to be applied in the light of the finding of the Tribunal that the permanent disability to the entire body of the claimant is around 50%. It is therefore, contended that the claimant would be entitled to enhancement in compensation in terms of the Judgment of the Hon'ble Apex Court in case of Master Mallikarjun's case stated supra.
7. Per contra, learned counsel for Insurance Company would support the impugned Judgment and award.
8. I have given my anxious consideration to the rival submissions and perused the material on record, as well as the Judgment of the Hon'ble Apex Court in Anu Bhanvara's as well as Master Mallikarjun's case referred to supra.
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9. As rightly contended by the learned counsel for the claimant, the Apex Court in Anu Bhanvara's case after taking into account several earlier Judgments of the Hon'ble Apex Court as well as other courts with regard to liability of the Insurance Company to pay compensation in favour of the claimant who was travelling in a goods vehicle has held as under:
"9. The next question is as to which of the respondents, that is the owner and driver, or the insurer of the vehicle, would be liable for payment of such compensation. As regard the liability for payment of compensation, it has been contended by the learned counsel for the appellants that since the vehicle was admittedly insured with the respondent No.1-insurance company, the principle of pay and recover would be invoked even in case of a gratuitous passenger in a goods vehicle. The insurance company should thus be made liable for the payment of compensation to the appellants and in turn they would have the right to realise/recover the same from the owner and driver of the vehicle. In support of his submission, learned counsel for the appellants has relied on the following decisions of this Court, namely, Manuara Khatoon v. Rajesh Kumar Singh (2017) 4 SCC 796: (AIR 2017 SC 1204), Puttappa v. Rama 7 Naik (Civil Appeal No.4397 of 2016, disposed of on 2nd April, 2018); Manager, National Insurance Co. Ltd. v. Saju P. Paul (2013) 2 SCC 41: (AIR 2013 SC 1064); New India Assurance Co. Ltd. v. Vimal Devi (Civil Appeal Nos.1578-1579 of 2004, disposed of on 5th October, 2010): (Reported in 2011 (2) ACC 102 (SC)); National Insurance Co. Ltd. v. Challs Upendra Rao (2004) 8 SCC 517: (AIR 2004 SC 4882); New India Assurance Co. Ltd. v. C. M. Jaya (2002) 2 SCC 278: (AIR 2002 SC 651); Amrit Lal Sood v. Kaushalya Devi Thapar (1998) 3 SCC 744.
10. Per contra, learned counsel for the respondent-insurance company has contended that since the claimants were gratuitous passengers in a goods vehicle, in which case the liability for payment of compensation for death or body injury to the passengers of such goods vehicle would not be covered, hence the principle of pay and recover would not apply. It has thus been contended that the order of the High Court is perfectly justified in law and calls for no interference by this Court. In support of her submission, learned counsel has relied on following decisions, namely, New India Assurance Co. Ltd. v.
Asha Rani (2003) 2 SCC 223: (AIR 2003 SC 607); National Insurance Co. Ltd. v. Baljit Kaur (2004) 2 SCC 1: (AIR 2004 SC 1340); National Insurance Co. Ltd. v. Kaushalya Devi (2008) 8 SCC 246: (AIR 2008 8 SC 2282); National Insurance Co. Ltd. v. Rattani (2009) 2 SCC 75: (AIR 2009 SC 1499); National Insurance Co. Ltd. v. Prema Devi (2008) 5 SCC 403:
(2008 AIR SCW 2023); Bharat AXA General Insurance Co. Ltd. v. Adani MANU/TN/6503/2018; Bajaj Allianz General Insurance Co. Ltd. v. Lal Singh (2015) SCC Online Del 7508.
11. We have heard learned counsel for the parties and perused the record as well as the various decisions cited by learned counsel for the parties. The insurance of the vehicle, though as a goods vehicle, is not disputed by the parties. The claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of this case, we are of the considered view that the principle of "pay and recover" should be directed to be invoked in the present case.
12. Accordingly, these appeals are disposed of with the direction that the respondent No.1 - insurance company shall be liable to pay the awarded compensation to the claimants in both the appeals. However, respondent No.1 - insurance company shall have the right to realize the said amount of compensation from the respondents No. 2 and 3 9 (driver and owner of the vehicle) in accordance with law."
10. In the facts and circumstances of the instant case, it is not in dispute that, the claimant was a minor as on the date of the accident. As held by the Hon'ble Apex Court in Anu Bhanvara's case supra in view of the peculiar facts obtained in the present case which relates to the claimant being a minor, I am of the considered opinion that the principle of pay and recover will have to be invoked in the present case also by directing the Insurance Company to pay compensation in favour of the claimant by reserving liberty in its favour to recover the same from respondent No.1 -owner of the vehicle. The Impugned Judgment and award absolving the Insurance Company of its liability is accordingly set aside.
11. In sofaras the quantum of compensation is concerned the Hon'ble Apex Court in case of Master Mallikarjun has held that, in the event of permanent disability to the entire body of a minor claimant is more 10 30% to 60%, he would be entitled to a lump-sum amount of Rs.4,00,000/- towards pecuniary damages. In addition thereto, the claimant would be entitled to actual expenditure incurred towards medical expenses apart from compensation towards discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization. Accordingly the total compensation payable in favour of the appellant/claimant is as under:
1 Pain and suffering etc. Rs.4,00,000/- 2 Medical expenses Rs. 4,000/-
3 Dis-comfort, inconvenience Rs. 25,000/-
and loss of earning to parents Total Rs.4,29,000 /-
12. Since the Tribunal has awarded a compensation of Rs.2,14,000/-, the appellants - claimant would be entitled to an additional enhanced compensation of Rs.2,15,000/- with interest at 6% per annum from the date of claim petition till realization.
13. In the result, I pass the following order:-
ORDER
(i) The appeal is partly allowed.11
(ii) The impugned judgment and award dated 15-06-
2010 passed by the Tribunal is hereby modified.
(iii) The appellant-claimant IS entitled to additional enhanced compensation of Rs.2,15,000/- which shall carry interest at 6% per annum from the date of claim petition till the date of realization.
(iv) The Insurance Company is directed to pay the entire compensation of Rs.4,29,000/- including inclusive of the compensation awarded by the Tribunal as well as the additional enhanced compensation awarded by this court within a period six weeks from the date of receipt of copy of the order.
(v) Liberty is hereby reserved in favour of the Insurance Company to pay the compensation in favour of the claimant and recover the same from respondent No.1 owner of the vehicle.
Sd/-
JUDGE *MN