(Prayer: M.F.A. No.6015/2013 is filed under Section 173(1) of Motor Vehicles Act, 1988, against the judgment and award dated 06-05-2013 passed in M.V.C. NO.6846/2010 on the file of the 16th Additional Judge, Motor Accident Claims Tribunal, Bangalore City (SCCH-14), awarding a Compensation of Rs.15,79,000/- with Interest @ 6% P.A. from the date of this Petition till the date of Payment.
M.F.A. No.7547/2013 is filed under Section 173(1) of Motor Vehicles Act, 1988, against the Judgment and award dated 06-05-2013 passed in M.V.C. NO.6846/2010 on the file of the XVI Additional Judge, Motor Accident Claims Tribunal, Bangalore City (SCCH-14), partly allowing the claim Petition for Compensation and seeking enhancement of Compensation.)
1. Both these are appeals preferred assailing the judgment and award passed by the XVI Additional Judge, Motor Vehicles Accident Claims Tribunal-14, Bangalore City, ('the Tribunal' for brevity) whereby the injured claimant is awarded a compensation of Rs.15,79,000/- along with interest @ 6% per annum. While appellant/claimant in M.F.A.No.7547/2013 is aggrieved by the inadequacy of the compensation, the Insurance Company challenging its liability to indemnify the risk of the owner of the vehicle/insured, has filed M.F.A.No.6015/2013.
2. The claimant/Chetan.T.K. filed claim petition before the Tribunal contending that he is the employee of the second respondent; on 19.4.2010 at 2.15 p.m. he was traveling in the car bearing registration No.KA-53/N-5675 during the course of his employment and the said vehicle belonged to his employer; near Sengahalli gate of Kolar to Vijayapura Road, Kolar Taluk, due to the rash and negligent driving of the car with high speed, the vehicle went out of control and it toppled on the left side of the road. Due to the said impact, the injured claimant suffered grievous injuries; after first aid treatment in the nearby hospital at Kolar, he was shifted to Hosmat Hospital, Bangalore, for higher treatment and was an inpatient from 20.4.2010 to 26.4.2010. He was discharged from the hospital after treatment. Again he was admitted to the hospital on 27.4.2010 with the complaint of immobility and weakness of both lower limbs. Surgery was conducted for Lateral Mass Fusion C3 - C7 for the fracture of C4 and C5 on 13.5.2010; Elective Tracheotomy was conducted on 14.5.2010; ICD was inserted and later it was removed; he was discharged on 17.7.2010. He again was admitted to Bhagawan Mahaveer Jain Hospital, Bangalore, on 7.9.2010 for Tracheotomy closure. After Decannulation of Tracheotomy, he was discharged on 10.9.2010. On 13.9.2010, he was admitted at I-AIM Health Care Centre, Yelahanka, Bangalore. For loss of strength in both upper and lower limbs, bowel and urine incontinence, he was treated and discharged on 18.11.2010. On 4.3.2011, he was admitted at Bhagawan Mahaveer Jain Hospital, Bangalore, with the complaint of pressure sores over sacral and right trochanteric area. He was discharged on 10.3.2011 with an advice of follow-up treatment. On 21.7.2011, he was admitted to I-AIM Hospital Care Centre, Yelahanka, Bangalore. With regard to the said accident, the jurisdictional Police registered a case against the driver of the vehicle in respect of the offence under Sections 279, 337 and 338 of IPC. He was working as a Sales Executive in M/s. Bimal Auto Agency, Bangalore, earning Rs.6,000/- per month. Now he cannot bend his body, run, walk and climb the stairs due to the injury of the spine and lungs and cannot lift heavy objects and unable to earn and sought for compensation of Rs.20 lakhs under various heads.
During trial, PW-1 to PW-3 were examined for the claimant; on behalf of the Insurance Company, RW-1 was examined. The documents Exs.P1 to P21 and Ex.R1 were marked. After giving audience to both parties, the Tribunal held the insurer and the owner of the car both are jointly and severally liable to pay the compensation quantified at Rs.15,79,000/- with interest at 6% per annum.
