Karnataka High Court
The Divisional Manager vs Sachchidanandamurthy M.B. S/O ... on 7 July, 2023
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NC: 2023:KHC-D:6857
MFA No. 22077 of 2012
C/W MFA No. 22076 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
MISCELLANEOUS FIRST APPEAL NO.22077/ 2012 (MV-I)
C/W MISCELLANEOUS FIRST APPEAL NO.22076/2012
IN M.F.A.NO.22077/2012:
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
SUJATHA COMPLEX, OPP.P.B.ROAD, HUBLI,
INSURER OF THE VEHICLE BEARING REG.NO.KA 27/3042)
POLICY NO.602508/31/08/6700001301VALID FROM
30/06/2008 TO 29/06/2009 NOW REPRESENTED BY
ADMINISTRATIVE OFFICER, REGIONAL OFFICE,
SUJATHA COMPLEX, P.B. ROAD, HUBLI.
...APPELLANT
(BY SRI KARTIK GANACHARI, ADVOCATE FOR
SRI SURESH S. GUDI, ADVOCATE)
AND:
1. SACHCHIDANANDAMURTHY M.B.,
Digitally S/O MALATESHWARA,
signed by
VINAYAKA AGE: 51 YEARS, OCC: ASST. MASTER IN
BV B.R.AMBEDKAR HIGH SCHOOL,
R/O: OLD SHIDENUR, TQ : BYADAGI,
DIST : HAVERI.
2. RAINDRANATH S. RAVAL S/O. SHIRABJI,
AGE : MAJOR, OCC : BUSINESS,
R/O:LIRIBABERD, P.NO.HAMSABHAVI ROAD,
BYADAGI, DIST: HAVERI (OWNER OF THE VEHICLE
BEARINGREG.NO.KA-27/3042).
...RESPONDENTS
(BY SRI G.S. HULMANI, ADVOCATE FOR R1;
NOTICE TO R2 IS HELD SUFFICIENT)
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NC: 2023:KHC-D:6857
MFA No. 22077 of 2012
C/W MFA No. 22076 of 2012
THIS MFA IS FILED U/S 173(1) OF M.V. ACT, 1988, PRAYING
TO SET ASIDE THE COMMON JUDGMENT AND AWARD DATED 01-02-
2012 PASSED IN MVC NO.72/2010 ON THE FILE OF SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL,
ITERNATE COURT, BYADAGI AND ETC.
IN M.F.A.NO.22076/2012:
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
SUJATHA COMPLEX, OPP.P.B.ROAD, HUBLI,
INSURER OF THE VEHICLE BEARING REG.NO.KA 27/3042)
POLICY NO.602508/31/08/6700001301VALID FROM
30/06/2008 TO 29/06/2009 NOW REPRESENTED BY
ADMINISTRATIVE OFFICER, REGIONAL OFFICE, HUBLI.
...APPELLANT
(BY SRI KARTIK GANACHARI, ADVOCATE FOR
SRI SURESH S. GUDI, ADVOCATE)
AND:
1. AMBAREESH S/O. MANNABASAPPA HADAPAD,
AGE: 17 YEARS, OCC: STUDENT AND COOLI WORK,
R/O: SHIDENUR, SINCE MINOR REPRESENTED BY HIS
NEXT FRIEND AND M/G FATHER MANNABASAPA
S/O. BASAVANNEPPA HADAPAD,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: OLD SHIDENUR, TQ: BYADAGI,
DIST:HAVERI.
2. RAVINDRANATH S. RAVAL S/O. SHIRABJI,
AGE : MAJOR, OCC : BUSINESS,
R/O:LIRIBABERD, PND HAMSABHAVI ROAD,
BYADAGI, DIST: HAVERI (OWNER OF THE VEHICLE
BEARINGREG.NO.KA-27/3042).
...RESPONDENTS
(BY SRI G.S. HULMANI, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED)
THIS MFA IS FILED U/S 173(1) OF M.V. ACT, 1988, PRAYING
TO SET ASIDE THE COMMON JUDGMENT AND AWARD DATED 01-02-
2012 PASSED IN MVC NO.71/2010 ON THE FILE OF SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL,
ITERNATE COURT, BYADAGI AND ETC.
