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Judgment
B. Manohar, J.—These appeals are filed by the claimant as well as the Insurer being aggrieved by the judgment and award dated 13-11-2006 made in MVC No. 147/1999 passed by the Civil Judge (Sr. Dn.) and Motor Accident Claims Tribunal, Madikeri, (hereinafter referred to as ''the Tribunal'') preferred these appeals. The appellant-claimant, being not satisfied with the quantum of compensation awarded by the Tribunal, has filed MFA No. 5047/2007. Whereas the appellant-Insurer being aggrieved by the judgment and award insofar as fastening the liability on the Insurer has filed MFA No. 6657/2007.
The brief facts of the case are as follows:
The appellant in MFA No. 5047/07 filed a claim petition before the Tribunal seeking compensation contending that on 17-9-1998, he was travelling in an auto rickshaw bearing registration No. KA-12/3426 belonging to the first respondent, for the purpose of sale of bakery products. At about 3.45 p.m., due to the rash and negligent driving of the auto rickshaw by the first respondent who is the driver-cum-owner, near S.R. College road at Madikeri, it was capsized. As a result of which, the claimant sustained grievous injuries on the abdomen. Immediately, he was shifted to the Government Hospital at Madikeri. After First Aid he was shifted to Mangalore for better treatment. In the said accident, as per Ex. P3 wound certificate, the claimant has sustained following injuries:
(i) Fracture of Pelivs
(ii) Sacral Vertebrae 1, 2 and 3
(iii) Multiple injuries
(iv) Blunt injury abdomen
(v) Hemo-peritoneum
(vi) Masenterio Paracolic haemotoma
(vii) Rupture of bladder & rupture of Urethra
(viii) Rupture Urethra-bulbo membrane junction
(ix) Pelvis and Sacral vertebrae
The claimant contended that he had spent huge money for the treatment and he was inpatient for more than 121 days and three doctors have treated him. In spite of the treatment, the injuries sustained by the claimant are not completely cured. He has undergone five surgeries for the rupture of urinary bladder, fracture of pelvis, fracture of sacral vertebrae. In view of the rupture of urinary bladder, he has lost marriage prospects also and sought for compensation of Rs. 20,87,000/-.
The first respondent/owner-cum-driver of the auto rickshaw filed the objection statement denying the averments made in the claim petition with regard to the rash and negligent driving. On the date of accident, the vehicle was covered by insurance and he had the valid and effective driving license. Hence, the Insurer has to compensate the claimant and sought for dismissal of the claim petition as against the first respondent.
The second respondent filed the objection statement to the claim petition contending that the claimant is not entitled to claim compensation from the second respondent since he was travelling in a goods vehicle. The respondent No. 1 has not paid extra premium so as to cover the risk of the passengers more over the vehicle in question is a goods carrying commercial vehicle and the passengers are not covered under the policy issued by the second respondent. The seating capacity of the goods carriage auto rickshaw is only one, therefore the Insurer is not liable to pay the compensation to the claimant. Hence sought for dismissal of the claim petition as against the Insurer.
On the basis of the pleadings of the parties, the Tribunal has framed the following issues:
(i) Whether the petitioner proves that due to rash and negligent act of the vehicle i.e. Autorickshaw bearing registration No. KA-12/3426 of the respondent No. 1 he sustained injuries in the Motor Vehicle Accident which occurred on 17-09-1998?
(ii) If so, whether the petitioner is entitled to compensation and what amount and by who payable?
(iii) What order and decree?
The Tribunal, after taking into consideration the oral and documentary evidence let in by the parties and on considering the copy of FIR, IMV report, copy of RC, Insurance policy of the vehicle and other medical reports, held that due to the rash and negligent driving of the auto rickshaw by the first respondent the accident has occurred on 17-9-1998 and the claimant has sustained injuries and held that the claimant is entitled for compensation. The Tribunal taking into consideration the evidence adduced by three doctors who have treated him and the number of days of hospitalization, taking into consideration the age, pain and suffering, the medical expenditure incurred, loss of happiness and amenities and loss of future earning capacity, awarded compensation of Rs. 2,84,900/- and directed the second respondent to pay the compensation, holding that the claimant was travelling in the goods auto along with the goods. Hence, the Insurer is liable to compensate the claimant and directed the second respondent to deposit the said amount with interest at the rate of 6% p.a. The claimant being not satisfied with the quantum of compensation awarded by the Tribunal, filed this appeal seeking enhancement of compensation.
