Karnataka High Court
Keriyappa K vs K S Ramachandrappa Since Dead By ... on 9 September, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9th DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL No.2226 OF 2012 [MV]
BETWEEN:
KERIYAPPA B.K.,
S/O KERIYAPPA,
AGED ABOUT 42 YEARS
INSURANCE AGENT
R/O HOSABALE
SORAB-577 429
...APPELLANT
(BY SRI.CHIDAMBARA G.S., ADVOCATE)
AND:
1. K.S.RAMACHANDRAPPA
SINCE DEAD BY LRS
ANIL KUMAR,
S/O LATE K.S. RAMACHANDRAPPA
AGED ABOUT 44 YEARS
R/O KASARGUPPE,
SORAB TALUK-577 429
SHIMOGA DISTRICT
2. THE MANAGER
NATIONAL INSURANCE COMPANY LTD
S.S. COMPLEX, B.H. ROAD,
SHIMOGA-577 201
...RESPONDENTS
(BY SRI.K.S.SUBBA REDDY, ADVOCATE FOR R1
SRI.ANUP FOR SRI.B.C.SEETHARAMA RAO, ADV. FOR R2)
2
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD
DATED 03.10.2011 PASSED IN MVC NO.11/2010 ON THE
FILE OF THE SENIOR CIVIL JUDGE, ADDITIONAL MACT,
SORABA, DISMISSING THE CLAIM PETITION FOR
COMPENSATION.
THIS APPEAL COMING ON FOR HEARING ON
16.10.2022 AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is by the claimant challenging the dismissal
of the claim petition.
2. It is not in dispute that the accident did occur between
two motorcycles. However, the dispute is in relation to the
driver of the offending motorcycle.
3. The Tribunal has taken the view that it had not been
established that the 1st respondent was riding the motorcycle
and it has also taken the view that the claimant and the 1st
respondent knew each other and as a consequence, it has
proceeded to dismiss the claim petition.
4. The specific plea put forth in the claim petition by the
claimant was while he was riding his motorcycle, he was hit
by another motorcycle which was driven by the 1st
respondent.
5. The Insurer filed objections to the said claim petition.
As usual, the Insurer denied all the contentions, but it did not
choose to take up the specific plea that the offending vehicle
was not driven by the 1strespondent. In fact, in paragraph 9
of their objections, the Insurer contended as follows:
"It is submitted that the alleged accident
happened only due to the negligent act of the
petitioner himself and he has sustained injuries. It
appears that the petitioner in collusion with the first
respondent and police have created false story in
order to gain wrongfully. This respondent also
disputes the validity and effectiveness of the Driving
License of the petitioner to drive the vehicle. Hence,
the petitioner is not entitled for any compensation
from this respondent."
6. As could be seen from the said averment, the case of
the Insurer was fundamentally that the accident occurred due
to the negligence of the claimant himself. The Insurer did not
even put forth the plea that the vehicle was driven by one
Premkumar, the brother of the 1st respondent. In my view,
since there was no plea regarding the person who drove the
offending motorcycle at the time of the accident, the Insurer
would not be entitled to put forth any contention in that
regard.
7. It is also to be kept in mind that the 1st respondent was
the owner of the offending vehicle and the said vehicle was
also covered under a package policy.
8. The 1st respondent, who also entered appearance, just
as the Insurer, denied all the contentions in his objections. He
did not step into the box.
9. Thus, the issue as to who was driving the vehicle was
not at all raised in the pleadings either by the Insurer or by
the owner/rider i.e., the 1strespondent. In the light of the fact
that there was no plea raised by either of the respondents,
the Tribunal could not have, in my view, embarked upon an
enquiry as to whether the 1st respondent was driving or his
brother was driving.
10. However, the learned counsel for the Insurer contended
that in the complaint lodged to the police, the claimant had
himself stated that Premkumar, the brother of the 1st
respondent was riding the motorcycle, but subsequently, a
statement was given that it was the 1st respondent, who was
driving the vehicle and therefore, it was a clear case of fraud
sought to be played against the Insurer.
11. In the complaint, it is stated as follows:
"£À£ÀUÉ C¥ÀWÁvÀ ªÀiÁrzÀ ªÉÆÃmÁgÀ ¸ÉÊPÀ¯ï £ÀA. KA-15 J 8947
ªÀÄvÀÄÛ CzÀ£ÀÄß ªÀÄÄlUÀÄ¥ÉàAiÀÄ ¥ÉæêÀÄPÀĪÀiÁgÀ CAvÀ w½¬ÄvÀÄ"
12. A reading of the said complaint would indicate that the
claimant had never indicated that it was Premkumar who was
driving the vehicle. The claimant had basically stated that he
had learnt that Premkumar was driving the vehicle. In this
view of the matter, the averment that Premkumar was
driving the vehicle was admitted by the claimant cannot be
accepted.
