Karnataka High Court
Smt Puttamadamma vs Syed Zaheer @ on 7 December, 2023
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MFA No. 5745/2016
C/W MFA No. 4811/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE K. V. ARAVIND
MISCELLANEOUS FIRST APPEAL No. 5745/2016 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL No. 4811/2016
IN MFA No.5745/2016
BETWEEN:
1. SYED ZAHEER
@ SAYYUED JAHIRUDDIN BOKHARI,
S/O SYED MIYA @ SAHEB MIYA BOKHARI,
AGED 43 YEARS,
R/AT # 1287/17/B,
Digitally signed JEEVANPOUR MOHALLA,
by PRABHU CHANNAPATNA,
KUMARA NAIKA
RAMANAGARAM DISTRICT - 571501.
Location: High
Court of ...APPELLANT
Karnataka
(BY SRI SRIDHAR D. S., ADVOCATE)
AND:
1. SMT. PUTTAMADAMMA,
W/O SRI PUTTASWAMY,
MAJOR,
PROP. OF M/S JATHIN MOTOR SERVICE,
R/AT No.369/C, V. CROSS,
LAKSHMI ROAD,
SHANTHINAGAR,
BANGALORE - 560027.
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MFA No. 5745/2016
C/W MFA No. 4811/2016
2. M/S ICICI LOMBARD GEN. INSURANCE CO. LTD.,
NO 89, 2ND FLOOR,
S. V. R. COMPLEX,
HOSUR MAIN ROAD,
BENGALURU - 560068
REPRESENTED BY ITS MANAGER
...RESPONDENTS
(BY SRI PUTHIGE R. RAMESH, SENIOR ADVOCATE FOR
SMT. LAKSHMI S. HOLLA, ADVOCATE FOR R1;
SRI S. KRISHNA KISHORE, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 3.5.2016 PASSED IN MVC NO.4119/2013 ON THE FILE OF
THE MEMBER, MACT, 16TH ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.4811/2016
BETWEEN:
SMT. PUTTAMADAMMA,
AGED ABOUT 65 YEARS,
W/O PUTTASWAMY,
PROP: JATHIN MOTOR SERVICE,
NO. 369C, 5TH CROSS,
LAKSHMI ROAD, SHANTHINAGARA,
BANGALORE - 560 027.
...APPELLANT
(BY SRI PUTHIGE R. RAMESH, SENIOR ADVOCATE FOR
SMT. LAKSHMI S. HOLLA, ADVOCATE)
AND:
1. SYED ZAHEER @
SAYYED JAHIRUDDIN BOKHARI,
AGED ABOUT 43 YEARS,
S/O SYED MIYA @ SAHEB MIYA BOKHARI,
No. 1287/17/B,
JEEVAN POUR MOHALLA,
CHENNAPATTANA,
RAMANAGARA DISTRICT - 562 138.
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MFA No. 5745/2016
C/W MFA No. 4811/2016
2. ICICI LOMBARD GENERAL INS. CO. LTD.,
No. 89, 2ND FLOOR, SVR COMPLEX,
HOSURU MAIN ROAD,
MADIVALA,
BENGALURU - 560 068.
...RESPONDENTS
(BY SRI SRIDHAR D. S., ADVOCATE FOR R1;
SRI S. KRISHNA KISHORE, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 03.05.2016 PASSED IN MVC NO.4119/13 ON THE FILE OF
THE MEMBER, MACT, 16TH ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, BENGALURU, AWARDING COMPENSATION OF
RS.2,87,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF PAYMENT.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
DICTATION THIS DAY K.S. MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
Challenging the judgment and award in MVC
No.4119/2013, the claimant has preferred MFA No.5745/2016
and the owner of the offending vehicle has preferred MFA
No.4811/2016.
2. Syed Zaheer - appellant in MFA No.5745/2016 was
the claimant and respondent Nos.1 and 2 in the said case were
respondent Nos.1 and 2 in MVC No.4119/2013 on the file of
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XVI Additional Judge, Court of Small Causes and MACT,
Bengaluru.
3. For the purpose of convenience, the parties are
referred to henceforth according to their ranks before the
Tribunal.
