Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1834 (KAR)

Ninganagouda v. Sanju

2019-08-13

K.NATARAJAN

body2019
JUDGMENT : K. Natarajan, J. Though this appeal came up for admission, with the consent of the learned counsel for the parties, it is heard finally. 2. This appeal is filed by the claimant assailing the judgment and award dated 16.09.2014 in MVC No.77/2013 passed by the Prl. Senior Civil Judge & Addl. MACT, Haveri (for short 'the Tribunal). 3. I have heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.2/Insurance Company. 4. For convenience, the ranks of the parties before the Tribunal are retained. 5. The clamant who is petitioner before the tribunal filed claim petition under Section 166 of Motor Vehicles Act (for short 'the Act') claiming compensation of Rs.12,00,000/- inter-alia contending that on 26.02.2012 around 2.45 p.m. when the petitioner was going on his motor cycle bearing registration No.KA-27/W-5193 towards Haveri, when he came near agricultural office at Devihosur, at that time, a lorry bearing registration No.KA-02/D-8393, came from Haveri side and driven by its driver in a high speed by rash and negligent manner, endangering to human life, without following traffic rules and dashed to motor cycle of petitioner. Due to the accident, the petitioner suffered fracture of right radius and other multiple grievous injuries as well as simple injuries on his foot, wrist, shoulder and other parts of the body. He was shifted to Government Hospital, Haveri and after first aid and he has referred to Mudri Hospital, Ranebennur, wherein he has spent more than Rs.70,000/- for medical and other incidental expenses. He was advised to take bed rest for five months and due to the injuries, he is suffering from disability and he lost the earning capacity. Hence, claiming the compensation on various heads. 6. In pursuance to the notice, the respondent No.1, who is owner of the vehicle filed statement of objections by denying the averments made in the petition in respect of rash and negligent driving, injury, occupation and income of the petitioner as false and also taken the contention that the rider of the motor cycle was not followed the rules and regulations and due to his negligent riding, the accident was occurred. Hence, respondent No.1 is not liable to pay any compensation. However, it is stated that the vehicle was insured with respondent No.2 at the time of accident, if any liability, the same may be fastened on the insurance company. Hence, respondent No.1 is not liable to pay any compensation. However, it is stated that the vehicle was insured with respondent No.2 at the time of accident, if any liability, the same may be fastened on the insurance company. Hence, prayed for dismissal of the claim petition. 7. The respondent No.2-Insurer also appeared through the counsel and filed separate statement of objections taking similar contention by denying the rash and negligent driving, accident, occupation and income of the claimant as false and further contended that the claim of the petitioner is exorbitant and excessive and further contended that the vehicle was insured with the respondent and the policy was valid but said policy was issued subject to various terms and conditions and limitations of the policy. As on the date of the accident, the said lorry was transporting liquefied petroleum gas cylinders (L.P.G fuel). The respondent No.1 did not take the policy for the said lorry under the Public Liability Insurance Act, 1991 as the said lorry was carrying the dangerous or hazardous goods. There was no contract between respondent No.1 and 2 to indemnify the respondent No.1. The permit issued to offending lorry to carry the "General Goods except prohibited" therefore the said lorry had no permit to carry such dangerous or hazardous goods. Therefore, the petition is hit by Section 147(2) (a)(i) (a) and 149(4) of M.V. Act. Therefore, violated the terms and conditions of the said policy. Hence, prayed for dismissal of the claim petition as against respondent No.2. 8. Based upon the rival pleadings, the tribunal framed the following issues; 1. Whether the petitioner proves that, on 26.2.2012 at about 2.45 PM, when the petitioner was traveling on a motor cycle bearing its reg.No.KA-27/W-5193 towards Haveri and when the said vehicle came on Devihosur Haveri road near Agriculture office at Devihosur within the jurisdiction of Haveri rural Police Station at that time, driver of the lorry bearing reg.No.KA-02/D-8393 drove the said lorry with high speed in rash or negligent manner, while so driving he dashed to the above said motor cycle of the petitioner and caused accident? If so, whether the petitioner proves that he sustained grievous injuries was due to alleged accident? 