Manjegowda vs C.T. Nagesh and Others

N.K. Patil, J.—This appeal by the claimant-appellant is directed against the impugned judgment and award dated 16/01/2010, passed in MVC No. 1226/2007, by the Principal Civil Judge (Sr.Dn) and Member, Additional Motor Accident Claims Tribunal, Hassan, (hereinafter referred to as ''Tribunal'' for short).

By its judgment and award, the Tribunal has awarded a sum of Rs. 1,32,700/- with interest at 6% p.a., from the date of petition till its deposit, on account of the injuries sustained by the claimant in the road traffic accident fastening liability on the respondent No. 1, driver-cum-owner of the auto and dismissing the claim petition against respondent No. 2, Insurer of the auto.

In brief, the facts of the case are:

That on 1.3.2007 at about 3.30 p.m. appellant and others were traveling in an auto bearing Reg. No. KA.13.8264 on Hassan-Arasikere road near Guthikatte, at that time, driver of the said auto drove the same in a rash and negligent manner and due to his negligence, auto was capsized. Due to which, appellant who was traveling in the auto fell down and sustained injuries on his body. Immediately, he was taken to S.C. Hospital, Hassan, where he took treatment as inpatient for one and half months, underwent surgery, implants were inserted and thereafter, on the advise of the Doctor he has taken bed rest and follow-up treatment.

It is the further case of the appellant that, he has spent considerable amount towards medical expenses, conveyance and other incidental charges. Due to the injuries sustained by the appellant, he has suffered permanent disability. The Doctor has assessed the disability at 40% to the left lower limb and it is permanent in nature. Therefore, appellant has filed a claim petition before the Tribunal claiming compensation against the respondents.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 1,32,700/- under different heads with interest at 6% p.a., from the date of petition till its deposit, fastening liability on the respondent No. 1, driver-cum-owner of the auto and dismissing the claim petition against respondent No. 2, Insurer of the auto.

Being aggrieved by the same, appellant has presented this appeal, for modification of the same, on the ground that, the quantum of compensation awarded by the Tribunal is inadequate and the Tribunal has erred in holding that respondent No. 1, driver-cum-owner of the auto is liable to indemnify the award amount and exonerating the respondent No. 2, Insurer of the offending vehicle.

I have heard the learned counsel appearing for appellant and learned counsel appearing for Insurer.

The submission of learned counsel Smt. A.R. Sharadamba, appearing for the appellant, is that, the reasoning assigned by the Tribunal in para No. 17 for holding that the driver does not possess effective and valid DL as on the date of accident is contrary to the DL produced at Ex.R3 which shows that driver was holding the DL but there is no endorsement to drive goods vehicle and that itself does not takeaway the liability on the part of the Insurer to indemnify the award to the appellant he being the third party. To substantiate the said submission, she placed reliance on the judgment passed by this Court in M.F.A. No. 8047/2011 (United India Insurance Co. Ltd. Vs. Master Jamil Khan and another) and connected matter disposed of on 17/4/2015 and submitted that, in the said judgment, this Court in paras 3 and 4 of the judgment has held that violation of the policy condition by the insured by allowing the driver of light motor vehicle without having transport endorsement in his driving licence to drive transport vehicle cannot be a ground for the insurance company to avoid third party liability and also held that once the policy is issued, it is the right of claimant to receive compensation in the event of such violation of conditions of policy, the insurance company has to pay compensation to the claimant and recover the same from the insured. Therefore, she submitted that, in the light of the said judgment, the direction issued by the Tribunal to the respondent No. 1 to indemnify the award may be set aside by issuing appropriate direction to the Insurer to indemnify the award amount with liberty to it to recover the same from the insured in accordance with law.

Further, learned counsel appearing for the appellant submitted that, the Tribunal has erred in not taking the income of the appellant reasonably, on the ground that, he is aged about 35 years, hale and healthy prior to the accident and agriculturist cum driver and what is assessed is on the lower side and is liable to be reassessed reasonably. Further she has submitted that, the percentage of disability assessed by the Tribunal at 10% to the whole body is on the lower side and is liable to be re-assessed having regard to the nature of injuries sustained by the appellant and in view of the evidence of the Doctor. But these aspects of the matter have not been considered or appreciated or awarded reasonable compensation by the Tribunal under all the heads. Therefore, she submitted that the impugned judgment and award is liable to be modified.

Per contra, Sri. C.R. Ravishankar, learned counsel appearing for respondent No. 2- Insurer, inter-alia, contended and substantiated that, that the impugned judgment and award passed by the Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file. Further he submits that, the Tribunal, after assigning cogent and valid reasons in para-17 of the judgment has issued a direction to the respondent No. 1, driver cum owner of the offending vehicle to indemnify the award amount, on the ground that, there is no valid transport endorsement obtained by the driver of the offending vehicle to drive the goods vehicle and he was having DL only for LMV and the reasoning given by the Tribunal is well considered and well founded one and therefore, interference by this Court is not called for. Further, he has submitted that, the Tribunal, taking into consideration the age, occupation and year of the accident has awarded the compensation of Rs. 1,32,700/- under different heads with interest at 6% p.a. from the date of petition till the date of deposit and the said compensation awarded is just and reasonable and therefore, it does not call for interference. Therefore, he submitted that the appeal filed by the appellant is liable to be dismissed as devoid of merits.