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NC: 2023:KHC-D:6857
MFA No. 22077 of 2012
C/W MFA No. 22076 of 2012
THESE APPEALS, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 31.05.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The National Insurance Company Limited being the insurer is impugning the common judgment and award dated 01.02.2012 passed in M.V.C. No. 71/2010 and 72/2010 on the file of the learned Senior Civil Judge and AMACT, Iternate Court, Byadagi (hereinafter referred to as the Tribunal), challenging its liability to pay the compensation and also the quantum of compensation awarded.
Parties shall be referred to as per their ranking before the Tribunal.
2. The undisputed facts of the case are that on 31.12.2008 the claimants were traveling in the tempo bearing reg. no. KA- 27/3042, which met with an accident due to the rash and negligent driving of the driver as it hit the tree by the side of the road. It is stated that the claimants have sustained injuries and thus they have filed separate claim petitions before the Tribunal.
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3. The claim of the claimants was disputed by respondent No.2-Insurance company on the ground that the driver of the offending vehicle was not holding valid and effective driving licence to drive the same. It also contended that it had issued an Act policy and therefore the risk of the passengers was not covered under the policy. Interalia it also contended that the claimant was not entitled for any compensation.
4. The claimant examined PWs.1 to 4 and got marked Exs.P.1 to P.43 in support of their contention. Respondent No.2 examined RW1 and got marked Ex.R.1 in support of its defence. The Tribunal after taking into consideration all these materials on record came to the conclusion that the claimant in M.V.C. No. 71/2010 is entitled for compensation of Rs.1,05,500/-, whereas the claimant in M.V.C. No. 72/2010 is entitled for compensation of Rs.3,04,906/- and that respondents No.1 and 2 are jointly and severally liable to pay compensation. Being aggrieved by the same, the respondent no.2-insurer has preferred these appeals.
5. I have heard Sri Kartik Ganachari, learned counsel appearing for the appellant-insurance company and Sri Girish -5- NC: 2023:KHC-D:6857 MFA No. 22077 of 2012 C/W MFA No. 22076 of 2012 S. Hulamani, learned counsel for the claimant and perused the impugned judgment and award.
6. Learned counsel for the appellant contended that income of the claimant in M.V.C. No. 72/2010 is not proved. He has not suffered any disability. Under such circumstances, the compensation awarded by the Tribunal is on the higher side. He also contended that the injuries suffered by the claimant in M.V.C. No. 71/2010 was only one fracture but the Doctor who is examined as PW4 opined that he has suffered disability of 35% to the particular limb. The Tribunal assessed disability at 15% without any basis. Therefore, the compensation awarded in M.V.C. No. 71/2010 is on higher side.
7. Learned counsel further submitted that the driver of the offending vehicle was not holding valid and effective driving licence. Ex.R.2 is the driving licence particulars according to which he was not holding valid driving licence. Moreover, Ex.R.1 is the copy of the insurance policy according to which it is an 'Act Only Policy' and only the third party risk is covered. The Tribunal has not taken into consideration any of these facts, proceeded to award the compensation and directed the -6- NC: 2023:KHC-D:6857 MFA No. 22077 of 2012 C/W MFA No. 22076 of 2012 appellant to pay it. Hence, he prays for setting aside the impugned judgment and award passed against the appellant and to hold that the appellant is not liable to pay compensation as there is violation of the terms and conditions of the policy and as the risk of the passenger was never covered under Ex.R.1. Accordingly, he prays for allowing both the appeals.
8. Per contra, learned counsel for the claimant opposing the appeals submitted that the claimant in M.V.C. No. 72/2010 was serving as a Teacher in a Government School and was earning Rs.19,651/- per month as salary. Ex.P.14 is the salary certificate, on the basis of the same the Tribunal awarded a reasonable compensation. There is no reason to interfere with the same.
9. Learned counsel also submitted that the claimant in M.V.C. No. 71/2010 sustained contusion with abrasion over left ankle joint and other injuries. PW4 is the Doctor who treated him as he has taken treatment as an inpatient for 17 days. Witness categorically stated that the claimant has suffered disability at 35% to the limb and therefore the Tribunal taken it at 15% and awarded reasonable compensation of -7- NC: 2023:KHC-D:6857 MFA No. 22077 of 2012 C/W MFA No. 22076 of 2012 Rs.1,05,500/-. There is no reason to interfere with the same and therefore he prays for dismissal of the appeals.