13. Assuming that the rider of the motorcycle was changed
by giving a subsequent statement, plausibly on the ground
that the rider Premkumar did not possess the driving license,
it will have to be kept in mind that the liability of the Insurer
to pay compensation would still lie on the Insurer itself even
if the rider of the offending vehicle did not possess a driving
licence. In fact, even if it was established by the Insurer that
the rider of the offending motorcycle did not possess a driving
license, the principle of pay and recover would have to be
applied. However, in this case, this fact has neither been
pleaded, nor established by the Insurer and therefore, the
contention advanced in this regard by the counsel for the
Insurer cannot be accepted.
14. As far as the compensation is concerned, the discharge
summary produced indicates that the claimant was initially
admitted to the Hospital on 04.03.2009 and was discharged
on 12.03.2009. It was stated therein that the claimant was
diagnosed with having a head injury with compound
depressed fracture of frontal bone and fracture of maxilla.
The discharge summary also indicates that the claimant was
subjected to a surgical procedure.
15. The Doctor who treated the claimant initially on
04.03.2009 was examined by taking out a commission as
C.W.1. He stated that as a result of the head injury, the
claimant was suffering from a memory lapse and he opined
that the claimant had suffered a neuro deficiency of 50%
apart from 5% disability to the body. In my view, having
regard to this evidence of the Doctor, who treated the
claimant initially, it would be appropriate to determine the
total permanent disability for the purpose of computing the
compensation at 50% to the whole body.
16. It is to be kept in mind that the claimant had suffered
head injury and it was stated that he was working as an
Insurance Agent and as a result of the psycho neurological
disability, the probability of him regaining his earlier work
would be remote.
17. The claimant contended that he had the monthly
income of Rs.15,000/-. However, he did not produce any
credible evidence to indicate that he was actually earning a
sum of Rs.15,000/-. In this view of the matter, it would be
appropriate to adopt the notional income determined by the
Karnataka State Legal Services Authority, which, for the
accident of the year 2009, would be Rs.5,000/-. Since it is
held that the claimant had suffered 50% disability, future
prospects of 25% would have to be added to the said sum,
which makes his income to be Rs.6,250/-. The claimant being
aged 40 years (as per Ex P-113), the multiplier to be adopted
would be 15. Thus, the claimant would be entitled to
Rs.5,62,500/- (6,250 X 12 X 15 X 50%) towards loss of
future income.
18. Having regard to the fact that the claimant had
undergone surgery and had hospitalised for more than 9 days
in 3 different hospitals, it would be appropriate to award a
sum of Rs.75,000/- towards pain and sufferings.
19. It is also obvious from the injuries suffered by the
claimant that he would have been unable to do any work for
at least five months. Consequently, the claimant would be
entitled to a sum of Rs.25,000/- (5000 X 5) towards loss of
income during laid up period.
20. The claimant has produced medical bills indicating that
he had spent a sum of Rs.54,856/- towards medical
expenses. Since the documents produced indicates that the
claimant had spent Rs.54,856/- towards medical expenses,
he is entitled for the said sum.
21. As I have held that the claimant has suffered 50%
disability, a sum of Rs.75,000/- is awarded towards loss of
amenities.
22. The claimant would also be entitled to a sum
Rs.25,000/- towards incidental expenses like food,
nourishment, conveyance, attendant charges, etc.
23. Thus, the claimant is held entitled for the following sum
as compensation along with interest at 6% p.a. from the date
of petition till its realisation:
Sl. Amount
Particulars
No. in (Rs.)
1. Pain and sufferings 75,0000/-
2. Towards medical expenses 54,856/-
3. Towards loss of future income 5,62,500/-
Towards loss of income during laid
4. 25,000/-
up period
Towards conveyance, nourishment
5. 25,000/-
and attendant charges
6. Loss of amenities 75,000/-
TOTAL 8,17,356/-
24. The Insurance Company is directed to deposit the
amount of compensation awarded within a period of eight
weeks from the date of receipt of a certified copy of this
judgment before this Court.
25. On such deposit being made by the Insurer, the
claimant is entitled to withdraw the same, since the accident
is of the year 2009 and 13 years have elapsed.
Appeal is accordingly allowed in part.
SD/-
JUDGE
PKS
