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2020 DIGILAW 178 (KAR)

Rekha v. Chandrashekar And Others

2020-01-21

P.G.M.PATIL

body2020
JUDGMENT P.G.M. Patil, J. - The claimant being aggrieved by the judgment and award dated 23/2/2012 passed in MVC No. 141/2011 on the file of the Additional Senior Civil Judge & AMACT, Haveri, has filed this appeal. 2. It is the case of the claimant before the tribunal that, on 14/12/2010, at about 4.30 p.m., on Ranebennur-Hubli Road, the petitioner along with her relative went to Heggeri lake to observe the side scene and they were returning in Auto rickshaw bearing registration No. KA-27/A-4481 belonging to respondent No. 1. When they were proceeding towards Haveri, the driver of the lorry bearing registration No. MH-10/Z-385 belonging to respondent No. 3 drove the same towards Ranebennur in a rash and negligent manner and driver of both the vehicles lost control due to which vehicles dashed against each other, causing accident. The petitioner sustained grievous injures in the said accident. She was shifted to Government Hospital, Haveri, and thereafter, she was shifted to KIMS Hospital, Hubli, where she took the treatment for three months and spent Rs. 25,000/- for the medical expenses. The petitioner was hale and healthy and aged about 14 years and a student participating in sports events and cultural activities in her school. Now, due to the injuries sustained in the accident, she has become disabled. Accident occurred due to the rash and negligent driving of both the vehicles. Therefore, the claimant claimed compensation of Rs. 10,00,000/-, against the owner and insurer of the offending vehicles. 3. In pursuance of the notice, respondent Nos. 1 to 4 appeared before the Tribunal through their respective counsels. Respondent No. 1 did not file any objections. Respondent No. 2 filed objection denying the age, occupation and injuries sustained by the petitioner. It is also contended that respondent No. 1, the driver was not holding valid and effective driving license at the time of accident and that he entrusted the vehicle to an unauthorized person to drive the vehicle. Therefore, there is violation of terms and condition of the policy and as such, he is not liable to pay the compensation. Respondent No. 3 filed the objection denying the averments made in the claim petition and he has denied that the accident was due to rash and negligent driving of his vehicle. But, the accident occurred due to negligent act of respondent No. 1. Respondent No. 3 filed the objection denying the averments made in the claim petition and he has denied that the accident was due to rash and negligent driving of his vehicle. But, the accident occurred due to negligent act of respondent No. 1. Respondent No. 4 filed the objections denying the averments made in the claim petition. He has also denied the age, occupation and injuries sustained by the claimant and accident occurred due to the negligent act of driver of respondent No. 3. The driver of the insured vehicle did not posses valid driving licence and therefore, he is not liable to pay compensation. 4. On the basis of the pleadings of the parties, the tribunal framed issues. In support of her claim petition, her next friend was examined as PW-1 and one witness was examined as PW-2 and got marked 10 documents as Exs. P. 1 to P. 10. Respondent No. 2 examined one witness as RW-1 and got marked 4 documents as Exs. R1 to R4. 5. The learned member of the tribunal, after hearing both the parties, passed the impugned judgment awarding a global compensation of Rs. 1,04,100/- with interest at 6% p.a. from the date of petition till its realization. Claim petition against respondent No. 2 was dismissed. Respondent No. 1 was held liable to pay compensation of 25% and respondent Nos. 3 and 4 are jointly liable to pay compensation of 75% of the compensation amount. Accordingly, they were directed to pay the compensation amount before the tribunal. 6. The claimant being aggrieved by the impugned judgment has filed this appeal seeking enhancement of the compensation on the ground that the tribunal has erred in considering the disability of the claimant at 10% instead of 16%-18% and that a meager amount has been awarded towards loss of amenities and on other heads. 7. Heard the learned counsel for the parties. 