10. Learned counsel further submitted that in view of the principles laid down by the Apex Court in Mukund Dewangan V. Oriental Insurance Co. Ltd. 1, the driver of the offending vehicle was holding valid driving licence. He further submitted that since claimants were passengers in the passenger vehicle, their risk is covered even under the Act policy and therefore the Tribunal was right in directing the appellant to deposit the compensation amount. Accordingly, he prays for dismissal of both the appeals with costs.
11. I have perused the material on record including the impugned judgment.
12. The only point that arises for consideration in these appeals are:
Whether the impugned judgment and award passed by the Tribunal calls for interference by this Court?
13. My answer to the above point is in the affirmative for the following 1 2017 ACJ 2011 -8- NC: 2023:KHC-D:6857 MFA No. 22077 of 2012 C/W MFA No. 22076 of 2012 REASONS
14. The claimant in M.V.C. No. 71/2010 was a minor aged 15 years and he sustained medial malleolar fracture of ankle joint which was treated surgically with K-Wire, as per Ex.P.31. He was admitted to the hospital and treated as inpatient for 17 days as per the discharge summary Ex.P.32. PW4 is the Doctor who treated the claimant and he opined that the claimant has suffered disability upto 35% to the limb. The Tribunal has taken disability at 15%. Taking into consideration these materials on record the Tribunal awarded compensation of Rs.1,05,500/-. This amount cannot be termed as exorbitant or unreasonable, looking to the nature of injuries sustained by the claimant.
15. The claimant in M.V.C. No. 72/2010 was a Teacher and as per Ex.P.14 the salary certificate he was earning Rs.19,651/-. Even though witness was examined before the Tribunal, respondent No.2 has not disputed this document. The claimant has suffered fracture of metatarsal bone comminuted fracture in left hip, as per Ex.P.6. However, he has not suffered any disability. Considering the nature of injury and the duration of -9- NC: 2023:KHC-D:6857 MFA No. 22077 of 2012 C/W MFA No. 22076 of 2012 the treatment taken by the claimant, the Tribunal awarded compensation of Rs.3,04,906/-. Learned counsel for the appellant could not justify his contention that the compensation awarded is on the higher side. Therefore, I am of the opinion that there are no reasons to interfere with the quantum of compensation awarded by the Tribunal.
16. Now coming to the contention of the appellant that the driver of the offending vehicle was not having valid and effective driving licence to drive the same. The appellant produced the endorsement issued by the licencing authority, i.e., Regional Transport Officer, Haveri, according to which, the driver of the offending vehicle was holding the licence to drive the Light Motor Vehicle (NT), which was issued on 17.04.2007 and valid upto 16.04.2027. The accident had occurred on 31.12.2008, i.e., during the validity of the driving licence. It is the contention of the appellants that since there was no endorsement to enable the driver to drive the transport vehicle and since the licence was to drive the Light Motor Vehicle (N.T.), the Insurance Company is not liable.
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17. The Hon'ble Apex Court in Mukund Dewangan (supra), considered the similar situation and discussed at length about the liability of the insurance company and arrived at a conclusion by answering the question that was referred to, as under:
(i) 'Light motor vehicle' as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994.
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, 'unladen weight' of which does not exceed 7500 kg. and holder of a driving licence to drive class of "light motor vehicle" as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the "unladen weight" of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.
(iii) The effect of the amendment made by virtue of Act No.54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to
(h) of section 10(2) which contained "medium goods vehicle"
in section 10(2)(e), medium passenger motor vehicle
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NC: 2023:KHC-D:6857 MFA No. 22077 of 2012 C/W MFA No. 22076 of 2012 in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression 'transport vehicle' as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2)(d) and section 2(41) of the Act i.e. light motor vehicle.
(iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.
(emphasis supplied) Thus the position of law on the subject is very well settled and the insurer can not dispute its liability on that ground.
18. The last contention raised by the learned counsel for the appellant is that since the claimants were passengers in the offending vehicle they are not covered under the Act policy which is as per Ex.R.1. Ex.R.1 is the liability only policy that was issued in the name of respondent No.1-owner of the offending vehicle. As per Ex.R.1 no extra premium is collected
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NC: 2023:KHC-D:6857 MFA No. 22077 of 2012 C/W MFA No. 22076 of 2012 to cover the risk of the inmates of the vehicle or in other words, Ex.R.1 is an Act Policy to cover the risk as provided under the Act and it is not a contractual policy.