3. Sri.O.Mahesh, learned Counsel appearing for the Insurance Company submits, the claim petition was signed by the father of the claimant but without an application seeking permission of the Court under the provisions of Order XXXII Rule 1 to 14 of CPC. The injured was not examined before the Tribunal; if it was the case of the claimant that he is unable to move around, nothing prevented the claimant to get examined through a Commissioner for non-compliance of the Order XXXII Rule 1 to 14 of CPC and the entire proceedings is vitiated. In the absence of a disability certificate to the effect that the claimant is 100% disabled and without an application seeking permission to prosecute the claim petition, the Tribunal could not have entertained the claim petition filed by the father. As evinced from the documentary evidence, it was not due to rash or negligent act of the driver but it was an inevitable accident. In that view of the matter, claim petition is not maintainable. The claimant being the employee of the insured, traveling in the vehicle of the owner/insured, in the absence of any premium being paid by the owner covering the risk of the employee, the Insurance Company is not liable to answer the award. The Tribunal ought to have framed necessary issues when the Insurance Company had raised the above grounds by way of additional objection statement and ought to have answered the issues. There is no discussion at all in the impugned judgment and award to saddle the Insurance Company with the liability of indemnifying the owner. The impugned judgment is cryptic and does not disclose the application of mind of the Tribunal to the contentions raised by the insurer and that makes the impugned judgment illegal. That apart, Rs.8,64,000/- is awarded towards medical expenses, which was liable to be reimbursed by the employer of the injured but the said fact was concealed and there was no proof of payment of these expenses by the injured. The compensation of Rs.5,40,000/- awarded under the head of 'future loss of earning capacity' is not proper in the absence of proof of employment and the income.
4. Sri.O.Mahesh continues with his submission that,, the father is not a competent witness for the claimant to adduce evidence because he is not the eye witness also. The evidence adduced by him is not legal for not obtaining the permission from the Court by filing necessary application. The policy in question does not cover the risk of the owner towards his employee and the Tribunal was required to frame issue in this regard and answer the same. Chapter XI (Sections 145 to 164) of the Motor Vehicles Act, 1988 deals with insurance of motor vehicle against third party risk. Proviso to Section 147 of the said Act does not require a policy to cover the liability of an injured during the course of his employment other than the liability arising under the Workmen's Compensation Act. The claimant being an employee not necessarily a 'workman' under the provisions of Workmen's Compensation Act, 1923 and no premium having been paid under India Motor Tariff-29, no liability can be fastened against the Insurance Company.
5. In reply, Sri.K.V.Shyamprasada, learned Counsel appearing for the appellant/injured claimant would submit that Order XXXII of CPC pertains to the "Suits by or against minors or persons of unsound mind"; the claimant herein is neither a minor nor a person of unsound mind. Order VII Rule 1(d) of CPC contemplates a statement to the effect if the plaintiff or the defendant is a minor or a person of unsound mind. The claimant having brought his case about his incapacity to sign the petition, no procedural irregularity can be attributed for not filing of an application seeking permission of the court by a separate application. The Karnataka Amendment to the Code of Civil Procedure further contemplates verification of the plaint to that effect about the particulars to be true to the best of knowledge and belief of the person filing the plaint, which is complied by the claimant and the contentions advanced before this Court having not been taken at the earliest point of time before the Tribunal and the proceedings having been allowed to continue and conclude, the Insurance Company is estopped from challenging the irregularity of the proceedings. Rule 232 of the Motor Vehicles Rules contemplates requirement of an application for compensation, which is duly complied. Said rules having been duly complied, there is no irregularity vitiating the entire proceedings. The Tribunal ignoring the evidence available to the effect that claimant was earning Rs. 6,000/- per month has taken his income as Rs. 5,000/- per month to work out the loss of future earning. Only Rs. 1,00,000/- is awarded under the head 'injury, pain and suffering', which is too inadequate having regard to the nature of injuries suffered and also the subsequent treatment undergone by him in various hospitals. Loss of earning during the period of treatment is calculated by assuming his notional income as Rs. 5,000/- though there was evidence that he was a Sales Executive earning Rs. 6,000/- per month. As per the evidence of the Doctor, the injured has suffered 100% disability to the whole body. But the Tribunal has accepted 50% disability towards loss of future prospects, which is incorrect. The interest awarded at 6% per annum is inadequate. The claimant is unable to move about on his own, he requires the assistance of an attendant allthrough day and night for further years to ensue. In that view of the matter, the award may be enhanced by reasonable amount.
6. Sri.R.K.Sowrabh, learned Counsel appearing for the employer-cum-owner of the vehicle placing his reliance on the judgment of the Apex Court reported in National Insurance Co.Ltd. -vs- Balakrishnan and Another, 2013 ACJ 199 submits that the policy in question is a package policy and whoever was travelling in the vehicle at the time of the accident is entitled for the benefit of contractual liability between the owner and the insurer, it does not matter that the claimant was an employee under the owner of the vehicle.
