Partly allowed

The Branch Manager v. Praveena

Karnataka HC12 Sept 2024MFA/5230/2018

Case brief

AI extract

What is this about?

Karnataka HC allowed the insurance company's appeal to recover sum from the owner while upholding liability to pay the third-party claimant directly. The court enhanced the awarded compensation from Rs. 4.30 lakhs to Rs. 5.10 lakhs based on proof calculations.

What did the court decide?

Insurance Company directed to deposit Rs. 5,10,500/- plus interest; liberty to recover amount from taxi owner.

The Branch Manager Vs Praveena — Motor Accident Claims | Karnataka HC (2024)

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1 - NC: 2024:KHC:37394 MFA No. 5230 of 2018 C/W MFA.CROB No. 61 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MFA NO. 5230 OF 2018 (MV)

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C/W

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MFA CROSS OBJECTION NO. 61 OF 2022 (MV)

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IN MFA No. 5230/2018

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BETWEEN:

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THE BRANCH MANAGER NATIONAL INSURANCE CO LTD SHIVAMOGGA BY NATIONAL INSURANCE CO LTD REGIONAL OFFICE, NO.144 SUBHARAM COMPLEX, M G ROAD BANGALORE-560001 BY ITS MANAGER

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…APPELLANT

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(BY SRI. O MAHESH.,ADVOCATE)

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Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

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AND:

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PRAVEENA AGED ABOUT 33 YEARS S/O C H SHIVAPPA R/A 2ND CROSS, GADIKOPPA SHIVAMOGGA-577201.

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SHEIK FAROOQ AGED ABOUT 36 YEARS S/O SHEIK ANWAR R/O AYANUR CHAMUNDIPURA IST CROSS, SHIVAMOGGA TALUK-577201.

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SHABBIR AGED ABOUT 57 YEARS

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S/O SAIDU SAB R/O SAWMILL ROAD IST CROSS, AYANUR SHIVAMOGGA-577201

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…RESPONDENTS

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(BY SRI.T.P. VENKATESH., ADVOCATE FOR R1: NOTICE TO R2 & R3 ARE SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 10/11/2017, PASSED IN MVC NO.1039/2013, ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & AMACT-8, SHIVAMOGGA, AWARDING COMPENSATION OF RS.4,30,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF THE ORDER TILL THE DATE OF DEPOSIT.

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IN MFA.CROB NO. 61/2022 BETWEEN:

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SRI PRAVEENA S/O C H SHIVAPPA AGED ABOUT 37 YEARS R/O 2ND CROSS, GADIKOPPA SHIVAMOGGA 577201.

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...CROSS OBJECTOR

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(BY SRI. VIVEKANANDA T P.,ADVOCATE)

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AND:

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SHEIK FAROOQ S/O SHEIR ANWAR AGED 40 YEARS AYANUR, CHAMUNDIPURA 1ST CROSS, SHIVAMOGGA SHIVAMOGGA TALUK-577211.

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SHABBIR S/O SAIDU SAB AGED 61 YEARS R/AT SAWMILL ROAD S1T CROSS, AYANUR SHIVMOGGA -277211.

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BRANCH MANGER NATIONAL INSURANCE CO LTD SHIVAMOGGA BY BRANCH MANAGER NATIONAL INSURANCE CO LTD REGIONAL OFFICE, NO 144 SUBRAHAM COMPLEX,M G ROAD BANGALORE 560001

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...RESPONDENTS

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(BY SRI.O.MAHESH., ADVOCATE FOR R3: NOTICE TO R1 & R2 IS DISPENSED WITH V/O DATED: 16.02.2024)

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THIS MFA CROSS OBJECTION IS FILED UNDER ORDER XLI RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED: 10/11/2017, PASSED IN MVC NO.1039/2013, ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & AMACT-8, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL AND CROSS OBJECTION, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL JUDGMENT

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MFA 5230/2018 is filed by the Insurance Company and MFA CROB 61/2022 is filed by the claimant challenging the judgment dated 10.11.2017 passed by MACT, Shivamogga in MVC No.1039/2013.