19. The Hon'ble Apex Court in United India Insurance Co. Ltd., Shimla V. Tilak Singh and Others 2 considered the liability of the insurer to pay the compensation u/s 147 of the Act to cover the risk of death or injury to gratuitous passenger carried in a private vehicle, held that, an Insurance Policy u/s 147 of the Act does not cover such risk. The Apex Court again referring to its earlier decision in New India Assurance Co. Ltd. V. Asha Rani3 held in paragraph no. 21 as under:
"21. In our view, although the observations made in Asha Rani case were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Thus, we must uphold the contention of the appellant Insurance Company that it owed no liability towards the injuries suffered by the deceased Rajinder Singh who was a pillion rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger."2
(2006) 4 SCC 404 3 (2003) 2 SCC 223
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20. The Division Bench of this Court in the case of The Branch Manager, The New India Assurance Co. Ltd. vs. Mahadev Pandurang Patil and Another 4 considered at length about the risk of the occupant in a car or inmate of a vehicle or a passenger in a private car under statutory coverage and held at paragraph nos. 14, 15, 16 and 17 as under:
"14. From the scheme of Chapter XI, the statutory insurance which is made mandatory is only to protect the interest of third parties. Section 146 deals with the necessity for insurance against third party risks. Section 147 deals with the requirements of sub-Section (1) of Section 147 speaks of liability which may be incurred by the owner of a vehicle in respect of death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place. Whereas sub-Clause (ii) thereof deals with liability which may be incurred by the owner of a vehicle against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. Section 2(35) of the Act defines what a public service vehicle means, i.e., any Motor Vehicle used or adopted to be used for the carriage of passengers for hire or reward and includes a maxi cab, a motor cab, contract carriage and stage carriage. Proviso appended thereto categorically states that compulsory coverage in respect of drivers and conductors of public service 4 ILR 2012 KAR 1841
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NC: 2023:KHC-D:6857 MFA No. 22077 of 2012 C/W MFA No. 22076 of 2012 vehicle and employees carried in a goods vehicle however the liability in so far as they are concerned is limited to the liability under the Workman's Compensation Act. It does not speak of any passenger in a 'Goods carriage'. Therefore, it is clear the statutory insurance is confined to the death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place.
15. Therefore, the passenger of a vehicle which is not meant for public service is not covered under this Section. The said passenger in the case of a two wheeler is the pillion rider and in the case of three wheeler and four wheeler the occupants of such vehicle who are not carried in the sid vehicle for hire or reward. Therefore, the insurance policy taken in respect of a vehicle, in which they are traveling as such passengers are not treated as third parties and such an insurance do not cover the risk of such persons. The reason is Section 147 does not require a policy to cover the risk to passengers who are not carried for hire or reward. The statutory insurance does not cover injuries suffered by occupants of the vehicle who are not carried for hire or reward and the insurer cannot be held liable under the Act. The occupants/ passengers/ inmates of a private vehicle do not fall within the definition of the word third party. Therefore, the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of the vehicle, passengers in such private vehicle or a pillion rider in the case of a two wheeler. Gratuitous passengers who are not carried for hire or reward in a vehicle other than a public service vehicle, cannot be construed as third parties.
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16. If the risk of an occupant of a car, inmate of a vehicle or passenger in a private car, is to be covered, additional premium has to be paid. If no additional premium is paid, their risk is not covered. The statutory liability under Sections 146 and 147 of the Act has to be read with the terms of the insurance policy issued under Section 146 of the Act. But that does not prevent an insurer from entering into a contract of insurance covering the risk wider than the minimum requirement of the statute, whereby the risk to gratuitous passengers could also be covered. A third party policy does not cover liability to gratuitous passengers who are not carried for hire or reward. If a liability other than the limited liability provided for under the Act is to be enhanced under an insurance policy, additional premium is required to be paid. The liability is restricted to the liability arising out of the statutory requirements under Section 14 only.
