M/S Tata Aig General Insurance Company Ltd. Vs Sri B M Satish

M/S TATA AIG GENERAL INSURANCE COMPANY LTD 3RD FLOOR, JP & DEVI JAMBUKESWAR ARCADE, NO.69,MILLERS ROAD, BANGALORE-560 052 REPRESENTED BY REGIONAL CLAIMS MANAGER

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…APPELLANT

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(BY SRI. RAVI S SAMPRATHI.,ADVOCATE)

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AND:

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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SRI B M SATISH S/O LATE MALLIKARJUNAIAH, AGED ABOUT 52 YEARS

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SMT K S CHANDRAKALA W/O B M SATISH, AGED ABOUT 42 YEARS

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KUM A S PAVITHRA D/O B M SATISH, AGED ABOUT 20 YEARS

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ALL R/AT NO.162,3RD MAIN, 3RD CROSS, ANJANEYA TEMPLE ROAD, LAKSHMIDEVINAGAR, NANDINI LAYOUT,

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HC-KAR

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BANGALORE-560096

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SRI ASHOK KUMAR MADAN S/O BRIJ MOHAN, MAJOR IN AGE, NO.AG-458,SANJAY GANDHI TPT NAGAR, NORTH DELHI-110 042

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…RESPONDENTS

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(BY SRI. B M CHANDRASHEKARA, ADVOCATE FOR R1 TO R3 NOTICE TO R4 IS HELD SUFFICIENT V/O DTD 22.11.2023)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.07.2017 PASSED IN MVC NO.5893/2013 ON THE FILE OF THE X ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU, (SCCH-16), AWARDING COMPENSATION OF RS.8,27,300/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC.

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IN MFA NO. 2072/2018

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BETWEEN:

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M/S TATA AIG GENERAL INSURANCE COMPANY LTD 3RD FLOOR, JP & DEVI JAMBUKESWAR ARCADE, NO.69, MILLERS ROAD, BANGALORE-560052 REPRESENTED BY REGIONAL CLAIMS MANAGER.

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...APPELLANT

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(BY SRI. RAVI S SAMPRATHI, ADVOCATE)

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AND:

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SRI D FRANCIS ZAVIER S/O AYANIYEL @ DANIEL, AGED ABOUT 27 YEARS, R/O KT NO.332, 14TH CROSS, ST.THOMAS ROAD, KEB COLONY, MANDYA CITY-571401

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SRI ASHOK KUMAR MADAN S/O BRIJ MOHAN, MAJOR IN AGE, NO.AG-458, SANJAY GANDHI TPT NAGAR,

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HC-KAR

NORTH DELHI-110042

...RESPONDENTS

(BY SRI. HARSHA V, ADVOCATE FOR R1 NOTICE TO R2 IS HELD SUFFICIENT V/O DTD 22.11.2023)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.10.2017 PASSED IN MVC NO.1117/2013 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MACT, MANDYA, AWARDING COMPENSATION OF RS.2,98,469/- ALONG WITH INTEREST AT THE RATE OF 9% FROM THE DATE OF PETITION TILL REALIZATION AND ETC.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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MFA No.7857/2017 is filed by the insurer calling in question the judgment and award dated 26.7.2017 passed in MVC No.5893/2013 by the court of Small Causes and Motor Accidents Claims Tribunal, Bengaluru (SCCH-16)¹ . MFA No.2072/2018 is filed by the insurer calling in question the judgment and award dated 19.10.2017 passed in MVC No.1117/2013 by the I Additional Senior Civil Judge and MACT, Mandya² .

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Both the claim petitions in MVC No.5893/2013 and

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MVC No.1117/2013 were filed claiming compensation due to

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1 Hereinafter referred to as ‘Tribunal-Bengaluru’

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2 Hereinafter referred to as ‘Tribunal-Mandya’

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the same accident dated 19.7.2013, involving the same insured lorry. Hence, both the appeals are taken up together for consideration.

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For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.

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MVC No.5893/2013 has been filed by the legal representatives of one Guruvanth³ . It is the case of the claimants that when the deceased was traveling as a pillion rider of a motor cycle, a lorry hit the said motorcycle causing the accident in question. The owner and insurer of the lorry were arrayed as respondent Nos.1 and 2 before the TribunalBengaluru. The owner of the lorry remained ex parte and did not contest the claim proceedings. The insurer contested the claim proceedings by filing its statement of objections. The Tribunal-Bengaluru, by its judgment and award dated 26.7.2017, partly allowed the claim petition and awarded a total compensation of `8,27,300/- with interest at 9% p.a.

