Karnataka High Court
S.V.Devaraj S/O Eeraiah vs M S Srinivasa on 24 February, 2014
Bench: Mohan.M.Shantanagoudar, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24th DAY OF FEBRUARY, 2014
PRESENT
THE HON'BLE MR.JUSTICE MOHAN.M.SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE B. SREENIVASE GOWDA
MFA NO.8494 OF 2009 (MV)
BETWEEN:
S. V. Devaraj,
S/o. Eeraiah,
Aged about 37 years,
Residing at Somanathapura,
Akkur Post, Virupakshipura (H),
Channapatna Taluk,
And also at
C/o. S. L. Madhusudan, No.11,
5th Main, 3rd Cross, Byatarayanapura,
New Extension,
Ramanagara District. ... Appellant
( By Sri. K. M. Murari Mouni, Advocate)
AND:
1. Sri. M. S. Srinivasa,
S/o. Shankarappa,
Residing at No.796,
Nagarabhavi, 9th Block,
2nd Stage, Bangalore - 560 026.
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2. The General Manager,
United India Insurance Company Limited,
No.40, Lakshmi Complex,
K. R. Road,
Bangalore - 560 002. ... Respondents
(By Sri. S. G. Nataraju, Advocate for R.1,
Sri. B. C. Seetharama Rao, Advocate for R.2)
This MFA filed under section 173(1) of MV Act
against the Judgment and award dated 05.06.2009
passed in MVC No.2510/2007 on the file of the IXth
Additional Judge, Member, MACT-7, Court of Small
Causes-7, Bangalore, partly allowing the claim
petition for compensation and seeking enhancement
of compensation.
This appeal having been heard and reserved
for judgment, coming on for pronouncement of
Judgment this day, B. SREENIVASE GOWDA J.,
delivered the following:
JUDGMENT
3 JUDGMENT This appeal is filed by the claimant challenging the award made by the Tribunal both on the ground of quantum as well as liability.
2. For the sake of convenience, parties are referred to as they are referred to in the claim petition before the Tribunal.
3. The facts leading to this case are stated as under:
That on 11.10.2006 at about 9.30 a.m. when claimant was riding his Hero Honda Motor Cycle bearing Registration No.KA 05 EN 6047 towards Channapatna on Santhe Mogenahalli Road, the driver of goods tempo bearing Regn.No.KA 40 184 drove the same in a rash and negligent manner and dashed against his motorcycle, as a result he sustained multiple injuries. Immediately he was admitted to NIMHANS and thereafter he continued treatment as in-4
patient in St.Johns Medical College Hospital, Sagar Appollo Hospital, Hosmat Hospital and Vijay Eye Clinic and Research Centre and spent a huge sum towards medical and incidental expenses. Hence, he filed a claim petition in MVC No.2510/2007 before the MACT, Court of Small Causes, Bangalore, seeking compensation of Rs.20,00,000/- from the owner and the insurer of offending goods vehicle under section 166 of the Motor Vehicles Act, 1988.
4. The Tribunal, by the impugned Judgment and Award has awarded compensation of Rs.2,45,000/- with interest at 6% p.a. and directed the owner of the offending vehicle to deposit the compensation amount on the ground that the driver of the offending vehicle did not possess an effective and valid driving licence to drive the offending vehicle which is classified as transport vehicle relying upon the Judgment of the Apex 5 Court in the case of Oriental Insurance Co.Ltd., vs. Angad Kol reported in 2009 ACJ 1411.
5. We have heard the learned counsel appearing for the parties and perused the Judgment and Award passed by the Tribunal including the records of the Tribunal.
6. The learned Counsel for the claimant submits, the Tribunal is not justified in coming to a conclusion that in-patient records of Sagar Apollo Hospital do not disclose any injury sustained by the claimant to his right eye and loss of eye sight happened to his right eye is not on account of injury sustained by him in the accident. He submits, the Tribunal without considering the fact that claimant has sustained multiple fractures and injury to right eye in the accident in question and there is loss of eye sight, has committed an error by awarding meager compensation.
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7. Regarding liability, he submits, eventhough the owner of the offending vehicle has specifically contended that the driver of his goods vehicle was having valid and effective driving licence to drive the offending vehicle, the Tribunal has committed an error in holding that the driver was not possessing an effective and valid driving licence to drive the offending vehicle. He submits, RW.1 the Deputy Manager of second respondent-Insurance Company was not an authorized person to speak about the Driving Licence. He submits, the Tribunal has failed to consider the insurer has failed to prove that Ex.R1 the Driving Licence is belonged to the Driver of the offending vehicle by examining the concerned RTO and erred in relying upon Ex.R1 an R2 and saddling the liability on the owner of the vehicle. On the above grounds, he prays for allowing the appeal by enhancing the compensation awarded by the Tribunal and fastening the liability on the Insurance Company. 7
8. Per contra, the learned counsel appearing for first respondent-owner of the offending vehicle supporting the argument advanced by the learned counsel for the claimant prays for exonerating the owner from liability by fastening the liability on the insurer.
