Karnataka High Court
Mr. Vimalesh R. Gowda vs Mr. Pawan Warwade on 15 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2024:KHC:6699
MFA No. 4545 of 2019
C/W MFA No. 4459 of 2019
MFA.CROB No. 43 of 2022
MFA.CROB No. 44 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 4545 OF 2019 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 4459 OF 2019(MV-I),
MFA CROSS OBJECTION NO. 43 OF 2022 (MV-I),
MFA CROSS OBJECTION NO. 44 OF 2022 (MV-I)
IN MFA NO.4545/2019:
BETWEEN:
MR. AJEY. B,
S/O BHOJARAJ. K.,
AGED ABOUT 31 YEARS,
R/AT SHRINIKETHAN 105,
D, GIRINAGARA, 4TH CROSS,
DEREBAIL, KONCHADY,
MANGALORE - 575 028
...APPELLANT
Digitally signed by JAI
JYOTHI J (BY SRI. SACHIN B S, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
1. MR. PAWAN WARWADE
S/O MR. CHUNNI LAL WARWADE,
AGED ABOUT 33 YEARS,
R/AT W NO.12 JUNNARDEO
CHHINDWARA M P - 480 001.
2. M/S DELTA INFRA LOGISTIC (WORLD WIDE) LTD
OFFICE AT 301, 3RD FLOOR,
ANAND TOWER,
CENTER-1, VASCO GOA,
-2-
NC: 2024:KHC:6699
MFA No. 4545 of 2019
C/W MFA No. 4459 of 2019
MFA.CROB No. 43 of 2022
MFA.CROB No. 44 of 2022
SOUTH GOA - 403 802.
3. THE NATIONAL INSURANCE COMPANY LTD
DIVISIONAL OFFICE OF THE 2ND RESPONDENT AT RAM
BHAVAN COMPLEX,
NAVABHARATHI CIRCLE,
MANGALORE CITY -575 003
REPRESENTED BY ITS MANAGER/PRINCIPAL OFFICER,
POLICY ISSUE AT FIRST FLOOR
SUBRAY CHAMBERS,
FRANCIS GOMES ROAD,
VASCO-DA-GAMA, SOUTH GOA - 403802
...RESPONDENTS
(BY SRI. SHIRISH KRISHNA ADVOCATE FOR R2;
SRI. JANARDHAN REDDY ADVOCATE FOR R3;
R1- NOTICE D/W V/O DATED : 23.02.2023)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 22.3.19 PASSED IN MVC
NO.1864/17 ON THE FILE OF THE MEMBER, MACT & I
ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU D.K, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.4459/2019:
BETWEEN:
MR. VIMALESH R. GOWDA
S/O. RAGHAVA GOWDA,
AGED ABOUT 29 YEARS,
R/AT INDIRA PRIYADARSHINI NILAYA,
OPP. ST. JOSEPH ENG. COLLEGE,
VAMANJOOR, MANGALORE CITY,
PIN-575 028.
...APPELLANT
(BY SRI. SACHIN B S, ADVOCATE)
AND:
1. MR. PAWAN WARWADE,
S/O. MR. CHUNNI LAW WARWADE,
-3-
NC: 2024:KHC:6699
MFA No. 4545 of 2019
C/W MFA No. 4459 of 2019
MFA.CROB No. 43 of 2022
MFA.CROB No. 44 of 2022
AGED ABOUT 33 YEARS,
R/AT W. NO.12, JUNNARADEO,
CHHINDWARA, M. P. - 480 001.
2. M/S. DELTA INFRA LOGISTIC (WORLD WIDE) LTD.,
OFFICE AT 301, 3RD FLOOR,
ANAND TOWER, CENTER-1,
VASCO GOA, SOUTH GOA - 403 802.
3. THE NATIONAL INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE OF THE 2ND RESPONDENT AT RAM
BHAVAN COMPLEX,
NAVABHARATHI CIRCLE,
MANGALORE CITY - 575 003,
REPRESENTED BY ITS MANAGER/PRINCIPAL OFFICER,
POLICY ISSUE AT FIRST FLOOR,
SUBRAY CHAMBERS, FRANCIS GOMES RAOD,
VASCO-DA-GAMA, SOUTH GOA- 403 802.
