Smt Mallamma vs Sri Krishnamurthy S B
2022 Latest Caselaw 8365 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 8TH DAY OF JUNE 2022

                          BEFORE

    THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.2279 OF 2019 (MV)
                          C/W
                MFA No.664 OF 2019(MV),
                MFA No.665 OF 2019(MV),
                MFA No.2280 OF 2019(MV)

IN MFA No.2279/2019:

BETWEEN:

Smt.Mallamma,
W/o Sri.Boregowda,
Aged about 57 years,
R/at Maruthipura,
I.D.Halli Hobli,
Madhugiri Taluk.                           ... Appellant

(By Sri.Sathisha.T., Advocate)

AND:

1. Sri.Krishnamurthy.S.B,
   S/o Boregowda,
   Aged about 42 years,
   "Shiva Nilaya" 10th cross,
   Vidyanagara,
   Tumakuru - 572 101.

2. The New India Assurance
   Company Ltd.,
   Opp:Ramamandira,
                              2



  K.R.Road, Barline Road,
  K.R.Extension,
  General Kariyappa Road,
  Tumakuru.
  Now represented by
  The Regional Manager,
  The New India Assurance
  Company Ltd.,
  Regional Manager,
  No.9, 2nd floor,
  Mahalakshmi Chamber,
  M.G.Road,
  Bengaluru - 560 001.                    ... Respondents

(By Sri.G.S.Naveen Kumar, Advocate for
    Sri.S.B.Mukkannappa, Advocate for R1;
    Sri.C.R.Ravishankar, Advocate for R2)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 30.07.2018 passed
in MVC No.13/2017 on the file of the Additional Senior Civil
Judge, MACT-XII, Madhugiri, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.

IN MFA No.664/2019:

BETWEEN:

The New India Assurance Co., Ltd.,
Opp:Rama mandira, K.R.Road,
Barline Road, K.R.Extension,
General Kariyappa Road, Tumakur.
Represented by Motor Third Party
Claims Hub, Mahalakshmi Chambers,
No.9, 2nd floor, M.G.Road,
Bengaluru - 560 001.
Represented by its Manager.                    ... Appellant
(By Sri. C.R.Ravishankar., Advocate)
                                 3




AND:

1. Smt.Mallamma,
   W/o Sri.Boregowda,
   Aged about 57 years,
   R/at Maruthipura,
   I.D.Halli Hobli,
   Madhugiri Taluk -572 112.

2. Sri.Krishnamurthy.S.B,
   S/o Boregowda,
   Aged about 42 years,
   "Shiva Nilaya" 10th cross,
   Vidyanagara,
   Tumakuru - 572 101.                   ... Respondents

(By Sri.Sathisha.T., Advocate for R1;
    Sri.G.S.Naveen Kumar, Advocate for R2)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 30.07.2018 passed
in MVC No.13/2017 on the file of the Additional Senior Civil
Judge & MACT-XIII, Madhugiri, awarding compensation of
Rs.7,65,290/-along with interest at 9% per annum from
the date of petition till the date of deposit

IN MFA No.665/2019:

BETWEEN:

The New India Assurance Co., Ltd.,
Opp:Rama mandira, K.R.Road,
Barline Road, K.R.Extension,
General Kariyappa Road, Tumakur.

Represented by Motor Third Party
Claims Hub, Mahalakshmi Chambers,
No.9, 2nd floor, M.G.Road,
                                 4



Bengaluru - 560 001.
Represented by its Manager.                    ... Appellant

(By Sri.C.R.Ravishankar., Advocate)

AND:

1. Smt.Doddakka
   @ Doddathayamma,
   W/o Sri.Malleshappa,
   Aged about 37 years,
   R/at Maruthipura,
   I.D.Halli Hobli,
   Madhugiri Taluk -572 211.

