United India Insurance Co. Ltd. vs Erikala Lokineni Sreenivasulu and Another

B. Siva Sankara Rao, J.—The insurer/2nd respondent to the claim petition preferred an appeal impugning the award of the Tribunal in the grounds of appeal not only on the quantum of compensation and rate of interest, but also on the ground that there is violation of the permit conditions committed by the 1st respondent-owner of the crime jeep though it is own use permit obtained, in plying as hire vehicle and thereby, the insurer is not liable and that the Tribunal committed a grave error in fastening the joint and several liability against the insurer along with the insured. Whereas it is the contention of the claimant/petitioner/1st respondent to the appeal that the Tribunal having well considered the factual and legal matrix of the case came to the correct conclusion in fixing the joint and several liability and for this Court while sitting in appeal, there is nothing to interfere so also on the quantum of compensation arrived and rate of interest and hence, prayed to dismiss the appeal.

The 2nd respondent to the appeal, who is owner of the crime jeep as 1st respondent in the claim petition remained ex parte. As can be seen from the award dated 04.05.2005 and in the appeal even arrayed, for non-payment of process the appeal against 2nd respondent was dismissed for default on 25.01.2010. No doubt the law is well settled in Meka Chakra Rao Vs. Yelubandi Babu Rao @ Reddemma and others, that the owner remained ex parte in the trial Court even not impleaded as party to the appeal, the appeal is maintainable, hence taken the appeal for hearing and perused the entire material on record. For the sake of convenience, the parties are being referred as arrayed before the tribunal.

Now the points that arise for consideration in the appeal are:

Whether the compensation awarded by the Tribunal fixing the joint liability with the owner of jeep on the insurer is unsustainable for any violation of policy condition?

Whether the quantum of compensation awarded is also not just and requires interference by this Court while sitting in appeal against the award and if so with what observations to arrive a just compensation and with what rate of interest?

To what result?

POINT No. 1:

The claim petition was filed by the injured/claimant against the 1st respondent/owner of the jeep bearing No. AP 09 R 6918, with the 2nd respondent under Ex. B1 policy, for the injuries sustained in the motor vehicle accident on 11.03.2000, while the claimant was travelling in the jeep as fare paid passenger on payment of Rs. 10/-. As can be seen from Ex. A1-F.I.R. issued on the report given by the injured and Ex. A3-charge sheet filed against said jeep driver after the investigation. The Motor Accidents Claims Tribunal-cum-V Additional District Judge, Anantapur (for short, ''the tribunal''), having considered the contentions of 2nd respondent-insurer and the injured-claimant of the claim petition; out of the claim of Rs. 2,00,000/- awarded a sum of Rs. 1,82,400/- with joint and several liability against the insured and insurer with interest at 9% p.a., by award dated 04.05.2005.

The fact that the accident was the result of the rash and negligent driving of the driver of the jeep belongs to the claim petition-1st respondent-insured with the claim petition-2nd respondent under Ex. B1 policy was also proved from the claimant''s report to police registered as Ex. A1-F.I.R. and from Ex. A3 charge sheet as per the finding of the Tribunal in this regard in answering issue No. 1 in para No. 9 of the award. As the same is not in dispute, there is no need to go further into the aspects.