17. In view of the authoritative pronouncement of the Apex Court holding that an occupant/ inmate/ passenger in a private car, is not a third party, the finding recorded by the Tribunal that the insurance policy issued covers the risk of such persons and therefore the insurance company is liable to pay compensation amount is illegal and contrary to the law declared by the Apex Court. In fact, in the policy, no additional premium is received by the insurance company to cover the risk of such persons. It is clear from the terminology used in the policy which fact is not in dispute. In one of the cases, additional premium is collected to loading the risk of third party only, as it clear from the policy that loading was not meant to cover risk of inmates of a private car and therefore, merely because an additional premium is collected under the
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NC: 2023:KHC-D:6857 MFA No. 22077 of 2012 C/W MFA No. 22076 of 2012 said policy, it cannot be inferred that the risk of inmates of a car are covered. The words are specific that the loading is done in order to cover only third party risk, it is not a case of additional premium being collected to cover the risk of inmates along with third parties. Therefore, in the facts of this case, we are satisfied, as the insured has not paid additional premium and the insurance company has not collected any additional premium, the risk of the occupants of a private car was not covered. Therefore, liability foisted on the insurance company cannot be sustained and accordingly, it is hereby set aside."
(emphasis supplied)
21. The decision of the Apex Court in Tilak Singh (supra) and the decision of the Division Bench of this Court in Mahadev Pandurang Patil (supra) was again considered by the Co-ordinate Bench of this Court in National Insurance Co. Ltd., V. Sri Srinivasa and others5 and held in paragraph no. 16 as under:
"16. The judgments referred to above clearly disclose that in case of the inmate traveling in a private car where the vehicle is covered by the Act Policy, the insurance company is not liable to compensate the claimant unless additional premium is paid. In the instant case, no document has been produced to show that the owner of the vehicle has paid additional premium to cover the risk of inmates of the car. Hence, the 5 MFA No. 4246/2009 date of disposal 01.07.2017
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NC: 2023:KHC-D:6857 MFA No. 22077 of 2012 C/W MFA No. 22076 of 2012 judgment and award passed by the Tribunal is not sustainable. The owner of the vehicle has to compensate the claimant.
(emphasis supplied) These decisions make it clear that the 'Act or liability only policy' issued by the insurer, without collecting additional premium to cover the risk of the inmates in a private car will not cover their risk.
22. Learned counsel for the claimant contended that even if the Courts were to come to the conclusion that the insured is not entitled for indemnity, since the claimants are third parties, they are entitled for an order to pay and recover against the insurer. He placed reliance on the decision of the Full Bench of this Court in New India Assurance Co. Ltd., Bijapur by its Divisional Manager V. Yallavva and Another 6. The questions referred to the Full Bench are as follows:
1) If it is shown the insurance policy is not 'Act' policy in terms of Sections 145 and 147 of the Motor Vehicles Act, but a contractual policy issued collecting extra premium indicating insurance company has enlarged its liability, will not the insurance company be liable to pay and recover even if there is any breach by the insurer?6
ILR 2020 KAR 2239
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2) In such cases, is not the rule to 'pay and recover' applicable in view of the mandate in Section 149. M.V. Act that upon issuance of policy, the insurer is bound to discharge the award as if it were a judgment debtor?
(emphasis supplied)
23. The bare reading of the questions referred to the Full Bench disclose that the controversy involved and decided it is in respect of a contractual policy issued by collecting extra premium, but not an 'Act Policy' in terms of Sec. 145 and 147 of the M.V. Act. Therefore, the said decision is not applicable to the facts of the case.
24. Thus the discussions held above disclose that the risk of the passengers in a private vehicle who are not carried in the vehicle for hire or reward when the insurance coverage is 'Act only' or 'liability only' is not covered and the insured is not entitled to be indemnified by the insurer. It is also clear that such passengers carried in the private vehicle are not considered as third parties to cover their risk u/s 147 of the M.V. Act.
25. The Tribunal has not taken into consideration this settled proposition of law and proceeded to allow the claim petition
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NC: 2023:KHC-D:6857 MFA No. 22077 of 2012 C/W MFA No. 22076 of 2012 against the insurer and therefore it calls for interference. Hence, I answer the above point in the affirmative and proceed to pass the following order.
ORDER The appeals preferred by the appellant-insurer are allowed with costs.
Consequently, the common judgment and award dated 01.02.2012 passed in M.V.C. No. 71/2010 and 72/2010 on the file of the learned Senior Civil Judge and AMACT, Iternate Court, Byadagi, is modified. It is held that respondent no.2- insurer who is the appellant herein, is not liable to indemnify the insured and not liable to pay any compensation to the claimants. It is only the respondent no.1-the insured is liable to pay the compensation to the claimants.
The amount in deposit made by the appellant-insurer is ordered to be refunded on due identification.
Draw Decree accordingly.
SD/-
JUDGE BVV / List No.: 1 Sl No.: 1