7. On the above reply submission, Sri.O.Mahesh for the Insurance Company places his reliance on a subsequent judgment of the apex court reported in (2013)12 SCC 84 in the matter of Ramachandra -Vs- Regional Manager, United India Insurance Co. Ltd. whereby the Insurance Company was absolved of its liability under the policy, for the owner not paying the additional premium for the death or bodily injury of his employee and further submits that the facts involved in Balakrishnan's case (supra) stand distinguished from the present case since the injured in the above case was a Managing Director of the Company whose position is in par with the employer himself and in the present case the inured being an employee cannot avail the benefit of said judgment. Further he draws the attention of the Court that in the said case, the entire case was not disposed of, matter was remanded to the Tribunal to find out whether the policy in question was Act policy or comprehensive package policy. Since it is not brought forth as to the final result of the said case, the owner cannot take the benefit of the observation made in the said case in the midst of its judgment.
8. With the above rival submissions, following points arise for our consideration:
(1) Whether the proceedings before the Tribunal is not properly conducted thereby frustrating the entitlement of claimant/injured for compensation?
(2) Whether under the policy in question/Ex.R1, the risk of owner/employer is liable to be indemnified?
(3) Whether the compensation awarded is inadequate calling for enhancement?
9. As rightly pointed out by the learned counsel for the claimant, the Insurer while filing objection statement to the main petition did not take the ground of irregularity in instituting the petition. After the petitioner, effected amendment to the claim petition by bringing forth the particulars of his further treatment taken, expenses met and seeking enhanced compensation of Rs.50 Lakhs (initially, he had sought for Rs.30 Lakhs), the Insurer filed his additional objection statement disowning its liability to indemnify the claimant since he was traveling in the car of employer during the course of his employment. At that stage also, no such contention about the improper frame of the petition was pleaded. The Apex Court in the matter of Mantoo Sarkar Vs. Oriental Insurance Co. Ltd. reported in (2009) 2 SCC 244 observed thus:
"14. No doubt the tribunal must exercise jurisdiction having regard to the ingredients laid down under sub-sec.(2) of section 166 of the Act. We are not unmindful of the fact that in terms of Sec.169 of the Act, the tribunal, subject to any rules, may follow a summary procedure and the provisions of the Code of Civil Procedure under the Act has a limited application but in terms of the rule "save and except" and specific provision made in that behalf, the provisions of the Code of Civil Procedure would apply. Even otherwise the principles laid down in the Code of Civil Procedure may be held to be applicable in a case of this nature".
10. The proceedings before the Tribunal not being an adjudication of an original suit, there is no irregularity or impropriety on the part of the Tribunal in proceeding with the Claim petition which was filed by the father of the injured because of the claimant's physical disability. If the respondents were to doubt his disability, nothing prevented them to seek for his examination by a Medical Board. Having not done so, it lies outside the propriety of the Insurance Company to contend in this appeal about improper conduct of the proceedings before the Tribunal.
11. Now coming to the question of adequacy of compensation in the absence of any documentary proof about the income of the injured, the Tribunal has proceeded on the assumption that the monthly income of the injured at the relevant point of time is Rs.5,000/-. Having regard to the age of the injured, (he was 23 years as on the date of the incident), the Tribunal applied the multiplier '18' (as per the guidelines of Apex Court in Sarla Verma Vs. Delhi Transport Corporation, 2009 ACJ 1298) to capitalize his loss of future income. The petitioner had examined the doctor/PW2, who had examined him. This witness assessed his functional disability, resulting from the grievous injuries sustained in the incident (fracture of C4 and C5 Vertebra with traumatic quadriplegia with involvement of bowel and bladder as 100%). But, permanent residual disability was taken at 50% by the Tribunal consequently, the loss of future income was calculated at Rs.5,40,000/- (Rs.5,000/- x 12 x 18 x 50/100). But, having regard to the date and year of accident, Rs.5,500/- per month would be the appropriate monthly income in the absence of documentary proof. That being so, Rs.5,94,000/- (Rs.5,500/- x 12 x 18 x 50/100) would be the appropriate compensation towards loss of future earning capacity. There shall not be any modification in respect of Rs.50,000/- awarded towards food conveyance and other expenses during treatment period and Rs.8,64,000/- awarded towards medical expenses. However, towards loss of income during treatment period of 5 months, Rs.25,000/- awarded and it shall be enhanced to 27,500/- (Rs.5,500 x 5) instead of Rs.25,000/-. No amount is awarded towards loss of marital prospects which, in our opinion, under the said head Rs.1,00,000/- would sub-serve the ends of justice. So also no amount is awarded towards future medical expenses. Having regard to the nature of injuries and attendant's expenses which may have to be incurred, we hold that Rs.3,00,000/- as the appropriate amount under the head of future medical and attendant's expenses. Hence, the claimant is entitled for a total compensation of Rs.20,35,500/-, the break-up of which is as under:
| Pain and suffering | Rs. 1,00,000/- |
| Loss of earning capacity | Rs. 5,94,000/- |
| Food, Conveyance and other expenses during treatment | Rs. 50,000/- |
| Marital prospects | Rs. 1,00,000/- |
| Medical expenses | Rs. 8,64,000/- |
| Loss of income during treatment period | Rs. 27,500/- |
| Future medical expenses and attendant's charges | Rs. 3,00,000/- |
| Total | Rs.20,35,500/- |
Thus, the appellant/claimant is entitled for total compensation of Rs.20,35,500/- with interest at 8% p.a. on the enhanced amount. Accordingly, there would be enhancement of award amount of Rs.4,56,500/-.
