Karnataka High Court
United India Insurance Co. Ltd., vs Smt. Sandhya W/O Tukaram Patil on 7 June, 2019
Author: S.G. Pandit
Bench: S.G. Pandit
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF JUNE, 2019
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
M.F.A. No. 102428/2017 (MV)
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, 1568, II FLOOR,
ABOVE BANK OF BARODA, MARUTI GALLI,
BELAGAVI, BELAGAVI DISTRICT-590 002.
- APPELLANT
(BY SMT. PREETI SHASHANK, ADVOCATE)
AND:
1. SMT. SANDHYA W/O TUKARAM PATIL,
AGE: 23 YEARS, OCC: HOUSEHOLD,
R/O MALATAWADI, TQ: CHANDGAD,
DIST: KOLHAPUR, MAHARASHTRA STATE,
PIN CODE - 416 509.
2. KUMARI SAMARTH S/O TUKARAM PATIL,
AGED ABOUT 02 YEARS, MINOR,
REPRESENTED BY HIS NATURAL
GUARDIAN MOTHER, I.E.,
RESPONDENT NO.1.
3. SHRI MAHADEV S/O APPUNNA PATIL,
AGED ABOUT 56 YEARS,
OCC: AGRICULTURE,
R/O MALATAWADI,
TQ: CHANDGAD, DIST: KOLHAPUR,
MAHARASHTRA STATE,
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PIN CODE - 416 509.
4. SMT. SUSHILA W/O MAHADEV PATIL,
AGED ABOUT 49 YEARS,
OCC: HOUSEHOLD WORK,
TQ: CHANDGAD, DIST: KOLHAPUR,
MAHARASHTRA STATE,
PIN CODE - 416 509.
5. SHRI LAGAMA W/O SHIVAJI BURALI,
AGED ABOUT 32 YEARS,
OCC.: BUSINESS, R/O KEDNUR,
TQ AND DIST: BELAGAVI,
PIN CODE : 590 001.
- RESPONDENTS
(BY SRI. B.M. PATIL, ADVOCATE
FOR C/R1 TO R4,
NOTICE TO R5 IS SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF M.V. ACT, 1988, AGAINST THE JUDGMENT
AND AWARD DATED 28.03.2017 PASSED IN M.V.C. NO.
1737/2016 ON THE FILE OF THE LEARNED V ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL VI, BELAGAVI,
AWARDING THE COMPENSATION OF RS.21,50,000/- ALONG
WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF
PETITION TILL REALIZATION & ETC.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, BELLUNKE J., DELIVERED THE
FOLLOWING:
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JUDGMENT
Though this matter is listed for admission, with the consent of both the counsels on record, the matter is taken up for final disposal.
2. This appeal has been preferred by the respondent Insurance Company against the judgment and award passed in M.V.C. No. 1737/2016 dated 28.03.2017 on the file of the learned V Addl. Dist. & Sessions Judge & Member, Addl. MACT-VI, Belagavi (for short 'Tribunal').
3. The brief facts for the purpose of this appeal are as under:
That, on 12.06.2016, the respondent No.1 and deceased Tukaram had gone to Sangola market along with other three persons to purchase animals in a tempo bearing Regn. No. KA-23-9237 and after purchasing the animals they loaded the said animals in the said tempo and they were returning. The respondent No.1 drove the said vehicle in high speed, in a rash and negligent manner and so endangering human life. The inmates of the said vehicle requested the respondent No.1 to drive the vehicle :4: smoothly, when the said vehicle came near Siddewadi on Miraj-Pandarapur road, the respondent No.1 could not control the vehicle and caused the vehicle turtle down on the road. On account of the said impact, the deceased sustained grievous injuries. Immediately the deceased was shifted to Civil Hospital, Miraj, and thereafter he was shifted to KLE Hospital, Belagavi. The deceased Tukaram ultimately died in the hospital on 16.06.2016.
4. It is contended that the deceased was an employee of respondent No.1, the owner of the goods vehicle bearing Regn. No. KA-23-9237. It is contended that the deceased was hale and healthy as on the date of his death. The petitioners being the wife, son and parents, were wholly dependent on the income of the deceased. He was earning Rs.7,000/- per month. On account of the accident which took place due to rash and negligent driving of the driver of the offending vehicle, the petitioners have suffered loss of dependency and loss of love and affection. They have incurred huge medical expenses. Therefore, they filed claim petition before the jurisdiction MACT :5: claiming just compensation for the death of the deceased. The petition was resisted by the respondents, both owner as well as the insurer.
