Partly allowed

Smt Mallamma v. Sri Krishnamurthy S B

Karnataka HC8 Jun 2022MFA/2279/2019

Case brief

AI extract

What is this about?

High Court modified the Motor Vehicles Act compensation orders in three appeals. It held insurer liable despite route deviation for third-party claims but reduced the award for one claimant based on disability assessment, enhancing it for another.

What did the court decide?

Insurance company directed to deposit enhanced compensation amount with interest at 6% p.a. to claimants.

Smt Mallamma Vs Sri Krishnamurthy S B — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF JUNE 2022

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BEFORE

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

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MFA No.2279 OF 2019 (MV) C/W MFA No.664 OF 2019(MV), MFA No.665 OF 2019(MV), MFA No.2280 OF 2019(MV)

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IN MFA No.2279/2019:

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BETWEEN:

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Smt.Mallamma, W/o Sri.Boregowda, Aged about 57 years, R/at Maruthipura, I.D.Halli Hobli, Madhugiri Taluk. … Appellant

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(By Sri.Sathisha.T., Advocate)

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AND:

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Sri.Krishnamurthy.S.B, S/o Boregowda, Aged about 42 years, “Shiva Nilaya” 10^th cross, Vidyanagara, Tumakuru – 572 101.

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The New India Assurance Company Ltd., Opp:Ramamandira,

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K.R.Road, Barline Road, K.R.Extension, General Kariyappa Road, Tumakuru. Now represented by The Regional Manager, The New India Assurance Company Ltd., Regional Manager, No.9, 2^nd floor, Mahalakshmi Chamber, M.G.Road, Bengaluru – 560 001. ... Respondents

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(By Sri.G.S.Naveen Kumar, Advocate for Sri.S.B.Mukkannappa, Advocate for R1; Sri.C.R.Ravishankar, Advocate for R2)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 30.07.2018 passed in MVC No.13/2017 on the file of the Additional Senior Civil Judge, MACT-XII, Madhugiri, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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IN MFA No.664/2019:

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BETWEEN:

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The New India Assurance Co., Ltd., Opp:Rama mandira, K.R.Road, Barline Road, K.R.Extension, General Kariyappa Road, Tumakur. Represented by Motor Third Party Claims Hub, Mahalakshmi Chambers, No.9, 2^nd floor, M.G.Road, Bengaluru – 560 001. Represented by its Manager. … Appellant (By Sri. C.R.Ravishankar., Advocate)

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AND:

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Smt.Mallamma, W/o Sri.Boregowda, Aged about 57 years, R/at Maruthipura, I.D.Halli Hobli, Madhugiri Taluk -572 112.

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Sri.Krishnamurthy.S.B, S/o Boregowda, Aged about 42 years, “Shiva Nilaya” 10^th cross, Vidyanagara, Tumakuru – 572 101. ... Respondents

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(By Sri.Sathisha.T., Advocate for R1; Sri.G.S.Naveen Kumar, Advocate for R2)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 30.07.2018 passed in MVC No.13/2017 on the file of the Additional Senior Civil Judge & MACT-XIII, Madhugiri, awarding compensation of Rs.7,65,290/-along with interest at 9% per annum from the date of petition till the date of deposit

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IN MFA No.665/2019:

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BETWEEN:

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The New India Assurance Co., Ltd., Opp:Rama mandira, K.R.Road, Barline Road, K.R.Extension, General Kariyappa Road, Tumakur.

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Represented by Motor Third Party Claims Hub, Mahalakshmi Chambers, No.9, 2^nd floor, M.G.Road,

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Bengaluru – 560 001. Represented by its Manager. … Appellant

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(By Sri.C.R.Ravishankar., Advocate)

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AND:

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Smt.Doddakka @ Doddathayamma, W/o Sri.Malleshappa, Aged about 37 years, R/at Maruthipura, I.D.Halli Hobli, Madhugiri Taluk -572 211.

