Karnataka High Court
The Divisional Manager vs Sri.V.Janardhan on 8 June, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.2685/2013 (MV)
C/W.
M.F.A.NO.2684/2013 (MV)
M.F.A.NO.5110/2013 (MV)
M.F.A.NO.2685/2013 (MV):
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
1ST FLOOR, RUB BUILDING,
A.A.CIRCLE, B.H.ROAD,
SHIVAMOGGA-577 201.
... APPELLANT
(BY SRI M.U.POONACHA, ADVOCATE)
AND:
1. SRI.V.JANARDHAN
S/O VARADARAJ,
AGED ABOUT 38 YEARS,
R/AT NO.10, 2ND MAIN,
3RD CROSS, PADURAYANNAPURA,
MYSORE ROAD,
BENGALURU-26.
2. SRI T.M.KRISHNAMURTHY
S/O T.H.MARIYAPPA,
AGE: MAJOR,
2
R/AT NO.59/2,
SRINIVASA ROAD, 2ND BLOCK,
THYAGARAJANAGAR,
BENGALURU-560 028.
3. SRI T.H.MARIYAPPA,
S/O HANUMANTHAPPA,
SINCE DECEASED BY HIS LR's,
3(a). SMT. KAMALAMMA,
W/O MARIYAPPA,
AGED ABOUT 62 YEARS,
3(b). SMT. NIRMALA,
W/O LOKESH,
AGED ABOUT 35 YEARS,
3(c). SMT. KOMALA
W/O BASAVARAJ,
AGED ABOUT 32 YEARS,
ALL ARE R/AT NO.59/2,
SRINIVASA ROAD, 2ND BLOCK,
THYAGARAJANAGAR,
BENGALURU-560 028.
... RESPONDENTS
(R1 AND R2 ARE SERVED AND UNREPRESENTED
VIDE COURT ORDER DATED 22.10.2018;
R3(a-c) SERVICE HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 18.12.2012
PASSED IN MVC.NO.1424/2010 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III, ADDITIONAL MACT-IV,
SHIVAMOGGA, AWARDING A COMPENSATION OF Rs.34,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
3
IN M.F.A.NO.2684/2013 (MV):
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
1ST FLOOR, RUB BUILDING,
A.A.CIRCLE, B.H.ROAD,
SHIVAMOGGA-577 201.
... APPELLANT
(BY SRI M.U.POONACHA, ADVOCATE)
AND:
1. SRI M.S.DEVU
S/O SOMEGOWDA,
AGED ABOUT 42 YEARS,
R/AT TAVARAGERE, V.V.PURAM
OPP. JAI BHARAT SCHOOL
MANDYA TOWN.
2. SRI T.M.KRISHNAMURTHY
S/O T.H.MARIYAPPA,
AGE: MAJOR,
R/AT NO.59/2, SRINIVASA ROAD,
2ND BLOCK, THYAGARAJANAGAR,
BENGALURU-560 028.
3. SRI T.H.MARIYAPPA,
S/O HANUMANTHAPPA,
SINCE DECEASED BY HIS LR's,
3(a). SMT. KAMALAMMA,
W/O MARIYAPPA,
AGED ABOUT 62 YEARS,
4
3(b). SMT. NIRMALA,
W/O LOKESH,
AGED ABOUT 35 YEARS,
3(c). SMT. KOMALA
W/O BASAVARAJ,
AGED ABOUT 32 YEARS,
ALL ARE R/AT NO.59/2,
SRINIVASA ROAD, 2ND BLOCK,
THYAGARAJANAGAR,
BENGALURU-560 028.
... RESPONDENTS
(BY SRI M.Y.SREENIVASAN, ADVOCATE FOR R1;
VIDE COURT ORDER DATED 22.10.2018;
R2 AND R3(a-c) SERVICE HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 18.12.2012
PASSED IN MVC.NO.1425/2010 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III, ADDITIONAL MACT-IV,
SHIVAMOGGA, AWARDING A COMPENSATION OF Rs.54,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
IN M.F.A.NO.5110/2013 (MV):
BETWEEN:
M.S.DEVU
S/O SOMEGOWDA,
AGED ABOUT 43 YEARS,
R/O TAVARAGERE, V.V.PURAM
OPP. JAI BHARATH SCHOOL
MANDYA TOWN-571402.
