Karnataka High Court
Munilakshmamma vs Icici Lombard General Insurance Co Ltd on 17 July, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC:24741
MFA No. 3723 of 2012
C/W MFA No. 4222 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 3723 OF 2012 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 4222 OF 2012 (MV)
IN M.F.A.No.3723/2012
BETWEEN:
MUNILAKSHMAMMA,
W/O LATE RAMAIAH,
AGED ABOUT 53 YEARS,
DASANAPURA VILLAGE,
DASANAPURA HOBLI,
NEAR POST OFFICE,
BANGALORE NORTH TALUK.
...APPELLANT
Digitally signed by
VIJAYALAKSHMI (BY SRI.R.CHANDRASHEKAR, ADVOCATE)
BN
Location: HIGH
COURT OF AND:
KARNATAKA
1. ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
NO.89, II FLOOR, SVR COMPLEX,
BANGALORE - 560 068,
REPRESENTED BY ITS MANAGER,
POLICY ISSUE AT:ICICI LOMBARD GENERAL
INSURANCE CO. LTD.,
ZENITH HOUSE, KESHAVARAO KHADE MARG,
MAHALAKSHMI, MUMBAI.
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NC: 2023:KHC:24741
MFA No. 3723 of 2012
C/W MFA No. 4222 of 2012
2. M/S. GEMINI EQUIPMENTS AND
RENTALS PVT LTD.,
GEMINI HOUSE, BUS DEPOT LANE,
DEONAR, MUMBAI - 400 088,
MAHARASHTRA.
...RESPONDENTS
(BY SRI.B.C.SHIVANNA GOWDA, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH VIDE ORDER
DATED 20.01.2014)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 13.04.2011 PASSED IN MVC
NO.6023/2009 ON THE FILE OF THE XVI ADDITIONAL JUDGE,
MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A.No.4222/2012
BETWEEN:
M/S. ICICI LOMBARD GENERAL
INSURANCE CO. LTD.,
NO.89, II FLOOR, SVR COMPLEX,
BANGALORE - 560 068,
POLICY ISSUED AT:M/S.ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD.,
ZENITH HOUSE,
KESHAVARAO KHADE MARG,
MAHALAKSHMI,
MUMBAI - 400 088.
...APPELLANT
(BY SRI.B.C.SHIVANNA GOWDA, ADVOCATE)
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NC: 2023:KHC:24741
MFA No. 3723 of 2012
C/W MFA No. 4222 of 2012
AND:
1. MUNILAKSHMAMMA,
W/O LATE RAMAIAH,
NOW AGED ABOUT 53 YEARS,
DASANAPURA VILLAGE,
DASANAPURA HOBLI,
NEAR POST OFFICE,
BANGALORE NORTH TALUK - 560 058.
2. M/S. GEMINI EQUIPMENTS AND
RENTALS PVT LTD.,
GEMINI HOUSE, BUS DEPOT LANE,
DEONAR, MUMBAI - 400 088,
MAHARASHTRA.
...RESPONDENTS
(R1 AND R2 IS SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 13.04.2011 PASSED IN MVC
NO.6023/2009 ON THE FILE OF THE XVI ADDITIONAL JUDGE,
MACT, BANGALORE, AWARDING A COMPENSATION OF
RS.1,34,760/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC:24741
MFA No. 3723 of 2012
C/W MFA No. 4222 of 2012
JUDGMENT
MFA No.3723/2012 is filed by the appellant/claimant under Section 173(1) of the Motor Vehicles Act, 1908 (hereinafter referred to as 'MV Act' for short) challenging the judgment and award dated 13.04.2011 passed in MVC.No.6023/2009 by the XVI Addl. Judge, MACT, Bangalore City, seeking for enhancement of compensation.
2. MFA No.4222/2012 is filed by the appellant/Insurance Company questioning liability fastened on the insurance company.
3. The brief facts of the case are that on 26.06.2009 at about 5.30 p.m., the claimant was proceeding in a luggage auto bearing No.KA-52-3962 along with her luggage from Motaganahalli to Dasanapura on Bangalore-Tumkur Road, NH-4, when the said auto reached near BML Petrol bunk, a lorry bearing No.KA-17- A-6013 which was moving on the left side of the road, without giving any signal, drove it towards right side and hit the auto. Due to the said impact, the claimant has -5- NC: 2023:KHC:24741 MFA No. 3723 of 2012 C/W MFA No. 4222 of 2012 sustained grievous injuries. Therefore, the claimant has filed the claim petition under Section 166 of MV Act, seeking compensation.
