Karnataka High Court
Shriram General Insurance Com.Ltd vs Suresh S/O. Sunkappa on 10 June, 2024
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MFA No. 102364 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 102364 OF 2018 (MV-I)
BETWEEN:
SHRIRAM GENERAL INSURANCE COM. LTD,
BALLARI, REPTD. BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE)
AND:
1. SURESH S/O. SUNKAPPA,
AGED ABOUT 23 YEARS, OCC:PRIVATE EMPLOYEE,
R/O. SREEDHARAGADDE VILLAGE, BALLARI TALUKA,
DIST: BELLARY-583101.
2. B. DODDA BASAVARAJ S/O. B. KARIAPPA,
OCC: DRIVER, R/O. SREEDHARAGADDE VILLAGE,
BALLARI TALUKA, DIST: BELLARI -583101.
3. MAHANTESH S/O. BARAMAPPA,
OCC: OWNER, R/O. BISILAHALLI VILLAGE,
Digitally signed
BALLARI TALUKA, DIST: BELLARI-583101.
by MANJANNA ...RESPONDENTS
E
Location: HIGH (BY SRI. ANKIT R. DESAI, ADV. FOR
COURT OF
KARNATAKA SRI. MALLIKARJUNASWAMY B. HIREMATH, ADV. FOR R1;
NOTICE TO R2 & R3 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
13.04.2018 PASSED BY THE COURT OF THE III MOTOR ACCIDENT
CLAIMS TRIBUNAL AT BALLARI IN MVC NO.1072/2015 ON THE FILE
OF THE MEMBER, MACT III, BALLARI AWARDING COMPENSATION OF
RS.5,99,000/- WITH INTEREST AT 8% P.A. FROM THE DATE OF
PETITION TILL ITS REALISATION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 102364 of 2018
JUDGMENT
This appeal is by the insurer of the offending vehicle
challenging the quantum of compensation awarded by the
Tribunal as excessive and seeking reduction of the same and
also challenging the liability as fixed by the Tribunal.
2. Heard. The appeal is admitted and with the consent
of the learned counsel appearing for the parties, it is taken up
for final disposal.
3. For the sake of convenience, the parties are
referred to as they are referred in the claim petition before the
Tribunal.
4. The factual matrix of the case is that on 17.04.2014
around 07:00 p.m., the claimant alongwith the other inmate
were proceeding in a passenger auto bearing registration
No.KA-34/A-5034 on Kappagal Camp to Balajinagar Camp
road, Ballari. When they came opposite to Krishnayya's land,
Balajinagar Camp, respondent No.1 drove the auto in a rash
and negligent manner endangering the human life and the said
auto turtled down. Due to the impact, the claimant sustained
sever injuries. Immediately he was shifted to Hospital for
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treatment, later the claimant filed petition under Section 166 of
the Motor Vehicles Act and the Tribunal considering oral and
documentary evidence has granted a sum of Rs.5,99,000/-.
Aggrieved by the same, the insurer of the offending vehicle
challenging the quantum of compensation awarded by the
Tribunal as excessive and seeking reduction of the same and
also challenging the liability as fixed by the Tribunal, the
insurer has filed this appeal.
5. Learned counsel for the appellant - Insurance
Company contended that the Tribunal has committed an error
in saddling the liability on the insurance company. The driver of
the offending vehicle did not possess valid and effective driving
licence to drive the vehicle in question and the same was
established and proved by oral and documentary evidence by
Ex.R3. The amount awarded under different heads are on much
higher side and the same requires to be revisited and be
modified. Hence, he prayed to allow the appeal.
6. Learned counsel for the respondent - claimant
contended that the award passed by the Tribunal is just and
fair towards loss of income during laid up period, loss of future
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earning etc. The Tribunal on examining the evidence of the
Doctor and examining the wound certificate, disability
certificate, has rightly awarded fair and reasonable
compensation towards medical expenditure, future medical
expenditure, loss of amenities and comfort. Hence, no
interference is called for and he prayed to dismiss the appeal.
7. Heard the learned counsel appearing for the
appellant - Insurance Company and the learned counsel for the
claimant - respondent No.1. Perused the judgment and award
of the Tribunal.
8. There is no dispute regarding occurrence of
accident. The following points that arise for Court's
consideration in this appeal is:
"1. Whether the appellant - insurer proved
that the driver of the offending vehicle does not
possess valid and effective driving licence and the
owner of vehicle violated policy condition?
2. Whether quantum of compensation
awarded by the Tribunal is just and reasonable or
does it call for reduction?"
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9. In order to prove the contention with regard to the
driver of the offending vehicle do not possess valid and
effective driving licence and the policy condition was violated.
The insurer examined Sri.Ashlesh Moger as RW1 and relied
upon insurance policy at Ex.R1 and copy of DL of offending
vehicle as Ex.R3. From the perusal of Ex.R3, the Driving
Licence of driver of the offending vehicle was valid till
06.10.2017 and the alleged accident took place on 17.04.2014.