... APPELLANT
(BY SRI M.Y.SREENIVASAN, ADVOCATE)
5
AND:
1. SRI T.M.KRISHNAMURTHY
S/O T.H.MARIYAPPA,
AGE: MAJOR,
DRIVER OF TOYOTA QUALLIES
R/O NO.59/2, SRINIVASA ROAD,
2ND BLOCK, THYAGARAJANAGAR,
BENGALURU-560 028.
2. SRI T.H.MARIYAPPA,
S/O HANUMANTHAPPA,
SINCE DECEASED BY HIS LR's,
2(a). SMT. KAMALAMMA,
W/O MARIYAPPA,
AGED ABOUT 63 YEARS,
2(b). SMT. NIRMALA,
W/O LOKESH,
AGED ABOUT 36 YEARS,
2(c). SMT. KOMALA
W/O BASAVARAJ,
AGED ABOUT 33 YEARS,
ALL ARE R/O NO.59/2,
SRINIVASA ROAD, 2ND BLOCK,
THYAGARAJANAGAR,
BENGALURU-560 028.
3. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO.
1ST FLOOR, RUB BUILDING,
A.A.CIRCLE, B.H.ROAD,
SHIVAMOGGA-577 201.
... RESPONDENTS
(BY SRI M.U.POONACHA, ADVOCATE FOR R3;
VIDE COURT ORDER DATED 20.03.2014
R1 AND R2(a-c) NOTICE DISPENSED WITH)
6
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 18.12.2012
PASSED IN MVC.NO.1425/2010 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-III, ADDITIONAL MACT-IV,
SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE MFAs' COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appeals in M.F.A.No.2685/2013 and 2684/2013 are
filed by the Insurance Company and the appeal in
M.F.A.No.5110/2013 is filed by the claimant challenging the
judgment and award passed in M.V.C.No.1424/2010 and
M.V.C.No.1425/2010 dated 18.12.2012 on the file of the Court
of the Fast Track-III and Addl. MACT-IV, Shivamogga
questioning the liability and quantum of compensation.
2. The factual matrix of the case is that the claimants
on 23.09.2006 at about 4.30 a.m. were proceeding in the Toyota
Quallies near Malavagoppa, opposite to Sugar Factory on B.H.
Road i.e., outskirts of Shivamogga city, the respondent No.1
being the driver of the said Toyota Quallies noticed a 407 mini
lorry bearing No.KA-14/6146 moving slowly in front of his
vehicle with both indicators and parking lights were put on. Due
to darkness, first respondent under the confusion tried to stop
his Toyota Quallies, unfortunately could not stop the same, but
dashed against the left side hind portion of the said 407 mini
lorry and caused the accident.
3. The Insurance Company appeared and filed the
written statement denying the averments made in the claim
petition and further contended that the petition is filed in
collusion with the owner and driver of the vehicle bearing No.KA-
05/MA-3683 and further contended that vehicle bearing No.KA-
05/MAC-3683 is covered by insurance policy and the rights and
liabilities are governed by the terms and conditions, exception
and limitation of the said policy. It is contended that respondent
No.2-owner has committed specific breach of the policy
conditions by allowing an unauthorized and unlicensed driver to
drive the vehicle and there is a breach of terms and conditions of
the policy. Hence, the Insurance Company is not liable to pay
the compensation.
4. The claimants, in order to substantiate their claim
have examined themselves as P.Ws.1 and 2 before the Tribunal
and got marked the documents Exs.P1 to P8. On the other
hand, the respondent-Insurance Company examined one witness
as R.W.1 and got marked the document Ex.R1-copy of the
insurance policy.
