Partly allowed

Sri Kaliappan v. Smt Parvathi B

Karnataka HC16 Jul 2021MFA/8453/2012

Case brief

AI extract

What is this about?

The Court dismissed the insurer's appeal challenging liability because the policy covered employees of others via additional premium. It allowed appeals for enhancement of compensation, awarding enhanced amounts to a survivor injured in a truck accident and to legal representatives of a deceased employee.

What did the court decide?

Enhanced compensation awarded to injured claimant (Rs. 43,936) and legal representatives of deceased (Rs. 8,66,000); Insurance company's appeal dismissed; other appeals partly allowed.

Sri Kaliappan Vs Smt Parvathi B — Pension and Retirement Benefits | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JULY, 2021

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PRESENT

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THE HON’BLE MRS. JUSTICE S. SUJATHA

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AND

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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MISCELLANEOUS FIRST APPEAL NO.10157 OF 2012 (MV) c/w

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MISCELLANEOUS FIRST APPEAL Nos.2901 OF 2012 & 8453/2012

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In MFA 10157 OF 2012:

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BETWEEN

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Sri Perumal Aged 58 years S/o Thirupathy R/at No.48, 2^nd Cross Kodage Halli Main Road Maruthi Nagar Bengaluru-560 092.

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...Appellant

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(By Shri S S Mahendra, Advocate)

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AND

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Smt. Parvathi B Major in age W/o B Janardhana Naidu R/at 1-27, Bonu Palli Kanchana Palli Thottambedu Chittor-517 643.

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The Regional Manager New India Assurance Co. Ltd., Regional Office No.2-B Unity Building Annex Mission Road B-560 027.

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Sarvanan Since deceased by his LRs.

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3a. Smt. Thavamani Aged 50 years W/o Sri Natarajan

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3b. Sri Natarajan Aged 53 years S/o Sri Kallimathu Nadar Both are R/at No.22 I Cross, GKW Layout Vijayanagar II Stage Bengaluru-560 040.

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The Regional Manager National Insurance Co. NO.144, MG Road Shubharam Complex Bengaluru-560 001.

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….Respondents

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(By Shri A N Krishnaswamy, Advocate for R2 and 4; R1, 3a and 3b notice dispensed with)

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This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 17.10.2011 passed in MVC No.7304 of 2008 on the file of the Principal MACT, Court of Small Causes, Bangalore, partly

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allowing the claim petition for compensation and seeking enhancement of compensation.

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In MFA 2901 OF 2012:

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BETWEEN

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Regional Manager National Insurance Co. Ltd., Regional Office Subharam Complex 144, MG Road Bengaluru-560 001.

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...Appellant

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(By Shri A N Krishnaswamy, Advocate)

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AND

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Kaliappan S/o Kannu Gounder Now aged about 57 years

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Sangeetha D/o Kaliappan Now aged about 22 years Both are R/at Laxman Nagar Near Hegganahalli Cross Sunkadakatte Bengaluru-560 091.

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Smt. Parvathi B Major W/o B Janardhana Naidu Age: Major R/at #1-27, Bonu Palli Kanchana Palli Thottambedu Chittor-517 643. Andhra Pradesh State

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Regional Manager New India Assurance Co. Ltd., Regional Office 2-B Unity Building Annexe P Kalinga Rao Road Bengaluru-560 027.

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Sarvanan Since dead by his LRs

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5a. Smt. Thavamani W/o Natarajan Now aged about 50 years

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5b. Natarajan Now aged about 53 years Both are R/at #22, I Cross GKW Layout Vijayanagar II Stage Bengaluru-560 040.

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….Respondents

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This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 17.10.2011 passed in MVC No.7305 of 2008 on the file of the Principal MACT, Court of Small Causes, Bangalore, awarding a compensation of Rs.2,79,000/- with interest @ 6% per annum fro the date of petition till realisation.

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In MFA 8453/2012

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BETWEEN

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Sri Kaliappan Aged 53 years S/o Kannu Gounder

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Sangeetha

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Aged 18 years D/o Kalliappan

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Both are R/at Laxman Nagar Near Hegganahalli Cross Sunkadakatte Bengaluru-560 091.

