R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE18H DAY OF DECEMBER, 2020 BEFORE THE HON’BLE MR.JUSTICE HANCHATE SANJEEVKUMAR M.F.A. NO.32331/2011 C/W M.F.A. NO.32343/2012 (MV) IN M.F.A. NO.32331/2011: Between: Naresh @ K. Nagesh Kumar S/o Surayanaryana Shetty Age:
22. Years, Occ: Electrician Shilpa Medicare Ltd. R/o Tungabhadra, Now residing Maddipet, Raichur - 584 101 … Appellant (By Sri Basavaraj R. Math, Advocate) And:
1. The Chief Manager Head Office Manager Cholamanadalam M.S. General Insurance Co. Ltd. Regd. & H.O. Dare House 2nd Floor, No.234, NSC Bose Road Chennai 2. Khadar Bhasha S/o Abdul Basha Age: Major, Occ: Driver of Lorry 2 Bearing Regn. No.KA-02/D-6126 R/o Near Siddappa Hotel LBS Nagar, Raichur 3. D. Venkatesh S/o Late Dorai Swamy Naidu Age: Major, Occ: Owner of Lorry Bearing Regn. No.KA-02/D-6126 R/o No.36, Subbannachari Lane 2nd Cross, Cottonpet, Bangalore … Respondents (Smt. Saroja S. Patil, Advocate for R1; Sri P.N. Rajeshwar, Advocate for R3; V/O Dtd. 13.08.2014 notice to R2 is held sufficient) This MFA is filed under Section 173(1) of the Motor Vehicles Act, praying to modify the impugned judgment and award dated 27.12.2010 passed by the MACT & FTC-I at Raichur, in MVC No.264/2010. IN M.F.A. NO.32343/2012: Between: D. Venkatesh S/o Late Dorai Swamy Naidu Age: Major, Occ: Owner of Lorry Bearing No.KA-02/D-6126 R/o No.36, Subbannachari Lane 2nd Cross, Cotton Pet, Bangalore … Appellant (By Sri P.N. Rajeshwar, Advocate & Sri H.R. Narayana Rao, Advocate) 3 And:
1. Sri Naresh @ K. Nagesh Kumar S/o Suryanarayana Shetty Aged about 23 Years, Occ: Electrician Shilpa Medicare Ltd. R/o Tungabhadra Now R/o Maddipet, Raichur - 584 101 2. Khadar Basha S/o Abdul Basha Age: Major, Occ: Driver of Lorry Bearing No.KA-02/D-6126 R/o Near Siddappa Hotel LBS Nagar, Raichur - 584 101 3. The Chief Manager Head Office Manager Cholamandalam M S General Insurance Co. Ltd. Regd. & H.O., Dare House 2nd Floor, No.234, NSC Bose Road Chennai - 600 001 … Respondents (Sri Basavaraj R. Math, Advocate for R1; Smt. Saroja S. Patil, Advocate for R3; V/O Dtd. 26.11.2014 notice to R2 is dispensed with) This MFA is filed under Section 173(1) of the Motor Vehicles Act, praying to set aside the judgment and award dated 27.12.2010 passed in MVC No.264/2010 by the MACT & Fast Track Court-I at Raichur. These appeals coming on for further hearing this day, the Court delivered the following:
4.
JUDGMENTMFA No.32311/2011 is filed by the claimant under Section 173(1) of the Motor Vehicles Act, against the judgment and award dated 27.12.2010 passed in MVC No.264/2010 by the MACT & Fast Track Court-I at Raichur (for short ‘the Tribunal’), questioning the liability of payment of compensation fastened on respondent Nos.2 and 3 herein and also seeking enhancement of compensation.
2. MFA No.32343/2012 is filed by the owner of the lorry bearing Regn. No.KA-02/D-6126 against the very same judgment and award, questioning the liability fastened on him.
