caselaws
Supreme Court of India
Rani vs National Insurance Company Ltd. on 31 July, 2018Author: A Khanwilkar
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.9078-9079 OF 2017
Rani & Ors. …Appellant(s)
:Versus:
National Insurance Company Ltd. & Ors. ….Respondent(s)
JUDGMENT
A.M. Khanwilkar, J.
1. These appeals take exception to the common judgment
and order dated 12th February, 2016 passed by the High
Court of Karnataka at Bengaluru in M.F.A. No.5874 of 2011
(MV) and M.F.A. No.5876 of 2011 (MV). Both these appeals
were filed by the respondent No.1 (National Insurance Co.
Ltd.) questioning the correctness of the judgment and
Award passed by the Motor Accident Claims Tribunal,
Signature Not Verified
Bangalore dated 3rd January, 2011 in MVC No.7055 of 2009
Digitally signed by
SATISH KUMAR YADAV
Date: 2018.07.31
15:15:35 IST
Reason:
and 7056 of 2009, respectively.
2
2. The former claim petition MVC No.7055 of 2009 was
filed by the legal representatives of Satish (the deceased)
who had succumbed to the injuries suffered, in an accident
which occurred on 17th March, 2009, while he was riding a
motorcycle bearing Registration No.KA-05-EJ-4029 along
with his friend, Anand, who was travelling with him as a
pillion rider. Police complaint regarding the accident was
lodged by Anand, appellant in Civil Appeal No.9079 of 2017.
The accident was caused by a lorry bearing Registration
No.MH-43-U-3365, which was being driven at a high speed
in a rash and negligent manner. The said lorry came from
behind and hit the motorcycle on which Satish and Anand
were going from Bangalore towards Tumkur. Both of them
fell down and suffered serious injuries. Satish, who was
riding the motorcycle, succumbed to his injuries. The
appellant Anand was hospitalized as an indoor patient and
had to undergo surgeries for fracture of collies (left) and ACL
tear with MCL tear, right knee with hemarthrosis.
3. Resultantly, separate claim petitions were filed before
the MACT at Bangalore by the legal representatives of the
deceased (Satish) and by Anand. The claim petitions
3
proceeded ex parte against the owner of the offending lorry.
After analysing the relevant evidence, the Tribunal found
that the accident had occurred due to the rash and
negligent driving of the driver of the offending vehicle. The
Tribunal also noted that the respondents had not
challenged the chargesheet materials and other documents
to disprove the case of the claimants and as such, there was
no material to suggest that it was a case of contributory
negligence.
4. Having said that, the Tribunal proceeded to determine
the compensation amount to be paid to the claimants. While
doing so, it has noted that the legal representatives of the
deceased (Satish) did not produce any document to show
his monthly income from mechanic work. The Tribunal
noted that the age of the deceased (Satish) was around 30
years at the relevant time when the accident occurred, and
there were three dependents in his family namely, his wife,
daughter and mother (claimants). In the absence of evidence
regarding income of the deceased (Satish), the Tribunal took
notional income at the rate of Rs.3,000/- per month and
after providing deduction of 1/3rd amount towards personal
4
expenses and applying multiplier of 17, determined the loss
of dependency at Rs.4,08,000/-(Four Lakh Eight Thousand
only). In addition, the Tribunal granted Rs.5,000/- towards
transportation of dead body from hospital to home,
Rs.10,000/- under the head of loss of consortium,
Rs.10,000/- under the head of loss of love and affection,
Rs.10,000/- towards loss of estate and Rs.10,000/- towards
funeral and obsequies ceremonies. The total compensation
amount payable to the legal representatives of the deceased
(Satish) was determined at Rs.4,53,000/- (Four Lakh Fifty
Three Thousand only) with interest at the rate of 6% per
annum from the date of petition till the date of deposit by
the respondents. The Tribunal issued further directions
about the disbursal and appropriation of the amount
amongst the three claimants.
