Karnataka High Court
Smt.Syed Sadiya vs Sri.Krishnaiah P on 12 March, 2024
-1-
NC: 2024:KHC:10383
MFA No. 3070 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 3070 OF 2015
(MV-I)
BETWEEN:
1. SMT.SYED SADIYA
@ SHABIRA BANU @ SADIAYA FATHIMA
W/O. SYED IMTIYAZ.
AGE 33 YEARS, OCC MAID,
R/AT NEW ADDRESS NO. 171,
IIND CROSS, MYSORE ROAD,
TIPPUNAGAR, BENGALURU 560026
OLD ADDRESS NO.483,
4TH BLOCK HBR LAYOUT,
HENNUR CROSS,
BENGALURU 560043
...APPELLANT
(BY SRI. SURESH M LATUR .,ADVOCATE)
Digitally
signed by AND:
SUVARNA T
Location: 1. SRI.KRISHNAIAH P
HIGH S/O PUTTASWAMY NAIK,
COURT OF
KARNATAKA R/AT NO.32,
GANAPATHI NAGAR
KONANKUNTE,
BENGALURU-560062
2. THE MANAGER
BHARTI AXA GENERAL INSURANCE CO LTD,
DODDANAKUNDI VILLAGE, K R PURAM,
BENGALURU-560037
...RESPONDENTS
(BY SRI. SHUBHAM N.M.,ADVOCATE FOR;
-2-
NC: 2024:KHC:10383
MFA No. 3070 of 2015
SRI. ANUP SEETHARAM RAO., ADVOCATE FOR R2;
R1 - NOTICE HELD SUFFICIENT V/O DTD. 13.08.19)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED8.1.2015 PASSED IN MVC
NO.5273/2013 ON THE FILE OF THE III ADDITIONAL SENIOR
CIVIL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed aggrieved by the order passed in MVC.No.5273/2013 dated 08.01.2015 by the III Addl. Senior Civil Judge and MACT, Bengaluru seeking enhancement of the compensation.
2. The claim petition is filed seeking compensation of an amount of Rs.10,00,000/- for the injuries sustained by the claimant in the accident. It is the case of the claimant that on 21.08.2013 at about 2.45 p.m. the claimant was traveling in an Autorickshaw from Arakere Gate Junction towards Bannerghatta. When the auto reached near Shani Mahatma Temple Basavanapura, at that time, the driver of -3- NC: 2024:KHC:10383 MFA No. 3070 of 2015 the Auto drove the same in a rash and negligent manner and suddenly took the vehicle towards left and as a result, he has lost the control over the autorickshaw and turned turtle on the side of the road. In the accident, the claimant has sustained injuries and was admitted in the hospital and spent huge amounts towards treatment and medicines. The insurance company has filed its counter stating that the petition is not maintainable. It is her case that as on the date of the accident, the driver of the Auto was not holding an effective driving license to drive the Auto.
3. When it comes to the negligence, the court has held that accident had occured because of the rash and negligent driving of the driver of the Autorickshaw. The owner has violated the terms and conditions of the policy. Hence, the insurance company is not liable to pay the compensation to the claimant. The insurance company has denied the occupation, income and also disability suffered by the claimant. When it comes to the liability, the court -4- NC: 2024:KHC:10383 MFA No. 3070 of 2015 below had held that on perusal of the contents of the petition averments and also contents of objection statements, the Respondent No.1 is the owner of the vehicle and Respondent No.2 is the insurer of the vehicle and policy was in force as on the date of the accident. It is the contention of the insurance company that the driver of the Auto was not having a valid driving license to drive the vehicle. To prove the same, the insurance company had examined his official as RW-1. The court has observed that RW-2 has issued notice to the owner of the offending vehicle as required under Section 133 of MV Act and after receipt of the said notice, the owner of the offending vehicle had replied to the said notice stating that the driver of the Autorickshaw was not having driving license at the time of accident and to disprove the same, the claimant has not produced any rebuttal documents. The contents of the charge sheet against the driver of the Autorickshaw shows that the offences are under Sections 279, 337, 338 of IPC and Section 3 r/w Section 181 of the MV Act. The court has come to the conclusion that the -5- NC: 2024:KHC:10383 MFA No. 3070 of 2015 insurance company has proved by producing oral and documentary evidence that the owner of the offending vehicle has violated the conditions of the policy and hence Respondent No.2/Insurance company is not liable to pay the compensation and the owner of the vehicle is liable to pay the compensation.
