United India Insurance Co. Ltd., Through Its Regional Office Vs. Basanagouda and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/934858
CourtKarnataka Dharwad High Court
Decided OnMar-03-2011
Case NumberM.F.A.No.60005 of 2005 C/W M.R.A.Nos.6004 of 2005 & 8077 of 2005
JudgeSHYLENDRA KUMAR
AppellantUnited India Insurance Co. Ltd., Through Its Regional Office
RespondentBasanagouda and Others
Advocates:For the Appellant: N.R. Kuppelur, B.C. Seetharama Rao Assts. Advocates. For the Respondents: S.G. Kadadakatti, Advocate.
Excerpt:
(this appeal is filed u/s. 173(1) of mv act against the judgment and award dated 30.03.2005 passed in mvc no.999/1995 on the file of the addl. civil judge (sr.dn.) and additional mact, ranebennur, awarding compensation of rs.8,350/- with interest at 6% p.a.) re: m.f.a.nos.6005/2005 and 6004/2005 these two appeals by the insurance company under section 173(1) of the motor vehicles act are directed against the order and award dated 30.03.2005 passed in common mvc nos.246/1995, 247/1995, 248/1995 and 999/1995 corresponding to m.f.a.no.6005/2005 and mvc no.246/1995 corresponding to m.f.a.no.6004/2005 on the common ground that even when the insurance company was not liable to reimburse the owner of the vehicle, in the present case impleaded as the 2nd respondent in these two appeals on the ground that the insurance company has not issued a policy in respect of the offending vehicle a truck bearing no.mcy-4397 causing an accident on 19.01.1999 giving raise to multiple claims. 2. submission of sri. n.r. kuppelur, learned counsel appearing for the appellant-insurance company is that the tribunal has committed an error in law in fastening the joint liability on the insurance company even when the insurance company had not issued the policy to cover the risk of the owner of the offending vehicle on the day when the accident took place and therefore to this extent the order and award of the tribunal warrants correction in these two appeals. 3. what is urged is that when there was no policy at all on the date of the accident issued by the appellant, no liability arises in law on the insurance company and therefore the order and award is bad in law. 4. on the other hand, sri. s.g. kadadakatti, learned counsel appearing for the claimant and the legal heirs of claimants-respondents with reference to the order and award submits that it was not the case of the insurance company that it had not issued any policy but the internal correspondence between its divisional office at malad, mumbai and the regional office at hubli in terms of ex.r-9, r-10 and r-11 though is produced by the insurance company did not indicate anything positive to show that the insurance company had not issued a policy in favour of the 2nd respondent/owner of the offending vehicle and the learned judge of the tribunal having examined this aspect with reference to the pleadings and having concluded that the respondent had not made good its defence of the copy of the policy which had been produced by the claimant before the tribunal which was obtained by them through the public authorities was neither genuine nor concocted and therefore there is no way of relieving the insurance company from its liability. 5. this finding is based on evidence on record and therefore the tribunal has correctly concluded to pass a joint award against the insurance company also. no merit in the appeal. hence, the appeal deserves to be dismissed. 6. in the wake of the rival submissions and having regard to the fact that the appeal is pending in this court even without getting admitted and languishing for the past six years and having heard the learned counsel for the appellant and respondent, the appeal is disposed of as under. 7. i have perused the order and award of the tribunal, considered the submissions made at the bar and looked into the evidence in terms of ex.r.9, 10 and 11. 8. the defence on a legal position is necessarily to be supported in the first instance by proper plea and commensurate evidence to support the plea. 9. a perusal of the plea on behalf of the insurance company does not reveal that the insurance company has taken a definite stand or defence that it had not issued a policy in favour of the 2nd respondent-owner. on the other hand, as is rightly observed by the tribunal while the claimants were able to produce some material, the insurance company has not made good its vague and general defence of not having issued a policy covering the risk of the owner on the date of the accident. 10. while the plea is neither here nor there and is only a typical manifestation of the kind of defences taken by the insurance companies which though are nationalized public sector undertakings, are taking up such vague, general and non-specific defences in claim petitions instituted by victims of accidents involving the use of motor vehicle in public roads, clearly falling too short of the requirements of order viii rule 1 of the code of civil procedure. in the present case, even without an effort having been made and the tribunal having reassessed the material on record and having concluded that no case had been made out by the insurance company to get out of the liability i.e., the joint liability with the owner in the wake of the copy of the policy as has been placed before the tribunal by the claimants, the order and award of the tribunal cannot be characterized as either illegal or in any way wanting in law to upset it to the detriment of the claimants-respondents. 11. on the other hand, i notice that such appeals are filed without any application of mind on the part of the insurance company without any justification and by taking up non-available grounds and calling in aid such legal contentions or legal principles which may or may not be relevant or attracted to the facts of the case. such appeals are not only merely waste of court’s precious time but harassment to the claimants. nevertheless, the insurance company keeps on fighting even to satisfy such claims making the claimants to take all sorts of hardships and ordeals. appeals are dismissed with costs of rs.5,000/- in each of the appeals in favour of the respondents-claimants. costs to be added to the balance award amount and to be deposited before the tribunal within four weeks from today along with the interest as awarded by the tribunal upto date of deposit and the tribunal to take steps to ensure that the amount is disbursed to the claimants forthwith. re: m.f.a.no.8077/2005 12. though arising out of m.v.c.no.246/1995 is by the claimant seeking for enhancement whereas other appeal bearing m.f.a.no.6004/2005 arise out of the very claim case by the insurance company. appeal by the claimant is complaining that the compensation as awarded by the tribunal is not on the lower side particularly the quantification of the loss of future earning capacity due to the injury suffered by the claimant which was in the nature of dislocation of the left shoulder wherein the doctor who had examined the claimant had opined that the limb disability is at 40%. the tribunal while translating that into the total body disability and the concomitant loss of earning capacity having taken out at a meager 5% of the earning of the claimant is definitely on the lower side that calls for suitable correction in this appeal etc., 13. mr. kuppelur, learned counsel appearing for the respondent-insurance company while defends the quantification cannot assert and submit that he is not in a position that the estimation on the part of the learned judge of the tribunal is an accurate one and that there was scope for marginal variation particularly as limb disability had been put at 40%. while an arithmetical precision is not possible in such matters and the quantum of compensation by way of future loss of earning capacity necessarily involves an element of guess work, it cannot be gainsaid that any injury to any part of the body definitely affects the normal functioning of a person subsequent to the injury. 14. the claimant being a daily wage labourer requires to put in hard labour and rigour body work. an injury of this nature definitely affects his capacity for working at his full potential more so when he is 40 years old at the time of the accident. the assessment at 10% of loss of future earning capacity would more than meet the ends of justice when the assessment at 5% is on the lower side and therefore the award of the tribunal is modified only to the extent of reassessing and requantifying the loss of earning capacity at 10% of the potential of the claimant and the amount under this head works out to a sum of rs.20,160/-. except for this correction, the computation as made by the tribunal is left undisturbed. the insurance company to deposit the balance amount in terms of this judgment before the tribunal within four weeks from today along with interest as awarded by the tribunal upto the date of payment. appeal is allowed to this extent. the amount in deposit in the insurance company appeals be transmitted to the tribunal.
Judgment:

