Karnataka High Court
Smt.Geeta W/O Honnappa Naikar vs Sri.Basavaraj S/O Hanumappa Karjagi on 7 October, 2020
Author: V.Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
M.F.A. NO.100072 OF 2016 (MV)
BETWEEN
SMT.GEETA W/O.HONNAPPA NAIKAR,
AGE : 27 YEARS, OCC : TAILORING AND COOLIE WORK,
R/O./KADARAMANDALAGI VILLAGE,
TQ : BYADGI, DIST : HAVERI.
.......APPELLANT
(BY SRI.HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND :
1. SRI.BASAVARAJ S/O.HANUMAPPA KARJAGI,
AGE : MAJOR, OCC : BUSINESS OWNER OF VEHICLE,
BEARING NO.KA-27/6374,
R/O.KADARAMANDALAGI, TQ : BYADGI-581106.
2. SHRIRAM GENERAL INSURANCE CO., LTD.,
E8, EPIP, RIICO INDUSTRIAL AREA
SITAPURA JAIPUR, RAJASTHAN STATE-302022.
.....RESPONDENTS
(BY SRI.S.K.KAYAKAMATH, ADVOCATE FOR R-2)
(NOTICE TO R-1 -SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT, AND PRAYED THAT JUDGMENT AND AWARD DATED
01.09.2015 IN M.V.C.NO.26/2013 PASSED BY THE LEARNED
SENIOR CIVIL JUDGE AND AMACT, IT COURT BYADGI MAY
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KINDLY BE SET ASIDE AND ALLOW THE CLAIM PETITION AS
PRAYED FOR BY ALLOWING THE ABOVE APPEAL WITH
COST, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS MFA COMING ON FOR ORDERS THIS DAY, COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for orders today, with the consent of both the parties, matter is taken up for final disposal.
2. The present appeal is preferred questioning the validity of the judgment and award dated 01.09.2015 passed in MVC No.26/2013 on the file of Senior Civil Judge and Member Additional M.A.C.T, Itinerary Court at Byadgi (hereinafter referred to as "the Tribunal" for short).
3. The brief facts, which are necessary for disposal of the appeal are as under:
3.1. A claim petition came to be filed under Section 166 of the M.V.Act by the injured-claimant stating that on 17.09.2012 at about 3.00 p.m. appellant and others were traveling in Katama vehicle (three wheeler) bearing No.KA- -3-
27/6374 from Kadaramandalagi village to Geraguddabasapur village for attending the function in the said village and the driver of said vehicle was driving the same in a rash and negligent manner and when the vehicle was moving on Somasagar-Byagawadi road, driver lost control over the vehicle and as such vehicle toppled down resulting in an accident. In the said accident appellant sustained fatal injuries all over the body and has taken treatment. It is further contended that due to the said accidental injuries, the appellant has become permanently disabled. In this regard, claim petition was filed seeking compensation.
4. In pursuance of the notice issued, the respondent Nos.1 and 2 who are the owner and insurer of the offending vehicle respectively entered appearance through their counsels and filed their objection statements denying the entire petition averments. However, respondent No.1 has admitted that he is the owner of Katama vehicle which was insured with respondent No.2. -4- Respondent No.2-insurer has also admitted that Katama vehicle was insured with its company and the policy was valid as on the date of accident. But respondent No.2 contended in the written statement that the driver of offending vehicle was not holding valid and effective driving licence as on the date of accident and therefore there was violation of permit and policy conditions and further contended for their discharge from liability that the Katama vehicle was having permit seating capacity of 4 passengers. But on the date of the accident, there were totally 8 passengers traveling in the said vehicle beyond the permit limit and they are unauthorized passengers and driver was not holding valid driving licence. Therefore, there is violation of policy conditions by the 1st respondent. Hence, respondent No.2 contend that company is not liable to pay compensation to the petitioner.
5. Based on the rival contentions, the Tribunal raised the following issues :
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"1. Whether petitioner prove that the accident in question was occurred on 17.09.2012 at about 3.00 hours on Somasagar-Byagawadi road, near Somasagar Anicross, due to the rash and negligent driving of the vehicle Katama bearing Reg.No.KA- 27/6374 by its driver?
2. Whether the respondent No.2 prove his discharge from the liability for the grounds urged in his written statement?
3. Whether the petitioner is entitled to claim compensation as prayed for? If so, from whom and at what rate?
4. What order or award?
6. Before the Tribunal, in order to substantiate the claim petition averments, the claimant got examined herself as P.W.3 and got marked documentary evidence which were exhibited and marked as Ex.P.1 to Ex.P.37. On behalf of the respondents, five witnesses have got examined as R.W.1 to R.W.5 and 12 documents were marked as Ex.R.1 to 12.
7. After hearing the counsels appearing for the parties and on consideration of the oral and documentary -6- evidence, the Tribunal allowed the claim petition in part to the tune of Rs.1,66,994/- as under :
1 For pain and sufferings. Rs.30,000/- 2 For medical expenses Rs.15,074/- 3 For conveyance, diet, extra Rs.4,000/-
nourishment charges food and attendant charges.
4 For loss of income during Rs.6,000/-
laid up period.
5 For loss of future earning Rs.1,06,920/-
capacity on account of
permanent physical
disability.
6 For loss of amenities and Rs.5,000/-
enjoyment of life.
