Karnataka High Court
Prabu H C vs Ratnakara M V on 28 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24195
MFA No. 2374 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.2374 OF 2021(MV-I)
BETWEEN:
PRABU H C,
S/O LATE CHANDRASHEKARAIAH,
AGED ABOUT 50 YEARS,
JENUKALLU BETTA,
SIGE HOSURU,
JENNUKALLU BETTA FOREST,
KODAGU DISTRICT-571 201.
PERSENTLY R/O
CARE OF LOKESH S/O LATE CHIKKEGOWDA,
1ST CROSS, VIVEKA NAGAR,
HASSAN-573 201.
...APPELLANT
(BY SRI.GIRISH B BALADARE., ADVOCATE)
Digitally
signed by AND:
YAMUNA K L
Location: High 1. RATNAKARA. M.V,
Court of
Karnataka S/O VITTALA GOWDA,
AGED ABOUT 40 YEARS,
M. K.MAGAJAHALLI VILLAGE,
HANNUBHALU HOBLI,
SAKALESHPURA TALUK,
HASSAN DISTRICT-573 201.
2. THE MANAGER
THE NEW INDIA ASSURANCE COMPANY LTD.,
CHANDANA COMPLEX,
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NC: 2024:KHC:24195
MFA No. 2374 of 2021
HARSHA MAHAL ROAD,
HASSAN-573 201.
...RESPONDENTS
(BY SMT.GEETA RAJ., ADVOCATE FOR R2
R1 SERVED, UNREPRESENTED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 12.11.2019 PASSED IN MVC
NO.1207/2018 ON THE FILE OF THE MEMBER, MACT, 2ND
ADDITIONAL SENIOR CIVIL JUDGE AND M.A.C.T., HASSAN,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the claimant/appellant under Section 173(1) of the Motor Vehicles Act, 1988 1 for enhancement of compensation challenging the judgment and award dated 12.11.2019 passed in MVC No.1207/2018 by the II Addl. Senior Civil Judge and Motor Accident Claims Tribunal at Hassan2.
2. Heard the learned counsel for the parties. 1 Hereinafter referred to as the 'Act' 2 Hereinafter referred to as the 'Tribunal' -3- NC: 2024:KHC:24195 MFA No. 2374 of 2021
3. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.
4. Brief facts of the case are that on 21.10.2017 at about 10.00 a.m., when the petitioner was proceeding in a Car in front of Kudmangalore village Gram Panchayath, at that time, the driver of the tractor bearing registration No.KA-46-T-3935 came in a rash and negligent manner and dashed against it. As a result, the petitioner sustained multiple injuries all over the body. Then he was admitted to Government Hospital, Kudige and Kushalnagar and later he was shifted to Janapriya Hospital, Hassan, where he underwent surgery and was admitted as an inpatient for a period of one month and spent a sum of `5,00,000/- towards medical expenses. Hence, the petitioner filed the claim petition under Section 166 of the Act claiming compensation along with interest for the injuries sustained in the road traffic accident.
5. On service of notice, respondent No.1/owner is served and not appeared either through counsel or person and has placed exparte. Respondent No.2 has entered -4- NC: 2024:KHC:24195 MFA No. 2374 of 2021 appearance through his counsel and filed written statement and denied the averments made in the petition. It further contended that the driver of the offending vehicle did not have valid and effective driving licence as on the date of the accident and further contended that the owner of the offending vehicle has violated the terms and conditions of the insurance policy and the liability is subject to terms and conditions of the policy. Therefore, no liability is fixed on Insurance Company. It has further denied age, avocation and income of the claimant and the medical expenses. Hence, prays for dismissal of the petition.
6. On the basis of the pleadings of the parties, the Tribunal framed the following issues:
i. Whether petitioner proves that on 21.10.2017 at about 10.00 p.m., he came to Kushalnagar to buy goods when he was returning in his Car towards Kudige, at that time, driver of Tractor bearing Reg.No.KA-46-T-3935 coming from Kudige, drove his Tractor in a rash and negligent manner with a high speed dashed to the Car in which the petitioner was traveling and caused accident, due to which, the petitioner sustained multiple injuries all over the body?-5-
NC: 2024:KHC:24195 MFA No. 2374 of 2021 ii. Whether the petitioner is entitled for compensation as sought for? If yes, how much and from whom?
iii. What order or award?
7. In order to prove his case, claimant/petitioner examined himself as PW.1 and got marked Exs.P1 to Ex.P12 and petitioner has also examined the Doctor as PW-2 and got marked the documents at Exs.P13 to Ex.P15. On the other hand, the respondent No.2 has examined its Senior Assistant as RW-1 and got marked Ex.R1.
