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2018 DIGILAW 259 (KAR)

Rathnamma v. United India Insurance Co. Ltd.

2018-02-23

H.B.PRABHAKARA SASTRY

body2018
JUDGMENT : This appeal is filed under Section 173 (1) of the Motor Vehicles Act, 1988, seeking enhancement of the compensation awarded by the VI Additional Judge, Court of Small Causes, Member, MACT, Bangalore, (hereinafter referred to as ‘the Tribunal’, for short), by its judgment and award dated 28.01.2009 in MVC No.8840/2007. 2. The appellant/claimant in her memorandum of appeal has taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. Further stating that the Tribunal ought to have awarded the compensation as claimed by her, has prayed for allowing the appeal. The appellant has further stated that the Tribunal erred in fixing the liability on the second respondent relying on the charge sheet filed by the police for not having driving license by the rider of the offending motorcycle. It is also stated by the appellant that in other motor vehicle claim cases the Tribunal has held that the Insurance Company was liable for payment of compensation and the Insurance Company has satisfied the award passed by the Tribunal. 3. Though this appeal is coming on for admission, with the consent from both sides, the matter was taken up for final disposal. 4. Heard the arguments from both sides and perused the materials placed before this Court. 5. Learned counsel for the appellant in his argument reiterated the contention taken up by the appellant in her memorandum of appeal. 6. The present appeal being the claimant’s appeal and the respondents having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondents to pay compensation to the injured claimant for the injuries sustained by her in the accident need not be re-analysed again. The questions that remains to be considered is about the quantum of compensation awarded by the Tribunal and the alleged liability of the insurer to indemnify the insured. 7. The questions that remains to be considered is about the quantum of compensation awarded by the Tribunal and the alleged liability of the insurer to indemnify the insured. 7. After analyzing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them: Amount (Rs.) Towards pain and sufferings 30,000.00/- Towards food and nourishment 03,000.00/- Towards attendant charges 03,000.00/- Towards traveling expenses 02,000.00/- Towards medical expenses 17,360.00/- Towards loss of amenities 20,000.00/- Towards residuary disability 15,000.00/- Total 90,360.00/- 8. Learned counsel for the appellant in his argument submitted that the Tribunal failed to notice that the appellant had sustained two serious fractures of the bones, as such, the compensation awarded under the head of pain and suffering was a meager compensation. According to the claimant who was examined as PW.1 and PW.2, the doctor and also the wound certificate at EX.P4, the claimant had sustained fracture of both bones of left leg and also fracture of both bones of right hand. Thus, left lower limb and right upper limb had sustained grievous injuries in the form of fracture of both bones. In the light of the said serious fractures sustained by the claimant and her treatment as an inpatient in the Sanjay Gandhi Hospital from 25.11.2007 to 14.12.2007 for a period of 19 days, I am of the view that the compensation awarded towards pain and sufferings deserves to be enhanced by a sum of Rs.15,000/-to bring it to a reasonable point. 9. Towards the food and nourishment and also for the attendant charges the Tribunal has awarded compensation at a sum of Rs.3,000/-each. Considering the fact that the claimant was inpatient for a period of 19 days and the nature of injury, I am of the view that the quantum of compensation awarded towards food and nourishment and attendant charges deserves to be enhanced each by a sum of Rs.2,000/-. The quantum of compensation of a sum of Rs.2,000/-awarded towards traveling expenses being reasonable, it does not warrant any variation. Similarly, the medical expenses awarded at Rs.17,360/-is also based on the actuals, more particularly, the medical bills at EX.P6. Therefore, the said amount also does not warrant any modification. Towards loss of amenities the Tribunal has awarded a sum of Rs.20,000/-. Similarly, the medical expenses awarded at Rs.17,360/-is also based on the actuals, more particularly, the medical bills at EX.P6. Therefore, the said amount also does not warrant any modification. Towards loss of amenities the Tribunal has awarded a sum of Rs.20,000/-. Considering the facts and circumstances of the case and the nature of injury, the said quantum appears to be a reasonable sum, as such, no variation is made in it. 10. The claimant has stated in her evidence that due to accident she has sustained disability and could not continue to work as she was doing earlier. PW.2 the doctor examined her and has assessed the percentage of disability at 23% to the whole body. The petitioner has stated to be a housewife and she has not led any evidence as to how come the alleged disability has affected her daily work as a house wife. Still, the Tribunal assessing her alleged disability at 10% has awarded a sum of Rs.15,000/-under the head of residuary disability. Since the Tribunal has not called the same as alleged loss of future income, but called as residuary disability, I am of the view that keeping the head of the compensation as residuary disability only, the circumstances warrants enhancement of the said quantum by a sum of Rs.20,000/-. Thus, in total the appellant is entitled for an enhancement in compensation by a sum of Rs.39,000/-. 