Partly allowed

The National Insurance Co.Ltd v. Smt Krishnabai W/O Laxaman Shinde

Karnataka HC17 Jan 2020MFA/22097/2010

Case brief

AI extract

What is this about?

This judgment appeals against Motor Accidents Claims Tribunal awards. The High Court held the insurer liable despite hire/reward usage under a comprehensive policy and enhanced compensation quantum for three claimants to Rs. 1.7 lakh and Rs. 1.54 lakh.

What did the court decide?

Compensation enhanced to Rs. 1,70,000 for MVC No.949/2009 claimant and Rs. 1,54,200 for MVC No.954/2009 claimant. Insurer directed to pay and recover from insured.

The National Insurance Co.Ltd Vs Smt Krishnabai W/O… — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF JANUARY, 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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MFA NO.24765/2010(MV) C/W MFA NO.22097/2010, MFA NO.22098/2010, MFA NO.24764/2010 AND MFA NO.22093/2010

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IN MFA NO.24765/2010

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BETWEEN

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SMT. KRISHNABAI W/O LAXMAN SHINDE, AGE: 41 YEARS, OCC: AGRICULTURE, R/O BAWAN-SAVADATTI, TQ. RAIBAG, DIST. BELGAUM.

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... APPELLANT

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(BY SRI.HARISH S MAIGUR, ADVOCATE)

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AND

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MAHESH MARUTI SHINDE, AGE: MAJOR, OCC: OWNER, R/O BAVAN-SAVADATTI, TQ. RAIBAG, DIST. BELGAUM.

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THE NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, ASHOK NAGAR, NIPANI. REP. BY ITS D.O., RAMDEV GALLI, BELGAUM.

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... RESPONDENTS

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(BY SRI.S.K.KAYAKMATH, ADV. FOR R-2) (R1-SERVED & UNREPRESENT)

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MFA Nos.24765/10, C/W 22097/10, -222098/10, 24764/10 & 22093/10

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THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT. AGAINST THE JUDGMENT AND AWARD DATED 19.02.2010 PASSED IN MVC NO.953/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACT COURT-III AND ADDL. MACT, BELGAUM AT BELAGAUM PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO.22097/2010

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BETWEEN

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THE NATIONAL INSURANCE CO.LTD BRANCH OFFICE, ASHOK NAGAR, NIPPANI, REP BY ITS DIVISIONAL OFFICE, RAMDEV GALLI, BELGAUM, THROUGH THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED, SUJATHA COMPLEX, P.B.ROAD,HUBLI.

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... APPELLANT

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(BY SRI.S K KAYAKAMATH, ADVOCATE)

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AND

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SMT KRISHNABAI W/O LAXAMAN SHINDE, AGE 40 YEARS, OCC:AGRICULTURE, R/O BAWAN SAVADATTI,

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TQ:RAIBAG, DIST:BELGAUM.

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SRI.MAHESH MARUTI SHINDE, AGE:MAJOR, OCC:OWNER, R/O BAVANSAVADATTI, TQ:RAIBAG, DIST:BELGAUM.

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... RESPONDENTS

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(BY SRI.HARISH S MAIGUR, ADV. FOR R1) (R2 SERVED & UNREPRESENTED)

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MFA Nos.24765/10, C/W 22097/10, -322098/10, 24764/10 & 22093/10

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THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 19.02.2010 PASSED IN MVC NO.953/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACT COURT-III AND ADDL. MACT, BELGAUM AWARDING THE COMPENSATION OF RS.74,240/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL REALISATION.

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IN MFA NO.22098/2010

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BETWEEN:

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THE NATIONAL INSURANCE CO.LTD, BRANCH OFFICE, ASHOK NAGAR, NIPPANI, REP. BY ITS DIVISIONAL OFFICE, RAMDEV GALLI, BELGAUM, THROUGH THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., SUJATHA COMPLEX, P.B.ROAD, HUBLI.

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... APPELLANT

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(BY SRI.S K KAYAKAMATH, ADV.)

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AND:

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SMT SHANTABAI RAMACHANDRA SHINDE, AGE: 42 YEARS, OCC:AGRICULTURE, R/O BAWAN SAVADATTI, TALUK: RAIBAG, DIST:BELGAUM.

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SRI.MAHESH MARUTHI SHINDE, AGE:MAJOR, OCC:OWNER, R/O BAVAN SAVADATTI, TALUK: RAIBAG, DIST:BELGAUM.

