Karnataka High Court
The Branch Manager vs Sri.Mahadev S/O Shivappa Ukkali on 17 February, 2023
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 17TH DAY OF FEBRUARY 2023
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MFA NO.102606/2018 (MV)
C/W MFA NOS.102604, 102605, 102607, 102660,
102661, 102662, 102663, 102664 OF 2018,
MFA.CROB.NOS.100057, 100058, 100059, 100060,
100061, 100062 AND 100072 OF 2020
IN MFA NO.102606/2018
BETWEEN:
THE ASSISTANT MANAGER CLAIMS
M/S CHOLAMANDALAM
M.S.GENERAL
INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUARE,
DESAI CORNER,
DESHPANDE NAGAR,
HUBBALLI, DIST. DHARWAD,
NOW REP. BY ITS AUTHORIZED SIGNATORY
...APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND
Digitally signed
by
MOHANKUMAR
B SHELAR
MOHANKUMAR
B SHELAR Location:
DHARWAD
Date:
1. SMT. PARVATI W/O BHIMAPPA @
2023.03.18
12:57:40 -0700
BHIMASHI HADAPAD,
AGE:43 YEARS,
2
OCC:HOUSEHOLD WORK,
R/O HYAGADI PLOT,
MAHALINGPUR,
TALUK:MUDHOL,
DIST:BAGALKOT 587313
2. KANTU @ SHRIKANT S/O
/O BHIMAPPA @ BHIMASHI HADAPAD
AGE:24 YEARS,
OCC:STUDENT,
3. MAHANANDA JD/O BHIMAPPA @ BHIMASHI HADAPAD
AGE:22 YEARS,
OCC:STUDENT,
4. MALLAPPA S/O BHIMAPPA HADAPAD,
AGE:73 YEARS,
OCC:NIL,
5. SMT. PARTEVVA W/O MALLAPPA HADAPAD
AGE:68 YEARS,
OCC:NIL,
ALL ARE R/O HYAGADI PLOT,
MAHALINGPUR,
TALUK:MUDHOL,
DIST:BAGALKOT 587313
(RESPONDENT NO.5 DIED AND R1 TO R4 ARE TREATED
AS LEGAL REPRESENTATIVES)
6. SRI BHIMAPPA S/O RAMAPPA BANAJ
AGE:51 YEARS,
OCC:OWNER OF CRUISER
BEARING NO.KA-48/M-5291,
R/O KESARAGOPPA,
TALUK:MUDHOL,
DIST:BAGALKOT 587313
7. PATTLUR SHAIKSHAVALI S/O P.NABISAB
AGE:53 YEARS,
OCC:OWNER OF TRUCK BEARING NO.KA-48/M-5291,
R/O KESARAGOPPA,
TALUK:MUDHOL,
DIST:BAGALKOT 587313
3
8. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE,
SHRINATH BUILDING,
N.C.M.HUBBALLI,
DIST:DHARWAD 580020
POLICY NO. 61150031130100012879
VALID FROM 07.02.2014 TO 06.02.2015
...RESPONDENTS
(BY SRI.M.C.HUKKERI ADV. FOR R1 TO R4,
R5 DECEAED, R1 TO R4 ARE TREATED AS LRS OF R5,
SRI.RAVINDRA R.MANE, ADV. FOR R8,
R6 SERVED; R7 HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M.V.ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 21.03.2018 PASSED BY THE MACT-XIV,
MUGHOL IN MVC NO.525/2015 WITH COST.
IN MFA NO.102604/2018
BETWEEN:
THE DEPUTY GENERAL MANAGER
M/S CHOLAMANDALAM
M.S.GENERAL INSURANCE COMPANY LTD.,
UNIT NO.4, INDUSTRIAL SABURB, 4TH BLOCK, RAJAJI
NAGAR, BENGALURU, NOW REPRESENTED
BY ITS AUTHORIZED SIGNATORY
...APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND
1. SMT. MAHADEVI W/O MALLAPPA @
MALLIKARJUN HADPAD,
AGE:49 YEARS,
OCC:HOUSEHOLD WORK,
4
R/O MAHALINGPUR,
TALUK:MUDHOL,
DIST:BAGALKOT 587313
2. SRI MAHANINGAPPA S/O MALLAPPA @
MALLIKARJUN HADPAD,
AGE:29 YEARS,
OCC:NOT KNOWN,
R/O MAHALINGPUR,
TALUK:MUDHOL,
DIST:BAGALKOT 587313
3. SRI ANIL S/O MALLAPPA @ MALLIKARJUN HADPAD
AGE:27 YEARS,
OCC:NOT KNOWN,
R/O MAHALINGPUR,
TALUK:MUDHOL,
DIST:BAGALKOT 587313
4. SRI BHIMAPPA S/O RAMAPPA BANAJ
AGE:51 YEARS,
OCC:OWNER OF CRUISER
BEARING NO.KA-48/M-5291,
R/O RESPONDENT KESARAGOPPA,
TALUK:MUDHOL,
DIST:BAGALKOT 587313
5. PATTLUR SHAIKSHAVALI S/O P NABISAB
AGE: 53 YEARS,
OCC:OWNER OF TRUCK
BEARING NO.AP-02/TRIBUNAL 3959,
R/O NO.14-2016,
BANDA MASJID STREET,
TADAPATRI,
DIST:ANANTPUR 515411, A.P.STATE
6. THE REGIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE, SHRINATH BUILDING,
N.C.M. HUBBALLI,
DIST:DHARWAD 580020
...RESPONDENTS
(BY SRI.ANAND BAGEWADI, ADV. FOR SRI.SHIVARAJ
P.MUDHOL, ADV. FOR R1 TO R3,
R4 AND R5 ARE SERVED)
5
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M.V.ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 21.03.2018 PASSED BY THE MACT-XIV,
MUGHOL IN MVC NO.8/2016 WITH COST.
IN MFA NO.102605/2018
BETWEEN:
THE DEPUTY GENERAL MANAGER,,
M/S CHOLAMANDALAM M.S.GENERAL INSURANCE
COMPANY LTD.,
UNIT NO.4, 9TH FLOOR, GOLDEN HEIGHT OOMPLEX,
59TH INDUSTRIAL SABURB, 4TH BLOCK, RAJAJINAGAR,
BANGALORE, NOW REP.BY ITS AUTHORIZED
SIGNATORY.
...APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND
1. SRI. HOLABASAPPA S/O SANGAPPA HADPAD
AGE:48 YEARS,
OCC:BARBER,
R/O MAHALINGPUR,
TALUK:MUDHOL,
DIST:BAGALKOT 587313
2. SRI BHIMAPPA S/O RAMAPPA BANAJ
AGE:53 YEARS,
OCC:OWNER OF CRUISER BEARING
NO.KA-48/M5291,
R/O KESARAGOPPA,
TALUK:MUDHOL,
DIST:BAGALKOT 587313
3. PATTLUR SHAIKSHAVALI S/O
P NABISAB
AGE:53 YEARS,
OCC:OWNER OF TRUCK BEARING NO.AP-02/TRIBUNAL-
3959,
R/O NO.14-2016, BANDA MASJID STREET,
6
TADAPATRI,
DIST:ANANTPUR 515411,
A.P.STATE
4. THE DIVISIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE,
SHRINATH BUILDING,
N.C.M. NO.3
HUBBALLI,
DIST:DHARWAD 580020
...RESPONDENTS
(BY SRI.SANTOSH B.RAWOOT, ADV. FOR R1,
R2 SERVED; R3 HELD SUFFICIENT,
SRI.RAVINDRA R.MANE, ADV. FOR R4)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M.V.ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 21.03.2018 PASSED BY THE MACT-XIV,
MUDHOL IN MVC NO.363/2015.
IN MFA NO.102607/2018
BETWEEN:
THE ASSISTANT MANAGER CLAIMS
M/S CHOLAMANDALAM M.S.GENERAL
INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUARE,
DESAI CORNER, DESHPANDE NAGAR,
HUBBALLI, DIST. DHARWAD,
NOW REP. BY ITS AUTHORIZED SIGNATORY
...APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND
1. SRI. SRISHAIL S/O MALLAPPA NAVI @
YARAGATTI
AGE:35 YEARS, OCC:BARBER,
7
NOW NIL, R/O HYAGADI PLOT,
MHALINGPUR,
TALUK:MUDHOL, DIST:BAGALKOT 587313
2. SRI BHIMAPPA S/O RAMAPPA BANAJ
AGE:51 YEARS,
OCC:OWNER OF CRUISER
BEARING NO.KA-48/M-5291,
R/O KESARAGOPPA,
TALUK:MUDHOL,
DIST:BAGALKOT 587313
3. PATTLUR SHAIKSHAVALI S/O P.NABISAB
AGE:53 YEARS,
OCC:OWNER OF TRUCK BEARING NO.AP-02/3959,
R/O NO.14, BANDA MASJID STREET,
TADAPATRI, DIST:ANANTPUR 515411
A.P. STATE
4. THE REGIONAL MANAGER,
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE,
SHRINATH BUILDING,
N.C.M.HUBBALLI, DIST:DHARWAD
POLICY NO.-61150031130100012879
VALID FROM 07.02.2014 TO 06.02.2015 PIN CODE
580020
...RESPONDENTS
(BY SRI.M.C.HUKKERI, ADV. FOR R1,
SRI.RAVINDRA R.MANE, ADV. FOR R4,
R2 SERVED; R3 HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M.V.ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 21.03.2018 PASSED BY THE MACT-XIV,
MUDHOL IN MVC NO.526/2015.
