Karnataka High Court
Madevakka @ Mahadevamma W/O Ningappa ... vs Sanaulla S/O Ebrahimsab Bukeetagar on 25 May, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25 T H DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MFA NO.25403/2012 (MV)
C/W.
MFA NO.25268/2012 (MV)
IN MFA No .25403/2012
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO.LTD.
SUJATHA COMPLEX,
P.B.ROAD,HUBBALLI
REP.BY ADMINISTRATIVE OFFICER
REGIONAL OFFICE,
KUSGAL ROAD,
HUBBALLI.
...APPELLANT
(BY SHRI S V YAJI, ADVOCATE.)
AND:
1. MADEVAKKA @ MAHADEVAMMA
W/O NINJAPPA MENASHINAHAL
AGED ABOUT 42 YEARS
OCC: BUSINESS
RESIDING AT SHIKARIPURA
NOW AT-VIDYA NAGAR
RANEBENNUR,
DISTRICT - HAVERI
2. SANAULLA BUKEETAGAR
S/O EBRAHIMSAB
2
AGED ABOUT 35 YEARS
OCC: BUSINESS
R/AT RAMATEERTH VILLAGE
TALUK: HIREKERUR,
DISTRICT - HAVERI
...RESPONDENTS
(BY SRI G.N.NARASANNAVAAR, ADVOCATE
FOR RESPONDENT NO.1 and SRI C.S.LAKKONDAR,
ADVOCATE FOR R-2 V.O.D 04.04.2022)
***
THIS APPEAL IS FILED UNDER SECTION
173(1) OF MV ACT, 1988, PRAYING TO SET ASIDE
THE JUDGMENT AND AWARD DT. 10.10.2012
PASSED IN MVC NO.510/2010 ON THE FILE OF THE
PRL.SENIOR CIVIL JUDGE AND MEMBER AMACT,
RANEBENNUR, AWARDING THE COMPENSATION OF
RS.70,500/- WITH INTEREST AT THE RATE OF 6%
P.A., FROM THE DATE OF PETITION TILL
REALISATION AND ETC,
IN MFA No .25268/2012
BETWEEN:
SMT.MADEVAKKA @ MAHADEVAMMA
W/O.NINGAPPA MENASHINHAL
AGED ABOUT 42 YEARS
OCC: BUSINESS,
R/O.SHIKARIPUR,
NOW AT VIDYA NAGAR,
RENEBENNUR
... APPELLANT.
3
(BY SRI G N NARASAMMANAVAR, AND SRI
M.R.MANOHAR, ADVOCATES)
AND:
1. SANAULLA
S/O EBRAHIMSAB BUKEETAGAR
MAJOR,
OCC: BUSINESS
R/AT RAMATEERTH VILLAGE
TALUK: HIREKERUR.
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO.LTD.
SUJATA COMPLEX,
OPP.P.B.ROAD
HUBBALLI
... RESPONDENTS.
(BY SRI S.Y.YOGI, ADVOCATE FOR R-2;
NOTICE TO R-1 IS DISPENSED WITH)
***
THIS APPEAL IS FILED UNDER SECTION
173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING
TO MODIFY THE JUDGMENT AND AWARD DATED
10.10.2012 PASSED IN MVC NO.510/2010 ON THE
FILE OF PRL.SENIOR CIVIL JUDGE AND MEMBER,
ADDL. MACT, RANEBENNUR, BY ENHANCING THE
COMPENSATION, ETC.
THESE APPEALS ARE COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
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JUDGMENT
These appeals have been preferred challenging the judgment and award dated 10.10.2012, passed by the Prl. Senior Civil Judge and Addl. MACT, Ranebennur, (hereinafter referred as 'Tribunal' for short) in MVC No. 510/2010.
2. M.F.A. NO. 25403 of 2012 is preferred by the Insurer of the offending vehicle on the ground of exorbitant compensation and liability being fastened on it and M.F.A. NO.25268/2012 is by the claimant on the ground that the compensation awarded by the Tribunal is inadequate and meager.