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….Appellants

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(By Shri S S Mahendra, Advocate)

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AND

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Smt. Parvathi B Major in age W/o B Janardhana Naidu R/at 1-27, Bonu Palli Kanchana Palli Thottambedu Chittor-517 643

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The Regional Manager New India Assurance Co. Ltd Regional Office No.2-B Unity Building Annex Mission Road Bengaluru-560 027.

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Sarvanan Since deceased represented by his LRs.

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3a. Smt. Thavamani

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Aged 46 years

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W/o Sri Natarajan

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3b. Sri Natarajan Aged 49 years S/o Sri Kallimathu Nadar

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Both are R/at No.22 I Cross, GKW Layout Vijayanagar II Stage Bengaluru-560 040.

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The Regional Manager National Insurance Co. No.144, MG Road Shubharam Complex Bangalore-560 001.

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…. Respondents

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(By Sri A N Krishna Swamy, Advocate for R2 and 4) Vide order dated 06.02.2015 notice to R1 and 3 dispensed with)

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This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 17.10.2011 passed in MVC No.7305 of 2008 on the file of the Principal MACT, Court of Small Causes, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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In these appeals arguments being heard, judgment reserved, coming on pronouncement of orders, this day, INDIRESH J., delivered the following:

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J U D G M E N T

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These appeals are preferred against the judgment and award dated 17^th October, 2011 passed in MVCs No.7304 and 7305 of 2008 by the Principal Motor Accident Claims Tribunal, Court of Small Causes at Bangalore (for short, hereinafter referred to as 'the Tribunal’).

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MFA No.10157 of 2012 is filed by the claimant-Perumal in MVC No.7304 of 2008 seeking enhancement of compensation and MFA No.2901 of 2012 is filed by the Insurance Company, challenging on the ground of liability and quantum of compensation; and MFA No.8453 of 2012 is filed by claimants in MVC No.7305 of 2008 seeking enhancement of compensation. These appeals are arising out of common accident occurred on 06^th August, 2008.

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For the sake of convenience, the parties in these appeals are referred to with their status and rank before the Tribunal.

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It is the case of the claimant in MVC No.7304 of 2008 that on 06^th August, 2008, he along with others, were proceeding as loader-cum-coolies in Eicher lorry bearing registration No.TN-43-3632 from Ambur to Mango grove at Anaikattu village of Vellore District. When the said Eicher vehicle reached Sugar Mill, a lorry bearing registration No.AP-16/TT1206 dashed to the said vehicle and due to the said accident, six persons in the lorry died on the spot. It is also averred that

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some of the coolies, including the claimant sustained grievous injuries. Hence, the claimants filed MVC No.7304 and 7305 of 2005 before the Tribunal, seeking compensation. In response to notice, respondents No.1 and 3 unrepresented and hence placed ex-parte. Respondents No.2 and 4 entered appearance and filed detailed written statement denying the averments made in the claim petition. The Tribunal, after considering the pleadings on record, formulated issues for its consideration. Claimant in MVC No.7304 of 2008 was examined as PW1 and produced 7 documents and same were marked as Exhibits P1 to P7. Respondents have examined three witnesses as RW1 to RW3 and produced eight documents and same were marked as Exhibits R1 to R8. The Tribunal, after considering the material on record, awarded compensation of Rs.18,936/- together with interest at the rate of 6% per annum. Being not satisfied with the quantum of compensation awarded by the Tribunal, the claimant in MVC No.7304 of 2008 has filed MFA No.10157 of 2012 seeking enhancement of compensation.

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The Insurance Company has filed MFA No.2901 of 2012 against judgment and award passed in MVC No.7305 of 2008 on the ground of liability and quantum. The Claimants in MVC No.7305 of 2008 are the legal representatives of the deceased Rani, who succumbed to injuries in the same accident. The Tribunal awarded compensation of Rs.2,79,000/- with interest at the rate of 6% per annum from the date of petition till realisation. Being aggrieved by the same, Insurance Company has preferred MFA No.2901 of 2012 before this Court and MFA No.8453 of 2012 is filed by the claimants seeking enhancement in the compensation.

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We have heard Sri S.S. Mahendra, learned counsel appearing for the claimants and Sri A.N. Krishna Swamy, learned counsel appearing for the respondent-Insurance Company.

