Karnataka High Court
Sri Raju @ Basavaraju vs The Oriental Insurance Co Ltd on 27 November, 2023
-1-
NC: 2023:KHC:42911
MFA No. 2051 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 2051 OF 2017
(MV-I)
BETWEEN:
SRI RAJU @ BASAVARAJU
S/O MUDDURANGAIAH,
AGED ABOUT 35 YEARS,
RESIDENT OF SHIVANAPURA,
BENGALURU NORTH TALUK,
BENGALURU URBAN DISTRICT.
Digitally
...APPELLANT
signed by
JAI JYOTHI J (BY SRI. RAJU @ BASAVARAJU., ADVOCATE)
Location:
HIGH
COURT OF
KARNATAKA AND:
1. THE ORIENTAL INSURANCE CO. LTD.,
NO. 44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BENGALURU - 560 002.
2. SMT. GANGAMMA
W/O RANGASWAMY,
NO.9-1, NETHAJI LAYOUT,
-2-
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MFA No. 2051 of 2017
BENGALURU - 01.
...RESPONDENTS
(BY SRI.S.V. HEGDE MULKHAND.,ADVOCATE FOR R1;
R2 - SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD
DATED05.12.2016 PASSED IN MVC NO.357/16 ON THE
FILE OF THE 21ST ACMM & 23RD ADDITIONAL SMALL
CAUSE JUDGE, BENGALURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR DISMISSAL, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the claimant aggrieved by the
award passed in MVC.No.357/2016 dated 5.12.2016 on the
file of the XXI ACMM & XXIII ASCJ and MACT, Bengaluru.
2. The claim petition is filed seeking compensation of
an amount of Rs.9,00,000/- for the injuries sustained by the
claimant in the accident. The case of the claimant is that on
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20.10.2015 at about 10.00 a.m. the claimant as pillion rider
was proceeding on the motor cycle. Because of the rash and
negligent driving of the rider of the motor cycle, he sustained
grievous injuries all over the body. The court below had
exonerated the insurance company from the liability on the
ground that the policy is a Act policy, as such the pillion rider
is not covered. Then coming to the compensation, it is case
of the claimant, he is working as timber cutter and earning an
amount of Rs.15,000/- per month. The court below had
considered the income at Rs.6,000/- and the considering the
evidence of the doctor, taking the disability at 10% though
the doctor has stated it is 14%, the court had considered
10% as the doctor has failed to depose in his evidence that it
is functional disability. Under the head of loss of future
income granted an amount of Rs.1,00,800/-. Towards pain
and suffering granted an amount of Rs.25,000/-, towards
medical bills granted an amount of Rs.58,277/-, towards
Conveyance, nourishment and attendant charges granted an
amount of Rs.10,000/- Altogether compensation of an
amount of Rs.1,94,100/- was granted by the Tribunal.
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3. Learned counsel for the claimant submits that the
contract of Insurance is between insured and the insurer.
The claimant is a third party to the policy. Just because it is
a Act policy, the court below ought not to have absolved the
insurance company from the liability. He further submits that
the court below considered the income of the claimant at
Rs.6,000/- which is on the lower side. It is further stated
under the head of loss of amenities, loss of income during the
laid up period, future medical expenses were not granted by
the court below though the doctor had deposed that the
claimant requires a future operation and considering the
disability, the court below ought to have granted the amount
under of head of loss of amenities. It is submitted that the
compensation that was granted was not just and reasonable.
4. Learned counsel for the insurance company
submits that the court below had rightly exonerated the
insurance company from liability. He submits that this is not
a case of violation of terms and conditions of the policy, but it
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is a case where policy do not cover the risk of a pillion rider.
The Tribunal had rightly fixed the liability on the owner of the
vehicle. He submits that as far as the quantum is concerned,
as they are not liable to pay the compensation, the insurance
company is not disputing on that.
5. Having heard the learned counsel on either side,
perused the entire material on record. There is no
representation on behalf of the owner of the vehicle. The first
and foremost contention of the learned counsel for the
appellant is that he being a third party to the policy is not
concerned with the policy between the insurer and the
insured, whether it is a Act Policy or a Comprehensive Policy,
they are liable to pay the compensation. This court is not
able to appreciate the said contention as this is not a case
where there is violation of terms and conditions of the policy.
The Insurance Company is only bound by the policy of the
insurance. In the Act Policy, the pillion rider who is traveling
on the motor cycle is not covered and it is a settled legal
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position. Hence, the court below had rightly exonerated the
insurance company.
6. When it comes to the compensation, the court had
taken an amount of Rs.6,000/- as income, whereas it is the
case of claimant that he is earning an amount of Rs.15,000/-
per month. No evidence is adduced in that regard.
Considering the fact that this accident took place in the year
2015, this court is taking an amount of Rs.9,000/- as income.
(Rs.9,000 x 12 x 14 x 10/100 = Rs.1,51,200/-) towards loss
of future income due to disability claimant is entitled for an
amount of Rs.1,51,200/-. Under the head of pain and
suffering and medical bills, the court below had granted an
amount of Rs.25,000/- and an amount of Rs.58,277/-
respectively and this court finds no reasons to interfere.
Then coming to loss of amenities, no amounts were granted.
Considering the disability and discomfort, this court is
granting an amount of Rs.25,000/- under the head of loss
of amenities. Then towards loss of income during the laid up
period, as this court has already considered Rs.9,000/- as
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income for three months an amount of Rs.27,000/- is
granted. Under the head of transport, attendant charges and
extra nourishment, the court below had granted an amount of
Rs.10,000/-, this court is inclined to grant an amount of
Rs.15,000/-. The doctor has deposed that future operation
is required to remove the implants, for that it costs around an
amount of Rs.25,000/- and the court below has failed to
consider the same. Under the future medical expenses, the
claimant is entitled for an amount of Rs.25,000/-.
7. In the light of the law laid down by the Hon'ble
Supreme Court in the case of V. MEKALA -vs- M. MALATHI
AND ANOTHER 1, the claimant is entitled for an amount of
Rs.10,000/- towards legal expenses. Altogether the
claimant is entitled for an amount Rs.3,36,477/- at 6%
interest.
8. The claimant is entitled for compensation under
the following heads:
(2014) 11 SCC 178
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Sl. Description of Items Compensation
Awarded
No.
1. Loss of future income Rs. 1,51,200/-
due to disability
2. Pain and suffering Rs. 25,000/-
3. Medical Bills Rs. 58,277/-
4. Loss of amenities Rs. 25,000/-
5. Transport, Conveyance, Rs. 15,000/-
Attendant and extra
nourishment
6. Loss of earning during Rs. 27,000/-
laid up period
7. Future medical Rs. 25,000/-
expenses
8. Legal Expenses Rs. 10,000/-
Total Rs. 3,36,477/-
9. Accordingly, the appeal filed by the claimant is
Allowed-in-part by enhancing the compensation amount
from an amount of Rs.1,94,100/- to Rs.3,36,477/- which
is payable by the owner of the vehicle.
(a) The enhanced amount shall carry interest @
6% per annum from the date of petition, till
the date of realization.
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(b) Respondent-Owner of the vehicle shall
deposit the said compensation amount along
with accrued interest before the tribunal
within a period of 8 (Eight) weeks.
(c) The Registry is directed to return the Trial
Court Record to the Tribunal along with the
certified copy of the order passed by this
court forthwith without any delay.
(d) No Costs.
Pending miscellaneous petitions, if any, shall stand
closed.
SD/-
JUDGE
TS