3. Though this matter is listed for admission, with consent of learned counsel on both sides, matter is taken up for final disposal.
4. Parties to the appeal shall be referred to as per their status before the Tribunal.
5. Brief facts of the case are as under:
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That on 01.02.2010, at about 3.30pm petitioner boarded the matador vehicle bearing Registration No. KA- 29 / 2095 at Masur bus stand to go to Hirekerur for her daughter's house as authorized passenger. The driver drove the matador with high speed, rash and negligent manner, so as to endanger human life and safety on Masur - Hirekerur Road and when it reached near the land of Tirakappa Banakar, Gundagatti Village, the driver tried to overtake an auto rickshaw and lost of the vehicle and toppled down on the road.
6. On account of the said accident the claimant sustained grievous injuries all over the body with fracture of right clavicle bone, fracture of middle phalanx and fracture of right side ribs and she was immediately shifted to Government Hospital, Hirekerur and thereafter to Dr. S.M. Mudri Hospital at Ranebennur and then she took treatment in other private hospitals for about two months and spent Rs.50,000/- towards medical expenses. The claimant was still under follow up treatment and she further requires Rs.25,000/- towards future medical expenses.
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7. It is stated that the claimant was hale and healthy and was doing business and was earning Rs.10,000/- per month. Due to the sudden accident, the claimant has become permanently disabled, due to which, she has lost her future earning capacity and she is suffering from mental and physical agony. She is unable to walk, sit and discharge her regular work and duties as she was doing prior to the accident. On account of accident claimant and her family members lost the income and they have been put to untold miseries and hardship. Hence, the claimant filed claim petition seeking compensation from the respondents.
8. On service of notice, respondent No.1 and 2 have appeared and filed their respective objections. Respondent No.1 - Owner of the offending vehicle, inter- alia, contended that the claim petition filed by the claimant is false, frivolous and same is not maintainable in law and also denied the age, occupation and earning of the claimant. He also denied the occurrence of accident, involvement of vehicle, existence of insurance policy and driver of the offending vehicle not possessing a valid and 7 effective driving licence as on the date of occurrence of accident. He further pleaded that at the time of accident matador was insured with respondent No.2 - Insurer and policy was in force and driver of the offending vehicle was having valid and effective driving licence at the time of accident. He further contends that if the court comes to a conclusion that the driver of the offending vehicle was rash and negligent in driving the matador, then in view of the policy being in force the respondent No.2 as an Insurer would be liable to indemnify the respondent No.1 by paying the compensation to the claimant, if any. He further contends that the amount of compensation sought was exorbitant and pleaded for dismissal of the claim petition.
9. Respondent No.2 - Insurer in its objections contended that the claim petition filed by the claimant is false, frivolous and same is not maintainable in law. It also denied the age, occupation and earning of the claimant. It also denied the occurrence of accident, involvement of vehicle, existence of insurance policy and driver of the offending vehicle not possessing a 8 valid and effective driving licence as on the date of occurrence of accident. It is further contended that the claim is highly excessive, exorbitant without any legal basis. Respondent No.2 admits the subsistence of insurance policy at the time of accident of the offending vehicle. The liability is subject to terms and conditions, exceptions and limitation of the policy. It is further contended that the offending vehicle matador is having seating capacity of 12+1 as per policy, but as per the complaint there are 25 to 30 passengers in the said vehicle. As per police records 15-20 are injured. It is stated that the driver of respondent No.1 was having motor cab badge and it is issued on 28.03.2007 and valid upto 27.07.2009, but the accident occurred on 01.02.2010. Therefore, there is violation of terms and conditions of the policy. It also pleaded that the amount of compensation sought was exorbitant and pleaded for dismissal of the claim petition.
10. On the basis of pleadings, the Tribunal framed relevant issues for consideration.
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11. In order to substantiate the issues and to establish the case, the claimant examined herself as PW1 and also examined Dr. U.R. Ullal as PW2 and got marked 15 documents as Exs.P1 to P15. Whereas, on behalf of respondent No.2 - Insurer examined one witness as RW1 and got marked five documents as Ex.R1 to R3.
