Karnataka High Court
K. Virupaxappa Kaddihal S/O. Shivappa ... vs B. Shrinu, S/O. Krustayya on 16 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:3843
MFA No. 23227 of 2012
C/W MFA No. 25010 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.23227 OF 2012 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.25010 OF 2012
IN MISCELLANEOUS FIRST APPEAL NO.23227 OF 2012
BETWEEN:
K. VIRUPAXAPPA KADDIHAL
S/O. SHIVAPPA KADDIHAL,
AGE:48 YEARS, OCC:BUSINESS,
R/O: GANGAVATHI,
NOW R/O. GAVISHRI NAGAR, KOPPAL,
TQ and DIST. KOPPAL.
...APPELLANT
(BY SRI. NEELENDRA D.GUNDE, ADVOCATE)
AND:
1. SHRI. B. SHRINU, S/O. KRUSTAYYA,
AGE: 32, OCC: DRIVER CUM OWNER OF LORRY,
R/O. 6-3100/1, OLD NO-9,ROAD NO.19,
Digitally
signed by
MANIK NAGAR, CHINTAL, RANGAREDDY,
SAMREEN
SAMREEN
AYUB
ANDHRA PRADESH.
AYUB DESHNUR
DESHNUR Date:
2024.02.23
16:55:23
2. BHARATHI AXA GENERAL INSURANCE CO. LTD.,
+0530 RMZ INFINITY, B. TOWER, 2ND FLOOR, NO.3,
OLD MADRAS ROAD, BANGALURU.
...RESPONDENTS
(BY SRI. VISHWANATH HEGDE, ADVOCATE FOR
SRI. M.H. PATIL, ADVOCATE FOR R1;
SRI. S.K. KAYAKAMATH, ADVOCATE FOR R2)
THIS M.F.A. IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 05.04.2012
PASSED IN MVC NO.515/2010 ON THE FILE OF THE MEMBER, ADDL.
MACT AND PRESIDING OFFICER, FAST TRACK COURT-I, KOPPAL,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
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NC: 2024:KHC-D:3843
MFA No. 23227 of 2012
C/W MFA No. 25010 of 2012
IN MISCELLANEOUS FIRST APPEAL NO.25010 OF 2012
BETWEEN:
BHARATHI AXA GENERAL INSURANCE CO. LTD.,
RMZ INFINITY, B. TOWER, 2ND FLOOR, NO.3,
OLD MADRAS ROAD, BANGALURU
REPRESENTED BY ITS AUTHORIZED SIGNATORY,
BHARATI AXA GENERAL INSURANCE I FLOOR,
FERNS/SY NO.28, DODDA NEKUNDI,
BANGALURU-37.
...APPELLANT
(BY SRI. S.K. KAYAKAMATH, ADVOCATE)
AND:
1. K. VIRUPAXAPPA S/O. SHIVAPPA KADDIHAL,
AGE:48 YEARS, OCC:BUSINESS,
R/O: GANGAVATHI,
NOW IS RESIDING AT GAVISHREE NAGAR,
KOPPAL.
2. B. SHRINU S/O. KRISHTAIAH,
AGE: 32, OCC: DRIVER CUM OWNER OF LORRY,
R/O. 6-3100/1, OLD NO-19, MANIK NAGAR,
CHINTAL, RANGAREDDY, ANDHRA PRADESH.
(DRIVER-CUM-OWNER OF LORRY
BEARING REGN. NO.AP-28/X-5507)
...RESPONDENTS
(BY SRI. NEELENDRA D.GUNDE, ADVOCATE FOR R1;
SRI. VISHWANATH HEGDE, ADVOCATE FOR
SRI. M.H. PATIL, ADVOCATE FOR R2)
THIS M.F.A. IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 05.04.2012
PASSED IN MVC NO.515/2010 ON THE FILE OF THE MEMBER, ADDL.
MACT AND PRESIDING OFFICER, FAST TRACK COURT-I, KOPPAL,
AWARDING COMPENSATION OF RS.5,63,907/- WITH INTEREST AT
THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL
REALISATION.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 23227 of 2012
C/W MFA No. 25010 of 2012
JUDGMENT
Heard Sri.Neelendra D.Gunde, Sri.Vishwanth Hegde
for Sri.M.H.Patil and Sri.S.K.Kayakmath for respondent
No.2.
2. These two appeals arise out of the judgment and
award passed in MVC No.515/2010 on the file of Addl.
MACT., Koppal dated 05.04.2012.
3. Injured claimant K.Virupaxappa Kaddihal laid a claim
under Section 166 of M.V. Act for the accidental injuries
sustained by him on 11.12.2009 at about 3 p.m. involving
motorcycle bearing No.KA-37/L-9803. He was taken to
the Ballari hospital and then to Saint Johns Hospital for
treatment. He got cured all his injuries.
4. Tribunal has allowed his claim petition on contest in a
sum of Rs.5,63,907/- along with interest at 6% per annum
from the date of petition till realization.
5. Being aggrieved by the same, claimant is in appeal.
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6. Sri.Neelendra Gunde, counsel sought for
enhancement of compensation by contending that tribunal
has not granted any compensation under the head pain
and suffering, loss of amenities and other pecuniary heads
and sought for allowing the appeal.
7. Per contra, Sri. Vishwanath Hegde and
Sri.S.K.Kayakmath supported the quantum of
compensation.
8. Sri.S.K.Kayakmath further contended that the rider
of the motorcycle did not possess the valid driving license
and therefore, tribunal directing the insurance company to
pay the adjudged compensation and recover the same
form the owner is incorrect and sought for allowing the
appeal of the insurance company.
9. In view of the rival contentions of the parties, this
court has perused the material on record meticulously.
10. On such perusal of the material on record, it is seen
that though voluminous records are placed on record to
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establish the medical expenses as well as disability
supported by the claimant, Ex.P7-assumes significance in
assessing the disability. Ex.P7 is issued by the PW.5. The
answer elicited in his cross examination namely dis-
function of various parts of the body is not even
mentioned in the Ex.P7. Further, Ex.P7 is also not in
prescribed form to assess the disability.
11. Likewise, medical bills though signed by the PW.5,
they do not have seal of Saint Johns Hospital. Therefore,
there is scope for reduction of compensation since there is
no appeal by the owner.
12. With regard to the quantum of compensation instead
of reducing compensation on the head of loss of disability
as well as medical expenses and increasing the same on
the head pain and suffering, loss of income during laid up
period, loss of amenities, payment towards attendants and
nourishment charges, if the quantum of compensation is
retained as it is, ends of justice would be met.
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13. Accordingly, there is no scope for enhancement of
compensation, appeal of the claimant needs to the
dismissed.
14. Now, coming to the question of the liability of the
insurance company. Admittedly, the rider of the
motorcycle did not posses valid driving license. Therefore,
tribunal ought not to have directed the insurance company
to pay the adjudged compensation at fist instance and
recover the same from the owner of the offending
motorcycle, as there is fundamental breach in the policy
conditions.
15. Accordingly, appeal of the insurance company needs
to be allowed.
16. Hence, following :
ORDER
i) Appeal filed by the claimant in MFA
No.23227/2012 is dismissed.
ii) Appeal filed by the insurance company in
MFA No.25010/2012 is allowed.
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iii) Adjudged compensation is to be paid by the
owner of the offending lorry bearing
No. AP-28/X-5507.
iv) Amount in deposit is ordered to be returned
to the insurance company under due
identification.
Sd/-
JUDGE
HMB
