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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2019
PRESENT
THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON’BLE MR. JUSTICE K. NATARAJAN
MISCELLANEOUS FIRST APPEAL No.2050 of 2015 (MV-I) c/w MISCELLANEOUS FIRST APPEAL No.425 of 2015 (MV-D)
In MFA No.2050 of 2015
BETWEEN:
SMT. RADHAMMA @ RADHA, W/O. LATE THIPPESHAPPA K.H., AGED ABOUT 45 YEARS, PRESENTLY RESIDING AT LIG-31, NEAR ANJANEYA TEMPLE, VINOBHA NAGAR, SHIVAMOGGA – 577 401. ... APPELLANT (BY SRI P.P. HEGDE, ADVOCATE)
AND:
MR. NAGARAJA NAIKA, S/O. DEVLA NAIKA, RESIDENT OF MANDEKOPPA, MATTHUR POST, SHIVAMOGGA TALUK, (OWNER OF AUTO RICKSHAW, BEARING NO.KA-14-A-8439).
G. KIRAN KUMAR, S/O. GANESH RAO,
AGED ABOUT 30 YEARS, 6TH CROSS, HOSAMANE, SHIVAMOGGA – 577 401. (DRIVER OF AUTO RICKSHAW
BEARING REG.NO.KA-14-A-8439), (RDL/1/395/10-11, RTO, SHIVAMOGGA – 577 401).
UNITED INDIA INSURANCE CO. LTD., II FLOOR, RUB BUILDING, AA CIRCLE, B.H. ROAD, SHIVAMOGGA – 577 401. (POLICY No.240400/31/11/01/00011529) VALIDITY:26.10.2011 to 25.10.2012) ... RESPONDENTS
(BY SRI M.U. POONACHA, ADVOCATE FOR R3; R1 and R2 ARE SERVED AND UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 06.09.2014 PASSED IN MVC No.729 of 2012 ON THE FILE OF THE COURT OF FAST TRACK AND ADDITIONAL MACT-III, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
In MFA No.425 of 2015
BETWEEN:
SMT. RADHAMMA @ RADHA, W/O. LATE THIPPESHAPPA K.H., AGED ABOUT 45 YEARS,
MR. K.T. NAVEEN KUMAR, S/O. LATE K.H. THIPPESHAPPA, AGED ABOUT 22 YEARS,
MR. AVINASH, S/O. LATE K.H. THIPPESHAPPA, AGED ABOUT 20 YEARS,
APPELLANT Nos.1 AND 3 ARE
PRESENTLY RESIDING AT LIG-31, NEAR ANJANEYA TEMPLE, VINOBHA NAGAR, SHIVAMOGGA – 577 451. ... APPELLANTS (BY SRI P.P. HEGDE, ADVOCATE)
AND:
MR. NAGARAJA NAIKA, S/O. DEVLA NAIKA, RESIDENT OF MANDENA KOPPA,
MATTHUR POST, SHIVAMOGGA TALUK – 577 451. (OWNER OF AUTO RICKSHAW BEARING No.KA-14-A-8439).
G. KIRAN KUMAR, S/O. GANESH RAO, AGED ABOUT 30 YEARS, 6TH CROSS, HOSAMANE, SHIVAMOGGA – 577 451. (DRIVER OF AUTO RICKSHAW BEARING REG.No.KA-14-A-8439) (RDL/1/395/10-11, RTO, SHIVAMOGGA – 577 451).
UNITED INDIA INSURANCE CO. LTD., II FLOOR, RUB BUILDING, AA CIRCLE, B.H. ROAD, SHIVAMOGGA – 577 451. (POLICY No.240400/31/11/01/00011529) VALIDITY: 26.10.2012 to 25.10.2012).
... RESPONDENTS
(BY SRI M.U. POONACHA, ADVOCATE FOR R3; R1 and R2 ARE SERVED AND UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.09.2014 PASSED IN MVC No.728 of 2012 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, ADDITIONAL MACT-3, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALs COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING: JUDGMENT
Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
MFA No.2050/2015 is filed by the claimants in MVC No.728/2012 while MFA No.425/2015 is filed by the injured claimant in MVC No.729/2012 both assailing the judgment and award dated 06.09.2014 passed by the Fast Track and Additional MACT-III (hereinafter referred to as ‘Tribunal’ for the sake of convenience), Shivamogga.