5. The Tribunal, after considering both oral and
documentary evidence placed on record, allowed the claim
petition in part and directed the Insurance Company to pay the
compensation of Rs.34,000/- to the petitioner in
M.V.C.No.1424/2010 and Rs.54,000/- to the petitioner in
M.V.C.No.1425/2010 with interest at 6% per annum. Being
aggrieved by the judgment and award, the Insurance Company
has filed the appeals in M.F.A.No.2685/2013, 2684/2013 and the
claimant has filed the appeal in M.F.A.No.5110/2013 questioning
the fastening of liability on the Insurance Company and quantum
of compensation.
6. The learned counsel appearing for the Insurance
Company would vehemently contend that Ex.R1-copy of the
policy which has been produced before the Tribunal is very clear
that vehicle in question is a private vehicle and the same is
covered by a private car package policy and as such, the said
vehicle cannot be used for hire or reward. Further, it is
contended that since the claimants were traveling in the said
vehicle for hire, the insured has committed breach of terms and
conditions of the policy. The counsel would also contend that
P.W.1 in his cross-examination admitted that Toyota Quallies is
owned by their friend one Krishnamurthy and they have taken
the vehicle by sharing vehicle expenses for the trip and they
were going to attend a meeting of the Chief Minister at Shimoga.
P.W.2 in his cross-examination admits that they have taken the
said Toyota Quallies vehicle for hire. When these admissions are
elicited particularly, from the mouth of P.Ws.1 and 2, the
Tribunal ought not to have fastened the liability on the Insurance
Company, when the vehicle was used for hire and reward.
Hence, it requires interference of this Court.
7. Per contra, counsel appearing for the claimant in
M.F.A.No.5110/2013 would vehemently contend that the
Insurance Company has examined a witness as R.W.1 and
marked the copy of the insurance policy as Ex.R1 and no other
material is placed before the Court. The counsel would also
submit that in the judgment of this Court in the case of New
India Assurance Co. Ltd., Bijapur by its Divisional Manager
vs. Yallavva and Another reported in ILR 2020 KAR 2239, in
para No.83, while answering questions referred to the large
Bench, particularly, question No.1 held that the insurer is liable
to pay the third party and recover from the insured even if there
is breach of any condition recognized under Section 149(2), even
if it is a fundamental breach (that is breach of condition which is
the cause for the accident) and the insurer proves the said
breach, in view of the mandate under Section 149(1) of the Act.
But no such order can be passed against the insurer, if, on the
facts and circumstances of a case, a finding is given by the Court
that the third party (injured or deceased) had played any fraud
or was in collusion with the insured, individually or collectively,
for wrongful gain to themselves or cause wrongful loss to the
insurer. Hence, the Insurance Company to pay the
compensation and recover the same from the owner. The
counsel also would submit that the Tribunal has failed to award
just and reasonable compensation in M.V.C.No.1425/2010 and
committed an error in awarding compensation of Rs.54,000/-
and it requires interference of this Court.
8. Having heard the learned counsel for respective
parties and also on perusal of the material available on record,
the points that arise for consideration before this Court are:
(i) Whether the Tribunal has committed an error
in fastening the liability on the Insurance
Company and it requires interference of this
Court?
(ii) Whether the Tribunal has committed an error
in not awarding just and reasonable
compensation in M.F.A.No.2425/2010 and it
requires interference of this Court?
(iii) What order?
Point No.(i)
9. There is no dispute with regard to the accident. It is
also not in dispute that the claimants were traveling in Toyota
Quallies bearing No.KA-05/MA-3683 from Bengaluru to Shimoga
and vehicle has met with an accident. It is also not in dispute
that policy which is marked as Ex.R1 is issued is in respect of the
private car. The main contention of the learned counsel for the
Insurance Company is that the owner of the car allowed these
claimants to travel in the said car and used the said car for hire
and reward. The counsel appearing for the Insurance Company
also brought to the notice of this Court that P.Ws.1 and 2 have
admitted the same. The counsel appearing for the claimants
also not disputed the said fact to contend that though the
Tribunal directed the Insurance Company to pay the
compensation and in view of the judgment of the larger Bench of
this Court to the effect that, even if there is a fundamental
breach, the Insurance Company to pay and recover the same.
