Mareppa and Others vs The Manager, Oriental Insurance Co. Ltd. and Others

B. Manohar, J.—1. In these appeals, appellants have challenged the judgment and award dated 31st January, 2009 made in MVC Nos. 527, 528, 529, 530 and 531 of 2008 by the Civil Judge (Sr.Dn.) & XII Additional MACT, Shorapur (hereinafter referred to as ''Tribunal'') fastening the liability on the owner of the vehicle to compensate the claimants and also seeking for enhancement of compensation.

Since all these appeals are arising out of the common accident occurred on 28.2.2007, the different claim petitions were filed and different awards have been passed, all these appeals are clubbed together and disposed of this common judgment.

Appellants in these appeals are the claimants. They filed the claim petitions contending that on 28th February, 2007 at about 12.30 p.m. they were travelling in an auto bearing Regn. No. KA 33/3093 from Nalavadagi village to Yadgir. At that time, a goods auto rickshaw bearing Regn. No. KA 33/3265 driven by its driver in a rash and negligent manner, dashed against the auto rickshaw, in which the claimants were travelling. Due to the said accident, the auto in which the claimants were travelling was toppled down and they sustained grievous injuries. Initially, they took treatment in the Government Hospital at Yadgir and thereafter in a private hospital. They contended that in the accident, they sustained fracture of bones and other injuries. In view of the injuries sustained, they cannot do the work, which they were doing prior to the accident and sought for compensation.

Though the owner of the vehicle was served with notice, he remained unrepresented. The Insurance Company filed written statement denying the entire averments made in the claim petitions. They contended that due to the negligence on the part of the driver of the passenger auto, the accident had occurred and there is no negligence on the part of the driver of the goods auto. Further, the driver of the goods auto did not possess the valid and effective driving license at the time of accident. There were five passengers travelling in the passenger auto. Hence, there is violation of conditions of the licence. Therefore, the Insurance Company is not liable to pay compensation and sought for dismissal of the claim petitions.

On the basis of pleadings of the parties, the Tribunal framed necessary issues.

In order to prove their case, claimants got examined themselves as PW1 in all the claim petitions and got marked the documents in each claim petitions. In MVC No. 528/2008, the doctor, who issued the disability certificate, was examined as PW2. On behalf of the owner of the vehicle and the Insurance Company, none of the witnesses were examined nor any documents were marked.

The Tribunal after considering the oral and documentary evidence let in by the parties and taking into consideration the FIR, IMV report, wound certificate, chargesheet and copy of the complaint held that due to rash and negligent driving of the tom-tom auto bearing No. KA 33/3265, the accident had occurred. The actionable negligence is on the part of tom-tom auto. Hence, claimants are entitled to compensation.

With regard to quantum of compensation concerned, the appellant in MFA No. 30299/2010 sustained fracture of 8th and 9th ribs and other injuries are minor in nature. Taking into consideration the injuries sustained and sufferings undergone, the Tribunal awarded a sum of Rs. 46,800/- towards loss of income including disability and Rs. 2,000/- towards pain and sufferings, in all, Rs. 48,800/- with interest at 6% p.a. Insofar as other claimants are concerned, the injuries sustained are simple in nature. They have not examined the doctor to prove the injuries sustained by them and they have neither produced wound certificates nor produced medical bills. Therefore, the Tribunal taking into consideration the injuries sustained by them awarded a sum of Rs. 5,000/- each in respect of the appellants in MFA Nos. 30300 to 30303 of 2010.

With regard to liability to pay compensation is concerned, as on the date of accident, the driver, who is also the owner of the offending vehicle, did not possess valid and effective driving license to drive the goods vehicle. Though he was served with notice, he remained unrepresented. In view of that, the liability has been fastened on him to compensate the claimants. Being aggrieved by the judgment and award passed by the Tribunal, the claimants have filed these appeals seeking for enhancement of compensation and also setting aside the judgment and award passed by the Tribunal insofar as fastening the liability on the owner of the vehicle.

During the pendency of the appeal, the appellant filed Misc.Cvl.150797/2010 under Order 41 Rule 27 of CPC for production of additional document i.e. the driving license of the driver of the offending vehicle. The said application was allowed on 5.10.2012 permitting the appellant in MFA No. 30299/2010 to lead evidence to prove his case. The driving license of the driver of the offending vehicle was marked as Ex.P6. On verification of the same, it is seen that he was having driving license of LMV from 11.2.2002 to 10.2.2022. Subsequently, he obtained authorization to drive the HTV with effect from 03.1.2008 to 2.1.2011. In the instant case, the accident had occurred on 28.2.2007. As on the date of accident, the driver of the offending vehicle was having valid and effective driving license to drive the transport vehicle.

