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2014 DIGILAW 75 (KAR)

New India Assurance Co Ltd. v. B. M. Subramanya

2014-01-23

B.S.INDRAKALA

body2014
JUDGMENT 1. MFA No. 1447/2009 and MFA No. 1448/2009 are preferred against the judgment and award dated 18.09.2008 passed in MVC Nos.2020/2006 and 2021/2006 respectively on the file of FTC-I and Additional MACT, Shimoga. 2. As both these cases are preferred with regard to one and the same accident, these appeals and respective cross objections in MFA.CROB No.95/2009 and MFA.CROB No.94/2009 are taken up together for consideration. 3. The said claim petitions were filed by the respective claimant seeking compensation on account of the injuries said to have been sustained by each of them in the motor vehicle accident which occurred on 08.05.1999 at about 11.45 p.m. wherein the car bearing Registration No.CNZ 2493 was involved. 4. The Tribunal on appreciating the evidence placed on record in both the cases deemed it fit to award a sum of Rs.35,025/- and Rs.72,032/- with interest at the rate of 6% p.a. from the date of petition till realization respectively, holding that the respondent- insurer is liable to indemnify the owner of the vehicle - car which was insured with it. 5. Being aggrieved by the said judgment and award in both the cases, the insurer is in appeal inte ralia contending amongst other grounds that the driver of the car did not possess a valid and effective driving licence to drive the car/LMV. 6. The claimant's who chose to file their respective cross-objections contended that the amount awarded by the Tribunal is inadequate in both the cases and further contends that fixing of the liability on the Insurance Company is just and proper and does not call for any interference. 7. The learned Counsel for the appellant's/insurer submitted that admittedly as per Ex.R7, the driver of the car possessed license to drive heavy goods vehicle including the 'transport vehicle and as the vehicle involved in the accident is car which is light motor vehicle the said license held by the driver was not valid; hence, fixing of the liability on the Insurance Company to indemnify the owner is not proper and thus seeks modification of the impugned judgment and award passed in both the cases by exonerating the insurer from its liability to indemnify . 8. 8. Per contra, the learned Counsel for the claimant in both the cases submits that very fact that the driver was holding the license to drive the heavy goods vehicle including transport vehicle, it presupposes that the driver was holding LMV license before obtaining the license to drive heavy goods vehicle and it cannot be said that the license held by the driver did not authorize him to drive the LMV which was involved in the accident and the driver was not possessing a valid license to drive light motor vehicle and there is violation of terms and conditions of the policy. 9. With regard to quantum of compensation, the learned Counsel for the claimant submits that though the Insurance Company in its appeals has not questioned the adequacy or inadequacy of compensation awarded by the Tribunal, the Appellate Court is at liberty to grant reliefs if it is warranted in the facts and circumstances of the case. Further he submits that considering the nature of the injuries sustained by the claimant's in both the cases, the amount awarded is on the lower side, hence, seeks enhancement of the same. 10. Thus the cause of accident as well as the claimants in both the cases sustaining certain injuries in the accident are not in dispute. 11. On perusal of Ex.R7, it is seen that the same is issued by Licensing Authority, ARTO, Udupi which was valid from 23.06.1983 to 22.06.1986 and with an endorsement which reads as RDL 3446/97, DL renewed upto 15.10.2000. Further it is seen that the said license was issued authorizing the driver to drive heavy goods vehicle including the transport vehicle. 12. In this regard, it is to be seen that Section 7 (1) of the Motor Vehicles Act states that no person shall be granted a learner's license to drive a transport vehicle unless he has held driving license to drive a light motor vehicle for at least one year. 13. For the sake of convenience, Section 7(1) of the Motor Vehicles Act is excerpted hereunder: 77(1) No person shall be granted a learner's license to drive a transport vehicle unless he has held a driving license to drive a light motor vehicle for at least one year.]" 14. Thus, license so issued to drive heavy motor vehicle including transport vehicle is inclusive of the license to drive light motor vehicle/car. Thus, license so issued to drive heavy motor vehicle including transport vehicle is inclusive of the license to drive light motor vehicle/car. Thus, it cannot be said that the driver did not possess the required driving license to drive the vehicle involved in the accident. In the circumstances, the contention of the learned Counsel for the insurer that the insured violated the terms and conditions of the police by permitting the person who did not possess the required license is not well-founded and is not proper and accordingly, the impugned judgment and award so far as it relates to fixing of the liability on the insurer, the same does not call for interference, 15. With regard to scope of cross-objection, no doubt in the appeal filed by the insurer, the quantum of compensation awarded is not questioned i.e., the same is not disputed. Nevertheless merely because the appellant has not questioned the quantum of compensation it cannot be said that the cross-objector has no right to claim regarding enhancement of compensation. In that regard, it is necessary to excerpt Order 41 Rule 33 which empowers the Court to grant relief even though not sought if the same is warranted in the circumstances of the case “Rule 33. Power of Court of Appeal:-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed, in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that I he Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." Thus, the cross-objector is at liberty to seek relief which is not the subject matter of the appeal. 16. 16. With regard to quantum of compensation awarded in MVC No.2020/2006, it is seen that the claimant did sustain one grievous injury i.e., cervical spinal card injury and the Tribunal by considering the evidence placed on record deemed it fit to award a sum of Rs.35,025/- which is inclusive of both medical and incidental expenses. Further it is also observed by the Tribunal that there is no evidence made available by the claimant with regard to disability if any and as such the amount awarded by the Tribunal is just and proper and the same does not call for any interference. 17. With regard to quantum of compensation awarded in MVC No.2021/2006, it is seen that as per Ex.P5, claimant did sustain apart from laceration and abrasion, an incised wound over the right knee. Further it is seen that the doctor who treated her at Nanjappa Hospital, Shimoga who was examined as PW-3 stated that there was no fracture suffered, the claimant was advised to take treatment regarding the dental problems. Further the doctor has deposed that the claimant did sustain 3% disability and the said percentage of the disability did not affect the day to day function of the claimant and after 05.07.1999, the claimant has not taken any further treatment. The Tribunal by considering the said evidence of the doctor deemed it fit to award a sum of Rs.72,032/- which is inclusive of medical expenses and incidental charges which in the facts and circumstances of the case is just and proper and the same also does not call for any interference. 18. Thus, the impugned judgment and award passed in both the cases even with regard to the quantum of compensation awarded as well as fixing of the liability on the Insurance Company are just and proper and the same does not call for any interference. Hence, the following: ORDER MFA No. 1447/2009 and MFA No. 1448/2009 as well as MFA Cross Objection No.95/2009 in MFA No.1447/2009 and MFA Cross Objection No.94/2009 in MFA No. 1448/2009 are dismissed. The amount in deposit in both the appeals are ordered to be transmitted to the jurisdictional Tribunal for disbursement. Further considering the year of the accident i.e. 2006, no order is passed with regard to investment in fixed deposit and the Tribunal is directed to disburse the entire amount to the respective claimant. The amount in deposit in both the appeals are ordered to be transmitted to the jurisdictional Tribunal for disbursement. Further considering the year of the accident i.e. 2006, no order is passed with regard to investment in fixed deposit and the Tribunal is directed to disburse the entire amount to the respective claimant. Sri A. Ravi Shankar, learned Counsel is granted a week's time to file vakalath for respondent No.2 in the Cross-Objections. Draw the award accordingly.