IN MFA NO.102660/2018
BETWEEN:
THE ASSISTANT MANAGER CLAIMS
M/S CHOLAMANDALAM
M.S.GENERAL
8
INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUARE,
DESAI CORNER,
DESHPANDE NAGAR,
HUBBALLI, DIST. DHARWAD,
NOW REP. BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND
1. SRI.PRABHU S/O MAHALINGAPPA NAVI
AGE: 33 YEARS,
OCC: BARBER, NOW NIL,
R/O: OIL MILL PLOT,
MAHALINGPUR,
TQ: MUDHOL,
DIST: BAGALKOTE-587313.
2. SRI.BHIMAPPA S/O RAMAPPA BANAJ
AGE: 51 YEARS,
OCC: OWNER OF CRUISER BEARNIG
NO.KA-48/M-5291,
R/O: KESARAGOPPA,
TQ: MUDHOL,
DIST: BAGALKOTE-587313.
3. PATTLUR SHAIKSHAVALI S/O P.NABISAB
AGE: 53 YEARS,
OCC: OWNER OF TRUCK BEARING
NO.AP-02/TRIBUNAL-3959,
R/O: NO.14-2016,
BANDA MASJID STREET,
TADAPATRI,
DIST: ANANTPUR-515411,
A.P. STATE.
4. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE,
SHRINATH BUILDING,
N.C.M. HUBBALLI, DIST: DHARWAD,
...RESPONDENTS
9
(BY SRI.M.C.HUKKERI, ADV. FOR R1,
SRI.MRUTYUNJAYA TATA BANGI, ADV. FOR R2,
SRI.RAVINDRA R.MANE, ADV. FOR R4,
R3 SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M.V.ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 21.03.2018 PASSED BY THE MACT-XIV,
MUDHOL IN MVC NO.527/2015.
IN MFA NO.102661/2018
BETWEEN:
THE ASSISTANT MANAGER CLAIMS
M/S CHOLAMANDALAM
M.S.GENERAL
INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUARE,
DESAI CORNER,
DESHPANDE NAGAR,
HUBBALLI, DIST. DHARWAD,
NOW REP. BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND
1. SRI.MAHADEV S/O SHIVAPPA UKKALI
AGE: 51 YEARS,
OCC: BARBER, NOW NIL,
R/O: NEAR URDU SCHOOL,
MAHALINGPUR,
TQ: MUDHOL,
DIST: BAGALKOTE-587313.
2. SRI.BHIMAPPA S/O RAMAPPA BANAJ
AGE: 51 YEARS,
OCC: OWNER OF CRUISER BEARNIG
NO.KA-48/M-5291,
R/O: KESARAGOPPA,
10
TQ: MUDHOL,
DIST: BAGALKOTE-587313.
3. PATTLUR SHAIKSHAVALI S/O P.NABISAB
AGE: 53 YEARS,
OCC: OWNER OF TRUCK BEARING
NO.AP-02/TRIBUNAL-3959,
R/O: NO.14-2016,
BANDA MASJID STREET,
TADAPATRI,
DIST: ANANTPUR-515411,
A.P. STATE.
4. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE,
SHRINATH BUILDING,
N.C.M. HUBBALLI,
DIST: DHARWAD,.
...RESPONDENTS
(BY SRI.M.C.HUKKERI, ADV. FOR R1,
SRI.MRUTYUNJAYA TATA BANGI, ADV. FOR R2,
SRI.RAVINDRA R.MANE, ADV. FOR R4,
R3 SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M.V.ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 21.03.2018 PASSED BY THE MACT-XIV,
MUDHOL IN MVC NO.528/2015.
IN MFA NO.102662/2018
BETWEEN:
THE ASSISTANT MANAGER CLAIMS
M/S CHOLAMANDALAM
M.S.GENERAL
INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUARE,
DESAI CORNER,
DESHPANDE NAGAR,
11
HUBBALLI, DIST. DHARWAD,
NOW REP. BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND
1. SRI.CHANNABASAPPA S/O PANDAPPA HADAPAD
AGE: 31 YEARS,
OCC: BARBER, NOW NIL,
R/O: CHIMMAD GALLI,
MAHALINGPUR,
TQ: MUDHOL,
DIST: BAGALKOTE-587313.
2. SRI.BHIMAPPA S/O RAMAPPA BANAJ
AGE: 51 YEARS,
OCC: OWNER OF CRUISER BEARNIG
NO.KA-48/M-5291,
R/O: KESARAGOPPA,
TQ: MUDHOL,
DIST: BAGALKOTE-587313.
3. PATTLUR SHAIKSHAVALI S/O P.NABISAB
AGE: 53 YEARS,
OCC: OWNER OF TRUCK BEARING
NO.AP-02/TRIBUNAL-3959,
R/O: NO.14-2016,
BANDA MASJID STREET,
TADAPATRI, DIST: ANANTPUR-515411,
A.P. STATE.
4. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE,
SHRINATH BUILDING,
N.C.M. HUBBALLI,
DIST: DHARWAD,.
...RESPONDENTS
(BY SRI.M.C.HUKKERI, ADV. FOR R1,
SRI.RAVINDRA R.MANE, ADV. FOR R4,
R2 SERVED; R3 HELD SUFFICIENT)
12
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M.V.ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 21.03.2018 PASSED BY THE MACT-XIV,
MUDHOL IN MVC NO.529/2015.
IN MFA NO.102663/2018
BETWEEN:
THE ASSISTANT MANAGER CLAIMS
M/S CHOLAMANDALAM
M.S.GENERAL
INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUARE,
DESAI CORNER,
DESHPANDE NAGAR,
HUBBALLI, DIST. DHARWAD,
NOW REP. BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND
1. SMT.GANGAVVA W/O. CHANNAPPA KATTIMANI
AGE:68 YEARS,
OCC:NIL,
R/O. HULAKUND GALLI,
MAHALINGPUR,
TALUK:MUDHOL,
DIST:BAGALKOT-587313.
2. SMT SHIVALEELA D/O. MALLAPPA KATTIMANI
AGE:29 YEARS,
OCC:HOUSEHOLD WORK,
R/O. HULAKUND GALLI,
MAHALINGPUR,
TALUK:MUDHOL, DIST:BAGALKOT-587313.
3. SRI BHIMAPPA S/O. RAMAPPA BANAJ
AGE:51 YEARS,
13
OCC:OWNER OF CRUISER BERAING NO. KA-48/M-5291,
R/O. KESARAGOPPA,
TALUK:MUDHOL,
DIST:BAGALKOT-587313.
4. PATTLUR SHAIKLSHAVALI S/O NABISAB
AGE:53 YERS,
OCC:OWNER OF TRUCK BEARING NO.AP-02/TRIBUNAL-
3959,
R/O. NO 14-2016,
BANDA MASJID STREET,
TADAPATRI,
DIST:ANANTPUR-515411,
A P STATE.
5. THE REGIONAL MAANGER
NEW INDIA ASSURANCE COMPANY LTD,.,
REGIONAL OFFICE,
SHRINATH BUILDING,
N C M HUBBALLI,
DIST:DHARWAD,.
...RESPONDENTS
(BY SRI.M.C.HUKKERI, ADV. FOR R1 & R2,
SRI.RAVINDRA R.MANE, ADV. FOR R5,
R3 & R4 SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M.V.ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 21.03.2018 PASSED BY THE MACT-XIV,
MUDHOL IN MVC NO.530/2015.
IN MFA NO.102664/2018
BETWEEN:
THE ASSISTANT MANAGER CLAIMS
M/S CHOLAMANDALAM
M.S.GENERAL
INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUARE,
DESAI CORNER,
14
DESHPANDE NAGAR,
HUBBALLI, DIST. DHARWAD,
NOW REP. BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI.S.K.KAYAKAMATH, ADVOCATE)
AND
1. SMT.RAJASHREE @ RAJESHWARI W/O MALLAPPA NAVI
AGE: 28 YEARS,
OCC: HOUSEHOLD WORK,
R/O: TEMPLE ROAD,
MAHALINGAPUR,
TQ: MUDHOL,
DIST: BAGALKOTE-587313.
2. KUMAR. SATVIK S/O MALLAPPA NAVI
AGE: 4 YEARS,
OCC: STUDENT,
R/O: TEMPLE ROAD,
MAHALINGAPUR,
TQ: MUDHOL,
DIST: BAGALKOTE-587313.
(SINCE MINOR REPRESENTED BY
NATURAL MOTHER RESPONDENT NO.1)
3. SMT.KASTUREVVA W/O GADIGEPPA NAVI
AGE: 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O: TEMPLE ROAD,
MAHALINGAPUR,
TQ: MUDHOL,
DIST: BAGALKOTE-587313.
4. SRI.RAVI S/O GADIGEPPA NAVI
AGE: 28 YEARS,
OCC: NIL,
R/O: TEMPLE ROAD,
MAHALINGAPUR,
TQ: MUDHOL,
DIST: BAGALKOTE-587313.
5. SRI.BHIMAPPA S/O RAMAPPA BANAJ
AGE: 51 YEARS,
15
OCC: OWNER OF CRUISER BEARING
NO.KA-48/M-5291,
R/O: KESARAGOPPA,
TQ: MUDHOL,
DIST: BAGALKOTE-587313.
6. PATTLUR SHAIKSHAVALI S/O P. NABISAB
AGE: 53 YEARS,
OCC: OWNER OF TRUCK BEARING
NO.AP-02/TRIBUNAL-3959,
R/O: NO.14-2016,
BANDA MASJID STREET,
TADAPATRI,
DIST: ANANTPUR-515411,
A.P.STATE.
7. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE,
SHRINATH BUILDING,
N.C.M. HUBBALLI,
DIST: DHARWAD,.
...RESPONDENTS
(BY SRI.M.C.HUKKERI, ADV. FOR R1 TO R4,
SRI.RAVINDRA R.MANE, ADV. FOR R7,
R5 SERVED; R6 HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
M.V.ACT PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 21.03.2018 PASSED BY THE MACT-XIV,
MUDHOL IN MVC NO.531/2015.
IN MFA CROB.100057/2020
BETWEEN:
1. SMT.PARVATI W/O BHIMAPPA @ BHIMASHI HADAPAD
AGE:45 YEARS,
OCC: HOUSE HOLD WORK
R/O:HYAGADI PLOT,
MAHALINGPUR
TQ: MUDHOL
16
DIST: BAGALKOT-587312
2. KANTU @ SHRIKANT S/O BHIMAPPA @
BHIMASHI HADAPAD
AGE:26 YEARS,
OCC: STUDENT,
R/O:HYAGADI PLOT,
MAHALINGPUR
TQ: MUDHOL
DIST: BAGALKOT-587312
3. MAHANANDA D/O BHIMAPPA @
BHIMASHI HADAPAD
AGE:24 YEARS,
OCC: STUDENT,
R/O:HYAGADI PLOT,
MAHALINGPUR
TQ: MUDHOL
DIST: BAGALKOT-587312
4. MALLAPPA S/O BHIMAPPA HADAPAD
AGE:75 YEARS,
OCC: NIL
R/O:HYAGADI PLOT,
MAHALINGPUR
TQ: MUDHOL
DIST: BAGALKOT-587312
...CROSS OBJECTORS
(BY SRI.M.C.HUKKERI, ADVOCATE)
AND
1. BHIMAPPA S/O RAMAPPA BANAJ
AGE:51 YEARS,
OCC: OWNER OF THE CRUISER
BEARING NO.KA-48/M-5291
R/O: KESARAGOPPA
TQ: MUDHOL
DIST: BAGALKOT-587312
2. THE ASSISTANT MANAGER CLAIMS
CHOLAMANDALAM,
MS GENERAL INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUIRE DESAI CORNOR
17
DESHPANDE NAGAR
HUBBALLI
DIST: DHARWAD
(POLICY VALID FROM 20/04/2014 TO
19/04/2015)
3. PETTLUR SHAIKSHAVALI S/O P. NABISAB
AGE:53 YEARS,
OCC: OWNER OF THE TRUCK BEARING
NO.AP-02/TB-3959
R/O: NO.14-206,
BANDA MASJID STREET TADAPATRI,
DIST: ANANTPUR-515411
A.P. STATE
4. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICVE SHRINATH BUILDING N.C.M. HABALI
DIST: DHARWAD
POLICY NO.61150031130100012879
VALID FROM 07.02.2014 TRO 06.02.2015
...RESPONDENTS
(BY SRI.MRUTYUNJAYA TATA BANGI, ADV. FOR R1 & R3,
SRI.S.K.KAYAKAMATH, ADV. FOR R2,
SRI.RAVINDRA R.MANE, ADV. FOR R4)
THIS MFA.CROB IN MFA NO.102606/2018 FILED
UNDER ORDER 41 RULE 22 OF CPC R/W SEC. 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC NO.525/2015 ON THE FILE OF
THE MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL-XIV,
MUDHOL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA CROB.100058/2020
BETWEEN:
SRI.SHRISHAIL S/O MALLAPPA NAVI @ YARAGATTI
AGE:35 YEARS,
OCC:BARBAR, NOW NIL
18
R/O:HYAGADI PLOT,
MAHALINGPUR
TQ: MUDHOL
DIST: BAGALKOT-587312
...CROSS OBJECTOR
(BY SRI.M.C.HUKKERI, ADVOCATE)
AND
1. BHIMAPPA S/O RAMAPPA BANAJ
AGE:51 YEARS,
OCC: OWNER OF THE CRUISER
BEARING NO.KA-48/M-5291
R/O: KESARAGOPPA
TQ: MUDHOL
DIST: BAGALKOT-587312
2. THE ASSISTANT MANAGER CLAIMS
CHOLAMANDALAM,
MS GENERAL INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUIRE DESAI CORNOR
DESHPANDE NAGAR
HUBBALLI
DIST: DHARWAD
(POLICY VALID FROM 20/04/2014 TO
19/04/2015)
3. PETTLUR SHAIKSHAVALI S/O P. NABISAB
AGE:53 YEARS,
OCC: OWNER OF THE TRUCK BEARING
NO.AP-02/TB-3959
R/O: NO.14-206,
BANDA MASJID STREET TADAPATRI,
DIST: ANANTPUR-515411
A.P. STATE
4. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICVE SHRINATH BUILDING N.C.M. HABALI
DIST: DHARWAD
POLICY NO.61150031130100012879
VALID FROM 07.02.2014 TRO 06.02.2015
19
...RESPONDENTS
(BY SRI.MRUTYUNJAYA TATA BANGI, ADV. FOR R1 & R3,
SRI.S.K.KAYAKAMATH, ADV. FOR R2,
SRI.RAVINDRA R.MANE, ADV. FOR R4)
THIS MFA.CROB IN MFA NO.102607/2018 FILED
UNDER ORDER 41 RULE 22 OF CPC R/W SEC.173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC NO. 526/2015 ON THE FILE OF
THE MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL-XIV,
MUDHOL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA CROB.100059/2020
BETWEEN:
SRI.PRABHU S/O MAHALINGAPPA NAVI
AGE:35 YEARS,
OCC: BARBAR, NOW NIL,
R/O: OIL MILL OPLOT MAHALINGPUR
TQ: MUDHOL,
DIST: BAGALKOT-587312
...CROSS OBJECTOR
(BY SRI.M.C.HUKKERI, ADVOCATE)
AND
1. BHIMAPPA S/O RAMAPPA BANAJ
AGE:51 YEARS,
OCC: OWNER OF THE CRUISER
BEARING NO.KA-48/M-5291
R/O: KESARAGOPPA
20
TQ: MUDHOL
DIST: BAGALKOT-587312
2. THE ASSISTANT MANAGER CLAIMS
CHOLAMANDALAM,
MS GENERAL INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUIRE DESAI CORNOR
DESHPANDE NAGAR
HUBBALLI
DIST: DHARWAD
(POLICY VALID FROM 20/04/2014 TO
19/04/2015)
3. PETTLUR SHAIKSHAVALI S/O P. NABISAB
AGE:53 YEARS,
OCC: OWNER OF THE TRUCK BEARING
NO.AP-02/TB-3959
R/O: NO.14-206,
BANDA MASJID STREET TADAPATRI,
DIST: ANANTPUR-515411
A.P. STATE
4. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICVE SHRINATH BUILDING N.C.M. HABALI
DIST: DHARWAD
POLICY NO.61150031130100012879
VALID FROM 07.02.2014 TRO 06.02.2015
...RESPONDENTS
(BY SRI.MRUTYUNJAYA TATA BANGI, ADV. FOR R1 & R3,
SRI.S.K.KAYAKAMATH, ADV. FOR R2,
SRI.RAVINDRA R.MANE, ADV. FOR R4)
THIS MFA.CROB IN MFA NO.102660/2018 FILED
UNDER ORDER 41 RULE 22 OF CPC R/W SEC. 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC NO.527/2015 ON THE FILE OF
THE MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL-XIV,
MUDHOL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
21
IN MFA CROB.100060/2020
BETWEEN:
SRI.MAHADEV S/O SHIVAPPA UKKALI
AGE:50 YEARS,
OCC: BARBAR, NOW NIL,
R/O: NEAR URDU SCHOOL MAHALINGPUR
TQ: MUDHOL
DIST: BAGALKOT-587312
...CROSS OBJECTOR
(BY SRI.M.C.HUKKERI, ADVOCATE)
AND
1. BHIMAPPA S/O RAMAPPA BANAJ
AGE:51 YEARS,
OCC: OWNER OF THE CRUISER
BEARING NO.KA-48/M-5291
R/O: KESARAGOPPA
TQ: MUDHOL
DIST: BAGALKOT-587312
2. THE ASSISTANT MANAGER CLAIMS
CHOLAMANDALAM,
MS GENERAL INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUIRE DESAI CORNOR
DESHPANDE NAGAR
HUBBALLI
DIST: DHARWAD
(POLICY VALID FROM 20/04/2014 TO
19/04/2015)
3. PETTLUR SHAIKSHAVALI S/O P. NABISAB
AGE:53 YEARS,
OCC: OWNER OF THE TRUCK BEARING
NO.AP-02/TB-3959
R/O: NO.14-206,
BANDA MASJID STREET TADAPATRI,
DIST: ANANTPUR-515411
A.P. STATE
22
4. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICVE SHRINATH BUILDING N.C.M. HABALI
DIST: DHARWAD
POLICY NO.61150031130100012879
VALID FROM 07.02.2014 TRO 06.02.2015
...RESPONDENTS
(BY SRI.MRUTYUNJAYA TATA BANGI, ADV. FOR R1 & R3,
SRI.S.K.KAYAKAMATH, ADV. FOR R2,
SRI.RAVINDRA R.MANE, ADV. FOR R4)
THIS MFA.CROB IN MFA NO.102661/2018 FILED
UNDER ORDER 41 RULE 22 OF CPC R/W SEC. 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC NO.528/2015 ON THE FILE OF
THE MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL-XIV,
MUDHOL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA CROB.100061/2020
BETWEEN:
SRI.CHANABASAPPA S/O PANDAPPA HADAPAD
AGE:33 YEARS,
OCC: BARBAR, NOW NIL
R/O: CHAMMAD GALLI MAHALINGAPUR
TQ:MUDHOL
DIST: BAGALKOT-587312