4. Heard the arguments on both sides and perused the records.
5. Learned counsel for the claimant submitted that in the present case, in Exs.R1 and R2 - insurance policy, an extra premium of Rs.575/- is collected for covering third party risk and that is discussed by the Tribunal holding that since extra premium is collected towards covering the risk of third party and therefore, rightly fastened liability on the Insurance Company which needs no interference. Therefore, prays to dismiss the appeal of the Insurance Company.
6. On the other hand, learned counsel for the Insurance Company submitted that the insurance policy issued is Contractor's Plant and Machinery Insurance policy, but not issued under the provisions of Motor -6- NC: 2023:KHC:24741 MFA No. 3723 of 2012 C/W MFA No. 4222 of 2012 Vehicle Act. Therefore, the insurance policy is a pure contractual policy for plant and machinery and in the said policy, the instant vehicles/machineries are covered. Hence, when the insurance policy is not a motor vehicle policy, but using the vehicle/machinery on public road, the accident is caused, hence, as per the clauses in the insurance policy issued, the Insurance Company is not liable to indemnify the owner as per Clause (h) in Exceptions in the insurance policy. Therefore, prays to allow the appeal of the Insurance Company.
7. As above discussed, admittedly, the insurance policy in the present case is Contractor's Plant and Machinery Policy (CPM Policy). There is no stipulation that the insurance policy is issued under the provisions of Motor Vehicles Act. The Contractual Policy is different from the Statutory Policy. Here the Insurance Policy is not a Statutory Policy, but it is the Contractual Policy in the nomenclature as Contractor's plant and machinery policy. Even though, the concrete mixer machine is fitted with a -7- NC: 2023:KHC:24741 MFA No. 3723 of 2012 C/W MFA No. 4222 of 2012 lorry and if it is movable from place to place, then considering this aspect, the owner has to purchase the insurance policy under the provisions of Motor Vehicles Act so as to cover the third party risk as per Section 147 of the Motor Vehicles Act, but the owner for the best reasons known to him had only purchased contractual policy, but not Motor Vehicles Insurance Policy so as to compulsorily cover the risk of third parties under Section 147 of the Motor Vehicles Act. In the said Exs.R1 and R2 insurance policy, it is stipulated that "risk location address as Gemini House, Bus depo lane, DNR Mumbai, Maharashtra.". Therefore, where the owner has purchased only CPM Policy and said policy is to be construed for Plant And Machinery only, but not Motor vehicles. Therefore, the owner has not purchased insurance policy so as to cover third party risk. This location risk address is covering risk only to third parties within the area where the machinery is working and machine is operated in the said location address only. If the said machinery is moved from one location to another location, during the transit, if any accident is -8- NC: 2023:KHC:24741 MFA No. 3723 of 2012 C/W MFA No. 4222 of 2012 caused, then as per Clause (h) of the terms and conditions of CPM policy, the public liability is not covered. Clause (h) of the terms and conditions of the CPM Policy clearly states if the said machinery is moving from one location to another location and during transit, if any mishap occurs causing loss or damage to third party, then the insurance company is not liable to cover risk of third parties. Accepting this clause, the owner has purchased the insurance policy. Therefore, the owner shall be bound by these terms and conditions, where the insurance policy is purchased as CPM Policy stating the risk to be covered in the said particular location address, then, even if third party premium is collected that covers the risk, if any mishap occurs in the said location address only while the machine carrying it's work. Clause (h) as stated above excludes the coverage of risk to any third party, which is in different location and during transit from one location to another location. Therefore, the Tribunal has not discussed in this regard the coverage of risk of third party as stated in the insurance policy. Therefore, where the insurance -9- NC: 2023:KHC:24741 MFA No. 3723 of 2012 C/W MFA No. 4222 of 2012 policy purchased is CPM Policy only, but not into Motor Vehicles Act, therefore, the owner has not purchased the insurance policy for compulsorily coverage risk of third parties in respect of a vehicle. Under these circumstances, the Insurance Company is not liable to pay compensation but the owner shall pay the compensation to the claimants.
8. The Tribunal has awarded the compensation under various heads as follows:
Sl.No. Particulars Compensation
awarded (in Rs.)
1. Pain and suffering 40,000.00
2. Loss of income during 12,000.00
treatment period
3. Medical expenses 20,000.00
4. Future loss of earning 32,760.00
5. Loss of amenities 20,000.00
6. Conveyance, nourishment, 10,000.00
attendant charges & diet
TOTAL 1,34,760.00
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NC: 2023:KHC:24741
MFA No. 3723 of 2012
C/W MFA No. 4222 of 2012
9. From the medical evidence on record, it is proved that the claimant has suffered following injuries:
i. Fracture of left clavicle.
ii. Fracture of left scapular neck.
iii. CLW over bridge of nose and left knee.
iv. Forehead hematoma.