...RESPONDENTS
(BY SMT. MONICA PATIL ADVOCATE FOR R2;
SRI. JANARDHAN REDDY, ADVOCATE FOR R3
R1- NOTICE D/W V/O DATED 01.06.2023)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 21.3.19 PASSED IN MVC
NO. 1863/17 ON THE FILE OF THE MEMBER, MACT AND I
ADDITIONAL SENIOR CIVIL JUDGE, MANGALURU D. K.,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION
IN MFA CROB NO.43/2022:
BETWEEN:
M/S. DELTA INFRA LOGISTICS
(WORLDWIDE LTD)
OFFICE AT 301, 3RD FLOOR,
ANAND TOWER
CENTRE-I, VASCO GOA,
SOUTH GOA - 403 802
...CROSS OBJECTOR
-4-
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MFA No. 4545 of 2019
C/W MFA No. 4459 of 2019
MFA.CROB No. 43 of 2022
MFA.CROB No. 44 of 2022
(BY SRI. SHIRISH KRISHNA, ADVOCATE)
AND:
1. MR. VIMALESH R. GOWDA
AGE 28 YEARS
AGED ABOUT 29 YEARS,
R/A INDIRA PRIYADARSHINI NILAYA
OPPOSITE ST JOSEPH ENG COLLEGE
VAMANJOOR, MANGALORE CITY - 575 028.
2. MR. PAWAN WARWADE
S/O MR CHUNNI LAW WARWADE
AGED ABOUT 33 YEARS
R/A W NO.12 JUNNARDEO
CHINDWADA, M P - 480001.
3. NATIONAL INSURANCE COMPANY. LTD.,
RAM BHAVAN COMPLEX
NAVABHARATHI CIRCLE
MANGALORE CITY - 575 003
REPRESENTED BY ITS
MANAGER/ PRINCIPAL OFFICER
POLICY ISSUED AT FIRST FLOOR
SUBRAY CHAMBERS, FRANCIS GOMES ROAD,
VASCO-DA-GAMA, SOUTH GOA - 403802
...RESPONDENTS
THIS MFA. CROB IS FILED UNDER ORDER XLI RULE 22
OF THE CPC READ WITH SECTION 173(1) OF MOTOR VEHICLE
ACT, AGAINST THE JUDGMENT AND AWARD DATED
21.03.2019 PASSED IN MVC NO. 1863/2017 ON THE FILE
OF THE I DDITIONAL SENIOR CIVIL JUDGE AND MEMBER
MACT, MANGALURU, AWARDING COMPENSATION OF RS.
39,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE
OF PETITION TILL THE DATE OF ITS REALIZATION.
IN MFA CROB NO.44/2022:
BETWEEN:
M/S. DELTA INFRA LOGISTICS ( WORLDWIDE LTD)
-5-
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MFA No. 4545 of 2019
C/W MFA No. 4459 of 2019
MFA.CROB No. 43 of 2022
MFA.CROB No. 44 of 2022
OFFICE AT 301, 3RD FLOOR,
ANAND TOWER, CENTRE-I, VASCO GOA
SOUTH GOA - 403 802
...CROSS OBJECTOR
(BY SRI. SHIRISH KRISHNA, ADVOCATE)
AND:
1. MR. AJEY B
S/O BHORARAJ K
AGED 30 YEARS
R/A SHRI NIKETHAN 105 D,
GIRINAGARA, 4TH, CROSS
DEREBAIL KONCHADY,
MANGALORE - 575 008.
2. MR PAWAN WARWADE
S/O MR CHUNNI LAL WARWADE
AGED ABOUT 33 YEARS
R/A W NO.12 JUNNARDEO
CHHINDWARA, M P - 480 001
3. THE NATIONAL INSURANCE COMPANY LTD.,
RAM BHAVAN COMPLEX,
NAVABHARATHI CIRCLE,
MANGALORE CITY - 575 003
REPRESENTED BY ITS
MANAGER/PRINCIPAL OFFICER
POLICY ISSUED AT FIRST FLOOR
SUBRAY CHAMBERS,
FRANCIS GOMES ROAD,
VASCO - DA- GAMA,
SOUTH GOA-403802
...RESPONDENTS
THIS MFA CROB FILED UNDER ORDER 41 RULE 22 R/W
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 22.03.2019 PASSED IN MVC.NO.1864/2017
ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE
AND MEMBER, MACT, MANGALURU, AWARDING
COMPENSATION OF RS.2,80,000/- WITH INTEREST AT 6
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MFA No. 4545 of 2019
C/W MFA No. 4459 of 2019
MFA.CROB No. 43 of 2022
MFA.CROB No. 44 of 2022
PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE
OF REALIZATION.