(This Appeal is filed u/s. 173(1) of MV Act against the judgment and award dated 30.03.2005 passed in MVC No.999/1995 on the file of the Addl. Civil Judge (Sr.Dn.) and Additional Mact, Ranebennur, awarding compensation of Rs.8,350/- with interest at 6% p.a.)

Re: M.F.A.Nos.6005/2005 and 6004/2005

These two appeals by the Insurance Company under section 173(1) of the Motor Vehicles Act are directed against the order and award dated 30.03.2005 passed in common MVC Nos.246/1995, 247/1995, 248/1995 and 999/1995 corresponding to M.F.A.No.6005/2005 and MVC No.246/1995 corresponding to M.F.A.No.6004/2005 on the common ground that even when the Insurance Company was not liable to reimburse the owner of the vehicle, in the present case impleaded as the 2nd respondent in these two appeals on the ground that the Insurance Company has not issued a policy in respect of the offending vehicle a truck bearing No.MCY-4397 causing an accident on 19.01.1999 giving raise to multiple claims.

2. Submission of Sri. N.R. Kuppelur, learned counsel appearing for the appellant-Insurance Company is that the Tribunal has committed an error in law in fastening the joint liability on the Insurance Company even when the Insurance Company had not issued the policy to cover the risk of the owner of the offending vehicle on the day when the accident took place and therefore to this extent the order and award of the Tribunal warrants correction in these two appeals.

3. What is urged is that when there was no policy at all on the date of the accident issued by the appellant, no liability arises in law on the Insurance Company and therefore the order and award is bad in law.

4. On the other hand, Sri. S.G. Kadadakatti, learned counsel appearing for the claimant and the legal heirs of claimants-respondents with reference to the order and award submits that it was not the case of the Insurance Company that it had not issued any policy but the internal correspondence between its Divisional Office at Malad, Mumbai and the Regional Office at Hubli in terms of Ex.R-9, R-10 and R-11 though is produced by the Insurance Company did not indicate anything positive to show that the Insurance Company had not issued a policy in favour of the 2nd respondent/owner of the offending vehicle and the learned Judge of the Tribunal having examined this aspect with reference to the pleadings and having concluded that the respondent had not made good its defence of the copy of the policy which had been produced by the claimant before the Tribunal which was obtained by them through the public authorities was neither genuine nor concocted and therefore there is no way of relieving the Insurance Company from its liability.

