- 1 - NC:
2024. KHC:34036 MFA No.10896 of 2013 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE22D DAY OF AUGUST, 2024 BEFORE THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA MFA No.10896 OF2013(MV-I) BETWEEN: SRI. Y. SUBRAMANYAM S/O. Y. KRISHNAPPA AGED ABOUT25YEARS R/AT: KOTHAPALLI VILLAGE GANGAVARAM MANDAL PALAMANER TALUK CHITTOOR DISTRICT ANDHRA PRADESH …APPELLANT (BY SRI. HARISH BABU K N., ADV.) AND:
1. MR. VALORU RAVI KUMAR S/O V. BASANNA, 6-354 KANEKAL VILLAGE & MANDAL ANANTPUR-515 001, A.P.
2. THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO.LTD. NO.2-B, UNITY BUILDING ANNEX MISSION ROAD BANGALORE - 26 …RESPONDENTS (BY SRI. A M VENKATESH, ADV. FOR R2 R1 SERVED) THIS MFA IS FILED UNDER SECTION1731) OF MV ACT AGAINST THE JUDGMENT
AND AWARD DATED24.2013 PASSED IN MVC No.7795/2011 ON THE FILE OF THE XI ADDL. JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, (SCCH.NO.12), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.-. 2 - NC:
2024. KHC:34036 MFA No.10896 of 2013 THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA ORAL JUDGMENT
In this appeal, the petitioner apart from seeking enhancement has also questioned the liability fastened against the owner to pay the compensation.
2. For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.
3. Brief facts of the case are, the petitioner was a Sales Executive at Tirumala Milk Products Private Ltd. Goods Van bearing Registration No.AP-02-TA-1880, belonging to the 1st respondent was hired by the employer of the petitioner for transportation of milk. On 24.04.2011 at about 5.15 a.m., while he was traveling in the said milk van along with driver and cleaner on Uravakonda - Ananthapur main road, the vehicle was hit against the roadside Neem tree, due to which, he has suffered injuries leading to amputation - 3 - NC:
2024. KHC:34036 MFA No.10896 of 2013 of his right leg below knee. After taking treatment at Government Hospital, Anantapur, Londa Vishwa Kiran Reddy Hospital, Mandanapalli under hospitalisation for 24 days, he has approached the Tribunal for grant of compensation of Rs.10,00,000/-. 3.1. The respondents have opposed the claim. The Tribunal after recording the evidence and hearing both the parties, assessed the compensation of Rs.5,45,800/- with interest at 6% per annum and fastened the liability against the owner of the vehicle. Pleading inadequacy, seeking enhancement and direction to the Insurance Company to pay the compensation, the petitioner is before this Court.
4. Heard the arguments of Sri. Harish Babu K.N., leaned counsel for the petitioner and Sri. A.M. Venkatesh, learned counsel for the Insurance Company.
5. It is contended by the learned counsel for the petitioner that, the petitioner has suffered fracture of - 4 - NC:
2024. KHC:34036 MFA No.10896 of 2013 both the bones of right leg and fracture of right femur. At the spot itself, the right leg of the petitioner was amputated below knee. The petitioner has placed the medical evidence before the Tribunal explaining disability of 70%, but the Tribunal has taken it at 40%. Though the petitioner has produced the pay slip for having drawn salary of Rs.4,805/-, a person with no proof of income in the year 2011 will earn not less than 6,500/-, since the claim is filed under beneficial legislation, higher income has to be taken for assessment of loss of future income. The compensation assessed under different heads is inadequate and sought for enhancement. 5.1. It is further contended that, the Insurance Policy is a package policy which covers the risk of 2 + 1 passengers. The petitioner being Sales Executive, is an authorized passenger under his employer, who hired the lorry from the insured. The Insurance - 5 - NC:
2024. KHC:34036 MFA No.10896 of 2013 Company is bound to indemnify the insurer for two passengers in addition to driver. 5.2. To buttress his argument, he has relied the judgment of Balu Krishna Chavan vs. Reliance General Insurance Company Limited and others1.