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Facts giving rise to the filing of the appeal and cross objection briefly stated are that on 15.06.2013 when the claimant was proceeding on motorcycle bearing registration No.KA-14-EB-3388 from his house towards Gandhi Bazaar in front of Mc.Gann Hospital, Sagar Road, at that time, Force Taxi bearing registration No.KA-14-B0188 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act, seeking compensation. It was pleaded that he spent significant amount towards medical expenses, conveyance

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charges and other related costs. It was further pleaded that the accident occurred solely on account of rash and negligent driving of the Taxi by its driver. Upon service of notice, the respondents appeared through counsel and only respondent No.3 filed written statement denying the averments made in the claim petition.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The Tribunal, by impugned judgment and award has partly allowed the claim petition and held that the claimant is entitled to a compensation of Rs.430,000/along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, the present appeal and cross objection have been filed.

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The learned counsel for the Insurance Company has raised the following contentions:

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NEGLIGENCE:

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The accident occurred due to contributory negligence. It was a case of head on collusion. Even the claimant has contributed to the accident. But the Tribunal is not justified in holding that the driver of the Taxi alone was negligent in causing the accident.

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QUANTUM OF COMPENSATION

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a) Firstly, the assertion of claimant that he was earning Rs.20,000/- per month, remains unsubstantiated due to lack of documentary evidence. In the absence of proof of income, the Tribunal has assessed the income of the claimant notionally.

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b) Secondly, even though the doctor has stated that the claimant has suffered disability of 7% to whole body, the disability will not come in the way of claimant discharging his day to day activities. He has not surrendered his driving licence, which shows that he has continued his job. c) Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the

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claimant, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are just and reasonable and it does not warrant interference.

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LIABILITY:

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a) The reasoning as well as the finding of the Tribunal holding that driver of insured transport vehicle had valid and effective driving licence, is highly erroneous, besides being illegal, since it failed to appreciate the material evidence placed on record by the Insurance Company.

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b) The Tribunal ought to have seen that the oral evidence of R.W-1, RTO, Shivamogga, coupled with Exs.R2 and R-3, i.e., driving licence Extract and 'B' Register extract, conclusively proved that driving licence held by respondent No.1-driver of insured transport vehicle was neither valid nor effective as on the date of alleged accident.

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c) The Tribunal ought to have seen that definition of 'Light Motor' include both transport as well as non-

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transport vehicle and unladen weight of a vehicle do not determine class or type or category or description. Section 3 of M.V.Act mandate that no person shall drive a motor vehicle in any public place, unless he holds licence issued to him authorizing him to drive the vehicle and no person shall also drive transport vehicle unless his driving licence specifically entitles him to do so. The reasoning of the Tribunal to hold that insurer is liable in the light of its observation as well as reasoning in paragraphs 21 to 24 in the light of ruling of Apex Court in to case of Mukund Dewangan Vs. Oriental Insurance Company, is erroneous. Reasoning of the Apex Court in case of Mukund Dewangan vs. Oriental Insurance Company is not sound besides being in direct conflict with other relevant provisions of M.V.Act since there was no harmonious reading of all relevant provisions [per incuriam) and this issue is now before the Apex Court for fresh re-consideration.

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d) The Tribunal, further failed to consider important material evidence, Ex.R-2, driving licence, wherein the

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driving licence of the driver concerned was suspended with effect from 25-05-2013 till 29-11-2013 for a period of six months [sections 19, 20, 21, 22 and 23 of M.V.Act], which would in law mean the said suspended driving licence shall cease to be effective to such extent of six months and as such, it was a case of no driving licence for the said period. Hence, the insurer would not be liable, irrespective of validity of driving licence held by him.