4. Then coming to the compensation, according to the evidence of the doctor, the claimant had sustained disability to an extent of 33.7% to the right lower limb, 16.85% to the whole body and accordingly the court below had taken 1/3rd of 33.2% as 11.2% and rounded it off to 12%. When it comes to the income, the court had taken Rs.6,000/- per month as income and by applying the multiplier had granted the compensation as per the table given below:
Heads Compensation
Awarded
1. Loss of future income : Rs. 1,56,000/-
2. Pain and suffering : Rs. 30,000/-
3. Loss of Amenities : Rs. 25,000/-
-6-
NC: 2024:KHC:10383
MFA No. 3070 of 2015
4. Medical Expenses : Rs. 20,000/-
5. Future Medical Expenses : Rs. 10,000/-
Conveyance and :
6. Rs. 20,000/-
nourishment
Loss of income during the :
7. Rs. 22,000/-
laid up period
TOTAL : Rs. 2,83,000/-
5. Learned counsel appearing for the claimant
submits that when the claimant had sustained disability at 12% and court below had taken the income at Rs.6,000/- which is on the lower side. It is submitted that the compensation that was awarded under the head of pain and suffering and all other conventional heads is not a reasonable compensation. It is submitted that the claimant is a third party to the insurance. There is no dispute about the fact that the accident had taken place because of the negligence on the part of the driver of the Autorickshaw. Even if there are any violation of the terms and conditions of the policy, still the insurance company is liable to pay the compensation to the claimant and recover the same from the owner of the vehicle. The court below ought to -7- NC: 2024:KHC:10383 MFA No. 3070 of 2015 have fixed the liability on the owner of the vehicle alone. It is submitted that the Appeal has to be allowed by enhancing the compensation and also fixing the liability on the insurance company.
6. Learned counsel appearing for the insurance company submits that when they have issued notice under section 133 of the MV Act to produce the license, the owner has not chosen to produce the same. The charge sheet that is filed shows that there is no driving license to the driver the Auto. As there is clear violation of the terms and conditions of the policy, the court below had rightly exonerated the insurance company from the liability. It is submitted that even on the quantum of compensation, the court below basing on the evidence had rightly granted the compensation and no grounds are made out for enhancement of the compensation. He submits that the principle of pay and recover would not apply as it is a case where there is no driving license. It is -8- NC: 2024:KHC:10383 MFA No. 3070 of 2015 not a case where there is no valid driving license, hence the owner alone is liable to pay the compensation.
7. Having heard the learned counsel on either side perused the entire material on record. In the light of the arguments advanced on behalf of both the parties, the issue that call for consideration is
i) Whether the insurance company is liable to pay the compensation, when the driver of the offending vehicle is not having driving license or valid driving licence?
ii) Whether the compensation that was awarded by the court below was just and reasonable compensation?
Hon'ble Apex Court in case of National Insurance Company Ltd -vs- Swaran Singh and others1 has considered various provisions of the MV Act, particularly under the MV Act, holding of valid driving license is one of the conditions of the contract of the insurance. Driving of a vehicle without a valid driving license is an offence. The 1 2004 (3) SCC 297 -9- NC: 2024:KHC:10383 MFA No. 3070 of 2015 Court observed that however the question is whether the third party who is involved in an accident is entitled to the amount of compensation granted by the Tribunal, although the driver of the vehicle at relevant time did not have a valid driving license but would be entitled to recover of the same from the owner or driver thereof.
8. At para 84 of the judgment, the court had considered the different scenario including fake license, learner's license or expired license. Even where the insurer is able to prove the breach on the part of the insured concerning the policy conditions regarding holding of the valid Driving license by the driver or his qualifications to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured. Unless the said breach or breaches are so fundamental and found to have contributed to the cause of the accident. Where on adjudication of the case, under the act, Tribunal arrives at a conclusion that the insurer has satisfactorily proved his defence in accordance with
- 10 -
NC: 2024:KHC:10383 MFA No. 3070 of 2015 the provisions of Section 149 (2) read with sub-section 7, as interpreted by the court, the tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which has been compelled to pay to the third party under the award of the Tribunal. Such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal in the same manner under section 174 of the MV Act as arrears of land revenue.