2. Sri.Krishnamurthy.S.B,
   S/o Boregowda,
   Aged about 42 years,
   "Shiva Nilaya" 10th cross,
   Vidyanagara,
   Tumakuru - 572 101.                    ... Respondents

(By Sri.Sathisha.T., Advocate for R1;
    Sri.G.S.Naveen Kumar, Advocate for
    Sri.Mukkannappa.S.B., Advocate for R2)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 30.07.2018 passed
in MVC No.18/2017 on the file of the Additional Senior Civil
Judge & MACT-XII, Madhugiri, awarding compensation of
Rs.25,000/-along with interest at 9% per annum from the
date of petition till the date of deposit.

IN MFA No.2280/2019:

BETWEEN:

Smt.Doddakka @ Doddathayamma,
W/o Sri.Malleshappa,
                                 5



Aged about 37 years,
R/at Maruthipura,
I.D.Halli Hobli,
Madhugiri Taluk -572 211.                      ... Appellant

(By Sri.Sathisha.T., Advocate)

AND:

1. Sri.Krishnamurthy.S.B,
   S/o Boregowda,
   Aged about 42 years,
   "Shiva Nilaya" 10th cross,
   Vidyanagara,
   Tumakuru - 572 101.

2. The New India Assurance
   Company Ltd.,
   Opp:Ramamandira,
   K.R.Road, Barline Road,
   K.R.Extension,
   General Kariyappa Road,
   Tumakuru.
   Now represented by
   The Regional Manager,
   The New India Assurance Company Ltd.,
   Regional Manager, No.9, 2nd floor,
   Mahalakshmi Chamber,
   M.G.Road, Bengaluru - 560 001.     ... Respondents

(By Sri.G.S.Naveen Kumar, Advocate for
    Sri.S.B.Mukkannappa, Advocate for R1;
    Sri.C.R.Ravishankar, Advocate for R2)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 30.07.2018 passed
in MVC No.18/2017 on the file of the Additional Senior Civil
Judge, MACT-XII, Madhugiri, partly allowing the claim
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petition for compensation and seeking enhancement of
compensation.

      These appeals, coming on for Admission, this day,
this Court, delivered the following:

                      JUDGMENT

MFA Nos.2279/2019 and 2280/2019 have been

filed by the claimants and MFA Nos.664/2019 and

665/2019 have been filed by the Insurance Company

under Section 173(1) of Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act') being aggrieved

by the judgment and decree dated 30.07.2018 passed

by Additional Senior Civil Judge, MACT XII, Madhugiri

in MVC Nos.13/2017 and 18/2017.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 09.05.2015 the claimant-

Mallamma in MVC No.13/2017 and claimant-Doddakka

@ Doddathayamma in MVC No.18/2017 and others to

attend the marriage of their relatives at Bengaluru

had been to Bengaluru from their Village in

Siddeswara Bus bearing Registration No.KA-01-D-

8538 and on 10.05.2015 left Bengaluru in the same

Bus at afternoon to go their Village and when the Bus

approached between Vaddarahalli-Siddapura Village,

Kolala Hobli, Koratagere Taluk, at that time i.e. at

03.30 P.M., the driver of the said Bus drove the same

with high speed and in a rash and negligent manner

near the bridge where the road work was going on,

the bus was jumped and wood seat was broken. As a

result of the aforesaid accident, both claimants were

sustained grievous injuries and were hospitalized.

3. The claimants filed separate claim petitions

under Section 166 of the Act seeking compensation.

It was pleaded that they spent huge amount towards

medical expenses, conveyance, etc. It was further

pleaded that the accident occurred purely on account

of the rash and negligent driving of the offending

vehicle by its driver.

4. On service of notice, the respondent Nos.1

and 2 being the owner and the insurer of the

offending vehicle have appeared through counsel and

filed separate written statement in which the

averments made in the petition were denied.

It was pleaded by the owner that the petition

itself is false and frivolous in the eye of law. It was

further pleaded that as on the date of the accident,

the driver of the offending vehicle had valid driving

licence. The offending vehicle was insured with

Insurance Company and the policy was in force as on

the date of the accident. Hence, the Insurance

Company is liable to pay the compensation.