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With the above contentions, the learned counsel sought to allow the appeal filed by the Insurance Company.

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On the other hand, the learned counsel for the claimant has raised the following counter-contentions: NEGLIGENCE:

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The accident occurred due to negligence of the driver of the Taxi. As per spot sketch at Ex.P-205, it is clear that the driver of the Taxi had crossed the middle of the road and had come to the right side of the road and dashed to

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the motorcycle of the claimant. Immediately after the accident, the complaint has been ledged against the driver of the Taxi. The police have registered FIR and after thorough investigation, they have filed charge sheet against the driver of the Taxi. Considering the materials available on record, the Tribunal has rightly held that the driver of the Taxi alone was negligent in causing the accident.

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QUANTUM OF COMPENSATION

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a) Firstly, the claimant asserts that he was earning Rs.20,000/- per month by working as driver and conductor. However, the Tribunal has erred in taking the income as merely as Rs.6,000/- per month.

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b) Secondly, the claimant has examined the doctor as PW-2. The Tribunal undervalued the claimant's whole-body disability at 7%, contradicting the evidence of the doctor that the claimant suffered 23% disability to particular limb.

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c) Lastly, due to the accident, the claimant has sustained grievous injuries. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side.

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LIABILITY:

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After hearing the parties, if this Court comes to the conclusion that the driver of the Taxi was not possessing a valid driving licence as on the date of accident, in view of law laid down by the Hon’ble Supreme Court in the case of

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PAPPU AND ORS. V. VINOD KUMAR LAMBA AND ANR.

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[AIR 2018 SC 592] and in view of Full Bench decision of this Court in the case of NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER [ILR 2020 Kar.2239], even if the driver of the Taxi was not possessing valid driving licence as on the date of accident, the Insurance Company is liable to pay compensation to

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the claimant at the first instance, with liberty to recover the same from the owner of the Taxi.

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With the above contentions, the learned counsel sought to allow the cross objection.

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Heard the learned counsel for the parties. Perused the judgment and award of the Tribunal and original records.

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NEGLIGENCE:

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The case of the claimant is that on 15.06.2013 when the claimant was proceeding on motorcycle bearing registration No.KA-14-EB-3388 from his house towards Gandhi Bazaar in front of Mc.Gann Hospital, Sagar Road, at that time, Force Taxi bearing registration No.KA-14-B0188 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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To prove the case, the claimant has examined himself as PW-1 and produced 209 documents. The claimant in his evidence has reiterated the averments made in the claim petition.

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Under the Motor Vehicles Act in the claim petition before the Claims Tribunal the standard of proof is much below than what is required in a criminal case as well as in the civil case. No doubt, before the Tribunal, there must be some material on the basis of which the Tribunal can arrive or decide things necessary to decide for awarding compensation, but the Tribunal is not expected to take or to adopt a nicety of a civil or criminal case. After all it is a summary enquiry and it is the legislation for the welfare of the Society. The proceedings under the Motor Vehicles Act are not akin to the proceedings under civil rules. Hence, strict rules of evidence are not required to be followed in this regard. In the case of MANGLA RAM –v- ORIENTAL INSURANCE COMPANY LIMITED (2018) 5 SCC 656, the Hon’ble Apex Court has held as hereinbelow:

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“25. In Dulcina Fernandes, this Court examined similar situation where the evidence of claimant’s eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied.”

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In the evidence, the claimant has categorically stated

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that the accident occurred due to rash and negligent driving of the Taxi by its driver. Immediately after the accident, complaint has been lodged against the driver of the Taxi. The police have registered FIR and after thorough investigation, they have filed charge sheet against the driver of the Taxi. As per sketch and

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panchanama, the width of the road is 30 feet and it runs East to West, the accident took place at a distance of 10 feet from the Southern side of the road. The driver of the Taxi took the vehicle to the right side of the road to the wrong direction and dashed the motorcycle. Ex.P-206, is the MVA report, which shows the damages caused to both the vehicles and the accident occurred is not due to any mechanical defects of the vehicles.