12. Based on the evidence both oral and documentary, the Tribunal awarded a total compensation of Rs.70,500/- with interest at 6% p.a. and directed respondent No.2 to pay the said compensation amount along with interest.
13. Being aggrieved by the said Judgment and Award passed by the Tribunal, claimant and respondent No.2 - Insurer are before this Court in these two appeals.
14. It is the vehement contention of the learned counsel appearing for the claimant that the judgment and award passed by the Tribunal is erroneous and arbitrary and it requires to be modified by enhancing the compensation. Learned counsel further contends that the Tribunal has grossly erred in not taking into consideration 10 the avocation of claimant to be business and that she was earning a sum of Rs.10,000/- per month. Hence, the same in entirety ought to have been taken for assessment of income by the Tribunal which is not done in the case on hand. Hence, flawed and the same requires to be set aside and modified by enhancing the compensation.
15. Learned counsel further contends that the Tribunal has committed a gross error in not awarding suitable compensation towards pain and suffering and so also under the head loss of amenities. Learned counsel further contends that the Tribunal has grossly committed an error in not awarding compensation under the head medical expenses, loss of amenities, so also, the Tribunal has not awarded any amount under the head loss of income during laid up period. On these grounds, she seeks to allow the appeal and consequently, enhance the compensation.
16. Per contra, learned counsel appearing for respondent No.1 - Owner of the offending vehicle contends that his vehicle was insured with respondent No.2 - Insurer and the driver of the vehicle was having 11 valid and effective driving licence as on date of occurrence of accident. He further contends that if the court comes to a conclusion that the driver of the offending vehicle was rash and negligent in driving the matador, then in view of the policy being in force the respondent No.2 as an Insurer would be liable to indemnify the respondent No.1 by paying the compensation to the claimant, if any.
17. Learned counsel for the respondent No.2 - Insurer vehemently contends that the Tribunal has totally erred in passing the impugned judgment and award by ignoring the material evidence both oral and documentary. Therefore, the impugned judgment deserves to be set aside. It is further contended that the Tribunal has failed to appreciate the fact that the insured has violated the policy conditions deliberately entrusting the vehicle to the driver who was possessing the driving licence for LMV (Non Transport), but the insured vehicle is a transport vehicle. The impugned judgment and award passed by the Tribunal has resulted in miscarriage of justice and the Tribunal failed to appreciate the evidence and principles laid down by the Hon'ble Apex Court and this Court and 12 wrongly directed the respondent No.2 - Insurer to satisfy the award.
18. The learned counsel for respondent No.2 - Insurer further contended that in view of the decision of the Hon'ble Apex Court to the effect that driving the transport vehicle holding driving licence for non-transport amounts to violation of policy condition. He further contends that the Tribunal failed to take into consideration the fact that seating capacity was 11 to the offending vehicle, but there are more than 25 or 30 persons as per the police records. He further contends that the Tribunal has erred in rejecting the contention of the appellant - Insurer that the driver was not having a valid and effective driving license. He further contends that the Tribunal has failed to take into consideration and weigh these aspects in favour of the Insurer and on the contrary the Tribunal has erred in fixing the liability on the appellant - Insurer, which is erroneous in law. Hence, on these grounds he seeks to allow the appeal and set aside the judgment and award passed by the Tribunal.
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19. Having heard learned counsel for the claimant, Owner of the offending vehicle and Insurer, the points that would arise for consideration are:
(1) Whether the claimant is entitled for enhancement of compensation?
(2) Whether the owner and Insurer have made out a case for setting aside the judgment and award passed by the Tribunal?
(3) Whether the liability is to be fastened on the Insurer of the offending vehicle? (4) What order?
20. It is not in dispute that on 01.02.2010 at 03.30 p.m., when the claimant was traveling in the offending vehicle - matador, while over taking an auto rickshaw it toppled down and claimant sustained injuries.