For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal
It is the case of the appellants/claimants that on 29.04.2012, Thippeshappa K.H., the husband of claimant No.1 and their family members were proceeding in the auto-rickshaw bearing Regn.No.KA-14/A-8439 from Shivamogga towards Hanagerekatte to visit a temple. Respondent No.2 was driving the said auto-rickshaw. When they were near Sampigehalla in between Ayanur- Hanagere in Shivamogga Taluk, respondent No.2 drove the auto-rickshaw in a rash and negligent manner and with a great speed. As a result, it dashed against the road side bund and caused the accident. Thippeshappa and his wife Radhamma, appellant in the connected appeal, and others suffered grievous injuries. As Thippeshappa had sustained serious injuries, he was taken to the Government Hospital at Ayanur and then to Nanjappa Hospital, Shivammogga thereafter shifted to KMC Hospital, Manipal in hired
ambulance. In spite of best treatment, he died on 30.04.2012 at about 12.15 a.m.
Contending that Thippeshappa was hale and healthy and was the breadwinner of the family and on account of his demise in the accident, they were in penury and agony, his legal representatives filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘Act’). They submitted that Thippeshappa was working as a mechanic in BSNL at Honnali and was earning a salary of Rs.40,000/- per month and he was an income tax assessee. That on account of his sudden death, the family was in penury and left in the lurch. They sought compensation of Rs.53,00,000/- on various heads. His widow and appellant in the connected appeal, Smt.Radhamma, also filed her claim petition under Section 166 of the Act seeking compensation on account of the injuries sustained by her in the accident. She contended that she was an in-patient from 29.04.2012 to 22.05.2012 that she had spent over Rs.2,50,000/- towards treatment
of fracture of shaft of right humerus and that she had undergone emergency surgery on 30.04.2012 and was referred to an Orthopaedic doctor and that she had undergone ORIF and exploration of radial nerve on 17.05.2012 and pre-suturing of abdominal wound was done. She was discharged on 22.05.2012 with cast application and was advised to take bed-rest and follow-up treatment. Thereafter, she visited KMC Hospital at Manipal Hospital and took follow-up treatment.
Contending that she had sustained permanent disability owing to the injuries sustained by her in the accident, she sought compensation on various heads.
The claims petitions were clubbed together by the Tribunal. In response to the notices issued by the Tribunal, respondent Nos.1 to 3 appeared through their counsel, but only respondent No.3-Insurance Company filed common statement of objections denying the material averments made in the claim petitions and contending that liability, if any, to be fastened on it would be subject to the
terms and conditions of the Policy. It was further contended that the offending vehicle namely, the auto- rickshaw in question had permit to ply only within its territorial limit i.e. within Shivamogga city, but in the instant case, it was plying 10 kms. beyond and therefore, the Insurance Company was not liable to satisfy the award.
On the basis of the rival pleadings, the Tribunal formulated the following issues for its consideration: “ Issues in MVC No.728/12 1. Whether the petitioners prove that alleged accident was occurred due to rash and negligent driving by the driver of Auto rickshaw bearing No.KA.14/A- 8439 and in the said accident resulted in the death of K.H.Tippeshappa?
Whether the 3rd respondent proves that owner of the vehicle has committed breach of policy conditions, hence 3rd respondent is not liable to pay compensation to the claimants?
Whether the 3rd respondent proves that the driver of the vehicle had no valid and effective driving license?
Whether the petitioners are entitled for compensation? If so, what is the quantum and from whom?
What Order or Award?
Issues in MVC 729/12
Whether the petitioner prove that alleged accident was occurred due to rash and negligent driving by the driver of Auto rickshaw bearing No.KA.14/A-9439 and in the said accident petitioner sustained grievous bodily injuries?
Whether the 3rd respondent proves that owner of the vehicle has committed breach of policy conditions, hence 3rd respondent is not liable to pay compensation to the claimants?
Whether the 3rd respondent proves that the driver of the vehicle had no valid and effective driving licence?
Whether the petitioner is entitled for compensation? If so, what is the quantum and from whom?
What Order or Award?
In support of their case, the widow of deceased Thippeshappa and the injured-claimant Smt.Radhamma examined herself as PW.1. She produced 25 documents, which were marked as Exs.P.1 to P.25. The Insurance Company examined its Administrative Officer as RW.1 and produced two documents, which were marked as Exs.R.1 and R.2. On the basis of the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative, issue No.3 in the negative and issue No.4 partly in the affirmative in both the cases and allowed the claim petitions in-part and awarded compensation of Rs.23,83,200/- with interest at 6% per annum from the
date of claim petition till realization in MVC No.728/2012 and a sum of Rs.2,37,730/- with interest at 6% per annum from the date of claim petition till realization in MVC No.729/2012. The liability was fastened on the owner of the auto-rickshaw, while the Insurance Company was exonerated. Being aggrieved by the judgment and awards of the Tribunal, the claimants have preferred their respective appeals.
We have heard learned counsel Sri P.P.Hegde for the appellants and learned counsel Sri M.U.Poonacha for the Insurance Company and perused the material on record.
