Allowed

The Claim Manager v. Sri Mallaiah

Karnataka HC28 Jun 2021MFA/5383/2015

Case brief

AI extract

What is this about?

The High Court allowed the claimant's appeal to enhance compensation for injuries sustained in a motor vehicle accident, raising the award from Rs. 2,48,885 to Rs. 3,50,965 based on revised disability and loss calculations. The court dismissed the insurance company's appeal to deny liability, finding documentary evidence proved the driver was not the insured owner, negating the licence defect defe

What did the court decide?

The impugned award is modified to grant compensation of Rs. 3,50,965/- plus interest at 6% p.a. The insurance company is directed to pay within six weeks. The insurer's appeal is dismissed.

The Claim Manager Vs Sri Mallaiah — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.4700/2015 (MV) C/W. M.F.A.NO.5383/2015 (MV)

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IN M.F.A.NO.4700/2015:

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BETWEEN:

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SRI MALLAIAH, S/O MUNIRANGAIAH, AGED ABOUT 53 YEARS, R/AT NO.48, KOLURU SHED, GOPALANAGARA, RAMOHALLI POST, THAVAREKERE HOBLI, BENGALURU SOUTH TALUK, BENGALURU-562 130. … APPELLANT

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(BY SRI CHANDRASHEKAR SWAMY K.B., ADVOCATE)

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AND:

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AYYAPPA R., S/O RAMACHANDRA, AGED ABOUT 45 YEARS NO.39/2O, 13^TH "A" MAIN ROAD, 18^TH CROSS, MALLESHWARAM, BENGALURU-560 055.

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SHRIRAM GENERAL INSURANCE COMPANY LIMITED, NO.302, 3^RD FLOOR, S &S CORNER BUILDING, PLOT NO.48, HOSPITAL ROAD, OPP: BORING AND LADY CURZON HOSPITAL,

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SHIVAJINAGAR, BENGLAURU-560 001. … RESPONDENTS

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(BY SRI RAJANNA, ADVOCATE FOR R-1; SRI O. MAHESH, ADVOCATE FOR R-2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.03.2015 PASSED IN MVC NO.2485/2013 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.5383/2015:

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BETWEEN:

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THE CLAIM MANAGER, SHRIRAM GENERAL INSURANCE COMPANY LIMITED, NO.302, 3^RD FLOOR, S & S CORNER BUILDING, PLOT NO.48, HOSPITAL ROAD, OPP: BOWRING AND LADY CURZON HOSPITAL, SHIVAJINAGAR, BENGLAURU-560 001.

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BY SHRIRAM GENERAL INSURANCE CO. LTD., 5/4, 3^RD CROSS, S.V.ARCADE, BELAKANAHALLI MAIN ROAD, OPP: BANNERAGHATTA MAIN ROAD, IIMB POST, BENGALURU-560 076. BY ITS MANAGER. … APPELLANT

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(BY SRI O. MAHESH, ADVOCATE)

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AND:

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SRI MALLAIAH, AGED ABOUT 53 YEARS, S/O MUNIRANGAIAH,

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R/AT NO.48, KOLURU SHED, GOPALANAGARA, RAMOHALLI POST, THAVAREKERE HOBLI, BENGALURU SOUTH TALUK, BENGALURU-562 123.

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AYYAPPA R., AGE: MAJOR S/O RAMACHANDRA, NO.39/2O, 13^TH ‘A’ MAIN ROAD, 18^TH CROSS, MALLESHWARAM, BENGALURU-560 055. … RESPONDENTS

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(BY SRI CHANDRASHEKAR SWAMY K.B., ADVOCATE FOR R-1; SRI RAJANNA, ADVOCATE FOR R-2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.03.2015 PASSED IN MVC NO.2485/2013 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, AWARDING A COMPENSATION OF Rs.2,48,885/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.

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THESE MFAs’ HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.06.2021 THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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J U D G M E N T

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These two appeals are filed by the claimant and the Insurance Company respectively questioning the quantum and liability challenging the judgment and award dated 04.03.2015 passed in M.V.C.No.2485/2013 on the file of the IX Additional Small Causes and Additional MACT, Bengaluru (‘the Tribunal’ for

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short).