4. On 15.06.2013 at 9.00 p.m., when the claimant
was traveling in bus bearing No.KA-11-8582 near
Chamundeshwari Textiles Factory, Vinayakanagar within the
limits of Ramanagar Traffic Police Station, while crossing the
humps, the claimant was thrown from his seat and dashed
against the steel bar of the door of the bus and suffered
injuries. Regarding the accident, on the complaint of one
Sayed Nadeem, Ramanagar Traffic Police registered FIR as per
Ex.P1 in Crime No.94/2013 against the bus driver. On
investigation, the said police filed charge sheet as per Ex.P2
against the driver of the bus for the offences punishable under
Sections 279, 338 of the Indian Penal Code, 1860 (for short
'IPC'). It was alleged that the driver of the bus drove the same
in rash and negligent manner and caused accident leading to
grievous injuries to the claimant. At the relevant time,
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respondent No.1 was registered owner and respondent No.2
was the insurer of the offending bus.
Claimant filed MVC No.4119/2013 against the
respondents claiming compensation of Rs.25 lakhs alleging that
the accident occurred due to the actionable negligence on the
part of the driver of the bus. He further claimed that due to
the accident, he suffered grievous injuries and consequential
permanent physical disability, thereby he lost his earning
capacity. He claimed that the respondents are liable to
compensate the damages.
5. Respondent No.1 did not contest the matter before
the Tribunal. Respondent No.2 alone contested the matter
denying the actionable negligence on the part of the driver of
the bus, age, occupation, income of the claimant, injuries
suffered by him and his permanent physical disability.
Respondent No.2 contended that the vehicle was being
operated without valid permit and thereby there was breach of
policy condition therefore, it was not liable to indemnify the
damages.
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6. To substantiate his claim, the claimant got himself
examined as PW.1 and examined PW.2 - the Medical Record
Technician and the Doctor who treated him as PW.3. On behalf
of claimant, Exs.P1 to P15 were marked. Respondent No.1 did
not lead any evidence. Respondent No.2 examined it's legal
manager as RW.1. The concerned RTO was examined as RW.2
to substantiate his claim that vehicle was being operated
without route permit. On behalf of respondent No.2, Exs.R1 to
R6 were marked.
7. The Tribunal on hearing the parties, relying on the
claimant's evidence and the police records held that the
accident occurred due to the actionable negligence on the part
of the driver of the bus bearing No.KA-11-8582. The Tribunal
relying on the evidence of PW.1 - the claimant and PW.3 - the
Doctor, assessed the permanent physical disability of the
claimant at 8% to the whole body. Based on Ex.P7 - Voter ID
considered his age as 43 years, applied 14 multiplier and
assessed the income of the claimant notionally at Rs.7,000/-
p.m. The Tribunal awarded a sum of Rs.94,080/- on the head
of loss of future income. The Tribunal in all, awarded the
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compensation at Rs.2,86,080/- on different heads as per the
table below:
1. Pain and sufferings Rs. 50,000/-
2. Medical Expenses Rs. 6,000/-
3. Nourishment, conveyance Rs. 15,000/-
and attendant charges
4. Loss of income during laid Rs. 21,000/-
up period
5. Loss of future income Rs. 94,080/-
(84000 x14x8%)
6. Disability Rs. 50,000/-
7. Loss of amenities Rs. 50,000/-
Total Rs.2,86,080/-
Rounded off Rs.2,87,000/-
8. The Tribunal relying on the evidence of RW.1 and
RW.2 and Exs.R1 to R6 held that the route permit to the bus in
question was from T. Narasipura to Bengaluru, but respondent
No.1 operated the same on Ramanagar route. It was held that
at the time of the accident there was no permit for the bus-in-
question to operate at Ramanagar and thereby there was
breach of policy condition, therefore insurer is not liable to
indemnify the damages. Thus, the Tribunal fastened the
liability to respondent No.1 - Registered owner and dismissed
the claim petition against the respondent No.2 - insurer.
9. The claimant has challenged the said award
questioning the adequacy of the compensation and exoneration
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of the insurer. The registered owner has challenged the award
questioning the exoneration of the insurer.
Submissions of Sri. D.S.Sridhar, learned counsel for
the claimant:
10. Though the Doctor - PW.3 assessed the permanent
physical disability of the claimant at 14% to the whole body,
the Tribunal without any justifiable cause, reduced the same to
8%, which is unsustainable. The income of the claimant
assessed by the Tribunal is on the lower side. The
compensation awarded on the head of pain and suffering,
medical expenses, loss of income during laid-up period and all
other heads, is on lower side. The trial Court's findings that at
the time of accident, the vehicle was operated without route
permit and exoneration of the insurer are not sustainable.