3. Brief facts of the case as stated are that, on 04.11.2009 at 6.00 a.m., the claimant was proceeding on his motorcycle bearing Regn. No.KA-37/E-9652 by riding the same on extreme left side of the Hyderabad Road and when the claimant was in front of Adarsha 5 Weigh Bridge, at that time, the driver of lorry bearing Regn. No.KA-02/D-6126 by name Khadar Basha drove the same with high speed and in a rash and negligent manner and dashed to the motorcycle of the claimant and as a result of the same, the claimant had sustained grievous injuries. Therefore, he has filed a claim petition before the Tribunal under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries sustained by him in the road traffic accident.
4. The Tribunal, after considering the evidence on record has awarded a compensation of Rs.6,25,996/- with interest at 6% p.a. from the date of petition till realisation by fastening liability on the driver Khadar Basha and the owner of lorry bearing Regn. No.KA-02/D-6126 by exonerating the insurance company from payment of compensation. Being dissatisfied with the quantum of compensation and also questioning the liability fixed on the owner of the lorry, 6 the claimant has preferred MFA No.32331/2011. Whereas, the owner of the lorry has filed MFA No.32343/2012, questioning the liability fastened on him by exonerating the insurance company.
5. Before adverting to the case on its merits, let the interim applications filed in MFA No.32343/2012 are to be considered.
6. I.A. No.2/2020 is filed by the owner under Order XLI Rule 27 of CPC for production of additional documents which are,
1) copy of Extract of Driving Licence of one S.Mabu @ S. Mahiboob @ S. Mahaboob S/o S. Rashid, who is driver of the said lorry,
2) copy of Agreement dated 07.11.2009 submitted by the said S.Mabu @ S. Mahiboob @ S. Mahaboob and
3) copy of vehicle owner's statement dated 07.11.2009 given by S.Mabu @ S. Mahiboob @ S. Mahaboob, who is driver of the lorry. 7
7. Further, I.A. No.1/2020 is filed by the owner under Order XLI Rules 2 and 3 read with Section 151 of CPC to raise additional grounds in the appeal memorandum.
8. Both these applications - I.A. Nos.1/2020 and 2/2020 are considered and they are liable to be allowed for the reason that the ground raised in I.A. No.1/2020 is that the owner had entrusted the truck to the licenced driver one S.Mabu @ S. Mahiboob @ S. Mahaboob, who was holding valid and effective driving licence as on the date of accident, but he has unauthorisedly entrusted the said vehicle to Khadar Basha without owner's knowledge and therefore the owner has no control over this aspect of the matter. The documents sought to be produced by way of the additional evidence is driving licence of S.Mabu @ S. Mahiboob @ S. Mahaboob, who is authorised driver as authorised by the owner to drive the said lorry. 8 Considering the other evidences on record viz., police records, these grounds are not new grounds and making new case at all, but which are in addition to and supplement to the facts, circumstances and grounds raised already in the appeal memorandum. Therefore, these two applications i.e., I.A. Nos.1/2020 and 2/2020 are allowed. Therefore, the additional evidence sought to be produced by the owner of the lorry are considered along with the additional evidence while considering the present appeals on merits.
9. It is not in dispute that the appellant in MFA No.32343/2012-owner is having ownership over the lorry bearing Regn. No.Ka-02/D-6126 and had entrusted the said lorry to a licenced driver by name S.Mabu @ S. Mahiboob @ S. Mahaboob S/o S. Rashid. The said driver drove the lorry and taken to the place at Hyderabad and at that time as per the police records, it reveals that the cleaner of the said lorry by name 9 Khadar Basha drove the said lorry and caused the accident. Hence, it appears that, the owner had entrusted the said lorry to the driver S.Mabu @ S. Mahiboob @ S. Mahaboob, who was holding valid and effective driving licence as on the date of accident and then the said driver had handed over the control of the lorry to the cleaner and then the cleaner drove the said lorry and caused accident. These factual matrix are not disputed by the parties to the present appeals.
10. Under these facts and circumstances, the Tribunal had exonerated the insurance company from making payment of the compensation on the ground that the lorry was driven by the cleaner at Hyderabad for a short period when it was entrusted to him by the driver S.Mabu @ S. Mahiboob @ S. Mahaboob and met with accident. Therefore, by forming an opinion that the person who was on the wheel was not holding 10 licence and caused accident, the Tribunal has fastened liability on the owner and driver of the lorry.