THESE APPEALS AND CROSS OBJECTIONS, COMING ON
FOR ARGUMENTS, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
MFA Nos.4545/2019 and 4459/2019 are filed by the
claimants seeking enhancement of compensation awarded
by the MACT and I Addl. Senior Civil Judge, Manglauru,
D.K., in MVC Nos.1864/2017 and 1863/2017 as well as
questioning the liability fixed on the owner of the truck.
2. MFA Crob. Nos.43/2022 and 44/2022 are filed
by the owner of the truck questioning the liability
fastened on him.
3. The factum of the accident and injuries
sustained by the claimants are not in dispute. Under the
facts and circumstances of the case and considering the
facts the only question that arises for consideration is:
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"Whether the insurance company is
liable to pay the compensation
awarded by the Tribunal?"
4. Heard the arguments of both sides and
perused the materials on record.
5. Admittedly, when the accident is occurred on
24.09.2017 the offending truck bearing registration
No.KA-19-AA-2877 was having permit to ply and travel in
the State of Goa and having no permit to travel and ply
within the boundaries of State of Karnataka. The
accident is occurred at Mangalore in the Karnataka state.
Therefore, it is not a case of deviated routes but the
owner being fully known of the fact that the truck was
having permit to travel and ply only in the State of Goa
and not in Karnataka State, has allowed to ply in
commodities within the Karnataka State. When the owner
is a company, it ought to have verified whether the truck
was having the permit to transport and ply in Karnataka
State or not. Therefore, the present case is not deviation
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of routes but is amounting to having a case that the truck
has travelled and transported the goods destination at
Mangalore in Karnataka State. Therefore, amounting to
having no permit to ply in the Karnataka State is violation
of conditions as enshrined in sub-section (2) of Section
149 of Motor Vehicles Act, 1988 (for short 'MV Act'),
therefore, fundamentally the insurance company is not
liable to pay the compensation. However, as per sub-
section (1) of Section 149 of MV Act though the insurance
company is entitled to avoid its liability, but where third
party right is affected then the insurance company as if
judgment debtor shall pay the compensation to third
party at first instance and then recover the said amount
from the owner of the truck bearing No.KA-19-AA-2877
as per sub-sections (1), (4) and (7) of Section 149 of MV
Act. This is recognized by the principle of law laid down
by the Hon'ble Supreme Court in the cases of PAPPU
AND OTHERS Vs. VINOD KUMAR LAMBA AND
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ANOTHER1; NATIONAL INSURANCE COMPANY
LIMITED VS. SWARAN SINGH AND OTHERS 2
and also as per the Full Bench decision of this Court in the
case of NEW INDIA ASSURANCE COMPANY LIMITED
VS. YELLAVVA AND ANOTHER3. Accordingly, an order
of pay and recovery is made. To this extent, the
judgment and award passed by the Tribunal is modified.
6. The insurance company is permitted to file
execution petition directly before the concerned
jurisdictional Tribunal and may seek attachment of
movables or immovables or both, till realisation of
amount from the owner of the truck.
MFA No.4545/2019 (MVC No.1864/2017):
7. In the present case the Tribunal has awarded
compensation as follows:
(2018) 3 SCC 208
(2004) 3 SCC 297
2020 ACJ 2560
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Sl.
Particulars Amount in Rs.
No.
1 Pain and sufferings 35,000/-
2 Medical expenses 85,000/-
3 Attendant charges, food and extra
nourishment, conveyance charges 10,000/-
4 Loss of income during treatment
period 20,000/-
5 Loss of future income due to
disability 1,15,000/-
6 Future medical expenses 15,000/-
Total 2,80,000/-
8. From the medical evidence on record it is
proved that the claimant has suffered following injuries:
(i) Tenderness and swelling over the right arm;
(ii) Fracture of right humous bone;
(iii) Tenderness and swelling over the right elbow.
9. Considering the nature of injuries sustained, as
discussed above, a compensation of Rs.60,000/- is
awarded towards injuries, pain and sufferings as against
Rs.35,000/-awarded by the Tribunal.
10. Compensation of Rs.85,000/- awarded by the
Tribunal towards medical expenses is based on the actual
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bills produced by the claimant. Hence, same is kept
intact.
11. Compensation of Rs.10,000/- awarded by the
Tribunal towards attendant charges, food and extra
nourishment, conveyance charges is on lesser side.