5. The fact that the deceased was a Coolie in the vehicle, was not in dispute. The owner has denied the other allegations. The insurance company denied the fact that the deceased was Coolie in the offending vehicle. According to the respondent-Insurance Company he was a gratuitous passenger in a goods vehicle. Therefore, they had not covered the risk of the said person. It is further contended that Coolie of the offending vehicle was not covered and no additional premium was collected by the respondent No.2. Therefore, the respondent-Insurance Company has contended that it is not liable to satisfy the award that may be passed in the said case.
6. Based on the above said case, the learned Tribunal has framed the following issues:
1) Whether the petitioners prove that on 12.06.2016, the deceased Tukaram Patil, was traveling in goods vehicle bearing Regn. No. KA-23-9237, from Sangola Market towards the native place, the driver of said vehicle :6: was driving the same in high speed, in a rash and negligent manner, so as to endanger the human life, when the said vehicle came near Siddewadi, on Miraj-
Pandarapur road, the driver lost control over it, caused to turtle down on the side of the road, due to it, the deceased sustained grievous injuries and died in the Hospital?
2) Whether the petitioners are entitled for compensation? If so, from whom at what quantum?
3) What order or award?
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The learned Tribunal held trial of the petition. After
hearing both the sides, issues were answered as under:
Issue No. 1 : In the affirmative
Issue No. 2 : In the affirmative
Issue No.3 : As per the final order,
for the following reasons
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Consequently the Tribunal granted compensation of
Rs.21,50,000/- on various heads to the petitioners with interest at the rate of 9% p.a. from the date of the petition till the date of realization. The said judgment and award has been challenged by the respondent-Insurance Company on various grounds.
7. It is mainly contended that the offending vehicle had no permit to ply in the State of Maharashtra. It has permit :7: to ply only in Karnataka State. The accident took place in the territorial jurisdiction of Maharashtra State. Therefore, there is violation of policy condition. Hence the insurer was not liable to satisfy the award. Further, it is contended by the respondent-Insurance Company that the Tribunal committed error in assessing the income of the deceased and by granting excess future prospects on the income of the deceased. It has wrongly granted compensation on conventional heads. It was further contended that the Tribunal ought not to have granted future prospects at all. Referring to certain decisions of the Hon'ble Apex Court, the respondent Insurance Company, who is the appellant, has sought to set aside the impugned judgment and award passed by the Tribunal.
8. We have heard the learned counsel for the appellant Smt.Preeti Shashank and Sri B.M. Patil, learned counsel for the respondents.
9. On hearing the arguments we find that the dispute is very much narrow compassed. The main ground on which the learned counsel for the appellant would submit that :8: traveling of a vehicle beyond the territorial jurisdiction of the permit condition would amount to plying the vehicle without permit. She relied on the following decisions of the Hon'ble Supreme Court.
1) National Insurance Co. Ltd., Vs. Challa Bharathamma and Others in Civil Appeals No. 6178 of 2004 with 6179 of 2004 decided on 21.09.2004; and
2) Amrit Paul Singh & Anr. Vs. TATA AIG General Insurance Co. Ltd. & Ors. In Civil Appeal No. 2253 of 2018 decided on 17.05.2018.
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10. As against this, the learned counsel for the respondents-claimants has relied on the decision of the learned Single Judge of this Court in M.F.A. No. 1201/2011 decided on 07.11.2016 (Durugamma Vs. S.G. Naresh and others).
11. As regards the quantum of compensation is concerned, the appeal grounds are reiterated. Therefore, on the basis of the above said facts and arguments, the following points would arise for consideration.
1) Whether the appellant-Insurance Company proves that the finding of the Tribunal fastening liability on the Insurance Company to satisfy the :9: impugned award, is erroneous in law, against to the facts and circumstances and the evidence on record?
2) Whether the appellant-Insurance Company proves that the judgment and award is liable to be interfered by this Court so far as it relates to the quantum of compensation granted on various heads is excessive?
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12. We have carefully gone through the authorities submitted by both the sides. Before deciding whether citations relied on at the bar is applicable or not to the case on hand, main distinguishing fact has to be referred first.
