Partly allowed

M/S.the National Insurance Company Ltd. v. Smt. Lakshmamma

Karnataka HC2 Dec 2020MFA.CROB/55/2016

Case brief

AI extract

What is this about?

The High Court enhanced award compensation from Rs.76,000 to Rs.2,06,860 by recalculating based on the uniform notional income of Rs.7,000/month. The court upheld the insurer's liability but allowed them to recover the amount from the owner due to the driver's failure to hold a licence for hazardous goods.

What did the court decide?

Compensation enhanced to Rs.2,06,860 with 6% interest; insurer directed to pay claimant and deposit with Tribunal for transmission.

M/S.the National Insurance Company Ltd. Vs Smt… — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY

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MISCELLANEOUS FIRST APPEAL NO.6659 OF 2013 (MV) C/W

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MISCELLANEOUS FIRST APPEAL CROB NO.55 OF 2016 (MV-I)

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IN MFA NO.6659/2013:

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BETWEEN:

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SMT. LAXMAMMA W/O RAMEGOWDA, AGED ABOUT 50 YEARS, R/O HARALAHALLI VILLAGE, DASARAKOPPALU POST, KASABA HOBLI, HASSAN TALUK & DISTRICT-573201.

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... APPELLANT

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(BY SRI. GIRISH B. BALADARE, ADVOCATE (THROUGH VC)

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AND:

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THE MANAGER THE NATIONAL INSURANCE CO. LTD., MANJUNATHA COMPLEX, HASSAN-573201.

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VISHWANATH S/O NINGEGOWDA, R/O HALASINAHALLI, YOGIHALLI POST,

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DUDDA HOBLI, HASSAN TALUK & DISTRICT.

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… RESPONDENTS

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(BY SMT. GEETHA RAJ, ADVOCATE FOR RESPONDENT NO.1;

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SERVICE OF NOTICE TO RESPONDENT NO.2 IS DISPENSED WITH VIDE COURT ORDER DATED 14.08.2015)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 15.03.2013 PASSED IN MVC NO.1699/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA CROB NO.55/2016:

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BETWEEN:

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M/S THE NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, MANJUNATHA COMPLEX, HASSAN. REPRESENTED BY REGIONAL OFFICE, M.G.ROAD, BENGALURU-560001. ... CROSS OBJECTOR (BY SMT. GEETHARAJ, ADVOCATE)

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... CROSS OBJECTOR

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AND:

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SMT. LAKSHMAMMA W/O RAMEGOWDA, AGED ABOUT 53 YEARS, R/O HARALAHALLI VILLAGE,

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DASARAKOPALU POST, KASABA HOBLI, HASSAN TALUK-573401.

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MR. VISHWANATH S/O NINGEGOWDA, RESIDENT OF HALASINAHALLI, YOGIHALLI POST, DUDDA HOBLI, HASSAN TALUK-573401.

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THE DIVISIONAL CONTROLLER, CHIKKAMANGALORE DIVISION, REPRESENTED BY DIVISIONAL CONTROLLER, HASSAN-573401.

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… RESPONDENTS

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[BY SRI. GIRISH B. BALADARE, ADVOCATE FOR RESPONDENT NO.1 (THROUGH VC);

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NOTICE TO RESPONDENT NO.2 SERVED BUT UNREPRESENTED;

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SRI. K.NAGARAJ, ADVOCATE FOR RESPONDENT NO.3]

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THIS MFA CROB. IN MFA NO.6659/13 PASSED UNDER ORDER 41 RULE 22 OF THE CPC, AGAINST THE JUDGMENT AND AWARD DATED 15.03.2013 PASSED IN MVC NO.1699/2012 ON THE FILE OF THE FAST TRACK COURT-I AND ADDITIONAL MACT, HASSAN AWARDING COMPENSATION OF RS.76,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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THIS MFA C/W MFA CROB. IS COMING ON FOR ADMISSION THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

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J U D G M E N T

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MFA No.6659/2013 is filed by the claimant seeking enhancement of compensation awarded by the Fast Track Court-I and Additional MACT., Hassan (henceforth referred to as the ‘Tribunal’) in MVC 1699/2012, while MFA Crob.55/2016 is filed by the insurer challenging the liability imposed upon it by the Tribunal to pay the compensation awarded.

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Though, this appeal and the cross objection are listed for admission, as the records of the Tribunal are received, they are taken up for final disposal with the consent of the counsel for the parties.