11. Learned counsel for the owner as well as the learned counsel for the claimant submitted that in the present case, the owner of the lorry had not committed any fault and has taken every caution and precautions while entrusting the lorry to the licenced driver namely S.Mabu @ S. Mahiboob @ S. Mahaboob and placed reliance on the additional evidence produced stating that the said S.Mabu @ S. Mahiboob @ S. Mahaboob was holding driving licence as on the date of accident. Therefore submitted that the exclusion clause as enumerated in Section 96(2) (b) (ii) of the M.V. Act is not applicable when the main purpose of the insurance policy is considered and the main purpose overrides the exclusion clause considering the provisions of the M.V. Act are benevolent in nature and that can be seen with benevolent eyes. Therefore, when the owner has taken 11 every precautions and he had complied the statutory duty of entrusting the truck to the person, who was holding valid and effective driving licence, it cannot be said that the owner had committed either wrong or fault so as to exonerate the insurance company as per the contract of insurance. Therefore, in this regard, the learned counsel for the owner relied on the judgment of Hon'ble Apex Court in the case of Skandia Insurance Co. Ltd. vs. Kokilaben Chandravadan and others reported in (1987) 2 SCC654 The learned counsel argued with reference to the ratio laid down in the said judgment by the Apex Court saying that in the said cited case also, the facts are very similar and therefore the ratio in the above said case is squarely applicable to the case on hand. Therefore, the insurance company shall indemnify the owner and pay the compensation to the claimant. Therefore, prays to allow the appeals. 12
12. On the other hand, learned counsel for the respondent-insurance company submitted that in the present case, even though the owner had entrusted the lorry to the driver namely S.Mabu @ S. Mahiboob @ S. Mahaboob, who was holding valid and effective driving licence as on the date of accident, but the said driver had entrusted the said truck to the cleaner for short time and in that period accident was occurred and therefore, it is ultimately seen that the lorry was driven by a person, who is cleaner and he was not holding driving licence and the owner has vicarious liability for the fault committed by his driver. Therefore submitted that the aspect of vicarious liability not only extended to its immediate driver who is entrusted by the owner, but it also extends up to the another person when that person drove the truck and caused accident. Therefore, the vicarious liability is also extended to the second person, who was on the wheel and caused accident. Therefore submitted that in the present case, there is 13 breach of conditions of policy as per the exclusion clause stated in the insurance policy. Hence, submitted that insurance company has established the defence, thus, the insurance company is not liable to pay the compensation. Therefore, prays to dismiss both the appeals.
13. As discussed above, in the present case, the facts involved in the case are not disputed. The appellant in MFA No.32343/2012 is the owner of lorry bearing Regn. No.KA-02/D-6126, who has authorised his driver S.Mabu @ S. Mahiboob @ S. Mahaboob to drive the lorry, who was holding driving licence. The copy of driving licence is produced by way of additional evidence by virtue of I.A.2/2020. It is proved that the driver S.Mabu @ S. Mahiboob @ S. Mahaboob was holding driving licence to drive the light motor vehicle both transport and non transport. Therefore, as on the date of accident, this S.Mabu @ S. Mahiboob @ 14 S. Mahaboob was holding valid and effective driving licence to drive the lorry and this fact is also not disputed by the insurance company. It is only the contention of the insurance company that the said S.Mabu @ S. Mahiboob @ S. Mahaboob had entrusted the lorry to one Khadar Basha, who drove the lorry and at that moment accident was taken place. Therefore, under these circumstances, whether the insurance company is liable to be exonerated from payment of compensation on the ground of contract of insurance between the insurer and insured and what would be the extent of vicarious liability to be attached to the owner, who has entrusted the lorry to the driver who was driving the lorry and then accident was caused by another person as sated above and upon considering the exclusion clause in the insurance policy vis-à-vis the main purpose of the statutory provisions enshrined in the Motor Vehicles Act are to be considered. 15
14. In similar facts and circumstances involved in the case, I place reliance on the judgment of the Hon'ble Supreme Court in Skandia Insurance Co. Ltd. (supra). It is worthwhile to extract the facts involved in the said case which are at para 2 of the said judgment, which reads as under:
"2. The facts are not in dispute. The Claims Tribunal as also the High Court have concurred with the findings which are recorded in the following passage: The accident in question took place on November 14, 1964. The truck had come from Barejadi and had been unloaded at Baroda. The driver had gone for bringing snacks from the opposite shop leaving the engine running. The ignition key was in the ignition lock and not in the cabin in the truck as alleged by the driver. The driver had handed over control of the truck to the cleaner. On these facts the driver having been grossly negligent in leaving such a truck with its running 16 engine in the control of the cleaner, this being the immediate cause of the accident. the owner of the car viz., the insured was held vicariously liable along with the driver and the cleaner.