13. In this case it is not in dispute that the offending vehicle, which is a goods vehicle, had a valid permit to ply the vehicle within the territorial limits of Karnataka State. Violation of the policy condition is not based on the ground that the driver of the offending vehicle has no valid driving licence. The liability that is sought to be discharged is only on the ground that the vehicle violated the permit conditions by plying the same beyond the territorial limits of Karnataka State, for which the vehicle had no permit. : 10 : Keeping in mind the above said fact on record we proceed to examine whether there was any violation of the policy conditions so as to exonerate the respondent Insurance Company from its liability to satisfy the award.
14. The rulings that are relied by the appellant- Insurance Company has also been considered in the latest reported decision of the learned Single Judge of this Court in M.F.A. No. 1201/2011 decided on 07.11.2016 (Durugamma Vs. S.G. Naresh and others). The facts of the said case and the case on hand are not only same but almost similar. There also the Tribunal had absolved the insurer from the liability to satisfy the award on the ground that the offending vehicle was plying outside the permitted limits of Chitradurga town, it had violated the permit conditions. In addition to the decision of the Hon'ble Apex Court in National Insurance Co. Ltd., Vs. Challa Bharathamma and Others in Civil Appeals No. 6178 of 2004 with 6179 of 2004 decided on 21.09.2004, the decision of the Division Bench of this Court dated 24.08.2012 in M.F.A. No. 9582/2007 (Sri B.T. Venkatesh : 11 : Vs. Sri. Jagadeesh Kumar and Others); M.F.A. No. 7723/2011 decided on 08.10.2013 (Smt. Kempamma Vs. Ramesh and another); and M.F.A. No. 8742/2008 decided on 09.10.2012 (Oriental Insurance Co. Ltd., Vs. K.C. Papanna and another) were also considered by the learned Single Judge.
15. The law is well settled with regard to the ground on which the Insurance Company can avoid its liability. The liability of Insurance Company can be avoided only on the ground that are enumerated under Section 149(2)(a)(i)(c) of the M.V. Act. Then Section 66 of the M.V. Act is also of ground on which the insurer can avoid liability if the vehicle was plying without any permit.
16. In this case also the vehicle in question had a valid permit to ply within the jurisdiction of Karnataka State. The accident took place beyond the territorial jurisdiction of Karnataka State. Whether that violation would attract Section 149(2)(a)(i)(c) of the Act. For that, the definition of permit has to be considered. Violation of the permit conditions are contemplated u/S 86 of the Act where the : 12 : permit can be cancelled and penalty can be imposed u/S 192(a) of the Act. Even seizure of the vehicle is also permitted u/S 207(1) of the M.V. Act.
17. It is held in Durugamma's case stated supra that, "there are different kinds of contravention of the permit, one of which is relating to the route on which or the area in which the vehicle may be used. The purpose for which the vehicle may be used is distinguishable from the terms and conditions of the permit. At last, the route on which or the area in which the vehicle may be used, is one of the terms and conditions of the permit. But the same cannot be construed as the purpose for which the vehicle was to be used. Making the distinction, the learned Single Judge of this Court rightly came to the conclusion that the terms and conditions attached to each type of permit cannot be construed as a purpose of the permit. The purpose and the terms and conditions are two different aspects." Therefore, the learned Single Judge interpreted that the legislature in its wisdom has restricted the defence that are available to the insurer under Section 149(2)(a)(i)(c) of : 13 : the Act for a purpose and it is not allowed by the permit and not for violation of any terms and conditions of the permit. For example, if a vehicle has a goods carriage permit but has carried passengers or vice versa, then it can be held that the offending vehicle goods carriage permit is being used for a purpose not allowed by the permit.
18. Therefore, the sole distinction on which the authorities relied on by the learned counsel for the appellant can be distinguished is on the ground that whether there was any violation of the purpose for which the vehicle was to be used and whether the violation of exceeding the territorial jurisdiction granted on the ground to ply the vehicle would amount to violation of purpose for which the vehicle was to be used. If that distinction is understood and kept in mind, we find that whether the Insurance Company can absolve its liability on the ground that the vehicle in question has plied beyond the territorial limits granted under the permit and therefore there is no permit for the vehicle can be decided. Further, the : 14 : Insurance Company cannot contend that its liability is absolves on the ground that the purpose for which the vehicle was to be used, is violated. Because in this case the sole ground taken is violation of permit condition.