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The parties are referred to as per their original rankings before the Tribunal to avoid the confusion and for the convenience of the Court.

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The factual matrix of the case is that on 06.04.2013

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at about 8.00 a.m., the claimant was proceeding from his village in TVS XL Super HD bearing No.KA-41-W-1871 as a pillion rider and the said vehicle was driven by his son-in-law Revanna. When the said vehicle reached Kanminke Bus stand, at that time, the Eicher vehicle bearing No.KA-04-B-3467 driven by its driver in a rash and negligent manner hit the vehicle in which the claimant was proceeding from behind. As a result, he sustained grievous injuries. Immediately, he was shifted to Rajarajeshwari Hospital and later he was shifted to H.K. Hospital for further treatment wherein he took treatment as an inpatient from 06.04.2013 to 14.04.2013 for a period of nine days and during the course of treatment, x-rays were taken which reveals fracture of open comminuted fracture of right tibia and right malleculur fracture and he was subjected to surgery and spent nearly Rs.1,50,000/- for treatment. It is the case of the claimant that he was working as a mason under the contractor

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and earning Rs.18,000/- per month and due to the disability, he is not in a position to do any work.

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In pursuance of the claim petition, notices were issued against the respondents. Respondent Nos.1 and 2 were represented through their counsel. The owner filed the written statement denying the negligence and took the defence that in collusion, the said vehicle has been implicated and the claimant is not at all entitled for any compensation. The Insurance Company in the written statement contended that the liability is subject to having valid and effective driving licence as on the date of the accident.

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The claimant in order to substantiate his claim examined himself as P.W.1 and got marked the documents at Exs.P.1 to 18 and also relied upon the evidence of P.Ws.2 to 5. P.W.2 has been examined with regard to he was working with him. P.W.3 and P.W.4 are the doctors and P.W.5 is the Investigating Officer, who conducted the investigation. The Insurance Company also examined three witnesses including the driver who has been arraigned as accused and also examined other witness who claims he was riding the vehicle at the time of

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the accident and the Insurance Company official as R.W.3 and got marked the documents at Exs.R1 to 10. The Tribunal after considering both oral and documentary evidence placed on record, allowed the claim petition in part granting compensation of Rs.2,48,885/- with 6% interest and fastened the liability on the Insurance Company. Hence, these two appeals are filed by the claimant and the Insurance Company.

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The claimant in the appeal would contend that he was an inpatient for a period of nine days and suffered two fractures and was earning Rs.18,000/- per month. The Tribunal committed an error in taking the disability of 10% even though the doctor P.W.4 deposed 37.9% disability to particular limb and 19% to whole body. The Tribunal ought to have considered the disability of 100% and he is not in a position to do work as he was doing earlier. The Tribunal committed an error in allowing 6% interest. Hence, it requires interference of this Court.

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Per contra, the learned counsel for the Insurance Company in his arguments vehemently contend that the Tribunal has committed an error in fastening the liability on the Insurance Company. The main contention urged by the Insurance

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Company is that the claim petition is filed only with an intention to make wrongful gain. The Tribunal committed an error in saddling the liability on the insurer when it was specifically pleaded and proved that the insured who was driving the insured vehicle had no valid and effective driving licence for a four wheeler much less for insured transport vehicle and admittedly had driving licence only of two wheeler and further failed to notice and appreciate that in order to make insurer liable, one Sharanappa Huded R.W.2 was roped in to plead guilty and pay fine though Mr. Ayyappa insured was charge-sheeted by the jurisdictional police. The Insurance Company also examined Sharanappa Huded as R.W.2 and the charge-sheet was not corrected that he was driving the vehicle and an attempt was made to defraud the insurer. Hence, it requires interference of this Court.

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Having heard the arguments of the learned counsel

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for the appellant in both the appeals, the points that arise for the consideration of this Court are:

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(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation?

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(ii) Whether the Tribunal has committed an error in saddling the liability on the Insurance Company?

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(iii) What order?