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The rider of the motorcycle filed MVC No. 1117/2013 before the Tribunal - Mandya, arraying the owner and insurer of

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3 Hereinafter referred to as ‘deceased’

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the offending lorry as respondent Nos.1 and 2. The owner remained ex parte and did not contest the claim proceedings. The insurer contested the claim proceedings by filing its statement of objections. The Tribunal - Mandya partly allowed the claim petition and awarded a total compensation of `2,98,469/- together with interest at 9% p.a.

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In both the claim proceedings, the Tribunals directed that the second respondent- insurer was liable to pay the compensation awarded. Being aggrieved, the insurer has filed both the appeals.

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Learned counsel Sri Ravi S.Sampridhi appearing for the insurer contends that the driver of the lorry did not have a valid driving licence as on date of the accident. Hence, it is contended that the insurer is not liable to pay the compensation awarded. It is further contended that the quantum of compensation is on the higher side and the rate of interest awarded is excessive.

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Learned counsel Sri B.M.Chandrashekar, appearing for the claimant in MFA No.7857/17 (MVC No.5893/2013) as well as learned counsel Sri Harsha, appearing for the claimant

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in MFA No.2072/2018 (MVC No.1117/2013) would contend that, having regard to the judgment of the Hon’ble Supreme Court in the case of Pappu and others v. Vinod Kumar

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Lamba And Others⁴ even if it is held that the insurer has proved that the driver of the lorry does not have a valid driving licence, the insurer is liable to pay the compensation awarded with liberty to recover the same from the owner of the vehicle. It is further contended that the quantum of compensation awarded is on the lower side and is liable to be enhanced. It is further contended by both the learned counsels that even without filing a cross objection, in an appeal filed by the insurer, the claimants are entitled to put forth a contention that the compensation is on the lower side and can seek for enhancement of the same.

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Responding to the contention put forth on behalf of the claimants that, without filing the cross objection the claimants are entitled to seek for enhancement of the compensation, learned counsel for the insurer contends that the claimants not having filed any appeal or cross objection

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4 (2018)3 SCC 208

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challenging the quantum of compensation awarded by the Tribunal, in the appeal filed by the insurer the quantum of compensation is not liable to be enhanced.

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The submissions of both the learned counsels have been considered and the material on record, including the records of the Tribunal, have been perused.

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The learned counsels have relied on various judgments, which shall be referred to the extent that the same are required for adjudication of the questions that arise for consideration in the present appeals.

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The questions that arise for consideration in the above appeals are:

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i. Whether the Tribunal was justified in fastening the liability to pay the compensation awarded on the insurer?

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ii. Whether it is open for the Courts to enhance the compensation in an appeal filed by the insurer, without the claimants filing a cross objection or an independent appeal seeking for enhancement of the quantum of compensation?

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iii. Whether the quantum of compensation awarded in both the claim petitions is liable to be enhanced?

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HC-KAR

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Re. question No.(i)

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The insurer, in order to prove its contention that the driver of the insured lorry did not have a valid and effective driving licence has, in MVC No.5893/2013 examined its officer as RW.1, the investigating officer as RW.2 and the Lower Division Assistant of the Regional Transport Office⁵ , Nagaland as RW.3. RW.3 has produced a certified copy of the driving licence extract (Ex.R8), as well as a copy of the driving licence of the driver (Ex.R10). It is forthcoming from the testimony of RW.1 and RW.3 as well as Ex.R8 and Ex.R10 that, the driver was authorized to drive a Medium Goods Vehicle⁶ as well as Heavy Goods Vehicle⁷ from 1.9.2008 up to 31.8.2011. The insured vehicle is a Truck. Hence, it is clear that as on the date of the accident i.e., on 19.7.2013, the driving licence of the driver had expired.

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The Hon’ble Supreme Court in the case of Pappu⁴ has held as follows:

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“15. ……….. Similarly, the owner of the vehicle (Respondent 1) has not challenged the findings of the

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5 Hereinafter referred to as ‘RTO’

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6 Hereinafter referred to as ‘MGV’

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7 Hereinafter referred to as ‘HGV’

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Tribunal as affirmed by the High Court in favour of the insurer (Respondent 2), including on the factum that the vehicle was driven by a person who did not have a valid driving licence at the relevant time.

