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Judgment
P.D. Waingankar, J.—All these appeals under Section 173(1) of M.V. Act are arising out of the common judgment and award dated 11.01.2008 in MVC Nos. 209/2004, 210/2004 and 211/2004 on the file of the I Additional Civil Judge (Senior Division) and Additional MACT, Hubli.
The facts in brief which gave rise to these appeals are as under:
"On 16.12.2002 one Mohammed Khalid Deshmukh along with his wife Najmunnisa and minor son Musab were travelling in a Toyota Qualis Car bearing registration No. MH-06/T-5088 from Mahad in Maharashtra to go to Bengaluru. On way, on account of rash and negligent driving, the Car went off the road and fell down in a ditch. As a result, Mohammed Khalid Deshmukh died on the spot whereas his wife Najmunnisa and son Musab sustained grievous injuries. On account of death of Mohammed Khalid Deshmukh, the wife and son filed claim petition under Section 166 of M.V. Act in MVC No. 209/2004. On account of injuries sustained by Najmunnisa claim petition in MVC No. 210/2004 and on account of injury sustained by Musab claim petition in MVC No. 211/2004 came to be filed claiming compensation."
All the three claim petitions were contested by the insurer of the vehicle contending that the policy issued by them was not in force as on the date of accident as it was cancelled on account of dishonour of cheque issued by the owner of the vehicle towards insurance premium. The Insurance Company also contended that the policy issued by them was a private car policy whereunder the claimants were travelling on hire were not covered and as such the Insurance Company is not liable to indemnify the owner in the event compensation is awarded.
The claim petitions came up for consideration before the Tribunal. The Tribunal on appreciation of evidence recorded a finding that the accident occurred on account of negligence of the driver of the Toyota Qualis Car. The Tribunal negatived both the contentions taken by the Insurance Company and allowed the claim petitions in part awarding compensation from the owner and insurer of the Toyota Qualis car jointly and severally by the impugned judgment and award.
Aggrieved by the liability fastened, the Insurance Company preferred M.F.A. Nos. 5485/2008, 5486/2008 and 5487/2008. Whereas the claimants dissatisfied with the quantum of compensation awarded, preferred M.F.A. Nos. 2722/2008, 2723/2008 and 2724/2008.
I have heard the learned counsel appearing for the claimants and the learned counsel appearing for the Insurance Company. Perused the records and the judgment and award passed by the Tribunal.
In view of the contention taken by the parties the following points would arise for my determination:
"i) Whether the compensation awarded by the Tribunal in all the three claim petitions is just and reasonable?
ii) Whether the Tribunal is justified in fastening the liability on the Insurance Company to indemnify the owner of the vehicle?"
MVC No. 209/2004 is a claim petition filed under Section 166 of M.V. Act on account of the death of the deceased-Mohammed Khalid Deshmukh, wherein the Tribunal awarded a total compensation of Rs. 6,97,000/-. Ex. P7 is the School Leaving Certificate of deceased-Mohammed Khalid Deshmukh, wherein his date of birth is recorded as 18.11.1963. The accident occurred on 16.12.2002. So, as on the date of accident he was aged 39 years. The multiplier to be adopted is ''15''. So far as the income is concerned, it has come in the evidence that he was working as B.E.O. (Block Education Officer). Ex. P8 is the Salary Certificate wherein his salary is shown as Rs. 9,321/-. An amount of Rs. 175/- is shown as deduction towards professional tax. Other deduction shown in the certificate cannot be taken into consideration as they are deduction towards Group Insurance, Z.P. Fund, Recurring Deposit and PEN Society. If an amount of Rs. 175/- is deducted from Rs. 9,321/-, the net monthly income that has to be taken into account comes to Rs. 9,146/-. If 30% is added towards future prospects since he was Government Servant the total monthly income comes to Rs. 11,889/-. If 1/3rd is deducted towards living and personal expenses of the deceased, the net income comes to Rs. 7,926/-. The total loss of future income comes Rs. 14,26,680/- (Rs. 7,926/- x 12 x 15).
The Tribunal has awarded a sum of Rs. 25,000/- towards conventional heads which is on the lower side. The ends of justice will be met if a sum of Rs. 40,000/- is awarded towards conventional heads as against Rs. 25,000/- awarded by the Tribunal.
Thus, the claimants in MVC No. 209/2004 are entitled for a total compensation of Rs. 14,66,680/- as against Rs. 6,97,000/- awarded by the Tribunal.
