Karnataka High Court
Bajaj Allianz vs Gundappa S/O. Ramappa Badgi on 25 February, 2021
Author: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA
MFA NO.22589/2013 (MV-I)
C/w. MFA Crob. No.100017/2014 (MV-I)
In MFA No.22589/2013:
Between:
Bajal Allianz General Insurance Co. Ltd.,
Through the Manager, Branch Office,
Koppal, Rep. by Bajaj Allianz General
Insurance Co. Ltd., V.A. Kalburgi Mansion,
4th Floor, Opp: Municipal Corporation,
Lamington Road, Hubli,
Rep. by its Authorised Signatory.
... Appellant
(By Shri R.R. Mane, Advocate)
And:
1. Gundappa S/o.Ramappa Badgi,
Age 22 years, occ: coolie,
R/o.: Kuniker Tanda,
Tq. & Dist.: Koppal.
2. Iqbal Ahmad S/o.Mardanali Maniyar,
Age 42 years, Occ: Driver-cum-owner
Of Maxi Cab No.KA-35/7085,
R/o.: Devaraj Uras Colony, Koppal,
Tq. & dist.: Koppal.
... Respondents
(By Shri M.Amaregouda, Advocate for R1; R2 - served)
This MFA is filed u/S.173(1) of MV Act, 1988 against the
judgment and award dated 27.03.2013, passed in MVC
No.70/2012 on the file of the Member, Addl. MACT & PO, Fast
:2:
Track Court, Koppal, awarding the compensation of
Rs.1,09,990/- along with interest at the rate of 6% p.a. from the
date of petition till depositing the amount.
In MFA Crob. No.100017/2014:
Between:
Gundappa S/o.Ramappa Badgi,
Age 24years, occ: coolie,
R/o.: Kuniker Tanda,
Tq. & Dist.: Koppal.
... Cross-objector
(By Shri M.Amaregouda, Advocate)
And:
1 Iqbal Ahmad S/o.Mardanali Maniyar,
Age 44 years, Occ: Driver-cum-owner
Of Maxi Cab No.KA-35/7085,
R/o.: Devaraj Uras Colony, Koppal,
Tq. & dist.: Koppal.
2. The Manager, ,
Bajaj Allianz General Insurance Co. Ltd.,
V.A. Kalburgi Mansion, 4th Floor,
Opp: Municipal Corporation,
Lamington Road, Hubli,
... Respondents
(By Shri R.R. Mane, Advocate for R2)
This MFA Crob. in MFA No.22589/2013 is filed under Order
41 Rule 22 of CPC, against the judgment and award dated
27.03.2013, passed in MVC No.70/2012 on the file of the
Member, Addl. MACT & Fast Track Court, Koppal, partly allowing
the claim petition for compensation and seeking enhancement of
compensation.
The appeal and cross-objection coming on for admission,
this day, the Court delivered the following:
:3:
JUDGMENT
1. MFA No.22589/2013 is by the Insurance Company
challenging the liability saddled on it.
2. MFA Crob. No.100017/2014 is by the claimants
seeking enhancement of compensation.
3. The facts are not in dispute.
4. The accident did occur on 25.06.2011 when the
claimant was hit by a cruiser and as a result of which he
sustained grievous injuries.
5. The Tribunal after recording the finding that the
accident did occur on account of the negligence of the driver of
the cruiser and has proceeded to award the following sums as
compensation.
Loss of future earnings due to disability Rs.64,800/-
Medical expenses Rs.36,144/-
Loss of income during his stay in the home Rs.6,000/-
Food and nourishment Rs.3,000/-
TOTAL Rs.1,09,944/-
6. Learned counsel for the insurer contends that this is
a case of breach of policy conditions in as much as the vehicle
had no permit.
7. In view of the decision in the case of New India
Assurance Co. Ltd., Bijapur v. Yallavva W/o. Yamanappa
Dharanakeri and other reported in 2020(2) AKR 84, when
even the insurance company pleads that there was a breach of
policy conditions, the only option available to the Insurance
Company to satisfy the award and thereafter proceed to recovcer
the same from the owner of the vehicle. In view of the said case,
in the present case also the insurer will have to satisfy the award
and thereafter recover the same from the owner.
8. The Tribunal after assessing the disability has
determined the monthly notional income at Rs.3,000/-, since
there was no documentary evidence to establish the income.
Since there is no credible evidence to establish the monthly
notional income, it would be proper to adopt the notional income
as determined by the Karnataka State Legal Services Authority
as per which for an accident of the year 2011, the notional
income would be Rs.6,000/- and the same is adopted in this
case.
9. Further, the Tribunal has assessed the disability at
10%. A perusal of the medical evidence adduced indicates that
the determination of 10% disability to the whole body cannot be
found fault with.
10. The multiplier ad opted by the Tribunal is also
correct and consequently, the claimant would be
entitled to a sum of Rs.1,29,600/- (Rs.6,000/- x 12 x
18 x 10%) towards loss of earning due to disab ility.
11. The Tribunal has award ed a sum of
Rs.36,144/- towards med ical expenses, which is based
on the documentary evid ence and hence the same is
confirmed.
12. As I have determined the monthly notional
income of the claimant at Rs.6,000/-, the claimant
would be entitled to a sum of Rs.12,000/- toward s loss
of income during his stay in the home.
13. The Tribunal has award ed a sum of
Rs.3,000/- towards food and nourishment. The same is
marginally enhanced to Rs.5,000/-.
14. The Tribunal has not award ed any
comp ensation towards loss of amenities. In my view,
having regard to the fact that the claimant had suffered
10% permanent disability, it would be app ropriate to
award a sum of Rs.25,000/- towards loss of amenities.
As a consequence, the claimant would b e entitled to the
following sums as comp ensation.
Loss of future earnings due to disability Rs.1,29,600/-
Medical expenses Rs.36,144/-
Loss of income during his stay in the home Rs.12,000/-
Food and nourishment Rs.5,000/-
Loss of amenities Rs.25,000/-
TOTAL Rs.2,07,744/-
15. Accordingly, appeal filed by the Insurance
Comp any is dismissed and the cross-ob jection filed by
the claimant is allowed in part. The claimant would be
entitled to a total comp ensation of Rs.2,07,744/-
instead of Rs.1,09,944/- award ed by the Tribunal along
with interest at the rate of 6% p.a. form the d ate of
petition till the d ate of deposit.
16. The Insurance Comp any is directed to pay the
award amount and thereafter recover the same from the
owner.
17. The Insurance Comp any is directed to deposit
the entire comp ensation amount exclud ing the amount
in deposit, if any, b efore this Court shall be transmitted
to the Tribunal for disb ursement
18. The amount in deposit, if any, shall be
transmitted to the Tribunal for disbursement.
SD/-
JUDGE
Vnp*
