Partly allowed

The Oriental Insurance Co. Ltd. v. Mydlyappa S/O Sann Kumarappa

Karnataka HC27 Aug 2019MFA/21070/2009

Case brief

AI extract

What is this about?

The High Court dismissed insurer appeals regarding liability and upheld driver's valid license despite missing badge. For the claimant, the court enhanced compensation to Rs.1,70,350, correcting disability assessment and awarding specific heads like future amenities.

What did the court decide?

Appeals by insurer dismissed. Claimant's appeal allowed in part with compensation enhanced to Rs.1,70,350 plus interest.

The Oriental Insurance Co. Ltd. Vs… — Contract and Commercial Disputes | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 27^TH DAY OF AUGUST, 2019

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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MISCELLANEOUS FIRST APPEAL NO.25162/2011 (MV)

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C/w.

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MISCELLANEOUS FIRST APPEAL NOs.21070/2009,

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21072/2009, 21071/2009 AND 20448/2009 (MV)

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IN MFA NO 25162 OF 2011

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BETWEEN:

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THE ORIENTAL INSURANCE CO., LTD., BY ITS DIVISIONAL MANAGER, BELLARY. REPTD., BY ITS AUTHORIZED OFFICER, REGIONAL OFFICE, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI - 29.

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... APPELLANT

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(BY SRI. G N RAICHUR, ADVOCATE)

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AND:

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SRI. H TIPPANNA S/O. LESI LATE BASAMMA, AGE: 50 YEARS, OCC: NILL, R/O: VITTALAPURA VILLAGE, TQ: SANDUR, DIST: BELLARY.

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SMT.KUNTHEMMA W/O. H TIPPANNA, AGE: 44 YEARS, OCC: HOUSEWIFE, R/O: VITTALAPURA VILLAGE,

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TQ: SANDUR, DIST: BELLARY.

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-2-

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SMT.SHEKAN BEE W/O. KHALEEL, AGE: MAJOR, OCC: OWNER OF AUTO BEARING REGN.NO. KA-17/8234, R/O: TORANAGALLU RS, TQ: SANDUR, DIST: BELLARY.

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SHRI.KALEEL S/O. JABEER VALI, AGE: MAJOR, OCC: DRIVER OF AUTO BEARING REGN. NO. KA-17/8234, R/O: TORANAGALLU RS, TQ: SANDUR, DIST: BELLARY. ... RESPONDENTS

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(BY R1 TO R4 – SERVED) ---

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THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND DECREE DTD:18-06-2009 PASSED IN MVC.NO.07/2008 ON THE FILE OF THE V MACT, BELLARY, AWARDING COMPENSATION OF RS.2,90,000/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF THE PETITION TILL THE DATE OF REALISATION.

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IN MFA NO 21070 OF 2009

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BETWEEN:

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THE ORIENTAL INSURANCE CO LTD DIVISIONAL OFFICE BELLARY REP BY ITS REGIONAL MANAGER THE ORIENTAL INSURANCE CO LTD REGIONAL OFFICE SUMANGALA COMPLEX II FLOOR LAMINGTON ROAD HUBLI

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... APPELLANT

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(BY SRI. G N RAICHUR, ADVOCATE)

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AND:

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MYDLYAPPA S/O SANNA KUMARAPPA AGE: 31 YEARS, OCC: COOLIE R/O TALLUR VILLAGE TQ BELLARY

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-3-

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SMT SHEKAN BEE W/O KHALEEL AGE:MAJOR, OCC:OWNER OF AUTO BEARING NO KA 17/8234 R/O TORANGALLU R S TQ SANDUR, BELLARY DIST

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... RESPONDENTS

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(BY SRI. Y. LAKSHMIKANT REDDY, ADVOCATE FOR R2; R1 - SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01/10/2008 PASSED IN MVC NO.941/2006 ON THE FILE OF THE III MOTOR ACCIDENT CLAIMS TRIBUNAL, BELLARY, AWARDING A COMPENSATION OF RS.22,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.