Therefore, compensation of Rs.15,000/- is awarded under
the head 'attendant charges, food and extra nourishment,
conveyance charges'.
12. The claimant is stated to be an Advocate but
has not produced any document to show that he is an
Advocate by profession. The accident is caused in the
year 2017, therefore as per provisions of KSLSA the
notional income of Rs.11,000/- is taken into
consideration. The doctor has stated that the claimant
has suffered 6% physical disability and the same is
considered by the Tribunal as functional disability. The
claimant was 31 years old therefore appropriate multiplier
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is '16'. Accordingly, 'loss of future income due to
disability' is reassessed or quantified as under:
Rs.11,000/- x 6% x 16 x 12 = Rs.1,26,720/-
Thus, claimant is entitled to compensation of
Rs.1,26,720/- under the head 'loss of future income due
to disability'.
13. The compensation of Rs.66,000/- (Rs.11,000/-
x 6) is awarded towards 'loss of income during laid up
period' as against Rs.20,000/- by the Tribunal.
14. The Tribunal has awarded compensation of
Rs.15,000/- towards future medical expenses, which is on
lesser side. Therefore, compensation of Rs.25,000/- is
awarded under the head 'future medical expenses'.
15. The Tribunal has not awarded any
compensation towards loss of amenities. Therefore,
compensation of Rs.30,000/- is awarded towards 'loss of
amenities'.
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16. Thus, in all claimant is entitled to
compensation under various heads as follows:
Awarded
Sl. Awarded by
Particulars by this
No. Tribunal
Court
1 Pain and sufferings 35,000/- 60,000/-
2 Medical expenses 85,000/- 85,000/-
3 Attendant charges, food and
extra nourishment,
conveyance charges 10,000/- 15,000/-
4 Loss of income during
treatment period 20,000/- 66,000/-
5 Loss of future income due to
disability 1,15,000/- 1,26,720/-
6 Future medical expenses 15,000/- 25,000/-
7 Loss of amenities -- 30,000/-
Total 2,80,000/- 4,07,720/-
17. The Tribunal has awarded compensation of
Rs.2,80,000/-, but the appellant/claimant is entitled to
total compensation of Rs.4,07,720/-. Hence, the
appellant/claimant is entitled to enhanced compensation
of Rs.1,27,720/- (Rs.4,07,720/- - Rs.2,80,000/-).
Therefore, the appellant/claimant is entitled to enhanced
compensation of Rs.1,27,720/- along with interest at
the rate of 6% per annum from the date of petition till
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the date of realization, in addition to what has been
awarded by the Tribunal.
MFA No.4459/2019 (MVC No.1863/2017):
18. In the present case, the Tribunal has awarded
compensation as follows:
Sl. Amount in
Particulars
No. Rs.
1 Pain and sufferings 10,000/-
2 Medical expenses 15,000/-
3 Attendant charges, food and extra
nourishment, conveyance charges 4,000/-
4 Loss of income during treatment period 10,000/-
Total 39,000/-
19. Having considered the nature of injuries
sustained, the claimant has not suffered fractured injuries
and there is no proof for having sustained disability,
doctor is not examined, but the claimant is an Advocate
by profession and has not produced any document before
the Court, considering all these aspects it is just and
proper to award additional global compensation of
Rs.15,000/-. Thus, claimant is entitled to additional
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global compensation of Rs.15,000/- along with interest
6% p.a. from the date of petition till realisation.
Accordingly, I proceed to pass the following:
ORDER
i. Appeals filed by the claimants are
allowed-in-part.
ii. Appeals filed by the owner of the truck
questioning the liability are dismissed.
iii. The impugned judgment and award
dated 22.03.2019 passed by the MACT
and I Addl. Senior Civil Judge,
Mangaluru, D.K. in MVC No.1864/2017
and the judgment and award dated
21.03.2019 passed by the MACT and I
Addl. Senior Civil Judge, Mangaluru,
respectively, are modified to the extent
that the appellants/claimants are
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entitled to enhanced compensation of
Rs.1,27,720/- and Rs.15,000/-
(globally) along with interest at the
rate of 6% per annum from the date of
petition till the date of realization, in
addition to what has been awarded by
the Tribunal.
iv. The insurance company is directed to
pay the compensation to the claimants
at the first instance and recover the
same from the owner.
v. No order as to costs.
vi. Registry to send back the trial court
records to the jurisdictional Tribunal.
vii. Draw award accordingly.
Sd/-
JUDGE
DR