15. The facts involved in the above stated judgment and in the present case are having similarity. Then under these circumstances, the High Court of Gujarat, High Court of Andhra Pradesh have taken a view that the owner never give permission to the cleaner to drive the truck and therefore even though the owner had become liable by reason of vicarious liability, he could not be held guilty of the breach of contract embodied in the insurance policy. Therefore, the insurance company cannot be exonerated from its liability. (para 3 & 5 in the judgment) 16. But, the High Court of Orissa, Assam and Madhya Pradesh have taken a contra view that under the principle of vicarious liability, under these facts and 17 circumstances, the owner cannot plead exoneration from payment of compensation and under these circumstances, where there is breach of contract established as per the exclusion clause, the insurance company was exonerated by holding that the insurance company cannot indemnify its owner on these factual matrix and circumstances.
17. Therefore, where there is conflict occurred between two aspects on exclusion clause stated in the insurance policy as it is a contractual matter between the insurer and insured by contending that this is in confirmation with Section 96(2) (b) (ii) of the M.V. Act vis-à-vis the main purpose of entitlement of the claimants for claiming compensation when the claimants are third parties by considering the benevolent provisions of the M.V. Act.
18. Therefore, in this regard, the Hon'ble Apex Court in Skandia Insurance Co. Ltd. (supra) was 18 pleased to make observations on principle of vicarious liability, exclusion clause and main purpose and pleased to observe at paragraphs 11 and 12 as under:
"11. The question therefore deserves to be examined afresh on its own merits on principle. Now, the proposition is incontrovertible that so far as the owner of the vehicle is concerned, his vicarious liability for damages arising out of the accident cannot be disputed having regard to the general principles of law as also having regard to the violation of the obligation imposed by Section 84 of the Act which provides that no person driving or in charge of a motor vehicle shall cause or allow the vehicle to remain stationary in any public place, unless there is in the driver's seat a person duly licensed to drive the vehicle or unless the mechanism has been stopped and a brake or brakes applied or such other measures taken as to ensure that the vehicle cannot accidentally be put in motion in the absence of the driver. However, in the present case the appellant contends that the exclusion clause is strictly in 19 accordance with the statutorily permissible exclusion embodied in Section 96(2) (b) (ii) and that under the circumstances the appellant insurance company is not under a legal obligation to satisfy the judgment procured by the respondents.
12. The defence built on the exclusion clause cannot succeed for three reasons, viz. : (1) On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfil the promise and he himself is not guilty of a deliberate breach. (2) Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being 20 given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver. (3) The exclusion clause has to be 'read down' in order that it is not at war with the 'main purpose' of the provisions enacted for the protection of victims of accidents to that the promisor is exculpated when he does everything in his power to keep the promise.
