National Insurance Co. Ltd. and Others vs Shilpa and Others

S. Sujatha, J—This appeal is filed by the insurance company challenging the judgment and award passed by the I Additional Senior Civil Judge and CJM, Dharwad, whereby the claimant''s petition is partly allowed and directed the appellant-insurance company to deposit the compensation amount within two months from the date of judgment with interest at the rate of 6% p.a. from the date of petition till the date of deposit and costs.

It transpires that the claimant is a 10 year old girl, filed the claim petition against the insurance company and owner of the vehicle for compensation of Rs. 5,00,000/- with interest at the rate of 12% p.a. and costs under Section 166 of the Motor Vehicles Act, 1988 (for short ''the Act''). In the said claim petition, insurance company filed written statement contending that the new vehicle Tata Victor having chassis No. JSZ-937660 and Engine No. JSZ-720962 was insured with the insurance company. However, at the time of accident the vehicle involved in the accident is found to be with different chassis No. 444254 LSZ-944960 and Engine No. 483 DL 57 LSZ 729073 respectively, bearing registration No. KA-27/M-2614. Ex. R1 is the certificate of the insurance policy of the vehicle bearing No. KA-27/M-2614. However, the owner of the vehicle stated that, at the time of taking the policy, registration number of the vehicle was not allotted and as such, in the insurance policy, only chassis and engine numbers were mentioned. The owner further stated that the vehicle was newly purchased, it was insured with respondent No. 2 and the insurance policy is in force from 09.11.2007 to 08.11.2008 and he paid insurance premium of Rs. 18,747/- and produced the acknowledgment for having paid the premium amount towards the said vehicle as per Annexures-R8 and R9.

It is the case of the owner that chassis and engine numbers were wrongly mentioned in the insurance certificate due to some clerical mistake committed by the dealer of the Tata Sumo vehicle, which he has newly purchased. The Tribunal considering the evidence on record accepted the submission of the owner of the vehicle and allowed the petition fastening the liability on the insurance company. Being dissatisfied with the same, the appellant insurance company is in this appeal mainly disputing the chassis and engine number, which was found in the offending vehicle at the time of accident was different chassis and engine number, the vehicle to which the certificate of insurance policy was issued. It is the case of the insurance company that the certificate of insurance now relied upon by the owner is not related to the offending vehicle that was involved in the road traffic accident on 07.04.2008 at about 11.00 a.m. on the road between Bagalkot and Bankapur.

The learned counsel appearing for the insurance company has not disputed the issuance of certificate of insurance policy in question nor they have shown that this insurance policy in question relates to any other vehicle. It is categorically held by the Tribunal after considering the evidence of the parties that, owner has purchased new vehicle and the description and particulars of the new vehicle has been forwarded to the insurance company by the dealer and there may be some variation due to mistake committed by the dealer of Tata Sumo and any clerical mistake that has crept in without the knowledge of the owner, no individual person shall suffer due to such mistakes committed by the dealer or the insurance company in wrongly entering the chassis and engine number in the insurance policy, unless it is proved by the insurance company that the insurance policy now issued is related to some other vehicle. In the absence of such material placed on record by the insurance company, the Tribunal fastened the liability on the insurance company, which cannot be found fault with.

The learned counsel however, relied upon the judgment of this Court in the case of the The Oriental Insurance Co. Ltd. Vs. N.S. Devaraja and Others, (1998) 2 ACC 338 : (1997) ILR (Kar) 1061 , to contend that, when the insurance company has specifically pleaded in its written statement that the vehicle was not related to which the insurance policy was issued by the insurer, i.e., chassis and engine number being different from that of chassis and engine number found in the vehicle at the time of accident, the burden of proving that the insurance policy was not relating to this vehicle do not lie on the insurance company and it is for the owner of the vehicle to prove the same. I have carefully examined the judgment relied upon by the learned counsel appearing for the appellant-insurance company. It was a case where the plea was taken that the vehicle therein was not insured and the insurance company was wrongly impleaded. It was the categorical statement of the insurance company that it was not liable to pay any compensation, neither the claimant nor the owner of the vehicle had come forward for tendering their evidence to state that the vehicle was insured on the date of the occurrence of accident with insurance policy. In such circumstances, this Court has held that, when the insurance company has categorically taken the stand that the vehicle was not insured with the insurance company, the onus was on the owner and the claimant, who were claiming compensation relying on the insurance policy said to have been covered. As such, this judgment in no way comes to the assistance of the insurance company.