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... RESPONDENTS

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(BY SRI.HARISH S MAIGUR, ADV. FOR R1) (R2-SERVED & UNREPRESENTED)

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MFA Nos.24765/10, C/W 22097/10, -422098/10, 24764/10 & 22093/10

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THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 19.02.2010 PASSED IN MVC NO.954/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACT COURT-III AND ADDL. MACT, BELGAUM AWARDING THE COMPENSATION OF RS.42,750/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL REALISATION.

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IN MFA NO.24764/2010

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BETWEEN:

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KUMARI. RANI D/O MALAGOUDA PATIL, AGE: 10 YEARS, OCC: STUDENT, MINOR GUARDIAN MOTHER SMT. SONABAI W/O MALAGOUDA PATIL, AGE: 27 YEARS, OCC: AGRICULTURE, R/O KERUR, TQ. CHIKODI, DIST. BELGAUM.

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... APPELLANT

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(BY SRI.HARISH S MAIGUR, ADVOCATE)

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AND

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MAHESH MARUTI SHINDE, AGE: MAJOR, OCC: OWNER R/O BAVAN-SAVADATTI, TQ. RAIBAG, DIST. BELGAUM.

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THE NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, ASHOK NAGAR, NIPANI, REP. BY ITS D.O., RAMDEV GALLI, BELGAUM.

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... RESPONDENTS

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(BY SRI.S.K.KAYAKMATH, ADV. FOR R2; (R1 SERVED & UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT. AGAINST THE JUDGMENT AND AWARD DATED 19.02.2010 PASSED IN MVC NO.949/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACT COURT-III AND ADDL. MACT, BELGAUM AT BELAGAUM PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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MFA Nos.24765/10, C/W 22097/10, -522098/10, 24764/10 & 22093/10

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IN MFA NO.22093/2010

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BETWEEN:

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THE NATIONAL INSURANCE CO.LTD BRANCH OFFICE, ASHOK NAGAR, NIPPANI REP.BY ITS DIVISIONAL OFFICE, RAMDEVGALLI, BELGAUM, THROUGH THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD SUJATHA COMPLEX,P.B.ROAD,HUBLI

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... APPELLANT

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(BY SRI.S K KAYAKAMATH, ADV.)

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AND

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KUMARI RANI D/O MALAGOUDA PATIL AGE:9 YEARS, OCC:STUDENT,MINOR GUARDIAN MOATHER SMT.SONABAI MALAGOUDA PATIL AGE:26,OCC:AGRICULTURE, R/O:KERUR TQ:CHIKODI, DIST:BELGAUM

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SRI.MAHESH MARUTI SHINDE AGE:MAJOR,OCC:OWNER,R/O:BAVANSAVADATTI TQ:RAIBAG, DIST:BELGAUM

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... RESPONDENTS

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(BY SRI.RAJANANDA LATKAN, ADV. FOR RESPONDENT NO.1) (SRI.MUTTURAJ D. PATIL, ADV. FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 19.02.2010 PASSED IN MVC NO.949/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACT COURT-III AND MEMBER, ADDL. MACT, BELGAUM AWARDING THE COMPENSATION OF RS.1,12,000/- WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF PETITION TILL REALISATION.

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

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MFA Nos.24765/10, C/W 22097/10, -622098/10, 24764/10 & 22093/10

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JUDGMENT

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These appeals arise out of the common

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Judgment and awards dated 19.02.2010 passed in MVC No.949/2009, MVC No.953/2009 and MVC No.954/2009 by Fast Track Court-III and Member, Addl. MACT, Belgaum.

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MFA No.22097/2010 is the appeal of insurer and MFA No.24765/2010 is the appeal of claimant against the award in MVC No.953/2009. MFA No.22093/2010 is the appeal of insurer and MFA No.24764/2010 is the claimants appeal against the award in MVC No.949/2009. MFA No.22098/2010 is the insurer’s appeal against the award in MVC No.954/2009.

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On 03.05.2009 at about 7.45 a.m. when the claimants were traveling in Tempo Trax Cruser bearing Registration No. KA 23/P-5292 within Boragaon limits, the said vehicle met with an

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MFA Nos.24765/10, C/W 22097/10, -722098/10, 24764/10 & 22093/10

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accident. In the said accident, the claimants suffered injuries. The vehicle in question was insured with National Insurance Company Limited who was the second respondent before the Tribunal. Respondent No.1 before Tribunal was the registered owner of the vehicle at relevant time.