Coming to the contention of non-liability of the insurer-2nd respondent to the claim petition and appellant herein is concerned, the Tribunal in para No. 12 of the award categorically discussed that the very Ex. A1 report of the claimant-P.W. 1 is crystal clear about he paid Rs. 10/- for travelling in the jeep. The owner-1st respondent did not choose to contest much less dispute saying the permit is a transport permit and not a personal use permit (non-transport). When it is a private vehicle for personal use, the owner cannot permit much less his agent-the driver, any fare paid passengers, but for the servants or agents of the owner at best. However, the fact remains from the factual matrix that he is not the owner cum driver. There is no material on record to say that the owner has willfully and with conscious knowledge allowed the driver to board the jeep any fare paid passenger. Even if there is violation of the terms of the policy when it is not a fundamental breach it will not absolve the liability of the insurer to indemnify owner to pay to the third party claimants u/s 149 read with 166 and 168 of the Act, but for to pay and recover at best. In this regard in United India Insurance Company Limited v. Kalavathi & others 2011 ACC 826 (DB) wherein Karnataka High Court held that from the point of the insurer, it makes no difference whether the inmate is paid passenger or a gratuitous passenger. When the policy issued is a comprehensive policy to cover the risk of inmates of a personal use private vehicle, the insurer cannot avoid liability on the ground that the inmate is a paid passenger. In that view of the matter, from the terms of the policy which discriminate the liability of insurer for paid inmate and gratuitous inmate are discriminate and illegal and unsustainable under law was the conclusion arrived by the Division Bench. Apart from it the Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, held that inspite of wilful and conscious knowledge of violation of terms and conditions as a substantial breach, absolves the insurer from liability, the tribunal and Courts got power to direct the insurer to pay from policy issued and otherwise covers the risk, then to recover in same proceedings; no doubt that case arisen out of violation of policy conditions regarding driving with no valid licence. In a recent expression of this court in Ch Jaya v. Krish 2013(6) ALT 471, at para 11 by referring to said Karnataka decision came to similar conclusion on factual matrix. Having regard to the above, though, it cannot be said such a policy condition of the insurance contract is unsustainable for not prohibited by any law, from such breach of policy condition the insurer cannot be absolved from total liability but for to pay and recover from the owner. Accordingly, point No. 1 is answered.

POINT No. 2:

Now coming to the dispute on the quantum of compensation as excessive, before coming to the factual matrix, it is apt to state that perfect compensation is hardly possible and money cannot renew a physique or frame that has been battered and shattered, nor relieve from a pain suffered as stated by Lord Morris. In Ward v. James 1965(1) All. E.R-563, it was observed by Lord Denning that award of damages in personal injury cases is basically a conventional figure derived from experience and from awards in comparable cases. Thus, in a case involving loss of limb or its permanent inability or impairment, it is difficult to say with precise certainty as to what composition would be adequate to sufferer. The reason is that the loss of a human limb or its permanent impairment cannot be measured or converted in terms of money. The object is to mitigate hardship that has been caused to the victim or his or her legal representatives due to sudden demise. Compensation awarded should not be inadequate and neither be unreasonable, excessive nor deficient. There can be no exact uniform rule in measuring the value of human life or limb or sufferance and the measure of damage cannot be arrived at, by precise mathematical calculation, but amount recoverable depends on facts and circumstances of each case. Upjohn LJ in Charle red House Credit v. Tolly 1963(2) All. E.R-432 remarked that the assessment of damages has never been an exact science and it is essentially practical. Lord Morris in Parry v. Cleaver 1969(1) All. E.R-555 observed that to compensate in money for pain and for physical consequences is invariably difficult without some guess work but no other process can be devised than that of making a monitory assessment though it is impossible to equate the money with the human sufferings or personal deprivations. The Apex Court R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, with SLP (Civil) 4586 of 1989 at paragraph No. 12 held that in its very nature whatever a Tribunal or a Court is to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standard. Thus, in most of the cases involving Motor Accidents, by looking at the totality of the circumstances, an inference may have to be drawn and a guess work has to be made even regarding compensation in case of death, for loss of dependent and estate to all claimants; care, guidance, love and affection especially of the minor children, consortium to the spouse, expenditure incurred in transport and funerals etc., and in case of injured from the nature of injuries, pain and sufferance, loss of earnings particularly for any disability and also probable expenditure that has to be incurred from nature of injuries sustained and nature of treatment required.

In this regard, it is well laid down by the Apex Court (Three Judges Bench) in the latest expression in Rajesh and Others Vs. Rajbir Singh and Others, ) at paragraph Nos. 1 and 7 referring to the earlier expressions in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, and Nagappa Vs. Gurudayal Singh and Others, that compensation which appears to it to be just, has to be assessed and awarded by the Tribunal set up u/s 166 of the Act. The expression ''just compensation'' has been explained in Sarla Verma''s case (4th cited supra) holding that the compensation awarded by the Tribunal does not become just compensation merely because the Tribunal considered it to be just. ''Just compensation'' is an adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation.