8. After hearing the arguments, the Tribunal answered issue No.1 in affirmative and issue No.2 in partly affirmative and allowed the petition in-part and fixed the liability on respondent No.1/owner. The Tribunal further held that the driver of offending vehicle was not possessing valid and effective driving license to drive the vehicle at the time of accident and hence, dismissed the petition against respondent No.2. The Tribunal awarded compensation at `4,63,663/- with interest at the rate of -6- NC: 2024:KHC:24195 MFA No. 2374 of 2021 8% p.a. and directed the respondent No.1 to deposit the compensation amount along with interest.
9. The Tribunal has awarded the compensation under various heads as follows:
Amount in Sl.No Particulars Rs.
1. Pain and sufferings. 40,000/-
2. Medical expenses 1,66,223/-
Conveyanc, food
3. nourishment, attendant 25,000/-
charges etc., Loss of income during laid
4. 18,000/-
down period Loss of future income due
5. 1,54,440/-
to disability
6. Loss of amenities 30,000/-
7. Future medical expenses 30,000/-
Total ` 4,63,663/-
10. Being aggrieved by the quantum of
compensation, the claimant filed this appeal for
enhancement of compensation.
11. Learned counsel for the appellant has
contended that the Tribunal has committed an error in taking the income of the appellant at `9,000/- p.m. even -7- NC: 2024:KHC:24195 MFA No. 2374 of 2021 though the petitioner was earning `20,000/- p.m. by doing agriculture. Even otherwise, the Tribunal could have taken the notional income at `11,000/- p.m. as per the chart of Karnataka State Legal Services Authority.
12. Learned counsel for the appellant contended that even though the petitioner had sustained 35% disability but the Tribunal has considered only 11% disability, which is on the lower side and the compensation awarded under all other heads are also on the lower side.
13. During the arguments, learned counsel for the appellant contended that the liability shall be fixed on the Insurance Company. It is not in dispute that as on the date of the accident, the offending vehicle was covered with a valid insurance policy and same is also not disputed by the Insurer. Hence, contended that even though the driver of the offending vehicle was not having effective driving license, the Insurance Company is liable to pay the compensation with liberty to recover the same from the owner of the offending vehicle. In support of his contention, he has relied upon the decision of the Hon'ble -8- NC: 2024:KHC:24195 MFA No. 2374 of 2021 Supreme Court in the case of Pappu and Ors. vs. Vinod Kumar Lamba and Another3 and Full Bench decision of this Court in the case of New India Assurance Co. LTD., vs Yallavva and others4, wherein, the Insurance Company is directed to pay compensation to the claimant with liberty to recover the same from the owner of the offending vehicle.
14. Per contra, learned counsel for respondent No.2 supported judgment of the Tribunal and contended that the respondent No.1/owner of the vehicle permitted the driver to drove the Tractor who did not have possess any valid driving license. Therefore, there is violation of the policy. Hence, the Tribunal has rightly exonerated the insurer and fixed the liability on the owner of the vehicle. Learned counsel for respondent No.2, further contended that except enhancing `2000/- towards the notional income of the claimant as per the chart of Karnataka State 3 AIR 2018 SUPREME COURT 592 4 AIR ONLINE 2020 KAR 986 -9- NC: 2024:KHC:24195 MFA No. 2374 of 2021 Legal Services Authority, there is no other compensation to be enhanced. Hence, sought for dismissal of the appeal.
15. Having heard the learned counsel for the parties and perused the material available on record, the points that arises for my consideration is as under;
i) Whether the income fixed by the Tribunal at `9000/-p.m. is meager and is liable to be enhanced?
ii) Whether the Tribunal has rightly fixed the liability on the first respondent/owner of the offending vehicle by exonerating the Insurance Company?
iii) What order/award?
16. Having perused the records, it is not in dispute that appellant has sustained injuries in a road traffic accident that occurred on 21.10.2017 due to rash and negligent driving of Tractor bearing registration No.KA-46- T-3935. Police have filed charge sheet against the driver of the Tractor for the offences punishable under Sections 279, 337 and 338 of IPC and 3(1) R/w Section 181 of
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NC: 2024:KHC:24195 MFA No. 2374 of 2021 Motor Vehicle Act, 1988, as the driver of the vehicle was not holding valid and effective driving licence. The appellant contends that he was earning a sum of `20,000/- p.m. In this regard, no documents have been produced. Hence, the Tribunal has considered income of the claimant at `9,000/- p.m. As per the chart of Karnataka State Legal Services Authority, the date of the accident is of the year 2017, the notional income of the claimant ought to have taken at `11,000/- p.m. Therefore, the notional income of the claimant is taken at `11,000/- p.m. instead of `9,000/- p.m. When it comes to the disability, Doctor is examined as PW-2 and has produced disability certificate and stated that the appellant is suffering from Right hip and knee movements restricted and painful, patient is not able to walk for long distance, not able to lift the weight and walk, not able to squat, X-ray showed fracture not united. Therefore, the Doctor opined 35% of disability towards the right lower limb but the Tribunal has considered only 11% disability to the whole body. However, the Tribunal has considered 1/3rd of the total disability assessed by the
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NC: 2024:KHC:24195 MFA No. 2374 of 2021 Doctor and hence, taken disability of the claimant at 11%. Therefore, the Tribunal has rightly taken disability at 11% to the whole body, which needs no interference by this Court. The age of the claimant is 48 years and proper multiplier applicable is '13'.