5. As regards the claim petition filed by Anand (claimant)
in M.V.C. No.7056 of 2009, the Tribunal noted that he had
suffered fracture of collies (left) and ACL tear with MCL tear,
right knee with hemarthrosis and had undergone operation
for his left hand with K-wire. He was an indoor patient in
the hospital for 4 days and had spent huge amounts
5
towards medicine, treatment, food, conveyance and other
charges. After analysing the evidence of PW-2 and PW-3, the
Tribunal found that the permanent disability suffered by
Anand was not exceeding 10% of the whole body due to
fracture of collies and right knee injury. The Tribunal
further held that no evidence had been produced by him to
prove his income and therefore, the Tribunal assessed his
notional income at Rs.3,000/- per month. The Tribunal
then proceeded to grant compensation amount payable to
Anand towards pain and suffering at Rs.30,000/-, medical
expenses at Rs.26,500/-, loss of earning during laid up
period at Rs.15,000/-, loss of future earning on account of
permanent disability at Rs.61,200/-, loss of amenities and
future unhappiness at Rs.15,000/-, attendant charges, diet
and travelling at Rs.10,000/- and future medical expenses
at Rs.15,000/-. The total compensation amount was
Rs.1,72,700/- (One Lakh Seventy Two Thousand and Seven
Hundred Only) payable by the respondents with interest at
the rate of 6% per annum from the date of petition till the
date of deposit with the rider that the amount towards
6
future medical expenses would not carry any interest. The
operative order passed by the Tribunal reads thus:
“O R D E R
Both the petitions M.V.C. No.7055/2009 & 7056/2009
filed by U/Sec. 166 of MV Act by the petitioners are hereby
partly allowed against the respondents with costs.
The petitioners in M.V.C.No.7055/2009 and
7056/2009 are awarded with total compensation amount of
Rs.4,53,000/- (Rupees four lakhs fifty three thousand only)
and Rs.1,72,700/- (Rupees one lakh seventy two thousand
seven hundred only), respectively in both the cases, with 6%
interest p.a. from date of petitions till date of deposit. Future
medical expenses does not carry any interest in M.V.C.
No.7056/2009.
Both the respondents are jointly and severally liable to
pay above said compensation amount with costs and interest
to the petitioners. However, it is directed to 1st respondent to
deposit above compensation amounts within 30 days from
date of this order, after deducting any amount paid as
interim compensation being insurer of offending vehicle.
After depositing of compensation amount awarded in
M.V.C. No.7055/2009, a sum of Rs.1,15,000/- and
Rs.60,000/-, in names of first and third petitioners
respectively shall be deposited as FD in any nationalized or
scheduled Bank of their choice for a period of 5 years. No
loan on said FD is permitted without permission of this
tribunal.
Remaining amount with occurred interest shall be
released in the names of first and third petitioner through
account payee cheques on proper identification respectively
and separately.
Entire amount ordered in the name of minor second
petitioner represented by her natural guardian and
mother/first petitioner in M.V.C. No.7055/2009 shall be
kept as FD in her name in any Nationalized or scheduled
Bank of her choice for a period of 5 years or till she attain
the age of majority, whichever is later. No loan on FD is
permitted without permission of this tribunal. First
7
petitioner is entitled to receive periodical interest on said FD
amount for maintenance of petitioner No.2.
After deposit of compensation amount in M.V.C.
No.7056/2009, a sum of Rs.85,000/- shall be kept as FD in
the name of petitioner in any Nationalized or scheduled
Bank of his choice for a period of 5 years. No loan on FD is
permitted without permission of this tribunal.
Remaining amount together with accrued interest
shall be released in the name of petitioner in M.V.C.
No.7056/2009 through account payee cheque on proper
identification.
Advocate’s fees is fixed at Rs.500/- in each case.
Draw award accordingly.”
6. Against this common award passed by the Tribunal,
the respondent No.1 Insurance Company carried the matter
in appeal before the High Court being M.F.A. No.5874 of
2011 (MV) and M.F.A. No.5876 of 2011 (MV), respectively.
The principal issue raised by the Insurance Company was
that the Tribunal could not have fastened the liability on the
insurer as the offending vehicle did not possess a valid
permit to operate in the State of Karnataka in view of
Section 149(2)(a)(i)(a) of the Motor Vehicles Act, 1988. For,
the permit was limited to the State of Maharashtra.
