Partly allowed

United India Insurance Co., Ltd., v. Mallikarjun Irappa Karimallappanavar

Karnataka HC17 Oct 2019MFA/103163/2014

Case brief

AI extract

What is this about?

The High Court dismissed the insurer's appeal against the Motor Accident Claims Tribunal's award. While upholding liability, the Court modified the award to enhance the compensation amount for pain, suffering, and loss of amenities from Rs.20,000 to Rs.50,000. The total compensation of Rs.2,73,000 was ordered to be deposited by the insurer.

What did the court decide?

The judgment and award of the Tribunal was modified; total compensation enhanced to Rs.2,73,000 with interest. The insurer was directed to deposit the amount within six weeks.

United India Insurance Co., Ltd., Vs Mallikarjun… — Consumer Protection | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF OCTOBER, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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MFA NO.103163 OF 2014 (MV/I)

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BETWEEN

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UNITED INDIA INSURANCE CO., LTD., HAVING ITS OFFICE AT MARUTI GALLI, BELGAUM, REPRESENTED BY ITS THE ASSISTANT MANAGER.

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... APPELLANT

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(BY SMT. PREETI SHASHANK, ADV.)

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AND

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MALLIKARJUN IRAPPA KARIMALLAPPANAVAR, AGED ABOUT 42 YEARS, OCC: AGRICULTURE AND COOLIE (NOW NIL) SINCE MENTALLY AND PHYSICALLY DISABLED REPRESENTED BY HIS NEXT FRIEND SHIVAKKA MALLIKARJUN KARIMALLAPPANAVAR, AGED ABOUT 37 YEARS, OCC: HOUSEHOLD WORK, R/O: SIDNAL, TQ: RAMDURG, DIST: BELGAUM.

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KHADIRBADASHA HAZARATHSAB ATTAR, AGE: MAJOR, OCC: BUSINESS, R/O: HULKUND, TQ: RAMDURG, DIST: BELGAUM ... RESPONDENTS

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(BY SRI.GURUKUMAR V.A., ADV. FOR R1; SUBHASH B SANKAD, ADV. FOR R2)

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THIS MFA IS FILED U/S.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT & AWARD DATED:10.07.2014, PASSED IN MVC.NO.1080/2012, ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE & MEMBER ADDL. MACT., BELGAUM, AWARDING COMPENSATION OF Rs.2,43,000/WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF THE PETITION TILL REALIZATION.

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

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JUDGMENT

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This appeal is filed by the insurance company challenging the judgment and award passed by I Addl. Senior Civil Judge & Addl. MACT, Belgaum in MVC.No.1080/2012, whereby the tribunal has granted compensation of Rs.2,43,000/- with interest at 6% per annum.

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Brief facts of the case are that on 09.11.2011 claimant was proceeding in a tempo trax bearing registration No.KA-24/4212 towards K.Chandaragi, the driver of the tempo trax was driving the vehicle in a very high speed, in a rash and negligent manner, when the

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vehicle came near the spot of accident i.e. near Nayak bridge on K.Chandaragi-Sidnal road, due to rash and negligent driving of the driver of tempo trax, claimant fell down and caused accident, as a result of which, the claimant sustained injuries. Immediately after the accident he was shifted to Government Hospital, Yaragatti and taken first aid treatment. Thereafter, he was shifted to Lakeview Hospital, Belagum, wherein he was admitted as inpatient from 09.11.2011 to 16.11.2011 and he was undergone surgery. After recovering from the injuries he has filed a claim petition in MVC.No.1080/2012.

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To establish his claim, the claimant got examined three witnesses as PWs.1 to 3 and got marked 20 documents as Exs.P.1 to P.20. Per contra , the respondent insurance company got marked three documents as Exs.R.1 to 3 and not produced any oral evidence. The tribunal after hearing both the parties, passed the judgment, awarding compensation of

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Rs.2,43,000/- with interest at 6% p.a. from the date of petition till its realization. Being aggrieved by the same, insurance company has filed this appeal.

