Karnataka High Court
Sri Ramu Venkatesh vs Sri R Raghavendra on 20 September, 2024
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NC: 2024:KHC:38825
MFA No. 6214 of 2012
C/W MFA No. 6220 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 6214 OF 2012 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6220 OF 2012 (MV)
IN MFA No. 6214/2012
BETWEEN:
SRI K RAJENDRA KUMAR
S/O SRI SEETHARAM
AGE: 50 YEARS
OCC: REAL ESTATE BUSINESS
RESIDING AT NO.49,
K.K. GARDENDEVANAHALLI,
BELLANDUR ROAD,
BANGALORE
...APPELLANT
[BY SRI. SURESH M LATUR, ADVOCATE (VC)]
Digitally signed by
PRAJWAL A AND:
Location: HIGH COURT
OF KARNATAKA 1. SRI R RAGHAVENDRA
S/O SRI RAJENDRA KUMARNO.41,
DEVARABEESANAHALLI
BANGALORE EAST.
2. THE REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
UNITY BUILDING, MISSION ROAD,
BANGALORE-560027
...RESPONDENTS
(BY SMT. G.S. LAKSHMI DEVI, ADVOCATE FOR R1;
SRI S.V. HEGDE MULKHAND, ADV. FOR R2 (VC)
V/O DTD 04.01.2024 )
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NC: 2024:KHC:38825
MFA No. 6214 of 2012
C/W MFA No. 6220 of 2012
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 18.01.2012 PASSED IN MVC
NO.1405/2009 ON THE FILE OF THE X ADDITIONAL JUDGE, MEMBER,
MACT-16, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO. 6220/2012
BETWEEN:
SRI RAMU VENKATESH
S/O SRI M RAMU
AGE : 41 YEARS
R/AT NO.103,
MUNIYAPPA COMPOUND,
OLD MADRAS ROAD,
ULSOOR, BANGALORE-56
...APPELLANT
(BY SRI. SURESH M. LATUR, ADVOCATE)
AND:
1. SRI R RAGHAVENDRA
S/O SRI RAJENDRA KUMAR
RESIDING AT NO.41,
DEVARABEESANHALLI
BANGALORE EAST.
2. THE REGIONAL MANAGER
UNITED INDIA INSURANCE CO LTD.,
UNITY BUILDING, MISSION ROAD
BANGALORE-560 027.
...RESPONDENTS
(BY SMT. G.S. LAKSHMI DEVI, ADVOCATE FOR R1;
SRI S.V. HEGDE MULKHAND, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 18.01.2012 PASSED IN MVC
NO.1405/2009 ON THE FILE OF THE X ADDITIONAL JUDGE,
MEMBER, MACT-16, BANGALORE, PARTLY ALLOWING THE CLAIM
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NC: 2024:KHC:38825
MFA No. 6214 of 2012
C/W MFA No. 6220 of 2012
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS ARE COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In these two appeals, petitioners, apart from seeking enhancement of compensation, are questioning liability fastened against owner of the vehicle only.
2. For the sake of convenience, rank of the parties will be referred to as per their status before the Tribunal.
3. Brief facts of the case are, on 19.12.2008 at about 11:30 A.M while the petitioners were travelling in a Scorpio Car bearing Registration No.KA-53-M-8055, near Hoodi Village of Bengaluru, opposite to the TATA Elaxy Company, said vehicle was turned-turtle, due to which inmates of the vehicle sustained injuries. After taking treatment at various hospitals, the petitioners have approached the Tribunal for grant of compensation. The claim petition was opposed by the Insurance Company on the ground that the vehicle was used for 'hire and reward' and the Insurance Company has no liability to pay the compensation. The Tribunal, after taking -4- NC: 2024:KHC:38825 MFA No. 6214 of 2012 C/W MFA No. 6220 of 2012 evidence and hearing both the parties, assessed the compensation of Rs.1,94,400/- in MVC No.1404/2009 and Rs.1,08,200/- in MVC No.1405/2009 with interest at the rate of 8% per annum from the date of petition till the date of realization and directed the owner of the vehicle to pay the compensation by dismissing the claim against the Insurance Company. Pleading inadequacy, seeking enhancement and also questioning the liability fastened against the owner alone, the petitioners are before this Court.