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19. In the present case, the owner of the vehicle (Respondent 1) had produced the insurance certificate indicating that Vehicle No. DIL 5955 was comprehensively insured by Respondent 2 (insurance company) for unlimited liability. Applying the dictum in National Insurance Co. Ltd. [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] , to subserve the ends of justice, the insurer (Respondent 2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (Respondent 1) in accordance with law.”

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(emphasis supplied)

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The Tribunal, while considering the said contention has, noticed that there is an endorsement that the licence was suspended on 1.10.2013. Considering the same, it has held that the insurer was liable to pay the compensation awarded. In this context, it is relevant to note that in Ex.R8 there is an endorsement “ suspended with effect from 1.10.2013 ”. However, in Ex. R10 it is specifically stated that the licence has been issued on 1.9.2008 and is valid up to 31.8.2011. The said aspect of the matter has been deposed by RW.3, wherein he has stated that the licence has not been renewed after 31.8.2011. Although, in the cross examination, RW.3 admits to

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a suggestion that the driving licence was in force till 1.10.2013, the same is not forthcoming from any material on record.

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Having regard to the factual position as noticed above as well as the ratio as held by the Hon’ble Supreme Court in the case of Pappu⁴ , the finding of the Tribunal fastening the liability on the insurer of the vehicle to pay the compensation awarded is erroneous and is liable to be interfered with. It is required to be held that the insurer is liable to pay the compensation awarded with liberty to recover the same from the owner of the vehicle.

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Accordingly, question No.(i) is answered partly in the affirmative .

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Re. question No.(ii)

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While it is the contention of the learned counsel for the insurer that without filing an appeal/cross objection, in an appeal filed by the insurer, it is not open for the Courts to enhance the quantum of compensation, learned counsels for the claimants would contend that even without an independent

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appeal/ cross objection, the quantum of compensation can be enhanced.

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It is relevant to note that a two judge Bench of the Hon’ble Supreme Court in the case of Ranjana Prakash v. Divisional Manager⁸ , held, inter alia , that the High Court cannot enhance the compensation in an appeal filed by the owner/insurer without an independent appeal/ cross objection by claimant. However, a three judge Bench of the Hon’ble Supreme Court in the case of Surekha v. Santosh⁹ held as follows:

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“ 2 . By now, it is well-settled that in the matter of insurance claim compensation in reference to the motor accident, the court should not take hypertechnical approach and ensure that just compensation is awarded to the affected person or the claimants.”

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(emphasis supplied)

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A Division Bench of this Court in the case of The Divisional Manager v. Smt.Deepa & Ors.,¹⁰ , following the judgment of the Hon’ble Supreme Court in the case of Surekha⁹ held that even if there is no appeal, the Court has to

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8 2012 AIR SCW 848

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9 (2021) 16 SCC 467

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10 Judgment dated 29.10.2022 passed in MFA No.103732/2017 (Dharwad Bench)

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award ‘just compensation’ if the claimants are entitled to the same.

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It is also relevant to note that various coordinate Benches of this Court while referring to the power of the appellate Court under Order XLI Rule 33 of the Code of Civil Procedure, 1908¹¹ have held that the appellate Court is entitled to enhance the compensation in an appeal filed by the insurer without an appeal/cross objection filed by the claimant in that regard.

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It is also a settled proposition of law that while adjudicating a claim petition under the provisions of the Motor Vehicles Act, 1988¹² the Tribunal/Court is required to award just compensation and hence is entitled to award a higher compensation than what has been sought for by the claimants in the claim petition.