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IN MFA NO. 21072 OF 2009

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BETWEEN:

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THE ORIENTAL INSURANCE CO LTD DIVISIONAL OFFICE BELLARY REP BY ITS REGIONAL MANAGER THE ORIENTAL INSURANCE CO LTD REGIONAL OFFICE SUMANGALA COMPLEX II FLOOR LAMINGTON ROAD HUBLI

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... APPELLANT

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(BY SRI. G N RAICHUR, ADVOCATE)

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AND:

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SMT ALLUM BEE D/O NABISAB AGE: 21 YEARS, OCC:COOLIE R/O TALLUR VILLAGE, TQ. BELLARY

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SMT SHEKEN BEE W/O KHALEEL AGE: 40 YEARS, OCC: OWNER OF AUTO BEARING NO. KA-17/8234 R/O TORANGALLU R S TQ SANDUR, BELLARY DIST

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... RESPONDENTS (BY SRI. HANUMANTHREDDY SAHUKAR, ADVOCATE FOR R1; R2 - SERVED)

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-4-

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THIS MFA IS FILED U/S.173(1) OF THE M.V.ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:01-10-2008, PASSED IN MVC NO.562/2006, ON THE FILE OF THE III-MOTOR ACCIDENT CLAIMS TRIBUNAL BELLARY, AWARDING THE COMPENSATION OF RS.81,000/-WITH INTEREST AT 6% P.A., FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA NO. 21071 OF 2009

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BETWEEN:

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THE ORIENTAL INSURANCE CO LTD DIVISIONAL OFFICE BELLARY REP. BY ITS REGIONAL MANAGER THE ORIENTAL INSURANCE CO LTD REGIONAL OFFICE SUMANGALA COMPLEX II FLOOR LAMINGTON ROAD HUBLI

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... APPELLANT

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(BY SRI. G N RAICHUR, ADVOCATE)

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AND:

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POMPAPATHY S/O SANNA KUMARAPPA AGE: 31 YEARS, OCC:COOLIE R/O TALLUR VILLAGE TQ BELLARY

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SMT SHEKAN BEE, W/O KHALEEL AGE: 38 YEARS, OCC: OWNER OF AUTO BEARING NO. KA-17/8234 R/O TORANGALLU R S TQ SANDUR, BELLARY DIST

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... RESPONDENTS (BY SRI. Y LAKSHMIKANTH REDDY, ADVOCATE FOR R1; R1 - SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED: 01/10/2008 PASSED IN M.V.C.NO.942/2006 ON THE FILE OF THE MEMBER M.A.C.T. III BELLARY, AWARDING A COMPENSATION OF RS.21,000/ALONG WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA NO 20448 OF 2009

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BETWEEN:

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SMT. ALLUM BEE D/O NABI SAB AGE: 21 YEARS, OCC: COOLIE R/O. TALUR VILLAGE TQ AND DIST BELLARY

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... APPELLANT

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(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)

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AND:

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SMT SHEKEN BEE W/O KHALEEL AGE: MAJOR OWNER OF AUTO KA-17/8234 R/O. TORANAGALLU R S TQ. SANDUR DIST BELLARY 2. THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO LTD BELLARY ... RESPONDENTS

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(R1-NOTICE DISPENSED WITH; SRI. G. N. RAICHUR, ADVOCATE FOR R2) ---

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:1/10/08 PASSED IN MVC NO.562/06 ON THE FILE OF MACT-III, BELLARY, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though these appeals came up for admission, with

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the consent of learned counsel for both the parties, they are heard finally.

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MFA No.25162/2011 is filed by the Insurer assailing the judgment and award dated 18.06.2009 passed by the V Motor Accident Claims Tribunal, Ballari (hereinafter referred to as ‘the Tribunal’, for short), in MVC No.7/2008, MFA Nos.21070/2009, 21072/2009 and 21071/2009 have been filed by the insurer assailing the judgment and award dated 01.10.2008 passed by the Member, MACT – III, Ballari (hereinafter referred to as ‘the Tribunal’, for short) in MVC Nos. 941, 562 and 942 of 2006 respectively, whereas MFA No.20448/2009 has been filed by the claimant seeking enhancement of compensation awarded by the same Tribunal in MVC No.562/2006.