11. Barring the above, the claimant/appellant is not entitled for enhancement of compensation under any heads or awarding of compensation under any other heads. 12. The claim petition of the claimant as against respondent No.1 Insurance Company came to be dismissed by the Tribunal on the ground that EX.R3, copy of charge sheet disclosed that the rider of the vehicle did not possess driving license. The respondent Insurance Company was also shown to have written the second respondent to produce the driving license as per its letter at EX.R5. The said letter returned ‘unserved’ as could be seen from the unserved postal cover at EX.P6 to EX.P8. The second respondent in the Tribunal remained absent and was placed exparte. As such, no records were placed by the second respondent to show that the rider of the motorcycle was possessing a valid driving license. Thus, the Tribunal came to a conclusion that the Insurance Company was not liable to pay any compensation. 13. The second respondent in the Tribunal remained absent and was placed exparte. As such, no records were placed by the second respondent to show that the rider of the motorcycle was possessing a valid driving license. Thus, the Tribunal came to a conclusion that the Insurance Company was not liable to pay any compensation. 13. Learned counsel for the appellant in his argument submitted that in a similar case, the coordinate bench of this Court has held Insurance Company liable. He relied upon two judgments of coordinate benches of this Court in MFA No.9308/2011 dated 25.11.2015 and MFA No.6206/2009 dated 22.03.2016. Further relying upon the judgment of Hon’ble Apex Court in Pappu and others vs. Vinod Kumar Lamba and another (Civil Appeal No.20962/2017 dated 19.01.2018), learned counsel submitted that even if the driver does not possess any driving license, still the insurer is liable and that he can recover the award amount from the owner of the vehicle after paying the insurance amount. 14. Learned counsel for the Insurance Company in his argument drew the attention of this Court to Section 134 of the Motor Vehicles Act, 1988 and submitted that it is for the rider and owner of the alleged offending motorcycle to give the details of the driver and the particulars of his driving license to the Insurance Company since in the instant case the driver and owner of the motorcycle has not given any such particulars, the same amounts to violation of condition of policy, as such, it is not liable. 15. In the instant case the claim petition against respondent Insurance Company came to be dismissed on the ground that the driver of the alleged offending vehicle did not possess a valid driving license as at the time of accident, as such, insurer was not liable. In order to arrive at such a conclusion the Tribunal reasoned that as per EX.P3 the police have submitted charge sheet against the rider of the motorcycle for not possessing the driving license. In order to arrive at such a conclusion the Tribunal reasoned that as per EX.P3 the police have submitted charge sheet against the rider of the motorcycle for not possessing the driving license. Further as could be evidenced from the two letters at EX.R5 and unserved cover at EX.R6 a postal receipt and returned envelop as per EX.R7 and EX.R8 the respondent Insurance Company had issued notice upon the second respondent before it who was the owner of the motorcycle and the same returned unserved, as such, the Insurance Company had taken steps to collect the details of the driving license. Since the owner has not given the details of the driving license, it has to be held that rider of the alleged offending vehicle did not possess a valid driving license. 16. In United India Insurance Company Ltd., vs. Smt. Rathna and another (MFA No.9308/2011 (MV) dated 25.11.2015) a coordinate bench of this Court was pleased to observe that to hold that the driver of the insured vehicle had no driving license as on the date of accident, there must be clear evidence on the record of the case to that effect. Police charge sheet is no evidence to hold that the driver of the insured vehicle had no driving license as on the date of accident. in the instant case also even though the police had filed a charge sheet against the rider of the motor cycle for not possessing driving license, but it cannot be ignored that apart from relying upon the charge sheet the Insurance Company has also sent notices to the owner and alleged driver of the motorcycle seeking details of the driving license. However, those notices returned unserved. The relevant part of Section 134 of the Motor Vehicles Act, 1988 which was relied upon by the learned counsel for the respondent Insurance Company reads as below: 134. Duty of driver in case of accident and injury to a person – When any person is injured or any property of a third party is damaged, as a result of an accident in which a motor vehicle is involved, the driver of the vehicle or other person in charge of the vehicle shall – (a) xxxxxx (b) xxxxxxxxxx (c) Give the following information in writing to the insurer, who has issued the certificates of insurance, about the occurrence of the accident, namely: (i). insurance policy number and period of its validity; (ii). date, time and place of accident; (iii). particulars of the persons injured or killed in the accident; (iv). name of the driver and the particulars of his driving licence. 