Submissions of Sri. Puthige R. Ramesh, learned
Senior counsel for Smt. Lakshmi S. Holla, advocate on
record for respondent No.1/registered owner:
11. Respondent No.2 did not dispute that vehicle was
covered under the valid policy at the time of accident. It was
also not disputed that the vehicle had a permit as per Exs.R2
and R3. According to respondent No.2, the driver of the bus
only deviated from stipulated route. That does not amount to
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no permit at all. At the most, that amounts to deviation of the
route permit. Under such circumstances, the defence under
Section 149(2)(a)(i)(a) of the Motor Vehicles Act, 1988
(hereinafter referred to as 'the MV Act' for short) is not
available in the insurer. The defence under the said provision
is available only in the cases, where the vehicle was not
covered by the permit or if the vehicle was used for the
purpose other than the one permitted. Therefore, the Tribunal
committed error in exonerating the insurer.
12. In support of his submissions, he relied on the
judgment in ORIENTAL INSURANCE COMPANY LIMITED
Vs. K.C. PAPANNA1.
Submissions of Sri. S. Krishna Kishore, learned
counsel for the Insurer:
13. Though there was no dispute with regard to
coverage of the vehicle by the policy, Ex.R1 that itself does not
entail the liability on the insurer. The insured is bound by the
conditions of the policy. In Ex.R1 - the policy, the limitation
clause clearly says that the policy covers risk which occurs
within the permit area. Since the vehicle was operated in
MFA NO.8742 OF 2008 (MV) DD: 09.10.2012
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violation of permit conditions and there was also no permit to
operate in Ramanagar town, there is a clear breach of policy
conditions and the provisions of Section 66 of the MV Act.
Respondent No.1/owner neither filed his statement of
objections nor led any evidence nor cross-examined any of the
witnesses. The trial Court rightly exonerated the insurer in
view of the aforesaid facts and circumstances, which does not
warrant any interference.
14. In support of his submissions, he relied on the
following judgments:
i) National Insurance Co. Ltd., Vs. Challa
Upendra Rao & Others2,
ii) Rani and others Vs. National Insurance Co.
Ltd.,3
iii) Sri Venkatesh Vs. IFFCO TOKIO General
Insurance Co. Ltd.,4 and 3 others,
15. On consideration of the submissions of all the
parties and on examination of the records, the questions that
arise for consideration are:
2004 AIR SCW 5301
(2018)8 SCC 492
MFA No.967/2017 (MV-D) DD 22.04.2022.
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1. Whether the quantum of compensation
awarded by the trial Court is just one?
2. Whether the finding of the Tribunal that
insurer is not liable to indemnify the insured
damages is sustainable?
ANALYSIS
Reg. Quantum:
16. The occurrence of the accident is not in dispute. So
far as actionable negligence on the part of the driver of the
bus, respondent No.1 - the registered owner did not contest the
matter nor examined the driver of the bus. Admittedly, the
driver of the bus was charge-sheeted as per Ex.P2 for rash and
negligent driving and causing grievous injuries to the victim.
The trial Court relying on the evidence of insurer, the claimant,
PW.2 and the police records as per Exs.P1 to P6 rightly held
that the accident occurred due to actionable negligence on the
part of the driver of the bus.
17. The evidence of PW.1 and the Doctor - PW.3
coupled with Ex.P6 - wound certificate, Ex.P8 - OPD records,
Ex.P11- Accident Register, Ex.P12 - OP record, Ex.P13 - IP
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Record, P14 - OP Records, and Ex.P15 - X-rays show that the
claimant had suffered following injuries.
i) Epistaxis from both nostrils.
ii) Passing blood coloured urine.
iii) Pain in lower back.
iv) Intraperitoneal bladder rupture.
18. The aforesaid evidence further shows that the
claimant was admitted in Victoria Hospital from 16.06.2013 till
22.06.2013 and he was treated as in-patient for a period of
seven days. The Doctor, who examined and treated the
claimant assessed the permanent physical disability of the
claimant at 14% to the whole body. In his cross-examination,
he denied the suggestion that the injuries suffered by the
claimant do not cause any functional disability. He deposed
that bladder of the petitioner was compressed and ruptured
and the muscular layer of the petitioner was damaged. He
further deposed that he has assessed the disability based on
the AUA/EUA guidelines issued by the Government of India.
