Karnataka High Court
National Insurance Co. Ltd vs Gurumurthy S/O Papanna on 4 April, 2024
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NC: 2024:KHC-D:6119
MFA No. 101190 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101190 OF 2016 (MV-I)
BETWEEN:
NATIONAL INSURANCE CO. LTD,
THE BRANCH MANAGER, BALLARI,
REPRESENTED THROUGH ITS
THE REGIONAL MANAGER,
NATIONAL INSURANCE CO. LTD,
REGIONAL OFFICE, III FLOOR,
HARIHANT PLAZA, OPPOSITE SBI ZONAL OFFICE,
KUSGAL ROAD, HUBBALLI, DIST: DHARWAD.
REPRESEBTED BY ITS MANAGER.
...APPELLANT
(BY SMT. PREETI SHASHANK, ADVOCATE)
AND:
1. SRI. GURUMURTHY S/O. PAPANNA,
AGED ABOUT 38 YEARS,
CHENNAGANAHALLI VILLAGE, CHALLAKERE TALUK,
Digitally signed NOW R/O. APMC YARD, BANDIMOTE, BALLARI.
by ROHAN
HADIMANI T
Location: HIGH
2. M. H. SATHYANARAYANA
COURT OF S/O. MAREHEMANA REDDY,
KARNATAKA AGE: 43 YEARS, OWNER OF THE HERO HONDA
SPLENDOR MOTOR CYCLE BEARING NO.KA-16/R-1467,
R/O. RAMJOGIHALLI, CHALLAKERE TALUK,
CHITRADURGA DIST.
...RESPONDENTS
(BY SRI. GURUKUMAR V. A, ADV. FOR R1;
NOTICE TO R2 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT
1988, AGAINST THE JUDGMENT & AWARD DATED: 05.01.2016,
PASSED IN MVC.NO.707/2013 ON THE FILE OF THE MOTOR
ACCIDENT CLAIM TRIBUNAL-II, BALLARI, AWARDING THE
COMPENSATION OF RS.2,16,940/- WITH INTEREST AT THE RATE OF
6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
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NC: 2024:KHC-D:6119
MFA No. 101190 of 2016
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the
consent of learned counsel for the parties, it is taken up for
final disposal.
2. This appeal is filed by the appellant/insurance
company challenging the judgment and award dated 5.1.2016
passed in MVC No.707/2013 on the file of learned Member,
MACT-II, Ballari (for short, 'Tribunal').
3. Heard the learned counsel Smt. Preeti Shashank for
the appellant/insurance company and learned counsel
Sri.Gurukumar V.A. for the respondent/claimant.
4. Smt. Preeti Shashank, learned counsel for the
appellant/insurer would submit that the Tribunal has committed
grave error in entertaining the claim petition under Section
163-A of the Motor Vehicle Act, 1988 (for short, 'MV Act'), as
the injured/claimant being a borrower of the vehicle, is entitled
to compensation of Rs.1 lakh only. She submits that the
Tribunal further committed an error in assessing the income of
the injured at Rs.5,000/- per month, which is contrary to
NC: 2024:KHC-D:6119
Section 163-A of the MV Act. Hence, she seeks to re-assess
the compensation keeping in mind Schedule-II of the MV Act by
allowing the appeal.
5. Per contra, learned counsel Sri.Gurukumar V.A. for
the respondent/claimant supports the impugned judgment and
award of the Tribunal and submits that the claimant cannot be
treated as owner of the offending vehicle, as he was only a
borrower of the vehicle and keeping in mind the law laid down
by the Hon'ble Apex Court in the case of Shivaji & Another
Vs. Divisional Manager, United India Insurance Company
Limited1, the claim is required to be entertained as third party
to the accident and appropriate compensation may be awarded.
6. I have heard the learned counsel for the parties and
perused the material on record.
7. It is not in dispute that the appellant met with road
accident on 25.08.2010 and sustained fracture of right distal
radius. Admittedly, the claim petition is filed under Section
163-A of the MV Act. Keeping in mind the law laid down by the
Hon'ble Apex Court in the case of Shivaji & Another referred
(2019) 12 SCC 395
NC: 2024:KHC-D:6119
supra, which has been followed by Division Bench of this Court
in MFA No.100692/2016, disposed off on 22.092.023 and
taking note of the evidence available on record, this Court is of
the considered view that the respondent/claimant, being a
borrower of the vehicle, is entitled to compensation as per
Schedule-II of the MV Act. This Court taking note of the
aforesaid enunciation of law and the evidence available on
record, is of the considered view that the claimant would be
entitled to compensation under the head of loss of earning
capacity due to disability of Rs.1,02,000/- (Rs.40,000 x 17 x
15%).
8. The claimant is entitled to Rs.5,000/- towards pain
and suffering, a sum of Rs.15,000/- towards medical
expenses and Rs.6,600/- towards loss of income during laid-
up period (Rs.3,300 x 2 months). Thus, the claimant is entitled
to modified compensation on the following heads:
Loss of earning capacity due to disability Rs.1,02,000/-
Pain and suffering Rs. 5,000/-
Medical expenses Rs. 15,000/-
Loss of income during laid-up period Rs. 6,600/-
-----------------
Total Rs.1,28,600/-
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9. Thus, the claimant is entitled to total compensation
of Rs.1,28,600/- as against Rs.2,16,940/- awarded by the
Tribunal. The aforesaid compensation amount shall carry
interest at the rate of 6% per annum from the date of petition
till realization. The appellant/insurance company shall deposit
the said amount with accrued interest before the Tribunal
within six weeks from the date of receipt of certified copy of
this judgment. On such deposit, the same shall be released in
favour of the respondent/claimant. The amount in deposit, if
any, be transmitted to the Tribunal forthwith.
10. In modification of the impugned judgment and
award of the Tribunal to the aforesaid extent, the appeal stands
partly allowed.
Sd/-
JUDGE
JTR
Ct-an
