Karnataka High Court
Basavaraj vs Malleshi And Anr on 12 January, 2024
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MFA No. 200790 of 2019
IN THE HIGH COURT OF KARNATAKA, KALABURAGI
BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS. JUSTICE LALITHA KANNEGANTI
MISCL. FIRST APPEAL NO. 200790 OF 2019 (MV-I)
BETWEEN:
BASAVARAJ S/O KAMANNA HONAKORE,
AGE: 26 YEARS, OCC: GOUNDI ANDAGRICULTURIST,
R/O. CHICKBENNUR TO-DAY AT INGALAGI,
TQ:INDI AND DIST: VIJAYAPUR.
...APPELLANT
(BY SRI SANGANAGOUDA V BIRADAR, ADVOCATE)
AND:
1. MALLESHI S/O HARILAL RATHOD,
AGE: 39 YEARS, OCC: BUSINESS
R/O. INDI DIST: VIJAYAPUR-586101.
2. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.,
Digitally signed SANGAM BUILIDNG S.S. FRONT ROAD,
by KHAJAAMEEN
L MALAGHAN VIJAYAPUR-586101.
Location: High ...RESPONDENTS
Court of (BY SRI SHIVANAND PATIL, ADV. FOR R2; V/O DATED
Karnataka
04.01.2024 NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
23.07.2014 PASSED BY THE LEARNED MEMBER, FAST TRACK
COURT [MACT], VIJAYAPUR IN MVC NO. 947/2012 AND
LIABILITY SHIFT TO RESPONDENT NO. 2 INSURANCE CO., IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 200790 of 2019
JUDGMENT
This Appeal is filed by the claimant aggrieved by the
award passed in MVC No. 947/2012 dated 23.07.2014 by
the learned Member, Fast Track Court [MACT], Vijayapur,
claimant is before this Court seeking enhancement of the
compensation and also questioning the liability fixed on
the owner of the vehicle instead of insurance company.
2. The claim petition was filed seeking
compensation of an amount of Rs.18,30,000/- for the
injury sustained by the claimant in the accident.
According to the claimant he was working as a labourer
and earning an amount of Rs.12,000/- per month, he is
aged about 22 years. It is stated that on 18.03.2012 at
about 10.00 a.m. the claimant and his brother and father
were traveling in Ape Auto, and the driver of the vehicle
drove the same in a rash and negligent manner and due to
that the vehicle turned turtled and caused accident. The
claimant fell down and sustained grievous injuries. As a
result the claimant sustained accidental injuries resulting
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in prenatal disability and lost hearing WNL on left ear and
sixysitis with thickened Nasal turbinates ear. The doctor
had opined that he has sustained disability of 10 to 15%
to the whole body. The Court below had awarded the
compensation as per the table given below:
Towards pain and suffering Rs.30,000/-
Towards medical expenses Rs.1,10,301/-
Towards Attendant charges Rs.10,000/-
Towards loss of income during the Rs.15,000/-
treatment period
Towards loss of future earning Rs.48,600/-
Total Rs.2,19,000/-
3. When it comes to the liability as per the permit
issued to the offending vehicle it is permitted to ply in
Bugatageri Tanda whereas the scene of occurrence is
within the jurisdiction of the Indi Town Panchayat. The
Court below held that as there is violation of the terms and
conditions of the permit. The insurance company is not
liable to pay the compensation and fastened the liability on
the owner of the vehicle.
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4. Learned counsel appearing for the claimants
submits that because of the injuries sustained by the
claimant, he lost his hearing capacity and as per the
evidence of the doctor, he had sustained 10 to 15%
disability. The Court below without any basis had taken
5% as disability. It is further submitted that according to
the claimant he was earning an amount of Rs.12,000/-.
The Court below had taken Rs.4,500/- as income which is
also without any basis. It is further submitted that under
the head of loss of amenities, no amount was granted and
even towards loss of income during laid up period also
very meager amount was granted. The learned counsel
submits that the compensation that was awarded by the
Tribunal is not a just and reasonable compensation.
5. Then on the question of liability, he submits
that the vehicle was having a permit but the vehicle was
plyed beyond the permit limits, it does not amount to the
fundamental violation of the terms and conditions of the
permit and he has relied on the judgment of the Hon'ble
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Apex Court in Amrit Paul Singh and another V/s TATA
AIG General Insurance Co. Ltd. and others1, reported
in AIR 2018 (7) SCC 558. Learned counsel submits that as
per the said judgment, this violation does not amount to a
fundamental violation of the terms and conditions of the
policy and insurance company is still liable to pay the
compensation. He has relied on another judgment of this
Court in the case of Smt. Ujwala Prasad V/s New India
Assurance Company Limited and other2.