His evidence regarding the percentage of permanent physical
disability was not impeached in the evidence. However, the
Tribunal without assigning any cogent reasons, on its own
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reduced the permanent physical disability to the whole body at
8%. No other expert was examined or no other medical
authority was cited for such reduction of permanent physical
disability. Therefore, such reduction of permanent physical
disability against the evidence of PW.3 is erroneous.
19. Though the petitioner claims that he was aged 40
years, Ex.P7 the voter ID Card produced by the claimant
himself shows his age as on 01.01.1995 as 25 years.
Therefore, the Tribunal rightly assessed his age as 43 years as
on the date of the accident.
20. Though the claimant contended that he was doing
cloth business and earning Rs.10,000/- p.m., actual proof of
such occupation or income was not furnished. Therefore, it was
inevitable for the Tribunal to assess the income notionally. The
accident has taken place in the year 2013. Having regard to
the prevailing wage rates, age, occupation of the claimant and
cost of living, the Tribunal should have assessed his notional
income reasonably at Rs.8,000/- p.m. For the age of 43
years, the applicable multiplier is 14. Therefore, the
compensation payable on the head of loss of future earnings
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comes to Rs.1,88,160/- (Rs.8,000*14%= Rs.1,120/-
*12*14=Rs.1,88,160/-).
21. Having regard to the nature of injuries and the
evidence of PWs.1 and 3, the Tribunal has rightly considered
the laid-up period as three months. Therefore, the
compensation payable on the head of loss of income during
laid-up period comes to Rs.24,000/- (Rs.8000*3).
22. Compensation on the head of medical expenses is
awarded based on the medical records produced. Therefore,
that does not warrant any interference of this Court.
23. The claimant was treated in Victoria Hospital for a
period of seven days as in-patient. Therefore, the
compensation awarded on the head of nourishment,
conveyance and attendant charges is just one that does not
warrant any interference.
24. Having regard to the nature of the injuries and
medical evidence, the compensation awarded on the head of
pain and sufferings is just one and does not warrant any
interference of this Court. Since the compensation was
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awarded on the head of pain and sufferings, loss of income
during laid-up period and loss of future income, the
compensation on the head of disability again is not warranted.
25. Having regard to the nature of injuries, the medical
evidence and evidence of the claimant, compensation awarded
on the head of loss of amenities i.e. Rs.50,000/- also does not
warrant any interference. Therefore, the just compensation
payable to the petitioner is as follows:
Sl. Particulars Compensation in
No. Amount (Rs.)
1. Loss of income during laid Rs. 24,000/-
up period
2. Medical expenses Rs. 6,000/-
3. Nourishment, conveyance Rs. 15,000/-
and attendant charges
4. Pain and sufferings Rs. 50,000/-
5. Loss of amenities Rs. 50,000/-
6. Loss of future income Rs. 1,88,160/-
Total Rs.3,33,160/-
Minus awarded by Tribunal Rs. 2,87,000/-
ENHANCEMENT Rs. 46,160/-
Reg. liability:
26. There was no dispute that as on the date of the
accident, the offending bus was covered under the policy
Ex.R1. But the insurer disputed its liability on the ground that
the respondent No.1 operated the bus in Ramanagar town,
contrary to the route permit. Insurer contended that since
there was no permit to operate in Ramanagar town, there was
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breach of policy condition and therefore, it was not liable to
indemnify the damages. To substantiate its contention, the
insurer examined RW.2 - The RTO, Mandya. The evidence of
RW.2 and Ex.R4 - copy of the permit, Ex.R5 - route map and
Ex.R6 - B extract show that, the time-table in the route as per
the permit was as follows:
"T. NARASIPURA D: 6-40AM A: 9-20PM
TALAKADU A: 7-35AM D: 8-15PM
D: 7-40AM A: 8-10PM
MALAVALLY A: 8-30A.M. D: 7-15PM
D: 8-40AM A: 7-00PM
MADDUR A: 9-25AM D: 6-15PM
D: 9-30AM A: 5-55PM
KESTUR A/D 10-00AM A/D 5-25PM
HULIYUR DURGA A: 10-35AM D:4-55PM
D: 10-45AM A: 4-50PM
MAGADI A: 11-45AM D:3-48PM
D: 11-50AM A: 3-40PM
BANGALORE A: 1 - 30PM D: 2-15PM"
27. The above chart goes to show the respondent No.1
had no permit to operate the bus in Ramanagar town.