4. Heard the arguments of Sri Suresh M.Latur, learned counsel for petitioners and Sri S.V.Hegde Mulkhand, learned counsel for the Insurance Company.
5. It is contended by the learned counsel for the petitioners that one of the petitioners is Software Engineer and another is a Real Estate Agent, who have suffered fractures of clavicle bone, which has disabled them in performing their duties. The Tribunal has not considered their income and taken only the notional income of Rs.4,500/- and assessed the disability. Compensation awarded under different heads are inadequate and sought for enhancement of compensation. To this extent, he has relied the judgment of Hon'ble Apex -5- NC: 2024:KHC:38825 MFA No. 6214 of 2012 C/W MFA No. 6220 of 2012 Court in Hari Om Constructions Vs. National Insurance Co. Ltd. and Others1.
6. It is further contended that the petitioners are the inmates of the Scorpio car and they are the third parties. The policy of the insurance is a private car package policy and the risk of the petitioners is covered. The Tribunal committed an error in fastening liability only against the owner of the vehicle. To support his contention, he has relied the judgment of Division Bench of this Court in United India Insurance Co.Ltd. Vs. Kalawathi and Others2 and also judgment of the Hon'ble Apex Court in New India Assurance Co.Ltd. Vs. Shanti Boppanna and Others 3.
7. Per contra, learned counsel for the Insurance Company has contended that the Scorpio Car is a private car. The policy of insurance as per Exhibit R1 is a private car package policy. The policy was issued subject to limitation of use and it cannot be used for 'hire and reward'. Evidence on record clearly point out that the petitioners have hired the said 1 2023 ACJ 595 2 2011 (3) ACJ 1831 3 2017 ACJ 2045 -6- NC: 2024:KHC:38825 MFA No. 6214 of 2012 C/W MFA No. 6220 of 2012 vehicle from the owner and they were travelling in the said vehicle in contravention of the terms and conditions of the policy. Hence, the Tribunal is right in exonerating the Insurance Company and asking the petitioners to recover from the owner of the vehicle.
8. It is further contended that the petitioners have suffered only fracture of clavicle bones, which are ornamental bones and no disability will be arises as Software Engineer and Real Estate Agent. No evidence is placed on record to show that how the fracture affected the earning capacity of the petitioners.
9. It is also contended the Tribunal has awarded interest at the rate of 8% per annum and no banks will offer interest at the said rate and no reasons is recorded by the Tribunal in awarding higher rate of interest. The Tribunal erroneously awarded compensation towards disfiguration and also permanent disability in addition to the loss of future income and he sought for modification of the award. To support his contention, he has relied upon the judgment of -7- NC: 2024:KHC:38825 MFA No. 6214 of 2012 C/W MFA No. 6220 of 2012 the Hon'ble Apex Court in New India Assurance Co.Ltd. Vs. Asha Rani and Others4.
10. I gave my anxious consideration to the arguments addressed by both sides and perused the materials on record.
11. Occurrence of the accident, Scorpio Car is a private car, petitioners were inmates in the said private car and they have hired the same from the owner and they used the same for transportation and the policy is a private car package policy, which covers the risk of the inmates of the car are not in dispute.
12. Three points that arise for consideration are:
(i) Quantum of compensation;
(ii) Rate of interest; and
(iii) Liability on the part of the Insurance
Company to indemnify the owner of the
private vehicle used for hire or reward.
13. As regarding the quantum of compensation is concerned, the accident is of the year 2008. The petitioner in MVC No.1404/2009 has suffered fracture of both right and leg 4 2003 (2) SCC 223 -8- NC: 2024:KHC:38825 MFA No. 6214 of 2012 C/W MFA No. 6220 of 2012 clavicle, wherein the petitioner in MVC No.1405/2009 has suffered fracture of lateral part of left clavicle. They were under hospitalization for four and two days respectively. PW.2-Doctor, who evaluated them to explain whole body disability sustained by them are 6% and 11%, the Tribunal considered at 6% for both. Having regard to the nature of injuries and the treatment provided with 'K' wire fixation, it is proper to ratify the reasoning assigned by the Tribunal that both the petitioners have sustained physical disability at 6%. Re: in MVC No.1404/2009
14. Petitioner is aged 38 years and sustained fracture of both right and left clavicle. He was under hospitalization for four days and spent Rs.77,300/- for his treatment. Hence, he has to be compensated with Rs.20,000/- towards pain and suffering; Rs.77,300/- towards medical expenses; Exhibit P9 speaks that he has lost salary for 46 days to an extent of Rs.24,058/- and the same has to be reimbursed; Rs.20,000/- towards loss of amenities and discomfort and Rs.8,000/- towards incidental expenses such as attendant charges, food & nourishment and conveyance; Rs.10,000/- towards future -9- NC: 2024:KHC:38825 MFA No. 6214 of 2012 C/W MFA No. 6220 of 2012 medical expenses as spoken by the medical evidence for implant removal has to be assessed.