8. The learned counsel for the appellant submitted that the claimant is entitled for compensation in terms of the judgment in the case of Master Mallikarjun v. Divisional Manager, National Insurance Company Ltd. reported in LAWS(SC) 2013 8 65 . It is further submitted that the tribunal has considered the permanent disability of the claimant at 10% of the whole body which ought to be considered at 16%-18% of the whole body. It is further submitted that the tribunal has considered the permanent disability of the claimant at 10% of the whole body which ought to be considered at 16%-18% of the whole body. The learned counsel further submitted that the tribunal has erroneously dismissed the claim against respondent No. 2 on the ground that respondent No. 1 was not holding valid driving licence on the date of accident and that it had expired. In support of his contention the learned counsel has relied on the judgment in the case of Singh Ram v. Nirmala and Others (2018) 3 SCC 800 . Relying on this judgment he submitted that respondent No. 2 may be directed to pay and recover the compensation amount to extent of his share. 9. Per contra, the learned counsel for the insurer respondent No. -2 submitted that driver of the insured vehicle was not holding valid and effective driving license as on the date of accident and that it had expired long back and it was not renewed and therefore, there is fundamental breach of policy condition and as such, it is not a case for directing the insurer to pay and recover the compensation. It is also submitted that the permanent disability as considered by the tribunal is proper and there is no need to interfere with same. 10. Learned counsel for respondent No. 2 has relied on the judgment in the case of Compaq International & Another v. Bajaj Allianz general Insurance Company Ltd. and Another 2018 SAR (Civil) 824 regarding principle as to pay and recovery. 11. The tribunal has recorded the finding on additional issue No. 1 that driver of respondent No. 1 was not holding driving licence as on the date of accident namely, 14/12/2010. Ex. R4-the copy of driving licence produced by respondent No. 2 goes to show that driving licence was valid form 16/7/2010 to 15/10/2010 and therefore, there was no valid driving licence to drive the vehicle involved in the accident as on the date of accident. On this ground, the tribunal has exonerated and dismissed the claim petition against petitioner No. 2-the insurer of respondent No. 1. On this ground, the tribunal has exonerated and dismissed the claim petition against petitioner No. 2-the insurer of respondent No. 1. The Apex court in the case of Singh Ram v. Nirmala and Others stated supra has held in paragraph 5 as follows:- '5 Before we advert to the decision in Swaran Singh (supra) a brief reference to the facts as they emerge from the decision of the Tribunal is necessary. Initially before the Tribunal the appellant produced a driving licence issued by the Motor Vehicles Department, Agra (Exh. R-1). The driving licence was found to be fake. The statement of the Senior Assistant in the office of the RTO, Agra was that Exh. R-1 had not been issued by the office. The Tribunal noted that the witness had proved the report (Exh. R-2) issued by the department and concluded that the licence was fake. Faced with this situation, the appellant attempted to prove that he held a valid driving licence issued by the licencing authority at Jagadhri to drive a motor cycle. The Tribunal rejected the application filed by the appellant for producing additional evidence. The Tribunal noted that even otherwise, the licence which was issued by the licencing authority, Jagadhri for a tractor and car was valid only until 29 August 2009. The accident took place on 22 March 2010. The licence was renewed on 28 November 2011 more than two years after it had expired. On these facts, the Tribunal observed that on the date of the accident, the appellant was not holding a valid and effective driving licence nor was there any evidence to indicate that the licence was sought to be renewed as required in law, within 30 days of its expiry. The Tribunal also observed that the appellant did not hold a valid licence to drive a motor cycle. On these grounds, the insurer was absolved. The High Court has confirmed the direction of the Tribunal to pay and recover.' 12. In paragraph 6, the Apex Court has reiterated the principles stated in the case of National Insurance Co. Ltd. v. Swaran Singh and others reported in (2004)3 SCC 297 , the Apex Court in the said case finally held that the Tribunal which had directed the insurer to pay and recover the compensation cannot be faulted. In paragraph 6, the Apex Court has reiterated the principles stated in the case of National Insurance Co. Ltd. v. Swaran Singh and others reported in (2004)3 SCC 297 , the Apex Court in the said case finally held that the Tribunal which had directed the insurer to pay and recover the compensation cannot be faulted. Therefore, it has been held in the said case that where a person produces or holds fake or invalid or expired driving licence, which cannot be held as valid and that it does not amount to fundamental breach of policy conditions and therefore in view of the law laid down in the case of Swaran Singh , stated supra, the insurer is directed to pay and recover the compensation. 