9. Whereas, the learned counsel appearing for the insurer supporting the Judgment and Award of the Tribunal submits, quantum of compensation awarded by the Tribunal is just and reasonable and there is no scope for enhancement. Regarding liability, he submits, the driver of the offending vehicle having possessed a licence to drive the LMV non-transport could not have driven the offending vehicle which is classified as 'Transport vehicle'. Therefore, the Tribunal, relying upon the Judgment of the Apex Court in the case of Angad Kol referred to supra, is justified in fixing the liability on the owner of the vehicle. He submits, there is no 8 illegality or infirmity in the finding of the Tribunal either on quantum or on liability therefore, and he prays for dismissal of the appeal.
10. As there is no dispute between the parties regarding certain injuries sustained by the claimant in a road traffic accident that occurred on 11.10.2006 due to rash and negligent driving of the offending vehicle by its driver and the fact that the offending vehicle was insured with the second respondent-United Insurance Company and the policy was in force as on the date of accident, the only points that arise for our consideration are :
1. Whether compensation of Rs.2,45,000/- awarded by the Tribunal is just and reasonable and does it call for enhancement ?
2. Whether the finding of the Tribunal on liability in saddling it on the owner of the offending vehicle is sustainable in law or is it required to 9 be modified and to be fastened on the insurer?
Re: Point No.1:
11. The claimant in his claim petition has stated that immediately after the accident, he was shifted to NIMHANS Hospital and after treatment, he was shifted to St.John Medical College Hospital and treated there as inpatient from 11.10.2006 to 18.10.2006 and from there, he was shifted to Hosmat Hospial and treated there as in-patient from 18.10.2006 to 20.10.2006 and from there he was shifted to Sagar Apollo Hospital and treated there as inpatient from 20.10.2006 to 26.10.2006. After discharge from Sagar Apollo Hospital, he was admitted to Vijaya Eye Clinic and Research Centre and treated there as in-patient from 26.10.2006 to 5.3.2007 on three different occasions.
12. The claimant has produced the certified copy of wound certificate, CT Scan Report, the Emergency 10 case record and Discharge Summary issued by the St.John Medical College Hospital which were marked as Exs. P.5 to P.10 respectively. He has also produced the discharge summary of Apollo Hospital and discharge summary of Vijaya Eye Clinic which were marked as Exs. P.11 and P.12 respectively.
13. The claimant who examined himself as P.W.1 has stated in his evidence that he has sustained the following injuries:
a) Comminuted fracture of mandibular body on left side with anterior displacement of left side fragment.
b) Fracture of maxilla to the right of midline extending into the hard palate.
c) Fracture of the anterior, medial and lateral wall of bilateral maxillary sinus with hemosinus and inward displacement of fracture fragments into the sinus.
d) Fracture of right zygomatic arch.
e) Fracture of right nasal bone.
f) Fracture at junction of frontal bone with nasal bones.11
g) Fracture of lateral wall of right orbit-
zygomatic bone with mild posterior displacement of anterior fragment.
h) Fracture of medial wall of bilateral orbit.
i) Fracture of floor of bilateral orbit. Hematoma seen in the region of right inferior orbital fissure and around right orbital floor fracture.
j) Fracture of right lateral wall of right posterior ethmoid sinus (posteromedial wall of right orbit).
k) Fracture of bilateral pterygoid plates.
l) Due to the accident I lost complete eye sight of my right eye and lost partial sight of left eye."
14. The claimant has also examined PW.3 Dr.Appaji Gowda, Medical Director, Eye Surgeon, Vijaya Eye Clinic and Research Centre, Bangalore and PW.4 Dr.Priyadarashan K., Surgeon, Sagar Apollo Hospital, Bangalore. The Photographs, discharge summary, OPD slips and out-patient slip produced through PW.3 and PW.4 were marked as Ex.P15 to Ex.P19.
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15. The Tribunal, disbelieving the evidence of PW.3 Dr.Appaji Gowda, Medical Director, Eye Surgeon, Vijaya Eye Clinic and Research Center and documents produced by him at Ex.P16 to Ex.19 has come to a conclusion that claimant has not suffered injury to his right eye and there is no loss of sight in his right eye. Further, the Tribunal with regard to material alteration found in Ex.P16 the discharge summary has held that there is no nexus between the injuries sustained in the accident and the loss of vision in the right eye of the claimant. Therefore, it has held that loss of vision in the right eye is not on account of the injuries sustained in the accident. However, it has believed evidence adduced by the claimant regarding multiple fractures sustained by the claimant i.e.Alveolus of Mandible, Fracture of Nasal Bones and fracture of Bylateral Zygoma Maxilla and Plastic Surgery.