6. Per contra, learned counsel for the Insurance Company has vehemently contended that, the petitioner is not a direct employee under the insured. The petitioner was an unauthorized passenger at the time of accident. The Insurance Policy does not cover the risk of unauthorized passenger. Even if the petitioner is accepted as an employee of the hirer, under the Workmen's Compensation Act, 1923, he is entitled to compensation as prescribed under the Schedule. The Tribunal has rightly recorded that the petitioner is an unauthorized passenger, there is no coverage under the policy and fastened the liability against the owner of the milk van. The petitioner has 1 2023 ACJ1546- 6 - NC:
2024. KHC:34036 MFA No.10896 of 2013 not made any efforts to recover the compensation from the owner in spite of the claim being dismissed against the insurer. Now he cannot ask the insurer to pay the compensation. Learned counsel submits that the principles laid down in Balu Krishna Chavan (supra) is not applicable to the facts of this case and even pay and recovery cannot be ordered, the owner has to pay the full compensation and accordingly supported the impugned judgment.
7. I have given my anxious consideration to the arguments addressed on behalf of both sides and also perused the materials on record.
8. The accident is not in dispute. The medical record shows that the petitioner has suffered fracture of right femur and his right leg was amputated below the knee at the accident spot. Medical evidence through PW-3/Dr. S. Rajanna, Orthopedic surgeon to the effect that the petitioner has sustained 70% of whole body disability. Since he is not the treated - 7 - NC:
2024. KHC:34036 MFA No.10896 of 2013 doctor, it is proper to rely on the percentage of disability as per the Schedule to the Workmen's Compensation Act. For amputation below knee as per the Schedule, whole body disability is 50%. Hence, functional disability of the petitioner has to be considered at 50%.
10. The pay slip issued by Tirumala Milk Products Private Ltd. showing gross salary paid at Rs.4.805/-. Adverting to arguments of the learned counsel for the petitioner to consider Rs.6,500/- as earning, when there is a proof of income, there is no scope for deviation and such argument is not persuasive in nature. The income of the petitioner is determined at Rs.4,805/- per month.
11. The petitioner was aged 23 years at the time of accident and the applicable multiplier is 18. The functional disability assessed is at 50%, by applying the principles in National Insurance Company - 8 - NC:
2024. KHC:34036 MFA No.10896 of 2013 Limited vs. Pranay Sethi & Others2, future prospects of 50% has to be added to his income. Then loss of future income will be Rs.4,805/-+Rs.2,402/- (50%)=Rs.7,207/-X12X18X50%=Rs.7,78,356/-.
12. The petitioner was awarded Rs.60,000/- towards pain and suffering, Rs.10,000/- towards medical expenses and Rs.20,000/- towards incidental medical expenses by the Tribunal and it is proper. The amputation and the fracture of the femur will certainly keep the petitioner away from his work and he was hospitalized for 24 days losing his earning. Loss of income during the laid-up period is assessed for 6 months at Rs.28,830/-. Loss of amenities and discomfort is assessed at Rs.50,000/- as against Rs.20,000/-. The petitioner is unmarried and loss of marriage prospects is assessed at Rs.25,000/- as against Rs.20,000/-. The petitioner is required to buy artificial limb. Hence, a sum of Rs.25,000/- is assessed 2 (2017)16 SCC680- 9 - NC:
2024. KHC:34036 MFA No.10896 of 2013 as against Rs.10,000/- awarded by the Tribunal. Total compensation comes to Rs.9,97,180/- as against Rs.5,46,800/-. Thereby, enhancement of Rs.4,50,380/- It is just compensation that the petitioner is entitled to, in the facts and circumstances of the case.
13. The petitioner was the passenger of the mini lorry hired by Tirumala Milk Products Private Ltd. As hirer, Tirumala Milk Products Private Ltd., will step into the shoes of the owner. Then the argument of the Insurance Company that the petitioner is an unauthorized passenger is not persuasive. The accident took place during the employment of the petitioner and is an authorized passenger. The Insurance Policy is a package policy, which covers the risk of the authorized passenger of the mini Lorry, which has permitted capacity to carry 1+2.
