Karnataka High Court
Prabu H C vs Ratnakara M V on 28 June, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24195
MFA No. 2374 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO.2374 OF 2021(MV-I)
BETWEEN:
PRABU H C,
S/O LATE CHANDRASHEKARAIAH,
AGED ABOUT 50 YEARS,
JENUKALLU BETTA,
SIGE HOSURU,
JENNUKALLU BETTA FOREST,
KODAGU DISTRICT-571 201.
PERSENTLY R/O
CARE OF LOKESH S/O LATE CHIKKEGOWDA,
1ST CROSS, VIVEKA NAGAR,
HASSAN-573 201.
...APPELLANT
(BY SRI.GIRISH B BALADARE., ADVOCATE)
Digitally
signed by AND:
YAMUNA K L
Location: High 1. RATNAKARA. M.V,
Court of
Karnataka S/O VITTALA GOWDA,
AGED ABOUT 40 YEARS,
M. K.MAGAJAHALLI VILLAGE,
HANNUBHALU HOBLI,
SAKALESHPURA TALUK,
HASSAN DISTRICT-573 201.
2. THE MANAGER
THE NEW INDIA ASSURANCE COMPANY LTD.,
CHANDANA COMPLEX,
-2-
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MFA No. 2374 of 2021
HARSHA MAHAL ROAD,
HASSAN-573 201.
...RESPONDENTS
(BY SMT.GEETA RAJ., ADVOCATE FOR R2
R1 SERVED, UNREPRESENTED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 12.11.2019 PASSED IN MVC
NO.1207/2018 ON THE FILE OF THE MEMBER, MACT, 2ND
ADDITIONAL SENIOR CIVIL JUDGE AND M.A.C.T., HASSAN,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the claimant/appellant
under Section 173(1) of the Motor Vehicles Act, 1988 1 for
enhancement of compensation challenging the judgment
and award dated 12.11.2019 passed in MVC
No.1207/2018 by the II Addl. Senior Civil Judge and Motor
Accident Claims Tribunal at Hassan2.
2. Heard the learned counsel for the parties.
Hereinafter referred to as the 'Act'
Hereinafter referred to as the 'Tribunal'
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3. For the sake of convenience, the parties herein
are referred as per their rank before the Tribunal.
4. Brief facts of the case are that on 21.10.2017 at
about 10.00 a.m., when the petitioner was proceeding in a
Car in front of Kudmangalore village Gram Panchayath, at
that time, the driver of the tractor bearing registration
No.KA-46-T-3935 came in a rash and negligent manner
and dashed against it. As a result, the petitioner
sustained multiple injuries all over the body. Then he was
admitted to Government Hospital, Kudige and Kushalnagar
and later he was shifted to Janapriya Hospital, Hassan,
where he underwent surgery and was admitted as an
inpatient for a period of one month and spent a sum of
`5,00,000/- towards medical expenses. Hence, the
petitioner filed the claim petition under Section 166 of the
Act claiming compensation along with interest for the
injuries sustained in the road traffic accident.
5. On service of notice, respondent No.1/owner is
served and not appeared either through counsel or person
and has placed exparte. Respondent No.2 has entered
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appearance through his counsel and filed written
statement and denied the averments made in the petition.
It further contended that the driver of the offending
vehicle did not have valid and effective driving licence as
on the date of the accident and further contended that the
owner of the offending vehicle has violated the terms and
conditions of the insurance policy and the liability is
subject to terms and conditions of the policy. Therefore,
no liability is fixed on Insurance Company. It has further
denied age, avocation and income of the claimant and the
medical expenses. Hence, prays for dismissal of the
petition.
6. On the basis of the pleadings of the parties, the
Tribunal framed the following issues:
i. Whether petitioner proves that on 21.10.2017
at about 10.00 p.m., he came to Kushalnagar
to buy goods when he was returning in his Car
towards Kudige, at that time, driver of Tractor
bearing Reg.No.KA-46-T-3935 coming from
Kudige, drove his Tractor in a rash and
negligent manner with a high speed dashed to
the Car in which the petitioner was traveling
and caused accident, due to which, the
petitioner sustained multiple injuries all over
the body?
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ii. Whether the petitioner is entitled for
compensation as sought for? If yes, how much
and from whom?
iii. What order or award?
7. In order to prove his case, claimant/petitioner
examined himself as PW.1 and got marked Exs.P1 to
Ex.P12 and petitioner has also examined the Doctor as
PW-2 and got marked the documents at Exs.P13 to
Ex.P15. On the other hand, the respondent No.2 has
examined its Senior Assistant as RW-1 and got marked
Ex.R1.