It was pleaded by the Insurance Company that

the liability is subject to terms and conditions of the

policy. It was further pleaded that the offending

vehicle is a stage carriage vehicle and not a contract

carriage vehicle. It was further pleaded that the place

where the accident took place does not situate within

the route permit issued to the said vehicle. Hence the

owner has violated the permit conditions. Therefore,

the Insurance Company is not to indemnify the owner.

Hence, they sought for dismissal of the petitions.

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

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant-Mallamma was

examined as PW-1, claimant-Doddakka was examined

as PW-2 and Dr.Prabhakar. V was examined as PW-3

and got exhibited documents namely Ex.P1 to Ex.P27.

On behalf of the respondents, two witnesses were

examined as RW-1 and RW-2 and got exhibited

documents namely Ex.R1 to Ex.R7. 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 -

Mallamma in MVC No.13/2017 is entitled to a

compensation of Rs.7,65,290/- and claimant -

Doddakka @ Doddathayamma in MVC No.18/2017 is

entitled to a compensation of Rs.25,000/- along with

interest at the rate of 9% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, these

appeals have been filed both by the claimants as well

as Insurance Company challenging the same

judgment and award.

6. Sri C. R. Ravi Shankar, learned counsel for

the Insurance Company has raised the following

contentions:

Firstly, in respect of liability he has contended

that as on the date of the accident, the offending

vehicle was used as a contract carriage permit

between Tumakuru to Nelamangala via Vaddarahalli,

Urdigere. But the driver of the offending vehicle has

deviated the permit route, he was proceeding on

National Highway and met with an accident. He

further contended that the Bus is a Stage Carriage

Vehicle and not a Contract Carriage Vehicle. Since the

Bus was used for contract carriage, the owner has

violated the permit conditions. Hence, the Insurance

Company is not liable to pay the compensation. In

support of his contention, he has relied upon the

judgment of a Division Bench of this Court in MFA

No.967/2017 disposed of on 22.04.2022 in the

case of VENKATESH vs. IFFCO TOKIO GENERAL

INSURANCE COMPANY LTD. and also relied upon

the judgment of Apex Court in the case of RANI vs.

NATIONAL INSURANCE COMPANY LTD. reported in

(2018) 8 SCC 492.

Secondly, in respect of quantum, in MVC

No.13/2017, he has contended that at the time of the

accident, the claimant-Mallamma was aged about 65

years, which is very clear from the medical records.

Therefore, the Tribunal has rightly assessed the age of

the claimant as 65 years. He further contended that

the monthly income assessed by the Tribunal is just

and reasonable. Even the disability assessed by the

Tribunal and the future income due to disability

assessed by the Tribunal are also just and reasonable.

But the compensation awarded under the other heads

are on higher side.

Thirdly, in respect of quantum in MVC

No.18/2017 considering the age and avocation of the

claimant the overall compensation awarded by the

Tribunal is on the higher side.

Fourthly, in view of judgment of the Division

Bench of this Court in the case of MS.JOYEETA BOSE

AND OTHERS vs. VENKATESHAN.V AND OTHERS

(MFA 5896/2018 and connected matters disposed of

on 24.8.2020), the claimants are entitled for 6%

interest but the Tribunal has granted 9% interest

which is on the higher side. Hence he sought for

allowing the appeals filed by the Insurance Company.

7. Sri G. S. Naveen Kumar, learned counsel

for Sri Mukkannappa S. B., learned counsel for the

owner of the offending vehicle has contended in

respect of liability that it is not in dispute that the

offending vehicle has to go via Dabaspet, Urdigere to

Tumakuru, but as the bridge was not in good

condition, he went through National Highway by

deviating the route permit. He has violated the permit

condition but he has not violated any policy conditions

as well as route permit, therefore, the Tribunal has

rightly held that the Insurance Company is liable to

pay the compensation.

