Karnataka High Court
Rajappa S/O Ahappa vs Narayan S/O Shivappa Uppar And Ors on 16 March, 2022
Bench: Ashok S. Kinagi
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
M. F. A. NO.201025 OF 2016 (MV)
BETWEEN:
RAJAPPA
S/O ASHAPPA
AGE: 25 YEARS, OCC: MASON
R/O KADECHUR
TQ. & DIST. YADGIR - 585 204
...APPELLANT
(BY SRI. VEERANAGOUDA MALIPATIL, ADV.)
AND:
1. NARAYAN
S/O SHIVAPPA UPPAR
AGE: 35 YEARS, OCC: DRIVER OF AUTO
BEARING REG.NO. KA-33-7174
R/O. MUNUGAL
TQ. AND DIST. YADGIR - 585 206
2. CHANDRAPPA
S/O THIMMAREDDY PORLA
AGE: 28 YEARS, OCC: OWNER OF AUTO
BEARING REG.NO. KA-33-7174
R/O KADECHUR
TQ & DIST. YADGIR - 585 204
2
3. THE MANAGER/LEGAL OFFICER
SRI RAM GENERAL INSURANCE COMPANY. CO. LTD.,
S-5, 2ND FLOOR, MONARCH CHAMBER
INFANTRY ROAD
BANGALORE - 560 001
...RESPONDENTS
(BY SRI. GANESH NAIK, ADV. FOR R1 & R2
SRI. SUBHASH MALLAPUR, ADV. FOR R3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MV ACT, PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 05.03.2015 PASSED BY THE
MEMBER, MACT II, YADGIR, IN MVC NO.196/2013 AND
ENHANCE THE COMPENSATION BY ALLOWING THE CLAIM
PETITION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 173(1) of the
Motor Vehicles Act, 1988 (hereinafter referred to as
'the Act', for short) by the claimant aggrieved by the
judgment dated 05.03.2015 passed in MVC
No.196/2013 by the Motor Accident Claims Tribunal-
II, Yadgiri (hereinafter referred to as 'the Tribunal' for
short).
2. For the sake of convenience, parties are
referred to as per their ranking before the Claims
Tribunal. Appellant is the claimant and respondents
are the respondents before the Tribunal.
3. Facts giving rise to the filing of the appeal
briefly stated are that on 20.04.2012 at 11.00 a.m.,
on Halagera-worknalli road near the land of one
Buggappa, claimant was travelling in auto bearing
Reg.No.KA-33/7174 along with others and the driver
of the auto drove the vehicle in a rash and negligent
manner as a result, the vehicle turned turtle and
caused the accident and the claimant has sustained
injuries and he spent huge amount for medical
treatment. Respondent No.1 is the driver and
respondent No.2 is the owner of the auto. Respondent
No.3 is the insurer. Hence, the respondents are jointly
and severally liable for payment of compensation.
3.1 The petitioner filed the petition under
Section 166 of the Act seeking compensation for the
injuries sustained in the road traffic accident.
3.2. Respondent No.3 filed written statement
denying the averments made in the claim petition. It
is contended that respondent No.1 did not possess a
valid and effective driving licence as on the date of
accident. It is further contended that respondent No.2
has violated the terms of the policy and permit
condition. Hence, respondent No.3 is not liable to pay
compensation. Hence, sought for dismissal of the
petition.
4. On the basis of the pleadings of the parties,
the Claims Tribunal framed the following issues:
"i. Whether the petitioner proves that, on
20.04.2012 at about 11.00 AM on
Haligera-worknalli main road near
Worknalli he was travelling in auto No.
KA-33-7174 from the side of Kadechur
towards Managanal, at that time the
driver of auto drove the vehicle with high
speed rashly and negligently and turned
turtle the vehicle and caused the accident
and he was sustained injuries in the
accident?
ii. Whether the respondent No.3 proves
that, respondent No.1 did not possess
valid DL at the time of accident?
iii. Whether the respondent No.3 proves
that, respondent No.2 has violated the
terms of policy and permit conditions?
iv. Whether petitioner is entitled the
compensation? If so, what rate and
against whom?
v. What order or award?"