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The parties shall henceforth be referred to as they were referred before the Tribunal.

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In MFA No.6659/2013:

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The claim petition discloses that on 02.07.2012, the claimant was traveling in a K.S.R.T.C.,

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bus. At about 11.45 p.m. when the bus reached Malali Cross on Bengaluru-Mysuru road, the driver of a tanker lorry bearing registration No.KA-13-9698 (hereinafter referred to as the ‘offending vehicle’) drove it in a rash and negligent manner and dashed against the K.S.R.T.C., bus. As a result, the claimant sustained injuries to her back bone and she was shifted to Hassan Government Hospital, where she was treated as an inpatient. The claimant contended that she was labourer and was also doing milk vending business and was earning a sum of Rs.15,000/- per month. As a result of the accidental injuries, she was deprived of her ability to earn. Hence, the claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of a sum of Rs.2,00,000/from the owner and the insurer of the offending vehicle.

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The owner was placed exparte before the Tribunal, while the insurer contested the claim petition

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and disputed the contentions urged in the claim petition. It also contended that the accident occurred not due to the rash and negligent driving by the driver of the offending vehicle and therefore, it was not liable to pay the compensation.

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Before the Tribunal, the claimant was examined as PW1 and a doctor who treated the claimant at Government Hospital, Hassan was examined as PW2 and they marked Exs.P1 to P10. The insurer did not lead any evidence and did not mark any document.

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The Tribunal noticed from Exs.P1 to P4 and P8 that it was the driver of the offending vehicle who was responsible for the accident. In so far as the claim for compensation is concerned, the Tribunal noticed the evidence of PW2, who deposed that the claimant had suffered the following injuries.

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1. Tenderness over Tharacolumar spine.

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2. Restriction of movements of TL spine.

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3. The recent X-ray of right TL spine shows collapse of L1 Vertebra more than 25% with disruption of posterior elements and osteoporosis.

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PW2 deposed that the claimant had suffered total functional disability of 30%. The Tribunal noticed that there was no proof of income of the claimant and thus, the notional income of the claimant was treated as Rs.4,000/- per month and the disability of the claimant was assessed at 8% and the Tribunal awarded compensation towards ‘loss of future income’ at a sum of Rs.49,920/- which was rounded off to Rs.50,000/- and awarded a sum of Rs.76,000/- as total compensation without specifying the heads under which the compensation was awarded.

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In so far as the liability to pay the compensation is concerned, the Tribunal noticed the contention of the insurer that the driver of the offending vehicle did not possess a driving licence. However, it noticed that the claimant had placed on record the

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driving licence of the driver of the offending vehicle which indicated that the driver was authorized to drive transport vehicle with effect from 14.09.2010 and PSV bus with effect from 14.09.2010. Therefore, the Tribunal debunked the contention of the insurer that the driver of the tanker lorry did not possess a licence to drive the offending vehicle and therefore, it fastened the liability to pay the compensation on the insurer.

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Feeling aggrieved by the quantum of

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compensation awarded by the Tribunal, the claimant is in appeal and contends that the accident occurred during the year 2012 and this Court had considered the notional income of the persons who die or are injured in road accidents during the year 2012 at a sum of Rs.7,000/- per month. She therefore, requests this Court to consider the disability of the claimant at 15% since the spinal injuries had completely left her distraught. She also pleaded before the Court that the

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Tribunal ought to have awarded compensation under the ‘conventional heads’, which it had failed and thus, seeks the indulgence of this Court to grant additional compensation under the ‘conventional heads’ .

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Per contra , the insurer contended that the Judgment and Award passed by the Tribunal is just, proper and reasonable and do not call for interference.

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The learned counsel contended that since, the vehicle in question was hazardous, it was incumbent upon the driver of the offending vehicle to have a licence which authorized him to drive the vehicle.

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I have given my anxious consideration to the submissions of the learned counsel and the materials placed on record.