13. In the case of Compaq International & Anr. v. Bajaj Allianz General Insurance Company Ltd. & Anr. reported in 2018 SAR (Civil) 824 , the Apex Court has considered as to whether the insurer can avoid his liability where the driving licence had expired and it was not renewed and there was no valid and driving licence as on the date of accident. The Apex Court ultimately held that the order passed by the Tribunal for pay and recovery need not be interfered with. In the case on hand, it is not the defence of respondent No. 2-the insurer that the driver-respondent No. 1 was not at all holding any driving licence to drive the vehicle involved in the accident. On the other hand, it is respondent No. 2 himself who has produced copy of the driving licence of respondent No. 1-driver, which is at Ex. R4, which goes to show that he had valid and driving licence from 16.10.2007 to 15.10.2010 involved in the accident. However, the driving licence had expired and was not renewed and therefore as on 14.12.2010, the driver was not holding valid driving licence. The facts involved in the case on hand are squarely covered by the judgment in the case of Swaran Singh , stated supra, it is just and necessary to direct respondent No. 2-United Insurance Co. Ltd., to pay and recover the compensation to the extent of his share from respondent No. 1-owner of the vehicle. 14. The facts involved in the case on hand are squarely covered by the judgment in the case of Swaran Singh , stated supra, it is just and necessary to direct respondent No. 2-United Insurance Co. Ltd., to pay and recover the compensation to the extent of his share from respondent No. 1-owner of the vehicle. 14. The learned counsel for the appellant submitted that the permanent disability suffered by the claimant as per evidence of PW2 is stated to be 40 to 45% of particular limb and therefore 1/3rd of the said disability may be considered as disability of the whole body. The Tribunal after appreciating the evidence of PW2 and documents namely disability certificate and fracture suffered by the claimant has come to the conclusion that the claimant has suffered from permanent disability of 10% of the whole body. The age of the claimant at that point of time was also considered by the Tribunal. Therefore, there is no reason to interfere with the findings recorded by the Tribunal holding 10% of permanent disability of the claimant, as compared to whole body. Considering the same, the compensation has to be awarded to the claimant in terms of the judgment of the Apex Court in the case of Master Mallikarjun , stated supra. Since the permanent disability of the claimant is considered at 10%, she is entitle for compensation of Rs. 1,00,000/- towards pain and suffering already undergone and to be suffered in future, mental and physical shock, discomfort etc. and loss of amenities on account of permanent disability. Accordingly, Rs. 1,00,000/- is awarded under these heads. The parents are entitled for compensation of Rs. 25,000/- towards discomfort, loss of earning to the parents during the period of her hospitalization. A sum of Rs. 10,000/- is awarded towards medical expenses as awarded by the Tribunal, towards removal of screw and plates, another sum of Rs. 10,000/- is awarded by the Tribunal. A sum of Rs. 10,000/- awarded by the Tribunal towards loss of marriage prospects, is reaffirmed. Therefore the claimant is entitled for a sum of Rs. 1,55,000/- as against Rs. 1,04,100/- awarded by the Tribunal, with interest at 6% p.a. from the date of petition till realization. 15. Accordingly, this Court proceed to pass the following: ORDER The appeal is allowed in part. 10,000/- awarded by the Tribunal towards loss of marriage prospects, is reaffirmed. Therefore the claimant is entitled for a sum of Rs. 1,55,000/- as against Rs. 1,04,100/- awarded by the Tribunal, with interest at 6% p.a. from the date of petition till realization. 15. Accordingly, this Court proceed to pass the following: ORDER The appeal is allowed in part. The judgment and award dated 23.02.2012 passed in MVC No. 141/2011 by the Additional Senior Civil Judge and MACT, Haveri, dismissing the claim against respondent No. 2-insurer, is set aside. Respondent No. 2-the insurer is directed to pay compensation to the claimant to the extent of 25% and is entitled to recover the same from respondent No. 1-owner of the vehicle in the very proceedings by filing execution petition, there is no need to obtain separate decree for the same. The claimant is awarded enhanced compensation of Rs. 51,000/- with interest at the rate of 6% p.a. from the date of petition till realization.