15. As regarding loss of future income is concerned, it is argued that the petitioner is a Software Engineer and he was drawing salary of Rs.51,038/- to this extent, Exhibit P8 is the salary certificate. Exhibit P8 does not point out what are the details of the salary. If Exhibit P8 is compared with Exhibit P9, the basic salary of the petitioner will be Rs.16,200/-. If that is so, what are the other particulars of the salary is not furnished. Provident Fund and Income Tax & professional tax details are also not forthcoming. The medical evidence did not speak of the avocation of the petitioner and the medical evidence is not speaking anything about the manner in which the injuries is effecting the earning capacity of the petitioner. Hence, the disability has to be taken as physical disability and the same is not effecting the earning capacity of the petitioner but it is effecting him physically for which he has to be compensated by taking the notional income for consideration and not on his salary for the year 2008. Then the loss of physical disability will be Rs.4,500*12*15*6% = Rs.48,600/-
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NC: 2024:KHC:38825 MFA No. 6214 of 2012 C/W MFA No. 6220 of 2012
16. Therefore, petitioner is entitled for compensation as follows:
SL.NO. PARTICULARS AMOUNT
1 Pain & Suffering Rs.20,000/-
2. Medical Expenses Rs.77,300/-
3. Loss of income during laid up Rs.24,058/-
period
4. Loss of amenities & discomfort Rs.20,000/-
5. Incidental expenses: Rs.8,000/-
Attendant charges, Food &
nourishment and Conveyance
6. Future Medical expenses Rs.10,000/-
7. Loss of future income Rs.48,600/-
TOTAL Rs.2,07,958/-
LESS: Compensation awarded by the Rs.1,94,400/-
Tribunal
ENHANCED COMPENSATION Rs.13,558/-
Re: in MVC No.1405/2009
17. Petitioner is aged 54 years. He is a Real Estate
Agent. He has suffered fracture of both right and left clavicle. He was under hospitalization for two days and spent Rs.26,000/- towards his treatment. Medical evidence let in by the Doctor-PW.5 is placed to explain 6% physical disability is sustained by him. Given regard to the nature of injuries, he has to be compensated with Rs.15,000/- towards pain and
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NC: 2024:KHC:38825 MFA No. 6214 of 2012 C/W MFA No. 6220 of 2012 sufferings; Rs.20,000/- towards medical expenses; loss of income for four months laid up period-Rs.18,000/-; loss of amenities and discomfort - Rs.15,000/- and Rs.5,000/- towards incidental expenses such as attendant charges, food & nourishment and conveyance has to be assessed. Hence, loss of future income will be Rs.4,500*12*11*6% = Rs.35,700/-
18. Therefore, petitioner is entitled for compensation as follows:
SL.NO. PARTICULARS AMOUNT
1. Pain & Suffering Rs.15,000/-
2. Medical Expenses Rs.26,000/-
3. Loss of income during laid up Rs.18,000/-
period
4. Loss of amenities & discomfort Rs.15,000/-
5. Incidental expenses: Rs.5,000/-
Attendant charges, Food &
nourishment and Conveyance
6. Loss of future income Rs.35,700/-
TOTAL Rs.1,14,700/-
LESS: Compensation awarded by the Rs.1,08,200/-
Tribunal
ENHANCED COMPENSATION Rs.6,500/-
It is the just compensation that the petitioners are entitled to in the facts and circumstances of both the cases.
