Karnataka High Court
Reliance General Insurance ... vs B Mohammed Fazil @ Fazil on 20 June, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20th DAY OF JUNE 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.6577/2010 (MV)
C/W
M.F.A NO.9022/2010 (MV)
IN MFA NO.6577/2010 (MV)
BETWEEN:
RELIANCE GENERAL INSURANCE
COMPANY LIMITED,
REGIONAL OFFICE:NO.28,
5TH FLOOR,
CENTENARY BUILDING, M.G.ROAD,
BANGALORE-560001.
BY DEPUTY MANAGER(CLAIMS)
... APPELLANT
(BY SRI H.S. LINGARAJ, ADVOCATE
APPEARING THROUGH V/C)
AND:
1. B. MOHAMMED FAZIL & FAZIL,
AGED ABOUT 38 YEARS,
S/O B. MOHAMMED ZAMEER AHAMED,
OCC:BUSINESS,
R/A NO.1, BROADWAY CROSS,
NALA CROSS, 3RD STREET,
SHIVAJINAGAR, BANGALORE.
2. TIPPU ASIF, MAJOR,
S/O TIPPU NOOR,
R/A NO.54, BAZAAR STREET,
NEELASANDRA MAIN ROAD,
2
SHANTHINAGAR,
BANGALORE-560021.
... RESPONDENTS
(BY SRI SURESH M. LATUR, ADVOCATE FOR R1
APPEARING THROUGH V/C
R2-SERVED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:02.03.2020 PASSED IN MVC NO.7143/2008 ON
THE FILE OF THE XXII ADDITIONAL SMALL CAUSE JUDGE,
MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE,
AWARDING A COMPENSATION OF RS.1,47,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT AND ETC.,
IN MFA NO. 9022/2010 (MV)
BETWEEN
SRI. B. MOHAMMED FAZIL @ FAZIL,
S/O. B. MOHAMMED ZAMEER AHAMED,
AGE: 38 YEARS, OCC:NIL,
R/O No.1, BROADWAY ROAD,
NALA CROSS, 3RD STREET,
SHIVAJINAGAR, BANGALORE
... APPELLANT
(BY SRI. SURESH M. LATUR, ADVOCATE
APPEARING THROUGH V/C)
AND:
1. SRI. TIPPU ASIF,
S/O TIPPU NOOR,
R/O NO.54, BAZAR STREET,
NEELASANDRA MAIN ROAD,
SHANTHI NAGAR,
BANGALORE-27.
3
2. THE MANAGER,
RELIANCE GENERAL INSURANCE
CO. LTD.,
NO.28/5, SENTANARY BUILDING,
EAST WING, M.G. ROAD,
BANGALORE-1.
... RESPONDENTS
(BY R1-NOTICE DISPENSED WITH
SRI. H.S. LINGARAJ, ADVOCATE FOR R2
APPEARING THROUGH V/C)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:02.03.2020 PASSED IN MVC NO.7143/2008 ON
THE FILE OF THE XXII ADDITIONAL SMALL CAUSE JUDGE,
MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,
THESE MFAs HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR "PRONOUNCEMENT OF
JUDGMENT" THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
MFA No.6577/2010 is filed by the appellant -
insurance company under Section-173(1) of the Motor
Vehicles Act, 1988, (hereinafter referred to as 'MV Act' for
brevity), challenging the judgment and award dated
02.03.2020, passed in MVC No.7143/2008 on the file of
the XXII Additional Small Cause Judge, Member, MACT,
Court Of Small Causes, Bangalore (hereinafter referred to
as 'the Tribunal' for brevity).
2. MFA No.9022/2010, is filed by the appellant-
claimant, challenging the judgment and award dated
02.03.2020 passed in MVC No.7143/2008, on the file of
the XXII Additional Small Cause Judge, Member, MACT,
Bangalore, seeking enhancement.
Brief facts:
3. That on 26.01.2008, at about 3.15 p.m., he
was traveling in a Lorry bearing registration No.KA-01-A-
106, with goods i.e., load of Goats and Sheep from
Ananthapura towards Bengaluru. At that time, on
Bengaluru-Chikkaballapur Road, the driver of the said
vehicle drove the same in high speed and in rash and
negligent manner and lost control over the vehicle due to
which the lorry turtled on left side of the road, as a result
of which, he sustained grievous injuries and the Goats and
Sheeps in all 175 numbers died. The claimant was shifted
to Government Hospital, Chikkaballapur, wherein only first
aid was given and later shifted to Santhosh Hospital,
Bangalore for further treatment.