2. Whether the petitioner proves that, he is entitled for compensation? If so, what amount and from whom? 3. What order or award? 9. If so, whether the petitioner proves that he sustained grievous injuries was due to alleged accident? 2. Whether the petitioner proves that, he is entitled for compensation? If so, what amount and from whom? 3. What order or award? 9. To substantiate the contention, the petitioner himself examined as PW.1 and also examined the Doctor as PW.2 and got marked 11 documents. On behalf of insurer, its officer examined as RW.1 and also RTO as RW.2 and got marked 5 documents. 10. After considering the evidence on record, the tribunal answered the issue No.1 in the affirmative and allowed the petition in part. However, the liability is fastened on the respondent No.1-owner and exonerated the insurer-respondent No.2 and awarded the compensation as under; Sl.No. Nature of the heads Compensation 1. Loss of future income due to disability Rs.77,760/- 2. Loss of amenities in life, happiness and frustration Rs.10,000/- 3. Conveyance attendants charges food and nourishment Rs.10,000/- 4. Pain and suffering Rs.10,000/- 5. Loss of Income during treatment Rs.10,000/- 6. Medical Expenses Rs.10,000/- Total Rs.1,18,760/- 11. Being not satisfied with the exonerating the insurer and also quantum of compensation and for enhancement of compensation, the claimant filed this appeal before this Court though the liability fixed on the respondent No.1-owner of the vehicle but the owner not filed any appeal. 12. The counsel for the appellant contended that though the evidence produced before the Court and it was established that the vehicle in question was carrying only empty gas cylinder in the lorry, the tribunal wrongly given the finding by exonerating the insurer of the vehicle and fastened the liability on the owner of the vehicle. Even though there was no violation of conditions of policy by respondent No.1 and alternatively contended that the claimant was third party for the petition in question, if any, violation it is between the insured and insurer. Therefore, the findings of the tribunal is required to be set aside and modified. Alternatively, the learned counsel also contended that inspite of the appellant-claimant sustained multiple injuries including the fracture injury on the right radius and the doctor has opined that the claimant has suffered 25%-30% of disability to the limb. The tribunal might have considered 18% disability even the doctor who has stated that disability of whole body 15%-18%. Alternatively, the learned counsel also contended that inspite of the appellant-claimant sustained multiple injuries including the fracture injury on the right radius and the doctor has opined that the claimant has suffered 25%-30% of disability to the limb. The tribunal might have considered 18% disability even the doctor who has stated that disability of whole body 15%-18%. However, the tribunal held wrong in holding only 6% disability to the whole body even though the claimant was agriculture and also doing the business by earning Rs.50,000/- per month, the tribunal has considered only Rs.6,000/- per month which is very meager. Even in the Lok Adalath, the notional income of Rs.6,500/- is considered for the income of labour. Therefore, the tribunal ought to have considered the notional income at Rs.6,500/- and at least 10% towards the whole body. Even, the tribunal failed to award any compensation towards the loss of amenities even though he was suffered fracture of radius and no award has been granted in respect of loss of income during laid up period and even pain and suffering is also meager as considered in Lok Adalath. Hence, prayed for enhancement of compensation. 