...CROSS OBJECTOR
(BY SRI.M.C.HUKKERI, ADVOCATE)
AND
1. BHIMAPPA S/O RAMAPPA BANAJ
AGE:51 YEARS,
OCC: OWNER OF THE CRUISER
BEARING NO.KA-48/M-5291
23
R/O: KESARAGOPPA
TQ: MUDHOL
DIST: BAGALKOT-587312
2. THE ASSISTANT MANAGER CLAIMS
CHOLAMANDALAM,
MS GENERAL INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUIRE DESAI CORNOR
DESHPANDE NAGAR
HUBBALLI
DIST: DHARWAD
(POLICY VALID FROM 20/04/2014 TO
19/04/2015)
3. PETTLUR SHAIKSHAVALI S/O P. NABISAB
AGE:53 YEARS,
OCC: OWNER OF THE TRUCK BEARING
NO.AP-02/TB-3959
R/O: NO.14-206,
BANDA MASJID STREET TADAPATRI,
DIST: ANANTPUR-515411
A.P. STATE
4. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICVE SHRINATH BUILDING N.C.M. HABALI
DIST: DHARWAD
POLICY NO.61150031130100012879
VALID FROM 07.02.2014 TRO 06.02.2015
...RESPONDENTS
(BY SRI.MRUTYUNJAYA TATA BANGI, ADV. FOR R1 & R3,
SRI.S.K.KAYAKAMATH, ADV. FOR R2,
SRI.RAVINDRA R.MANE, ADV. FOR R4)
THIS MFA.CROB IN MFA NO.102662/2018 FILED
UNDER ORDER 41 RULE 22 OF CPC R/W SEC. 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC NO.529/2015 ON THE FILE OF
THE MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL-XIV,
MUDHOL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
24
IN MFA CROB.100062/2020
BETWEEN:
1. SMT.GANGAWWA W/O CHANNAPPA KATTIMANI
AGE:70 YEARS,
OCC: HOUSE HOLD WORK
2. SHIVALEELA D/O MALLAPPA KATTIMANI
AGE:31 YEARS,
OCC: HOUSE HOLD WORK
BOTH ARE R/O: HULAKUND GALLI MAHALINGPUR
TQ: MUDHOL
DIST: BAGALKOT-587312
...CROSS
OBJECTORS
(BY SRI.M.C.HUKKERI, ADVOCATE)
AND
1. BHIMAPPA S/O RAMAPPA BANAJ
AGE:51 YEARS,
OCC: OWNER OF THE CRUISER
BEARING NO.KA-48/M-5291
R/O: KESARAGOPPA
TQ: MUDHOL
DIST: BAGALKOT-587312
2. THE ASSISTANT MANAGER CLAIMS
CHOLAMANDALAM,
MS GENERAL INSURANCE COMPANY LTD.,
B.A. KALABURGI SQUIRE DESAI CORNOR
DESHPANDE NAGAR
HUBBALLI
DIST: DHARWAD
(POLICY VALID FROM 20/04/2014 TO
19/04/2015)
3. PETTLUR SHAIKSHAVALI S/O P. NABISAB
AGE:53 YEARS,
OCC: OWNER OF THE TRUCK BEARING
25
NO.AP-02/TB-3959
R/O: NO.14-206,
BANDA MASJID STREET TADAPATRI,
DIST: ANANTPUR-515411
A.P. STATE
4. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICVE SHRINATH BUILDING N.C.M. HABALI
DIST: DHARWAD
POLICY NO.61150031130100012879
VALID FROM 07.02.2014 TRO 06.02.2015
...RESPONDENTS
(BY SRI.MRUTYUNJAYA TATA BANGI, ADV. FOR R1 & R3,
SRI.S.K.KAYAKAMATH, ADV. FOR R2,
SRI.RAVINDRA R.MANE, ADV. FOR R4)
THIS MFA.CROB IN MFA NO.102663/2018 FILED
UNDER ORDER 41 RULE 22 OF CPC R/W SEC. 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
21.03.2018 PASSED IN MVC NO.530/2015ON THE FILE OF
THE MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL-XIV,
MUDHOL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA CROB.100072/2020
BETWEEN:
1. SMT.RAJASHREE @ RAJESHWARI
W/O MALLAPPA NAVI
AGE: 30 YEARS,
OCC: HOUSE HOLD WORK,
TQ: TEMPLE ROAD,
26
MAHALINGPUR,
TQ: MUDHOL,
DIST: BAGALKOT-587312.
2. KUMAR.SATVIK S/O MALLAPPA NAVI
AGE: 6 YEARS,
OCC: NILL,
(SINCE MINOR REPRESENTED BY PETITIONER NO.1
NATURAL MOTHER AS M/G/ SMT.RAJASHREE @
RAJESHWARI W/O MALLAPPA NAVI)
3. SMT.KASTUREVVA W/O GADIGEPPA NAVI
AGE: 55 YEARS,
OCC: HOUSE HOLD WORK,
R/O: TEMPLE ROAD,
MAHALINGPUR,
TQ: MUDHOL,
DIST: BAGALKOT-587312.
...CROSS OBJECTORS
(BY SRI.M.C.HUKKERI, ADVOCATE)
AND
1. BHIMAPPA S/O RAMAPPA BANAJ
AGE: 51 YEARS,
OCC: OWNER OF THE CRUISER BEARING NO.KA-48/M-
5291,
R/O: KESARAGOPPA,
TQ: MUDHOL,
DIST: BAGALKOT-587312.
2. THE ASSISTANT MANAGER
CLAIMS CHOLAMANDALAM,
MS GENERAL INSURANCE COMPANY LTD.,
B A KALABURGI SQUIRE DESAI CORNOR,
DESPANDE NAGAR HUBBALLI,
DIST: DHARWAD.
(POLICY VALID FROM 20/04/2014 TO 19/04/2015)
3. PETTLUR SHAIKSHAVALI S/O P NABISAB
AGE: 53 YEARS,
OCC: OWNER OF KLTRUCK BEARING NO.AP-02/TB-3959,
R/O NO.14-206,
BANDA MASJID STREET TADAPATRI,
DIST: ANANTPUR-515411, A.P STATE.
27
4. THE REGIONAL MANAGER
NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE SHRINATH BUILDING
N.C.M.HUBALI,
DIST: DHARWAD,
POLICY NO.61150031130100012879,
VALID FROM 07/02/2014 TO 06/02/2015.
5. SRI RAVI S/O GADIGEPPA NAVI
AGE: 30 YEARS, OCC: NIL,
R/O: TEMPLE ROAD, MAHALINGPUR,
TQ: MUDHOL,
DIST: BAGALKOT-587312.
...RESPONDENTS
(BY SRI.MRUTYUNJAYA TATA BANGI, ADV. FOR R1 & R3,
SRI.S.K.KAYAKAMATH, ADV. FOR R2,
SRI.RAVINDRA R.MANE, ADV. FOR R4)
THIS MFA.CROB IN MFA NO.102664/2018FILED UNDER
ORDER 41 RULE 22 OF CPC. R/W SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 21.03.2018
PASSED IN MVC NO.531/2015 ON THE FILE OF THE MOTOR
VEHICLE ACCIDENT CLAIMS TRIBUNAL-XIV, MUDHOL,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS AND CROSS OBJECTIONS HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.11.2022
COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, UMESH M ADIGA J., DELIVERED THE FOLLOWING:
28
JUDGEMENT
MFA Nos.102606, 102604, 102605, 102607, 102660, 102661, 102662, 102663, 102664 of 2018 are arises out of common judgment and award dated 21.03.2017 passed by the MACT-XIV Mudhol in MVC Nos.525, 526, 527, 528, 529, 530, 531 of 2015 and MVC No.8/2016. The appellant Insurance Company challenged the said judgment and award on the ground of its liability to pay the amount of compensation due to violation of terms and conditions of the policy.
Claimants filed cross objections in MFA Crob.Nos.100057, 100058, 100059, 100060, 100061, 100062 and 100072 of 2020 in MFA Nos.102606, 102607, 102660, 102661, 102662, 102663 and 102604 of 2018 respectively claiming enhancement of compensation. There is no cross objection to the award passed in MVC No.8/2016 or MFA No.102604/2018.
2. We refer the parties as per their ranking before the Tribunal.
29
3. It was the case of petitioners before the Tribunal that some of the claimants as well as the person died in the incident were traveling in Cruiser Trax bearing Reg.No.KA-48/M-5291 (hereinafter referred to as 'Trax" for short) from Tangadagi towards their village after attending function. Driver of the said Trax was driving the vehicle in a rash and negligent manner and in a high speed. He dashed against the lorry bearing Reg.No.AP-02/TB-3959 which was going ahead of the said Trax and driver of the said lorry and was said to be suddenly stopped the lorry at the middle of the road. Due to the said collusion between lorry and Trax, some of inmates sustained grievous injuries and some succumbed to the injuries. With these reasons, victims of the accident as well as legal heirs of the deceased, who died in the accident filed claim petitions for awarding compensation.