It shows that driving licence of the driver of offending vehicle
was in force. So far as violation of policy condition, in view of
the ratio laid down in the case of Mukund Dewangan vs.
Oriental Insurance Company Limited and others1, the
insurer is liable to pay compensation on account of negligence
caused by the driver of the offending vehicle, in view of pay
and recovery principle as held by the Hon'ble Apex Court in the
case of National Insurance Company Limited Vs. Swarn
Singh and others2 and also in the case of Rani and others
vs. National Insurance Company Limited and others3.
(2016) 4 SCC 298
(2004) 3 SCC 297
(2018 8 SCC 492
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10. The Co-ordinate Bench of this Court in the case of
Karnataka State Road Transport Corporation vs.
Bellappa4 at paragraph Nos.10, 11, 12 and 14 held as under:
"10. The Hon'ble Apex Court in the case of
B.V.Nagaraj vs. Oriental Insurance Company [(1996)
4 SCC 647.] has held thus.
"It is plain from the terms of the insurance
policy that the insured vehicle was entitled to carry
six workmen, excluding the driver. If those six
workmen when travelling in the vehicle, are assumed
not to have increased any risk from the point of view
of the insurance company on occurring of an
accident, how could those added persons be said to
have contributed to the causing of it is the pose,
added persons be said to have contributed to present
case the driver of the vehicle was not responsible for
the accident. Merely by lifting a person or two, or
even three, by the driver or the cleaner of the
vehicle, without the knowledge of the owner, cannot
be said to be such a fundamental breach that the
owner should, in all events, be denied
indemnification. The misuse of the vehicle was
somewhat irregular though, but not so fundamental
in nature so as to put an end to the contract, unless
ILR 2017 KAR 1292
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some factors existed which, by themselves, had gone
to contribute to the causing of the accident."
The said Judgment has been followed
subsequently in Lakhmi Chand v. Reliance General
Insurance Company Limited [(2016) 3 SCC 100.]
wherein it was held that in order to avoid liability
must not only establish the defence claimed in the
proceeding concerned, but also establish breach on
the part of the owner/insured of the vehicle for which
the burden of proof would rest with the Insurance
Company. The breach of the policy must be
fundamental in nature that it brings the contract to
an end. It must be established that the accident was,
in fact, caused on account of rash and negligent
driving by its driver. The Hon'ble Apex Court was
considering the case of the passengers travelling in
the vehicle beyond the permitted load/seating
capacity. Six passengers were carried in the vehicle
at the time of occurrence of the accident when the
permitted load in the vehicle was only 1+1, the
insurer contended that there was violation of terms
and conditions of insurance policy, as such not liable
to indemnify the owner. In that context, it was held
that the excess passengers carried in a vehicle by
itself would not be construed as breach on the part of
the owner/insured of the vehicle. Moreover, when the
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charge sheet was filed against the driver of the
opposite vehicle.
11. In the case of Sri. Anjanappa's
case (supra), the Division Bench of this Court had an
occasion to consider the provisions of Section 128 of
the Act and the Rule 123 of the CMV Rules and 143
of the KMV Rules vis-a-vis claim made while the
deceased carrying two pillions on the motorcycle. It
was almost same set of facts as the case on hand, it
was held merely breach of law or duty would not
create a liability to pay damages. Merely because the
deceased was riding motorcycle with two persons on
the vehicle though amounts to contravention of
Section 128 of the Act, it does not amount to
negligent act on the part of the deceased. The rider
riding the vehicle, if it is demonstrated lost control of
the vehicle, he was not able to balance the vehicle or
because of such contravention he dashed against the
vehicle which resulted in accident, then the question
of extent of breach of duty resulted in negligence
would be analysed. 30% of contributory negligence
foisted on the deceased solely on the ground that he
was riding the motorcycle with two persons behind
him was held to be not permissible in law. The Police
documents placed on record was considered to be
reliable evidence which were prepared in discharge of
their official duty and in the process of investigation,
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in the absence of any motive being attributed. This
Judgment is squarely applicable to the facts of the
present case.
12. Following the above Judgments, it would
be held that even assuming that the injured was a
pillion itself would not disentitle the claimant from
claiming compensation.
13. xxx
14. Thus, Ex.R1 do not instill any
evidentiary value much against the Police records
which clearly speaks that the vehicle in question was
driven by the injured. The Police Authorities in
discharge of their official duty after thorough
investigation have prepared the reports, which
cannot be overlooked and the same has to be
construed as a reliable evidence. Secondly, violation
of Section 128 of the Act and relevant Rules would be
amenable to punitive action but that itself would not
result in breach of terms and conditions of the
insurance policy, the Corporation cannot escape the
liability on these grounds.