After hearing the learned counsel for both the parties and after perusal of the impugned judgment and award passed by the Tribunal, it emerges that, the occurrence of the accident and the resultant injuries sustained by the appellant as per Ex.P4-Wound certificate is not in dispute. It is the case of the appellant that, he is aged about 35 years, agriculturist cum driver and the accident has occurred in the year 2007. The Tribunal has justified in assessing the income of the appellant at Rs. 3,000/- per month and after taking into consideration the nature of injuries sustained by the appellant as per Ex.P4-Wound Certificate and also on the basis of the evidence of the Doctor, who has assessed the disability at 40% to the left leg, has assessed the disability at 10% to the whole body and applying the multiplier of ''15'' taking the age of appellant as 35 years has justified in awarding a sum of Rs. 54,000/- towards loss of future earnings, Rs. 18,700/- towards medical expenses, Rs. 30,000/- towards pain and sufferings, Rs. 15,000/- towards loss of amenities and enjoyment in life, Rs. 6,000/- towards conveyance, nourishing food and attendant charge, Rs. 9,000/- towards loss of income during the period of treatment and in all, Rs. 1,32,700/- with interest at 6% p.a., from the date of petition till the date of deposit. The said compensation awarded by the Tribunal is just and reasonable and therefore, it does not call for interference.

Further it is significant to note that, it is the submission of the learned counsel appearing for the appellant that, the reasoning assigned by the Tribunal in para-17 of its judgment to hold that the driver has no valid and effective Driving licence to drive the goods vehicle as on the date of the accident is contrary to the evidence on record and the law laid down by this Court in catena of judgments. Further, she submitted that, from Ex.R3-DL particulars of the driver of the offending vehicle produced by the respondent No. 2, it is crystal clear that as on the date of accident the driver was having valid DL pertaining to transport vehicle from 24.9.2002 to 23.9.2005 and there is no transport endorsement which is not mandatory to the 3rd party claim and therefore, the Tribunal cannot held that, owner is liable to pay the award amount contrary to the law laid down by this Court in M.F.A. No. 8047/2011 (United India Insurance Co. Ltd. Vs. Master Jamil Khan and another) and connected matter disposed of on 17/4/2015, and therefore, the direction issued to the respondent No. 1 to indemnify the award amount is liable to be modified holding that owner and insurer of the offending vehicle are jointly and severally liable to indemnify the award amount and by issuing a direction to the insurer to indemnify the award amount and recover the same from the owner-insured. There is some substance in the said submission.

After careful perusal of the judgment passed by this court as referred above, it is clear that, in para-3, this court has observed that, in M.F.A. No. 3430/2012 C.W. M.F.A. No. 3429/2012 dated 23.7.2014 wherein, the identical question had arisen, this curt following the earlier judgment of Supreme Court in S. Iyyapan Vs. United India Insurance Company Ltd. and Another, (2013) 5 ABR 385 : (2013) 3 ACC 19 : (2013) ACJ 1944 : (2013) 7 AD 202 : AIR 2013 SC 2262 : (2013) 10 JT 85 : (2013) 172 PLR 409 : (2013) 3 RCR(Civil) 654 : (2013) 7 SCALE 637 : (2013) 7 SCC 62 and Division Bench judgments of this court in M.F.A. 24786/2011 C.W. 25267/2011 dated 27.8.2013 and M.F.A. 4535/2013 C/W M.F.A. 11012/2010 and Misc.Cvl.23425/2010 darted 10.2.2014 and other matters has held that violation of policy condition by the insured by allowing the driver of light motor vehicle without having transport endorsement in his driving licence to drive transport vehicle cannot be a ground for the insurance company to avoid third party liability. Further this Court has also held that once the policy is issued, it is the right of claimant to receive compensation and in the event of such violation of condition of policy, the insurance company has to pay compensation to the claimant and recover the same from the insured. Therefore, in the light of the ratio of the aforesaid judgment, the direction issued by the Tribunal to the respondent No. 1 to indemnify the award amount is liable to be set aside by issuing a direction to the Insurance Company to indemnify the award amount and recover the same from the respondent No. 1 in accordance with law.

Having regard to the facts and circumstances of the case as stated above, the appeal filed by the appellant is allowed in part and the impugned judgment and award dated 16/01/2010, passed in MVC No. 1226/2007, by the Principal Civil Judge (Sr.Dn) and Member, Additional Motor Accident Claims Tribunal, Hassan, stands modified by setting aside the direction issued by the Tribunal to the respondent No. 1 to indemnify the award amount and by issuing a direction to the respondent No. 2, Insurer of the offending vehicle to indemnify the award amount to the appellant.

The respondent No. 2-Insurer, is directed to deposit the compensation awarded by the Tribunal with interest, as expeditiously as possible, within a period of three weeks from the date of receipt of a copy of this judgment with liberty reserved to the Insurer to recover the same from the insured/owner of the offending vehicle.

Draw the award, accordingly.