Learned counsel for the appellants contended that the Tribunal was not right in fastening the liability on the owner of the auto-rickshaw, the offending vehicle in the instant case. He contended that the permit vis-à-vis auto- rickshaw had was to ply within 10 kms. radius in Shivamogga Town, but the auto-rickshaw was plying beyond the limits of the permit. But by that the Insurance
Company cannot be exonerated of its liability and the same could not have been fastened on the owner of the auto-rickshaw. He contended that the claimants are innocent third parties, who are the victims of the accident in question and their right to claim compensation from the Insurance Company cannot be curtailed by exonerating the Insurance Company. In support of his submission, he placed reliance on a recent judgment of the Hon’ble Supreme Court in the case of Rani and others vs. National Insurance Company Limited reported in (2018) 8 SCC 492 [Rani]. He also brought to our notice an earlier judgment of the Hon’ble Supreme Court in the case of Amrit Paul Singh and another vs. Tata AIG General Insurance Company Limited and others reported in (2018) 7 SCC 558 [Amrit Paul Singh]. He submitted that having regard to the dictum of the Hon’ble Supreme Court in the case of Rani, the liability would have to be fastened jointly and severally on the owner as well as on the insurer of the auto-rickshaw and that the amount of compensation would have to be paid to the claimants by
the Insurance Company in the first instance and liberty may be reserved to the insurer to execute the award as against the owner so as to recover the said amount from the owner.
He next contended that the quantum of compensation awarded in both the cases is very meager. He submitted that in MVC No.728/2012, the legal representatives of the deceased Thippeshappa had filed the claim petition. That the award of compensation on the head of loss of dependency as well as on the conventional heads is meager. Having regard to the latest dicta of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 SCC 680 and Magma General Insurance Co. Ltd., vs. Nanu Ram alias Chuhru Ram reported in 2018 ACJ 2782, compensation may be enhanced. He also contended that in MVC No.729/2012, the injured-claimant has sought enhancement of compensation. Apart from the aforesaid contentions
regarding the permit, which has also been raised in the said appeal, he submitted that both the appeals may be allowed and a direction may be issued to the Insurance Company to satisfy the award by modifying the judgment and awards of the Tribunal.
Per contra, learned counsel for the Insurance Company supported the judgment and awards of the Tribunal and contended that, it has been established by the insurer that there was a violation of the condition regarding permit that the auto-rickshaw has travelled beyond the territorial limit for which the permit had been granted by the authorities concerned and that the Insurance Company is liable to satisfy the awards and that there is no merit in these appeals, which may be dismissed.
Having heard learned counsel for the respective parties and on perusal of the material on record, the following points arise for our consideration:
i) Whether the Tribunal was right in fastening the liability solely on the owner/insured of the auto rickshaw excluding the Insurance Company ?
ii) Whether the claimants/appellants are entitled to an enhanced compensation?
iii) What order?
The fact that on 29.04.2012, Thippeshappa and his wife Radhamma were traveling along with others in the auto-rickshaw bearing Regn.No.KA-14/A-8439 from Shivamogga towards Hanagerekatte to visit a temple and during their journey, the driver of the auto-rickshaw drove the same in a rash and negligent manner resulting in the vehicle dashing against a road side bund causing death of Thippeshappa and injuries to his wife Radhamma has been established by the claimants.
The controversy, however, is with regard to the liability of the Insurance Company to satisfy the awards.
Even in the written statement, the Insurance Company has taken a defence that the auto-rickshaw in question had a permit to ply only within 10 kms. radius of Shivamogga city, but in the instant case, the auto-rickshaw was plying beyond the said territorial limit and that there was violation of the terms and conditions of the policy and, therefore, the Insurance Company was not liable to satisfy the awards. In this regard, RW.1, the Administrative Officer was examined on behalf of the Insurance Company and two documents were produced as Ex.R.1-Policy and Ex.P.2-permit. The Tribunal has answered the issue regarding the liability to satisfy the awards in favour of the Insurance Company and that the Insurance Company has been exonerated of its liability and instead the owner of the vehicle has been directed to satisfy the awards. However, having regard to the latest dictum of the Hon’ble Supreme Court in the case of Rani, under similar circumstances, it was held that the insurer cannot be completely excluded of its liability to satisfy the award. That the Insurance Company would have to first pay the
claimants who are innocent third parties and thereafter, recover the amount from the owner of the vehicle/insured, who had violated the terms and conditions of the Policy. In that case, the permit for the vehicle in question therein was to ply only in the State of Maharastra, but on the fateful day, it was plying in the State of Karnataka. Hence, the Hon’ble Supreme Court did not completely exonerate the insurer and instead directed the Insurance Company to satisfy the award insofar as the claimants therein were concerned and then to recover the same from the insurer.