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Point No.(i):

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The main contention of the learned counsel for the claimant is that the accident was taken place in 2013 and he was

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an inpatient for a period of nine days and he has suffered two fractures – fracture of open comminuted fracture of right tibia and right malleculur fracture and he was subjected to surgery. There is no dispute insofar as the treatment is concerned. The accident was taken place in the year 2013 and the Tribunal has taken the income of Rs.6,000/- per month. In the absence of any documentary proof with regard to income, the Tribunal ought to have taken the notional income of Rs.8,000/- per month. The Tribunal also considered that no material was found with regard to his work. Though P.W.2 was examined with regard to prove his employment, no document has been placed with regard to his income. The Tribunal committed an error in taking the income of Rs.6,000/- per month and ought to have taken Rs.8,000/- per month in the absence of documentary

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proof. The Tribunal assessed the disability of 10% and the fact that he has sustained two fractures is not in dispute and the doctor assessed the disability of 37.9% to particular limb. It is important to note that the doctor who assessed the disability of 19% to the whole body is not the treated doctor and he only assessed the disability. The Tribunal ought to have considered 1/3^rd of the disability instead of 50% even though disputed the evidence of P.W.4 doctor. If 1/3^rd of the disability is taken, it comes to 12.6% and the same can be rounded off to 13%.

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Having considered the compensation awarded by the Tribunal, the Tribunal has committed an error in awarding the compensation of Rs.25,000/- under the head pain and suffering. Having taken note of two fractures, it is appropriate to award an amount of Rs.40,000/- under the head pain and suffering.

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The Tribunal awarded an amount of Rs.10,000/under the head loss of amenities. The claimant was aged about 52 years as on the date of accident according to the hospital records and he has to lead rest of his life with disability of 13%, hence it is appropriate to award an amount of Rs.25,000/- as against Rs.10,000/- under the head loss of amenities.

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The Tribunal has taken the loss of income during laid

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up period for three months taking the income as Rs.6,000/- per month. Having considered the two fractures, it requires four months for uniting and for rest. Taking the income of Rs.8,000/per month and laid up period as four months, the loss of income during laid up period comes to Rs.32,000/- (Rs.8,000/- x 4) as against Rs.18,000/-.

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The Tribunal awarded an amount of Rs.81,685/under the head medical expenses based on the records. Apart from that, the Tribunal awarded an amount of Rs.20,000/- under the head future medical expenses and an amount of Rs.15,000/under other conventional, heads including conveyance, attendant charges, food, nourishment and diet charges. Hence, I do not find any error committed in awarding compensation under all these heads.

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The Tribunal awarded an amount of Rs.79,200/under the head loss of future income. Now this Court has assessed the disability of 13% and having taken the income of Rs.8,000/- per month and the relevant multiplier of ‘11’ and disability of 13%, the loss of future income comes to

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Rs.1,37,280/- (Rs.8,000/- x 12 x 11 x 13%) as against Rs.79,200/-.

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In all, the claimant is entitled for a compensation of Rs.3,50,965/- as against Rs.2,48,885/-. Hence, I answer point No.(i) as affirmative.

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Point (ii):

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The main contention of the Insurance Company is that the Tribunal committed an error in saddling the liability on the Insurance Company inspite of the specific defence taken that the driver was not having the driving licence. The Insurance Company relied upon the evidence of P.W.5 and R.W.1 to R.W.3. On perusal of the evidence of P.W.5 Investigating Officer who has been examined by the claimant, in his evidence he says that he has filed the charge-sheet against one Ayyappa R.W.1. He also says that after the accident he arrested R.W.2 Sharanappa Huded, who was the driver of the offending vehicle. He had to file a charge-sheet in the said crime number as against Sharanappa Huded. By mistake he arraigned the owner R.W.1 as accused. But he could not make the correction as the

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accused had already pleaded guilty before the concerned Criminal Court.

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In the cross-examination, he admits that on

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08.04.2013 he took the bond from R.W.2 and released him. He also says that the charge-sheet was filed on 17.05.2013. He also admits that on 07.04.2013 he had issued notice under Section 133 of the MV Act to the owner of the offending vehicle. In reply to the said notice, the owner of the vehicle had produced the documents relating to the vehicle on 08.04.2013. He had not collected the driving licence of R.W.1. He has not enquired during the course of investigation whether Ayyappa had driving licence or not and also he has not mentioned in the charge-sheet that whether the said driver Ayyappa was having driving licence at the time of accident or not. When the driver of the offending vehicle was not having driving licence at the time of the accident, he ought to have filed the charge-sheet as against him for the offence punishable under Section 3 of the MV Act. He also says that the owner of the offending vehicle has mentioned in his reply that at the time of accident, Sharanappa Huded was the driver of the offending vehicle. He has verified the said reply before filing the charge-sheet. He admits that as

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per Exs.R5 and 6 Ayyappa pleaded guilty in the criminal case on 24.07.2013.

