Karnataka High Court

Sri. Ravi. M vs Sri. Basheer Khan on 21 February, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                      NC: 2024:KHC:7383
                                                   MFA No. 3951 of 2022




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                     DATED THIS THE 21ST DAY OF FEBRUARY, 2024
                                       BEFORE
                    THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                   MISCELLANEOUS FIRST APPEAL NO.3951 OF 2022 (MV-I)
              BETWEEN:

                    SRI RAVI M.
                    S/O.MUTHUSWAMY
                    AGED ABOUT 51 YEARS
                    R/AT NO.308, 21ST CROSS
                    2ND STAGE, KUMARASWAMY LAYOUT
                    J P NAGAR
                    BENGALURU SOUTH
                    BENGALURU- 560 078
                                                           ...APPELLANT
              (BY SRI HARISH N.R., ADVOCATE)
              AND:

              1.    SRI BASHEER KHAN
                    S/O.LATE IBRAHIM KHAN
                    NO.55, NEAR MASEEDI
                    MARALAVADI VILLAGE
                    AND POST, KANAKAPURA TALUK
                    RAMANAGARA DISTRICT- 562 117

Digitally
signed by B   2.    UNITED INDIA INSURANCE CO. LTD.
LAVANYA             THE MANAGER REGIONAL OFFICE
Location:           5TH AND 6TH FLOOR
HIGH                KRISHI BHAVAN
COURT OF            NRUPATHUNGA ROAD
KARNATAKA           BENGALURU- 560 001
                                                        ...RESPONDENTS
              (BY SRI K.ABHINAV ANAND, ADVOCATE FOR R-1;
                  SRI S.KRISHNA KISHORE, ADVOCATE FOR R-2)

                   THIS   MISCELLANEOUS    FIRST   APPEAL IS FILED
              U/S.173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT
              AND     AWARD     DATED     02.03.2022    PASSED  IN
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                                           NC: 2024:KHC:7383
                                       MFA No. 3951 of 2022




MVC.NO.3982/2019 BY I ADDITIONAL SMALL CAUSES JUDGE
AND MACT, BENGALURU.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is preferred by the appellant-claimant

challenging the judgment and award dated 02.03.2022

passed in MVC.No.3982/2019 by the Court of I Additional

Small Causes Judge and MACT, Bengaluru (for short 'the

tribunal'). The appeal is preferred on the premise of

inadequate and meager compensation awarded by the

tribunal and consequently, to shift the liability against the

Insurance Company rather than the owner of the motor

cycle.

2. Though this matter is listed for admission, with

consent of learned counsel for parties, the matter is taken

up for final disposal.

3. Parties to the appeal shall be referred to as per

their status before the tribunal.

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4. Brief facts of the case are as under:

On 23.05.2019 at about 8.15 p.m., when the

claimant was walking on footpath of NH-209 road,

Lakshmipura, Kengeri Hobli, Bengaluru South Taluk,

Bengaluru city, the rider of motor cycle bearing

registration No.KA-01-EJ-7119 came from Bengaluru in a

rash and negligent manner and dashed against the

claimant. Due to the said impact, the claimant fell down

and sustained grievous injuries. The claimant was

immediately shifted to Sanjay Gandhi Institute of Trauma

and Orthopaedic Hospital, Bengaluru, wherein he took

treatment as an inpatient for 10 days.

4.1 It is stated he was hale and healthy prior to the

occurrence of accident. He was doing business and earning

a sum of Rs.20,000/- per month. Due to the injuries

sustained by the claimant, he has filed a claim petition

seeking compensation.

4.2 On service of notice, the respondents appeared

through their counsel. However, respondent No.1 did not

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file the written statement. Respondent No.2 filed detailed

written statement denying the averments made in the

claim petition including age, avocation, income and

occurrence of accident. It is further stated that the rider

of the bike was not holding a valid and effective dirving

licence. On these grounds, sought for dismissal of the

claim petition.

4.3 On the basis of pleadings, the tribunal framed

relevant issues for consideration.

4.4 In order to substantiate the issue and to

establish the case, the claimant got examined himself as

PW.1 and the Doctor as PW.2 and got marked documents

as Exs.P1 to P15. On the other hand, the respondents

examined two witnesses as RWs.1 and 2 and got marked

documents as Exs.R1 to R3.

4.5 On the basis of material evidence produced by

the parties, the tribunal awarded the compensation of

Rs.3,49,848/- with interest @ 6% p.a. from the date of

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petition till realization and fastened the liability against

respondent No.1, owner of the offending vehicle and

dismissed the claim petition as against respondent No.2,

Insurance Company.

4.6 Being aggrieved by the judgment and award

passed by the tribunal, the claimant is before this Court

seeking enhancement of compensation and to shift the

liability as against the Insurance Company.

5. It is the vehement contention of learned counsel

for appellant-claimant that the tribunal awarded meager

compensation, which calls for interference at the hands of

this Court. He further contends that the tribunal has

grossly erred in fastening the liability of payment of

compensation as against the owner of the offending

vehicle on the ground that the rider of the motor cycle was

not holding a valid and effective Driving Licence as on the

date of accident. Therefore, the tribunal ought to have

ordered for 'pay and recovery' directing the Insurance

Company to pay compensation by reserving liberty to

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recover the same from the owner of the motor cycle.

Hence, he seeks to enhance the compensation and to shift

the liability on the Insurance Company.

6. Per contra, learned counsel for respondent-

Insurance Company vehemently contends that the tribunal

has awarded just and reasonable compensation, which

does not call for interference. He further contends that

the tribunal has rightly fastened the liability on the owner

of motor cycle on the ground that the rider of the motor

cycle does not have a valid and effective Driving Licence.