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Sri.Krishnamurthy.S.B, S/o Boregowda, Aged about 42 years, “Shiva Nilaya” 10^th cross, Vidyanagara, Tumakuru – 572 101. ... Respondents

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(By Sri.Sathisha.T., Advocate for R1; Sri.G.S.Naveen Kumar, Advocate for Sri.Mukkannappa.S.B., Advocate for R2)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 30.07.2018 passed in MVC No.18/2017 on the file of the Additional Senior Civil Judge & MACT-XII, Madhugiri, awarding compensation of Rs.25,000/-along with interest at 9% per annum from the date of petition till the date of deposit.

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IN MFA No.2280/2019:

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BETWEEN:

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Smt.Doddakka @ Doddathayamma, W/o Sri.Malleshappa,

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Aged about 37 years, R/at Maruthipura, I.D.Halli Hobli, Madhugiri Taluk -572 211. … Appellant

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(By Sri.Sathisha.T., Advocate)

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AND:

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Sri.Krishnamurthy.S.B, S/o Boregowda, Aged about 42 years, “Shiva Nilaya” 10^th cross, Vidyanagara, Tumakuru – 572 101.

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The New India Assurance Company Ltd., Opp:Ramamandira, K.R.Road, Barline Road, K.R.Extension, General Kariyappa Road, Tumakuru. Now represented by The Regional Manager, The New India Assurance Company Ltd., Regional Manager, No.9, 2^nd floor, Mahalakshmi Chamber, M.G.Road, Bengaluru – 560 001. ... Respondents

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(By Sri.G.S.Naveen Kumar, Advocate for Sri.S.B.Mukkannappa, Advocate for R1; Sri.C.R.Ravishankar, Advocate for R2)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 30.07.2018 passed in MVC No.18/2017 on the file of the Additional Senior Civil Judge, MACT-XII, Madhugiri, partly allowing the claim

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petition for compensation and seeking enhancement of compensation.

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These appeals, coming on for Admission, this day, this Court, delivered the following:

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J U D G M E N T

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MFA Nos.2279/2019 and 2280/2019 have been

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filed by the claimants and MFA Nos.664/2019 and 665/2019 have been filed by the Insurance Company under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) being aggrieved by the judgment and decree dated 30.07.2018 passed by Additional Senior Civil Judge, MACT XII, Madhugiri in MVC Nos.13/2017 and 18/2017.

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Facts giving rise to the filing of the appeals briefly stated are that on 09.05.2015 the claimantMallamma in MVC No.13/2017 and claimant-Doddakka @ Doddathayamma in MVC No.18/2017 and others to attend the marriage of their relatives at Bengaluru had been to Bengaluru from their Village in

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Siddeswara Bus bearing Registration No.KA-01-D8538 and on 10.05.2015 left Bengaluru in the same Bus at afternoon to go their Village and when the Bus approached between Vaddarahalli-Siddapura Village, Kolala Hobli, Koratagere Taluk, at that time i.e. at 03.30 P.M., the driver of the said Bus drove the same with high speed and in a rash and negligent manner near the bridge where the road work was going on, the bus was jumped and wood seat was broken. As a result of the aforesaid accident, both claimants were sustained grievous injuries and were hospitalized.

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The claimants filed separate claim petitions under Section 166 of the Act seeking compensation. It was pleaded that they spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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4. On service of notice, the respondent Nos.1

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and 2 being the owner and the insurer of the offending vehicle have appeared through counsel and filed separate written statement in which the averments made in the petition were denied.

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It was pleaded by the owner that the petition itself is false and frivolous in the eye of law. It was further pleaded that as on the date of the accident, the driver of the offending vehicle had valid driving licence. The offending vehicle was insured with Insurance Company and the policy was in force as on the date of the accident. Hence, the Insurance Company is liable to pay the compensation.

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It was pleaded by the Insurance Company that the liability is subject to terms and conditions of the policy. It was further pleaded that the offending vehicle is a stage carriage vehicle and not a contract carriage vehicle. It was further pleaded that the place

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where the accident took place does not situate within the route permit issued to the said vehicle. Hence the owner has violated the permit conditions. Therefore, the Insurance Company is not to indemnify the owner. Hence, they sought for dismissal of the petitions.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant-Mallamma was examined as PW-1, claimant-Doddakka was examined as PW-2 and Dr.Prabhakar. V was examined as PW-3 and got exhibited documents namely Ex.P1 to Ex.P27. On behalf of the respondents, two witnesses were examined as RW-1 and RW-2 and got exhibited documents namely Ex.R1 to Ex.R7. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries.