19. Further, in the judgment of Hon'ble Apex Court in the case of Sohan Lal Passi vs. P. Sesh Reddy and others reported in 1996 ACJ1044(FB), the facts and circumstances are similar that the bus driver allowed the conductor/cleaner who was not duly licensed person to drive the bus and he caused the accident. It was contended that accident occurred when an unlicensed person was driving the vehicle, there has been a breach of specific condition in the policy and the 21 insurance company cannot be held liable to indemnify the owner. But, it was held that the owner had engaged a licensed driver and had placed the vehicle in his charge and there was no allegation that the owner was guilty of violating the condition that the vehicle shall not be driven by a person not duly licensed. Therefore, under these factual matrix and circumstances, the Hon'ble Apex Court was pleased to observe at para 13 as follows:
"13. This court in the case of Kashiram Yadav v. Oriental Fire & Genl. Ins. Co. Ltd., 1989 ACJ1078(SC), reiterated the view expressed in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ411(SC). While referring to that case it was said:
"… There the facts found were quite different. The vehicle concerned in that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to fetch some snacks from the 22 opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the condition incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This court expressed the view that it is only when the insured himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the insurance company that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the 23 insured. It was also observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach. We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by driver's acts or omission others meddle with the vehicle and cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance."
We are in respectful agreement with the view expressed in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, 1987 ACJ411(SC)."
24 Therefore, under the very similar facts and circumstances involved in the said case as that of the present case, the Hon'ble Apex Court has exonerated the owner of the bus and made the insurance company liable to pay the compensation on the ground that the owner is not guilty in entrusting the bus to a person who was holding driving licence. Therefore, when there is no breach committed by the owner as per contract of insurance, then the owner cannot be made liable. Therefore, unless the owner is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the owner. Therefore, in case without the knowledge of the owner, if by driver's acts or omission others meddle with the vehicle and caused an accident, the insurer would be liable to indemnify the owner. Therefore, under such circumstances, the insurance company cannot take the defence of a breach of the condition of the policy. 25 Therefore, there will be a distinction on the part of the owner for putting the liability on the owner. If the owner had entrusted the vehicle consciously and having knowledge that the person was not holding driving licence, but entrusted the vehicle to such person to drive, then under those circumstances, it can be said that the owner had committed breach of conditions of the policy. But, where the owner had entrusted the vehicle to a person who was holding due licence to drive the vehicle and had fulfilled the conditions of insurance policy by authorising the person who holds driving licence, then at that point, the owner has fulfilled the contract of insurance. There afterwards, if that driver, who was holding driving licence handed over the vehicle to a cleaner/conductor who was not holding driving licence and meets with accident, the insurance company cannot take the defence that the owner has violated the conditions of insurance policy. In these two 26 contingencies a distinguish can be made between the owners.
20. Further, the Hon'ble Apex Court in the case of National Insurance Co. Ltd. V. Swaran Singh and others reported in 2004 ACJ1was pleased to observe at para 58 as follows:
"58. Skandia, 1987 ACJ411(SC), on the other hand, has been approved by a three-Judge Bench, when the correctness thereof was referred to a larger Bench in Sohan Lal Passi's case, 1996 ACJ1044(SC), wherein a three-Judge Bench of this court noticed the ratio propounded in Skandi's case and observed:
"…In other words, once there has been a contravention of the condition prescribed in sub-section (2) (b) (ii) of section 96, the person insured shall not be entitled to the benefit of sub-section (1) of section 96. According to us, section 96 (2) (b) (ii) should not be 27 interpreted in a technical manner. Sub- section (2) of section 96 only enables the insurance company to defend itself in respect of the liability to pay compensation on any of the grounds mentioned in sub-section (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person who is not duly licenced. This bar on the face of it operates on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted. In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed driver and if the accident takes place when the vehicle is being driven by a person not duly licensed on the basis of the authority of the driver duly authorised to drive the vehicle whether the insurance company in that event shall be absolved from its liability?. The 28 expression 'breach' occurring in section 96 (2) (b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the court that such violation or infringement on the part of the insured was wilful. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, then insurance company cannot be repudiate its statutory liability under sub-section (1) of section 96…
21. Therefore, considering the ratio laid down by the Apex Court in series of decisions stated supra, the question involved in the present case can be considered on two principles. One is, exclusion clause stated in the 29 insurance policy and other is, main purpose involved in the statute to fulfill the object of the Act. The ratio laid down is while making interpretation of considering the reasons and object stated in the statute, when the case is to be considered on its background, main purpose involved in the statute and considering the exclusion clause between contract of two persons, the main purpose prevails over the exclusion clause. The main purpose is that the third parties who are victims of the accident can suitably be compensated and at the same time, where there is exclusion clause that can be interpreted whether either of the parties fulfilled the contract or not. Considering the exclusion clause in the contract of insurance it is duty cast on the owner to entrust the vehicle to a person who is duly licenced to drive the vehicle and at that particular point of time the owner discharges his onus of contract. In the present case, the owner has entrusted the vehicle to a person who was holding due driving licence to drive the vehicle 30 and this fact is not disputed by the insurance company. The only defence of the insurance company is, the duly licenced driver of the lorry has entrusted the said lorry to a cleaner who was not holding driving licence. Therefore, under these facts and circumstances, the Hon'ble Apex Court while making interpretation of the 'main purpose' contained in the statute and the 'exclusion clause' in the contract of insurance was pleased to lay down the law that unless the insurance company establishes that the owner has engaged or is having consciousness that he is entrusting the vehicle to a person who was not holding driving licence, the insurance company cannot be exonerated from its liability.