4. Hence, a claim petition was filed by the
appellant under Section-166 of the M.V. Act, claiming
compensation for the injuries sustained in the accident.
The Tribunal on appreciating the materials on record,
allowed the petition in part, and awarded a compensation
of Rs.1,47,000/-, along with interest at 6% per annum
from the date of petition till the date of deposit. The
Tribunal held respondent Nos.1 and 2 therein, jointly and
severally liable to pay the compensation.
5. Heard arguments of the learned counsel for the
parties and perused the materials on record.
6. The learned counsel appearing for the
appellant-insurance company submitted that the claimant
was traveling as an unauthorized passenger in the goods
vehicle. Therefore, there is violation of the condition policy.
Hence, the appellant insurance company is not liable to
pay the compensation. Further, submitted that the driver
of the lorry was having Driving License only to drive Light
Motor Vehicles but the driver of Lorry had not possessed
the Driving License for driving the Heavy Goods Vehicle
Lorry (HGV), in which goats were being carried. Therefore,
submitted that the driver was not holding valid and
effective Driving License for driving the Lorry and also it
amounts to violation of condition of the policy. Therefore,
the insurance company is not liable to pay the
compensation. Therefore, prays for setting-aside the
judgment and award passed by the Tribunal.
7. Further, argued that the Lorry in question was
over-loaded with more than 170 goats/sheep, which were
being transported. Therefore, submitted that upon
considering the quantity of goats/sheep that were being
transported which are more than 170 in numbers, it proves
the fact that the lorry was Heavy Goods Vehicle. But the
driver was holding Driving License for driving Light Motor
Vehicle only. Therefore, submitted that the insurance
company is not liable to pay the compensation. Further,
submitted that there is violation of Rules-74 and 78 of
Karnataka Motor Vehicles Rules (hereinafter referred to as
'Karnataka MV Rules' for short). Therefore, prays for
setting-aside the impugned judgment and award passed
by the Tribunal.
8. On the other hand, learned counsel appearing
for the appellant-claimant in MFA No.9022/2010,
submitted that the claimant was not traveling as an
unauthorized passenger, but was traveling along with the
goods which is permissible. Hence, he is not gratuitous
passenger. Therefore, the risk of the coolie traveling along
with the goods is also covered. Hence, the insurance
company is liable to pay the compensation. Further,
submitted that the amount of compensation awarded
under various heads are not sufficient. Therefore, submits
the same needs enhancement.
9. Further, submitted that the Tribunal has erred
in holding the disability of the claimant at 8% as against
doctor evidence that the claimant was suffering from
41.16%, to Right Upper Limb, which is about 13.72% to
the Whole-body. Therefore, without having any
justification in deduction of the percentage of the
disability, the Tribunal has held 8% disability. Therefore,
prayed for enhancement of compensation. Further,
submitted that the driver of the lorry was holding valid and
effective Driving License to drive the Lorry. Therefore,
there is no infraction. Hence, the insurance company is
liable to pay the compensation.
10. Considering the submission of the learned
counsel for the appellant - insurance company that the
driver of the lorry was not holding effective Driving License
and the nature and capacity of the lorry is considered. This
Court comes to the conclusion that in the absence of any
other evidence on record that the lorry is a Heavy Goods
Vehicle since morethan 170 goats/sheeps were being
transported in the lorry. Exhibit-R2 is the extract of Driving
License, which proves that the driver was holding Driving
License to drive Light Motor Vehicle and Light Goods
Vehicle. Therefore, it is proved that the driver of the
offending lorry was holding Driving License to drive Light
Motor Vehicle and Light Goods Vehicle only but not Heavy
Goods Vehicle. What is the class of vehicle involved in the
accident, there is no record of it but from the statement
Exhibit-P3, it is stated that moredhan 170 goats/sheep
were being transported. Therefore, considering the
sizeable numbers of goats/sheep have been transported, it
is proved that the lorry must have been Heavy Goods
Vehicle. But the driver was holding Driving License to drive
only Light Motor Vehicle and Light Goods Vehicle.
Therefore, it is proved that the driver of the Lorry bearing
No.KA-01-A-106 was not having Driving License to drive
HGV. Therefore, the Insurance company is not liable to pay
the compensation.
11. As per Rule-125E of the Central Motor Vehicles
Rules, 1989 (for short 'Central MV Rules') stipulates
regarding special requirement of motor vehicle
transporting livestocks. Sub-section-2(2) of Section-125E
reads as follows:
"2. Subject to sub-rule (1), the motor vehicles for
carrying animals shall have permanent partitions in
the body of the vehicle so that the animals are
carried individually in each partition where the size of
the partition shall not be less than the following
namely:-
(i) Cows and buffalos=2 sq. mts.