6. Learned counsel for the insurance company
submits that the policy of insurance is a contract between
the parties and they are governed by the contract and as
per the policy, they have to ply the vehicle as per the
permit. In this case, the vehicle was plying beyond the
limits of the permit and the Tribunal had rightly held that
the insurance company is not liable to pay the
compensation. He had relied on the judgment of Rani
and others V/s National Insurance Company Limited
AIR 2018 (7) SCC 558
MFA No.3920/2009, dated 01.10.2020
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and others3. He submits that in the similar set of facts in
the case of violation of terms and conditions of the policy,
the Hon'ble Apex Court had applied the principle of pay
and recovery. It is submitted that the disability assessed
by the doctor is on the higher side, the Court below had
rightly taken 5% as disability and no grounds are made
out for enhancement of the compensation.
7. Having heard the learned counsel on either
side, perused the entire material on record.
8. Coming to the aspect of the liability, in this case
the owner of the offending vehicle was having a permit to
ply the vehicle within the limits of Indi Panchayat. The
accident had taken place outside the Indi Panchayat and
the Court has come to the conclusion that beyond the
permit limit he is plying the vehicle and the owner alone to
pay the compensation. The Hon'ble Apex Court in case of
Amrit Paul Singh referred supra, held that when he is
having a permit and plying the vehicle beyond the permit
Civil Appeal Nos.907-9079 of 2017, dated 31.07.2018
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limits that itself would not amount to fundamental
violation of the terms and conditions and held that the
insurance company is still liable to pay the compensation
and recover the same from owner of the vehicle.
Considering the same, this Court is of the view that the
insurance company is to liable to pay the compensation.
9. Then coming to the quantum, according to the
claimant, he is earning an amount of Rs.12,000/-, the
Court had taken the income at Rs.4,500/-. This is an
accident of the year 2012 and as per the chart prepared
by the Karnataka State Legal Services Authority, this
Court is taking the income at Rs.6,500/-. Then coming to
the disability, when the doctor has deposed that he has
lost the left ear and it amounts to 10 to 15% disability.
The Court below without any discussion why it had taken
the disability at 5%.Considering the evidence of the doctor
and particularly whatever the profession of a person, loss
of vision and loss of hearing will have an impact on their
life, their income and all aspects of life. Considering the
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same, this Court is taking the disability at 10%. Hence,
under the head of loss of future earning,
6500x12x18x10/100=Rs.1,40,400/-. Towards pain and
suffering Rs.30,000/- and medical expenses Rs.1,10,301/-
, Court has granted reasonable amount and no
interference is called for. Coming to the attendant,
transport and nourishment, this Court is granting an
amount of Rs.15,000/- considering the 13 days of
hospitalization. Then coming to the loss of income
during the treatment period, Rs.6,500/-x3 =
Rs.19,500/-. Towards loss of amenities, the Court
below had not granted any amount. The disability will
have impact on the future life and happiness of the
claimant. Hence under the head of loss of amenities an
amount of Rs.30,000/- is granted.
10. In the light of the law laid down by the Hon'ble
Supreme Court in the case of V.MEKALA vs. M.
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MALATHI AND ANOTHER4, claimant is entitled for an
amount of Rs.10,000/- towards Legal Expenses.
Altogether claimant is entitled for compensation as
under:-
1. Towards pain and suffering Rs.30,000/-
2. Towards loss of future earning Rs.1,40,400/-
3. Towards Medical Expenses Rs.1,10,301/-
4. Towards attendant's charges, Rs.15,000/-
food and conveyance
5. Towards loss of amenities Rs.30,000/-
6. Towards loss of income during Rs.19,500/-
the period of treatment
7. Towards Legal Expenses Rs.10,000/-
Total Rs.3,55,201/-
Rounded off Rs.3,55,200/-
11. Accordingly, the appeal filed by the claimant is
Allowed-in-part by enhancing the compensation amount
from an amount of Rs.2,19,000/- to Rs.3,55,000/-.
(2014) 11 SCC 178
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(a) The enhanced amount shall carry interest @ 6% per
annum from the date of petition, till the date of
realization.
(b) This Court by dated 04.01.2024 has condoned the
delay of 1638 days on the condition that the claimant
is not entitled for interest in the event of
enhancement. Hence, the claimant is not entitled for
a interest period of 1638 days.
(c) Respondent-Insurance Company shall deposit the
said entire amount with accrued interest before the
Tribunal within a period of 8 (Eight) weeks. The
insurance company can recover the same from the
owne4r of the vehicle.
(d) The Registry is directed to return the Trial Court
Record to the Tribunal along with the certified copy of
the order passed by this court forthwith without any
delay.
Pending miscellaneous petitions, if any, shall stand
closed.
Sd/-
Judge
SMP