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16. Considering the multiple fractures and other injuries sustained by the claimant, Rs.60,000/- awarded by the Tribunal towards `pain and suffering', is just and proper and there is no scope for enhancement under this head.
17. The Medical Bills produced by the claimant at Ex.P.14 are pertaining to treatment taken by him as inpatient at Hosmat Hospital and Sagar Apollo Hospital and they come to Rs.81,362/-. He was treated in NIMHANS for a day, 7 days in St.John Medical College Hospital, 2 days in Hosmat Hospital and 6 days in Sagar Apollo Hospital in all he was treated as in-patient for 16 days. Considering the medical bills produced for Rs.81,362/- and duration of treatment taken as in- patient, Rs.1,00,000/- awarded by the Tribunal towards medical and incidental expenses is just and proper and there is no scope for enhancement under these heads. 14
18. Claimant has contended that he was a businessman and earning Rs.20,000/- or more per month. In order to prove his business, he has produced the rent agreement and general licence produced at Ex.P7 and P8 respectively. He has also examined the owner of the Shop Premises wherein he was carrying on business as P.W.2. P.W.2 in his evidence has stated that he has given his premises to the claimant and he is running a General Store. Considering the same, the income of the claimant assessed at Rs.5,000/- per month by the Tribunal is just and proper. Further, the Tribunal considering the period of treatment and rest as four months has rightly awarded a sum of Rs.20,000/- towards `loss of income during laid up period' and it is just and proper and there is no scope for enhancement.
19. The two Photographs produced by the claimant one prior to the accident and the other after the accident vide Ex.P16 reveals that claimant has 15 suffered disfigurement of face. Considering the same, Rs.25,000/- awarded by the Tribunal towards disfigurement is on the lower side and therefore, we award Rs.50,000/- under this head.
20. The Tribunal by holding that the claimant is a businessman and nature of injury sustained by him is not of such a nature from which he is prevented from carrying on his business in future is justified in not awarding compensation towards loss of future income. Nevertheless, he has to suffer considerable amount of loss of amenities and unhappiness in his future life. Considering the same, Rs.40,000/- awarded by the Tribunal towards loss of amenities and future unhappiness is on the lower side and we award a sum of Rs.60,000/- under this head.
21. Nature of injuries sustained by the claimant suggest that he has to spend substantial amounts towards future medical and incidental expenses. 16 Therefore, we award a sum of Rs.30,000/- towards future medical and incidental expenses.
22. Thus the claimant is entitled for additional compensation of Rs.75,000/- and we award a total compensation of Rs.3,20,000/- as against the compensation of Rs.2,45,000/- awarded by the Tribunal with interest at 6% p.a.from the date of claim petition till the date of payment. Point no.1 is answered accordingly.
Re: Point Nos.2:
23. Before the Tribunal, the Insurance Company has taken up a specific contention that the driver was not possessing a valid and effective driving licence to drive the offending vehicle at the time of accident. As already discussed, the Insurance Company examined its Deputy Manager as RW.1 and produced the driving licence of the driver of the vehicle at Ex.R1 and `B' Register Extract of the vehicle at Ex.R2. As per Ex.R1, 17 the driver was possessing a licence to drive the Light Motor Vehicle (non-transport) and it was issued on 19.5.2006 and valid till 30.6.2018. The B-Register Extract issued under Rule 18 of KMV Rules disclsoes that the offending goods tempo is a Light Goods Vehicle and its unladen weight is 2440 kgs and registered laden weight is 5300 kgs. so it is a light goods vehicle.
24. As per the Insurance Policy produced at Ex.R3, the vehicle in question was insured with the 2nd respondent with effect from 00.00 hrs. of 12.08.2006 valid upto midnight of 11.8.2007. In the insurance policy also the nature of the vehicle is shown as Goods Carrying (Other than 3 wh.) Public Carriers.
25. The contention of the insurer is, the driver having possessed a licence to drive LMV (non-transport) was not authorised to drive the offending vehicle classified as a Goods Carrying (Other than 3 wh.) Public Carrier which is a transport vehicle. Otherwise, their 18 contention is, the driver in the absence of obtaining a specified endorsement on the driving licence issued in Form No.6 was not authorized to drive the offending vehicle as on the date of the accident. Therefore, the learned counsel appearing for the Insurance Company contends that the insurer is not liable to indemnify the owner and pay compensation to the claimant. In support of his contention, he has relied upon the Judgment of the Apex Court in the case of Oriental Insurance Company vs. Angad Kol referred to supra.