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It is not in dispute that this Court has accepted the notional income of the persons who die or are injured in road accident during the year 2012 at a

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sum of Rs.7,000/and therefore, to maintain

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uniformity, the notional income of the claimant in the present case is considered at a sum of Rs.7,000/- per month. If the disability of the claimant as held by the Tribunal is considered at 8%, then the compensation to which the claimant would be entitled has to be recalculated which is as follows:

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Heads under which compensation awarded	Amount in Rupees
Pain and suffering	30,000
Medical expenses	10,000
Loss of income due to disability	87,360
(Rs.7,000 x 12 x 13 x 8%)
Loss of income during the laid up period(Rs.7,000x3 months)	21,000
Attendant charges	13,500
(Rs.150/-per dayx 3 months)
Conveyance,nourished food charges	5,000
Loss of amenities	40,000
Total	2,06,860

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In view of the above, the appeal is

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allowed in part and the impugned Judgment and Award of the Tribunal is modified and enhanced to a

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sum of Rs.2,06,860/- as against a sum of Rs.76,000/awarded by the Tribunal.

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In MFA Crob.55/2016:

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As contended by the learned counsel for the insurer, the driver of the offending vehicle possessed a licence to drive a transport vehicle with effect from 14.09.2010 and not a licence to drive a goods carriage carrying dangerous or hazardous goods as prescribed under Rule 132 and Rule 9 of the Central Motor Vehicle Rules 1989 (for short, ‘the Rules of 1989’). Learned counsel also brought to my notice Section 14 of the Motor Vehicles Act, 1988, which indicates that licence to drive a transport vehicle carrying goods of dangerous or hazardous nature shall be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus. Learned counsel would indicate that the prescribed syllabus is one

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mentioned in Rule 9 of the Rules of 1989. She contended that the driver of the offending vehicle did not possess any endorsement authorizing him to drive a goods vehicle carrying hazardous substances as the offending vehicle was a tanker transporting diesel.

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Per contra, the learned counsel for the claimant submitted that since the driver of the offending vehicle possessed a licence to drive a transport vehicle and as the accident did not occur due to the reasons attributable to the hazardous substances transported in the vehicle, the insured should be held liable to pay the compensation.

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It is relevant to note that the offending vehicle was moving from Mangaluru to Bengaluru carrying diesel which is entered as a hazardous substance at Sl.No.989 in Table III containing the list of Hazardous Goods specified under Rule 137 of the Central Motor Vehicle Rules, 1989.

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The purpose of requiring the driver to undergo special training is not only to

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empower/educate him to deal with the after effects of spillage of the hazardous substance in the event of any accident, but also to ensure that the driver has special skills of manoeuvering the vehicle when it is fully loaded. It is relevant to note that transportation of liquids would involve a special skill since the weight of the liquid would keep shifting depending on the gradient / speed at which the vehicle is moving thus altering the center of gravity. The rigour of driving a vehicle which transports solid substance is far less as the weight does not shift depending upon the gradient.

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Thus, the driver of vehicle transporting hazardous goods is expected to have special skills in driving a transport vehicle when it is moving on a steep gradient or a steep descent or in the eventuality of suddenly bringing the vehicle to a halt or applying brake. It is in this context

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that the Rules of 1989 prescribe that the driver driving a transport vehicle carrying hazardous goods must possess a licence as prescribed under the Rules of 1989. In the present case, there is no mention of the driver of the offending vehicle possessing a licence to drive a transport vehicle carrying hazardous goods and therefore, the insurer is entitled to pay and recover the compensation awarded by the Tribunal as there is a clear violation of the conditions of the policy, which require that the owner of the offending vehicle shall not permit an unauthorized person to drive the offending vehicle.

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In that view of the matter, the appeal filed by the insurer deserves to be allowed in part and the insurer is entitled to pay and recover the compensation awarded by this Court from the owner of the offending vehicle. Hence, the following:

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ORDER

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The appeal filed by claimants in MFA No.6659/2013 is allowed in part . M.F.A. CROB. No.55/2016 filed by the insurer is also allowed in part . The impugned Judgment and Award passed by the Tribunal is modified and the compensation of Rs.76,000/- awarded by the Tribunal is enhanced to Rs.2,06,860/-, which is payable by the insurer to the claimant along with interest at 6% per annum from the date of the claim petition till the date of realization.

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The insurer is entitled to recover the

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compensation from the owner of the offending vehicle.

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The insurer is directed to deposit the compensation with interest as stated above within one month from the date of receipt of a certified copy of this Judgment.

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24. The amount in deposit is ordered to be

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transmitted to the Tribunal for necessary orders.

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Sd/- JUDGE

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GH/sma

M/S.the National Insurance Company Ltd. v. Smt. Lakshmamma

Case brief

What is this about?

What did the court decide?

M/S.the National Insurance Company Ltd. v. Smt. Lakshmamma

Case brief

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What did the court decide?

What the court decided

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