8. After hearing the arguments, the Tribunal
answered issue No.1 in affirmative and issue No.2 in partly
affirmative and allowed the petition in-part and fixed the
liability on respondent No.1/owner. The Tribunal further
held that the driver of offending vehicle was not
possessing valid and effective driving license to drive the
vehicle at the time of accident and hence, dismissed the
petition against respondent No.2. The Tribunal awarded
compensation at `4,63,663/- with interest at the rate of
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8% p.a. and directed the respondent No.1 to deposit the
compensation amount along with interest.
9. The Tribunal has awarded the compensation
under various heads as follows:
Amount in
Sl.No Particulars
Rs.
1. Pain and sufferings. 40,000/-
2. Medical expenses 1,66,223/-
Conveyanc, food
3. nourishment, attendant 25,000/-
charges etc.,
Loss of income during laid
4. 18,000/-
down period
Loss of future income due
5. 1,54,440/-
to disability
6. Loss of amenities 30,000/-
7. Future medical expenses 30,000/-
Total ` 4,63,663/-
10. Being aggrieved by the quantum of
compensation, the claimant filed this appeal for
enhancement of compensation.
11. Learned counsel for the appellant has
contended that the Tribunal has committed an error in
taking the income of the appellant at `9,000/- p.m. even
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though the petitioner was earning `20,000/- p.m. by doing
agriculture. Even otherwise, the Tribunal could have taken
the notional income at `11,000/- p.m. as per the chart of
Karnataka State Legal Services Authority.
12. Learned counsel for the appellant contended
that even though the petitioner had sustained 35%
disability but the Tribunal has considered only 11%
disability, which is on the lower side and the compensation
awarded under all other heads are also on the lower side.
13. During the arguments, learned counsel for the
appellant contended that the liability shall be fixed on the
Insurance Company. It is not in dispute that as on the
date of the accident, the offending vehicle was covered
with a valid insurance policy and same is also not disputed
by the Insurer. Hence, contended that even though the
driver of the offending vehicle was not having effective
driving license, the Insurance Company is liable to pay the
compensation with liberty to recover the same from the
owner of the offending vehicle. In support of his
contention, he has relied upon the decision of the Hon'ble
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Supreme Court in the case of Pappu and Ors. vs. Vinod
Kumar Lamba and Another3 and Full Bench decision of
this Court in the case of New India Assurance Co. LTD.,
vs Yallavva and others4, wherein, the Insurance
Company is directed to pay compensation to the claimant
with liberty to recover the same from the owner of the
offending vehicle.
14. Per contra, learned counsel for respondent No.2
supported judgment of the Tribunal and contended that
the respondent No.1/owner of the vehicle permitted the
driver to drove the Tractor who did not have possess any
valid driving license. Therefore, there is violation of the
policy. Hence, the Tribunal has rightly exonerated the
insurer and fixed the liability on the owner of the vehicle.
Learned counsel for respondent No.2, further contended
that except enhancing `2000/- towards the notional
income of the claimant as per the chart of Karnataka State
AIR 2018 SUPREME COURT 592
AIR ONLINE 2020 KAR 986
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Legal Services Authority, there is no other compensation
to be enhanced. Hence, sought for dismissal of the appeal.
15. Having heard the learned counsel for the parties
and perused the material available on record, the points
that arises for my consideration is as under;
i) Whether the income fixed by the Tribunal at
`9000/-p.m. is meager and is liable to be
enhanced?
ii) Whether the Tribunal has rightly fixed the
liability on the first respondent/owner of the
offending vehicle by exonerating the Insurance
Company?
iii) What order/award?
16. Having perused the records, it is not in dispute
that appellant has sustained injuries in a road traffic
accident that occurred on 21.10.2017 due to rash and
negligent driving of Tractor bearing registration No.KA-46-
T-3935. Police have filed charge sheet against the driver
of the Tractor for the offences punishable under Sections
279, 337 and 338 of IPC and 3(1) R/w Section 181 of
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Motor Vehicle Act, 1988, as the driver of the vehicle was
not holding valid and effective driving licence. The
appellant contends that he was earning a sum of `20,000/-
p.m. In this regard, no documents have been produced.
Hence, the Tribunal has considered income of the claimant
at `9,000/- p.m. As per the chart of Karnataka State Legal
Services Authority, the date of the accident is of the year
2017, the notional income of the claimant ought to have
taken at `11,000/- p.m. Therefore, the notional income of
the claimant is taken at `11,000/- p.m. instead of `9,000/-
p.m. When it comes to the disability, Doctor is examined
as PW-2 and has produced disability certificate and stated
that the appellant is suffering from Right hip and knee
movements restricted and painful, patient is not able to
walk for long distance, not able to lift the weight and walk,
not able to squat, X-ray showed fracture not united.
Therefore, the Doctor opined 35% of disability towards the
right lower limb but the Tribunal has considered only 11%
disability to the whole body. However, the Tribunal has
considered 1/3rd of the total disability assessed by the
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Doctor and hence, taken disability of the claimant at 11%.