Coming to MVC No. 210/2004 the claim arising on account of injury sustained by Smt. Najmunnisa, the Tribunal has awarded a total compensation of Rs. 1,25,000/- which according to the claimant is on the lower side. Ex. P-11 is the wound certificate issued by KIMS Hospital, Hubballi. It reveals that she had pelvis fracture. From KIMS Hospital, Hubballi, she was shifted to Shivakrupa Hospital & Intensive Care Unit, Hubballi, where she was admitted on 16.12.2002 the date of accident and discharged on 30.12.2002 as could be seen from Ex. P13. We have also the evidence of Dr. Suresh Dugani who has been examined as P.W. 4. His evidence would go to show that the claimant-Najmunnisa was admitted in his hospital with history of road traffic accident. She had head injury, pelvis fracture with blunt injury with multiple mesenteric tear with gangrene of bowel. She was operated and discharged on 30.12.2002. Further it is seen from his evidence that he examined her again on 18.08.2006 as she was unable to perform her daily activities and she had convulsions and chronic abdominal pain. He examined her and assessed total physical disability at 40% which is permanent according to him. Though P.W. 4 has been cross-examined there is nothing worth mentioning in the cross-examination so as to disbelieve or doubt veracity of his evidence. The Tribunal after taking note of the medical records and the evidence of P.W. 4 and having regard to her age awarded an amount of Rs. 50,000/- towards pain and sufferings, Rs. 15,000/- towards loss of amenities, Rs. 25,000/- towards medical expenses, Rs. 5,000/- towards conveyance and nourishment, Rs. 5,000/- towards loss of earning during the period of treatment and Rs. 25,000/- towards disability. Thus, the Tribunal awarded total sum of Rs. 1,25,000/-.
It goes without saying that the amount awarded by the Tribunal under all the heads is on the lower side having regard to the nature of injuries sustained by the claimant. On my re-appreciation of the evidence and after taking note of the medical records, I deem it just and proper to award a sum of Rs. 60,000/- under the head injury, pain and sufferings as against Rs. 50,000/- awarded by the Tribunal.
So far as the amount awarded towards loss of amenities is concerned is also on the lower side having regard to the nature of injuries, number of injuries and that she underwent surgery. As such a sum of Rs. 20,000/- is awarded under the head loss of amenities as against Rs. 15,000/- awarded by the Tribunal.
An amount of Rs. 25,000/- awarded by the Tribunal towards medical expenses is based on the medical bills produced by the claimant and therefore no interference is called for. So also no interference is called for so far as amount awarded towards medical expenses are concerned.
The amount awarded towards loss of earning during the period of treatment is on the lower side. On account of accidental injuries, she must have been incapacitated from attending to work atleast for a minimum period of three to four months and thereby she lost her earning at the rate of Rs. 3,000/- per month. So an amount of Rs. 12,000/- is awarded towards loss of earning during the period of treatment as against Rs. 5,000/- awarded by the Tribunal.
Further a sum of Rs. 5,000/- is awarded towards attendant charges as she was in constant need of services of an attendant not only during the period of hospitalisation even thereafter for a month or two.
Coming to the amount awarded under the head disability P.W. 4-Dr. S.M. Duggani has stated in his evidence that she suffered 40% disability to particular limb which is permanent. If 1/3rd is taken it comes to 13%. Therefore, loss of future income on account of disability comes to Rs. 74,880/- (Rs. 3,000/- x 13% x 12 x 16). So an amount of Rs. 74,880/- is awarded towards loss of future income on account of disability as against Rs. 25,000/- awarded by the Tribunal.
Thus, the claimant in MVC No. 210/2004 is held to be entitled for compensation under various heads as under.
Thus, the claimant in MVC No. 210/2004 is held to be entitled for a total compensation of Rs. 2,01,880/- together with interest at the rate of 6% per annum as against Rs. 1,25,000/- awarded by the Tribunal.
Coming to MVC No. 211/2004, the claim petition filed on account of injury sustained by the minor aged 13 years, the Tribunal has awarded a total compensation of Rs. 45,000/- out of that the Tribunal has awarded Rs. 15,000/- towards pain and sufferings, Rs. 5,000/- towards loss of amenities, Rs. 10,000/- towards medical expenses, Rs. 5,000/- towards conveyance and nourishment and Rs. 10,000/- towards disability. Ex. P32 is the wound certificate issued by Shivakrupa Hospital and Intensive Care Unit. It reveal that he had diffuse head injury and injury to Mandible and soft tissue injury in left shoulder. Ex. P33 discharge card issued by Shivakrupa Hospital and Intensive Care Unit which discloses that he had diffuse head injury for which he was admitted on 16.12.2002 and discharged on 30.12.2002. Conservative treatment was given to him. Thus, from the wound certificate and discharge card, it appears that injuries suffered by the claimant were not grievous injuries. Therefore, on my re-appreciation of the evidence, I do not find any reason for enhancement of the compensation awarded by the Tribunal in MVC No. 211/2004.
