Sri K. T Thimaiiah vs Sri Girija
2021 Latest Caselaw 1998 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 27TH DAY OF MAY 2021

                        PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

             M.F.A. NO. 407 OF 2020 (MV-I)
BETWEEN:

SRI. K.T. THIMMAIAH
S/O. THIMMAIAH,
AGED ABOUT 67 YEARS,
R/OF VADERAHALLI VILLAGE,
KASABA HOBLI,
MADHUGIRI TALUK,
TUMKUR DISTRICT - 572 112.               ... APPELLANT

[BY SRI. KASHYAP N NAIK, ADV. (VIDEO CONFERENCE)]

AND:

1.     SMT. GIRIJA
       W/O. RAVI,
       AGED ABOUT 41 YEARS,
       R/OF HIRISEVER VILLAGE,
       KASABA HOBLI,
       MADHUGIRI TALUK,

2.     SRIRAMA GENERAL INSURANCE CO. LTD.,
       E-8, EPIP,
       SITAPURA INDUSTRIAL AREA,
       JAYAPURA,
       RAJASTHAN-302 022.
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      SERVICE ADDRESS:
      SRIRAMA GENERAL INSURNACE CO. LTD.,
      M.G. ROAD,
      TUMAKURU.                      ... RESPONDENTS

(BY SRI. B. PRADEEP, ADV. FOR R2
 VIDE ORDER DATED 22.03.2021,
 NOTICE TO R1 IS HELD SUFFICIENT)
                           ---
     THIS M.F.A. IS FILED UNDER SECTION 173 (1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
26.03.2019 PASSED IN MVC NO.924/2017 ON THE FILE FO
THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT XIII,
MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND    SEEKING   ENHANCEMENT     OF
COMPENSATION.

    THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                             JUDGMENT

This appeal under Section 173(1) of the Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act' for short) has

been filed by the claimant seeking enhancement of the

amount of compensation, against the judgment dated

26.03.2019 passed by the Motor Accident Claims Tribunal

(hereinafter referred to as 'the Tribunal' for short).

2. Facts leading to filing of this appeal briefly stated

are that on 26.11.2016, the claimant - KT Thimmaiah was

riding a motorcycle bearing registration No.KA-14-B-1945.

When he reached near Rajkamal Sawmill, a Eicher vehicle

bearing registration No.KA-20-B-241 (hereinafter referred to

as 'the offending vehicle' for short) which was being driven

by its driver in rash and negligent manner, dashed against

the motor cycle which the claimant was riding. As a result of

the aforesaid accident, the claimant sustained grievous

injuries and was immediately given first aid at Government

Hospital, Madhugiri and thereafter was shifted to Sapthagiri

Hospital, Bangalore for further treatment where the claimant

was an inpatient for 32 days.

3. The claimant thereupon filed a petition under

Section 166 of the Act inter alia on the ground that the

claimant was admitted to Sapthagiri Hospital, Bangalore

where he took treatment as inpatient for a period of 32 days.

It is also pleaded that the claimant has spent more than

Rs.10,00,000/- towards medical expenses. It was also

claimed that the claimant was earning Rs.1,00,000/- from

working as an agriculturist and due to the impact of the

accident, the claimant is unable to carry on with the work as

before. It was also pleaded that the accident took place on

account of the rash and negligent driving of the driver of the

offending vehicle. The claimant claimed compensation to the

tune of Rs.30,00,000/- along with interest.

4. The respondent insurance company appeared

through their counsel and filed written statement, inter alia,

in which the mode and manner of the accident was denied.

The age, occupation, income and injuries sustained by the

claimant was denied. It was further pleaded that the accident

occurred on account the negligence of the claimant himself in

riding the motor cycle. It was also pleaded that liability of the

insurance company to the compensation, if any, is subject to

the terms and conditions of the policy. It was also stated that

the compensation claimed by the claimant is highly

excessive, speculative and exorbitant.

5. On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant, in order to prove his case,

examined himself as PW-1, Dr.Girish (PW2) and got exhibited

documents namely Ex.P1 to Ex.P14. The respondent

insurance company examined Ashok Kumar (RW1), Suraj HT

(RW2) and got exhibited documents namely Ex.R1 to Ex.R4.

The Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver, as a

result of which, the claimant sustained injuries. The Tribunal

further held that the claimant is entitled to a compensation of

Rs.3,71,355/- along with interest at the rate of 6% p.a.

Being aggrieved, this appeal has been filed by the claimant

seeking enhancement of the amount of compensation.

6. Learned counsel for the claimant submitted that

the Tribunal grossly erred in not awarding compensation

under the head 'Loss of Future Earning Capacity' when

Ex.P11 RTC Extracts clearly indicates that the petitioner was

engaged in agriculture at the time of the accident and that

due to the accident, the claimant is unable to carry on with

his work as an agriculturist and has sustained loss of income

from agriculture. It is further submitted that the Tribunal

erred in exonerating the insurer of the offending vehicle of its

liability to pay the compensation merely on the ground that

the driver of the offending vehicle did not possess a valid and

effective driving license to drive the offending vehicle at the

time of the accident and that the Tribunal ought to have

invoked the principle of 'Pay and Recover'. In support of the

aforesaid submission reliance has been placed on the

decision of the Supreme Court in PAPPU AND ORS VS.