From the above proposition of law coming to the factual matrix on what is just compensation, Ex. A2-wound certificate along with Ex. X1-case sheet and Ex. X2-X-rays coupled with the evidence of two doctors PWs 2 and 3 proves including from the finding of the Tribunal at paras 10 and 11 that the claimant sustained as many as five injuries in the accident, three of which are grievous in nature; P.W. 2 is the doctor, who issued Physically Handicapped Certificate, marked as Ex. A4 to the petitioner deposed that there is 50% disability from the shortening of the leg from fracture of right knee due to stiffness and bending, from which he is unable to squat, sit or run and not able to even to attend normal performance of the daily pursuits. P.W. 3, Doctor of Government Hospital also deposed that he treated P.W. 1, who was referred from Kadiri Hospital and knee plaster of paris was applied and thereby detriment was done and the petitioner was treated as in-patient for six months and was advised to go to Kurnool Government Hospital. In the cross-examination, he deposed that 50% permanent disability is assessed and for strictly saying it can be reduced 5 to 10% and from that even taken the disability at 40% and from the earnings of the claimant taken by the Tribunal at Rs. 1,200/- per month as on the date of accident in 2000 and arrived an amount of Rs. 600/- per month towards disability of permanent nature and applied multiplier ''15'' and arrived at Rs. 1,08,000/- towards prospective earning capacity from the permanent disability besides Rs. 14,400/- towards loss of past earnings, Rs. 30,000/- for the fractures and other injuries including pain and sufferance, Rs. 10,000/- towards transport charges and Rs. 20,000/- towards medical expenses, attendant charges, extra nourishment etc., in all arriving a sum of Rs. 1,82,400/-.

Practically, for this Court while sitting in the appeal against said quantum from the above, there is nothing to interfere. But for recording the rate of interest awarded by the Tribunal at 9% reduced to 7.5% as per the settled expressions of the Apex Court by considering the steep fall in the rate of interest in the past several years, vide Tamil Nadu State Transport Corporation Ltd. Vs. S. Rajapriya and Others, . and that the award of interest u/s 171 of the Motor Vehicles Act by the tribunal is discretionary and that discretionary can be exercised even by the appellate Court as laid down in D.D.A. and Others Vs. Joginder S. Monga and Others, More particularly from the fact that the entire matter at large irrespective of no cross objection for complete justice between the parties conferred by Order 41 Rule 34 and 20 C.P.C. and Apex Court in Ranjana Prakash and Others Vs. Divisional Manager and Another, also held that in motor claim accident matters Order 41 Cr. P.C. applies to the appellate Tribunals.

Having regard to the above while upholding the compensation, it is just to reduce the rate of interest from 9% to 7.5 % from the date of petition till realization. Accordingly, the point No. 2 for consideration is answered.

POINT No. 3:

In the result, the appeal is partly allowed, while modifying the trial Court''s decree and award fixing joint and several liability on the insurer to indemnify the insured, to pay and recovery. The insurer is thus directed to deposit said compensation amount due in addition to what is deposited if any so far for the balance within one month today; failing which the claimant can execute and recover. It is made clear from the settled expressions of the Apex Court in United India Insurance Co. Ltd. V. Lehru (supra) & Nanjappan (supra) that the insurer is entitled, while deposing the amount payable before the Tribunal, seek to direct the RTA concerned not to register any transfer of the crime vehicle and to seek for attachment of the crime vehicle or other property of the insured as an assurance for execution and recovery in the same proceedings or under revenue recovery as per the MV Act, 1988 and also ask the Tribunal not to disburse the deposited amount to claimant (but for to invest in a bank) till such attachment order is made. However, after the same, the Tribunal shall not withhold the amount of the claimants, if there is any necessity to permit for any withdrawal but for to invest the balance in fixed deposit in a nationalized bank. There is no order as to costs.

Miscellaneous petitions, if any pending in this appeal, shall stand closed.