7. The appellants did not file substantive appeals but
filed cross objections in the appeals filed by the insurer
bearing M.F.A. Crob. Nos.187 and 188 of 2013. The said
8
cross objections, however, came to be dismissed for non
compliance of office objections. Nevertheless, in the appeal
filed by the Insurance Company against compensation
amount awarded to the deceased (Satish), the High Court
chose to enhance the compensation amount payable to the
legal heirs of the deceased (Satish) by taking into account
his notional income as Rs.10,000/- per month. This was
done by the High Court without overturning the finding
recorded by the Tribunal that no evidence was produced by
the claimants to substantiate the monthly income of the
deceased (Satish) at the relevant time. What the High Court
instead did was to rely upon the driving licence of the
deceased and a training certificate of the deceased issued by
Bajaj Auto limited, mentioning that Satish had attended the
training. As aforementioned, the High Court redetermined
the compensation amount payable to the legal
representatives of the deceased (Satish) on a higher notional
income of the deceased at the rate of Rs.10,000/- per month
and arrived at the following calculation on the basis of
which the appeal was disposed of in the following words:
9
“9. The total compensation payable in M.F.A.
No.5874/2011 comes to Rs.16,00,068/-, which is rounded
off to Rs.16,00,000/- and the break up is as follows:-
(i) Towards loss of dependency : Rs.13,60,068/-
(ii) Towards loss of consortium to R1 : Rs. 1,00,000/-
(iii) Towards loss of love and affection : Rs. 1,00,000/-
to R2
(iv) Conventional heads : Rs. 40,000/-
—————————
Total Rs.16,00,068/-
————————–
10. Accordingly, M.F.A.No.5874/2011 is allowed and the
impugned judgment and award passed by the Tribunal in
M.V.C. No.7055/2009 stands modified granting a
compensation of Rs.16,00,000/- instead of Rs.4,53,000/-
(enhanced compensation comes to Rs.11,47,000/-). The
enhanced compensation shall carry interest at 6% p.a., from
the date of petition till its deposit. The Secretary, Legal
Services Committee is directed to communicate the order to
the owner of the offending vehicle and also intimate him to
deposit the amount within a period of three months. In case
of failure to deposit the amount by the owner of the offending
vehicle, the Legal Services Committee to take action as per
law.”
As regards the appeal preferred by the insurer against the
Award passed in favour of Anand, appellant in Civil Appeal
No.9079 of 2017, the same was disposed of on the following
terms:
“11. In M.F.A. No.5876/2011 the contention is liability
cannot be fastened on the insurer as there is violation of
permit by admittedly plying the vehicle in Karnataka.
Therefore, liability is to be fastened on the owner.
12. M.F.A. No.5876/2011 is disposed of. The owner is
directed to satisfy the award. The amount in deposit is
directed to be refunded to the insurer-appellant.”
10
8. The insurer succeeded before the High Court, as the
liability to pay compensation amount has been restricted to
that of the owner of the offending vehicle. Therefore, the
insurer did not file appeal against the enhancement of
compensation amount payable to the legal representatives
of the deceased (Satish). The present appeal (Civil Appeal
No.9078 of 2017), however, has been filed by the widow and
daughter of the deceased (Satish). They have challenged not
only the correctness of the view taken by the High Court
absolving the insurer from the liability to pay compensation
but also for further enhancement of compensation amount.
Similarly, Anand, the injured pillion rider, has also filed a
separate appeal challenging the decision of the High Court
in restricting the liability to pay compensation amount to
that of the owner of the offending vehicle but also on the
quantum of compensation amount. In both the appeals, it is
alternatively urged that the compensation amount payable
to the respective claimants should be first paid by the
Insurance Company with liberty to recover the same from
the owner of the offending vehicle, respondent No.2 herein.
11
9. The respondent No.1 Insurance Company, on the other
hand, submits that by virtue of statutory provisions, it
cannot be made liable to pay the compensation amount as
the offending vehicle did not have a valid permit for being
operated in the State of Karnataka. It is also contended that
no direction be issued against the Insurance Company to
pay and recover as it may be difficult for the Insurance
Company to trace the owner of the offending vehicle. For,
the owner of the offending lorry has not chosen to appear
even before this Court.
10. We have heard Mr. Anand Sanjay M. Nuli, learned
counsel appearing for the appellants and Mr. Parmanand
Gaur, learned counsel for the respondents.