21. In order to substantiate his case, claimant got marked Ex.P1 to P5, which are Police records. Evidentiary value of these Police records as per the Indian Evidence Act will have to be accepted on the face value and cannot be rejected. Moreover, there is no contra evidence to 14 Ex.P1 to P5, being fraudulent or not being genuine. Under these circumstances, laying of charge sheet and criminal case foisted against the driver of the offending truck has not been challenged. Therefore, occurrence of accident, involvement of matador in question belonging to that of the respondent No.1 - Owner of the offending vehicle, are not in dispute and will have to be accepted.
22. The main ground urged by the learned counsel for the appellant - Insurer is that the insured had violated the policy condition deliberately entrusting the vehicle to the driver who was possessing the driving licence for LMV, whereas the insured vehicle was a transport vehicle. It is next urged that the offending vehicle, namely, matador violated the terms and conditions of the policy by carrying excess passengers in the vehicle to an extent of 25 to 30 passengers, whereas the seating capacity is only 12+1 as per Policy.
23. It is not in dispute that the insurer admitted the issuance of policy on the offending vehicle Matador bearing No.KA 29 / 2095. The policy was valid for a period from 27.06.2009 to 26.06.2010. Admittedly, the accident 15 had occurred on 01.02.2010, thereby as on date of occurrence of the afore stated accident, the insurance policy with regard to the offending vehicle was in force. Hence, it can be safely concluded that there was a contractual liability of the insurer as against first respondent, owner of the offending vehicle.
24. As regards, the contention that the driver of the offending vehicle did not possess a valid and effective driving licence to drive the vehicle in question by holding a motor cab badge issued on 28.03.2006 valid up to 27.07.2009, which is vehemently argued by the learned counsel for the insurer that the driver of the offending vehicle matador did not possess a valid driving licence to drive a non transport vehicle, I am afraid this contention of the insurer cannot be accepted for the reason that merely because the driver of the matador vehicle driving licence of LMV expired as on 27.07.2009 that by itself could not disqualify the driver of the vehicle to drive a transport vehicle. This would infer that the appellant, insurer of the offending vehicle who has accepted the subsistence of the insurance policy as on date of occurrence of accident, 16 cannot escape the liability of payment of compensation on the ground that badge is issued to drive a motor cab LMV had expired.
25. It is no more res integra with regard to liability of payment of compensation by the insurer even if there is non existence or expiry of the driving licence by the driver of the offending vehicle and the Insurance Company would not escape its liability when the policy in force. The tribunal has rightly considered all the judgments relied on by the Insurance Company with regard to the vehement contention of learned counsel appearing on its behalf with regard to violation of the terms and conditions of the policy so also non possessing of a valid driving licence for the transport vehicle and has rightly held that the breach of licence condition is not proximate case for the accident, the insurer would be certainly at liberty to independently go against the insured for recovery of the amount for violation of terms and conditions. In view of the fact that the policy was in force as on date of occurrence of accident, the Insurance Company is liable to indemnify the owner of the offending vehicle on the basis of contractual 17 liability. Therefore, the tribunal has correctly applied its mind and has carefully appreciated and considered the judgment relied by the learned counsel for the Insurer and has passed a well reasoned order.
26. Now coming to the age, avocation and income of the claimant as on the date of occurrence of accident, though it is claimed by the claimant that she was doing business and earning Rs.10,000/- per month, but there is no material evidence placed on record to substantiate the same. In a case on hand when there is no proof of income furnished the Tribunal as well as this Court will have to do the guess work for ascertaining the income of claimant. In order to arrive at a standard guess work the Legal Services Authority has formulated a chart for assessing the income for the relevant year of accident. As per the chart for the year 2010 the income is assessed at Rs.5,500/- per month. Therefore, I am in agreement with the learned counsel appearing for the claimant that the Tribunal has committed an error in assessing lesser income than what is prescribed by the Notional Income Chart. Hence, income 18 of the claimant is assessed at Rs.5,500/- per month as against Rs.3,000/- taken by the Tribunal.
27. The claimant has stated that she is aged 40 years as on date of occurrence of accident, but no document has been produced to prove the said fact. In the absence of any material proof with regard to age of the claimant, Ex.P4 - Would certificate will have to be taken for consideration which depicts her age to be as 50 years as on the date of accident. As per the judgment of the Hon'ble Apex Court in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121, the appropriate multiplier applicable in the case on hand would be '13' and hence the multiplier is taken as '13'.