Therefore, it is clear that the vehicle was operated at a place
where it had no permit. In fact, respondent No.1 - RC owner of
the bus did not contest the petition at all. She did not
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controvert the evidence of RW.2. Even in this appeal it is not
the contention of respondent No.1 that there was permit to
operate in Ramanagar, but it was contended that if there is
permit to operate and if the vehicle is operated in deviation of
said permit in some other area that does not amount to no
permit. Therefore, it is contended that the insurer is not
exonerated of its liability. It was also contended that the same
does not amount to fundamental breach of the policy
conditions.
In Ex.R1, the clause 'Limitations as to use' reads as
follows:
"1. The policy covers use only under a
permit within the meaning of Motor Vehicles Act,
1988 or such a carriage falling under Sub Section (3)
of Section 66 of the Motor Vehicles Act, 1988. The
policy does not cover
(1) Use for organised racing, pace making,
reliability trails or speed testing.
(2) Use whilst drawing a trailer except the
towing (other than for reward) of any one disabled
mechanically propelled vehicle."
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28. It was contended that since the vehicle is operated
under a permit, that does not amount to the breach of policy
conditions. The defence available to the insurer are
enumerated under Section 149(2)(a & b). The provisions
relevant for the purpose of this case are Section 149 (2)(a)(i-
a)(i-c) and (ii), which reads as follows:
"149 (2) No sum shall be payable by an insurer under sub-section (1)
in respect of any judgment or award unless, before the
commencement of the proceedings in which the judgment or award is
given the insurer had notice through the Court or, as the case may be,
the Claims Tribunal of the bringing of the proceedings, or in respect of
such judgment or award so long as execution is stayed thereon
pending an appeal; and an insurer to whom notice of the bringing of
any such proceedings is so given shall be entitled to be made a party
thereto and to defend the action on any of the following grounds,
namely:--
(a) that there has been a breach of a specified
condition of the policy, being one of the following
conditions, namely:--
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle
is on the date of the contract of insurance
a vehicle not covered by a permit to ply
for hire or reward, or
(c) for a purpose not allowed by the
permit under which the vehicle is used,
where the vehicle is a transport vehicle,
or
(ii) a condition excluding driving by a named
person or persons or by any person who is not
duly licensed, or by any person who has been
disqualified for holding or obtaining a driving
licence during the period of disqualification; or"
29. Section 149(2)(a)(i)(a) of the Act says that using
the vehicle for hire or reward not covered by the permit to ply
for hire or reward amounts to breach of policy conditions.
Section 66 of the MV Act describes the necessity for permits,
which reads as follows:
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"66. Necessity for permits:- (1) No owner of a motor vehicle
shall use or permit the use of the vehicle as a transport vehicle in
any public place whether or not such vehicle is actually carrying any
passengers or goods save in accordance with the conditions of a
permit granted or countersigned by a Regional or State Transport
Authority or any prescribed authority authorising him the use of the
vehicle in that place in the manner in which the vehicle is being
used:
Provided that a stage carriage permit shall, subject to any
conditions that may be specified in the permit, authorise the use of
the vehicle as a contract carriage:
Provided further that a stage carriage permit may, subject to
any conditions that may be specified in the permit, authorise the use
of the vehicle as a goods carriage either when carrying passengers
or not:
Provided also that a goods carriage permit shall, subject to any
conditions that may be specified in the permit, authorise the holder
use of the vehicle for the carriage of goods for or in connection with
a trade or business carried on by him.
[Provided also that where a transport vehicle has been issued
any permit or permits, as well as a licence under this Act, such
vehicle may be used either under the permit, or permits, so issued to
it, or under such licence, at the discretion of the vehicle owner.]
(2) The holder of a goods carriage permit may use the vehicle,
for the drawing of any public or semitrailer not owned by him, subject
to such conditions as may be prescribed.
[Provided that the holder of a permit of any articulated vehicle
may use the prime-mover of that articulated vehicle for any other
semi-trailor.]