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R.W.1 is the owner and in his evidence he says that Sharanappa Huded was driving the vehicle on the date of the accident and he is the registered and absolute owner of the vehicle. He also says that the police have granted bail in favour of Sharanappa Huded. The police have committed an error in arraigning him as an accused while filing the charge-sheet. In the cross-examination, he admits that the accident was taken place on 06.04.2013. The petitioner’s counsel suggested that the driver Sharanappa Huded drove the vehicle in rash and negligent manner and the same was denied. He also says that Sharanappa Huded pleaded guilty in the Criminal Court admitting the said accident. The Insurance Company in the cross-examination got elicited from R.W.1 that he has no hurdle to produce the driving licence and he has not given written statement before the police stating that as on the date of the accident Sharanappa Huded was driving the vehicle and not him. He admits that he has not challenged the charge-sheet filed by the concerned police as against him.

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The driver is examined as R.W.2 and he says that R.W.1 was the owner of the vehicle and he was driving the vehicle on the particular day. He says that after filing the charge-sheet, he himself has signed the vakalath and pleaded guilty before the Criminal Court. He was subjected to crossexamination. In the cross-examination, the learned counsel for the petitioner got elicited that he was working as driver under respondent No.1 and he has paid the fine in respect of the said accident. In the cross-examination by the Insurance Company, it is elicited that he has not received any summons from the Criminal Court and he was not the accused in the criminal case. Respondent No.1 has paid the fine of Rs.2,400/- in the said case.

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The Insurance Company examined R.W.3 and in his

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evidence he contended that there was violation of terms and conditions of the policy. As per the charge-sheet, one Ayyappa was the driver of the offending vehicle at the time of the accident and he was having driving licence to drive two wheeler and not four wheeler. He was subjected to cross-examination by the learned counsel for the petitioner. In the cross-examination, he admits that according to the police records, at the time of the accident, the owner of the said offending vehicle was driving the

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said offending vehicle. It is suggested that the owner was not driving the said offending vehicle and Sharanappa Huded put his signature on Ex.R7 for his arrest and release in the said criminal case and the same was denied. It is suggested that Sharanappa Huded pleaded guilty before the Court and the same was denied. He also admits that they have not challenged the final order passed in the criminal case. He volunteers that the said criminal case is registered as against the owner of the offending vehicle and the said owner had pleaded guilty in the said criminal case.

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Having considered both oral and documentary evidence placed on record, it is not in dispute that the accident was taken place on 06.04.2013. It is the evidence of the Investigating Officer that he released the driver Sharanappa Huded on 08.04.2013 by taking the bond, but while filing the charge-sheet on 17.05.2013 he filed charge-sheet by mistake against one Ayyappa. It is also his case that on 08.04.2013, the owner of the said vehicle gave the reply under Section 133 of the MV Act stating that Sharanappa Huded was the driver. He claims that while filing the charge-sheet by mistake the name of R.W.1 was mentioned.

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This Court has to look into the documentary

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evidence available on record apart from oral evidence. On perusal of the documentary evidence, particularly Ex.R.1 FIR, the case has been registered against the driver of the vehicle bearing No.KA-04-B-3467 and not mentioned the name of the driver and the charge-sheet was filed against Ayyappa R.W.1. On perusal of the records, particularly Ex.R.3, spot panchanama was conducted on the date of the accident i.e., on 06.04.2013. Ex.R.4 IMV report shows with regard to damages caused to both the vehicles. Ex.R.5 discloses that case was numbered as C.C.No.4519/2013 and Ayyappa was arraigned as accused in terms of the charge-sheet and fine amount was also paid to the tune of Rs.2,400/-. It has to be noted that the order sheet dated 24.07.2013 discloses that advocate for accused filed the advance application under Section 309 read with Section 253 of Cr.P.C. and vakalath and thereafter file was received. Ex.R.6 discloses the accused name as Ayyappa R.W.1. Ex.R.7 discloses that R.W.2 Sharanappa Huded had executed bail bond on 08.04.2013 wherein it is mentioned that he was the driver of the vehicle bearing No.KA-04-B-3467 and R.W.1 stood as surety. Ex.R.8 is the vakalath filed on 23.07.2013. On perusal of Ex.R.8