He further contended that the Tribunal after

considering the judgment of Division Bench of this

Court in the case of K.V.THIMMEGOWDA vs.

KAMALAMMA reported in ILR 1991 KAR 4127 has

held that the Insurance Company is liable to pay the

compensation. He also relied upon the judgment of

Hon'ble Apex Court in the case of IFCO TOKIO

GENERAL INSURANCE COMPANY LTD. vs. VILLA AND

OTHER REPORTED IN 2017 ACJ 282. Hence, he

contended that the Insurance Company is liable to pay

the compensation.

In respect of quantum is concerned, he has

contended that considering the injuries sustained by

the claimant and considering the age and avocation of

the claimants, the overall compensation awarded by

the Tribunal is on higher side. Hence, he sought for

dismissal of the appeals filed by the claimants as well

as the Insurance Company.

8. Sri Sathisha. T., learned counsel for the

claimants has raised the following contentions:

Firstly, in MVC No.13/2017 as on the date of the

accident, the claimant was aged about 55 years. To

prove the same, she has produced Aadhar Card as per

Ex.P16. It is very clear from the said document that

the year of birth is 1960. Therefore, as on the date of

the accident, the claimant-Mallamma was aged about

55 years.

Secondly, due to the accident, she has suffered

grievous injuries. She has examined Dr. Prabhakar V

as PW-3. He has deposed that the claimant in MVC

No.13/2017 has suffered amputation of right leg

below the knee and he has assessed the disability at

70% to right lower limb and 42.63% to the whole

body and 58% disability to the left lower limb. The

Tribunal has assessed the whole body disability at

40% which is on the lower side. In support of his

contention, he has relied upon the judgment of this

Court in MFA No.811/2015 disposed of on

18.07.2019 in the case of RAJANNA @ RAJU vs.

SRINIVASA AND OTHERS and MFA No.6429/2017

disposed of on 21.12.2021 in the case of

NANJEGOWDA V. vs. KUMAR H.B. AND ANOTHER.

Thirdly, even though the claimant claims that

she was earning Rs.15,000/- per month by doing

agriculture and milk vending, but the Tribunal has

taken the notional income as merely as Rs.6,000/- per

month.

Fourthly, due to the accident, the claimant has

sustained grievous injuries. She was inpatient in the

hospital for period of 45 days. Even after discharge

from the hospital, she was not in a position to

discharge her regular work. She has suffered lot of

pain during treatment. Considering the same, the

compensation granted by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other heads are on the lower side.

Fifthly, considering the injuries suffered by the

claimant the compensation awarded by the Tribunal in

MVC No.18/2017 is on the lower side. Hence, he

sought for enhancement of compensation.

9. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

10. It is not in dispute that the claimants have

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

IN MVC No.13/2017:

11. The claimant claims that she was earning

Rs.15,000/- per month. She has not produced any

documents to prove her income. Therefore, the

notional income has to be assessed as per the

guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken

place in the year 2015, the notional income has to be

taken at Rs.9,500/- p.m. As per wound certificate,

the claimant has sustained cut lacerated wound right

leg. PW-3, the doctor has stated in his evidence that

the claimant has suffered disability of 70% to right

lower limb and 42.63% to whole body and 58% to left

lower limb. Her right leg below knee has been

amputated. The Tribunal has assessed the whole

body disability as 40%. Considering the evidence of

the doctor and considering the amputation of right leg

below knee, as per Schedule I of the Workmen's

Compensation Act, for amputation below knee,

percentage of disability is considered as 50%.

Accordingly, disability is assessed as 50%. The

claimant has produced the Aadhar Card as per Ex.P16

wherein the year of birth is shown as 1960.

Considering the same, as on the date of the accident

she was aged about 55 years and multiplier

applicable to her age group is '11'. Thus, the

claimant is entitled for compensation of Rs.5,94,000/-

(Rs.9,000*12*11*50%) on account of 'loss of future

income'.