12. As regards the question of liability to answer the award, the Tribunal has proceeded on the ground that the owner and insurer of the Car are jointly and severally liable to pay compensation, though there was evidence form the insurer side that Insurance company has not collected additional premium as per IMT-29 to cover the legal liability towards the employees of the insurer other than the driver who may be driven the vehicle.
13. The Apex Court in 2013 ACJ 199 (supra), addressed the situation where the injured was the managing director of the company and the vehicle involved in the accident stood in the name of the company. The Apex Court took note of the judgment of High Court of Delhi in Yashpal Luthra Vs. United India Insurance Co. Ltd., reported in 2011 ACJ 1415 (Delhi) wherein it was held that the comprehensive/package policy would cover the liability of the insurer for payment of compensation for the occupant in a Car. However, having noticed that there was no discussion either by the Tribunal or High Court as to whether the policy in question was act policy or comprehensive/package policy, the matter was remanded to the Tribunal to scrutinize the policy in a proper perspective and to fix the liability on the insurer if it is found to be comprehensive/package policy.
14. In Ramachandra's case (supra), which is a later decision, on a survey of earlier judicial pronouncements, it was observed that the Court has clearly held that the liability to pay compensation in respect of death or bodily injury to an employee should not be restricted to that under the Workmen's Compensation Act but should be more or unlimited. However, the determination would depend whether a policy has been taken by the vehicle owner by making payment of extra premium and whether the policy also contains a clause to that effect.
15. Reverting back to the Policy in question, it is marked in evidence as Ex.R1 and the very description of the document is "Private Car Package Policy". The break-up details of premium collected under the heads of A-own damage and B-liability is mentioned. Under the head A-liability Rs.800/- is collected towards basic premium including premium for TPPD and Rs.100/- towards personal accident benefit i.e., under Section 3 (Owner and driver) CSI Rs.2,00,000/-, Rs.250/- for unnamed passengers, Rs.25/-towards legal liability for paid driver. But no premium is collected towards legal liability of paid employee (IMT 29). As per Schedule of the policy Section II, the liability to the third party is not covered where such injury or death arises in the course of employment of such person by the insured. IMT 29 of the Schedule reads thus:
Legal liability to employees of the insured other than paid driver and/or conductor and/or cleaner who may be traveling or driving in the employer's car (private cars only/motorized two wheelers (not for hire or reward)) In consideration of the payment of an additional premium @ Rs.25/- per employee insured notwithstanding anything to the contrary contained in the policy it is hereby understood and agreed that the insurer will indemnify the insured against the insured's liability at Common Law and Statutory Liability under the Fatal Accidents Act, 1855 for compensation (including legal costs of any claimant) for death of or bodily injury to any employee (other than paid drivers) of the within named insured being carried in or upon or getting on to or alighting from or driving the vehicle insured. Provided that in the event of an accident whilst the vehicle insured is carrying more than.....* employees of the insured (including the driver) the insured shall repay to the insurer a rateable proportion of the total amount payable by the insurer by the reason of this endorsement in respect of accident in connection with such vehicle insured. Subject otherwise to the terms, conditions limitations and exceptions of this policy. NB. *To insert the number of employees for which the premium has been paid.