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The claimants filed MVC No.949/2009, 953/2009 and 954/2009 contending that in accident they suffered grievous injuries and permanent disability. They further contended that accident occurred due to rash and negligent driving of the driver. The claimants claimed the compensation as under:

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1. MVC No.949/2009 - Rs.3,00,000/2) MVC No.953/2009 - Rs.3,50,000/3) MVC No.954/2009 - Rs.2,50,000/-

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The claimants contended that the insured and

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insurer both were liable to pay the compensation.

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MFA Nos.24765/10, C/W 22097/10, -822098/10, 24764/10 & 22093/10

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Along with the aforesaid claim petitions, some other inmates of the vehicle also filed claim petitions. All the claim petitions were numbered as MVC No.954/2009 to MVC No.956/2009. The insured contested the petition and further contended that the vehicle was insured with the second respondent and if any compensation is to be paid, the second respondent was liable to indemnify the same.

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The insurer contested the petition denying the accident, involvement of the vehicle and the injury allegedly suffered by the claimants. The Insured further contended that the vehicle was carrying the claimants for hire/reward, thereby there was breach of policy condition, therefore, it is not liable to pay compensation. It was also contented that the driver of the vehicle was not holding valid driving license.

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MFA Nos.24765/10, C/W 22097/10, -922098/10, 24764/10 & 22093/10

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The Tribunal consolidated all the aforesaid

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claim petitions and framed the following issues in all these cases:

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1. Whether the petitioner proves that she/he sustained injuries in road traffic accident that occurred on 03.05.2009 at about 7.45 Hrs in Borgaon Village on Borgaon-Kasanal road within the limits of Sadalaga Police Station due to rash and negligent driving of the Tempo Trax (Cruser)No.KA-23/P-5292 by its driver?

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1. Whether the petitioner is entitled for compensation? If so, what is the quantum and from whom?

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1. What order or award?

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The Tribunal recorded the common

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evidence. By the impugned awards the Tribunal rejected the contention of the insurer regarding

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breach of Policy condition and held that accident occurred due to rash and negligent driving of the vehicle and claimants suffered injuries in the

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MFA Nos.24765/10, C/W 22097/10, -1022098/10, 24764/10 & 22093/10

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accident. The Tribunal awarded the compensation as follows:

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MVC No.949/2009 - Rs.1,12,000/2) MVC No.953/2009 - Rs. 74,240/3) MVC No.954/2009 - Rs. 42,750/-

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Aggrieved by the awards, the insurer is before this Court questioning it’s liability. The claimants are before this Court questioning the adequacy of compensation.

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Sri.S.K.Kayakmath learned counsel for the insurer seeks to assail the impugned awards on the following grounds:

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The risk covered under Policy-Ex.R-1 limited to the use of the vehicle for any purpose other than hire or rewards.

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The evidence sufficiently showed that claimants were traveling in the vehicle for reward, therefore the insurer was not liable to indemnify due to the breach of policy condition.

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MFA Nos.24765/10, C/W 22097/10, -1122098/10, 24764/10 & 22093/10

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Compensation awarded is on sound appreciation of the evidence and needs no interference.

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In support of his contention, the learned

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counsel for the insurer relies upon the following Judgments:

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1) New India Assurance Company V/s C.M.Jaya and others¹

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2) Yashpal Luthra and another V/s United India Insurance Company Ltd.,²

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3) Jagtar Singh V/s. Sanjeev Kumar and Ors³ .

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Per contra Sri. Harish S Maigur, learned counsel for the claimants submits that the policy covered the risk of 13 passengers and that was comprehensive policy and premium was collected for 13 passengers. Therefore, he submits that insurer was liable to indemnify the damages. He contends that having regard to the nature of injuries and

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1 (2002) 2SCC 278

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2 2011 ACJ 1415

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3 (2018) 15 SCC 189

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MFA Nos.24765/10, C/W 22097/10, -1222098/10, 24764/10 & 22093/10

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evidence on record, compensation awarded to the claimants in MVC.Nos.949/09 and 953/09 was on the lower side. In support of his contention he relies on the following judgments:

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1) United India Insurance Co. Ltd., Rep. by its DM Vs. Kalawathi and Others.⁴

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2) Jagtar Singh V/s. Sanjeev Kumar and Ors.⁵

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3) Mallikarjun V/s. Divisional Manager, National Insurance Co. Ltd. and another.⁶

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Respondent No.1 – owner of the vehicle

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and the Insurer have not challenged the findings on occurrence of the accident or the involvement of the claimants in the accident. Therefore, it can be safely concluded that the claimants in these cases met with an accident on 03.05.2009 at 7.45 pm near Boragaon Village of Borgaon-Kasnal road and suffered injuries.