13. Per contra, the learned counsel for the respondent-Insurer supported the judgment of the tribunal and contended that the vehicle in question was carrying LPG Gas Cylinder, which is hazardous goods as per the provisions of Rule 137 and driver of the vehicle as well as the vehicle requires to be special endorsement as per the provisions of Section 14(2) of the Act as well as 146 of the Act but the driver of the vehicle was holding HMV driving license without any endorsement and also the vehicle was carrying hazardous goods they would not have complied the provisions of Rules 137 of the Act. Therefore, there is clear violation on the part of respondent No.1. Hence, the tribunal has rightly exonerated the liability as against insurer and fastened the liability on the owner of the vehicle. Therefore, the judgment and award in respect of fastening the liability does not call for any interference by this Court. Alternatively, the learned for the insurer argued that there are no documents produced by the claimant to prove the income of the petitioner. Such being the case, the tribunal rightly considered as Rs.6,000/- per month. Therefore, the judgment and award in respect of fastening the liability does not call for any interference by this Court. Alternatively, the learned for the insurer argued that there are no documents produced by the claimant to prove the income of the petitioner. Such being the case, the tribunal rightly considered as Rs.6,000/- per month. Even the doctor PW.2 who is not treated doctor is in habit of giving wound certificates to the MVC claimants in exorbitant percentage and there is no base for issuing 30% of disability to the limb and so also 15-18% of disability towards the whole body. In the absence of any document evidence, the tribunal has rightly considered at 6% of disability and awarded the compensation towards loss of earning capacity as well as awarded the amounts in respect of pain and suffering, loss of earning, loss of amenities, food and nourishment and transportation and etc. Therefore, the learned counsel contended that nothing is required to enhance the same. Hence, prayed for dismissal of the appeal. 14. Upon hearing the learned counsel for both the parties and on perusal of the records, the points that arise for my consideration; (a) Whether the tribunal is not justified in fastening the liability only on the respondent No.1 by exonerating the insurer which calls for interference? (b) Whether the appellant or claimant is entitled for enhancement of compensation? (c) What order? 15. The claimant has established the factum of accident that was occurred on 26.02.2012 around 2.45 p.m. when he was proceeding on his motorcycle bearing registration No.KA-27/W-5193 towards Haveri, at that time, the lorry bearing registration No.KA-02/D-8393 came from Haveri side and dashed to the motorcycle, due to which he sustained injuries. Ex.P1 copy of the FIR, Ex.P2 copy of complaint, Ex.P3 copy of spot panchanama, Ex.P4 copy of MVA report, Ex.P5 copy of wound certificate, Ex.P6 copy of charge sheet, Ex.P10 disability certificate, Ex.P11, X-ray films. Exs.P1 to 3 and Ex.P6 were not seriously disputed by the respondents. The police registered the case against the driver of the lorry and also filed the charge sheet. Ex.P5 the wound certificate issued by Government Hospital, Haveri, which shows the claimant sustained 4 injuries and the injury No.3 is grievous in nature and remaining injuries were simple in nature. Exs.P1 to 3 and Ex.P6 were not seriously disputed by the respondents. The police registered the case against the driver of the lorry and also filed the charge sheet. Ex.P5 the wound certificate issued by Government Hospital, Haveri, which shows the claimant sustained 4 injuries and the injury No.3 is grievous in nature and remaining injuries were simple in nature. After considering the evidence i.e. FIR, complaint and wound certificate, charge sheet, the tribunal rightly held that the accident was occurred due to the rash and negligent driving of the driver of the lorry in question. The respondent also not challenged the finding of the tribunal in respect of rash and negligent driving. The only controversy is that the tribunal has fastened the liability only on the owner of the vehicle and exonerated the Insurance Company. 16. However, regarding the percentage of the injury, earning capacity and other details will be considered in the later part of the judgment. The main controversy raised in the appeal is that fastening the liability on the respondent No.1 and exonerating the Insurance Company. In this regard the counsel for the appellant contended that, at the time of accident, the lorry was carrying only empty cylinder and it was not carrying any hazardous goods which was prescribed under the law. Therefore, the tribunal was erred in holding that the vehicle was carried hazardous goods. In support of his case, he relied upon the decision of Division Bench of this Court in the case of New India Assurance Co. Ltd. Vs. Velumurugan V. and Another, (2016) ACJ 475. 