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Heard the learned counsel appearing for the

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appellant/insurer as well as claimants in all these appeals.

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The rankings of the parties before the

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Tribunals is retained for brevity.

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The claimants filed the petitions under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) claiming compensation of Rs.18,00,000/- in MVC No.7/2008 for the death of M. S. Mahesh; Rs.8,00,000/- in MVC No.562/2006, Rs.3,50,000/- in MVC No.941/2006 and Rs.3,00,000/in MVC No.942/2006, for the injuries sustained by the claimants, inter alia contending that, on 17.04.2006 all these claimants were traveling in an auto rickshaw bearing registration No.KA-17/8234 from Talur village after completion of their coolie work. The driver of the auto rickshaw driven the vehicle in a rash and negligent manner and when the said auto came on Bellary-Talur road near Narihalla at about 5.30 pm, it turned turtle,

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due to which the claimants have sustained grievous injuries and they have been taken to hospital and treated as inpatients and due to the injuries, they have suffered from disability and hence claimed compensation on various grounds.

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In pursuance to the notice, in MVC No.7/2008, respondents have appeared through their counsels, respondent No.2 – insurer filed written statement denying the averments made in the petition, whereas respondents No.1 and 3 have not filed any objections. In MVC Nos.562, 941 and 942 of 2006, respondent No.1 – driver of the vehicle remained absent and placed exparte; 2^nd respondent – owner of the vehicle appeared and filed written statements denying the averments made in the petitions; and the 3^rd respondent - insurer appeared through its counsel and filed written statement contending that the driver of the auto rickshaw was not possessing valid driving licence to drive the vehicle at the time of accident and if there is

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any liability, it is subject to the terms and conditions of the policy. However, it is contended that the claim of the petitioners is exorbitant and hence prayed for dismissal of the petition.

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Based upon the rival pleadings, both the Tribunal framed following issues:

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In MVC No.7/2008

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i. Whether the petitioners prove that, the accident dated 17.04.2006 was due to rash and negligent driving of Auto driver bearing Registration No.KA17/8234 and that it resulted in death of M. S. Mahesh?

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ii. Whether petitioners are entitled for compensation? If so, from whom and what extent?

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iii. What order or award?

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In MVC No.562/2006

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i. Does petitioner prove that on 17.04.2006 at about 5.30 am, on Bellary-Talur road, near Narihalla, he was traveling in the auto No.KA.17/8234 as a paid passenger, the driver of the said auto

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was driving in a high speed and in a rash and negligent manner, as a result of which, the auto turtled as alleged?

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ii. Does petitioner further proves that, in the said accident, she sustained grievous injuries?

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iii. Whether the petitioner is entitled for compensation? If so, at what rate and from whom?

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iv. What order or award?

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In MVC No. 941/2006

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i. Whether petitioner prove that, only due to rash or negligent act of driving on the part of respondent No.1 driver of auto accident occurred and he sustained injuries in the said accident?

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ii. Whether the petitioner is entitled for compensation? If so, at what rate and from whom?

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iii. What order or award?

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In MVC No 942/2006

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i. Whether the petitioner being the passenger in the auto proves that he sustained injuries in a motor accident due to rash and negligent driving of auto bearing Reg.No.KA-17/8234 by the first respondent on 17.4.2006 at about 5.30 pm near Narihalla near Talur when he made it to turn turtle?

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ii. Whether R.3 proves that R.1 had no valid and effective driving license as on the date of accident?

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iii. Whether the petitioner is entitled to compensation? If so, to what extent and from whom?

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iv. To what relief?