(3) The provisions of sub-section (1) shall not apply--
(a) to any transport vehicle owned by the Central
Government or a State Government and used for
Government purposes unconnected with any
commercial enterprise;
(b) to any transport vehicle owned by a local authority or
by a person acting under contract with a local authority
and used solely for road cleansing, road watering or
conservancy purposes;
(c) to any transport vehicle used solely for police, fire
brigade or ambulance purposes;
(d) to any transport vehicle used solely for the
conveyance of corpses and the mourners
accompanying the corpses;
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(e) to any transport vehicle used for towing a disabled
vehicle or for removing goods from a disabled vehicle
to a place of safety;
(f) to any transport vehicle used for any other public
purpose as may be prescribed by the State
Government in this behalf;
(g) to any transport vehicle used by a person who
manufactures or deals in motor vehicles or builds
bodies for attachment to chassis, solely for such
purposes and in accordance with such conditions as
the Central Government may, by notification in the
Official Gazette, specify in this behalf;
(h) [*****]
(i) to any goods vehicle, the gross vehicle weight of which
does not exceed 3,000 kilograms;
(j) subject to such conditions as the Central Government
may, by notification in the Official Gazette, specify, to
any transport vehicle purchased in one State and
proceeding to a place, situated in that State or in any
other State, without carrying any passenger or goods;
(k) to any transport vehicle which has been temporarily
registered under section 43 while proceeding empty to
any place for the purpose of registration of the vehicle;
(l) [******]
(m) to any transport vehicle which, owing to flood,
earthquake or any other natural calamity, obstruction
on road, or unforeseen circumstances is required to be
diverted through any other route, whether within or
outside the State, with a view to enabling it to reach its
destination;
(n) to any transport vehicle used for such purposes as the
Central or State Government may, by order, specify;
(o) to any transport vehicle which is subject to a hire-
purchase, lease or hypothecation agreement and
which owing to the default of the owner has been
taken possession of by or on behalf of, the person with
whom the owner has entered into such agreement, to
enable such motor vehicle to reach its destination; or
(p) to any transport vehicle while proceeding empty to any
place for purpose of repair.
[(q) to any transport vehicle having been issued a licence
under a scheme, under sub-section (3) of section 67
or sub-section (1) of section 88A, or plying under such
orders as may be issued by the Central Government
or by the State Government.]
(4) Subject to the provisions of sub-section (3), sub-section (1)
shall if the State Government by rule made under section 96 so
prescribes, apply to any motor vehicle adapted to carry more than
nine persons excluding the driver."
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The reading of the above provisions shows that the owner
of the transport vehicle cannot operate the said vehicle in any
public place except on the prescribed/stipulated route.
30. In this context, it is also necessary to refer to
Section 72 of the Act, which deals with grant of stage carriage
permit. Admittedly, in this case the vehicle-in-question was
stage carriage permit.
31. Section 72(1) of the Act says that the Regional
Transport Authority may on the application, grant a stage
carriage permit in accordance with the application or with the
modification etc.. The proviso to the said Section states that no
such permit shall be granted in respect of any route or area not
specified in the application.
32. Section 72(2) of the Act authorizes the Regional
Transport Authority to stipulate the conditions of permit.
33. Section 72(2)(i) of the Act states that the vehicles
shall be used only in a specified area or on a specified route/s.
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34. Section 72(2)(vi) of the Act states that the
passengers or goods shall not be picked up or dropped down
except at specified points within municipal limits and such other
areas as may be prescribed.
35. Section 72(2)(xxi) of the Act states that condition
of the permit shall not be departed from, save with the
approval of the said authority.
36. In the present case, the permit was issued to
operate as per the aforementioned route and time-table. The
accident has taken place on 15.06.2013 at 9.00 p.m. within
Ramanagar Town limits. The evidence of RW.2 and Ex.R4 to
R6 more particularly, Ex.R5 show that the respondent No.1 had
to start the operation of the bus at 6.40 a.m. from T.
Narasipura and reach Bengaluru by 1.30 p.m. via Talakadu-
Malavalli-Madduru-Kestur-Huliyurdurga-Magadi. The return trip
had to start at 2.15 p.m. from Bengaluru and end at T.
Narasipura at 9.20 p.m. Even in the return trip, Ramanagar
town is not the stipulated route. Therefore, there was clear
violation of route map as well as time-table. That amounts to
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fundamental breach of permit and fundamental breach of the
policy condition.