4. Owners of both the vehicles were made as party before the Tribunal and they did not participate in the proceedings.
30
5. Respondent No.2 is insurer of Trax has contended that owner of the said Trax i.e., respondent No.1 has violated permit condition by carrying the passengers against permitted limit of 12. The owners of the vehicles had used the vehicle for hire and reward though it was private and non-transport vehicle. Owner o the Trax has violated conditions of policy of insurance, and hence, respondent No.2 was not liable to pay compensation. Respondent No.2 has also contended that accident had taken place due to rash and negligent driving of the lorry by its driver, who unmindfully, stopped the lorry at the middle of the road and hence, respondent Nos.3 and 4 were liable to pay compensation. It has also contended that driver of the Trax had no valid and effective driving licence to drive the vehicle at the time of the accident. With these reasons, respondent No.2 prayed for dismissal of the petition against it.
6. Respondent No.4 has contended that accident had taken place due to rash and negligent driving of Trax 31 by its driver. Driver of the said Trax was charge sheeted and even there were no allegations against the driver of the lorry in the charge sheet. Therefore, respondent No.3 and 4 were not liable to pay compensation. With these reasons, it prayed for exonerating them from said liability to pay compensation.
7. From rival contentions of both the sides, Tribunal has framed relevant issues.
8. The Tribunal has clubbed all the cases and common evidence was recorded. Petitioners have examined P.Ws.1 to 9 and marked Exs.P1 to P55. Respondent No.2 has examined R.W.1 and marked Ex.R1.
9. The Tribunal on the basis of pleading and evidence available on record held that accident had taken place due to rash and negligent driving of the Trax by its driver. The Tribunal has also assessed the income of the victim petitioners, who had sustained injuries so also as Rs.6,000/- p.m. rejecting the contention of the claimants that injured as well as deceased were earning Rs.1,000/- 32 per day by working as barbers. The Tribunal appreciating the pleadings and evidence available on record awarded compensation in each case. The Tribunal has further held that owner of the Trax had not violated any terms and conditions of policy of insurance, therefore, respondent No.2 is liable to pay compensation. The said findings are challenged by the insurance company in the present appeals. Some of the claimants have filed cross objections for enhancement of compensation.
10. We have heard the arguments of learned counsel appearing for the both sides.
11. Following points emerge for our determination.
i) Whether the Tribunal is justified in fastening
of liability on respondent No.2 to pay
compensation on behalf of respondent No.1 and though respondent No.1 violated terms and conditions of the policy of insurance? 33
ii) Whether petitioners/claimants are entitled for enhancement of compensation?
12. The Tribunal has determined or assessed the age of the victim-claimants who sustained injuries and deceased, who were traveling in the vehicle, as 48 years, 30 years, 30 years, 46 years, 33 years, 26 years and 30 years in MVC Nos.525, 526, 527, 528, 529, 530 and 531 of 2015. In all above cases, the Tribunal has also assessed the income of the deceased as well as injured claimants as Rs.6,000/- p.m. It is also fact that the Tribunal has not considered future prospects of the deceased as well as injured claimants.
13. Learned counsel for the claimants have vehemently contended that Tribunal has not considered and assessed the income of the injured as well as deceased properly. Even if claimants as well as legal heirs of the deceased who died in the accident, were not able to prove by substantive evidence, at least the Tribunal ought to have taken income of the claimant-injured as well as 34 deceased as Rs.7,500/- p.m. which would normally be taken by the courts while settling the MVC petitions in Lok Adalaths. The submission of the learned counsel for the claimants is sustainable. This court while settling the MVC cases before the Lok Adalath, income of the victim of an accident that had taken place during 2015 would be considered as Rs.7,500/- p.m. Accordingly, in all these petitions, income of the deceased as well as injured is taken as Rs.7,500/- p.m. Age of the deceased in MVC No.525/2015 was 48 years, in MVC No.528/2015 as 46 years and MVC No.8/2016 as 50 by the Tribunal. Excluding the said cases, in all other cases, the age of the deceased as well as injured were between 26 years to 35 years.
14. In the case of National Insurance Co. Ltd. v. Pranay Sethi reported in (2017) 16 SCC 680, it is held that future prospects of 40% is tobe added to the income of the victims of accident if their age is below 40 years and 25% in case of age between 40 to 50 years. Therefore, 40% of their income has to be added towards 35 future prospects. In other three cases referred to above i.e., MVC Nos.525, 528 of 2015 and MVC No.8/2016, their age was between 45 to 50 years and hence 25% of their income has to be added towards future prospects. Accordingly, their incomes are considered.
15. The Tribunal assessed disability of the injured petitioner on the basis of the evidence available on record. It is not seriously disputed by the appellant-insurance company. The claimants who have claimed enhancement of compensation, have not brought out that assessment of compensation regarding medical expenses, percentage of disability are incorrect. Hence, no need of reconsideration. In view of the reassessment of the income of the victims, who have sustained injuries so also who died in the accident, the compensation has to be recalculated. In some of the cases, wherever it is necessary the amount of compensation towards loss of amenities or medical expenses is enhanced as below:
36
16. In MFA No.102604/2018, the claimants who were legal heirs of the deceased Mallappa i.e., wife and sons have not filed cross objection. That shall not be ground for denial of compensation, if just compensation was not awarded by the Tribunal. In this case, the deceased was aged about 50 years at the time of accident. Therefore, 25% of his income is to be added towards future prospects. He left behind him three dependents and therefore, 1/3rd of his income has to be deducted towards his personal expenses. Hence, the net income of the deceased on which the petitioners were depending, was Rs.6,250/- p.m. Suitable multiplier is 13. Hence, the amount of compensation under the head loss of dependency is Rs.6,250/- x 12 x 13 = Rs.9,75,000/-. In the case of Magma General Insurance Co. Ltd., Vs. Nanu Ram Alias Chuhru Ram (2018 SCC Online SC 1546), it is held by Hon'ble Supreme Court that each dependents are entitled for Rs.40,000/- towards loss of consortium. Accordingly, Rs.1,20,000/- is to be awarded under the said head. Rs.15,000/- each is to be awarded 37 towards loss of estate and funeral expenses. In all, petitioners are entitled for compensation of Rs.11,25,000/- as against Rs.6,94,000/- awarded by the Tribunal.
17. In MFA No.102605/2018 arising out of MVC No.363/2015, claimants have not filed cross objection. However, this court shall award just compensation, in the appeal filed by the insurer.
18. As held above, income of the petitioner is assessed as Rs,7,500/- p.m. 25% of his income is to be added towards future prospects which amounts to Rs.9,375/-. He is suffering from permanent disability to an extent of 10% to the whole body as assessed by the Tribunal. Suitable multiplier applicable to his age i.e., 45 years is '14'. On that basis, the compensation is to be awarded towards loss of future earning capacity due to permanent disability is Rs.9,375/- x 12 x 14 x 10% = Rs.1,57,500/-.
19. The Tribunal has assessed total amount of medical expenses on the basis of bills, as Rs.2,32,824/-. 38 The claimant is entitled for the said amount. The Tribuanal has granted Rs.5,000/- towards pain and sufferings. Looking to the injuries, he is entitled for enhancement of the same. Hence, Rs.10,000/- is awarded under the said head. Tribunal has granted Rs.6,000/- towards loss of income during laid up period. Since the income of the petitioner is taken as Rs.9,375/- p.m. same is awarded as loss of income during laid up period. The Tribunal has taken attendant charges as Rs.3,400/-. The same is accepted. The Tribunal has awarded compensation of Rs.5,000/- towards loss of amenities which appears to be on the lower side. Therefore, Rs.10,000/- is awarded towards loss of amenities since he has sustained fractures of facial bones. Considering the same Rs.4,23,099/- is awarded to the petitioner on all the heads as against Rs.3,53,024/- awarded by the Tribunal.
20. MFA No.102606/2018: This appeal arises out of MVC No.525/2015 filed by insurer, wherein Tribunal has awarded compensation of Rs.7,72,000/-. For 39 enhancement of the same, petitioners have filed MFA Crob.100057/2020.
21. As stated above income of the deceased is taken as Rs.7,500/- p.m. Age of deceased was 48 years. Therefore, 25% of his income is to be added towards future prospects. Deceased had five dependents. Therefore, the Tribunal has deducted 1/4th towards personal expenses. The same is accepted; After deduction of 1/4th towards personal expenses, the income of the deceased is Rs.7,031/- p.m. Suitable multiplier applicable is '13'. On the basis of the same, the amount of compensation awarded under the head loss of dependency is Rs.7,031/- x 12 x 13 = Rs.10,12,464/-. The Tribunal awarded Rs.40,000/- towards loss of love and affection. As held in the case of Magma(supra), Rs.40,000/- each is to be awarded to the dependents towards loss of consortium. During pendency of the appeal, petitioner No.5 has died. Accordingly, Rs.1,60,000/- is awarded towards loss of consortium. Rs.15,000/- each is awarded towards loss of 40 estate and funeral expenses. In all, petitioners are entitled for Rs.12,02,464/- as against Rs.7,72,000/- awarded by the Tribunal.
22. MFA No.102607/2018 is arises out of MVC No.526/2015. The claimant has also filed MFA Crob.100058/2020 for enhancement of compensation. The Tribunal assessed income at Rs.6,000/- p.m. Age of the petitioner was accepted as 30 years. His disability was assessed at 10% to the whole body and multiplier applicable as '17'. Petitioner had sustained comminuted fracture of left radial head, comminuted fracture of left radius, fracture of base of 2nd and 3rd metacarpal bone. Considering the said injuries, the Tribunal awarded Rs.1,22,400/- towards loss of future income, Rs. 39,588/- towards medical expenses, Rs.5,000/- towards pain and suffering, Rs.6,000/- towards loss of income during treatment, Rs.1,000/- towards attendant charges, Rs.5,000/- towards loss of amenities. In all Rs.1,78,988/- is awarded.