Therefore, the Tribunal has rightly taken disability at 11%
to the whole body, which needs no interference by this
Court. The age of the claimant is 48 years and proper
multiplier applicable is '13'.
17. Hence, an amount of `1,88,760/- (`11,000 X
12 X 13 X 11/100) is awarded under the head 'loss of
income due to disability'.
18. Insofar as to the pain and sufferings, the
appellant has suffered disability towards right lower limb
and the Tribunal has awarded a sum of `40,000/- which is
just and proper. `1,66,223/- towards medical expenses
and `25,000/- towards food and nourishment charges etc.,
awarded by the Tribunal is just and proper.
19. The Tribunal has awarded a sum of `18,000/-
towards 'loss of income during laid up period' by taking
`9,000/- p.m. for two months. Whereas, it has to be
reassessed by taking notional income of the claimant at
`11,000/- p.m. for three months. Hence, an amount of
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`33,000/- (`11,000 x 3) is awarded under the head 'loss
of income during laid up period'.
20. The Tribunal has awarded a sum of `30,000/-
respectively towards 'loss of future amenities' and 'future
medical expenses', which are kept intact.
21. Thus, the appellant is entitled to the following
compensation:
Sl.No. Compensation under Amount in
different Heads Rs.
1. Loss of income due 1,88,760/-
disability.
2. Pain and suffering 40,000/-
3. Medical expenses 1,66,223/-
4. Food and nourishment etc., 25,000/-
charges
5. Loss of income during laid 33,000/-
up period
6. Loss of amenities 30,000/-
7. Future medical expenses 30,000/-
Total ` 5,12,983/-
22. Insofar as liability is concerned, the Tribunal
has fixed liability on the respondent No.1/owner of the
vehicle due to violation of the terms and conditions of the
insurance policy. Learned counsel for the appellant though
not raised any grounds in the appeal but orally raised
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grounds with the permission of this Court for fastening the
liability on the respondent No.2.
23. On the other hand, learned counsel for the
respondent No.2, supported the Division Bench of this
Court in the case of Smt.Adilakshmammama and
others vs Sri.Raju.B and another5 stated that the Court
cannot fasten the liability on the insurer on pay and
recover principle which is available in SWARN SINGH
AND OTHERS6 case of the Hon'ble Supreme Court.
24. However, learned counsel for the appellant
relied upon judgment of the Full Bench of this Court in the
case of New India Assurance Co. LTD., vs Yallavva
and others7 wherein, any violation of the conditions of
the policy, the liberty taken by the Insurance Company, if
they succeeded, shall be refund. But in view of the Section
149(4) of the Act, when policy was in force, even if there
is a breach of the terms of the insurance policy, the
MFA No.3297 OF 2019
2004(3) SCC 297
AIR ONLINE 2020 KAR 986
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insurer is bound to pay compensation amount and recover
the same from the owner of the offending vehicle. The Full
Bench of this Court has held that the liability of the
Insurance Company cannot be fully absolved and they
have to satisfy the amount and recover the same from the
owner of the vehicle.
25. In view of the judgment of the Apex Court in
the case of Pappu and ors. vs. Vinod Kumar Lamba
and Anr and New India Assurance Co. LTD., vs
Yallavva and others (stated supra), the liability should
be fastened on the Insurance Company and in turn,
recover the same from the owner of the vehicle. As per
the charge sheet and evidence on record, the driver of the
offending vehicle does not have valid driving licence at the
time of the accident.
26. In view of the above decisions, the Insurance
Company is directed to pay the compensation amount with
liberty to recover the same from the owner of the
offending vehicle.
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27. Accordingly, I pass the following order.
ORDER
i. The appeal is allowed in-part.
ii. The judgment and award dated
12.11.2019 passed in MVC No.1207/2018
by the II Addl. Senior Civil Judge and
Motor Accident Claims Tribunal at Hassan
is hereby modified.
iii. The claimant is entitled to total
compensation of `5,12,983/- as against
`4,63,663/- awarded by the Tribunal with
interest at the rate of 6% p.a.
iv. The Respondent No.2/Insurance Company
is directed to satisfy the award amount to
appellant in first instance and in turn,
recover the same from respondent
No.1/owner of vehicle.
v. The Respondent No.2/Insurance Company
is directed to deposit the compensation
amount along with interest at 6% p.a. on
the enhanced compensation from the date
of filing of the claim petition till the date of
realization within a period of 60 days from
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the date of receipt of copy of this
judgment.
vi. The apportionment, deposit and release of
amount shall be made in terms of the
award of the Tribunal.
vii. Registry is directed to return the Trial
Court records to the Tribunal along with
certified copy of the order passed by this
Court forthwith without any delay.
Sd/-
JUDGE
ASN