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In the case of Saurav Jain v. M/s. ABP Design¹³

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relied upon by the learned counsel for the claimants, the Hon’ble Supreme Court was considering a situation as to

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11 Hereinafter referred to as ‘CPC’

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12 Hereinafter referred to as ‘Act of 1988’

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13 AIR 2021 SC 3673

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whether a challenge could be raised to an adverse finding before the appellate Court without a cross objection. While considering the said question, the Hon’ble Supreme Court has held as follows:

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“ 29 . It is apparent from the amended provisions of Order 41 Rule 22CPC and the above authorities that there are two changes that were brought by the 1976 Amendment. First, the scope of filing of a cross-objection was enhanced substantively to include objections against “findings” of the lower court; second, different forms of raising cross-objections were recognised. The amendment sought to introduce different forms of cross-objection for assailing the findings and decrees since the amendment separates the phrase “but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour” from “may also take any cross-objection to the decree” with a semi colon. Therefore, the two parts of the sentence must be read disjunctively. Only when a part of the decree has been assailed by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is sufficient to raise a challenge to an adverse finding of the court of first instance before the appellate court without a crossobjection.”

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(emphasis supplied)

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In view of the discussion made above, having regard to the legal position as held by the Hon’be Supreme Court in the case of Surekha⁹ , as well as the Division Bench of this Court in the case of Deepa¹⁰ , also keeping in mind the power of the appellate Court under Order

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XLI Rule 33 of the CPC as well as the legal position as held by the Hon’ble Supreme Court in the case of Saurav Jain¹³ , it is required to be held that even in an appeal filed by the insurer, it is open for this Court to enhance the compensation, if the same is assailed in the course of oral arguments by the claimants. Such an interpretation is required to be made also keeping in mind the fact that the Act of 1988 is a beneficial legislation.

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Hence, question No.(ii) is answered in the affirmative.

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Re. question No.(iii)

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26. MFA No.7857/2017 (MVC No.5893/2013):

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26.1 The deceased was aged 20 years as on the date of

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the accident. Hence, the appropriate multiplier is 18. It was averred that the deceased was a Tele Caller and was earning a sum of 15,000/- p.m. The Tribunal-Bengaluru has assessed the income of the deceased at 6,000/- p.m. No documents have been produced to demonstrate his income. Having regard

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to the date of the accident, it is just and proper to re-assess the notional income of the deceased at `8,000/- p.m.

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26.2 In terms of the judgment of the Hon’ble Supreme Court in the case of National Insurance Company Ltd v. Pranay Sethi¹⁴ 40% is required to be added towards future prospects to the income as re-assessed by this Court and 50% is to be deducted towards personal expenses since the deceased was un-married/bachelor. Hence, the loss of dependency is re-assessed as (8,000/- + 40% - ½ x12x18) 12,09,600/- as against `6,48,000/- awarded by the Tribunal.

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26.3 The Tribunal has not awarded any amount towards consortium. Hence, loss of consortium is required to be awarded to claimant Nos.1 and 2 in terms of the judgment of the Hon’ble Supreme Court in the case of Magma General Insurance Company v. Nanu Ram Alias Chubru Ram¹⁵ and accordingly, 40,000/- each together with an escalation of 20% is to be awarded towards the same. Hence, loss of consortium is assessed as (48,000/-x2) `96,000/-.

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14 (2017)16 SCC 680

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15 “(2018)18 SCC 130”

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26.4 The compensation towards funeral expenses and loss of estate also has to be awarded in terms of the aforesaid judgment in a sum of 15,000/- each together with escalation at 20% and accordingly, a sum of 18,000/- each is awarded towards the same.

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26.5 In view of the compensation awarded under conventional heads, the compensation awarded by the Tribunal towards loss of love and affection and funeral expenses and transportation expenses at 1,00,000/and 20,000/respectively, are set aside.

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26.6 The compensation awarded towards medical

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expenses at `9,300/- is affirmed.

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It is noticed that the Tribunal has awarded interest at 9% p.a. However, taking judicial notice of the interest payable towards fixed deposits, it is just and proper to award interest at the rate of 7% p.a., on the compensation as reassessed by this Court.

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In view of the aforementioned, the compensation reassessed is as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal(`)	Amount awarded by this Court (`)
1	Loss of dependency	648000.00	1209600.00
2	Loss of estate	50000.00	18000.00
3	Loss of consortium	0.00	96000.00
4	Funeral expenses and transportation expenses	20000.00	0.00
5	Funeral expenses	0.00	18000.00
6	Loss of love and affection	100000.00	0.00
7	Medical expenses	9300.00	9300.00
	Total	827300.00	1350900.00

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Accordingly, the claimants are entitled to enhanced compensation of (13,50,900/- - 8,27,300/-) = `5,23,600/-.