11. In view of the ratio laid down in the aforesaid
decisions and facts and circumstances of the present case,
Insurance Company to first pay compensation amount to the
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claimant with liberty to recover the same from the owner of the
offending vehicle.
12. After hearing the learned counsel for the parties
and after perusal of the judgment and award of the Tribunal, I
am of the opinion that the insurer is liable to pay compensation
on account of the negligence caused by the driver of the
offending vehicle and the compensation awarded by the
Tribunal is not just and reasonable, it is on the higher side and
hence, it require to be reduced. As per the material on record,
the claimant has sustained "fracture of shaft femur and femoral
vein ligation."
13. From the perusal of the disability, wound certificate,
as per cross-examination of PW2 - Doctor, the claimant
sustained fracture of shaft of right femur middle 1/3rd with
moral vein injury. The injuries sustained and treatment taken
by the claimant is also supported by the claimant and Doctor,
who are examined as PWs.1 to 3 respectively. PW2 Doctor in
his evidence has stated that the claimant has suffered disability
of 35% to the whole body.
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14. Learned counsel for the insurer submits that the
compensation awarded towards pain and sufferings, loss of
income during laid up period, attendant charges, conveyance
and other incidental expenditure, loss of amenities and for
permanent disability, are not proper and he prays for allowing
the appeal by reducing the compensation.
15. Learned counsel for the claimant submits that since
compensation awarded towards other heads is on lower side
and total compensation awarded by the Tribunal is just and
reasonable, there is scope for reduction of compensation
awarded towards loss of income during laid up period,
attendant charges, conveyance and other incidental
expenditure, loss of future earning, loss of amenities and
permanent disability and he prays for dismissal of the appeal.
16. Since, the method adopted by the Tribunal in
determining compensation is not proper, this Court re-assessed
and awarded the following compensation.
17. Considering the injuries sustained by the claimant,
a sum of Rs.50,000/- is awarded towards pain and
sufferings is reasonable.
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18. The Tribunal has awarded a sum of Rs.35,000/-
towards loss of income during laid up period. The accident
is of the year 2014 and the notional income is taken at
Rs.7,500/-. A sum of Rs.22,500/- (Rs.7,500 X 3) is awarded
under this head. Thus, a sum of Rs.12,500/- is reduced under
this head.
19. The Tribunal awarded a sum of Rs.35,000/- towards
attendant charges, conveyance and other incidental
expenditure, which is on higher side. Hence, an amount of
Rs.5,000/- is reduced under this head and accordingly,
Rs.30,000/- is awarded under this head.
20. Towards loss of future earning capacity due to
permanent disability, the Tribunal awarded a sum of
Rs.3,24,000/- which is reasonable and no interference is
called for in that regard by this Court.
21. The Tribunal has awarded a sum of Rs.20,000/-
towards medical expenditure and a sum of Rs.10,000/-
towards future medical expenditure which are reasonable
and no interference is called for in that regard.
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22. The Tribunal has awarded a sum of Rs.50,000/-
under the head loss of amenities which is higher and exorbitant
one. Hence, a sum of Rs.20,000/- is reduced and accordingly,
Rs.30,000/- is awarded under the head loss of amenities.
23. The Tribunal has awarded a sum of Rs.75,000/-
under the head permanent disability. However, the Tribunal has
not assigned any valid reasons to grant such compensation,
hence, Rs.75,000/- is reduced.
24. Thus, the claimant is entitled for the following
compensation.
Pain and sufferings Rs.50,000/-
Loss of income during laid up period Rs.22,500/-
Food, attendant charges, conveyance Rs.30,000/-
Loss of future earning capacity Rs.3,24,000/-
Medical expenditure Rs.20,000/-
Future medical expenses Rs.10,000/-
Loss of amenities Rs.30,000/-
Total Rs.4,86,500/-
25. Therefore, the claimant is entitled to a sum of
Rs.4,86,500/- as against the compensation of Rs.5,99,000/-
awarded by the Tribunal. Accordingly, I pass the following:
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ORDER
This appeal is allowed in part. The judgment and award
passed by Prl. Senior Civil Judge and JMACT - III, Ballari in
M.V.C. No.1072/2015 dated 13.04.2015 is hereby modified to
the extent stated hereinabove. The claimant is entitled for
Rs.4,86,500/- as against Rs.5,99,000/- awarded by the
Tribunal. Hence, a sum of Rs.1,12,500/- is reduced. The
claimant is entitled for Rs.4,86,500/- with an interest at 6% per
annum.
The appellant - Insurance Company is directed to deposit
entire compensation with interest within a period of eight
weeks from the date of receipt of copy of this judgment.
The amount in deposit be transmitted to the Tribunal
forthwith.
The Registry is directed to send copy of this judgment
alongwith Trial Court Records.
No order as to costs.
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Pending I.As., if any, shall stand disposed off
accordingly.
Sd/-
JUDGE
RSH / ct-an