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To substantiate their contention, the 1^st claimant

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in MVC No.7/2008 examined himself as PW1 and got marked seven documents, whereas the claimants in MVC Nos.562, 941 and 942 of 2006 were examined themselves as PWs.1, 3 and 4 respectively and the

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claimant in MVC No.562/2006 also examined one Dr.Shashidhar Reddy as PW2 and got marked 29 documents, and on behalf of the Insurance Company, RW1 is examined and two documents were marked as Exs.R1 and R2.

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After considering the evidence on record, the Tribunal in MVC No.7/2008 answered issues No.1 and 2 in the affirmative and awarded compensation of Rs.2,90,000/-, whereas the Tribunal in MVC No.562/2006, 941/2006 and 942/2006 has awarded Rs.81,000/-, Rs.22,000/- Rs.21,000/- respectively to the claimants along with interest at the rate of 6% p.a.. Assailing the judgments and awards passed by both the Tribunals, the insurer filed MFA Nos.24162/2011, 21070/2009, 21071/2009 and 21072/2009 on the point of liability fastened on the Insurance Company, whereas the claimant in MVC No.562/2006 filed MFA No.20448/2009 seeking for enhancement of compensation.

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Counsel for the insurer Sri. G. N. Raichur,

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strenuously argued mainly on the point of violation of the conditions of the policy. It is contended that the driver of the auto rickshaw did not have any valid driving licence at the time of accident. Even an endorsement badge is required for the purpose of running auto rickshaw as per Rule 12 of the Karnataka Motor Vehicles Rules, 1989 (hereinafter referred to as ‘the Rules) and in view of the violation of the Rules, the Insurance Company cannot be fastened with the liability. Therefore, he prayed for allowing these appeals by setting aside fastening of the liability on the Insurer. Learned counsel Sri. Hanumanthreddy Sahukar, appearing for the appellant in MFA No.20448/2009 (claimant in MVC No.562/2008) supported the judgment and award passed by the Tribunal fastening the liability on the Insurance Company by contending that, merely the driver of the vehicle is not holding the badge for an auto rickshaw, it cannot be said there is

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violation of the holding of driving licence in accordance with law as per Section 3 of the Act. Learned counsel also submitted that the driver of the auto rickshaw was having licence to drive heavy motor vehicle but he has driven the auto rickshaw. Merely because the badge is not there, that cannot be a ground to absolve the liability of the insurer. In support of the case, the learned counsel also relied upon the judgment of the Hon’ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd., reported in (2017) 14 SCC 663 and also the judgment of this Court in the case of Divisional Manager Vs. Prakash reported in LAWS(KAR)2011 2 64 and prayed for dismissing the appeals filed by the Insurer.

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He further contended in the appeal MFA No.20448/2009 that the appellant has sustained fracture of tibia and other injuries. The Tribunal has awarded only Rs.25,000/- towards pain and agony, which is very meager. Even though the claimant

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examined the doctor PW2, who has issued disability of 35% towards the whole body, but the Tribunal has not considered the evidence and awarded a lumpsum compensation of Rs.30,000/- towards the disability, which is not correct and even there is no compensation awarded under the head of loss of future amenities and also loss of marriage prospects. The amount awarded in respect of food nourishment and other expenses is also very meager and hence prayed for enhancement of compensation.

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7. Upon hearing the arguments of the learned

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counsel for the Insurer as well as the claimants, the points that arise for my consideration are:

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i. Whether the Tribunal is justified in fastening the liability on the insurer, even though the driver of the offending vehicle was not holding badge for driving the auto rickshaw?

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ii. Whether the claimant in MFA No.20448/2009 is entitled for enhancement of compensation?

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iii. What order?

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8. The claimants have established the factum

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of accident dated 17.04.2006, which occurred due to

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the rash and negligent driving of respondent No.1, the driver of the auto rickshaw bearing No.KA-17/8234, when the claimant and the deceased persons were traveled in the said auto rickshaw which turned turtle on Bellary-Talur road near Narihalla at about 5.30 pm.