37. Under such circumstance, the contention that it was
a case of no permit, but it is only a case of deviation of the
permit cannot be accepted. Respondent No.1 had no permit at
the given place and time to operate the vehicle therefore, that
amounts to operating without permit at the place and time
where risk occurred. In the similar circumstances, the Hon'ble
Supreme Court in the case of Challa Upendra Rao & Others
and Rani and others's case referred to supra held that
operating the vehicle in place where there was no route permit
amounts to breach of policy condition and insurer is not liable
to pay the compensation. However, in those cases relying on
the judgments in the case of Pappu and others vs.
Vinodkumar Lamba and another5, it was held that insurer
has to pay the compensation and recover from the owner.
Pappu and others case referred to supra in-turn was referred
relying on the judgment of the Hon'ble Supreme Court in the
(2018) 3 SCC 208
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case of National Insurance Company Ltd. Vs. Swaran
Singh and Others6 .
38. The Hon'ble Supreme Court relying on proviso to
Section 149(4) evolved the principle of pay and recover.
Section 149(4) says that, if the insurer pays any sum towards
discharge of liability of the insured under a policy, even if there
is breach of condition, then it is entitled to recover from the
insured. It was observed that since the MV Act is social welfare
legislation, to prevent the arduous efforts of the victim in
recovering the compensation from the insurer, the insurer has
to pay the compensation to the victim and recover it from the
insured.
39. In the aforesaid facts and circumstances, the
contention that insurer is entitled to take such defence under
Section 149(2) of the MV Act only if there is change in the
purpose of use of the vehicle qua to the permit, cannot be
countenanced.
(2004) 3 SCC 297
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NC: 2023:KHC:44432-DB
40. Similarly, the attempt made by learned Senior
counsel to distinguish the judgments in Challa Upendra Rao
& Others and Rani and other cases referred to supra on the
ground that the inter-state permit conditions were violated,
thus the said judgments are not applicable and carries no
merit.
41. In the light of the aforesaid judgments of Supreme
Court, the other judgments of this Court and Supreme Court
relied on by Shri. Puthige R. Ramesh, learned Senior counsel
cannot be justifiably applied to the facts of the present case.
Therefore, primary liability of payment of compensation is on
respondent No.1 - the registered owner of the vehicle.
42. In view of proviso of Section 149(2) of the MV Act
and the judgments to the Hon'ble Supreme Court in Challa
Upendra Rao & Others, Rani and others, Pappu and
others and Swaran Singh and Others cases referred to
supra, the insurer has to pay the compensation to the claimant
and recover the same from respondent No.1 in execution of the
decree in this case.
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NC: 2023:KHC:44432-DB
43. Relying on the judgment in the case of Challa
Upendra Rao referred to supra, learned counsel for the insurer
submits that even after insurer depositing the award amount,
claimant shall not be permitted to withdraw the same until
respondent No.1-insured furnishes security for payment of the
said amount.
44. A reading of paragraph 13 of the said judgment
does not indicate that such proposition was laid down as a
ratio. However, consistently, in cases of Pappu, Swaran
Singh and Rani referred to supra, the Hon'ble Supreme Court
held that the insurer shall pay the compensation to the
claimants and recover the same from the insured. Acceptance
of submission that withdrawal shall be subject to insured
depositing the amount defeats the principle of pay and recover
laid down in the judgments in Pappu, Swaran Singh and
Rani 's cases referred to supra. Therefore, such condition for
withdrawal of the amount by the claimant cannot be imposed.
However, it is open to the insurer/respondent No.2 to seek
attachment of movable and immovable properties of the
insured. Hence, the following.
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NC: 2023:KHC:44432-DB
Order
i) MFA No.4811/2016 is dismissed with costs.
ii) MFA No.5745/2016 is allowed in-part.
iii) Respondent No.1 is liable to pay the enhanced
compensation of Rs.46,160/- with interest thereon
at 6% per annum from the date of petition till its
realization.
iv) Respondent No.2-insurer shall deposit the award
amount before the Tribunal on adjusting the
amount deposited, if any, by respondent No.1
before the Tribunal within four weeks from the date
of receipt of copy of this order.
v) Respondent No.1 shall pay the amount deposited by
the insurer forthwith and in case of default,
respondent No.2-insurer shall recover the same in
execution of this decree.
vi) Transmit the amount in deposit, if any, and TCRs to
the Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
Pg. No. 1 to 24 - VBS
Pg. No.25 to 26 - MV
