Karnataka High Court
M.Dada Khalander S/O Late Nabi Sab vs Muneer Khan S/O Late Rawoof Khan on 6 October, 2017
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
M.F.A.No.23416/2013
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF OCTOBER, 2017
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
MFA No.23416/2013 (MV)
BETWEEN:
M. DADA KHALANDER S/O. LATE NABI SAB,
AGED ABOUT 39 YEARS, OCC: EX-ELECTRICIAN,
R/O. BAPUJI CIRCLE,
KAMELA ROAD, BELLARY.
... APPELLANT
(BY SRI. Y.LAKSHMIKANT REDDY, ADV.)
AND:
1. MUNEER KHAN S/O. LATE RAWOOF KHAN,
AGED ABOUT 30 YEARS,
OCC: RIDER OF THE MOTOR CYCLE BEARING
REGISTRATION NO.KA 34/L 9055,
R/O. BESIDE DABBA SCHOOL,
NEAR PAKALI SCHOOL,
COWL BAZAAR, BELLARY.
2. S. DARBAR S/O. SHAIKSHAVALI,
AGED ABOUT 51 YEARS,
OCC: OWNER OF THE MOTOR CYCLE
BEARING REGISTRATION NO.KA 34/L-9055,
R/O. ANTHONI STREET, COWL BAZAAR,
BELLARY.
3 THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO, LTD.,
BELLARY.
... RESPONDENTS
(BY SRI..SHARANABASAWA, ADV. FOR R1 & R2; AND
SRI N.R.KUPPELUR, ADV. FOR R3)
M.F.A.No.23416/2013
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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MV
ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED
02.01.2013, PASSED IN MVC NO.813/2012, ON THE FILE OF THE
MEMBER, MACT-IX, BELLARY, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal though has been listed for admission, however, with the consent from both side the matter is taken up for final disposal.
The appellant herein was the claimant before the Member, Motor Accident Claims Tribunal - IX, Bellary (henceforth referred to as the 'Tribunal' for brevity) in MVC No.813/2012, whose claim petition under Section 166 of the Motor Vehicles Act, 1988 was allowed in part by the impugned judgment and award dated 02.01.2013. Seeking enhancement of the compensation awarded by M.F.A.No.23416/2013 :3: the Tribunal by fixing the liability on the Insurance Company/respondent No.3, the appellant has preferred this appeal.
2. In his memorandum of appeal, the appellant has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal.
3. Heard the arguments from both sides and perused the materials placed before this Court.
4. Learned counsel for the appellant in his argument reiterated the contention taken up by the appellant in his memorandum of appeal.
5. This is claimant's appeal seeking enhancement of the compensation as well as fixation of liability as against the Insurance Company/Respondent No.3. Even though M.F.A.No.23416/2013 :4: the Tribunal gave its finding in affirmative holding that the occurrence of the alleged road traffic accident has in fact taken place on the date, time place and in the manner as alleged by the claimants in its claim petition, but it fastened the liability only upon the respondent Nos.1 and 2 before it, but not against the respondent No.3 who was the Insurer of the alleged offending vehicle.
6. After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:
`) Amount(` Pain and suffering 30,000 Towards Medical expenses 8,000 Attendant charges 3,000 Towards nursing and nourishment charges 3,000 Loss of earning during the treatment period 9,000 Compensation towards loss of future earnings 1,29,600 Compensation towards loss of Amenities 5,000 Compensation towards Future Medical treatment 15,000 Total 2,02,600
7. Ex.P-6, the wound certificate shows that the claimant had sustained fracture of shaft of right femur. Apart from considering the said aspect, the Tribunal on its M.F.A.No.23416/2013 :5: own has also assessed that for the said injury, the claimant must have suffered with pain and agony for two months. By observing this, the Tribunal has awarded a sum of `20,000/- towards pain and sufferings. The said quantum cannot be called as lower than reasonable amount in the circumstance of the case, as such, I do not want to interfere.
8. In the absence of any medical bills, the Tribunal has awarded a sum of `8,000/- towards medical expenses. However, considering the nature of injury and the alleged implantation of a steel rod for which the injured must have undergone the surgery, the medical expenses would have been exceeded more than `8,000/-, as such, an additional sum of `4,000/- is awarded to make it a reasonable compensation.