11. Taking the appeal filed by the legal representatives of
the deceased (Satish) first, as mentioned earlier, they did
not file any appeal challenging the award passed by the
Tribunal determining the compensation amount payable to
them at Rs.4,53,000/- (Four Lakh Fifty Three Thousand
only) with interest at the rate of 6% per annum from the
date of petition till the date of deposit. It is respondent No.1
12
Insurance Company who had challenged the award in
favour of the claimants and in those appeals, the claimants
(including appellants in Civil Appeal No.9078 of 2017) filed
cross objections which, however, came to be dismissed for
non- removal of office objections. Nevertheless, the High
Court enhanced the compensation amount payable to them
by invoking power under Order 41 Rule 33 of the Civil
Procedure Code (C.P.C.). The Insurance Company has not
challenged the said view taken by the High Court as it has
already succeeded in getting a finding from the High Court
that the liability to pay compensation amount was restricted
to that of the owner of the offending vehicle, namely
respondent No.2 herein.
12. Assuming that the legal representatives of the
deceased (Satish) (appellant in Civil Appeal No.9078 of
2017) could ask for enhancement of the compensation
amount in the present appeal whilst challenging the finding
of the High Court to absolve the Insurance Company of its
liability to pay the compensation amount, the question is
whether the appellants are justified in claiming further
enhanced compensation amount.
13
13. The Tribunal has found that no evidence regarding the
income of the deceased (Satish) was produced by the
claimants. That finding has not been over turned by the
High Court. The High Court, however, relied upon the
driving licence of the deceased and training certificate of the
deceased issued by Bajaj Auto Limited and on that basis,
determined the notional income of Satish (Deceased) at the
time of accident at Rs.10,000/- per month. Neither the
driving licence nor the certificate could per se be made the
basis to assume or infer that the deceased (Satish) was
gainfully employed at the relevant time and moreso was
earning income of Rs.10,000/- per month. In other words,
the reason assigned by the High Court for enhancing the
notional income of the deceased (Satish) from Rs. 3000/- to
Rs.10,000/- per month is irrational and tenuous. No
tangible logic has been assigned to discard the just finding
recorded by the Tribunal in the backdrop of lack of evidence
regarding the monthly income of the deceased (Satish).
14. We are of the view that the High Court has already
granted more than just compensation amount to the legal
14
representatives of the deceased (Satish). In that, even if the
claim of the appellants regarding future prospects,
additional medical expenses and additional interest amount
was to be accepted, on the basis of the notional income of
Rs.5000/- (Rupees five thousand) per month, the question
of awarding additional or further compensation amount to
the appellants in M.F.A. No.5874 of 2011 does not arise.
The appeal, however, would succeed to the limited extent
that the amount of compensation determined by the High
Court shall be first paid by the respondent No.1 Insurance
Company with liberty to recover the same from the owner of
the offending vehicle (respondent No.2 herein). We are
inclined to allow the appeal to this limited extent, keeping in
mind the exposition in Singh Ram Vs. Nirmala and Ors.1
and Pappu and Ors. Vs. Vinod Kumar Lamba and Anr. 2
15. Reverting to the appeal preferred by respondent No.1
Insurance Company against Anand (M.F.A. No.5876 of
2011), as noted in paragraph Nos.11 and 12 of the
impugned judgment reproduced above, the High Court
1 (2018) 3 SCC 800
2 (2018) 3 SCC 208
15
disposed of the said appeal by absolving the insurer from
the liability to pay compensation amount. As noticed earlier,
the appellant (Anand) did not file any appeal against the
award passed by the Tribunal for enhancement of
compensation amount and the cross objection filed by him
in the appeal filed by the Insurance Company came to be
dismissed for non- prosecution. Even in respect of this
appeal, the Tribunal had found that he failed to produce
any evidence regarding his monthly income and the
permanent disability suffered by him had been determined
as not exceeding 10% to the whole body and compensation
had been awarded to him on that basis. Resultantly, we
intend to dispose of this appeal on the same basis by
directing the respondent No.1 Insurance Company to pay
the compensation amount awarded to the claimant (Anand)
in the first place, with liberty to recover the same from the
owner of the offending vehicle (respondent No.2).
16. In view of the above, the appeals are partly allowed by
directing the respondent No.1 Insurance Company to first
pay the compensation amount to the respective claimants
as determined by the High Court and Tribunal as the case
16
may be, with liberty to recover the same from the owner of
the offending vehicle, respondent No.2. The impugned
judgment and order passed by the High Court stands
modified to this limited extent.
17. The appeals are allowed in the aforementioned terms
with no order as to costs.
………………………………CJI.
(Dipak Misra)
…..…….…………………..….J.
(A.M. Khanwilkar)
…..…….…………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
JULY 31, 2018.
Comments