17. Hence, an amount of `1,88,760/- (`11,000 X 12 X 13 X 11/100) is awarded under the head 'loss of income due to disability'.
18. Insofar as to the pain and sufferings, the appellant has suffered disability towards right lower limb and the Tribunal has awarded a sum of `40,000/- which is just and proper. `1,66,223/- towards medical expenses and `25,000/- towards food and nourishment charges etc., awarded by the Tribunal is just and proper.
19. The Tribunal has awarded a sum of `18,000/- towards 'loss of income during laid up period' by taking `9,000/- p.m. for two months. Whereas, it has to be reassessed by taking notional income of the claimant at `11,000/- p.m. for three months. Hence, an amount of
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NC: 2024:KHC:24195 MFA No. 2374 of 2021 `33,000/- (`11,000 x 3) is awarded under the head 'loss of income during laid up period'.
20. The Tribunal has awarded a sum of `30,000/- respectively towards 'loss of future amenities' and 'future medical expenses', which are kept intact.
21. Thus, the appellant is entitled to the following compensation:
Sl.No. Compensation under Amount in different Heads Rs.
1. Loss of income due 1,88,760/-
disability.
2. Pain and suffering 40,000/-
3. Medical expenses 1,66,223/-
4. Food and nourishment etc., 25,000/-
charges
5. Loss of income during laid 33,000/-
up period
6. Loss of amenities 30,000/-
7. Future medical expenses 30,000/-
Total ` 5,12,983/-
22. Insofar as liability is concerned, the Tribunal has fixed liability on the respondent No.1/owner of the vehicle due to violation of the terms and conditions of the insurance policy. Learned counsel for the appellant though not raised any grounds in the appeal but orally raised
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NC: 2024:KHC:24195 MFA No. 2374 of 2021 grounds with the permission of this Court for fastening the liability on the respondent No.2.
23. On the other hand, learned counsel for the respondent No.2, supported the Division Bench of this Court in the case of Smt.Adilakshmammama and others vs Sri.Raju.B and another5 stated that the Court cannot fasten the liability on the insurer on pay and recover principle which is available in SWARN SINGH AND OTHERS6 case of the Hon'ble Supreme Court.
24. However, learned counsel for the appellant relied upon judgment of the Full Bench of this Court in the case of New India Assurance Co. LTD., vs Yallavva and others7 wherein, any violation of the conditions of the policy, the liberty taken by the Insurance Company, if they succeeded, shall be refund. But in view of the Section 149(4) of the Act, when policy was in force, even if there is a breach of the terms of the insurance policy, the 5 MFA No.3297 OF 2019 6 2004(3) SCC 297 7 AIR ONLINE 2020 KAR 986
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NC: 2024:KHC:24195 MFA No. 2374 of 2021 insurer is bound to pay compensation amount and recover the same from the owner of the offending vehicle. The Full Bench of this Court has held that the liability of the Insurance Company cannot be fully absolved and they have to satisfy the amount and recover the same from the owner of the vehicle.
25. In view of the judgment of the Apex Court in the case of Pappu and ors. vs. Vinod Kumar Lamba and Anr and New India Assurance Co. LTD., vs Yallavva and others (stated supra), the liability should be fastened on the Insurance Company and in turn, recover the same from the owner of the vehicle. As per the charge sheet and evidence on record, the driver of the offending vehicle does not have valid driving licence at the time of the accident.
26. In view of the above decisions, the Insurance Company is directed to pay the compensation amount with liberty to recover the same from the owner of the offending vehicle.
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NC: 2024:KHC:24195 MFA No. 2374 of 2021
27. Accordingly, I pass the following order.
ORDER
i. The appeal is allowed in-part.
ii. The judgment and award dated
12.11.2019 passed in MVC No.1207/2018 by the II Addl. Senior Civil Judge and Motor Accident Claims Tribunal at Hassan is hereby modified.
iii. The claimant is entitled to total compensation of `5,12,983/- as against `4,63,663/- awarded by the Tribunal with interest at the rate of 6% p.a. iv. The Respondent No.2/Insurance Company is directed to satisfy the award amount to appellant in first instance and in turn, recover the same from respondent No.1/owner of vehicle.
v. The Respondent No.2/Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a. on the enhanced compensation from the date of filing of the claim petition till the date of realization within a period of 60 days from
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MFA No. 2374 of 2021
the date of receipt of copy of this
judgment.
vi. The apportionment, deposit and release of
amount shall be made in terms of the award of the Tribunal.
vii. Registry is directed to return the Trial Court records to the Tribunal along with certified copy of the order passed by this Court forthwith without any delay.
Sd/-
JUDGE ASN List No.: 1 Sl No.: 59