VINOD KUMAR LAMBA AND ORS (2018) 3 SCC 208. It is

also urged that the amount of compensation awarded under

all the other heads are on the lower side and deserve to be

enhanced suitably.

7. On the other hand, learned counsel for the insurance

company submitted that the Tribunal has rightly not awarded

compensation under the head 'Loss of Earning Capacity' as

the claimant has not sustained any loss of earning capacity

due to the accident, when the claimant in his cross-

examination has admitted that he is a retired constable and

is drawing a pension of Rs.15,500/- per month. It is further

submitted that the amount of compensation awarded by the

Tribunal under all the heads is just and proper and does not

call for any interference. It is also submitted that the tribunal

has rightly fastened the liability to pay the amount of

compensation on the owner of the offending vehicle as the

driver of the offending vehicle did not possess a valid and

effective driving license to drive the offending vehicle at the

time of the accident.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The only question which arises for our consideration in this

appeal is with regard to the quantum of compensation. The

claimant in his evidence has stated that he is a retired police

constable drawing a pension of Rs.15,500 per month and is

engaged in agriculture and was earning Rs.60,000/- to

Rs.70,000/- per month from agriculture. Ex.P11 are the RTC

extracts which indicate that the claimant owns and is

cultivating agricultural lands to the extent of 24 guntas.

Therefore, it is evident that the claimant was engaged in

agriculture after his retirement from service. However, the

claimant has not produced any evidence with regard to his

income from agriculture. Therefore, the notional income of

the claimant is to be assessed as per the guidelines issued by

the Karnataka Legal Services Authority. Since the accident is

of the year 2016, the notional income of the claimant from

agriculture is assessed at Rs.9,500/- per month. Ex.P4

discloses that the claimant has sustained the following

injures:

A (Grievous in nature) b. Deep abrasion with degloving wound on left foot c. Cut lacerated wound over right hand d. L2 Vertebra wedge compression fracture (Grievous in nature)

Dr. Girish H Rudrappa has stated in his evidence that

the claimant has sustained amputation below knee of the

right lower limb and that the claimant has sustained disability

to the extent of 60% to the right lower limb and 23.33% to

the whole body. The aforesaid disability would certainly

impact the earning capacity of claimant by carrying on

agriculture. Therefore, the claimant is entitled to

Rs.1,85,934/- (Rs.9,500 x 12x 7x 23.33%) under the head

'loss of earning capacity'.

9. Taking into consideration the injuries sustained by

the claimant and the fact the claimant has remained an

inpatient for a period of 32 days, the claimant would have

been laid up atleast for 3 months. Therefore, the claimant is

entitled to Rs.28,500/- (9,500x2) under the head 'loss of

income during laid up period' and is also held entitled to

Rs.15,000/- under the head 'food, nourishment and

conveyance expenses'. The amount of compensation

awarded under the other heads is maintained as the same is

just and reasonable. Thus, the claimant is held entitled to a

total compensation of Rs.6,00,789/-. Needless to state that

the enhanced amount of compensation viz., Rs.2,29,434/-

shall carry interest at the rate of 6% per annum from the

date of filing of the petition till the date of realization of the

amount.

10. It is well settled law that the insurer is liable to pay

the third party and recover the same 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. (See: 'NATIONAL INSURANCE CO.

LTD. Vs. LAXMI NARAIN DHUT' (2007) 3 SCC 700,

'ORIENTAL INSURANCE CO. LTD. Vs. BRIJ MOHAN'

(2007) 7 SCC 56 AND 'SHAMANNA Vs. DIVISIONAL

MANAGER, THE ORIENTAL INSURANCE CO. LTD.'

(2018) 9 SCC 650, PAPPU AND ORS VS. VINOD KUMAR

LAMBA AND ORS (2018) 3 SCC 20 & full bench decision of

this court in NEW INDIA ASSURANCE CO. LTD. VS.

YALLAVA AND ANR. 2020(2) AKR 484. In the instant

case, the offending vehicle being a Medium Goods Vehicle

(MGV) with an laden weight of 8750 kilograms would require

a driving endorsement. However, the driver of the offending

vehicle did not possess the said endorsement and was in

possession of a license to drive a Light Motor Vehicle (LMV)

as evident from Ex.R1. Therefore, the driver of the offending

vehicle did not possess a valid and effective driving license at

the time of the accident to drive the offending vehicle.

Therefore, it is evident that there is a violation of policy

condition. The Tribunal erred in exonerating the insurer of

the offending vehicle of its liability to pay the compensation.

In view of the aforesaid legal principles, the Respondent No.2

viz., insurer of the offending vehicle is held liable to pay the

total amount of compensation to the claimant at the first

instance and recover the same from the insured. To the

aforesaid extent, the judgment passed by the Claims Tribunal

is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE ss