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Therefore, taking into consideration the evidence of parties and materials available on record such as FIR, complaint, sketch, mahazar, IMV report and charge sheet, this Court is of the opinion that the driver of the Taxi alone was negligent in causing the accident. The Tribunal has rightly answered issue No.1 in the affirmative. Hence, the finding of the Tribunal regarding negligence, is confirmed.

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QUANTUM OF COMPENSATION:

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The claimant claims that he was earning Rs.20,000/per month. But he has not produced any documents to substantiate his claim. Therefore, in the absence of proof

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of income, notional income has to be assessed. According to the guidelines issued by the Karnataka State Legal Services Authority, for accidents occurred in the year 2013, notional income shall be taken at Rs.8,000/- p.m.

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As per wound certificate, the claimant has sustained open fracture of shaft of left femur, blunt injury abdomen. Taking into consideration the deposition of the doctor and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 7%. The claimant is aged about 28 years at the time of the accident and multiplier applicable to his age group is ‘17’. Thus, the claimant is entitled for compensation of Rs.114,240/- (Rs.8,0001217*7%) on account of 'loss of future income'.

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The nature of injuries indicates that the claimant must have been under rest and treatment for a period of 3 months. Consequently, the claimant is entitled for compensation of Rs.24,000/- (Rs.8,000*3 months) under the head ‘loss of income during laid up period’.

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The claimant was hospitalized as an inpatient for

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more than 42 days in the hospital and subsequently received further treatment. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor,

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I am inclined to award a sum of Rs.40,000/- under the

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head of 'loss of amenities'.

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Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the following

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compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	40,000	40,000
Medical expenses	272,081	272,081

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Food, nourishment, conveyance and attendant charges	20,000	20,000
Loss of income during laid up period	12,000	24,000
Loss of amenities	0	40,000
Loss of future income	85,680	114,240
Total	429,761	510,321
Rounded off	430,000	510,500

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LIABILITY:

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The Insurance Company has taken a specific contention that the driver of the Taxi was not having valid driving licence as on the date of the accident. The accident occurred on 15.06.2013 and as per extract of driving licence produced at Ex.R-2, driving licence of the driver of the Taxi has been suspended from 25.05.2013 till 29.11.2013. Therefore, as on the date of accident, the driving licence was under suspension and same has not been taken note by the Tribunal. The finding of the Tribunal that the driver of the Taxi was possessing valid driving licence as on the date of accident, is contrary to

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the materials available on record. Even in the appeal filed by the Insurance Company, the Insurance Company has taken a specific ground that the as on the date of accident, the driving licence of the driver of the Taxi was under suspension. Even on service of notice, neither the driver nor the owner have appeared. They are served and unrepresented.

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Since the insured has violated the policy conditions,

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the Insurance Company is not liable to pay compensation. However, as the claim of the third party is involved, in view of the law laid down by the Hon’ble Supreme Court in the case of PAPPU AND ORS. V. VINOD KUMAR LAMBA

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AND ANR. [AIR 2018 SC 592] and in view of Full Bench decision of this Court in the case of NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER [ILR 2020 Kar.2239], the Insurance Company is liable to pay compensation to the claimants at the first instance, with liberty to the Insurance Company to recover the same from the owner of the Taxi.

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20. In the result, the following order is passed:

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ORDER

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a) Both the appeal and cross objection are allowed in part .

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b) The judgment of the Claims Tribunal is modified. c) The claimant is entitled to a total compensation of Rs.510,500/-.

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d) The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment. After deposit, the Insurance Company is at liberty to recover the same from the owner of the Taxi.

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e) In view of the order dated 04.09.2024 passed by this Court, the claimant is not entitled to interest on the enhanced compensation for the delayed period of 535 days in filing the cross objection.

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