In fact, the judgment in the case of Rani is subsequent to the judgment of the Hon’ble Supreme Court in the case of Amrit Paul Singh referred to above. It is a judgment of two Judge Bench of the Hon’ble Supreme Court. A detailed discussion has been made in respect of Section 66 of the Motor Vehicles Act, 1988, with regard to the necessity of having a permit to ply a passenger vehicle or a goods vehicle and after considering the case at length, at paragraph 24, the Hon’ble Supreme Court held that in
the said case, the vehicle in question therein, at that time of the accident, did not have a permit and neither did the case fall under any of the exceptions carved out under Section 66(3) of the Act. Therefore, there was a fundamental statutory infraction and violation of the condition of plying the vehicle without a permit. But, even in the said case, the direction was to the insurer to pay the compensation amount to the claimants and to recover the same from the owner and driver of the vehicle. However, in the instant case, it has been established that the auto rickshaw in question did have a permit to ply within the limits of Shivamogga city and within a radius of 10 kms. Therefore, this is not a case where the offending vehicle did not have permit at all, but the vehicle was hired by the claimants to proceed to a temple, which was located beyond the limits of the permit. Hence, it cannot be equated to a case of a vehicle not having a permit at all, which is violation of the condition of the permit and terms and conditions of the policy.
In the circumstances, we find that the Tribunal could not have exonerated the Insurance Company completely. Therefore, following the dictum of the Hon’ble Supreme Court referred to above, the respondent-Insurance Company is directed to satisfy the awards and, thereafter to recover the same from the insured and owner of the auto-rickshaw in question. Accordingly, point No.1 is answered in favour of the appellants.
This takes us to the next limb of argument of learned counsel for the appellants namely, with regard to quantum of compensation awarded by the Tribunal and enhancement sought for by the appellants in these appeals.
MFA No.425/2015 pertains to MVC No.728/2012 i.e. whether Thippeshappa sustained grievous injuries and died in the accident and his wife and children filed the claim petition seeking compensation on account of the death of
Thippeshappa. The Tribunal has awarded Rs.23,83,200/- in the following manner;
Medical, conveyance, attendants -Rs. 15,000/-
Loss of consortium
-Rs. 10,000/-
Loss of love and affection
-Rs. 10,000/-
Transportation, obsequies and other expenses
-Rs. 15,000/-
Loss of estate
-Rs. 10,000/-
Loss of dependency
-Rs.23,23,200/-
Total -Rs.23,83,200/-
The same carries interest at 6% per annum from the date of claim petition till deposit. It is unnecessary to reiterate the contentions of appellants’ counsel in this regard. We find that the award of compensation on the head of loss of dependency is to the extent of Rs.23,23,200/- is just and proper and would not call for any interference. But we find hat the compensation awarded on conventional heads is meager.
In the circumstances, having regard to the latest dictum of the Hon’ble Supreme Court referred to above a sum of Rs.40,000/- is awarded to the widow of
Thippeshappa towards loss of consortium, a sum of Rs.30,000/- each is awarded to the children of Thippeshappa on the head of loss of parental consortium. A sum of Rs.15,000/- is awarded towards loss of estate and a sum of Rs.15,000/- is awarded towards funeral expenses.
However, the Tribunal has awarded Rs.15,000/- towards medical, conveyance and attendant charges, which we find it meager. The medical expenses and incidental charges are enhanced to Rs.25,000/-. Thus, the total compensation is re-assessed to Rs.24,78,200/-. The same shall carry interest at 6% per annum from the date of claim petition till realization. On deposit of the same, the Tribunal to release the same to appellant No.1-Smt. Radhamma, widow of Thippeshappa, after due identification.
MFA No.2050/2015 pertains to MVC No.729/2012, which has been filed by Smt.Radhamma in respect of the injuries sustained by her in the accident that occurred on
the same day. The Tribunal has awarded compensation of Rs.2,37,730/- on the following heads: Pain and suffering
Rs. 35,000/- Conveyance attendance and nutrition Rs. 10,000/- Medical expenses
Rs.1,37,730/- Loss of earning during treatment Period
Rs. 20,000/-
Loss of amenities
Rs. 35,000/-
Total Rs.2,37,730/-
Learned counsel for the appellant contended that the said compensation is meager and it may be enhanced. However, in the absence of there being any legal evidence and there being no determination of percentage of permanent disability, we do not find any reason to enhance the compensation awarded by the Tribunal. Hence, the amount awarded by the Tribunal is retained with interest at 6% per annum.
In the result, the appeal filed by the claimants herein is allowed in-part.
The respondent-insurer is directed to deposit the compensation amount before the Tribunal within a period of four weeks from the date of receipt of certified copy of this judgment.
The Insurance Company is at liberty to execute this judgment as against the insured, owner of the auto- rickshaw to recover the compensation amount from the said party. Parties to bear their respective costs.
Sd/- JUDGE
Sd/- JUDGE