14. On behalf of petitioner, two fold argument is canvassed, firstly the petitioner's risk is covered as the Policy is comprehensive one and seating capacity of - 10 - NC:
2024. KHC:34036 MFA No.10896 of 2013 the mini lorry is 1+2. To buttress the same, reliance is placed on the judgment of Co-ordinate bench of this Court in Ranjiv Singh Vs. Sheik Mohammed Omar and Another3. Alternatively, it is argued for application of principle of 'pay and recovery' relying on the judgment in Balu Krishna Chavan (supra) and also in Manuara Khatun and others vs. Rajesh Kumar Singh and others4.
15. The Hon'ble Apex Court in Balu Krishna Chavan (supra), at paragraphs No.9, 10 and 11 held as under:
"9. In the instant case, appellant has relied on the judgment in Manuara Khatun V.Rajesh Kumar Singh, 2017 ACJ1031SC). In the said case also, a Bench of this Court, having referred to the earlier decisions in paras 15 and 16 of that judgment, has concluded that normally, there would be no order to 'pay and recover'. However, in the said facts, this court, to meet the ends of justice, had taken into consideration the fact situation, though the claimant therein was a 'gratuitous passenger' and had kept in view the benevolent object of the Act and had 3 2023 ACJ27734 AIR2017SC1204- 11 - NC:
2024. KHC:34036 MFA No.10896 of 2013 directed the payment by the Insurance Company and to recover the amount.
10. Therefore, on the legal aspect, it is clear that in all cases such order of 'pay and recover' would not arise when the Insurance Company is not liable but would, in the facts and circumstances, be considered by this court to meet the ends of justice.
11. If this aspect of the matter is kept in view, in the instant facts, it is noticed that the appellant, as on the date of accident, was aged about 19 years and due to the injuries suffered by him in the accident, his left leg was amputated below knee". In the light of the above settled principle, a gratuitous passenger traveling in a truck even principles of pay and recovery shall not be applied.
16. In Manuara Khatun, Hon'ble Apex Court held that a passenger traveling in TATA Sumo on hire is a gratuitous Passenger not covered under policy. Insurer is liable to pay the compensation and recover the same from insured. In the above cases, the liability was discussed about gratuitous passengers. The petitioner is an authorized passenger, said principle is not applicable to facts of this case.-. 12 - NC:
2024. KHC:34036 MFA No.10896 of 2013 17. In Ranjiv Singh's case (supra), prescribed seating capacity of Crane was '1+1'. Policy shows that risk of '1+1' was covered including driver. It does not specify cleaner or helper. Two persons were traveling in Crane apart from driver, though two persons were injured, claim was made by one injured. As the policy covers the risk of '1+1', it was held that Insurance Company is held liable.
18. Identical is the facts herein. There were 2 persons traveling apart from driver in the mini lorry. Policy covers the risk of 1+2. As the petitioner and cleaner were authorized passengers, policy covers their risk. Insurance Company cannot avoid its liability to indemnify the insured. Therefore, Insurer is liable to indemnify the insured. Accepting the first fold argument of the petitioner, it is held that insurer is held liable to indemnify the insured.
19. Accordingly, appeal merits consideration, in the result, the following: - 13 - NC:
2024. KHC:34036 MFA No.10896 of 2013 ORDER
i) Appeal is allowed-in-part; ii) The impugned judgment and award is modified; iii) The petitioner would be entitled to enhanced compensation of Rs.4,50,380/- with interest at 6% per annum; iv) Both the owner and Insurance Company are held liable to pay the compensation; v) The Insurance Company is directed to deposit the full compensation with interest at 6% per annum, from the date of petition till the date of deposit, within 8 weeks from the date of receipt of certified copy of this judgment; vi) The petitioner is not entitled to interest on future medical expenses and marriage prospects apart from delayed period of 131 days in filing the appeal. SD/- (T.G. SHIVASHANKARE GOWDA) JUDGE BKN List No.:
1. Sl No.: 8