5. The claimant in support of his claim
petition, examined himself as P.W.1 and in order to
prove the disability, examined the doctor as P.W.2
and got exhibited documents namely Ex.P1 to Ex.P30.
On behalf of the respondent No.3, has got examined
RW.1 and 2 and got marked documents Ex.R1 to R3.
The Tribunal, after recording the evidence and
considering the material on record, by the impugned
judgment, held that the claimant has proved that he
was travelling in the auto bearing Reg.No.KA-33/7174
on 20.04.2012, at that time, the driver of the auto
drove the vehicle in a high speed and negligently and
turned turtle and sustained injuries in the accident
and further held that respondent No.3 has failed to
prove that respondent No.1 did not possess the
driving licence at the time of accident. The Tribunal
further held that the respondent No.3 proved that
respondent No.2 has violated the terms of policy and
permit condition and held that claimant is entitled for
compensation and consequently allowed the claim
petition in part and awarded compensation of
Rs.2,21,688/- with interest at the rate of 6% per
annum and dismissed the claim petition against
respondent No.3 and held that respondent No.1 and 2
are jointly and severally liable to pay compensation to
the petitioner. The petitioner being aggrieved by the
judgment and award passed by the Tribunal has filed
this appeal challenging the liability as well as quantum
of compensation.
6. Heard the learned counsel for the petitioner
and the learned counsel for the respondents.
7. The learned counsel for the claimant
submits that the Tribunal has committed an error in
fastening the liability on respondent No.1 and 2 jointly
and severally on the ground that the vehicle was
plying beyond limit of permit. He further places
reliance on the judgment of the Division Bench of this
Court in MFA No.30752/2011 and connected matters
disposed of on 11.07.2018. He further submits that
compensation awarded by the Tribunal is on the lower
side. Hence, on these grounds, he prays to allow the
appeal. In order to buttress his argument, he places
reliance on the decision of the Hon'ble Apex Court in
the case of Shamanna and another vs. Divisional
Manager, Oriental Insurance Company Limited
and others reported in 2018 ACJ 2163. He further
submits that if there is breach of policy condition, it is
for the Insurance Company to pay compensation
amount first to the claimant and recover the same
from the owner.
8. Per contra, learned counsel for respondent
No.3, Insurance Company supports the impugned
judgment and award passed by the Tribunal.
9. The learned counsel for respondent No.1
and 2 submits that respondent No.1 has not violated
the terms of policy conditions. If the vehicle is plying
beyond the limits, it is contravention of permit
condition which is punishable according to Section
192A of the MV Act. But the Insurance Company
cannot escape from the liability to pay compensation.
In order to buttress his argument, he has placed
reliance on the judgment of the Division Bench of this
Court in MFA No.201648/2015 & Connected Matters,
disposed of on 26.11.2020. Hence, he submits that
the Tribunal has committed an error in fastening the
liability on the respondent No.1. Hence, on these
grounds, he prays to allow the appeal.
10. Considering the submission of learned
counsel for the parties, the points that arise for
consideration are with regard to quantum of
compensation and liability.
11. Perused the records and considered the
submissions of the learned counsel for the parties.
12. It is not in dispute that the claimant met
with an accident on 20.04.2012 and sustained injuries
in the road traffic accident. The claimant in order to
prove that the accident was occurred due to rash and
negligent driving of the offending vehicle, has
produced copy of FIR, chargesheet marked as Ex.P.1
to P5. Ex.P.5 chargesheet discloses that the accident
has occurred due to rash and negligent driving of the
offending vehicle.