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It is the submission of Sri S.S. Mahendra that the claimants lost wife and mother on account of road traffic accident occurred on 06^th August, 2008. He submitted that the deceased-Rani, Wife of Claimant No.1, was proceeding as Loader-cum-coolie in Eicher lorry, hired by the owner of the

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mango grove at Anaikattu village. Since, the alleged accident occurred during and in the course of employment, the claimants are entitled for compensation from the respondents. Insofar as quantum of compensation is concerned, he argued that the Tribunal has erred in awarding meager compensation, and therefore, he prays for enhancement of compensation.

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Per contra, Sri A.N. Krishna Swamy, learned counsel appearing for the respondent-Insurance Company contended that the Tribunal has not properly considered the negligence on the part of the driver of the Eicher lorry. He further contended that the injured and the deceased-Rani were not the employees of the insured and therefore, in the insurance policy which is issued by the Insurance Company, there exists no coverage of risk in respect of employees of others and therefore, he submitted that the fastening of liability on the insurer of the offending lorry is bad in law and the same requires to be interfered with in this appeal. Insofar as quantum of compensation awarded by the Tribunal, he argued that the award made by the Tribunal is just and proper and do not call for interference.

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In view of the aforementioned rival contentions made by the learned counsel appearing for the parties, we have carefully considered the finding recorded by the Tribunal and perused the records.

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On careful examination of the records it is not in dispute that the claimant-Perumal in MVC No.7304/2008 was injured and one Rani-wife of claimant No.1 in MVC No.7305/2008, died in the road traffic accident occurred on 06^th August, 2008. The contention of the learned counsel for the Insurance Company is that the inmates of the lorry, which included the claimants and deceased-Rani, are not the employees of the insured and were the employees of the owner of the Mango grove who had hired the Eicher lorry and therefore, claimants are not entitled for compensation. In the backdrop of said contentions, we have carefully scrutinised the evidence of PW1 and PW2. On examination of the evidence of PW1, we found that in all, there were 15 persons in the Eicher lorry, and

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the insurance company in the cross-examination, failed to disprove the employment of the claimants with the owner of

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Mango grove. In this regard, it is useful to refer the law declared by the Hon’ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PREMBAI PATEL AND OTHERS reported in 2005 ACJ 1323, wherein at paragraphs 12 and 13 of the judgment it is held thus:

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“ 12. The heading of Chapter XI of the Act is Insurance Of Motor Vehicles Against Third Party Risks and it contains Sections 145 to 164. Section 146(1) of the Act provides that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of Chapter XI. Clause (b) of sub-section (1) of Section 147 provides that a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him in respect of death of or bodily injury to any person or passenger or damage to any property of a third party caused by or arising out of the use of the vehicle in public place. Sub-clauses (i) and (ii) of clause (b) are comprehensive in the sense that they cover both 'any person' or 'passenger'. An employee of owner of the vehicle like a driver or a conductor may also

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come within the purview of the words 'any person' occurring in sub-clause (i). However, the proviso (i) to clause (b) of sub-Section (1) of Section 147 says that a policy shall not be required to cover liability in respect of death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Act if the employee is such as described in sub-clauses (a) or (b) or (c). The effect of this proviso is that if an insurance policy covers the liability under the Workmen's Act in respect of death of or bodily injury to any such employee as is described in sub-clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b), it will be a valid policy and would comply with the requirements of Chapter XI of the Act. Section 149 of the Act imposes a duty upon the insurer (insurance company) to satisfy judgments and awards against persons insured in respect of third party risks. The expression � "such liability as is required to be covered by a policy under clause (b) of sub-section (1) of section 147 (being a liability covered by the terms of the policy)" occurring in sub- section (1) of Section 149 is important. It clearly shows that any such liability, which is mandatorily required to be covered by a policy under clause (b) of Section 147(1), has to be satisfied by the insurance company. The effect of this provision is that an insurance policy, which covers only the liability arising under the Workmen's Act in respect of death of or bodily

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injury to any such employee as described in sub-clauses (a) or (b) or (c) to proviso (i) to Section 147(1)(b) of the Act is perfectly valid and permissible under the Act. Therefore, where any such policy has been taken by the owner of the vehicle, the liability of the insurance company will be confined to that arising under the Workmen's Act.

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13. The insurance policy being in the nature of a contract, it is permissible for an owner to take such a policy whereunder the entire liability in respect of the death of or bodily injury to any such employee as is described in sub-clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) may be fastened upon the insurance company and insurance company may become liable to satisfy the entire award. However, for this purpose the owner must take a policy of that particular kind for which he may be required to pay additional premium and the policy must clearly show that the liability of the insurance company in case of death of or bodily injury to the aforesaid kind of employees is not restricted to that provided under the Workmen's Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy .”