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Smt. Preethi Shashank, learned counsel appearing for the insurance company contended that the claimant

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was traveling in a tempo trax bearing registration No.KA.24/4212. The driver cum owner of the vehicle was driving the transport vehicle, but he was having driving licence only to drive Light Motor Vehicle (NT), since there is a violated of policy conditions, the insurance company is not liable to pay compensation. Hence, the tribunal is not justified in fastening the liability on the insurance company. Hence, she sought for allowing the appeal.

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Per contra, Sri.Gurukumar V.A., learned counsel for claimant contended that Hon’ble Apex Court in the case of Mukund Dewangan V. Oriental Insurance Company Limited reported in AIR 2017 Supreme Court 3668 has held that the licence to drive LMV includes licence to drive Non Transport Vehicle (NT). He

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further contended that due to the accident, the claimant has suffered grievous injury and has undergone two surgeries, and he was inpatient for a period of 8 days. The tribunal is not justified in granting compensation of Rs.10,000/- under the category of pain and suffering and Rs.10,000/- for loss of amenities. Hence, he sought for enhancement of compensation.

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Heard the learned counsel for the parties and perused the records.

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It is not in dispute that the accident occurred on 09.11.2011 due to rash and negligent driving of the driver cum owner of Tempo Trax bearing registration No.KA.24/4212. It is also not in dispute that driver cum owner of the tempo trax was having driving licence to drive Light Motor Vehicle. As on the date of the accident, he was not having driving licence to drive Light Motor Vehicle (NT). The Hon’ble Apex Court in the case of Mukund Dewangan stated Supra has specifically held that the driver having valid and effective driving

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licence to drive Light Motor Vehicle (NT) need not obtain a special endorsement for driving LMV Transport vehicle or passenger vehicle. Admittedly, in the present case, the vehicle involved is a Tempo Trax, which falls under the category of Light Motor Vehicle and therefore, there is no breach of policy conditions. In view of the law laid down by the Hon’ble Apex Court in the above said judgment, the tribunal has rightly fastened the liability on the insurance company. Hence, the appeal filed by the insurance company is liable to be dismissed.

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Learned counsel for the claimant has contended that tribunal has not granted just and appropriate compensation. The Hon’ble Apex Court in the case of Jitendra Khimshankar Trivedi and other V/s. Kasam Daud Kumbhar

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and others reported in (2015) SCC 237 , even though in the absence of appeal filed by the

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claimant, the High Court can award just and appropriate compensation. In the case on hand, the claimant has suffered injuries due to the accident occurred on 09.11.2011. He has suffered the following injuries:

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1. Head injury.

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Fracture of right zygomatic arch depressed.

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CLW multiple over right eyebrow, forehead & inguinal region, right knee joint and other injuries all over body.

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Claimant has examined Dr.N.Y.Joshi as PW.3, in his deposition, he has deposed that there is a disability to the extent of 75%. The tribunal has granted a meager compensation under the head of pain and suffering and Loss of amenities. Taking into consideration of deposition of Doctor, who has examined as PW.3 and wound certificates as EXs.P7 and 8, and disability certificate as Ex.P.15, this Court is of the opinion that the compensation under the head of pain and suffering has

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to be enhanced from Rs.10,000/- to Rs.30,000/- and Loss of amenities from Rs.10,000/- to Rs.20,000/-. Accordingly, the appeal filed by the insurance company is dismissed. The judgment and award passed by the tribunal is modified as under:

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1	pain and suffering	Rs.30,000/-
2	Loss of future income	Rs.1,62,000/-
3	Medical expenses & other incidental expenses	Rs.55,000/-
4	Loss of happiness and amenities	Rs.20,000/-
5	Loss of income during treatment	Rs.6,000/-
	Total	Rs.2,73,000/-