(ii) Horses and mares-2.25 sq. mts.
(iii) Sheep and goat=0.3 sq.mts.
(iv) Pig=0.6 sq. mts;and
(v) Poultry=40 sq.cm."
12. Further, Rule-74 of the Karnataka MV Rules,
stipulates regarding carriage of animals in goods vehicles.
Rules-74(1)(A), reads as follows:
"74. Carriage of animals in goods vehicle. (1)
No cattle shall be carried in a goods vehicle in
a public place unless,-
(A) in the case of goat, sheep, deer or pig,-
(i) a minimum floor space of 0.2 square
metre per head of such cattle is provided
in the vehicles;
(ii) proper arrangements for ventilation are
made; and
(iii) if carried in a double decked goods
vehicle."
13. Therefore, as per the above Rules a partition in
the body of the vehicle was to be made so that the animals
should be carried in each partition, according to the size
and type of the animals carried in the said partition. In the
present case, there is no evidence on record, to state
whether the lorry had a partition or not. Therefore, if
partition is made in the body of the vehicle, then the
number of goats/sheep would have been less in the
offending vehicle. But as per the complaint averments
more than 170 goats/sheep were being transported to
prove the fact, the vehicle in question must have been
Heavy Goods Vehicle. Therefore, as per Exhibit-R2, the
driver of the lorry was holding a Driving License to drive
Light Motor Vehicle and Light Goods Vehicle. But in the
present case, it is proved that the offending lorry is a
Heavy Goods Vehicle. Therefore, the insurance company
primarily is not liable to pay the compensation.
14. So far as other contentions raised by the
insurance company that the claimant was traveling as
gratuitous passenger. Hence, the claimant is not entitled
for compensation is concerned, the evidence on record are
to be appreciated once again. It is to be appreciated that
Exhibit-P2, Complaint and Exhibit-P3 Statement, wherein it
is stated that 175 goats/sheep were being transported in
the lorry and they died in the accident and it is stated that
the claimant was traveling in the lorry along with the
goats/sheep which is highly unbelievable. Further, in the
said complaint and statement i.e., Exhibits-P2 and P3, it is
stated that the claimant was taken to the hospital by one
Tippu Asif and Naseer, who were coming in another lorry.
Therefore, if at all Tippu Asif and Naseer, were traveling in
another lorry then, the complainant would have been
traveling in the lorry in which the owner was traveling. But
it is found that the claimant was traveling in the goods
lorry even as per his own statement, his owner was
coming in another lorry behind the offending lorry.
Therefore, what prevented the claimant to come in the
lorry in which Tippu Asif and Naseer, who is stated to be
the owner of the lorry was coming. Therefore, it proves
that the fact that the claimant was traveling as gratuitous
passenger. Therefore, the insurance company is not liable
to pay the compensation. It is proved that even though the
owner of the lorry was coming behind the offending lorry
then, the claimant would have travelled in the lorry coming
behind the offending lorry, when the lorry in which the
claimant was traveling is loaded with goats/sheeps, which
means the claimant has travelled in the goods vehicle as a
gratuitous passenger. The claimant has not produced any
evidence to show that he has travelled along with his
goods or he is authorized by his owner. Therefore, under
these circumstances, it is proved that the claimant has
traveled as gratuitous passenger. Hence, the insurance
company is not liable to pay the compensation. Therefore,
the Tribunal held both the owner and insurance company
to pay the compensation is not correct, as the first
respondent alone is liable to pay the compensation.
15. The Tribunal has awarded compensation under
various heads as follows:
1 Pain & Suffering : Rs. 30,000.00
2 Medical Expenses : Rs. 10,000.00
3 Loss of earnings during the period of Rs.
: 15,000.00
treatment
4 Conveyance & Nourished food : Rs. 10,000.00
5 Loss of Future Earning : Rs. 72,000.00
6 Loss of Amenities : Rs. 10,000.00
Total Rs. 1,47,000.00
16. Exhibit-P6 is the Wound Certificate, which
shows tat the claimant had sustained the following
injuries:
"Commuted fracture of head x neck of right radius,
Anterior dislocation (RL) elbow."
17. Considering the nature of injuries sustained,
the amount of compensation awarded under the head Pain
And Suffering at Rs.30,000/- is found to be proper and
hence, there is no need to make any enhancement under
these head.