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Taking into consideration the law declared by the Apex Court, we have carefully examined the insurance policy produced at Exhibit P2. Admittedly, the insured paid premium of

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Rs.6,260/- towards third party risk and paid Rs.50/- towards risk of two workmen. In addition to this, it is reflected from Exhibit R2 that the insured availed risk in respect of employees of others by paying additional amount of Rs.75/- in the premium. In that view of the matter, since the insured has paid additional premium to avail the benefit of risk of employees of others, and applying the provisions contemplated under Section 147(1)(b) of the M.V. Act, the claimants in these appeals are entitled for compensation. Language employed in Section 147(1)(b) of the M.V. Act includes the risk of the claimants, as additional premium is taken by the Insurer. Therefore, we do not find any acceptable argument urged by the learned counsel appearing for the insurance company to modify the liability and therefore, the appeal preferred by the insurance company is liable to be dismissed.

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Insofar as MFA No.10157/2012 filed by the claimant seeking enhancement of the compensation in MVC No.7304/2008 is concerned, we have carefully considered the nature of the injuries sustained by the claimant as per Ex.P4.

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Perusal of the record would indicate that the claimant was working as loader-cum-coolie. However, there is no evidence to substantiate the same. In the absence of such evidence, this Court accepted the notional income of the claimants as set out in the Lok Adalat chart, with relevance to the year of accident. The accident is of the year 2008 and therefore, the notional income of the claimant would be Rs.4,500/- per month. The claimant has not examined the doctor to assess the disability. Therefore, taking into consideration the injury sustained by the claimant as per Exhibit P4 and the age of the claimant as on the date of accident as 54 years, we are of the view that the claimant in MVC No.7304 of 2008 is entitled for additional global compensation of Rs.25,000/- with interest at the rate of 6% p.a. from the date of the petition till the payment. It is also found in the record that the insurance company has challenged the impugned judgment and award in MVC No.7304 of 2008 before this court in MFA No.2900 of 2012 and same came to be dismissed by order dated 11^th June, 2015 and therefore, the contention raised by the learned counsel for the insurance company cannot be accepted.

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Insofar as assessment of compensation in MFA No.8453/2012 is concerned, the claimants in MVC No.7305/2008 are the husband and daughter of the deceased Rani. As per the post-mortem report-Exhibit P6, the age of the deceased as on the date of the accident was 40 years. In the absence of any documentary material to determine the income of the deceased, following the Lok Adalath chart, with relevance to the year of accident, the notional income of the deceased would be Rs.4,500/- per month. In terms of the law declared by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in 2017 ACJ 2700, 40% is to be added to the income towards future prospects. In terms of the Hon’ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298, the appropriate multiplier would be 15. There are two dependents and therefore, one-third would be deducted towards the personal expenses of the deceased. Hence, loss of dependency would be Rs.7,56,000/- (Rs.4500/- x 40% x 12x 15 x2/3). The claimants are entitled for Rs.80,000/- (Rs.40,000/- each) under loss of

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consortium and Rs.15,000/- each is awarded towards loss of estate and toward funeral expenses. Therefore, the claimants in MFA No.8453/2012 are entitled for total compensation of Rs.8,66,000/- in lieu of Rs.2,79,000/- awarded by the Tribunal. The claimants in both the claim petitions are entitled for interest at the rate of 6% per annum from the date of petition till the payment. Hence, the following:

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O R D E R

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i) MFA No.2901 of 2012 filed by the insurance company is dismissed;

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ii) MFA No. 10157 of 2012 and MFA No.8453 of 2012 preferred by the claimants, are allowed in part;

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iii) The claimant in MFA No.10157 of 2012 is entitled for compensation of Rs.43,936/(Rupees Forty three thousand nine hundred thirty six only) as against Rs.18,936/-, with interest at the rate of 6% per annum from the date of petition till the payment;

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iv) The claimants in MFA No.8453 of 2012 are entitled for compensation of Rs.8,66,000/(Rupees Eight lakh sixty six thousand only) as against Rs.2,79,000/- with interest at the rate of 6% per annum from the date of petition till the payment;

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v) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact;

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vi) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order;

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