17. Per contra, learned counsel for Insurer countered the arguments of the counsel for appellant and contended that once the vehicle was issued permit or license to the driver to drive the HMV lorry, which is used to carry hazardous goods, necessary endorsement is required from the RTO both for the vehicle as well as the driver. Here, in this case, the respondent No.1 was carrying the LPG Gas Cylinder which is hazardous. Therefore, without any driving endorsement and permitting the respondent No.1 by allowing the vehicle to ply on the road and thereby violated the conditions of the policy. Hence, he has supported the judgment and award passed by the tribunal and prayed for dismissal of the appeal. 18. Therefore, without any driving endorsement and permitting the respondent No.1 by allowing the vehicle to ply on the road and thereby violated the conditions of the policy. Hence, he has supported the judgment and award passed by the tribunal and prayed for dismissal of the appeal. 18. The counsel for the petitioner relied upon the decision of Division Bench of this held in the said case that the lorry was tanker which was empty tanker involved in the accident and this Court held "when the accident was occurred there was no petroleum product in the tanker" and in order to drive an empty tanker no endorsement is required by a driver to drive such vehicle since it was not carrying any hazardous or combustible material. In order to consider the questions involved in the said appeal in respect of Proviso to Section 14(2) (a) of the Act is as under; In the case of a license to drive a transport vehicle, be effective for a period of three years: [Provided that in the case of license to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus; and] (b) xxxxxx 19. If, the vehicle was driven by the driver which was carrying the goods which is dangerous or hazardous in nature is required a special endorsement for one year. But here in this case it was established by the claimant that the vehicle which was involved in the accident was carrying empty LPG Gas Cylinder. Therefore, the Proviso of Section 14 (2) (a) is not applicable to the case on hand. The judgment relied upon by the counsel for the appellant stated supra is squarely applicable to the case on hand. 20. The counsel for the respondent also contended that Ex.R1 which is license admittedly the driver of the vehicle was holding HMV with badge and there is no reference in respect of driving the vehicle with carriage of hazardous goods. Ex.R3 which is goods carriage permit issued by the RTO authorities shows that the lorry can carry the general goods except the prohibited. The definition of prohibited and clause of prohibited vehicle or goods not at all defined in the Act. Ex.R3 which is goods carriage permit issued by the RTO authorities shows that the lorry can carry the general goods except the prohibited. The definition of prohibited and clause of prohibited vehicle or goods not at all defined in the Act. Whereas the act and rules defines in respect of hazardous goods under 137 of Central Motor Vehicle Rules. 137. Class labels. In respect of the dangerous or hazardous goods specified in column (2) of the Table below, the labels specified the corresponding entry in column (3) shall be the class labels. It provides the labels must be affixed on the back of the lorry showing that it is carrying the non-inflammable compressed gas (2) it shows only a label has to be affixed on the lorry for carrying the hazardous goods. 21. On perusal of Ex.R3 and R5, the insurance policy is not at all mentioned in the terms and conditions of the policy. The lorry shall not carry the empty cylinder and apart from that empty gas cylinder is not at all hazardous goods to fall under the proviso of Section 14(2) (a) of the Act. Therefore, the contention raised by the learned counsel for the respondent-insurer cannot be acceptable that the vehicle was carried the prohibited goods. The case on hand, the lorry in question was neither carrying any prohibited goods nor carrying any hazardous goods. Such being the case, the driver of the vehicle not at all requires any special endorsement in his driving license for driving the said lorry in question. RW.2 the RTO though examined he has not at all stated what are the goods prohibited and whether the hazardous goods also come under the prohibited goods. The prohibited goods is normally which is prohibited under the law which is illegal whereas hazardous goods cannot said to be prohibited goods rather it requires special endorsement to carry such hazardous. Such being the case, the contention taken by the Insurer cannot be acceptable. The empty LPG Gas Cylinder is neither prohibited nor hazardous goods which require a special