Suresh vs Kumar D
2022 Latest Caselaw 9916 Kant

                           1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 29TH DAY OF JUNE, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

             M.F.A.NO.8245/2017 (MV-I)

BETWEEN:

SURESH,
AGED ABOUT 25 YEARS,
S/O NAGARAJU,
R/O. BANDREHALLI-572137,
KASABA HOBLI,
MADHUGIRI TALUK,
TUMAKURU DISTRICT.
                                          ... APPELLANT
(BY SRI PATEL D. KAREGOWDA,      ADVOCATE)

AND:

1.     KUMAR D.,
       AGED ABOUT 27 YEARS,
       S/O DASANAHALLI,
       R/O APPENAHALLI-572137,
       NERALAKERE POST,
       MEDIGESI HOBLI,
       MADHUGIRI TALUK,
       TUMAKURU DISTRICT.

2.   THE ORIENTAL INSURANCE COMPANY LIMITED,
     BRANCH OFFICE, TGMA BUILDING,
     J.C.ROAD, TUMAKURU-572101.
     BY ITS MANAGER
                                   ... RESPONDENTS
(BY SRI ASHOK N.PATIL, ADVOCATE FOR R2,
R1-SERVED)
                               2


      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT   AGAINST    THE   JUDGMENT           AND    AWARD       DATED
22.08.2017 PASSED IN MVC NO.31/2014 ON THE FILE OF
THE   PRINCIPAL      SENIOR       CIVIL    JUDGE,       &    MACT,
MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION       AND    SEEKING          ENHANCEMENT          OF
COMPENSATION AND ETC.,


      THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                     JUDGMENT

      The    present     appeal       is        filed   by     the

appellant/claimant     challenging        the    judgment      and

award dated 22.08.2017 in MVC.No.31/2014 passed

by Prl. Senior Civil Judge and MACT, Madhugiri, for

enhancement of compensation.

2. Brief facts of the case are as under:

On 25.06.2013 at around 12-30 p.m., the

claimant was walking on the left side of road from

Bandrehalli village towards Tavakadahalli Village, near

Aralikatte an Auto Rickshaw bearing Reg.No.KA-06-C-

6098 being driven by its driver in a rash and negligent

manner came from behind and dashed against him

and caused accident. Due to the impact the petitioner

sustained grievous injuries.

3. The claim petition was filed under Section

166 of MV Act by the appellant/claimant seeking

compensation. The Tribunal has partly allowed the

claim petition and awarded compensation of

Rs.4,39,420/- with interest at 9% p.a., from the date

of petition till the date of deposit. Being aggrieved by

the same, the present appeal is filed before this Court.

4. The Tribunal has awarded the

compensation under various heads as follows:

Sl.

Heads of compensation Amount in rupees No.

1. Towards pain and sufferings 40,000-00

2. Towards medical expenses 69,640-00

3. Towards conveyance, nursing 12,500-00 care, nourishment and towards other incidental expenses

4. Towards loss of income during 24,000-00 laid down period

5. Towards inconvenience, 35,000-00 discomfort and future amenities

6. Future medical expenses 25,000-00

7. Towards loss of income due to 2,33,280-00 permanent disability Total Rs.4,39,420/-

5. The Tribunal has awarded compensation of

Rs.4,39,420/- along with interest at the rate of 9%

per annum on amount of Rs.4,14,420/- from the date

of petition till the date of realization. The Tribunal has

fixed the liability to pay compensation on respondent

No.1-owner of the Autorickshaw bearing Reg.No.KA-

06-C-6098 on the ground that the driver was holding

driving licence of three wheeler (LMV) non-transport,

but the autorickshaw was three wheeler transport

vehicle. Hence, there is no violation of conditions of

policy. Further the Tribunal has also assigned reasons

that the autorickshaw had plied outside the permitted

area. Therefore, exonerated the Insurance Company

and fastened the liability on respondent No.1-owner of

the autorickshaw.

6. Learned counsel for the appellant/claimant

submitted that, just because, there is no endorsement

in the driving licence as transport, it does not

disqualify or it does not mean that the driver is not

able to drive transport three wheeler. Hence,

submitted that the observation made by the Tribunal

is correct. In other words, the Tribunal has followed

the principles of law laid down by the Hon'ble Apex

Court in the case of Mukund Dewangan v. Oriental

Insurance Co. Limited reported in AIR 2017 SC

3668. Therefore, the findings given by the Tribunal

with regard to driving licence is found to be correct.

7. Further Ex.R2 is the permission granted to

the autorickshaw to ply within the radius of 5 km from

Madugiri town, but Ex.P.1-FIR, Ex.P.2-complaint,

Ex.P.3-spot panchanama and EX.P.4-MVA report prove

the fact that the accident took place near Bandrehalli

Village, Kasaba Hobli, Madhugiri and it is situated 7

km towards north from Madugiri City. Therefore, the

accident has caused outside the permitted area.

Therefore, there is violation of conditions of insurance

policy. The Tribunal accordingly fastened the liability

on respondent No.1-owner of the offending vehicle

exonerating Insurance Company. The Tribunal is

correct in holding that the Insurance Company is not

liable to pay the compensation and the owner of the

offending vehicle is liable to pay the compensation as

per the principles of law laid down by the Hon'ble

Apex Court in the cases of National Insurance Co.,

Ltd. Vs. Chellabharatamma reported in AIR 2004

SCC 4882 and New India Assurance Company

Limited vs. Yellavva and Another reported

in 2020 ACJ 2560. As per Section 149 of the

Motor Vehicles Act, an order of pay and recovery can

be made. Therefore, respondent No.2-Insurnace

Company has to satisfy the claim amount at the first

instance and recover it from respondent No.1 - owner

of the offending vehicle as per law. Accordingly, an

order of pay and recovery can be made.

8. Learned counsel for respondent No.2-

Insurance Company submitted that since the

Insurance Company does not have occasion to prefer

an appeal, the entire liability is fastened on the owner

of the offending vehicle is correct, but if an order of

pay and recovery is made, then the Insurance

Company has to pay interest at 9%, which is on the

higher side. Therefore, the same is requested to

reduce to 6% per annum.

9. Considering the submission made by the

learned counsel for respondent No.2-Insurance

Company, it is true that there was no occasion for the

Insurance Company to prefer an appeal being

aggrieved by the rate of interest. Since, the liability is

fixed on the owner of autorickshaw, as above

discussed, respondent No.2-Insurance Company is

exonerated from paying the compensation, but an

order of pay and recovery can be made as per the

decision of the Hon'ble Apex Court in

Chellabharatamma's and Yellavva's cases.

Therefore, the burden is on the owner of autorickshaw

to pay the compensation amount along with interest.

Since the order of pay and recovery is made,

whatever amount the Insurance Company has to

satisfy, equal amount has to be recovered from the

owner of the offending vehicle. Therefore, the rate of

interest cannot be reduced.

10. In view of the above observations, I

proceed to pass the following:

ORDER

Appeal is allowed in part.

The impugned judgment and award dated

22.08.2017 in MVC.No.31/2014 passed by Prl. Senior

Civil Judge and MACT, Madhugiri, is modified to the

extent that respondent No.2-Insurance Company shall

pay the compensation amount at the first instance and

recover it from respondent No.1-owner of the

offending vehicle as per the order of pay and recovery

in accordance with law.

Registry is directed to return the Trial Court

Records to the Tribunal, along with certified copy of

the order passed by this Court forthwith.

Draw award accordingly.

No order as to costs.

Sd/-

JUDGE

PB