41
23. The Tribunal ought to have taken income at the rate of Rs.7,500/- p.m. The injured was aged about 30 years and therefore, 40% of his income is to be added towards future prospects. Therefore, the total earning of the petitioner is Rs.10,500/- p.m. Looking to the nature injuries, the Tribunal rightly held that petitioner has been suffering from permanent disability to an extent of 10% to the whole body. It does not call for any interference. Compensation under the head loss of future earning capacity due to permanent disability is Rs.10,500/- x 12 x 17 x 10% = Rs.2,14,200/-.
24. The Tribunal on the basis of receipts produced by the petitioner has awarded Rs.39,588/- towards medical expenses and it is rounded off to Rs.40,000/-. Tribunal has awarded compensation on other heads which are on lower side. Looking to the injuries and treatment taken, Rs.10,000/- is awarded towards pain sufferings, Rs.10,500/- is awarded towards loss of income during laid up period, Rs.5,000/- is awarded towards attendant 42 charges and Rs.10,000/- towards loss of amenities. In all, Rs.2,89,700/- is awarded which is rounded off to Rs.2,90,000/-.
25. MFA No.102660/2018 arises out of MVC No.527/2015 and claimants have filed MFA Crob.100059/2020. The Tribunal has accepted income of the petitioner as Rs.6,000/- p.m., his age as 30 years and multiplier applicable is '17' and disability at 12% and on that basis awarded total compensation of Rs.2,35,935/-.
26. As discussed above, income of the petitioner is to be taken as Rs.7,500/- p.m. He was aged about 30 and therefore, 40% of his income has to be added towards future prospects. Accordingly, his monthly income is Rs.10,500/-. The percentage of disability taken by the Tribunal is proper. Hence, the compensation, under the head of loss of future earning capacity due to permanent disability is Rs.10,500/- x 12 x 17 x 12% = Rs.2,57,040/-.
27. The Tribunal has awarded Rs.71,555/- towards medical expenses and Rs.1,500/- towards attendant 43 charges. Looking to the evidence on record, it appears to be on the lower side. Therefore, the compensation under the head medical expenses, attendant charges and incidental expenses is considered as Rs.75,000/-. Income of the petitioner is taken as Rs.10,500/- p.m. and on that basis loss of income during laid up period is taken as Rs.10,500/-. Looking to injuries sustained by the petitioner, Rs.10,000/- is awarded towards pain and agony and Rs.10,000/- is awarded towards loss of amenities. In all Rs.3,62,540/- and it is rounded off to Rs.3,63,000/- is awarded under all heads as against Rs.2,35,935/- awarded by the Tribunal.
28. MFA 102661/2018 arises out of MVC No.528/2015 and claimants have also filed MFA Crob.100060/2020. The age of the petitioner was taken as 46 years, multiplier applicable is '13', income of the petitioner as Rs.6,000/- p.m. and permanent disability at 10% and on that basis, the Tribunal has awarded the compensation.
44
29. As discussed above, income of the petitioner is taken as Rs.7,500/- p.m. He is aged about 46 years and hence 25% of his income is to be added towards future prospects. Accordingly, his monthly income is assessed as Rs.9,375/-. Looking to the injuries sustained by the petitioner, i.e., fracture of shaft of right and compression fracture of thoracic T12 vertibra spine, the Tribunal has accepted permanent disability of the petitioner at 10% to the whole body. The said assessment is proper. The multiplier applicable is '13'. Therefore, the compensation under the head of loss future income due to permanent disability is Rs.9,375/- x 12 x 13 x 10% = Rs.1,46,250/-. The Tribunal has awarded Rs.60,488/- towards medical expenses and Rs.1,500/- is awarded towards attendant charges. The said amount is on the lower side. Therefore, reasonable amount is to be awarded. Petitioner had sustained fracture of vertibra. Besides receipts produced by the petitioner, he might have spent some more amount which needs to be compensated. Accordingly, Rs.75,000/- 45 is awarded towards medical expenses and attendant charges.
30. Looking to the injuries Rs.25,000/- is awarded towards pain and suffering. Due to re-calculation of the income, petitioner has lost his income during the period of treatment i.e., laid up period. Accordingly, Rs.18,750/- is awarded towards loss of income during laid up period. Looking to the injuries sustained, petitioner has lost some of amenities available to healthy person. Accordingly, Rs.20,000/- is awarded towards loss of amenities. Accordingly, Rs.2,85,000/- is awarded to the petitioner as against Rs.1,71,548/- awarded by the Tribunal.
31. MFA No.102662/2018 is filed against award passed in MVC No.529/2015 and claimants have also filed MFA Crob.100061/2020. The Tribunal accepted the age of the petitioner as 33 years, his earning Rs.6,000/- p.m., disability at 5% and assessed the compensation.
32. As discussed above, income of the petitioner was taken as Rs.7,500/- p.m. and 40% of the same is to 46 be added towards future prospects. Accordingly, Rs.10,500/- p.m. is the income of the petitioner. The suitable multiplier applicable is '16', as the age of the injured wass 33 years. The Tribunal on the basis of evidence has taken disability to an extent of 5%. It is on lower side. Injured has sustained fracture of shaft of the left ulna so also fracture of lateral condayl of right humurus. According to him, he was barber by profession wherein both the hands would be used. Said fractures cause functional disability. Hence, permanent disability is taken as 10% to the whole body as per the evidence of medical expert. Therefore, compensation assessed under the head loss of future earning capacity due to permanent disability is Rs.10,500/- x 12 x 16 x 10% = 2,01,600/-. The Tribunal has awarded Rs.3,791/- towards medical expenses and Rs.1,200/- towards attendant charges. The said amount of compensation is also on the lower side. Besides the receipts produced by the petitioner, he might have spent some more amount towards attendant charges, nutritious diet etc. Considering these facts, Rs.60,000/- is 47 awarded towards medical expenses, attendant charges and incidental expenses.
33. The Tribunal has awarded Rs.5,000/- towards pain and suffering. Petitioner had sustained above said two fractures, he had taken treatment as inpatient in the hospital. Considering these facts, the amount awarded by the Tribunal is on the lower side and Rs.15,000- is awarded towards pain and suffering. Income of the petitioner is taken as Rs.10,500/- p.m. For about two months he might have taken treatment or might be under rest and lost the income for a period of two months. Accordingly, Rs.21,000/- is awarded towards loss of income during laid up period. Petitioner had lost some of the amenities available to healthy person. Accordingly, Rs.10,000/- is awarded under the said head, since the Tribunal has awarded lesser amount in this respect also. Considering the above discussions, Rs.3,07,600/- which is rounded off to Rs.3,08,000/- is awarded on all the heads as against Rs.1,28,591/- awarded by the Tribunal. 48
34. MFA No.102663/2018 arises out MVC No.530/2015 and the claimants have also filed MFA Crob.100062/2020. The Tribunal has taken the age of the deceased as 26 years, his earnings Rs.6,000/- p.m., suitable multiplier applicable as '17'. As discussed above, income of the deceased is taken as Rs.7,500/- p.m. Since he died at the age of 26 years, 40% of his income has to be added towards future prospects. Deceased appears to be bachelor. Claimants are grandmother and sister of the deceased. The Tribunal ought to have deducted 50% of his income towards personal expenses. However, the Tribunal has deducted 1/3rd towards personal expenses. After deducting the same, earning of the deceased is taken as Rs.5,250/- p.m. The suitable multiplier is '17'. Hence, the compensation under the head loss of dependency is Rs.5,250/- x 12 x 17 = Rs.10,71,000/-.
35. The deceased had two dependents and as per the judgment of the Hon'ble Supreme Court in the case of Magma (referred supra), Rs.40,000/- each is to be 49 awarded towards loss of consortium. Accordingly, Rs.80,000/- is awarded under the said head. Rs.15,000/- each is awarded under the heads, loss of estate and funeral expenses. Accordingly, Rs.11,81,000/- is awarded to the claimants on all heads as against Rs.8,86,000/- awarded by the Tribunal.
36. MFA No.102664/2018 is arises out of MVC No.531/2015 and claimants have also filed MFA Crob.100072/2020. The Tribunal has taken the age of the deceased as 30 years, his earnings as Rs.6,000/- p.m. and multiplier applicable as '17' and deducted 1/4th towards personal expenses as there are five dependents and awarded the compensation.
37. As discussed above, income of the deceased is to be taken as Rs.7,500/- p.m. He was aged about 30 years. Therefore, 40% of his income has to be added towards future prospects. Accordingly, his income per month is Rs.10,500/- and 1/4th of the same is deducted towards personal expenses. The amount of compensation 50 to be awarded under the head loss of dependency is Rs.7,875/- x 12 x 17 = Rs.16,06,500/-.
38. The deceased left behind the petitioners who were said to be depending upon income of the deceased. As per the judgment of the Hon'ble Supreme Court in the case of Magma (referred supra), Rs.40,000/- each is to be awarded towards loss of consortium. Accordingly, Rs.1,60,000/- is awarded under the said head. Rs.15,000/- each is awarded under the heads loss of estate and funeral expenses. In all Rs.17,96,500/- is awarded, which is rounded off to Rs.17,97,000/- as against Rs.9,88,000/- awarded by the Tribunal.
39. Learned counsel for the appellant Sri.S.S.Kayakamath has vehemently contended that offended Trax is private vehicle and it was a non-transport vehicle. As per Ex.P2, the complainant has specifically stated that all the inmates took the said vehicle on hire basis and they were going to Tangadagi village to attend religious function. The said admission clearly shows that 51 the said vehicle was taken by the inmates of the vehicle on hire and reward basis, which is violation of the conditions of the permit as well as terms of policy. Therefore, the insurer is not responsible to indemnify insured. It is further contention of the learned counsel for the appellant that according to the prosecution papers, there were 14 passengers in the said offending Tempo Trax against the permitted limit of 12 and thereby owner of the said vehicle has also violated the terms of the permit and breached a conditions of insurance policy. On this count also, respondent No.2 i.e., insurer is not liable to indemnify owner of the vehicle and hence, prayed to set aside the impugned judgment, fixing liability on the insurance company.