26. The owner and the insurer of the offending goods vehicle have entered appearance before the Tribunal through their respective counsel and have filed their written statements.
27. The owner of the offending vehicle has admitted that he is the owner of the vehicle i.e. Tempo bearing Ergn.No.KA 40 184 but denied that the accident occurred due to the rash and negligent driving of his 19 vehicle by its driver and also contended that it is due to the rash and negligent riding of the motor cycle by the claimant himself. He further contended that his vehicle was insured with the 2nd respondent and since the driver was possessing valid and effective licence as on the date of the accident, the insurance company is liable to pay compensation.
28. The respondent-Insurance Company admitted the issuance of insurance policy in respect of the offending goods tempo and stated that the policy was in force as on the date of the accident. It further contended that respondent no.1 i.e. owner of the goods tempo had entrusted his vehicle to a person who had no valid and effective licence to drive the vehicle, thus there is violation of policy conditions and therefore, the insurance Company is not liable to indemnify the insured. In support of said contention, the Insurance Company examined Sri K.Chandrashekar its Deputy 20 Manager as RW.1 who admits in his affidavit evidence issuance of insurance policy in respect of the offending vehicle for the period from 12.8.2006 upto 11.8.2007 and has produced the Insurance Policy marked as Ex.R1. He has produced the permit of the offending vehicle and it was marked as Ex.R3. He has stated that the driver of the offending vehicle was not possessing a driving licence to drive transport vehicle but had licence to drive light motor vehicle. RW.1 in his cross- examination by the learned counsel for the claimant has stated that light motor vehicle is a four wheeler and LGV is also a four wheeler vehicle.
29. In the FIR produced at Ex.P1, there is no allegation against the driver of the vehicle that he has driven the offending vehicle without possessing a valid and effective driving licence. In the charge sheet produced at Ex.P2, the driver is not chargesheeted for violation of relevant provisions of MV Act and the rules 21 thereunder. If the driver had driven the vehicle without possessing a valid and effective driving licence, there should have been an allegation in the Fir and he should have been chargesheeted for violation of relevant provisions of MV Act and the rules thereunder. The Insurance Company having failed to discharge its obligation that the driver did not possess an effective Driving Licence to drive the offending vehicle cannot disown its liability to pay compensation to the claimant.
30. In the instant case, the driver was holding a valid driving licence to drive the light motor vehicle. There is no dispute that the motor vehicle in question by which accident took place was LMV-Non transport. Merely because the driver did not obtain on endorsement on the driving licence to drive Goods Carriage Vehicle, the Tribunal has committed an error in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle.
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31. The Apex Court in its latest decision in the case of S. IYYAPAN vs. M/S UNITED INDIA INSURANCE COMPANY LTD. AND ANOTHER after referring to various decisions on the issue has held that the driver possessing a licence to drive `LMV non- transport' driven `LMV Goods Carriage Commercial Vehicle' in such case also, the Insurance Company cannot disown its liability on the ground that driver did not have a valid and effective driving licence to drive LMV (transport) except in three exceptional circumstances stated in para 18 of its judgment which reads thus :
18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount.
Under Section 149 of the Motor Vehicles Act, the insurer can defend the action 23 inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.
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32. The facts and circumstances of the present case are identical to that of Iyappan's case referred to supra. The instant case does not fall in any one of the above three exceptional categories under which the Insurance Company can dis-own its liability. Therefore, the Tribunal is not justified in saddling the liability on the owner of the offending vehicle instead of fastening it 24 on the Insurance Company. Thus, reliance placed by the Insurer on Angad Kol's case has no application to the facts of the present case in view of latest Judgment rendered by the Supreme Court in Iyappan's case. Hence, the Tribunal has committed an error in not considering this material aspect of the matter and saddling liability on the owner instead of fastening it on the Insurance Company. Therefore, the finding of the Tribunal on liability is liable to be modified holding that the insurance Company is liable to pay compensation to the claimant. Point No.2 is answered accordingly.
33. Accordingly, the appeal is allowed in-part both on the ground of quantum as well as liability by awarding an additional compensation of Rs.75,000/- in addition to what has been awarded by the Tribunal. Thus the claimant is entitled for a total compensation of Rs.3,20,000/- against a sum of Rs.2,45,000/- awarded 25 by the Tribunal with interest at 6% p.a. from the date of claim petition till the date of payment fastening the liability on the Insurance Company. The Insurance Company is directed to pay the compensation within two months from the date of receipt of a copy of this Judgment. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.
SD/-
JUDGE SD/-
JUDGE Sk/-