16. In the light of the above conditions stipulated in the policy the insurer finds justification in contending that it is not liable to vouch for the liability of the insured, in view of terms of contract under the policy. This contention could have been appreciated but for the following reasons-
Before the Tribunal while filing the objection to the claim petition the insurer never pleaded that no premium is collected to cover the risk of the owner of the vehicle in respect of injury or death of his employee. It is only after the claimant amended his petition by seeking enhanced compensation while filing additional objection to the amended petition, the company contended that at para-5 "it is submitted that the petitioner as on the date of accident was traveling in the car during the course of his employment with the insured and the risk of such persons is not covered under the terms and conditions. Hence, the 1st respondent is not liable to meet the claim of the petition. Petition as against 1st respondent may be dismissed.
17. On the insurer taking the above stand, the claimant filed his rejoinder that the insurer has to confine the additional written statement to the new contention raised by the claimant by way of amendment and the cannot take additional defenses which he has not taken at the first instance while filing written statement. Without insisting the Tribunal to pass an order in respect of this new defence and without an additional issue being framed the parties have entered into trail and prosecuted their case knowing fully well the case of the other side. The owner of the vehicle though served, remained absent and was placed exparte. It has come in the evidence that the insurer has released the compensation towards own damage of the vehicle as per the terms of the policy. The insurer had every opportunity to bring the owner to the Tribunal Forum and would have sought for adjudication at the hands of the Tribunal about the liability interse to compensate the risk of ht owner. Without doing so, the trial is allowed to proceed. Now the owner has appeared in this appeal. The owner admits the identity of the injured/employee and the insurer has confined its liability to the extent of terms and conditions of the insurance policy. Under the circumstance, no premium having been collected from the employer/owner, it is the claimant/victim who is the sufferer for no fault of him. In the said situation, we are of the considered opinion that the insurance company shall firstly pay the compensation and enhanced compensation with accrued interest then realize the amount from the owner.
18. Such a direction to the Insurance Company, 'to pay first and then recover' came up for consideration before the Apex Court in Manager, National Insurance Company Ltd. Vs. Saju P. Paul and another reported in (2013) 2 SCC 41. On a survey of earlier decision in this regard, the Apex Court having regard to the peculiar facts of the case at its hand and having noticed that pursuant to the order of the Court the Insurance Company had invested the compensation amount in fixed deposit allowed the claimant to withdraw the amount deposited by the Insurance Company, permitted the Insurance Company to recover the amount so paid from the owner by following the procedure as laid down in the matter of National Insurance Co. Ltd. Vs. Challa Bharathamma and Ors. reported in (2004) 8 SCC 517, in the said judgment, it was observed in Para No.13 reads thus:
"13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the Executing Court concerned as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.
19. We are further concerned that the trial Court while moulding the relief has lost sight of the fact that the claimant was suffering from quadriplegia and was even disabled to sign the claim petition. That being so, if the claimant is still disabled to manage the compensation awarded by the Tribunal by himself, that further complicates the issue and requires a specific direction in this regard. In that view of the matter, with the permission of the Tribunal the father of the claimant/guardian shall utilize the periodic interest that the compensation amount deposited by the insurance company would earn for the welfare of the claimant.
In the result, we pass the following:
ORDER
1) MFA NO.7547/2013 filed by the claimant is allowed in part.
2) Judgment and award passed by the XVI Additional Judge, Motor Vehicles Accident Claims Tribunal-14, Bangalore City, is modified by awarding enhanced compensation of Rs.4,56,500/- along with interest @ 8% on the enhanced compensation from the date of petition till realization.
3) The respondent/Insurance Company is directed to deposit the balance award amount along with accrued interest and enhanced compensation with accrued interest within three weeks from the date of receipt of copy of this order before the concerned Tribunal.
4) Registry is directed to transmit the case records, the amount of Rs.9,01,128/- deposited by the Insurance Company in compliance of the order of this Court dated 15.07.2013 and also the statutory deposit to the concerned Tribunal.
5) Out of Rs.4,56,500/- deposited along with the accrued interest as above, Rs.3,00,000/- shall be invested in any Nationalized Bank/Scheduled Bank/Grameena Bank of claimant's choice which shall be renewed automatically every five years.
6) The father/guardian of the claimant is permitted to draw interest accrued on the amount deposited by the insurer periodically and utilize the same for the welfare of the claimant, during his life time or until he recovers from quadriplegia whichever is earlier.
7) MFA No.6015/2013 filed by Insurance Company stands disposed off reserving liberty to realize the amount paid to the claimant from the 2nd respondent therein in the same proceeding, in the light of law laid down by the Apex Court in National Insurance Co. Ltd. Vs. Challa Bharathamma and Ors (Supra).