40. Learned counsel for the claimants/respondents have vehemently contended that only on the basis of stray word mentioned in Ex.P2, appellant has been contending that the said vehicle was taken on hire and reward and hence, it is not liable to pay the compensation. Respondent 52 No.2-insurance company has cross-examined in detail the witnesses of the petitioners, i.e., P.Ws.1 to 7 and in the cross-examination, it could not get any admissions to show that inmates of the vehicle had taken the said vehicle on hire and reward. The said complainant was not examined by the insurance company or even the investigating officer has not been examined by respondent No.2 and hence, it has not proved that inmates of the vehicle had taken the vehicle on hire and reward. As per the evidence of P.Ws.1 to 7 before the court, owner of the said vehicle was also belonging to the same community and all of them were traveling in the said vehicle and son of the owner of the vehicle was driving the said vehicle. They had gone to attend the religious function i.e., function of anniversary of Hadapad Appanna. R.W.1 has not examined any of the witnesses or enquired with any of the passengers or owner of the vehicle regarding payment of the hire charges to the owner of the Trax. Therefore, only on a stray word mentioned in Ex.P2, respondent No.2 cannot disown its liability to pay compensation. Moreover, the policy of 53 insurance was package policy and alleged violation of the conditions of policy was not a fundamental violation. It was not the case of respondent No.2 or investigating officer that accident had taken place due to violation of the permit conditions or carrying more number of passengers than the permitted limit. Under such circumstances, on the basis of such contentions respondent No.2 cannot disown its liability to pay the compensation.
41. The Tribunal in para 30 of the impugned judgment has mentioned in detail about the contention taken by the appellant herein and rejected the said contentions with proper and justifiable reasons. We concur with the said findings of the Tribunal. In Ex.P2, it is stated that "inmates of the vehicle who were all the residents of Mahalingpur, took the said vehicle to go to Tangadagi village to attend the function on hire basis". It is not mentioned in the said Ex.P2 about the fair paid by the inmates of the vehicle or at least by the complainant to the owner of the vehicle. It appears, he had not filed any claim 54 petition before the Tribunal, therefore, he was not examined by the petitioners.
Respondent No.2 tried to take the benefit of contents of the said document, had not examined the said Shivanand P.Kattimani, who is the author of the said document or investigating officer to prove the said fact.
42. Learned counsel for the appellant has vehemently contended that, once the document was marked without objections, by either of the parties, then the contents shall be deemed to be proved and no need to examine the witness. In this case, the matter was tried by the Tribunal wherein strict rule of Evidence Act is not applicable. Moreover, in the case of motor vehicle accident claim petitions, it is sufficient to prima facie prove that accident had taken place by user of the vehicle, to claim the compensation and there is no need to prove prosecution papers beyond reasonable doubt. Therefore, though the petitioners were not authors of the said document, they had examined P.W.1 and through him, it 55 was marked. It is true that the said document can be considered as an evidence for limited purpose of proving accident by user of offended vehicle. But it does not mean that the contents of the document were also proved by the petitioners. It is a settled principle of law that mere marking of documents does not mean that contents were proved.
43. It is pertinent to mention that there is no detailed description of hire charges paid to owner of the vehicle either individually or collectively. Investigating officer had not collected materials in this regard, to accept the contents of Ex.P2, without corroboration. P.W.1 to 7 have stoutly denied suggestion of respondent No.2, in their respective cross-examinations that inmates of vehicle had paid charges to owner of vehicle.
44. Therefore, on the basis of stray word mentioned in Ex.P2, it cannot be accepted that the said vehicle was taken by inmates of the vehicle on hire or reward.
56
45. As rightly discussed by the Tribunal, there is no legal evidence to prove that said vehicle was used on hire or reward. Respondent No.2 had examined R.W.1, who was manager of the insurance company. His evidence was also discussed by the Tribunal in the impugned judgment and he had no personal knowledge of payment of hire charges to the owner of the vehicle by inmates of the vehicle. Moreover, he has not enquired with owner of vehicle, investigating officer or any of the inmates who sustained injuries in the accident, about payment of hire charges. Even respondent No.2 had not examined investigating officer before the Tribunal to ascertain about the hire charges paid by the inmates of the vehicle. Under such circumstances, the contention of the appellant that inmates of the vehicle had taken the vehicle on hire or reward cannot be accepted.
46. It is also pertinent to note that owner of the said vehicle was not charge sheeted by the police for violation of the condition of the permit. If owner had 57 violated any condition of the permit by carrying more number of passengers than permitted limit or running of the vehicle as a transport vehicle without having such permit, then it was a serious violation of the provisions of the Motor Vehicles Act. But he was not charge sheeted for the same. On the contrary, the driver of the vehicle was charge sheeted under Section 178 of the Motor Vehicles Act. Said provision does not say that driver had violated conditions of the permit. Therefore, respondent No.2 had utterly failed to prove that inmates of the said vehicle had taken the said vehicle on hire or reward.
47. It is pertinent to note that including owner of the Tempo Trax all the inmates were belonging to same community and they went to Tangadagi in the said vehicle to attend a religious function pertaining to the said community, i.e., anniversary of "Hadapd Appanna" of "Hadapa Samaj" and son of the owner of the said vehicle was driving the vehicle. Even if it is a non-transport public vehicle, owner of the private vehicle are not barred from 58 taking their friends and relatives in the said vehicle for drive. Therefore, the contention of the petitioners that they had not paid any charges to go from Mahalingpur to Tangadagi is probable.
48. The learned counsel for the appellant has relied on several judgments to support its contentions that once a document is marked by the parties and it cannot deny some of contents of the said document. And also liability of the insurance company in case of carrying passengers on hire or reward by owner of the private vehicle in violation of the permit conditions. Few of them are referred below:
i) Oriental Insurance Company Limited Vs. Premlatha Sukla and Others reported in (2007) 13 SCC 476.
Above judgment pertains to exhibiting document by a party to litigation and denying part of contents of document, i.e., a party cannot approbate and reprobate the contents.
59
Facts of the said case were different from the facts of present case. In the present case, respondent No.2 relying on a stray word of Ex.P2, to disown its liability without any other materials. On the on the basis of said stray word, it cannot be held that they were gratuitous passengers and traveling for hire or reward. Therefore, law laid down in the above said judgment does not help the contention of respondent No.2.
ii) New India Assurance Company Limited Vs Asha Rani and Others reported in (2003) 2 SCC 223.
Facts of the above said case is different. In that case, the person who died in the accident was gratuitous passenger in a goods vehicle. Considering the same, the Hon'ble Supreme Court held that owner of the goods vehicle cannot carry the passengers other than owner of the goods. In that case, it was proved that the person who was travelling in the vehicle was not owner of goods. Considering the same, it was held that insurer has not responsible to compensate the claimants. 60
iii) Gadhilingappa and Others vs. K Guleppa and Others reported in ILR 2021 KAR 3377.
Facts of the said case is totally different from the facts of the present case. In that case, the person was travelling on the mudguard of a tractor and considering the said fact it was held by this court that, he was an unauthorized passenger and his liability is not covered under the policy. Therefore, insurer is not liable to pay the compensation.
iv) National Insurance Company Vs. Baljit Kaur and Others reported in (2004) 2 SCC 1.
The facts of the said case is different from the facts of the present case. In that case, it was held that passenger travelling in a goods vehicle if sustained injury in an accident, cannot claim compensation from the insurer. However, Hon'ble Supreme Court held that in such cases, the court can direct the insurance company to pay the compensation to the victims of the accident and recover it from the owner of the vehicle.
61
v) Balu Krishna Chavan vs The Reliance General Insurance Company Limited and Others reported in 2022 Live law (SC) 932.
In the above said case, the Hon'ble Supreme Court discussed about defence of insurer and also principles 'pay and recover' the owner of the vehicle and it is held that such discretion has to be used judiciously and in an appropriate case. Since in this case, respondent No.2 has utterly failed to establish that owner of the vehicle had violated the terms and conditions of the policy of insurance and running said vehicle on hire or reward basis though it was a private passenger vehicle. Therefore, the question of pay the amount of compensation to the claimant and recover from the owner of the vehicle does not arise. Therefore, law laid in the above said judgment does not help the appellant in substantiating its contention.
vi) In addition to the said judgments, the appellant has also relied upon the judgments, i.e., i) National Insurance Company Ltd. Vs Rattani and Others reported in 62 MANU/SC/8484/2008. ii) United India Insurance Co. Ltd. Vs Maroti reported in MANU/MH/1576/2014. iii) State of C.G. Vs Pushpalata Ganjeer and Others reported in MANU/CG/0762/2020.
It is not necessary to discuss in detail about the facts and law laid down in the said judgments. It is suffice to say that principle of law laid down in the above said judgments do not help in any way to the contentions of the appellants.