19. In this case admittedly the vehicle had a valid permit to transport goods. It had valid permit to ply. The violation complained is that of route permit, i.e., being territorial limits. The same cannot be a defence for the Insurance Company within the purview of Sec. 149(2) of M.V. Act. We approve the decision rendered by the learned Single Judge of this Court in Durugamma's case stated supra. The fact that the deceased was a labourer under the respondent No.1 owner is not disproved by the material placed on record. Therefore, on the above said ground that the Insurance Company cannot avoid its liability to satisfy the award. Accordingly, point No.1 is answered in the negative.
20. Point No. 2: As regards the quantum of compensation is concerned, the learned counsel for the insurer is justified in contending that the award is liable to : 15 : be interfered. The learned counsel would submit that the income of the deceased has been wrongly assessed. There is excess grant of compensation on certain conventional heads. On perusal of the award in question we find that the deceased was said to be a coolie and the Tribunal in the absence of material evidence on record has assessed the income of the deceased at Rs.7,000/- per month. There are no justifiable grounds to interfere with that finding. However, relying on the decision of the Hon'ble Supreme Court reported in AIR 2017 SC 5157 (National Insurance Company Limited v. Pranay Sethi and Others) we find that the Tribunal has not rightly calculated the future prospects to be calculated on the income of the deceased. We also find that there were excess award on the head of consortium. Therefore, the quantum of the award needs to be revisited and it is to be reassessed.
21. The income of the deceased is found to be at Rs.7,000/- per month. Having regard to the age of the deceased at 29, the future prospects is to be calculated at 40% of the same. That comes to Rs.2,800/-. Therefore, : 16 : Rs.7,000/- + Rs.2,800/-, the gross income of the deceased would be Rs.9,800/- per month. Having regard to the number of dependents of the deceased, 1/4th of the same is to be deducted towards personal expenses of the deceased. That comes to Rs.2,450/-. Therefore, Rs.9,800/- less Rs.2,450/-, the net income would be Rs.7,350/- per month. Having regard to the age of the deceased, the multiplier applicable would be 17. Therefore, the total loss of dependency would be Rs.14,99,400/- (Rs.7,350/- x 12 x 17).
22. In addition to that, on conventional heads including consortium to the first petitioner, an amount of Rs.70,000/- is to be awarded. For the loss of love and affection to the other petitioners that is the son and parents of the deceased, each would be entitled for Rs.40,000/- each, which comes to Rs.1,20,000/-. As regards the medical expenses of the deceased is concerned that is quantified at Rs.1,17,500/-. The same is not disputed. Therefore, the compensation payable to the claimants is quantified as under:
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Particulars Amount
Sl. No.
1. Loss of dependency 14,99,400.00
2. Loss of consortium 1,20,000.00
3. Conventional heads 70,000.00
4. Medical expenses 1,17,500.00
Total 18,06,900.00
23. Having regard to the facts and circumstances of the case, we find that the Tribunal has awarded interest on higher side at 9% p.a. There are no special circumstances for which the interest at 9% could be awarded. Therefore, we find that it is liable to be reduced to 8% p.a. having regard to the number of dependents and the age of the dependents, particularly, the petitioner Nos.1 and 2. Accordingly, we answer the point No.2 partly in the affirmative.
For the aforesaid reasons, the following order is passed.
ORDER Appeal is allowed in part. The judgment and award passed in M.V.C. No. 1737/2016 dated 28.03.2017 on the file of the learned V Addl. Dist. & Sessions Judge & Member, Addl. MACT-VI, Belagavi stands modified. The claimants are held to be entitled for a sum of : 18 : Rs.18,06,900/- with interest at 8% p.a. from the date of petition till the entire amount is deposited.
The appellant-Insurance Company shall deposit the compensation amount within six weeks from the date of receipt of a certified copy of this order.
As regards the apportionment and deposit is concerned, the order passed by the trial Court holds good.
The amount in deposit is ordered to be transmitted to the jurisdictional Tribunal along with the lower Court records, forthwith.
In view of disposal of the appeal on merits, I.A. No. 1/2018 also stands disposed of.
SD JUDGE SD JUDGE bvv