Total Rs.1,66,994/-
8. It is that judgment which is under challenge in this appeal.
9. The learned counsel for the appellant vehemently contended that as per the opinion of the doctor, the claimant is having 40% disability, but the Tribunal has taken only 11% disability. Considering the nature of injuries sustained by the appellant it ought to have awarded more compensation. Further, he contended that Tribunal ought to have awarded some compensation -7- towards loss of discomfort of life and ought to have taken the income of the appellant at Rs.15,000/- per month instead of Rs.4,500/- per month as the appellant was doing Tailoring work and coolie work. He further contended that the compensation awarded towards loss of amenities is meager as it has awarded only Rs.5,000/- and Tribunal has wrongly held that there is violation of permit of vehicle and respondent No.2-Insurance Company is liable to pay the compensation and prayed for allowing the appeal.
10. Per contra, the learned counsel for the respondent No.2 Sri.S.K.Kayakamath vehemently contended that the Tribunal has properly taken into consideration the relevant materials on record and has allowed the just compensation and therefore, it does not require any further indulgence from this Court and prayed for dismissal of the appeal.
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11. After hearing the learned counsels for the parties and on perusal of the records, the following points would arise for consideration:
1. Whether the appellant-claimant is entitled for enhancement of compensation?
2. Whether the Tribunal has erred in fastening the liability on the owner of the vehicle?
12. This Court answers the above points No.1 and 2 in affirmative for the following:
REASONS
13. In the present case, the liability is fastened on the owner on the ground that the auto rickshaw involved in the accident was plied outside the Byadgi Taluka limits and therefore the Insurance Company is not liable to pay the compensation. There is violation of the policy conditions as more number of passengers were traveling in the auto rickshaw than the permit limit and driver of -9- the auto rickshaw was not holding a valid driving licence as on the date of accident.
14. Insofar as first contention is concerned, the learned counsel for the appellant submits that in view of the Division Bench ruling in the case of United India Insurance Co. Ltd, by its Divisional Manager vs. Sandhya in MFA.No.102428 of 2017 decided on 07.06.2019, wherein the Division Bench of this Court has clearly held that violation in respect of the policy terms and fastening the liability on the owner of the vehicle exonerating the Insurance Company is not tenable.
15. On close scrutiny of the Judgment of the Division Bench, there is sufficient force in the argument on behalf of claimant and hence, Insurance Company cannot be exonerated from its liability. Relevant portion of the said Judgment is culled out hereunder :
"18. Therefore, the sole distinction on which the authorities relied on by the learned counsel for the appellant can be distinguished is on the ground that whether there was any violation of the purpose for -10- which the vehicle was to be used and whether the violation of exceeding the territorial jurisdiction granted on the ground to ply the vehicle would amount to violation of purpose for which the vehicle was to be used. If that distinction is understood and kept in mind, we find that whether the Insurance Company can absolve its liability on the ground that the vehicle in question has plied for the vehicle can be decided. Further, the Insurance Company cannot contend that its liability is absolves on the ground that the purpose for which the vehicle was to be used, is violated. Because in this case the sole ground taken is violation of permit condition."
16. By applying the above principles to the case on hand, the contention of the Insurance Company that Auto Rickshaw was driven beyond the route specified in the permit and as such Insurance Company is not liable to the pay the compensation cannot be countenanced in law.
17. Insofar as violation of permit condition on account of more number of passengers is concerned, admittedly there are only three claim petitions filed in respect of the accident. Since the offending vehicle is an Auto Rickshaw, it had permit of three passengers and a -11- driver. Therefore, the reasoning assigned by the Tribunal to exonerate the Insurance Company on the ground of excess passengers cannot be countenanced and needs interference.
18. The third contention in regard to the driver of offending vehicle not possessing valid driving licence is now covered by the principles of law enunciated in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, reported in AIR 2017 SC 3668. Thus, on the ground of non possessing valid driving licence exonerating the Insurance Company needs to be interfered with.
19. Therefore, the adjudged compensation needs to be paid by the Insurance Company and accordingly, point No.1 is answered.
20. Accident is not in dispute. The Tribunal has taken the income of the injured at the rate of Rs.4,500/- per month, which is on the lower side. Since, the accident is of the year 2012, this Court and Lok-Adalath in the -12- absence of cogent material to ascertain exact income, would normally assess the notional income for the accidental claims of the year 2012 at Rs.6,500/- per month.
21. Injured was aged 25 years at the time of accident, therefore the multiplier adopted by the Tribunal is correct. The Doctor has assessed the total disability to the whole body at 40%, whereas the Tribunal after consideration of the material on record has taken the disability at 11%, which in the considered opinion of this Court is correct and does not require any interference. Therefore, appellant is entitled for enhanced compensation under the head loss of future earning which comes to Rs.1,54,440/- (Rs.6,500/- X 12 X 18 X 11%). Further, the, appellant is entitled for enhanced compensation on other heads. The appellant is entitled for Rs.5,000/- towards food, extra nourishment charges and attendant charges, and Rs.13,000/- towards loss of income during laid up period and Rs.25,000/- for loss of amenities. The -13- compensation awarded on the heads of medical expenses and pain and suffering holds good. Accordingly, the appellant is entitled for the following total compensation:
1 For Pain and sufferings. Rs.30,000/- 2 For medical expenses. Rs.15,074/- 3 For food, extra nourishment Rs.5,000/-
charges and attendant
charges.
4 For loss of income during Rs.13,000/-
laid up period.
5 For loss of amenities. Rs.25,000/-
6 For loss of future earnings. Rs.1,54,440/-
Total Rs.2,42,514/-
22. In view of the foregoing, the following order is passed:
ORDER The appeal is allowed in part.
The appellant-claimant is entitled for total compensation of Rs.2,42,514/- as against the compensation awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realization.-14-
Respondent No.2-Insurer shall deposit the entire compensation amount within six weeks' from the date of receipt of a certified copy of this judgment.
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JUDGE ckk