49. The appellant has relied upon a judgment reported in (2013) 1 SCC 731 in the case of National Insurance Company Limited vs Balakrishnan and Others. In the above said case, Hon'ble Supreme Court referred the decision of the High Court of Delhi in the case Yashpal Luthra and Another Vs United India Insurance Company Limited (2011 ACJ 1415) wherein High Court of Delhi has quoted the circular issued by Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA) dated 16.11.2009 that was sent to all the 63 insurance companies. The relevant portion of the said circular which has been reproduced in the above said judgment is quoted here for the purpose of discussion. (we quote) "17. At this stage, it is apposite to note that when the decision in Bhagyalakshmi (supra) was rendered, a decision of High Court of Delhi dealing with the view of the Tariff Advisory Committee in respect of 'comprehensive/package policy' had not come into the field. We think it apt to refer to the same as it deals with certain factual position which can be of assistance. The High Court of Delhi in Yashpal Luthra and Anr. V. United India Insurance Co. Ltd. and Another [2011 ACJ 1415], after recording the evidence of the competent authority of Tariff Advisory Committee (TAC) and Insurance Regulatory and Development Authority (IRDA), reproduced a circular dated 16.11.2009 issued by IRDA to CEOs of all the Insurance Companies restating the factual position relating to the liability of Insurance companies in respect of a pillion rider on a two-wheeler and occupants in a private car under the comprehensive/package policy.
The relevant portion of the circular which has been reproduced by the High Court is as follows:- (we quote) 'IRDA Ref: IRDA/NL/CIR/F&U/073/11/2009 16.11.2009 'IRDA IRDA/NL/CIR/F&U/078/12/2009 3.12.2009.
To 64 All CEOs of All general insurance companies (except ECGC, AIC, Staff Health, Apollo) Re: Liability of insurance companies in respect of occupant of a private car and pillion rider in a two- wheeler under Standard Motor Package Policy (also called Comprehensive Policy).
Pursuant to the Order of the Delhi High Court dated 23.11.2009 in MAC APP No. 176/2009 in the case of Yashpal Luthra v. United India and Ors., the Authority convened a meeting on November 26, 2009 of the CEOs of all the general insurance companies doing motor insurance business in the presence of the counsel appearing on behalf of the Authority and the leaned amicus curie.
Based on the unanimous decision taken in the meeting by the representatives of the general insurance companies to comply with the IRDA circular dated 16th November, 2009 restating the position relating to the liability of all the general insurance companies doing motor insurance business in respect of the occupants in a private car and pillion rider on a two wheeler under the comprehensive/package policies which was communicated to the court on the same day i.e. November 26, 2009 and the court was pleased to pass the order (dt. 26.11.2009) received from the Court Master, Delhi High Court, is enclosed for your ready reference and adherence. In terms of the said order and the admitted liability of all the general insurance companies doing motor insurance business in respect of the occupants in a private car and pillion rider on a two- wheeler under the comprehensive/package policies, you are advised to confirm to the Authority, strict compliance of the circular dated 16th November, 2009 and orders dt. 26.11.2009 of the High Court. Such compliance on your part would also involve:
i) withdrawing the plea against such a contest wherever taken in the cases pending before the MACT, and issue appropriate instructions to their respective lawyers and the operating officers within 7 days;65
ii) with respect to all appeals pending before the High Courts on this point, issuing instructions within 7 days to the respective operating officers and the counsel to withdraw the contest on this ground which would require identification of the number of appeals pending before the High Courts (whether filed by the claimants or the insurers) on this issue within a period of 2 weeks and the contest on this ground being withdrawn within a period of four weeks thereafter;
iii) With respect to the appeals pending before the Hon'ble Apex Court, informing, within a period of 7 days, their respective advocates on record about the IRDA Circulars, for appropriate advice and action. Your attention is also drawn to the discussions in the CEOs meeting on 26.11.2009, when it was reiterated that insurers must take immediate steps to collect statistics about accident claims on the above subject through a central point of reference decided by them as the same has to be communicated in due course to the Honourable High Court. You are therefore advised to take up the exercise of collecting and collating the information within a period of two months to ensure necessary & effective compliance of the order of the Court. The information may be centralized with the Secretariat of the General Insurance Council and also furnished to us.
IRDA requires a written confirmation from you on the action taken by you in this regard.
This has the approval of the Competent Authority.
Sd/-
(Prabodh Chander) Executive Director' [emphasis added]
19. It is extremely important to note here that till 31st December, 2006 the Tariff Advisory Committee and, thereafter, from 1st January, 2007, IRDA functioned as the statutory regulatory authorities and they are entitled to fix the tariff as well as the terms and conditions of the policies by all insurance companies. The High Court had 66 issued notice to the Tariff Advisory Committee and the IRDA to explain the factual position as regards the liability of the insurance companies in respect of an occupant in a private car under the 'comprehensive/ package policy'. Before the High Court, the Competent Authority of IRDA had stated that on 2nd June, 1986, the Tariff Advisory Committee had issued instructions to all the insurance companies to cover the pillion rider of a scooter/motorcycle under the 'comprehensive policy' and the said position continues to be in vogue till date. It had also admitted that the 'comprehensive policy' is presently called a 'package policy'. It is the admitted position, as the decision would show, the earlier circulars dated 18th March, 1978 and 2nd June, 1986 continue to be valid and effective and all insurance companies are bound to pay the compensation in respect of the liability towards an occupant in a car under the 'comprehensive/package policy' irrespective of the terms and conditions contained in the policy. The competent authority of the IRDA was also examined before the High Court who stated that the circulars dated 18th March, 1978 and 2nd June, 1986 of the Tariff Advisory Committee were incorporated in the Indian Motor Tariff effective from 1st July, 2002 and they continue to be operative and binding on the insurance companies. Because of the aforesaid factual position, the circulars dated 16th November 2009 and 3rd December, 2009, that have been reproduced hereinabove, were issued.
20. It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated thus:-
'IN VIEW OF THE AFORESAID, IT IS CLEAR THAT THE COMPREHENSIVE/PACKAGE POLICY OF A TWO WHEELER COVERS A PILLION RIDER AND COMPREHENSIVE/PACKAGE POLICY OF A PRIVATE CAR COVERS THE OCCUPANTS AND WHERE THE VEHICLE IS COVERED UNDER A COMPREHENSIVE/PACKAGE POLICY, THERE IS NO NEED FOR MOTOR ACCIDENT CLAIMS TRIBUNAL TO GO INTO THE QUESTION WHETHER THE INSURANCE COMPANY IS LIABLE TO COMPENSATE FOR THE DEATH OR INJURY OF A PILLION RIDER ON A TWO- WHEELER OR THE OCCUPANTS IN A PRIVATE CAR. IN FACT, IN VIEW OF THE TAC'S DIRECTIVES AND THOSE OF THE IRDA, SUCH A PLEA WAS NOT PERMISSIBLE 67 AND OUGHT NOT TO HAVE BEEN RAISED AS, FOR INSTANCE, IT WAS DONE IN THE PRESENT CASE."
50. It is not in dispute that Ex.R1 is a package policy in the present case, i.e., comprehensive policy. In view of the circular issued by the competent authority, the insurance company now cannot contend that it is not liable to pay compensation to the inmates of the private vehicle who traveled in the said vehicle.
51. It was also contended by learned counsel for the appellant that 14 passengers were traveling in the said vehicle against permitted limit of 12 passengers. Burden to prove this fact is on respondent No.2. It was not able to prove the same. For the sake of discussion, even if we believe that there were two more passengers in the offending vehicle then permitted limit, as rightly noted by the Tribunal in the cross-examination, R.W.1 has admitted that only 9 claim petitions were filed, claiming compensation. The claim of compensation are within permitted limit. Hence, on this count also insurer cannot disown its liability. As stated above, it is not the contention 68 of respondent No.2 that due to excess number of passengers, incident was taken place. Under those circumstances, insurer cannot deny its liability to compensate the claimants. For the aforesaid discussions, we pass following:
ORDER MFA No.102606, 102604, 102605, 102607, 102660, 102661, 102662, 102663 and 102664 of 2018 are dismissed.
MFA Crob. Nos.100057, 100058, 100059, 100060, 100061, 100062 and 100072 of 2020 are allowed in part. Both the parties shall bear their own cost.
The amount of compensation awarded in the impugned judgment is modified.
Claimants in MFA No.102604/2018 are entitled for compensation of Rs.11,25,000/- as against Rs.6,94,000/- awarded by the Tribunal.
Claimants in MFA No.102605/2018 are entitled for compensation of Rs.4,23,099/- as against Rs.3,53,024/- awarded by the Tribunal.69
Claimants in MFA Crob.100057/2020 are entitled for compensation of Rs.12,02,464/- as against Rs.7,72,000/- awarded by the Tribunal.
Claimants in MFA Crob.100058/2020 are entitled for compensation of Rs.2,90,000/- as against Rs.1,78,988/- awarded by the Tribunal.
Claimants in MFA Crob.100059/2020 are entitled for compensation of Rs.3,63,000/- as against Rs.2,35,935/- awarded by the Tribunal.
Claimants in MFA Crob.100060/2020 are entitled for compensation of Rs.2,85,000/- as against Rs.1,71,548/- awarded by the Tribunal.
Claimants in MFA Crob.100061/2020 are entitled for compensation of Rs.3,08,000/- as against Rs.1,28,591/- awarded by the Tribunal.
Claimants in MFA Crob.100062/2020 are entitled for compensation of Rs.11,81,000/- as against Rs.8,86,000/- awarded by the Tribunal.
Claimants in MFA Crob.100072/2020 are entitled for compensation of Rs.17,97,000/- as against Rs.9,88,000/- awarded by the Tribunal.70
Claimants are also entitled for interest on the enhanced amount at the rate of 6% p.a. from the date of petition till payment of the amount.
Respondent No.2 is directed to deposit the enhanced amount of compensation within two months from the date of receipt of copy of this order.
Remaining findings of the Tribunal are kept intact.
Sd/-
JUDGE Sd/-
JUDGE MBS