Karnataka High Court
The Divisional Manager vs Smt.Nagawwa W/O Revappa ... on 6 January, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6 T H DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.103682/2015 (MV)
BET WEEN
THE DIV IS IONAL MANAGER,
UNITED INDIA INS URANCE CO.LT D.,
DIV IS IONAL OFFICE,
SEETA SMRU TI, PB No.1568,
MARU TI GALLI, B ELAGAV I,
REPRES ENTED THROU GH ITS
ASSISTANT MANAGER.
...APPELLANT
(BY SRI N.R.KU PPELU R, ADVOCATE)
AND
1. SMT.NAGAWWA,
D/ O REVAPPA HUNASHIKATT I,
AGE: 21 YEARS, OCC: COOLIE,
R/O VADERAHATT I, TQ: GOKAK,
NOW R/AT SAI NAGAR RAIB AG,
DISTR ICT: BELAGAVI.
2. VENKANNA S/O BHIMAPPA TERDAL,
AGE: MAJOR, OCC: AGRICU LTU RE,
R/O PU LAGADDI, TQ: GOKAK,
DISTR ICT: BELAGAVI,
(OWNER OF THE MOTORCYCLE
B EARING NO.KA-23/R-3504).
...RESPONDENTS
(BY SRI K.ANAND KUMAR, ADVOCATE FOR R1;
SRI HARIS H S.MAIGU R, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
2
THE J UDGMENT AND AWARD DATED 27.04.2 015 PASS ED IN
MVC No.994/ 2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIB U NAL,
RAIBAG, AWARDING T HE COMPEN SAT ION OF ` 5,23,184/-
WITH INTER EST AT THE RATE OF 6% P.A. FROM THE DATE
OF PET ITION TILL THE DATE OF DEPOSIT .
THIS APPEA L COMING ON FOR ORDERS, THIS DAY THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The insurer of the offending motor vehicle
bearing reg istration No.KA-23/R-3504 has preferred
this appeal challenging the judg ment and award dated
27.04.2015 p assed by the Senior Civil Judge and MACT,
Raib ag, in MVC No.994/2014 on the ground of liability
as well on quantum.
2. Brief facts of the case that would be
relevant for the purpose of disposal of this appeal
are:
On 02.09.2013 at about 18-30 hours, when the
claimant was returning from hospital at Vaderahatti
village on the motorcycle bearing registration
No.KA-24/E-5029 as a pillion rider and one Halappa
Wadeyar was riding the said motorcycle in a
moderate speed on the left side of Vaderahatti
Pulagaddi road, the offending motor cycle bearing
registration No.KA-23/R-3504 came from Vaderahatti
side in a rash and negligent manner and dashed
against motorcycle in which she was traveling, as
result she sustained grievous injuries and after the
accident, she was shifted to NIMRA Hospital Gokak,
wherein she was admitted as an indoor patient for
about one month and had taken treatment to the said
injuries and also undergone operation and steel
implants were inserted to her body. Claimant had
sustained physical disability due to the injuries
sustained in the accident and she was not in a
position to lead normal life. She therefore had filed
claim petition in MVC No.994/2014 before the Court
of Senior Civil Judge and MACT at Raibag, claiming
compensation of `15,00,000/- with interest, towards
the injuries suffered by her in the accident.
After service of notice, respondent Nos.1 and 2
appeared through their respective counsels and filed
written statement. Respondent No.1-owner of the
offending vehicle had denied the averments in the
claim petition and contended that the rider of the
motorcycle in which the claimant was traveling had
caused the accident. He also contended that the rider
of the offending vehicle was also injured in the
accident and though he had approached the
jurisdictional police with the complaint, they have
refused to register the same and in collision with the
owner of the motorcycle bearing registration No.KA-
24/E-5029, a false case was filed against the rider of
the offending motorcycle. Respondent No.2-Insurer
had also filed a separate statement of objection
denying the averments made in the claim petition.
They contended that the accident had taken place
because of the negligence of the both the motorcycle
riders. They also contended that the petition was bad
for non-joinder of necessary parties. It was further
contended that the rider of the offending vehicle had
no driving licence and therefore the insurer was not
liable to pay the compensation.