It is further submitted by the learned counsel for the insurance company that the vehicle was insured on 09.11.2007 and the delivery of the vehicle was taken by the owner on 24.11.2007, for which, satisfactory explanation is not forthcoming and accordingly, it raises suspicion relating to the coverage of insurance policy with the said offending vehicle involved in the accident. This plea which is now advanced by the learned counsel for the insurance company was not taken before the Tribunal nor it was argued. Even considering the said submissions made by the learned counsel for the insurance company that the vehicle was insured on 09.11.2007 and the delivery of the vehicle was taken on 24.11.2007 would not exonerate the insurance company from its liability as long as the policy is current. Moreover, to cover the third party risk, the avowed object with which it is mandatorily made to ply the vehicle on the road with insurance policy is to provide the social security to the third party. The insurance company taking the defence that the chassis and engine number of the offending vehicle differs from the insurance policy would not be acceptable, when the insurance policy is admitted by the insurer. Even assuming that any clerical mistake had crept in while entering the engine and chassis number in the policy, the same would not come in the way of the third party to avail the compensation, which is the paramount object of insuring the vehicle against third party.

Accordingly, the appeal filed by the insurance company is dismissed.

MFA No. 21176/2012

This appeal is filed by the claimant seeking enhancement of compensation awarded by the claims Tribunal. It is contended that, on 07.04.2008 at about 11.00 a.m., the claimant was proceeding as a pedestrian on the road between Bagalkot and Bankapur, the driver of Tata Sumo bearing No. KA-27/M-2614 drove the said vehicle in a rash and negligent manner dashed against the claimant, thereby caused accident. As a result of which, the claimant sustained grievous injuries. She was shifted to KIMS Hospital, Hubli and it is contended that her parents have spent Rs. 75,000/- for treatment. The claimant was studying in 5th standard and due to the accident, she suffered disability to the right upper limb, which would necessarily have an impact on her future education and life.

The learned counsel appearing for the claimant reiterating the said averments further argued that the Tribunal failed to consider the grievous injuries sustained by the minor girl, which necessarily affects her entire career and life, awarded meager compensation of Rs. 35,000/-, contrary to the well settled principles of law.

On the other hand, learned counsel appearing for the insurance company justifies the award passed by the Tribunal.

Having heard the learned counsel appearing for the parties and perusing the material on record, it is noticed that the minor girl aged about 10 years sustained grievous injuries including major fracture, for which, she has undergone surgery, it is specifically elicited in the examination of the doctor, who attended to her that, stiffness of the shoulder would restrict the movement at both joints and the injury being moderately severe, even after the surgery, she requires further medical care and physiotherapy treatment. It is further elicited that after the fracture is united, the claimant requires future surgery for removal of implants, the disability to the whole body is suggested as 50%. The same is disbelieved by the Tribunal, having opined that the fracture may fully unite and it may not cause loss of earning capacity of the girl, determined the compensation at Rs. 24,000/- towards pain and suffering, Rs. 5,000/- towards food and attendant charges, Rs. 5,000/- towards medical expenses and Rs. 1,000/- towards transportation, in total Rs. 35,000/-, which appears to be on a lower side.

The wound certificate, disability certificate, doctor''s evidence vis-�-vis the age factor of the minor girl indicates the pain and suffering undergone by the child, positively suggests the enhancement of the compensation awarded. Admittedly, the claimant was hospitalized and taken treatment as an inpatient for about 27 days and her parents have spent huge amount towards medical expenses supported by evidence. Naturally, the child required nourished food and the constant attention of the parents to recover from the pain and suffering. Accordingly, it would be appropriate to award a sum of Rs. 25,000/- towards medical expenses and attendant charges. As regards the pain and suffering, coupled with the shock and trauma undergone, the compensation awarded is less. In the considered opinion of this Court, considering the age of the minor girl, it would be appropriate to enhance the same to Rs. 50,000/-. It would be appropriate to award a sum of Rs. 20,000/- towards future medical expenses a sum of Rs. 25,000/- is awarded towards disability. The total compensation works out to Rs. 1,20,000/-.

Accordingly, the appeal is allowed in part. The judgment and award passed by the Tribunal is modified and the compensation awarded by the Tribunal is enhanced from Rs. 35,000/- to Rs. 1,20,000/-. Respondent No. 2-insurance company shall pay the enhanced compensation with interest at the rate of 6% p.a. from the date of claim petition till deposit, within six weeks from the date of receipt of the certified copy of the judgment. The entire enhanced amount shall be deposited in the name of the claimant in any nationalized bank till she attains the age of majority.