17. No doubt the said section makes it a duty on the part of the driver or other person in charge of the offending vehicle to inform in writing with regard to the name of the driver and particulars of his driving license. However, the said section does not mention that non disclosure of the details of the driver or the particulars of the driving license ipso facto exonerates the insurer from its liability. The said observation was also made by a coordinate bench of this Court in it judgment in C Balakrishna vs. C Muniraju and another (MFA No.6206/2009 (MV) dated 22.03.2016). In the said case this Court even observed that in view of the judgment of the Hon’ble Apex Court in National Insurance Company Limited vs. Swaran Singh (2004) 3 SCC 297 ), even if the Insurance Company succeeds in proving that the driver did not have a valid driving license, even then, it is still liable to pay the compensation amount. 18. The next question of proof of the driver of the alleged offending vehicle not possessing a valid and effective driving licence and the question as to the liability of the Insurance Company to pay the compensation awarded to the awardee and his right to recover the said amount from the owner of the vehicle was discussed in detail by the Hon’ble Supreme Court in Pappu and others vs. Vinod Kumar Lamba and another (Civil Appeal No.20962/2017 dated 19.01.2018). In its judgment in the said case the Hon’ble Apex Court was pleased to observe that the onus of proving that the driver of the offending vehicle did not have a valid driving license would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorized by him to drive the vehicle and was having a valid driving license at the relevant time. It was further observed by the Hon’ble Apex Court in the same judgment that the Insurance Company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle. Without disclosing the name of the driver in the written statement or producing any evidence to substantiate the fact that the copy of the driving license produced in support was of a person who, in fact, was authorized to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The Insurance Company would become liable only after such fundamental facts are pleaded and proved by the owner of the offending vehicle. In the instant case respondent No.2 before the Tribunal was shown to be the owner of the alleged offending vehicle. Even after service of notice upon him by the Tribunal, he remained absent as such he was placed ex parte. Thus, there was neither any pleading nor any evidence from the side of the owner of the vehicle to the effect that the driver of the offending vehicle did possess a valid and effective driving license at the time of the accident. Therefore, the question of fastening liability only upon the Insurance Company would not arise. 19. In the very same case of Pappu (supra) the Hon’ble Apex Court also decided a question as to in a fact situation of the case before the Court where the Insurance Company can be and ought to be directed to pay the claim amount with liberty to recover the same from the owner of the vehicle. In that regard the Hon’ble Apex Court after relied upon the judgment in Swaran Singh’s case (supra) and more particularly, para 110 (x) and (xi) which is reproduced here below: 110 (x) : Where on adjudication of the claim under the act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Subsection (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by subsection (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. (xi) The provisions contained in subsection (4) with proviso thereunder and subsection (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. With the said reliance the Hon’ble Apex Court held that to sub-serve the ends of justice the insurer to pay the claim amount awarded by the Tribunal to the claimants in the first instance, with liberty to recover the same from the owner of the vehicle in accordance with law. 20. In the instant case also the owner of the vehicle neither pleaded nor proved that at the time of an accident in question the rider of the motor cycle had a valid and effective driving license. The respondent Insurance Company has not only pleaded the aspect of the driver of the alleged offending vehicle not possessing valid driving license, but also has led evidence in that regard. Thus, the initial burden has remained undischarged by the owner of the vehicle. Therefore, following the judgment of Pappu’s case (supra) though insurer cannot be held primarily liable to pay the compensation awarded in the matter, ends of justice would subserve if the insurer (respondent No.1 herein) pays the claim amount awarded in this appeal to the appellants in the first instance, with liberty to recover the same from the owner of the vehicle (respondent No.2) in accordance with law. 21. Accordingly, the appeal is allowed in part. 21. Accordingly, the appeal is allowed in part. The judgment and award dated 28.01.2009 in MVC No.8840/2007 passed by the VI Additional Judge, Court of Small Causes, Member, MACT, Bengaluru, is modified to the extent that the quantum of compensation of a sum of Rs.90,360/-awarded by the Tribunal is enhanced by a sum of Rs.39,000/-, thus fixing it at Rs.1,29,360/-. The dismissal of the claim petition as against respondent No.1 Insurance Company before the Tribunal is set aside. The said respondent Insurance Company is directed to pay the awarded amount with awarded interest thereupon to the claimants within four weeks from today. However, it is at liberty to recover the same from the respondent No.2, the owner of the vehicle in accordance with law. 22. The rest of the terms of the award passed by the Tribunal with respect to the awarding the interest, its rates and release of the amount to the claimant would all remain unaltered. However, since the delay of 297 days in filing this appeal was condoned subject to denial of the interest on the enhanced amount for the said period, the claimant is not entitled for the interest on the enhanced amount for the said period. Draw the modified decree accordingly.