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vakalath, the same is signed by R.W.2 Sharanappa Huded. Having perused Ex.R.8 placed before the Tribunal, it is clear that vakalath is not signed by R.W.1 Ayyappa though his name is mentioned in the vakalath and the same is signed by R.W.2 Sharanappa Huded.

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Ex.R.9 is the driving licence of R.W.2 Sharanappa Huded. It is important to note that though R.W.2 in the crossexamination admits that R.W.1 Ayyappa pleaded guilty, but on perusal of the vakalath, it is clear that R.W.2 gave the power to the counsel in C.C.No.4519/2013 to plead guilty. It is important to note that in the cross-examination, R.W.1 categorically says that R.W.2 pleaded guilty before the Magistrate Court. In the cross-examination, he admits that the accident was taken place on 06.04.2013 and he categorically says that criminal case was registered against R.W.2 Sharanappa Huded and he admitted the guilt in the Criminal Court. No doubt, he admits that he was having driving licence to ride two wheeler only, but in the crossexamination of R.W.1, nothing is elicited that he only pleaded guilty. The answer elicited is that he has not challenged the charge-sheet filed by the concerned police against him. P.W.5 Investigating Officer in the evidence categorically says that by

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mistake while filing the charge-sheet, the name of R.W.1 Ayyappa was mentioned. In the cross-examination of P.W.5, it is elicited that he took the bond from R.W.2 on 08.04.2013 i.e., within two days of the accident and R.W.1 stood as surety. The document Ex.R.7 also confirms the same that he was arrested and released taking the bond from Sharanappa Huded and hence the contention of the learned counsel appearing for the Insurance Company cannot be accepted.

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Having perused Ex.R7, it is clear that the driver was released on 08.04.2013 and the said document is corroborative to the evidence of P.W.5. The claimant has explained the mistake which was occurred in filing the charge-sheet by examining P.W.5 Investigating Officer. The Insurance Company also examined three witnesses and nothing is elicited in the cross-examination of R.W.1 to come to a conclusion that he had pleaded guilty and the documentary evidence discloses that R.W.2 pleaded guilty before the Court and he only engaged the counsel for pleading guilty by executing vakalath. The Court has to look into the documentary evidence. Mere filing of the charge-sheet against R.W.1 is not a substantiate piece of evidence. Having considered Ex.R.7 bond and Ex.R.8 vakalath,

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it is clear that R.W.2 only gave the power to the counsel and also executed the bond before the police on 08.04.2013. No doubt, there was a mistake on the part of the Investigating Officer in filing the charge-sheet against R.W.1 and the same has been explained by examining P.W.5 by the claimant. The Court has to rely upon the documentary evidence instead of oral evidence. The learned counsel for the Insurance Company contended that R.W.1 pleaded guilty and records discloses that R.W.1 has not pleaded guilty and R.W.2 gave power in favour of counsel to plead guilty before the Tribunal. Hence, I do not find any force in the contention of the Insurance Company to come to other conclusion holding that R.W.1 was the driver at the time of the accident and due to the mistake on part of the Investigating Officer, the claimant who is the third party cannot be penalized. Hence, I do not find any merit in the appeal filed by the Insurance Company. Hence, I answer point No.(ii) as negative.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) M.F.A.No.4700/2015 filed by the claimant is allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 04.03.2015 passed in M.V.C.No.2485/2013 is modified granting compensation of Rs.3,50,965/- as against Rs.2,48,885/- with interest at 6% per annum from the date of petition till deposit.

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(iii) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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(iv) M.F.A.No.5383/2015 filed by the Insurance Company is dismissed.

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(v) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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The Claim Manager v. Sri Mallaiah

Case brief

What is this about?

What did the court decide?

The Claim Manager v. Sri Mallaiah

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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