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MFA No.2072/2018 (MVC No.1117/2013):

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30.1 The claimant was aged 22 years as on the date of the accident. The claimant was stated to be an employee in a private company. However, no documents have been produced to demonstrate his income. Hence, it is just and proper to reassess the notional income as `8,000/- p.m.

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30.2 It is forthcoming from the wound certificate (Ex.P6) and discharge summary (Ex.P9) as well as the other medical documents on record that the claimant has sustained blunt injury to the abdomen, which has resulted in spleneic

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laceration, shattered spleen transection of distal body/tail region of the pancreas left renal artery occhersion, contusion of left adrenal gland and fracture of 10^th rib with contusion of the left lung, as also Hoffs fracture of the left femur. The claimant has taken treatment for a total period of 03 days. However, no doctor has been examined.

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30.3 In view of the aforementioned, the compensation is reassessed as follows:

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30.3.1 The compensation awarded by the Tribunal at `60,000 towards pain and suffering is just and proper;

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30.3.2 The compensation awarded towards loss of amenities is also not interfered with;

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30.3.3 Although the Tribunal has awarded medical expenses at 2,27,869/-, it is forthcoming from the medical bills (Ex.P10) that the claimant has produced medical bills for a total sum of 3,41,322/-. However there is no basis for a medical bill of 24,600/-. Hence, it is just and proper that a sum of `3,20,000/- is awarded towards medical expenses;

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30.3.4 Having regard to the nature of injuries sustained and the period of treatment as an inpatient, it is just and proper to award a sum of 20,000/- towards food, nourishment and attendant charges as against 600/- awarded by the Tribunal;

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30.3.5 The Tribunal has not awarded any amount towards loss of income during treatment period. Hence, the laid up period is assessed as two months and accordingly, the compensation towards loss of income during laid up period is assessed as (8000/-x2)=16,000/-.

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It is noticed that the Tribunal has awarded interest at 9% pa. However, taking judicial notice of the interest payable towards fixed deposits, it is just and proper to award interest at the rate of 7% p.a., on the compensation as re-assessed by this Court.

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Accordingly, the total compensation under various heads is re-assessed as follows:

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Sl. No.	Heads	Amount awarded by the Tribunal (Rs.)	Amount awarded by this Court (Rs.)
1.	Towards pain and suffering	60000.00	60000.00
2.	Towards medical expenses	227869.00	320000.00
3.	Loss of amenities	10000.00	10000.00
4	Loss of income during laid up period	0.00	16000.00
5	Food and nourishment	600.00	20000.00
	Total	298469.00	426000.00

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Hence, the claimant is entitled for enhanced

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compensation of (4,26,000/- – 2,98,469/-) `1,27,531/-.

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Hence, question No.(iii) is answered in the

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affirmative.

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In the result, the following:

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ORDER

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i) The above appeals are allowed in part;

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ii) The judgment and award dated 26.7.2017 passed in MVC No.5893/2013 by the Court of Small Causes and Motor Accidents Claims Tribunal, Bengaluru (SCCH-16), is modified to the extent of holding that the claimants shall be entitled to a total compensation of `13,50,900/- together with interest at 7% p.a., from the date of petition till date of payment;

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iii) The judgment and award dated 19.10.2017 passed in MVC No.1117/2013 by the I Additional Senior Civil Judge and MACT, Mandya, is modified to the extent of holding that the claimant shall be entitled to a total compensation of `4,26,600/- together with interest at 7% p.a., from the date of petition till date of payment;

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iv)	It is further ordered that the insurer (appellant in
	the above appeals and respondent No.2 in MVC
	Nos.5893/2013 and MVC No.1117/2013) shall be
	liable to pay the compensation amount together
	with accrued interest and recover the same from
	the owner of the vehicle (respondent No.4 in MFA
	No.7857/2017/respondent No.1 in MVC
	No.5893/2013; respondent No.2 in MFA
	No.2072/2018/ respondent No.1 in MVC
	No.1117/2013);

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v) The apportionment and release of compensation shall be in terms of the judgments and awards of the Tribunal;

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vi) The amount deposited by the appellant in both the appeals together with the records be transmitted to the Tribunal;

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vii) After deducting the amount deposited by the insurer, if the insurer is required to deposit any further amount towards the compensation awarded, together with accrued interest, the same shall be deposited within six weeks. In the event of any

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