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4 ILR 2011 KAR 1191

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5 (2018) 15 SCC 189

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6 2013 ACJ 2445

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MFA Nos.24765/10, C/W 22097/10, -1322098/10, 24764/10 & 22093/10

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Reg. liability of the Insurer:

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The Insurer contends that the offending vehicle was the non-transport vehicle (private), but the claimants and the other injured were traveling in the said vehicle as paid passengers, thereby there was violation of condition of policy and therefore, the Insurer was not liable to pay the compensation.

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In the complaint-Ex.P2, the complainant stated that his family along with the victims in this case were proceeding in the vehicle to go to the temple. The claimants in their cross-examination admitted that they were traveling in the offending vehicle as passengers for reward/hire. However, the policy-Ex.R1 shows that it was a private car package policy. Even RW1 in his cross-examination admitted that the policy was a comprehensive policy and covered the risk of 13 passengers. He admitted that premium was collected for 13 passengers.

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MFA Nos.24765/10, C/W 22097/10, -1422098/10, 24764/10 & 22093/10

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The Division Bench of this Court in

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Kalawathi’s case(referred supra), in para 4 of the judgment in the similar circumstances held as follows:

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“4. That apart we do not find any rationale for the insurer as a ‘State’ to discriminate between the paid inmate and the gratuitous inmate when the vehicle is covered with comprehensive policy . If the vehicle is a private vehicle played on hire, the owner may be liable for the penal and fiscal consequences under the Motor Vehicles Act for payment of penalty and taxes applicable to the commercial vehicles. But from the stand-point of the insurer, it makes no difference whether the inmate is a paid passenger or gratuitous passenger. When the policy issued is a comprehensive policy covering risk of the inmates for a private vehicle, the insurer cannot avoid liability on the ground that the inmate is a paid passenger. In that view, we hold that the terms in the policy, which discriminates the liability of the insurer for the paid inmate and gratuitous inmate is discriminatory and illegal.” ( Emphasis supplied)

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MFA Nos.24765/10, C/W 22097/10, -1522098/10, 24764/10 & 22093/10

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Thus it was held that, if the policy is

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comprehensive policy covering the risk of inmates of a private vehicle, from the stand point of the Insurer, it makes no difference whether the inmate was a paid passenger or gratuitous passenger and Insurer is liable to indemnify the damage.

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The Hon’ble Supreme Court in Jagtar

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Singh’s case (referred supra), referring to its judgment in Balakrishnan’s case, held that the comprehensive/package policy covers the risk of the occupants of the car and in such an event, there is no need for the Motor Accidents’ Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of the occupants of the private car. In the light of the aforesaid judgments, it is not open to the Insurer to contend that the policy does not cover the risk of the passengers.

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MFA Nos.24765/10, C/W 22097/10, -1622098/10, 24764/10 & 22093/10

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The next contention of the Insurer is that, as per the policy condition, the Insured was barred from using the vehicle for hire and reward and therefore, there was breach of policy condition.

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Of course, the policy Ex.R1 says that the policy covers use of vehicle for any purpose other than hire or reward. Thus, there was breach of policy condition.

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In Pappu and Ors. Vs. Vinod Kumar Lamba and Ors.⁷ the Hon’ble Supreme Court in the similar circumstances has held that, if there is breach of policy condition, it is open to the Insurer to indemnify the damage to the claimants and recover the same from the Insured. Such course is open to the Insurer in this case also.

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Reg. quantum of compensation in MVC No.949/2009(MFA Nos.24764/2010 and 22093/2010)

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The claimant in this case was 9 years old

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7 AIR 2018 SC 592

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MFA Nos.24765/10, C/W 22097/10, -1722098/10, 24764/10 & 22093/10

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girl. The claimant contended that she has suffered permanent physical disability due to the accident. To prove the injuries suffered by her and the disability, the claimant relied on the evidence of PW1 her mother and PW7 doctor who gave the disability certificate.

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Ex.P6 was the wound certificate. Ex.P51 was the disability certificate, Exs. P52 and P53 were the X-ray report and X-ray film. As per the medical records, the victim suffered soft tissue irregularity in the left temporal region.