On these grounds, he seeks for dismissal of the appeal.

7. Having heard learned counsel for appellant-

claimant and respondent-Insurance Company and perused

the impugned judgment and award and evidence adduced

by the parties, it is not in dispute that the accident

occurred on 23.05.2019. It is evidenced by production of

Exs.P1 to P6, Police records, which clearly depict filing of

FIR and laying of chargesheet against the rider of the

offending vehicle, which is not challenged and Exs.P7 to

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P15, the medical records depict the injuries sustained by

the claimant, due to the accident. Hence, the negligence is

rightly attributed against the rider of the offending vehicle.

8. Now coming to the age, avocation, income of the

claimant and disability sustained by the claimant, the

tribunal assessed the income at Rs.14,000/- per month on

the basis of notional income chart, as there is no proof of

income produced by the claimant, which does not call for

interference and the same is retained. The age of the

claimant is 48 years. The appropriate multiplier would be

'13', which is rightly applied by the tribunal, which also

does not call for interference.

9. PW.2-Doctor has opined the disability suffered by

the claimant to an extent of 40% towards permanent

disability impairment and 13% to the whole body.

However, the tribunal has assessed the disability at 11%

without there being any cogent reason. When PW.2-Doctor

has opined the disability at 40% towards permanent

disability impairment and 13% to the whole body, the

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tribunal cannot differ the disability from the opinion

expressed by PW.2-Doctor without any proper cogent

reason and contra material placed by the Insurance

Company or the owner of the offending vehicle. Under the

circumstances, the disability is taken at 13%. Therefore,

the claimant would be entitled to the compensation of

Rs.2,83,920/- (Rs.14,000/- x 12 x 13 x 13%) towards

loss of future income due to disability as against

Rs.2,40,240/- awarded by the tribunal.

10. The tribunal awarded Rs.45,000/- towards pain

and suffering, Rs.12,608/- towards medical expenses and

Rs.10,000/- towards conveyance, which do not call for

interference and the same are retained.

11. The tribunal awarded Rs.4,000/- towards food

and extra nourishment and medical attendant. However,

the claimant was inpatient for 10 days. Therefore, this

Court deems it appropriate to award Rs.10,000/- under

this head.

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12. The tribunal awarded Rs.28,000/- towards loss

of income during treatment period. However, this Court

deems it appropriate to award Rs.42,000/- (Rs.14,000/-

x 3) under this head.

13. The tribunal awarded Rs.10,000/- towards loss of

amenities. However, this Court deems it appropriate to

award additional amount of Rs.25,000/-. In all,

Rs.35,000/- is awarded under this head.

14. In view of the above, the claimant would be

entitled to a total compensation of Rs.4,38,528/- as

against Rs.3,49,848/- as mentioned in the table below:

                 Heads                       Amount in Rs.
Pain and suffering                               45,000-00
Medical expenses                                 12,608-00
Food and extra nourishment and                   10,000-00
medical attendant
Conveyance                                         10,000-00
Loss of income during treatment                    42,000-00
Loss of future income                            2,83,920-00
Loss of amenities                                  35,000-00
                TOTAL                           4,38,528-00

15. Coming to the aspect of shifting or fastening the

liability against the Insurance Company, learned counsel

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for claimant relied on the Full Bench judgment of this

Court in the case of New India Assurance Co. Ltd. Vs.

Yallavva reported in 2020(2) KCCR 1405 (FB), wherein

clause (x) of para-110 reads as under:

"SUMMARY OF FINDINGS:

110. The summary of our findings to the various issues as raised in these petitions is as follows:

xxxxxxxxx

(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proves its defense in accordance with the provisions of Section 149(2) read with sub-

section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as

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arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section(3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal."

16. Learned counsel contends that though the

defence is taken by the Insurance Company that there is a

clear admission by the rider of the offending vehicle that

he did not possess a valid and effective Driving Licence as

on the date of occurrence of accident, he should be held

liable and the Insurance Company should be absolved, the

Hon'ble Apex Court has held that the Insurance Company

is liable to pay and thereafter, recover the same from the

insured.

17. Learned counsel for Insurance Company, relying

on the judgment of Division Bench of this Court in the case

of Smt.Adilakshmamma and Others vs. Sri Raju B.

and another in MFA.No.3297/2019 [Decided on

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13.04.2023], contended that the fact and circumstances

of the case are similar to this case. The Division Bench of

this Court exonerated and absolved the liability of the

Insurance Company, but on considering the submissions of

both parties and having perused the judgments relied on

by both learned counsels, it is seen that the Hon'ble Apex

Court in the case of Rani and Others vs. National

Insurance Company Limited and Others reported in

(2018)8 SCC 492, has held at Head Note 'B' that it is the

duty of the insurer to satisfy judgment and award against

person in respect of third-arty risk. The Hon'ble Apex

Court has also dealt with para-15 of the judgment in the

case of Pappu and Others vs. Vinod Kumar Lamba

and another reported in (2018)3 SCC 208 and

thereafter, para-16, wherein it has gone on to hold that -

"16. ............whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (Respondent 1)?"

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18. Under the circumstances, though there may be

similarity between the facts of the Insurance Company

with that of the Division Bench of this Court in the case of

Adilakshmamma, the principle laid down by the Hon'ble

Apex Court is that even if there is violation and breach of

terms and conditions, the Insurance Company is liable to

pay the compensation and thereafter, recover the same

from the owner of the offending vehicle.

19. In view of the same, this Court is of the opinion

that the tribunal has committed an error in fixing the