¶127

They have been taken to the hospital and treated as inpatient and one Mahesh died in the accident and other three claimants have sustained injuries. The accident in dispute and sustaining injuries by the claimants and death of Mahesh were not seriously questioned by the Insurer. The Insurance Company filed these appeals only challenging the fastening of liability on the Insurer, on the ground that there was violation of conditions of the policy. It is contended by

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the Insurer that the driver of the auto rickshaw was not holding badge for driving the class of vehicles i.e., auto

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rickshaw. However, the Insurer not examined any witnesses in MVC No.7/2008, but examined one official in the other three connected maters and got marked Insurance Policy as well as driving licence extract of the driver. Admittedly, the driver of the auto rickshaw was holding the driving licence even for driving the Heavy Motor Vehicle. Normally, the RTO used to permit the person to obtain a licence to drive Heavy Motor Vehicle only after obtaining the Light Motor Vehicle licence for at least one year.

¶131

On perusal of Ex.R2–Driving Licence extract

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of the driver of the offending vehicle, it is seen that he was holding licence for Heavy Goods Vehicle and also endorsement for Transport Vehicle apart from Nontransport Vehicle. Such being the case, the question of contending that there was a violation of policy condition cannot be acceptable. The learned counsel for claimant also relied upon the judgment of the Division Bench of this Court in the case of Divisional Manager v.

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Prakash (stated supra), wherein the Division Bench of this Court, at para No. 11 of the judgment has held as under:

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“11. The second argument based on the issue or non-issue of a badge is nothing short of an argument of desperation and to be rejected outright, as the issue or nonissue, or wearing or not wearing of a badge will not in any detract from the authorization granted under a valid licence for driving a class of vehicle mentioned in the licence. While non-display of a badge by a driver which is more importantly for the purpose of identification of the driver and for knowing the particulars of the nature of vehicle that he can drive, is not an aspect which can invalidate a licence, just because either the badge is not obtained or badge is not displayed. The licence is issued in terms of the provisions of the Act and therefore Rules and formats which are procedural, can only be one to enable to drive and not to detract from the licence once it is issued and at any rate the argument to contend that the licence becomes invalidated because of the format

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in which it is issued is defective or because of some technical infraction of the procedural laws.”

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Here, in this case, though the driver of the

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vehicle was holding licence to drive a Heavy Motor Vehicle with transport endorsement along with nontransport endorsement, but there is no reference in respect of holding a badge. As held by the Division Bench of this Court in the above said appeal, it may be only a violation of Rules, which is formal procedure but

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the fact remains that the driver was having effective driving licence as on the date of the accident. Therefore, the contention of the learned counsel for the insurer that there is a violation of terms and condition of the policy cannot be acceptable. Even in the insurance policy, there is no such condition imposed by the insurance company in the column of limitation as to use, which requires a valid driving licence, as per Section 3 of the Act and the principles of the Hon’ble Supreme Court reported in Mukund Dewangan (supra)

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as there is no separate endorsement required for driving the ‘transport’ vehicle. Therefore, the contention raised by the insurer in these appeals is not sustainable under the law. Therefore, the Tribunal, after considering the evidence on record, has rightly fastened the liability on the insurer and it does not call for interference. Hence, I answer Point No.1 in favour of the claimants and as against the insurer and the appeals filed by the insurance company are liable to be dismissed.

¶143

As regards enhancement of compensation sought in M.F.A.No.20448/2009, the claimant has produced Ex.P5/wound certificate, which shows that there was a fracture of tibia and the injured was admitted in hospital as an in-patient for a period of 15 days and he also suffered two simple injuries. Considering the facts and circumstances of the case, the Tribunal has awarded Rs.25,000/- towards pain and agony. In my view, the said amount is sufficient and it is retained.

