Karnataka High Court
M/S National Insurance Company Ltd., vs Raghavendra Acharaya on 26 February, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
M.F.A. No.2404/2016 (MV)
BETWEEN :
M/s. National Insurance Company Ltd.,
Divisional Office, Shankar Building,
Mosque Road,
Udupi.
Represented by Regional Office
M.G.Road, Bangalore-560 001.
... Appellant
(By Smt. Geetha Raj, Advocate)
AND :
1. Raghavendra Acharya
Aged about 39 years
R/o Anugraha Nilaya
Towdinaklu, Shiriyara Village,
Saibarkatte Post
Udupi Taluk & District-576 213.
2. Mr. Chandrashekar Acharya,
Major,
S/o Krishnayya Achar
Resident of Saibrakatte Post
Shiriyara Village
Udupi Taluk & District.
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3. Mr. Manjunath Naik
Major, Teacher
Modubetu House
Chanthar Village & Post
Brahmavar
Udupi Taluk-576 213.
... Respondents
(Respondents are served and unrepresented)
This MFA is filed under Section 173(1) of the MV Act
against the judgment and award dated 18.01.2016
passed in MVC No.1196/2005 on the file of the Additional
District & Sessions Judge, Udupi, (Sitting at Kundapura),
Kundapura, awarding a Compensation of Rs.1,59,000/-
with interest @ 11% P.A. from the date of this petition till
the date of realization.
This MFA coming on for hearing this day the Court
delivered the following:-
JUDGMENT
This appeal has been filed by the Insurance Company, assailing the judgment and award dated 18.1.2016 passed by the Additional District and Sessions Judge and MACT, Udupi, sitting at Kundapura in MVC.No.1196/2005.
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2. Though the notice is served on respondent Nos.1 to 3, they remained absent and unrepresented.
3. Brief facts of the case are that the claimant- respondent No.1 herein was proceeding on a motorcycle bearing Regn.No.KA-20-K-6455 as a pillion rider. Due to rash and negligent riding of the motorcycle by its rider, in the first instance he went and hit a street dog and thereafter dashed against a pedestrian who was waiting for the bus in the Bus Stop, as a result of the same, the claimant sustained injuries. Immediately thereafter he was shifted to Chinmayi Hospital, Kundapura, where he was treated as inpatient. For having suffered injuries, he filed a claim petition under Section 166 of MV Act. In the claim petition it is contended by the claimant that he was a self employee and was earning Rs.6,000/- per month.
4. In pursuance of the notice issued by the Tribunal, respondent Nos.1 and 3 remained absent and they were placed exparte. Respondent No.2-Insurance -4- Company filed its written statement denying the contents of the petition. They contended that respondent Nos.1 and 2 are owner of the vehicle and owner is not a third party and there is no contract between insurer and insured with respect to coverage to owner. The policy is issued in respect of the vehicle in question was called 'liability only policy' and it does not cover the risk of the pillion rider or inmates of the vehicle. The Insurance Company has given personal accident coverage to two unnamed passengers by collecting Rs.70/- from the insurerd and premium covers the risk of Rs.50,000/- per person. This P.A. cover was collected as per IMT 16 and it is subject to conditions and terms. The claimant like pillion rider can avail this facility within one year of the accident by placing the documents before the Insurance Company and there is no provision under personal accident coverage of IMT 16 to claim compensation under the MV Act or before the Tribunal. Hence, they prayed for dismissal of the claim petition.
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5. On the basis of the above pleadings, the Tribunal after framing necessary issues and hearing the parties to the lis, passed the impugned judgment and award fixing the entire liability on the Insurance Company to pay the compensation in favour of the claimant. Aggrieved by the same, the Insurance Company is before this Court.
6. The main grounds urged by the learned counsel for the appellant are that the policy does not cover the risk of a pillion rider and hence fastening of the liability on the appellant-Insurance Company is not justifiable in law. She contended that the Insurance Company has given personal accident coverage to two unnamed passengers by collecting Rs.70/- from the insured and such premium covers the risk of Rs.50,000/- per person. She further contended that the compensation awarded is on the higher side. On these grounds, she prayed for allowing the appeal by reducing the compensation and to fasten liability on respondent No.3 herein. -6-
7. As could be seen from the impugned judgment and award, the claimant has sustained comminuted fracture of tibia and fibula distal ½ extended to the ankle joint right, Injury No.1 is grievous in nature and four more injuries are simple in nature. In order to substantiate the said fact, the claimant has also produced Ex.P4, the wound certificate. By considering the nature of injuries and as the claimant was working as a Mason and earning Rs.6,000/- per month, in the absence of any material, the Tribunal has awarded an amount of Rs.40,000/- towards pain and sufferings; Rs.24,000/- towards loss of income during the treatment; 35,000/- towards medical expenses; 45,000/- towards loss of future amenities; and Rs.15,000/- towards attendant, diet and nourishment charges. In all, an amount Rs.1,59,000/- with interest at 11% per annum has been awarded by the Tribunal.
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8. Under the normal circumstances, the compensation awarded by the Tribunal is justifiable. But, when the claimant has not examined the doctor to substantiate the disability and other aspects, then under such circumstances, the compensation awarded appears to be on the higher side. Even there is no material produced by the claimant as to how many days the doctor has advised him to take rest and the nature of treatment given to him when he was an inpatient. The records clearly indicate that he was an inpatient only from 12.11.2005 to 23.11.2005 and apart from that no other documents are produced in this behalf. In that light, the claimant is entitled to an amount of Rs.30,000/- towards pain and suffering and Rs.10,500/- towards loss of income during the laid up period.
