Karnataka High Court
Divisional Manager vs Hydar on 29 November, 2023
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NC: 2023:KHC:43285
MFA No. 2618 of 2017
C/W MFA.CROB No. 21 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 2618 OF 2017 (MV-I)
C/W
MFA CROSS OBJECTION NO. 21 OF 2018 (MV-I)
IN MFA NO. 2618/2017
BETWEEN:
DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
CRESCENT COURT, K. M. ROAD,
CHIKMAGALUR - 577 101.
...APPELLANT
(BY SRI. A.N. KRISHNA SWAMY, ADVOCATE)
AND:
Digitally
signed by
JAI JYOTHI J 1. HYDAR,
Location: S/O B. K. HASANABBA,
HIGH
COURT OF NOW AGED ABOUT 36 YEARS,
KARNATAKA OCC: MASON, R/O SHANTHINAGAR,
HARIHARAPURA, KOPPA TALUK,
CHIKMAGALUR DISTRICT.
2. VIJAYAKUMAR S. NAYAK,
S/O SIDDAPPA NAYAK,
NOW AGED ABOUT 39 YEARS,
R/O SRINGERI ROAD,
HARIHARAPURA, KOPPA TALUK,
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MFA No. 2618 of 2017
C/W MFA.CROB No. 21 of 2018
CHIKMAGALUR DISTRICT.
...RESPONDENTS
(BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE FOR R1;
SRI. R.B. DESHPANDE, ADVOCATE FOR R2;)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 08.11.2016 PASSED IN MVC
NO.14/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE &
PRINCIPAL JMFC, MACT, TARIKERE, AWARDING
COMPENSATION OF RS.2,18,500/- WITH INTEREST AT 6% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA CROB NO.21/2018
BETWEEN:
SRI. HYDAR,
S/O B.K. HASANABBA,
AGED ABOUT 39 YEARS,
MASON, R/O SHANTHINAGAR,
HARIHARAPURA, KOPPA TALUK,
CHIKKAMAGALURU DISTRICT - 577 101.
...CROSS OBJECTOR
(BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE)
AND:
1. SRI. VIJAYAKUMAR S. NAYAK,
S/O SIDDAPPA NAYAK,
AGED 39 YEARS,
R/AT SRINGERI ROAD, HARIHARAPURA,
KOPPA TALUK, CHIKKAMAGALURU DISTRICT.
2. THE UNITED INDIA INSURANCE CO. LTD.,
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MFA No. 2618 of 2017
C/W MFA.CROB No. 21 of 2018
CHIKKAMAGALURU POLICY BEARING
NO.2414000/3111/02/00008211.
...RESPONDENTS
(BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2;
SRI. R.B. DESHPANDE, ADVOCATE FOR R1
(VAKALAT NOT FILED);
VIDE ORDER DATED 30.01.2023 NOTICE ISSUED TO R1)
THIS MFA CROB IS FILED U/O.41 RULE 22 R/W 173(1)
OF THE MV ACT, AGAINST THE JUDGMENT AND AWARD
DT.08.11.2016 PASSED IN MVC NO.14/2013 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND MAMACT, TARIKERE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL AND MFA CROB, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Aggrieved by the award passed in M.V.C.No.14/2013
dated 08.11.2016 on the file of Senior Civil Judge and Prl.
JMFC., Tarikere, the Insurance Company has preferred the
present appeal. The claimant has also filed cross objection
in MFA CROB No.21/2018. The claim petition was filed
seeking compensation of an amount of Rs.16,25,000/- for
the injuries sustained by the claimant in the accident.
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2. The case of the claimant is that on 28.10.2011,
he was proceeding on a motor cycle as a pillion rider,
while he was returning in the said motor cycle, the rider of
the vehicle drove the same in a rash and negligent
manner. He lost control over the vehicle and the vehicle
fell down on the road. Due to that, he sustained grievous
injuries.
3. It is the case of the Insurance Company that it is
an Act Policy and the Insurance Company has no liability
in respect of the pillion rider. The Court below while
holding the Insurance Company liable, had observed that
the driving license of respondent No.1 is marked which
discloses that he had valid driving license to drive the
motor vehicle and it was valid from 14.05.2001 to
31.05.2021. Further, Ex.R.2 is the insurance policy of the
motor cycle which is valid from 31.07.2011 to 30.07.2012.
Hence, the Court below had observed that as on the date
of the accident, the rider of the vehicle was having a
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driving license and there was a valid insurance policy as
on the date of the accident and hence, the respondents
are liable to pay the compensation.