9. The claimant has stated that, at the time of accident he was working as an electrician and was earning a sum of `15,000/- per month. After noticing that there M.F.A.No.23416/2013 :6: was no evidence to accept his alleged income of `15,000/- per month, the Tribunal has considered the same at `150/- per day, which comes to `4,500/- per month. The learned counsel for the appellant submits that even in the absence of any evidence for proving the income, the Tribunal ought to have considered the notional income being taken up for the relevant year of 2012 which was at `6,500/- per month. The co-ordinate Benches of this Court are taking the notional income of an injured for the relevant year of 2012 at `6,500/- per month. Accordingly, in the instant case also the notional income is to be taken which is at `6,500/- per month. If the said amount is taken as the notional income, then the compensation awarded towards loss of income during the period of treatment, for two months would be `6,500/- X 2 = `13,000/- - `9,000/- = `4,000/-. As such, the claimant is entitled for an enhancement of a sum of `4,000/- under the said head.
M.F.A.No.23416/2013:7:
10. Quantifying the attendant charges for two months, the Tribunal has awarded a sum of `3,000/-. Considering the year of the accident and the attendant charges in the circumstances of the case ought to have been taken at an amount not less than `100/- per day. If the said amount is taken then the difference of amount of compensation towards attendants charges would be `100 X 60 days = `6000/- - `3000/- = `3000/-. As such, the claimant is entitled for an enhancement of a sum of `3,000/- under the said head.
11. The quantum of `3,000/- awarded towards nursing, extra nourishment charges and for special diet being reasonable, I do not want to interfere in it.
12. It was further the argument of the learned counsel for the appellant that, the percentage of disability taken by the Tribunal is on the lower side, as such the same requires to be enhanced and fixed at higher percentage. The said argument was vehemently opposed M.F.A.No.23416/2013 :8: by the learned counsel for the respondent-Insurance Company who submitted that the percentage of disability assessed at 34% by PW-2 the doctor, was without any basis. When confined to whole body, the same ought to have been not more than 10-11 percent, whereas, the Tribunal has taken 16% in the case on hand. In the instant case, considering that the only major injury sustained by the claimant who was fractured of shaft of right femur and his alleged avocation as an Auto electrician, I am of the view that the percentage of disability as taken by the Tribunal, which is at 16% does not require any variation. In such an event, since the income of the claimant is re-considered and fixed at `6,500/-, the quantum of compensation towards loss of future earnings would come at `1,87,200/- (`6,500X12X15X16/100) after deducting the compensation of `1,29,600/- awarded by the Tribunal, the balance of `57,600/- is the amount for which the claimant is entitled as an enhanced compensation. M.F.A.No.23416/2013 :9:
The quantum of compensation awarded towards the loss of amenities and future medical treatment expenses at `5000 and `15,000/- being reasonable quantum, I do not want to interfere in it.
13. Barring the above, the claimant/appellant is not entitled for enhancement of compensation or awarding of compensation under any other heads.
14. Thus, in total the claimant/appellant is entitled for a total enhancement of a sum of `68,600/-
68,600 (Rupees Sixty Eight thousand Six hundred Only), which is in addition to the compensation awarded by the Tribunal.
15. The second major argument of the learned counsel for the appellant was regarding the correctness of exoneration of the insurer from its liability to pay compensation to the claimant by indemnifying the insured. He submitted that by virtue of the circular of IRDA dated 16.11.2009 and the Judgment of Hon'ble Supreme Court in National Insurance Company M.F.A.No.23416/2013 : 10 : Limited Vs. Balakrishnan and another reported in 2013 ACJ 199, the Insurer is liable in the case on hand since, admittedly the Insurance policy was a package policy which covers the pillion rider of the motor cycle also.
16. The learned counsel for the respondent- Insurance Company though admitted that the Insurance policy as at Ex.R-1 is a package policy, still a condition of the policy at Sec.2(1)(i) specifically exempts Insurer from its liability towards injury suffered by a pillion rider who travels under the employment of the owner, the Tribunal has rightly discharged the Insurer from its liability.
17. No doubt, the Tribunal after referring to the Insurance Policy at Ex.R-1 and more particularly a condition in the said policy which is referred as 'Section II
- liability to third parties' has exonerated the Insurer. The said term in the policy is reproduced here below:
"SECTION II-LIABILITY TO THIRD PARTIES.M.F.A.No.23416/2013 : 11 :
1. ........
2. death or bodily injury to any person including occupants carried in the insured vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured"
18. The said term of the policy was considered by the Insurance Regulatory and Development Authority (IRDA) in its circular dated 16.11.2009. The said circular in its entirety reads as below:
"IRDA.