The tribunal on the basis of the rival pleadings
had framed issues and during the course of trial,
claimant had examined herself as PW1 and examined
the treated doctor as PW2. 31 documents were
marked in support of the claimant's case as Exs.P1 to
P31. On behalf of the respondents, one witness was
examined as RW1 and two documents were marked
as Exs.R1 and R2. The tribunal thereafterwards heard
the arguments on behalf of the rival parties and on
appreciation of the oral and documentary evidence
available on record, allowed the claim petition in part
granting compensation of `5,23,184/- with interest at
6% per annum from the date of petition till deposit
and saddled the liability on the insurance company of
the offending vehicle bearing registration No.Ka-
23/R-3504. Being aggrieved by the same, insurer of
the offending motorcycle is before this Court in this
appeal challenging the impugned judgment and
award.
3. Learned counsel for the appellant submits
that since the rider of the offending vehicle which
was insured with the appellant was not having a
driving licence, the tribunal has erred in saddling the
liability on the insurer. He submits that the breach
committed by the owner of the offending motorcycle
is a fundamental breach and therefore the insurer
cannot be saddled with the liability to pay the
compensation. He also submits that the quantum of
compensation awarded by the tribunal is on the
higher side. He submits that the tribunal has taken
into consideration the applicable multiplier as '19'
whereas the same should have been '18'. He also
submits that the disability to the whole body has
been taken at 30%, which is erroneous. He submits
that having regard to the total disability to the limb
which is at 70%, the disability to the whole body
should be taken at 23%.
4. Per contra, learned counsel for the claimant
submits that the claimant is a third party and the
breach committed by the rider of the motorcycle
cannot be considered as a fundamental breach as the
same was not the sole reason for the cause of the
accident. He submits that in view of the full bench
decision of this Court in the case of New India
Assurance Company Limited V/s Yallavva and
another reported in 2020(2) ACJ 2560, the insurer
is liable to pay the compensation to the claimant and
recover the same from the owner of the offending
vehicle. He also submits that the overall
compensation granted by the tribunal cannot be
considered to be on higher side merely for the reason
that the tribunal has applied a wrong multiplier and
taken into consideration the disability at 30% to the
whole body. He submits that since the accident is of
the year 2013, the notional income of the injured
claimant should have been taken as `7,000/- per
month instead of `6,000/- per month according to the
income chart maintained by the Karnataka State
Legal Services Authority for the purpose of disposal
of the cases in the Lok Adalath. He also submits that
the tribunal has not awarded any compensation
towards loss of amenities and even the compensation
awarded under the incidental heads and loss of
earning during treatment is on the lower side.
Accordingly, he prays to dismiss the appeal.
5. I have given my anxious consideration to
the rival submissions and also perused the material
available on record.
6. The accident in question and the injury
suffered by the claimant in the accident is not in
dispute. The claimant was traveling as a pillion rider
in the motorcycle bearing registration No.KA-24/E-
5029 and at that time the offending vehicle bearing
registration No.KA-23/R-3504 which was driven in a
rash and negligent manner had dashed against the
motorcycle in which the claimant was traveling and
as a result, the claimant had suffered grievous
injuries and she was hospitalized for a period of
nearly one month and due to the injuries, she had
not only undergone prolonged treatment but also had
suffered permanent disability on limbs. In support of
her case, claimant examined herself and also
examined doctor who has treated her as PW2. The
full bench of this Court in the case of Yallavva at
Para 66 has held as under:
"66. The doctrine of fundamental
breach in law of contract is developed
mainly in the areas of bailment and carriage
and also in motor vehicle insurance in order
to protect innocent parties particularly
persons who suffer injury or death due to
the accidents and preventing exploitation of
claimants and denying justice to them. This
is as per the intention of the Parliament in
enacting the Motor Vehicles Act.
Ascertainment of fundamental breach is a
method innovated for controlling
unreasonable consequences of innumerable
conditions and sweeping exemption clauses
in the policies. The law makers have
introduced Section 149 (1) and (2) of the
Act, perhaps in order to avoid the above
said mischief that may be caused to the
third party sustaining injuries and third
party death in any motor vehicle accident.