The Insurer being aggrieved by the order passed by the Tribunal, fixing the liability on the Insurer to compensate the claimant has filed MFA No. 6657/2007.
The claimant in MFA No. 5047/2007 contended that the quantum of compensation awarded by the Tribunal is inadequate. Though the Tribunal has held that the claimant is a businessman and doing business of selling bakery products, it had taken the income of Rs. 50/- per day, which is on the lower side. He has undergone four surgeries/operations, hence the compensation awarded insofar as pain and agony is also on the lower side. Further, the compensation awarded insofar as loss of amenities is also on the lower side, in view of rupture of the urinary bladder he has to suffer a lot. Further, he has suffered fracture of pelvis and external fixation has also been made, due to which he cannot do his business. He has lost marital life also. But, no compensation has been awarded on those heads. The future loss of income awarded by the Tribunal taking into consideration the income of the claimant as Rs. 50/- per day is totally on the lower side and sought for enhancement of compensation.
Sri. A.N. Krishna Swamy, learned counsel appearing for the Insurer contended that the order passed by the Tribunal, directing the appellant/Insurer to pay the compensation to the claimant for the injuries sustained by him in the road traffic accident is contrary to law. The claimant was travelling in a goods vehicle. The first respondent who is the owner-cum-driver of the offending vehicle ought not to have carried the passenger in the goods vehicle. Since the seating capacity of the said goods vehicle is only one, he cannot carry any other passenger in the said vehicle. Further, the first respondent has also not paid any extra premium so as to cover the risk of the passenger in the goods vehicle. No material has been placed before the Tribunal to show that the claimant was travelling in a goods vehicle along with the bakery products. The Police records also do not disclose the existence of bakery products in the goods vehicle. No materials has been produced to show that he was travelling in the vehicle as the owner or agent of the goods. Hence, fastening the liability on the Insurer to compensate the claimant is contrary to law. The Ex. P4 i.e. Registration Certificate produced by the claimant cannot be believed since there is over-writing on it and no counter signature has been made on the over-writing. Nobody has been examined to prove the said R.C. book. The Insurance Policy was marked as Ex. R1. He relied upon the judgments of the Hon''ble Supreme Court reported in Sanjeev Kumar Samrat Vs. National Insurance Company Ltd. and Others, and Appeal (Civil) No. 2565/2008 (United India Insurance Company v/s Suresh K.K., and Another).
In rebuttal, Sri. N. Gopala Krishna, the learned advocate appearing for the claimant argued in support of the judgment and award passed by the Tribunal, insofar as fixing the liability on the Insurer to pay the compensation contending that as per the R.C. book of the offending vehicle, the seating capacity of the said goods vehicle is 1+1. Hence, the driver along with the owner of the goods or his authorized representative can travel along with the goods. In the instant case, the claimant was travelling along with the goods in the auto rickshaw belonging to the first respondent for the purpose of selling the bakery products. The extra premium of Rs. 25/- has been paid. Hence, the Insurer cannot escape the liability of compensating the claimant. He also relied upon the judgment reported in The Divisional Manager, The New India Insurance Company Limited Vs. Sri Shashidhara and Another, National Insurance Co. Ltd. Vs. Baljit Kaur and Others, ; and Delhi High Court Judgment in MAC APP 580/2010 (Shobha Devhi and Others v/s Bajaj Allianze General Insurance) disposed off on 24th January 2013 and sought for dismissing the appeal filed by the Insurer by allowing the appeal of the claimant enhancing the compensation.
We have carefully considered the arguments addressed by the parties and perused the impugned judgment and award and oral and documentary evidence adduced by the parties.
The records clearly disclose that the claimant has sustained injuries in the road traffic accident occurred on 17-9-1998 due to the rash and negligent driving of the auto rickshaw bearing registration No. KA-12/3426 by its driver. He has sustained fracture and other injuries to the body. He was admitted in various hospitals and he was treated by three doctors. He was inpatient for 120 days. The wound certificate and the treatment taken by the claimant clearly disclose that he has sustained grievous injuries. The Police records and other relevant records clearly disclose that he has sustained injuries in the road traffic accident that occurred on 17-9-1998 hence he is entitled for compensation. With regard to the quantum of compensation is concerned, we find that the compensation awarded on some of the heads and the income taken is on the lower side. Hence, he is entitled for enhancement of compensation taking into consideration the injuries sustained by the claimant and expenditure he has incurred.