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The Trial Court noted its observations in the Judgment. According to the observations of the Trial Court, the victim girl has undergone a plastic surgery on her left cheek, there was scar to the extent of 3 inches and disfiguration on the head portion. According to PW.7 the disability related to neurological disorder and he assessed it at 25%. He admitted that he was not the doctor who treated the

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MFA Nos.24765/10, C/W 22097/10, -1822098/10, 24764/10 & 22093/10

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victim and he was not specialized in neurology. Therefore, the Tribunal without accepting his evidence on disability granted the compensation on other heads.

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However, having regard to the

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observations of the Tribunal and the other medical evidence, it can be said that the victim has suffered at least 10% physical disability. In such event as per the Judgment of the Hon’ble Supreme Court in Mallikarjun’s case referred supra, it would be appropriate to award compensation of Rs.1,00,000/towards pain and suffering underwent and to be suffered in future, hard ship, inconvenience, discomfort etc. and loss of amenities in life on account of such disability.

¶147

Having regard to the nature of injuries and the treatment undergone, the Tribunal should have awarded compensation of Rs.25,000/- towards medical expenses instead of Rs.22,000/-. For diet-

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MFA Nos.24765/10, C/W 22097/10, -1922098/10, 24764/10 & 22093/10

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attendants charges etc., the Tribunal has awarded Rs.5000/-. As per the evidence on record, the claimant was treated as indoor patient for nine days, Rs.10,000/- would have been proper compensation on that head. Compensation payable for loss of earning of the parents during the laid up period of the claimant is Rs.10,000/- and for loss of marriage prospects is Rs.25,000/-.

¶150

Therefore, just and reasonable compensation

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would be as follows:

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Sl. No.	Heads	Amount (Rs.)
1.	Pain and suffering	1,00,000-00
2.	Medical Expenses	25,000-00
3.	Diet, Attendants charges	10,000-00
	and Conveyance charges
4.	Loss of earning of	10,000-00
	parents during laid up
	period of the claimant
5.	Loss of marriage prospectus	25,000-00
	Total	1,70,000-00

¶153

MFA Nos.24765/10, C/W 22097/10, -2022098/10, 24764/10 & 22093/10

¶154

Reg. quantum of Compensation in MVCNo.953/2009related to MFA No.24765/2010 and MFA No.22097/2010 :

¶155

According to the claimant Smt.Krishnabai, she had suffered the fracture of digital radius left side and contusion on forehead. She relied on the evidence of PW-7 the doctor, wound certificate Ex.P37, discharge summary-Ex.P-38 and disability certificate-Ex.P58.

¶156

As per PW7 and medical records relied, the victim suffered grievous injury and as per Ex.P-38 discharge summery she was treated as inpatient from 03.05.2009 to 15.05.2009 in Patil’s hospital, Chikodi. She had suffered distal radial fracture left side and contusion on forehead. She was operated for closed reduction, K-wiring under GA on 03.05.2009 and A/E cast was applied.

¶157

Though the doctor stated in his chief examination that claimant had suffered 25% disability to the whole body, in his cross

¶158

MFA Nos.24765/10, C/W 22097/10, -2122098/10, 24764/10 & 22093/10

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examination he admitted that the said 25% refers to the particular limb. The Tribunal computed the disability at 6% that should have been at least 1/3 of the disability spoken by the doctor to the particular limb which comes to 8%.

¶160

There was no proof of actual income of the victim. The Tribunal assessed the same at Rs.3,000/- per month. The accident occurred in the year 2009, the just and fair notional income would have been Rs.5,000/- per month.

¶161

The victim was aged 45 years. Therefore, 14 multiplier applies. Therefore, loss of future earning comes to (5000X12x14X8/100) Rs.67,200/-. Compensation awarded on the head of pain and suffering, nourishment, diet and attendants charges, loss of earning during laid up period and for the loss of amenities is on the lower side. Therefore the just

¶162

MFA Nos.24765/10, C/W 22097/10, -2222098/10, 24764/10 & 22093/10

¶163

and reasonable compensation payable is as follows:

¶164

Sl. No.	Heads	Amount (Rs.)
1.	Loss of future earning due to disability	67,200-00
2.	Pain and suffering	25,000-00
3.	Medical expenses	12,000-00
4.	Diet, attendants charges and conveyance for 13 days	10,000-00
5.	Loss of earning during the laid up period	15,000-00
6	Loss of amenities	25,000-00
	Total	1,54,200-00