28. Though the claimant has examined the Doctor as PW2, who has treated the claimant and has issued Ex.P10-disability certificate which shows that she has suffered disability to an extent of 40% to the right shoulder and right finger region. Considering the evidence of PW2 - Doctor, the Tribunal has arrived at a conclusion 19 with regard to disability to whole body at 8%. I am in agreement with the learned counsel for claimant that the assessment of disability by the Tribunal is flawed for the simple reason that the PW2 has assessed the disability to one part of the right side region, if the same is divided into three parts, then it would be 13% (40 divided by 3). Therefore, I deem it appropriate the assess the disability to the claimant to the whole body at 13%.
29. In view of the above the loss of future earning capacity due to permanent disability would be Rs.1,11,540/- (Rs.5,500/- X 12 X 13 X 13%) as against Rs.37,440/- awarded by the Tribunal.
30. The Tribunal has awarded compensation towards medical treatment and expenses incurred at the Hospital of Rs.5,000/- based on the medical bills as per Ex.P7 and P9, which is on actual medical bills produced and the same is retained.
31. It is seen that the Tribunal has failed to award any amount towards loss of amenities. In view of the claimant having suffered fracture of bone and fracture of 20 right middle phalanx as described in the wound certificate as per Ex.P4 and the injuries No.1 and 3 being grievous in nature, a sum of Rs.25,000/- is awarded under this head.
32. The Tribunal has awarded a sum of Rs.5,000/- towards attendant charges, food & nutritious and traveling expenses. The same is retained.
33. The Tribunal has awarded a sum of Rs.20,000/- towards injury, pain & agony, which requires to be enhanced to Rs.30,000/-.
34. The Tribunal has awarded a sum of Rs.3,000/- under the head loss of income during laid up period. The same is on the lower side. In view of this Court enhancing the income of the claimant at Rs.5,500/- per month and the claimant having suffered two fractures, it would not be possible for the claimant to get back to her daily normal activities and day to day work within three months. Hence, three months would be required for recuperating and getting back to normal work. Hence, the claimant is entitled to Rs.16,500/- (Rs.5,500/- X 3) under this head. 21
35. In all, the claimant are entitle for total compensation in a sum of Rs. 1,93,040/- as against a sum of Rs.70,500/- awarded by the Tribunal as detailed in the table below:
SL. NO. HEAD AMOUNT (in Rs.)
01. Towards injury, pain & 30,000-00
agony
02. Towards medical expenses 5,000-00
03. Towards attendant charges, 5,000-00
food & nutritious and
traveling expenses
04. Towards loss of income due 1,11,540-00
to permanent disability
05. Towards loss of income 16,500-00
during laid up period
06. Towards loss of amenities 25,000-00
TOTAL 1,93,040-00
36. Accordingly, I pass the following;
ORDER
(1) Appeal in MFA No.25268/2012 preferred by
the claimant is allowed-in-part;
(2) Appeal in MFA No.25403/2012 preferred by
the Insurer is dismissed;
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(3) The judgment and award dated 10.10.2012, passed by the Prl. Senior Civil Judge and Addl. MACT, Ranebennur, (hereinafter referred as 'Tribunal' for short) in MVC No. 510/2010, is modified;
(4) The claimant is entitled to total compensation in a sum of Rs.1,93,040/-
as against a sum of Rs.70,500/- awarded by the Tribunal;
(5) The claimant is entitled to interest @ 6% per annum on the enhanced compensation amount;
(6) The Insurer of the offending vehicle shall deposit the enhanced compensation within a period of six weeks from the date of receipt of the copy of the order along with interest before the jurisdictional tribunal;
(7) Registry to transmit the amount, if any, deposited before this Court by the appellant 23
- Insurer to the jurisdictional Tribunal forthwith.
(8) Entire amount shall be released in favour of the claimant.
Sd/-
JUDGE VK