With regard to the liability to pay compensation is concerned, the Insurer filed an appeal contending that they are not liable to pay the compensation, mainly on the ground that the claimant was travelling in a goods carrying commercial vehicle. Except driver, no other persons are covered by the policy. The premium has been paid only insofar as paid driver/workman. Carrying of a passenger in a goods vehicle is contrary to the conditions of the policy, for which, the Insurer is not liable to pay the compensation. In support of the said contention, the Branch Manager was examined as R.W. 1 and got marked the Insurance Policy as Ex. R1. However, the advocate appearing for the claimant contended that in view of the amendment of the Motor Vehicles Act, the owner of the goods or his authorized agent travelling in a goods vehicle along with the goods is permissible and the Insurer cannot escape from the liability. In the instant case, Ex. P6 i.e. FIR clearly disclose that the claimant was travelling in a goods vehicle along with the bakery products. In various judgments of the Hon''ble Supreme Court and this Court, it is held that the Insurer is liable to pay the compensation. Apart from that Ex. P4 i.e. R.C. book of the vehicle clearly mentions that the seating capacity is 1+1. Apart from that the driver-cum-owner of the vehicle had LMV license. In view of sub-Section 21 of Section 2, the person holding LMV license can drive transport vehicle if the unladen weight is less than 7500 Kgs. In the instant case, the offending vehicle is a goods auto rickshaw and its unladen weight is less than 7500 Kgs. The driver of the vehicle was having effective license to drive the vehicle at the time of accident.
Ex. R1 produced by the Insurer clearly discloses that the vehicle is covered by Insurance only insofar as the liability of the Insurer to compensate the paid driver/workman is concerned. Insofar as the seating capacity is concerned, it was mentioned as ''0''. On the other hand, the claimant in his evidence produced Ex. P4 and contended that the seating capacity of the goods vehicle is 1+1. However, there is some over-writing in Ex. P4, and the same was not countersigned by any of the officers. Whether the goods vehicle is having seating capacity of 1 or 1 + 1, no authorized officer from the RTO office was examined. Usually, goods auto rickshaw is having only one seat meant for the driver. That seat cannot be shared by anybody. Insofar as the goods vehicle of four wheeler is concerned, the seating capacity would be 1+1 or 1+3 depending upon the capacity. None of the authorized officers from the Transport Department was examined to prove whether who has made correction insofar as seating capacity in R.C. book. Whether the claimant was sitting along with the driver or in the cabin, no finding has been given on the said issue. The Hon''ble Supreme Court in various judgments has clearly held that insofar as 3 wheeler is concerned, the driver seat cannot be shared by anybody. In the instant case, whether the claimant was travelling along with the goods is also not clear. Only in the FIR it was mentioned that the claimant was proceeding in the goods auto rickshaw for sale of bakery products. Whether there was existence of bakery products in the said vehicle was also not clear. The Tribunal has also not taken into consideration the subsequent judgments of the Hon''ble Supreme Court and the evidence of the Insurer is not appreciated in proper perspective. In Ex. R1, the copy of the Insurance policy, the seating capacity of the vehicle is mentioned as 0. On the other hand, in the R.C. book, the seating capacity of the vehicle was mentioned as 1+3 subsequently it was changed to 1+1, however, nobody has counter signed the same. The quantum of compensation awarded by the Tribunal is also on the lower side. Hence, we are of the opinion that both the matters have to be reconsidered by the Tribunal insofar as Ex. R1 and Ex. P4 are concerned and the Tribunal has to give a specific finding whether the goods auto was having seating capacity of 1+1 or 1 by examining the competent officer from the RTO Office. Ex. P4 is also to be examined, since there is no countersignature for the correction made in the R.C. book insofar as seating capacity is concerned. In the Insurance Policy, it was clearly mentioned that the seating capacity is 0. Whether the owner of the vehicle had paid additional premium or not has to be examined afresh. Hence, we are of the opinion that, both the appeals are to be remanded back to the Motor Accident Claims Tribunal, Madikeri for reconsideration, after affording opportunity to both the parties. Accordingly, we pass the following:
ORDER
Both the appeals are allowed. The impugned judgment and award dated 13.11.2006 passed in MVC No. 147/1999 passed by the Tribunal is hereby set aside without expressing any opinion with regard to merits and demerits of the case and remanded the matters back to the Tribunal to consider both the issues regarding quantum as well as the liability and pass fresh orders after affording opportunity to both the parties, within a period of four months from the date of receipt of a copy of this judgment.
The amount in deposit by the Insurer before this Court is directed to be transferred to the Motor Accident Claims Tribunal, Madikeri, forthwith.