'Loss of income during laid-up period' has to be

granted for three months, i.e., Rs.27,000/-

(Rs.9,000*3).

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

12. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 1,50,000 1,50,000 Medical expenses 1,88,090 1,88,090 Food, nourishment, 50,000 50,000 conveyance and attendant charges

Loss of income during 18,000 27,000 laid up period Loss of amenities 1,00,000 1,00,000 Loss of future income 2,59,200 5,94,000 Total 7,65,290 11,09,090

The claimant is entitled to a total compensation

of Rs.11,09,090/- as against Rs.7,65,290/- awarded

by the Tribunal.

IN MVC No.18/2017:

13. Considering the nature of injuries suffered by

the claimant and considering the age and avocation,

the overall compensation awarded by the Tribunal is

just and reasonable.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra) the

enhanced compensation carries interest @ 6% p.a.

Re.liability:

14. It is not in dispute that as on the date of the

accident the said bus was used for contract carriage,

permit to run between Tumkur - Nelamangala via

Dabaspet, Thyamagondlu, Gollahalli, railway gate. It

is clear from the finding of the Tribunal that the driver

of the bus has deviated the route and the accident

occurred on Vaddrahalli - Urdigere road which is 65

kms. away from Nelamangala. Therefore, the driver

of the bus has violated the permit condition. Since the

driver of the bus has violated the policy condition, the

Insurance Company is not liable to pay the

compensation.

15. Sri Ravishankar, learned counsel appearing

for the Insurance Company has relied on a judgment

of a Division Bench of this Court in MFA No.967/2017

disposed of on 22.04.2022 following the judgment of

the Hon'ble Apex Court in the case of NATIONAL

INSURANCE COMPANY LTD. Vs. CHELLA

BHARATHAMMA & OTHERS reported in 2004 AIR

SCW 5301 has held that by violating permit condition

by deviating the permitted route, the Insurance

Company is not liable to pay the compensation. Even

the Hon'ble Apex Court in the case of RANI -V-

NATIONAL INSURANCE COMPANY LTD. reported

in (2018) 8 SCC 492 has held that by violating the

route permit the Insurance Company is not liable to

pay the compensation. In respect of third parties is

concerned, the Insurance Company has to pay the

compensation at the first instance with liberty to

recover the same from the owner of the offending

vehicle.

16. In view of the above, since the insured has

violated the policy condition, the Insurance Company

is not liable to pay the compensation. But in respect of

third parties claim is concerned, Insurance Company

has to pay the compensation amount along with

interest with liberty to recover the same from the

owner of the offending vehicle.

17. In respect of the judgments relied upon by

the learned counsel for the claimants in MFA

No.811/2015 disposed of on 18.08.2019 wherein the

facts of the case is that due to the amputating the

claimant has lost job, therefore, the court has

considered functional disability as 100%. In MFA

No.4629/2017 relied upon by the learned counsel for

the claimant disposed of on 21.12.2021, the claimant

was a motor cab driver. Due to the accident he was

unable to continue as a driver. Therefore, the court

has considered functional disability of 100%. Hence,

the facts of the above cases are not applicable to the

case on hand.

18. The owner of the offending vehicle has relied

on the judgment of Punjab and Haryana High Court in

the case of RELIANCE GENERAL INSURANCE CO.

LTD. Vs. KARNAIL KAUR AND OTHERS reported in

2019 ACJ 635. In view of the judgment of the

Hon'ble Apex Court as well as the Division Bench

judgment of this Court, the judgment relied upon by

the owner of the offending vehicle cannot be

considered.

19. Accordingly, the appeals are allowed in part.

The judgment and award passed by the Tribunal is

modified. The Insurance Company is directed to

deposit the entire compensation amount along with

interest @ 6% p.a. from the date of filing of the claim

petition till the date of realization, within a period of

six weeks from the date of receipt of copy of this

judgment.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

HA/Cm/-