13. Insofar as liability is concerned, it is not in
dispute that the driver of the offending vehicle was
possessing driving licence and further the said vehicle
was insured with respondent No.3 and further the said
vehicle was having a valid permit. It is the case of the
respondent No.3 that the vehicle was plying beyond
the permit limit and thus there is violation of policy
condition. There is no dispute that the auto-rickshaw
was plying beyond the permit limit. It is not the case
of the respondent No.3 that there was no permit at all
for the auto rickshaw. It had a valid permit, but it
was taken beyond the permitted limit. There is some
difference between the two. If there is no permit at
all, or if the transport vehicle is used for a purpose not
allowed by the permit as envisaged in Section
149(2)(a)(i)(c), the Insurance Company need not
indemnify the liability of the insured for violation of
policy condition. It is in contravention of permit
condition which is punishable according to Section
192A of the MV Act. The said view is reiterated by the
Co-ordinate Bench of this Court in MFA
Nos.30752/2011 c/w 30753/2011 and 30388/2012,
disposed of on 11.07.2018. Subsequently, the Division
Bench of this Court has re-affirmed the said judgment
in MFA No.201648/2015 and connected Matters,
disposed of on 26.11.2020. Thus, in view of the
above, the contention of the learned counsel for the
respondent No.3 that the offending vehicle was plying
beyond the permit limit and the Insurance Company
has no liability to satisfy the award amount, cannot be
accepted.
14. In view of the above discussion this Court
holds that respondent Nos.1 to 3 are jointly and
severally liable to pay compensation to the petitioner.
15. Insofar as quantum of compensation is
concerned, it is the case of the petitioner that
claimant was aged about 22 years and was working as
a mason and earning Rs.8,000/- per month. In order
to substantiate the contention of the claimant, the
claimant has not produced any record to show that
the claimant was earning Rs.8,000/- per month. In
the absence of income proof, 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 2012, the
notional income has to be taken at Rs.6,500/- p.m.
16. In order to prove the disability, the
claimant has examined the doctor as P.W.2. P.W.2
has issued disability certificate marked as Ex.P8.
P.W.2 has deposed that on examination of P.W.1, he
has issued the disability certificate and he has stated
that the claimant has suffered permanent disability at
33%. The Tribunal has assessed the disability at 10%
which is on the lower side. Therefore, taking into
consideration the deposition of the doctor, P.W.2 and
the disability certificate, the whole body disability is
taken at 12%. The claimant is aged about 22 years at
the time of the accident and multiplier applicable to
his age group is '18'. Thus, the claimant is entitled for
compensation of Rs.1,68,480/- (Rs.6,500 x 12 x 18 x
12%) on account of 'loss of future income'.
17. Taking into consideration the nature of
injuries, the compensation towards pain and suffering
is enhanced to Rs.45,000/-; the medical expenses of
Rs.64,988/- awarded by the Tribunal is maintained;
compensation towards amenities is enhanced to
Rs.25,000/-; compensation towards attendant charges
is enhanced to Rs.10,000/- and compensation towards
loss of income during the course of treatment is
enhanced to Rs.17,500/-. Thus, the claimant is
entitled to a total compensation of Rs.3,30,968/-.
18. Accordingly, I proceed to pass the
following:
ORDER
i. The appeal is allowed in part. Judgment
and award dated 05.03.2015 passed in MVC
No.196/2013 by the Member MACT-II,
Yadgiri is modified.
ii. The claimant is entitled to a total
compensation of Rs.3,30,968/- along with
interest at the rate of 6% p.a. from the
date of filing of the claim petition till the
date of realization, as against Rs.2,21,688/-
awarded by the Claims Tribunal.
iii. Respondents No.1 to 3 are jointly and
severally liable to pay the compensation to
the claimant.
iv. Respondent No.3, Insurance Company is
directed to deposit the entire compensation
amount along with interest, within a period
of eight weeks from the date of receipt of
copy of this judgment.
v. The claimant is not entitled for the interest
for the delayed period of 368 days.
SD/-
JUDGE
VNR/RD