9. In case of National Insurance Co. Ltd., -vs- Saju P. Paul and others2, Hon'ble Apex Court in the said Judgment has considered the earlier judgments and applied the principle of pay and recover by asking the insurance company to pay the amount and recover the same from the owner of the vehicle. The purport of the 2 2013 (2) SCC 41
- 11 -
NC: 2024:KHC:10383 MFA No. 3070 of 2015 judgment of Hon'ble Apex Court in Swaran Singh's case referred supra is to take care of the interest of the third party who is not a party to the insurance policy. In the cases referred to supra, even if there is violation of the terms and conditions of the policy, Hon'ble Apex Court has held that still the insurance company is liable to pay the compensation and recover the same from the owner of the vehicle.
10. This court do not find force in the argument of the learned counsel for the insurance company that in Swaran Singh's case referred to Supra, the Hon'ble Apex Court had only dealt with a valid driving license but not a case of "NO" driving license and where there is no driving license, Swaran Singh's case will not apply. The Hon'ble Apex Court while considering different situations had dealt with the plight of the claimants and the fact that claimant is a third party to the insurance policy. Either in case of no driving license or a valid driving license, situation would not alter and still the insurance company is liable to pay
- 12 -
NC: 2024:KHC:10383 MFA No. 3070 of 2015 the compensation and recover the same from the owner of the vehicle. Accordingly the above issue is answered in favour of the claimant.
11. When it comes to the compensation, the claimant had sustained fracture of middle 1/3rd of right femur and also deformity of right lower limb. Considering one of the grievous injury he had sustained, under the head of pain and suffering, this court is granting an amount of Rs.40,000/-. When it comes to the income, according to the claimants, she was working as housemaid and earning an amount of Rs.9,000/- per month. No doubt, there is no evidence adduced before the court below. Considering the chart prepared by the Karnataka State Legal Services Authority, as this is an accident of the year 2013, this court is taking Rs.8,000/- as income. The court below has rightly taken the disability at 12% applying the multiplier 18, she is entitled for an amount of Rs.2,07,360/- towards loss of future income. Coming to the loss of future amenities, medical expenses, future medical
- 13 -
NC: 2024:KHC:10383 MFA No. 3070 of 2015 expenses, attendant, nourishment and conveyance, the court below had rightly granted the compensation and no interference is called for. Then coming to the loss of income during the laid up period, considering the income at 8,000/- for three months it comes to Rs.24,000/-.
12. In the light of the law laid down by the Hon'ble Supreme Court in the case of V.MEKALA vs. M. MALATHI AND ANOTHER3, the claimant is entitled for an amount of Rs.10,000/- towards Legal Expenses.
13. The claimant is therefore, entitled to the compensation under the following heads:
Heads Compensation Compensation
Awarded by Awarded by
Tribunal this Court
1. Loss of future income : Rs. 1,56,000/- 2,07,360/-
2. Pain and suffering : Rs. 30,000/- 40,000/-
3. Loss of Amenities : Rs. 25,000/- 25,000/-
4. Medical Expenses : Rs. 20,000/- 20,000/-
3
(2014) 11 SCC 178
- 14 -
NC: 2024:KHC:10383
MFA No. 3070 of 2015
Future Medical :
5. Rs. 10,000/- 10,000/-
Expenses
Attendant,Conveyance :
6. Rs. 20,000/- 20,000/-
and nourishment
Loss of income during :
7. Rs. 22,000/- 24,000/-
the laid up period
8. Legal Expenses : Rs. 00/- 10,000/-
TOTAL : Rs. 2,83,000/- 3,56,360/-
Enhancement : Rs. 73,360/-
14. Accordingly, the appeal filed by the claimant is partly allowed, enhancing the compensation amount from Rs.2,83,000/- to Rs.3,56,360/-. The Respondent/ Insurance Company is directed to pay the compensation and recover the same from the owner of the vehicle.
ORDER
i) The Appeal is partly allowed enhancing the compensation amount from Rs.2,83,000/- to Rs.3,56,360/-. The enhanced amount is Rs.73,360/-.
ii) The Respondent/Insurance Company is directed to pay the compensation and recover the same from the owner of the vehicle.
- 15 -
NC: 2024:KHC:10383 MFA No. 3070 of 2015
iii) The enhanced amount shall carry interest at 6% per annum from the date of petition till the date of realization.
iv) The respondent/insurance company shall deposit the amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the entire amount without furnishing any security.
v) Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
vi) No costs.
Pending miscellaneous petitions, if any, shall stand closed.
SD/-
JUDGE TS List No.: 1 Sl No.: 6