9. The claimant has also produced Exs.P1 to P37 for having incurred the medical expenses to the tune of Rs.29,213.87. But the Tribunal has awarded Rs.35,000/- -8- towards medical expenses. Therefore, I restrict it to Rs.30,000/-. I award Rs.30,000/- towards loss of amenities and Rs.10,000/- towards attendant, nourishment and diet charges. In that light, the claimant is entitled to Rs.1,10,500/- as against Rs.1,59,000/- awarded by the Tribunal.
10. The second contention of the appellant- Insurance Company is that a policy which has been issued is an act policy and it does not cover the risk of the pillion rider. It covers the risk of two unnamed passengers to the tune of Rs.50,000/- per person.
11. As could be seen from the policy at Ex.R3, it is clear that the said policy is only act policy. But in the 2nd page of the policy it is shown that an amount of Rs.70/- has been collected in respect of PA to two unnamed passengers and the liability to each passenger is to an extent of Rs.50,000/-.
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12. It is also the contention of the learned counsel for the appellant that as per IMT.16 of the standard form for liability only policy PA coverage to unnamed passenger other than driver and cleaner is 100% in case of death and loss of two limbs or sight of two eyes or one limb and sight of one eye or permanent total disablement from injuries other than named above; 50% in case of loss of one limb or sight of one eye. In that light, she submits that Insurance Company is liable to pay only 50% of Rs.50,000/- i.e., Rs.25,000/-.
13. By relying upon a decision of the Apex Court in the case of United Insurance Co.Ltd., Shimla Vs. Tilak Singh & others, reported in (2006)4 SCC 404, learned counsel for the appellant further contended that carrying passengers in a goods vehicle amounts to breach of conditions of the policy and it amounts to carrying the gratuitous passengers in the said vehicle. Under such circumstances, the Insurance Company owes
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no liability towards the person suffered with the injuries or death.
14. She has further relied upon another decision of the Apex Court in the case of Oriental Insurance Company Limited Vs. Sudhakaran K.V. & others, reported in (2008)7 SCC 428 and contended that contract of Insurance Company which is not statutory in nature should be construed like any other contract and the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of the vehicle or a pillion rider traveling thereon.
15. By relying upon a decision of this Court in the case of Mohammed Yasuf Vs. Divisional Manager, reported in LAWS(KAR) 2011-6-120 learned counsel for the appellant further contended that as per Sections 165 and 166 of the Act, the claimant has to satisfy that he should be a third party and he should have suffered death, or bodily injuries or damage to the property of
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which he is the owner and would be entitled to make claim against the Insurance Company. In that background, she further submitted that the liability can be fixed with reference to Section 149 of the Act. On these grounds, she prayed for allowing the appeal by dismissing the claim petition.
16. I have gone through the submissions made by the learned counsel for the appellant and I have given my cautious attention to the decisions quoted by her. I do not have difference of the opinion with regard to the principles laid down in the aforesaid decisions. However, the said principles are not applicable to the facts of the present case since the Insurance Company has collected an extra premium of Rs.70/- under PA coverage and when the Insurance Company collected extra premium and entered into a contract, if any person suffers bodily injury or the death, then under such circumstances, the Insurance Company can be made liable in this behalf.
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17. Keeping in view the aforesaid principle, let me consider the alternative contention taken up by the learned counsel for the appellant that insurer is liable to pay only to an extent of Rs.50,000/- as per IMT.16 of the standard form for liability.
18. As could be seen from the impugned judgment and award, it is noticed that the Insurance company has collected extra premium of Rs.70/- under the PA coverage. By observing that if there is any limited liability, it will be between owner of the vehicle and purchaser of the vehicle and Insurance Company to be settled with, but when the claim petition is by bodily injured person, on proving the fact that he has sustained injuries arising out of accident by use of the vehicle and the involved vehicle is insured with Insurance Company, the Insurance Company should first indemnify the compensation awarded by the Tribunal, the entire liability has been fixed on the Insurance Company. The said
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observation is not justifiable and not sustainable in law. When the Tribunal has come to the conclusion that an amount of Rs.70/- has been collected by the Insurance Company towards PA coverage to two unnamed passengers and relied upon the policy which has restricted the liability of the Insurance Company only to an extent of Rs.50,000/- as per IMT.16 which specifically mentions that the liability of the Insurance Company in case of injuries is 50%, then under such circumstances there could have been no other interpretation except fixing the liability which has been arrived at the time of agreement entered into between the parties. In that light, the Tribunal has erred in fixing the entire liability on the appellant-Insurance Company.
19. In view of the aforesaid circumstances and on going through the document at Ex.R3, I am of the considered opinion that the appellant-Insurance company is liable to pay the compensation to the extent of
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Rs.25,000/- and in so far as remaining 50% of the compensation has to be indemnified by respondent No.3.
With the aforesaid observations, the appeal is allowed and the impugned judgment and award dated 18.1.2016 passed by the Tribunal in MVC.No.1196/2005 is modified to the extent as indicated above.
Registry is directed to transmit the statutory amount of 25,000/- with interest thereon to the concerned Tribunal for disbursement in favour of the claimant and the remaining amount may be refunded to the appellant-Insurance Company, in accordance with law.
Award shall be drawn accordingly.
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JUDGE *ck/-