Coming to the liability to pay the compensation, the Insurance Company has taken up a contention that the policy issued by the Insurance Company was cancelled much prior to the accident since the cheque issued by the owner of the vehicle towards premium came to be dishonoured and the factum of dishonour of the cheque was informed much prior to the accident and thereafter the policy was cancelled prior to the accident in question. It has also contended that the policy issued was a private car policy whereunder these claimants who were travelling on hire were not permitted and as such there is breach of policy conditions by the owner of the vehicle. In that event, Insurance Company is not liable to indemnify the owner.
Admittedly, the owner of the vehicle has not challenged the judgment and award. The learned counsel appearing for the claimant relying upon the decision reported in 2014 (1) MACR 465 (KAR) has submitted that burden is on the Insurance Company to establish that the owner of the vehicle was informed about the factum of dishonour of the cheque issued by him towards insurance premium and consequent upon which cancellation of policy on dishonour of the cheque issued by the owner towards premium by registered post as required under Rule 10 of the Motor Vehicle Insurance Rules 1946.
On the other hand, learned counsel appearing for the Insurance Company by pointing out Ex. R4 would submit that the owner of the vehicle was duly informed about cancellation of the policy for the aforesaid reason much prior to the accident and as such the policy was not existing as on the date of accident.
When the letter had been issued by the Insurance Company to the owner by Registered Acknowledgement Due, the copy of which is produced at Ex. R4, if at all it is for the owner to come and say that it was not served upon him. It is not for the claimant to say so. It is suffice to say that the owner was duly informed of dishonour of the cheque and consequent upon which cancellation of policy by the Insurance Company at an undisputed period of time. Thus, the Insurance Company has duly proved that the policy issued by them in respect of vehicle in question was cancelled much prior to the accident. Meaning thereby, there was no policy as on the date of the accident. In such an event, the Insurance Company cannot be saddled with liability to pay the compensation awarded. It is the owner of the vehicle who alone is liable to satisfy the award passed in all the three claim petitions. Accordingly, I pass the following:
"M.F.A. Nos. 5485/2008, 5486/2008 and 5487/2008 filed by the Insurance Company are partly allowed.
M.F.A. Nos. 2722/2008 and 2723/2008 filed by the claimants for enhancement are partly allowed.
M.F.A. No. 2724/2008 filed by the claimant for enhancement is dismissed."
The common judgment and award dated 11.01.2008 in MVC Nos. 209/2004, 210/2004 and 211/2004 on the file of the I Additional Civil Judge (Senior Division) and Additional MACT, Hubli, stands modified.
The claimants in MVC No. 209/2004 are awarded total compensation of Rs. 14,66,680/- from the owner of the Toyota Qualis Car-Shafiq Ahmed with 6% interest from the date of petition till the date of realisation.
The claimant in MVC No. 210/2004 is awarded total compensation of Rs. 2,01,880/- together with interest at the rate of 6% per annum from the date of petition till the date of realisation from the owner of the Toyota Qualis Car-Shafiq Ahmed.
The claimant in MVC No. 211/2004 is awarded total compensation of Rs. 45,000/- together with interest at the rate of 6% per annum from the date of petition till the date of realisation from the owner of the Toyota Qualis Car-Shafiq Ahmed.
Owner of the Toyota Qualis Car-Shafiq Ahmed is directed to deposit the compensation together with interest thereon within a period of two months from the date of receipt of copy of this judgment.
In the event of deposit, the compensation awarded in MVC Nos. 209/2004 and 210/2004 shall be released to the claimants.
So far as compensation awarded in MVC No. 211/2004 is ordered to be deposited in any Nationalised Bank for a period of two years or till the claimant attains the age of majority whichever is earlier.
The amount in deposit in M.F.A. Nos. 5485/2008, 5486/2008 and 5487/2008 shall be refunded to the Insurance Company.
The claim petitions in MVC Nos. 209/2004, 210/2004 and 211/2004 as against Insurance Company are dismissed.