Heard the learned Advocate appearing for the appellants as well as the learned Advocate appearing for the respondent No. 1-Insurance Company.

Sri Ganesh Naik, learned Advocate appearing for the appellants in these appeals contended that the order passed by the Tribunal fastening the liability on the owner of the vehicle to compensate the claimants is contrary to law. The compensation awarded by the Tribunal is on the lower side. The appellant in MFA No. 30299/2010 sustained fracture of two ribs. The compensation of Rs. 48,800/- awarded by the Tribunal is on the lower side. The driver, who is the owner of the offending vehicle, was having valid and effective driving license of LMV from 11.2.2002 to 10.2.2022. Therefore, fastening the liability on the owner to compensate the claimants is contrary to law. Learned Advocate also contended that the Hon''ble Supreme Court in large number of cases directed the Insurance Company to pay and recover the compensation amount from the owner of the offending vehicle. The claimants were travelling as passengers in the auto rickshaw. Due to rash and negligent driving of the tomtom auto, the accident had occurred. Hence, he submits that this Court may also direct the Insurance Company to pay the compensation awarded by the Tribunal and recover the same from the owner of the offending vehicle. In support of his contention, he relied upon the judgment reported in , (2013) 7 SCC 62 in the case of S. Iyyapan -vs- United India Insurance Company Limited & another and also the judgment reported in , (2015) 2 SCC 186 in the case of Kulwant Singh -vs-Oriental Insurance Company Ltd. Therefore, learned Advocate prays for enhancement of compensation by allowing the appeals.

On the other hand, Smt. Sumithra, learned Advocate for the Insurance Company argued in support of the judgment and award passed by the Tribunal and contended that for the injuries and fracture of two ribs sustained by the claimants, the Tribunal has awarded compensation of Rs. 48,800/- to the appellant in MFA No. 30299/2010 and in other cases, for the minor injuries sustained by the claimants, the Tribunal has awarded compensation of Rs. 5,000/- each. Though it is on the higher side, the Insurance Company has not challenged the said findings. Ex.P6-driving license of the driver of the offending vehicle clearly discloses that he did not possess the valid driving licence to drive tom-tom auto as on the date of accident. Hence, there is no infirmity or irregularity in the judgment and award passed by the Tribunal fastening liability on the owner of the offending vehicle to compensate the claimants and sought for dismissal of the appeal. Learned Advocate relied on the judgment in the case of Moahmmed @ Mohd. Haneef -vs- Mallayya @ Mallappa and another reported in , ILR 2015 Kar 2064 and 2008(1) TAC 401 (SC) in the case of New India Assurance Co. Ltd. -vs- Prabhu Lal. Further, the Hon''ble Supreme Court in exercising powers under Article 142 of the Constitution of India directed the Insurance Company to pay the amount and recover from the owner of the offending vehicle. Further, this Court in Mallayya''s case referred to above after examining the matter in detail framed the following point for consideration:

"Whether a person holding a licence to drive a non-transport (LMV) vehicle has the authority to drive the transport (LMV) vehicle and whether the insurer is liable to indemnify the owner?"

This Court after examining the matter in detail has negatively held that direction cannot be issued to the Insurance Company to compensate the claimant and recover the said amount from the offending vehicle.

I have carefully considered the arguments addressed by the Advocates appearing for the parties and perused the judgment and award, oral and documentary evidence adduced by the parties.

The records clearly disclose that the claimants sustained injuries in the road traffic accident that occurred on 28.2.2007 due to rash and negligent driving of the tomtom goods vehicle. Even though, he has got licence to drive the HTV, as on the date of accident, the driver did not possess the valid and effective driving licence to drive the tom-tom auto. Therefore, I find that there is no infirmity or irregularity with regard to fastening the liability on the owner of the vehicle to compensate the claimants. The judgment relied upon by the learned counsel appearing for the appellants is not applicable to the facts of this case.

With regard to quantum of compensation is concerned, the claimant in MFA No. 30299/2010 sustained fracture of 8th and 9th ribs. He has not sustained any other injuries. Though he claimed that he had spent a sum of Rs. 1,00,000/- towards medical expenditure, no document has been produced to that effect. The said fracture does not amount to permanent disability. Inspite of the same, the Tribunal has taken the disability to an extent of 10% and awarded the compensation of Rs. 48,800/-. The said compensation is on the higher side. Since the Insurance Company has not challenged the same, I am not inclined to interfere with the said order. The compensation awarded to other claimants for the minor injuries is in accordance with law. The appellants have not made out a case to interfere with the judgment and award passed by the Tribunal. Accordingly, I pass the following:

ORDER

Appeals are dismissed.