5. This finding is based on evidence on record and therefore the Tribunal has correctly concluded to pass a joint award against the Insurance Company also. No merit in the appeal. Hence, the appeal deserves to be dismissed.

6. In the wake of the rival submissions and having regard to the fact that the appeal is pending in this court even without getting admitted and languishing for the past six years and having heard the learned counsel for the appellant and respondent, the appeal is disposed of as under.

7. I have perused the order and award of the Tribunal, considered the submissions made at the bar and looked into the evidence in terms of Ex.R.9, 10 and 11.

8. The defence on a legal position is necessarily to be supported in the first instance by proper plea and commensurate evidence to support the plea.

9. A perusal of the plea on behalf of the Insurance Company does not reveal that the Insurance Company has taken a definite stand or defence that it had not issued a policy in favour of the 2nd respondent-owner. On the other hand, as is rightly observed by the Tribunal while the claimants were able to produce some material, the Insurance Company has not made good its vague and general defence of not having issued a policy covering the risk of the owner on the date of the accident.

10. While the plea is neither here nor there and is only a typical manifestation of the kind of defences taken by the Insurance Companies which though are nationalized public sector undertakings, are taking up such vague, general and non-specific defences in claim petitions instituted by victims of accidents involving the use of Motor Vehicle in Public Roads, clearly falling too short of the requirements of Order VIII Rule 1 of the Code of Civil Procedure. In the present case, even without an effort having been made and the Tribunal having reassessed the material on record and having concluded that no case had been made out by the Insurance Company to get out of the liability i.e., the joint liability with the owner in the wake of the copy of the policy as has been placed before the Tribunal by the claimants, the order and award of the Tribunal cannot be characterized as either illegal or in any way wanting in law to upset it to the detriment of the claimants-respondents.

11. On the other hand, I notice that such appeals are filed without any application of mind on the part of the Insurance Company without any justification and by taking up non-available grounds and calling in aid such legal contentions or legal principles which may or may not be relevant or attracted to the facts of the case. Such appeals are not only merely waste of court’s precious time but harassment to the claimants. Nevertheless, the Insurance Company keeps on fighting even to satisfy such claims making the claimants to take all sorts of hardships and ordeals. Appeals are dismissed with costs of Rs.5,000/- in each of the appeals in favour of the respondents-claimants. Costs to be added to the balance award amount and to be deposited before the Tribunal within four weeks from today along with the interest as awarded by the Tribunal upto date of deposit and the Tribunal to take steps to ensure that the amount is disbursed to the claimants forthwith.

Re: M.F.A.No.8077/2005

12. Though arising out of M.V.C.No.246/1995 is by the claimant seeking for enhancement whereas other appeal bearing M.F.A.No.6004/2005 arise out of the very claim case by the Insurance Company. Appeal by the claimant is complaining that the compensation as awarded by the Tribunal is not on the lower side particularly the quantification of the loss of future earning capacity due to the injury suffered by the claimant which was in the nature of dislocation of the left shoulder wherein the doctor who had examined the claimant had opined that the limb disability is at 40%. The Tribunal while translating that into the total body disability and the concomitant loss of earning capacity having taken out at a meager 5% of the earning of the claimant is definitely on the lower side that calls for suitable correction in this appeal etc.,

13. Mr. Kuppelur, learned counsel appearing for the respondent-Insurance Company while defends the quantification cannot assert and submit that he is not in a position that the estimation on the part of the learned Judge of the Tribunal is an accurate one and that there was scope for marginal variation particularly as limb disability had been put at 40%. While an arithmetical precision is not possible in such matters and the quantum of compensation by way of future loss of earning capacity necessarily involves an element of guess work, it cannot be gainsaid that any injury to any part of the body definitely affects the normal functioning of a person subsequent to the injury.

14. The claimant being a daily wage labourer requires to put in hard labour and rigour body work. An injury of this nature definitely affects his capacity for working at his full potential more so when he is 40 years old at the time of the accident. The assessment at 10% of loss of future earning capacity would more than meet the ends of justice when the assessment at 5% is on the lower side and therefore the award of the Tribunal is modified only to the extent of reassessing and requantifying the loss of earning capacity at 10% of the potential of the claimant and the amount under this head works out to a sum of Rs.20,160/-. Except for this correction, the computation as made by the Tribunal is left undisturbed. The Insurance Company to deposit the balance amount in terms of this judgment before the Tribunal within four weeks from today along with interest as awarded by the Tribunal upto the date of payment. Appeal is allowed to this extent.

The amount in deposit in the Insurance Company appeals be transmitted to the Tribunal.