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NC: 2024:KHC:38825 MFA No. 6214 of 2012 C/W MFA No. 6220 of 2012
19. As regarding interest is concerned, as rightly contended by the learned counsel for the Insurance Company, no banks will offer interest at 8% p.a. at relevant point of time. the Tribunal did not offer any explanation for awarding such higher rate of interest. Since the Insurance Company is not in appeal, it is not proper to meddle with the discretion of the Tribunal. In so far as the enhanced compensation, the petitioners have to be awarded interest at 6% p.a., only.
20. As regarding liability is concerned, there is no dispute that the vehicle in question is a private car. It is covered with a private car package policy, which covers risk of the inmates of the car. There is no issue regarding driving licence of the vehicle. It is the specific contention of the Insurance Company that there is a violation of the terms and conditions of the policy as the policy was issued subject to limitation of use and it shall not be used for 'hire and reward'.
21. Evidence on record clearly points out that petitioners were travelling in the said car by hiring the vehicle from its owner. Hence, breach of terms and conditions of the policy is inevitable. Adverting to the argument of the learned counsel for the petitioners relying upon the judgment in the
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NC: 2024:KHC:38825 MFA No. 6214 of 2012 C/W MFA No. 6220 of 2012 case of Kalawathi supra where the vehicle belonging to the University, students were carried in the said vehicle. The vehicle was covered with comprehensive policy covering the risk of the inmates of the private vehicle. Since there was no evidence let in to prove that the said vehicle was hired, the Division Bench of this Court has held that the Insurance company cannot avoid its liability.
22. In Shanthi Boppanna supra, the Hon'ble Apex Court, while dealing with a case of employer carrying an employee in its private car. The vehicle was not used for hire and reward. In such circumstances, it is held that the inmate i.e., the employee of the employer is a third party and policy covers the risk of the inmates and directed the Insurance Company to pay the compensation. Said principle is not applicable to the facts of this case, there is a clear evidence that private car was used for 'hire and reward'.
23. Adverting to the argument of the learned counsel for the Insurance Company that the defence is available to the Insurance Company under Section 149(2) of the Motor Vehicles Act, 1988. On careful perusal of the Section 149 and also with reference to the limitation of use of the vehicle as mentioned in
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NC: 2024:KHC:38825 MFA No. 6214 of 2012 C/W MFA No. 6220 of 2012 the policy of insurance under Exhibit R1, the defence is available to the Insurance Company as contemplated under Section 149(2)(a)(i)(a) of the Motor Vehicles Act, 1988.
24. In case of Asha Rani supra, the Hon'ble Apex Court, while dealing with a passenger being carried in a goods vehicle, such passenger being a third party under Section 147(1)(b)(i) held that the policy of insurance would deemed to have covered even without making premium in respect of the third party. It is further held that the Insurance Company can avoid its liability under section 149(2)(c) where the issue was regarding the permit. But as the statue itself provides a defence in favour of the Insurance Company, the evidence did point out that there is a fundamental breach of terms and conditions of the policy, the Insurance Company can avoid its liability to indemnify the owner. Since the vehicle is covered by the policy of insurance, premium was paid to the inmates of the vehicle and it is the case for adopting the principle of 'pay and recovery'. Hence, the Insurance Company has to deposit the compensation and recover the same from the owner of the vehicle. Accordingly, the point of liability is answered.
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25. In view of the above discussion, the appeal merits consideration. In the result, the following:
ORDER
(i) Both appeals are allowed in part;
(ii) Impugned judgment and award is modified;
(iii) Petitioner in MVC No.1404/2009 is entitled for enhanced compensation of Rs.13,558/- with interest at 6% p.a. from the date of petition till the date of deposit except for 420 days for filing the appeal belatedly and also recalling application.
(iv) Petitioner in MVC No.1405/2009 is entitled for enhanced compensation of Rs.6,500/- with interest at 6% p.a. from the date of petition till the date of deposit; and
(v) Insurance Company is directed to deposit the enhanced compensation with proportionate interest (supra) within eight weeks from the date of receipt of certified copy of this judgment and recover the same from the owner of the vehicle in the same proceedings.
SD/-
(T.G. SHIVASHANKARE GOWDA) JUDGE AV List No.: 2 Sl No.: 1