Ref: IRDA/NL/CIR/F&U/073/11/2009 16.11.2009.
To CEOs of all general insurance companies.
Re: Liability of insurance companies in respect of occupants of a private car and pillion rider on a two- wheeler under standard motor package policy (also called comprehensive policy) Insurers' attention is drawn to wordings of section II(1)(ii) of standard motor package policy (also called the comprehensive policy) for private car and two- wheeler under the (erstwhile) India Motor Tariff. For convenience the relevant provisions are reproduced hereunder:M.F.A.No.23416/2013 : 12 :
'Section II - Liability to Third Parties.
1. Subject to the limits of liabilities as laid down in the Schedule hereto the company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect of -
(i) death or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act the company shall not be liable where such death or injury arises out of and in the course of employment of such person by the insured'.
It is further brought to the attention of insurers that the above provisions are in line with the following circulars earlier issued by the TAC on the subject.
(i) Circular M.V. No.1 of 1978 dated 18.3.1978 (regarding occupants carried in private car) effective from 25.3.1977.
(ii) MOT/GEN/10 dated 2.6.1986 (regarding pillion riders in a two-wheeler) effective from the date of the circular.
The above circulars make it clear that the insured's liability in respect of occupant(s) carried in a private car and pillion rider carried on two-wheeler is covered under the standard motor package policy. A copy each of the above circulars is enclosed for ready reference."
19. By reading of the said circular, particularly the last paragraph of the said circular it is clear that the insured's liability in respect of occupant(s) carried in a M.F.A.No.23416/2013 : 13 : private car and pillion rider carried on two-wheeler is covered under the standard motor package policy. It is admitted that the Insurance policy in the case on hand is also a standard motor package policy. Thus by virtue of the said circular, Insurer cannot claim any exemption or exoneration from its liability towards the injured third party.
20. The contents of the circular dated 16.11.2009 of IRDA was in issue for observation before the Hon'ble Supreme Court in National Insurance Company Limited Vs. Balakrishnan and another reported in 2013 ACJ 199. In the said case, their lordships after referring to the IRDA dated 16.11.2009 also referred to a subsequent circular of the same authority (IRDA) dated 03.12.2009. Further, at para 20 of its Judgment the Hon'ble Apex Court, was pleased to observe as below;
"20. It is also worthy to note that the High Court, after referring to individual M.F.A.No.23416/2013 : 14 : 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 Accidents 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 and ought not to have been raised as, for instance, it was done in the present case"."
21. While concluding its finding regarding the liability of the Insurance Company at para 21, the Hon'ble Apex Court observed that the IRDA the statutory authority has clarified the position by issuing circular which have M.F.A.No.23416/2013 : 15 : been reproduced by the Judgment by Delhi High Court. Thus, the Hon'ble Supreme Court has observed that the interpretation and analysis of the said circular by the Delhi High Court which has observed that there was no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company was liable to compensate for death or injury of a pillion rider on a two wheeler where the policy is a package policy of a two wheeler was not found fault with. In view of the same, the argument of the learned counsel for the respondent - Insurance Company that, in view of the condition in the policy under 'Section II - Liability to third parties' the Insurer was not liable is not acceptable. Consequently, the finding of the Tribunal, exonerating the Insurance Company from its liability does not hold good and the said finding deserves to set aside and the Insurance Company is required to be held liable to the claimant.
22. Accordingly, I proceed to pass the following: M.F.A.No.23416/2013 : 16 :
ORDER The appeal is allowed in part.
The judgment and award passed by
the Member, Motor Accident Claims
Tribunal - IX, Bellary, in MVC
No.813/2012 dated 02.01.2013 is
modified to the extent that the
compensation awarded at `2,02,600/- is enhanced by a sum of `68,600/-, thus fixing the total compensation at `2,71,200/- (Rupees Two Lakh Seventy one thousand two hundred only).
The finding and order of the Tribunal dismissing the claim petition as against the respondent No.3 is set aside.Consequently, respondent Nos.1, 2 and 3
are jointly and severally liable to pay the entire compensation amount with awarded interest to the claimant. The respondent No.3 being the Insurer to deposit the awarded amount in the Tribunal within four week from the date of receipt of the copy of this Judgment.M.F.A.No.23416/2013 : 17 :
The rest of the terms of the
impugned Judgment and award with
respect to awarding interest, its rate, release of the amount and also the compensation amount of future medical treatment not carrying any interest, all remains unaltered.
Draw modified award accordingly.
Sd/-
JUDGE *Svh/-