permission or special endorsement in the driving license. Hence, I hold the tribunal has wrongly held that the vehicle in question was carried the prohibited goods at the time of accident and not justified in absolving the insurance company from its liability. The empty LPG Gas Cylinder is neither prohibited nor hazardous goods which require a special permission or special endorsement in the driving license. Hence, I hold the tribunal has wrongly held that the vehicle in question was carried the prohibited goods at the time of accident and not justified in absolving the insurance company from its liability. Therefore, fastening the liability alone on the respondent No.1 is liable to be modified and shall be fastened both jointly and severally on respondent Nos.1 and 2. Hence, I answer point No.1 in favour of claimant and as against the insurer. 22. The next controversy is only in respect of quantum of compensation. The claimant has stated that he was agriculturist and earning Rs.50,000/- per month though not produced any documents. In the absence of any documents, there is no any option to consider the notional income. Normally, this Court is used to consider Rs.6,500/- per month for the unskilled labour for the accident occurred during the year 2012. Therefore, the tribunal ought to have considered Rs.6,500/- per month instead of Rs.6,000/-. Therefore, it requires to be enhanced to Rs.6,500/- per month. 23. As regards the disability is concerned though PW.2 who is not a treated doctor and assessed the disability at 25% to 30% towards limb and also assessed 15% to 18% towards the whole body. But his evidence is not supported with any guidelines and no proper documents produced before the Court to arrive at 18% of the disability towards the whole body when 25%to 30% of disability to the limb. Normally this Court is used to consider 1/3rd of disability towards the whole body. Such being the case, the tribunal ought to have considered at least 10% of the disability towards the whole body instead of 6%, which is very meager. 24. If the income of petitioner is considered at Rs.6,500/- per month by considering disability at 10% X 12 months x 17 multiplier it comes to Rs.1,32,600/- would be the loss of earning capacity. 25. As regards pain and suffering, the tribunal has awarded only Rs.10,000/- whereas the claimant has suffered four injuries and injury No.3 is fracture of right radius and other three injuries are simple injuries. Therefore, I propose to award Rs.20,000/- as against Rs.10,000/- towards pain and suffering. 26. 25. As regards pain and suffering, the tribunal has awarded only Rs.10,000/- whereas the claimant has suffered four injuries and injury No.3 is fracture of right radius and other three injuries are simple injuries. Therefore, I propose to award Rs.20,000/- as against Rs.10,000/- towards pain and suffering. 26. As regards conveyance attendants charges, food and nourishment, the tribunal has awarded Rs.10,000/- which is sufficient and hence the same is retained. The tribunal has also awarded Rs.10,000/- towards loss of amenities in life and happiness and frustration, in my view, the same is sufficient and need not require for any enhancement. 27. However, the tribunal has not awarded any compensation towards loss of income during laid-up period and spent more than Rs.70,000/- for medical and other incidental expenses and claimant has suffered loss of income for six months however there is no documents produced and in the absence of any documents, I propose to consider only two months towards loss of income during laid up period. Hence, Rs.13,000/- is awarded towards loss of income during laid up period. 28. Hence, the claimant is entitled for the reassessed the compensation as under; Loss of earning capacity Rs.1,32,600/- Loss of amenities Rs.10,000/- Food nourishment And incidental expenses Rs.10,000/- Medical expenses Rs.10,000/- Loss of income during laid up period Rs.13,000/- (6,500 x 2) Total Rs.1,95,600/- 29. Consequently, the appeal filed by the claimant-appellant is allowed in part. The claimant is entitled for the enhanced compensation of Rs.1,95,600/- as against Rs.1,18,760/- awarded by the tribunal together with interest at 6% from the date of petition till realization. The findings of the tribunal fastening the liability only against respondent No.1 is modified and respondent Nos.1 and 2 jointly and severally liable to pay the compensation. The respondent insurer is directed to deposit the award amount with interest within a period of four weeks from the date of receipt of copy of this order.