22. In the present case, the insurance company has not produced any evidence to show that the owner has entrusted the vehicle to a person who was not holding driving licence. But, the admitted fact emerged 31 is that the owner had entrusted the vehicle at Bengaluru to one S.Mabu @ S. Mahiboob @ S. Mahaboob, who was holding driving licence to drive the vehicle and after driving the lorry to Hyderabad and after reaching the Hyderabad, the said driver S.Mabu @ S. Mahiboob @ S. Mahaboob had entrusted the truck to the cleaner. Therefore, under these circumstances, the insurance company is liable to pay the compensation by indemnifying the owner as the owner has performed his part of contract and on this exclusion clause, the insurance company is not liable to be exonerated, as the main purpose involved in the Act is to suitably compensate the victims of the accident who are third parties. In the present case, the victims are third parties. Therefore, the present case is squarely covered by the judgments of the Hon'ble Apex Court stated supra. 32
23. Therefore, it is the ratio laid down on this point that once the owner has taken precaution in entrusting the truck to licenced driver, then the insurance company cannot be absolved once it is shown that the owner had done everything in his power and fulfilled the terms as per the contract of insurance. In the present case, the owner was cautious and in his consciousness has entrusted the lorry to the driver, who was holding driving licence. Therefore, under these circumstances, the provisions of Section 146(2)(b((ii) of the M.V. Act are applicable in the present case, as accident was caused after the enforcement of M.V. Act, 1988. The owner had substantially complied the conditions enumerated in the insurance policy. The owner in the present case with all his consciousness and as per his control and power has entrusted the lorry to the driver, who was holding driving licence and therefore, the exclusion clause stated in the insurance policy can be read along with the main purpose of the 33 provisions enshrined in the M.V. Act, which is enacted for the protection of the victim, much particular to the third parties involved in the accident. Therefore, when the owner had complied all the statutory requirements and also had discharged his obligations as embedded in the contract of insurance entered with the insurance company considering the main purpose of the provisions of the M.V. Act, 1988, then the main purpose of the M.V. Act prevails over the exclusion clause stated in the insurance policy for the reason that the owner had already discharged his contractual obligations by entrusting the truck to a person, who was holding valid driving licence as discussed above. Therefore, the insurance company cannot be absolved of its liability under these facts and circumstances involved in the case.
24. Therefore, the Hon'ble Apex Court in the above referred case was pleased to make interpretation 34 in this regard as the main purpose of the provisions of M.V. Act are to protect the interest of the victims arising out of the accident, much particularly, where the victims are third parties. In the present case, the claimant is third party. Therefore, their Lordships were pleased to observe at paragraphs 11 and 12 as above (in Skandia case). Therefore, ultimately, the Hon'ble Apex Court had affirmed the view taken by the High Court of Gujarat and Andhra Pradesh and dissented the opinion formed by the High Court of Orissa, Madhya Pradesh and Assam, as they are error. Therefore, ultimately it is the ratio laid down by the Hon'ble Apex Court that the exclusion clause does not exonerate the insurance company in comparison with main purpose articulated in the statute.