Therefore, if the conditions which are
incorporated in the policies, do not fall
under any one of the categories recognized
under Section 149 (2) of the Act, those
conditions cannot be said to be the
conditions which can be defendable by the
Insurance company before the Court of law.
Thus, the breach of those conditions which
are specifically recognized under the said
section and further, particularly the breach
of those conditions which are referable to
the cause of accident only, can be called as
fundamental conditions and breach of those
conditions amount to fundamental breach of
conditions. Therefore, the intention of the
Parliament is very clear indicating that
whatever may be the breach of conditions
recognized under Section 149 (2) of the
Act, if breach of those conditions has no
connection with the cause of accident, such
breach cannot be called as fundamental
breach. Therefore, a mere breach of any
condition, even if it falls under Section 149
(2) of the Act but which is not responsible
for the cause of accident, in such an
eventuality, the insurance company cannot
absolve itself from its liability because
under the doctrine of indemnity, the insurer
is liable to reimburse the awarded amount
to the insured."
It cannot be said that the rider of the offending
vehicle not possessing driving licence alone was the
cause for the accident in question in which the
claimant had suffered injuries. Under the
circumstances as rightly contended by the learned
counsel for the claimant, the insurer cannot be
absolutely absolved from its liability to pay the
compensation to a third party who has been injured
in the accident. The full bench of this Court in the
case of Yallavva, has clearly held that breach of
condition which are referable to the cause of accident
only, can be called as a fundamental breach. Under
the circumstances, I am of the considered view that
though the tribunal had erred in fastening the
liability absolutely on the insurer, the insurer cannot
be completely absolved from its liability to pay the
compensation amount having regard to the judgment
of the full bench decision of this Court in Yallavva's
case. The insurer is liable to pay the compensation
amount to the claimant and thereafterwards recover
the same from the owner of the offending vehicle.
Insofar as contention of the learned counsel for
the insurer with regard to the quantum of
compensation awarded by the tribunal is concerned
as rightly pointed out by him, the tribunal has erred
in taking into consideration the applicable multiplier
at '19'. Having regard to the age of the injured, the
applicable multiplier would be '18'. The learned
counsel is also right in submitting that the whole
body disability ought to have been taken as 23% as
against 30%. However, on an overall re-appreciation
of the material on record if the compensation to be
awarded to the claimant is recalculated, I find that
the compensation awarded by the tribunal is not on
the higher side. The accident in which the claimant
had suffered injuries had taken place in the year
2013 and as rightly contended by the learned counsel
for the claimant. The tribunal ought to have taken
notional income of the claimant at `7,000/- per
month. If the whole body disability is taken at 23%
and if the notional income of the claimant is taken at
`7,000/- per month and by taking into consideration
the applicable multiplier at '18', the compensation
towards loss of future earning comes to `3,47,760/-.
Further as rightly contended by the learned counsel
for the claimant, the tribunal has not awarded any
compensation towards the loss of future amenities to
the claimant. Having regard to the nature of injury
and disability suffered by the claimant, she would be
entitled atleast for a sum of `50,000/- under the
head of loss of future amenities. The tribunal has
also granted meager compensation towards loss of
earning during treatment and towards conveyance,
attendant, nourishment and miscellaneous charges.
Even under the said heads, claimant is entitled for a
higher compensation. Therefore, on an overall
appreciation of all these aspects of the matter, I am
of the considered view that the compensation
awarded by the tribunal is just and proper and needs
no interference. Accordingly, I pass the following:
ORDER
i. The Miscellaneous First Appeal is partly
allowed.
ii. The judgment and award dated
27.01.2015 passed in MVC
No.994/2014 by the Senior Civil Judge
and MACT at Raibag is modified and it
is held that the appellant-Insurance
Company is entitled to pay and recover
the compensation amount from the
owner of the offending vehicle bearing
registration No.KA-23/R-3504.
iii. However it is made clear that the
compensation amount awarded by the
tribunal remains unaltered.
iv. The amount in deposit shall be
transferred to the tribunal for the
purpose of disbursement.
v. In view of disposal of appeal,
I.A.No.1/2017 will not survive for
consideration.
SD/-
JUDGE
AC/ CL K
