(Prayer: This appeal is field u/s. 173(1) of MV Act against the judgment and award dated 07.02.2004 passed in MVC.No.54/2001 on the file of the Member, AMACT, Sirsi, partly allowing the claim petition for compensation and seeking enhancement of compensation.)
1. Appeal by the injured-claimant against the order and award dated 07.02.2004 passed by the Member, Addl. MACT, Sirsi, in M.V.C.No.54/2001 dissatisfied with the quantum of compensation assessed at a sum of Rs.23,520/- by the Tribunal in respect of the injures and the consequential pain and suffering etc., by the injured-claimant attributable to the accident caused by motor vehicle bearing registration No.KA 22/M-885 while it was proceeding from Dandeli Patel Circle.
2. The injured, a daily wage earner lady had claimed compensation of Rs.2 lakhs saying that she has suffered grievous injuries such as crush lacerated wound on upper half of the left leg and other related injuries, that she had been an inpatient at Patel Nursing Home, Dandeli, for a period of about 40 days or more, that she had incurred medical expenses to the tune of Rs.50,000/- and more and compensation under the other heads would add to Rs.2 lakhs etc.,
3. With the owner of the vehicle not responding to the court notice, the insurer stepped in, sought permission of the Tribunal to defend the proceeding in place of the insured by filing an application u/s 170 of the Motor Vehicles Act, (for short ‘the Act’) which came to be ordered and filed not only its objection statement but also lead evidence to demonstrate that due to the reason of the cheque issued by the insured towards the premium having been dishonoured with the banker’s endorsement saying that sufficient funds had not been arranged for by the drawer and therefore the insurer having cancelled the policy, there was no privity thereafter between the insured and the insurer and therefore no joint liability can be fastened on the Insurance Company though they had initially issued a policy to cover the risk of the owner of the vehicle.
4. The Tribunal on evaluation of the evidence found that the witness examined on behalf of the Insurance Company having admitted that the Insurance Company in fact had not issued any notice to the insured of the cancellation of the policy and had not even intimated to the insurer that the cheque had bounced etc., found no occasion to allow the Insurance Company to wriggle out of the liability subsequent to the occurrence of the accident and therefore rejected the defence put up by the Insurance Company and proceeded to evaluate and quantify compensation and fixed it as under:
Towards injuries, pain and Suffering Rs.8,000/-
Towards medical expenses Rs.5,920/-
Towards nutritious food etc., Rs.3,000/-
Towards attendant’s charges Rs.4,400/-
Towards loss of income Rs.2,200/-
5. It is against this award of the Tribunal, the claimant is seeking for enhancement in her appeal and the Insurance Company through the cross objection contends that there is no liability for having cancelled the policy.
6. I have heard Sri.A.S.Patil, learned counsel for the claimant and Sr.S.K.Kayakamath, learned counsel appearing for the Insurance Company who has filed cross objection.
7. The submission of Sri.Patil, is that the fixation of compensation payable to the claimant towards medical expenses as against the claim of Rs.50,000/- putforth is on the very lower side.
8. Mr.Kayakamath, learned counsel has countered by submitting that the Tribunal has awarded medical expenses on the basis of the factual aspect and materials placed by the claimant herself and therefore there cannot be any enhancement on this ground on guess work or imagination etc.,
9. The submission of the learned counsel on behalf of the Insurance Company is quite proper. However, Mr.Kayakamath, with regard to the cross-objection filed by the Insurance Company submits that when the Insurance Company had repudiated the contract, there was no privity between the insured and the insurer and therefore the Tribunal is in error in making the award enforceable against the insurer and insured jointly and severally etc.,
10. While it is true that the liability of the insurer is only because of the policy and if the policy is no more in existence there is no liability but the manner in which the Insurance Company has gone about in arranging its affairs particularly for the purpose of cancellation of the policy leaves much to be desired, when viewed from a commercial angle.
11. The Insurance Company though is a Public Sector Insurance Company as the government nationalised the business of general insurance in the year 1972, are nevertheless carrying its business on commercial lines and therefore a liability in the nature of indemnification of the risk of the owner of a motor vehicle, which is statutory which is so made for the benefit of persons like the claimants, cannot be easily wished away until and unless all necessary observations have been adhered to and the contract repudiated in a legally valid manner.
12. Taking out a policy to cover the risk of the owner has been made compulsory under the provisions of the Act and therefore has come into existence as a class of policy known as ‘Statute Policy’. A Statute Policy goes much beyond a contractual policy and imposes the liability on the insurer as can be seen from the provisions of the Act and not merely to meet such liabilities which are contractual. When taking out a policy to cover the minimum risk which the owner has to meet in the event of the vehicle causing an accident while put to use on a public road being with the sole object of providing a commensurate assurance and cover to the persons claiming damages i.e., the victims of accidents involving the use of motor vehicle on public roads, in understanding and interpreting the provisions it should be so as to achieve and serve this purpose of providing succor to the third party victims and not to find ways and means: technical and otherwise, to allow the indemnifier to get out of this liability and inturn to deprive the benefit to the third party victim who is the focus of the legislative provisions and the purpose and the intention of the legislature, cannot be and should not be frustrated by administrator and Judges in the Court by being insensitive to the legislature scheme.
13. Though Mr.Kayakamath, counsel for the Insurance Company has placed reliance on the judgment of the Supreme Court in the case of DEDDAPPA AND OTHERS VS. THE BRANCH MANAGER, NATIONAL INSURANCE CO., LTD., (CDJ 2007 SC 1353) to contend that a situation where due to non-payment or dishonouring of the cheque, the policy gets cancelled, there cannot be any liability fastened on the Insurance Company, I find that the ratio of this case is not applicable to the facts of this case, particularly as the Insurance Company had not taken full and proper measures to ensure that the Insured had been properly apprised of the cheque having been dishonoured and having not made efforts to realise the amount otherwise also thereafter. Therefore, I am not persuaded to accept that the ratio of the judgment of the Supreme Court in Deddappa’s case covers the present facts.
14. In the circumstances, I find that the Tribunal was justified in quantifying the amount at Rs.23,520/-. There is not much scope to enhance this amount nor any necessity to allow the Insurance Company to wriggle of this liability. Therefore both the appeal and the cross objection are dismissed.