4. Learned counsel appearing for the appellant -
Insurance Company submits that the policy, Ex.R.2 is an
Act Policy and in that, the liability of pillion rider is not
covered. When the liability is not covered, the Court
below ought not to have held that the Insurance Company
is liable to pay the compensation. Just because there is a
policy and the rider of the vehicle is having a valid driving
license, that itself cannot be a ground to held that the
Insurance Company is liable to pay the compensation. It
is submitted that the award passed by the Tribunal is
without appreciating the evidence on record.
5. Learned counsel appearing for the claimant
submits that he is a third party to the Insurance Policy and
even if there is any violation of terms and conditions of the
policy, still the Insurance Company is liable to pay the
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compensation and recover the same from the owner of the
vehicle.
6. Having heard the learned counsel on either side,
perused the entire material on record. A bare perusal of
Ex.R.2 shows that it is an Act Policy where the risk of the
pillion rider is not covered. In that case, the question of
applying pay and recover will not arise. The Court below
without considering this had held that the Insurance
Company is liable to pay the compensation. In that view
of the matter, this Court finds that the Insurance Company
has no liability to pay the compensation to the claimant
who is a pillion rider when the policy is an Act policy and it
is the owner alone who is liable to pay the compensation.
7. Learned counsel for the claimant submits that the
compensation that was awarded by the Tribunal was not
reasonable. According to the claimant, he was working as
a mason and earning an amount of Rs.600/- per day and
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the Court below had taken only an amount of Rs.4,500/-
as the income per month. It is stated that it is on the
lower side. When the doctor had deposed that the
claimant requires an amount of Rs.1,50,000/- for the
future operation, the Court below had only granted an
amount of Rs.30,000/-. No amount was granted towards
loss of amenities. It is submitted that the compensation
that was awarded was not just and reasonable.
8. The claimant had sustained grievous injuries and
the Court below had granted only an amount of
Rs.35,000/- under the head of pain and suffering. This
Court is inclined to grant Rs.50,000/- under the head of
pain and suffering. Towards medical expenses
considering the evidence on record, the Court below had
granted an amount of Rs.78,300/- and no interference is
called for in that regard. When it comes to conveyance,
food and attendant charges, the Court below had granted
only an amount of Rs.5,000/-. Considering the injuries
and the hospitalization, this Court is inclined to grant an
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amount of Rs.15,000/- towards conveyance, food and
attendant charges. Then coming to the loss of income
during the laid up period, as this is an accident of the year
2012, this Court is inclined to take Rs.6,500/- as the
income, for three months, it would come to Rs.6,500x3 =
Rs.19,500/-. Hence, an amount of Rs.19,500/- is
granted towards loss of income during the laid up
period.
9. When it comes to loss of future income the Court
below had considered 5% disability and an amount of
Rs.4,500/- as the income. This Court is considering the
income of the claimant at Rs.6,500/- and loss of future
income would come to Rs.6,500x12x16x5 =
Rs.62,400/-. Then coming to future medical expenses,
this Court is not able to appreciate the contention of the
learned counsel for the appellant that when the doctor has
deposed that he requires Rs.1,75,000/-, the Court below
had only granted Rs.30,000/- operation for removal of
implants. Then coming to loss of amenities, no amount
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was granted. Considering the injuries sustained by the
claimant, an amount of Rs.10,000/- is reasonable
towards loss of amenities. Altogether, the claimant is
entitled for an amount of Rs.2,75,200/-.
10. The claimant is therefore, entitled to the
compensation under the following heads:
Heads Compensation
Awarded
1. Pain and Sufferings : Rs. 50,000/-
2. Medical expenses : Rs. 78,300/-
Conveyance, food and
3. : Rs. 15,000/-
attendant charges
4. Loss of income during the laid : Rs. 19,500/-
up period
5. Loss of future income : Rs. 62,400/-
6. Future medical expenses : Rs. 30,000/-
6. Loss of amenities : Rs. 10,000/-
7. Legal Expenses : Rs. 10,000/-
TOTAL : Rs.
2,75,200/-
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11. Accordingly, the appeal of the Insurance
Company is allowed by holding that the owner alone is
liable to pay the compensation. The cross objection filed
by the claimant in MFA CROB No.21/2018 is allowed-in-
part by enhancing the compensation from an amount of
Rs.2,18,500/- to an amount of Rs.2,75,200/- which the
owner of the vehicle is liable to pay.
i. Insurance company is at liberty to withdraw the
amount deposited.
ii. The enhanced amount shall carry interest at 6%
p.a. from the date of petition till the date of
realization.
iii. Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court forthwith
without any delay.
iv. No costs.
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Pending miscellaneous petitions, if any, shall stand
closed.
Sd/-
JUDGE
MEG
CT: BHK