Having perused the principles laid down in the said judgment, it
is clear that even if there is a fundamental breach, the Insurance
Company has to pay and recover the same. Hence, the order
passed by the Tribunal is liable to be modified that instead of
fastening absolute liability on the Insurance Company, the
Insurance Company has to pay and recover the same from the
owner and accordingly, point No(i) is answered.
Point No.(ii)
10. The Tribunal while awarding compensation has taken
note of the nature of injuries i.e., the fracture of right humorous
and the accident is of the year 2010. Having taken note of the
other injuries i.e., abrasion of 3x1/2" over right shoulder,
abrasion of 1x1/2" on the right side of the frontal region,
swelling of 2x2" over left arm with deformity and x-ray confirms
that there is a fracture of right humorous. The other injury is
lacerated wound measuring 2x1x1/2" over chin. The wound
certificate discloses that injury Nos.4 and 5 are grievous and
other injuries are simple in nature.
11. The doctor has not been examined before the
Tribunal and considering the nature of injuries, the Tribunal has
awarded Rs.30,000/- towards pain and agony. It is the accident
of the year 2010 and he has suffered one fracture, I am of the
opinion that the Tribunal has rightly awarded Rs.30,000/-.
12. The Tribunal has awarded Rs.5,000/- on the head of
medical expenses including conveyance, nourishment and other
expenses. The claimant has not produced any discharge
summary. Hence, I do not find any error committed by the
Tribunal in awarding Rs.5,000/- towards incidental expenses.
13. The Tribunal has awarded Rs.9,000/- towards loss of
earning during laid up period. The Tribunal has taken the
income of the claimant as Rs.3,000/- per month. The accident is
of the year 2010 and the income taken by the Tribunal at
Rs.3,000/- is very meager and notional income would be
Rs.5,500/- per month. The claimant has suffered only one
fracture and it requires minimum three months for reuniting the
fracture and rest, hence, I do not find any error in taking three
months, but the loss of income would be Rs.16,500/-(5,500x3)
as against Rs.9,000/- awarded by the Tribunal.
14. The Tribunal awarded Rs.10,000/- on the head of
loss of amenities and future unhappiness. Regarding loss of
amenities is concerned, the claimant has not examined the
Doctor with regard to the disability. Hence, I do no find any
error committed by the Tribunal in awarding Rs.10,000/- on the
head of loss of amenities.
15. However, the Tribunal failed to take note of the fact
that the claimant has suffered fracture of right humorous and
even in the absence of evidence of the Doctor, the Tribunal
ought to have awarded compensation taking into consideration
the nature of injuries. Hence, it is appropriate to award
Rs.50,000/- on the head of disability, even in the absence of
medical evidence without calculating the future loss of income.
16. After revisiting compensation on all the heads, the
total compensation works out to Rs.1,11,500/- as against
Rs.54,000/- awarded by the Tribunal.
Point No.(iii)
17. In view of the discussions made above, I proceed to
pass the following:
ORDER
(i) The appeals filed by the Insurance Company in
M.F.A.No.2685/2013 and M.F.A.No.2684/2013 are
allowed. The judgment and award of the Tribunal
passed in M.V.C.No.1424/2010 and
M.V.C.No.1425/2010 dated 18.12.2012 on the file of
the Court of the Fast Track-III and Addl. MACT-IV,
Shivamogga is modified directing the Insurance
Company to pay and recover the compensation from
the owner.
(iii) The appeal in M.F.A.No.5110/2013 is allowed in part.
The judgment and award of the Tribunal passed in
M.V.C.No.1424/2010 and M.V.C.No.1425/2010 dated
18.12.2012 on the file of the Court of the Fast Track-
III and Addl. MACT-IV, Shivamogga is modified
granting compensation of Rs.1,11,500/- as against
Rs.54,000/- awarded by the Tribunal with interest at
6% per annum
(iv) The Insurance Company is directed to deposit the
amount within six weeks before the Tribunal.
(v) The amount in deposit is ordered to be transmitted
to the concerned Tribunal forthwith.
(vi) The Registry is directed to transmit the TCR to the
concerned Tribunal forthwith.
Sd/-
JUDGE
ST