25. Therefore, applying the ratio laid down by the Hon'ble Apex Court in Skandia Insurance Co. Ltd., in Sohan Lal Passi and in Swaran Singh cases 35 (supra), the same is squarely applicable to the case on hand. Therefore, the observation made by the Tribunal exonerating the insurance company is erroneous, as it is contrary to the principles of law laid down by the Hon'ble Apex Court stated supra. Therefore, the said driver S.Mabu @ S. Mahiboob @ S. Mahaboob was having valid and effective driving licence as this fact is not disputed and also the owner had entrusted the said truck to the said S.Mabu @ S. Mahiboob @ S. Mahaboob. Under these circumstances, as per the contract embedded in the insurance policy, the owner had discharged his obligations and it cannot be said that he has committed breach of contract Therefore, as per the insurance policy, the insurance company shall indemnify the owner of the lorry and accordingly it is liable to pay compensation to the claimant. Therefore, MFA No.32343/2012 filed by the owner is liable to be allowed and so far as liability is concerned, the 36 judgment and award of the Tribunal is liable to be modified.
26. Coming to MFA No.32331/2011 filed by the claimant seeking enhancement of compensation, in this case, the Tribunal has awarded compensation of Rs.6,25,996/- with interest at 6% p.a. As per Ex.P7 - wound certificate, the claimant has sustained the following injuries:
1. Skull AP lat -view- normal study 2. Left clavicle AP- shoulder - Fracture of left clavicle 3. Left knees & upper leg fracture left patella 4. Chest AP view - fracture of left clavicle 27. For the afore stated injuries, the Tribunal has awarded a sum of Rs.40,000/- towards pain and agony, which is on the lower side considering the injury suffered by the claimant. Therefore, the same is enhanced to Rs.70,000/-. 37
28. Further, the Tribunal has awarded a sum of Rs.5,60,563/- towards loss of future earning capacity on account of permanent disability by holding multiplier of 18, considering the age of the claimant as 21 years, taking the income of the claimant at Rs.12,976/- and considering the disability at 20%; Rs.7,433/- towards medical expenses (including nursing, attendants and extra nourishments) and Rs.3,000/- towards loss of income during treatment period. The compensation awarded by the Tribunal under these heads is just and proper. Hence, there is no need to enhance the same.
29. The Tribunal has awarded a sum of Rs.5,000/- towards loss of amenities. Considering the nature of injuries sustained by the claimant as discussed above, the compensation is on the lower side. The claimant was 21 years old at the time of accident and he has suffered many fractured injuries and also had suffered loss of marriage prospects besides doing 38 daily normal activities. This leads discomfort, inconvenience and enjoyment in life. Therefore, it is just and proper to award a sum of Rs.75,000/- towards loss of amenities including loss of marriage prospects.
30. Therefore, the claimant is entitled for total compensation under various heads as follows:
1. Towards pain and agony Rs.70,000/- 2. Towards medical expenses Rs.7,433/- (including nursing, attendants and extra nourishments) 3. Towards loss of income during Rs.3,000/- treatment period 4. Towards loss of future earning Rs.5,60,563/- capacity 5. Towards loss of amenities Rs.75,000/- including loss of marriage prospects Total Rs.7,15,996/- The Tribunal has already awarded a sum of Rs.6,25,996/-. Therefore, after deducting the same, the claimant is entitled for an additional compensation of Rs.90,000/- with interest at 6% p.a. 39
31. In view of the aforesaid discussion, I pass the following:
ORDERi. MFA No.32343/2012 filed by the owner is allowed. ii) MFA No.32331/2011 filed by the claimant is allowed in part. iii) The judgment and award dated 27.12.2010 passed by the Tribunal in MVC No.264/2010 is modified to the extent that the Insurance Company shall pay the above stated compensation by indemnifying the owner of the lorry. iv) Appellant in MFA No.32331/2011- claimant is entitled for an additional compensation of Rs.90,000/- with interest at 6% p.a. in addition to what has been awarded by the Tribunal. v) No order as to costs. vi) Draw award accordingly. 40 vii) The amount in deposit before this Court in MFA No.32343/2012 made by the appellant-owner shall be refunded to him. Sd/- JUDGE LG