18. The compensation granted at Rs.10,000/-
towards Medical Expenses is as per medical bills
produced at Exhibits-P10 to P15. Therefore, the same is as
per evidence produced before the Court. Therefore, the
same is not needed for enhancement.
19. Further, a compensation of Rs.15,000/- is
awarded under the head 'Loss Of Earning During Laid
Up Period And During Treatment'. The Tribunal has
held the notional income at Rs.5,000/- per month and
accordingly awarded loss of earning during laid up period
for three months, which is as per the chart of Karnataka
State Legal Services Authorities, and hence no interference
is required.
20. Further, a compensation of Rs.10,000/- is
awarded under the head 'Conveyance And Nourishment
And Food'. But considering the nature of injuries
sustained and expenses towards follow up treatments, a
sum of Rs.25,000/- is awarded under the said head, as
against Rs.10,000/- awarded by the Tribunal.
21. Further, the Tribunal has granted a
compensation of Rs.72,000/- towards loss of future
earning by holding the notional income of Rs.5,000/- per
month and 8% as functional disability and adopting
multiplier of '15' as per the judgment of the Hon'ble Apex
Court in the case of Smt.Sarla Verma & Others. Vs.
Delhi Transport Corpn And Another reported in AIR
2009 SC 3104. Hence, the compensation awarded under
the head 'Loss Of Future Earning Capacity' is
appropriate and hence no interference is needed.
22. The Tribunal has awarded a sum of
Rs.10,000/- towards loss of amenities. Considering the
nature of injuries the claimant must have suffered mental,
physical inconvenience, loss of enjoyment in life.
Therefore, under the head 'Loss Of Amenities', a sum of
Rs.30,000/- is awarded.
23. Hence, the appellant is entitled for a total
enhanced compensation, under various heads as follows:
1 Pain & Suffering : Rs. 30,000.00 (Kept in tact)
2 Medical Expenses : Rs. 10,000.00 (Kept in tact)
3 Loss of earnings during the Rs. (Kept in tact)
: 15,000.00
period of treatment
4 Conveyance & Nourished food : Rs. 25,000.00
5 Loss of Future Earning : Rs. 72,000.00 (Kept in tact)
6 Loss of Amenities : Rs. 30,000.00
Total Rs. 1,82,000.00
24. Therefore, the appellant is awarded a total
compensation of Rs.1,82,000/- as against the
compensation awarded by the Tribunal at Rs.1,47,000/-.
Hence, the appellant is entitled for an additional
compensation of Rs.35,000/- (Rs.1,82,000 -
Rs.1,47,000), along with interest at 6% per annum from
the date of filing of the petition till deposit.
25. As held above, the insurance company is not
liable to pay the compensation for violation of condition of
policy as the claimant had traveled in the lorry as
Gratuitous passenger. As per Section-149(2) of the MV Act
(before amendment) the defence raised by the insurance
company is established and an order of 'Pay And Recovery'
can be applied as per Section-149(1) of the MV Act. Also
following the principles laid down by the Hon'ble Supreme
Court in the case of Pappu V. Vinod Kumar Lamba
reported in (2018) 3 SCC 208, and also in the case of
National Insurance Co. Ltd. V. Chellabharatamma
reported in AIR 2004 SCC 4882, and also Full Bench
decision of this Court in the case of New India
Assuranc e Company Limited vs. Yellavva And
Another reported in 2020 ACJ 2560, the
insurance company shall satisfy the compensation
to the claimant at first instance and then recover
the same from the o wner of the offending lorry as
per law.
26. In the result the appeal, is filed by the
insurance company, as well as the claimant are
allowed in part.
27. Accordingly, I proceed to pass the
following:
ORDER
i. MFA No.6577/2010 (MVC No.7143/2008) filed
by the appellant - Insurance Company, is
allowed in part.
ii. MFA No.9022/2010 (MVC No.7143/2008) filed
by the appellant - claimant, is allowed in
part.
iii. The appellant-claimant in MFA No.9022/2010,
is entitled for an additional compensation of
Rs.35,000/- (Rupees Thirty Five Thousand
Only), along with interest at 6% per annum
from the date of filing of the petition till
deposit, in addition to what has been awarded
by the Tribunal.
iv. The insurance company shall satisfy the
compensation amount to the claimant at the
first instance and then recover the same from
the owner of Lorry bearing registration No.KA-
01-A-106.
v. Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court
forthwith without any delay.
vi. No order as to cost.
vii. Draw award accordingly.
Sd/-
JUDGE
JJ