10. The compensation amount granted under the head 'pain and suffering' is on the lesser side. Therefore, the same is enhanced to Rs.50,000/-.
11. The Tribunal has committed an error in taking notional income of Rs.3,000/- p.m., only but considering the year of accident occurred in 2009, the notional income is to be taken as Rs.5,000/- p.m., as recognized by the Karnataka State Legal Services Authority. Therefore, the 'loss of income during medical treatment period and laid up period' for four months, a compensation of Rs.20,000/- (Rs.5,000 x 4 months) is awarded.
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NC: 2023:KHC:24741 MFA No. 3723 of 2012 C/W MFA No. 4222 of 2012
12. The compensation granted under the head 'medical expenses' is as per actual medical bills and receipts and the same is kept intact.
13. Due to the injuries sustained as above discussed, the claimant had suffered following disability:
i. Pain over left shoulder, not able to life left arm above shoulder, not able to do any work with left hand, not able to sleep on left side. ii. Tenderness over left shoulder present. iii. Wasting present.
iv. Left shoulder-abduction-90 degrees, rotation 60 degrees.
v. Fractures are mal united.
vi. Restriction of movements is present.
14. The doctor had assessed the percentage of physical disability as 10% towards whole body. But the Tribunal without any reason has adopted only 7% towards whole body. Physical disability and functional disability are two different aspects. The claimant is handicraft by her avocation. For her livelihood, the work of handicrafts
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NC: 2023:KHC:24741 MFA No. 3723 of 2012 C/W MFA No. 4222 of 2012 requires fine movements and strength of hands from the shoulder to fingers but the claimant had suffered fracture to the left clavicle and fractured to left scapular neck. Certainly, which hampers functioning of handicraft work. Therefore, it is just and proper to take the disability as stated by the doctor. Accordingly, 10% towards whole body as functional disability is taken. The claimant was aged 50 years old. Hence, the appropriate multiplier applicable is '13'. Therefore, the 'loss of future income due to disability' is hereby re-assessed and quantified as under:
Rs.5,000 x 10/100 x 13 x 12 = Rs.78,000/-
Accordingly, a sum of Rs.78,000/- is awarded under the head 'loss of future income due to disability'.
15. Further, a compensation of Rs.30,000/- is awarded under the head 'loss of amenities'. The compensation of Rs.15,000/- is awarded under the head 'incidental expenses like conveyance, nourishment, etc.
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16. Thus, in all, the claimant is entitled for the following sums:
Sl.No. Particulars Compensation
awarded (in Rs.)
1. Pain and suffering 50,000.00
2. Loss of income during 20,000.00
treatment period
3. Medical expenses 20,000.00
4. Future loss of earning 78,000.00
5. Loss of amenities 30,000.00
6. Conveyance, nourishment, 15,000.00
attendant charges & diet
TOTAL 2,13,000.00
17. The Tribunal has awarded the compensation of Rs.1,34,760/- but the appellant/claimant is entitled to total compensation of Rs.2,13,000/-. Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.78,240/- (Rs.2,13,000 - Rs.1,34,760) with interest at the rate of 6% p.a. from the date of petition till realization, in addition to what has been awarded by the Tribunal.
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NC: 2023:KHC:24741 MFA No. 3723 of 2012 C/W MFA No. 4222 of 2012
18. Since the liability of payment of compensation is fixed on the owner of concrete mixer lorry, the Insurance Company is exonerated from payment of compensation. Hence, the appeal filed by the insurance company is allowed and the appeal filed by the claimant is allowed-in-part.
19. Hence, I proceed to pass the following:
ORDER i. MFA No.3723/2012 filed by the claimant is allowed-
in-part and MFA No.4222/2012 filed by the Insurance Company is allowed.
ii. The judgment and award passed by the Tribunal in MVC No.6023/2009 is hereby modified holding the claimant is entitled for enhanced compensation of Rs.78,240/- with interest @ 6% p.a., from the date of petition till its realization.
iii. The owner of the concrete mixer lorry bearing No.KA-17-A-6013 is liable to pay the compensation as determined above.
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NC: 2023:KHC:24741 MFA No. 3723 of 2012 C/W MFA No. 4222 of 2012 iv. The claimants are not entitled for interest for the delayed period of 219 days in filing the appeal.
v. Amount in deposit shall be refunded to the Insurance company, forthwith.
vi. No order as to costs. vii. Draw award accordingly.
viii. Registry is directed to return the Trial Court Records along with certified copy of this order, forthwith.
Sd/-
JUDGE KA List No.: 1 Sl. No.: 1 Ct:THK