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As regards the loss of earning capacity due to disability, the claimant examined P.W.2/ Dr.Shashidhar Reddy, who opined that the claimant has suffered 35% disability towards whole body. There was only one fracture of tibia and even there was no fracture of fibula. There are no multiple fractures. Such being the case, the doctor assessing 35% disability to the whole body of the claimant, is excessive and exorbitant. Therefore, the Tribunal has rightly rejected the evidence of the doctor for giving 35% disability to the whole body. However, the Tribunal committed error in not considering the minimum disability to the whole body i.e. considered 35% to particular limb. Therefore, considering the fracture of tibia, I propose to consider 11% disability towards whole body instead of 35% as deposed by the doctor. The learned counsel for the claimant has also contended that though no documents were produced by the claimants, the Tribunal ought to have considered the notional income of Rs.3,750/- per

¶146

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month, which the Court use to consider for the accidents occurred during the year 2006. If Rs.3,750/is considered as monthly income and if 11% of disability is calculated, it comes to Rs.412.50/-(Rs.3750/- X 11% = Rs.412.50/-). On considering the age of the claimant, the appropriate multiplier would be ‘18’ and hence the claimant would be entitled to Rs.89,100/- (Rs.412.50 x 12 x 18 = Rs.89,100/-) towards loss of earning capacity.

¶148

The Tribunal has awarded Rs.20,000/towards medical expenditure, whereas Ex.P-9/medical document shows amount of Rs.23,000/- has been spent towards medical expenses and reducing Rs.3,000/- by the Tribunal is not correct. Therefore, I propose to award Rs.25,000/- towards medical expenses.

¶149

The Tribunal has also awarded only Rs.2,000/towards attendant charges and nourishment, which is very meager. Therefore, I propose to award Rs.5,000/- towards food, nourishment, attendant charges and incidental charges, if any.

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The Tribunal has also not awarded any

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amount towards loss of income during the laid up period. By considering the fracture injury, at least three months was required to attend the work by the claimant. Therefore, if three months is considered as laid up period, the claimant would be entitled to Rs.11,250/- (Rs.3,750 x 3 = Rs.11,250/-) towards loss of income during the laid up period.

¶153

As regards loss of amenities, marriage

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prospects, the Tribunal has not awarded any amount. The counsel for the claimant has contended that there is a loss of future amenities as well as marriage prospects, but no evidence was let in before the Tribunal to show that there is a loss of marriage prospects due to the fracture injuries sustained by the claimant. However, there must be some disability and claimant has to suffer throughout her life. Therefore, considering the facts and circumstances of the case, I propose to award Rs.15,000/- towards loss of future

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marriage prospects or loss of amenities. Totally, the

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claimant is entitled for the reassessed compensation as under:

¶158

Towards pain and sufferings Rs.	25,000/-
Towards loss of earning capacity Rs.	89,100/-
Towards medical expenses Rs.	25,000/-
Towards food, nourishment, attendant Rs.	5,000/-
charges, incidental charges etc.
Towards loss of income during the laid up period Rs.	11,250/-
Towards loss of amenities/future marriage prospects Rs.	15,000/-
Total Rs.	1,70,350/-

¶159

Consequently, the appeals filed by the insurer in M.F.A.Nos.25162/2011, 21070/2009, 21072/2009 and 21071/2009 are dismissed. The appeal filed by the claimant in M.F.A.No.20448/ 2009 is allowed in part.

¶160

The claimant is entitled to the reassessed compensation of Rs.1,70,350/- as against Rs.81,000/-

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awarded by the Tribunal, together with interest @ 6% per annum from the date of petition till realization of the entire amount.

¶163

The insurer is directed to deposit the entire amount of compensation with up-to-date interest, within a period of four weeks from the date of receipt of certified copy of this order.

¶164

The amount in deposit, if any, shall be transmitted to the Tribunal forthwith along with Lower Court Records.

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Sd/JUDGE

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gab – para 1 to 8 yan – para 9 to till end

The Oriental Insurance Co. Ltd. v. Mydlyappa S/O Sann Kumarappa

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. v. Mydlyappa S/O Sann Kumarappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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