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The Tribunal further held that the claimant - Mallamma in MVC No.13/2017 is entitled to a compensation of Rs.7,65,290/and claimant - Doddakka @ Doddathayamma in MVC No.18/2017 is entitled to a compensation of Rs.25,000/- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed both by the claimants as well as Insurance Company challenging the same judgment and award.

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Sri C. R. Ravi Shankar, learned counsel for the Insurance Company has raised the following contentions:

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Firstly, in respect of liability he has contended that as on the date of the accident, the offending vehicle was used as a contract carriage permit between Tumakuru to Nelamangala via Vaddarahalli,

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Urdigere. But the driver of the offending vehicle has deviated the permit route, he was proceeding on National Highway and met with an accident. He further contended that the Bus is a Stage Carriage Vehicle and not a Contract Carriage Vehicle. Since the

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Bus was used for contract carriage, the owner has violated the permit conditions. Hence, the Insurance Company is not liable to pay the compensation. In support of his contention, he has relied upon the judgment of a Division Bench of this Court in MFA No. 967/2017 disposed of on 22.04.2022 in the

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case of VENKATESH vs. IFFCO TOKIO GENERAL INSURANCE COMPANY LTD. and also relied upon

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the judgment of Apex Court in the case of RANI vs. NATIONAL INSURANCE COMPANY LTD. reported in (2018) 8 SCC 492.

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Secondly, in respect of quantum, in MVC No.13/2017, he has contended that at the time of the

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accident, the claimant-Mallamma was aged about 65 years, which is very clear from the medical records. Therefore, the Tribunal has rightly assessed the age of the claimant as 65 years. He further contended that the monthly income assessed by the Tribunal is just and reasonable. Even the disability assessed by the Tribunal and the future income due to disability assessed by the Tribunal are also just and reasonable. But the compensation awarded under the other heads are on higher side.

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Thirdly, in respect of quantum in MVC No.18/2017 considering the age and avocation of the claimant the overall compensation awarded by the Tribunal is on the higher side.

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Fourthly, in view of judgment of the Division Bench of this Court in the case of MS.JOYEETA BOSE

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AND OTHERS vs. VENKATESHAN.V AND OTHERS (MFA 5896/2018 and connected matters disposed of

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on 24.8.2020), the claimants are entitled for 6% interest but the Tribunal has granted 9% interest which is on the higher side. Hence he sought for allowing the appeals filed by the Insurance Company.

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Sri G. S. Naveen Kumar, learned counsel

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for Sri Mukkannappa S. B., learned counsel for the owner of the offending vehicle has contended in respect of liability that it is not in dispute that the offending vehicle has to go via Dabaspet, Urdigere to Tumakuru, but as the bridge was not in good condition, he went through National Highway by deviating the route permit. He has violated the permit condition but he has not violated any policy conditions as well as route permit, therefore, the Tribunal has rightly held that the Insurance Company is liable to pay the compensation.

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He further contended that the Tribunal after considering the judgment of Division Bench of this

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Court in the case of K.V.THIMMEGOWDA vs.

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KAMALAMMA reported in ILR 1991 KAR 4127 has held that the Insurance Company is liable to pay the compensation. He also relied upon the judgment of Hon’ble Apex Court in the case of IFCO TOKIO GENERAL INSURANCE COMPANY LTD. vs. VILLA AND OTHER REPORTED IN 2017 ACJ 282. Hence, he contended that the Insurance Company is liable to pay the compensation.

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In respect of quantum is concerned, he has contended that considering the injuries sustained by the claimant and considering the age and avocation of the claimants, the overall compensation awarded by the Tribunal is on higher side. Hence, he sought for dismissal of the appeals filed by the claimants as well as the Insurance Company.

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Sri Sathisha. T., learned counsel for the claimants has raised the following contentions:

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Firstly, in MVC No.13/2017 as on the date of the accident, the claimant was aged about 55 years. To prove the same, she has produced Aadhar Card as per Ex.P16. It is very clear from the said document that the year of birth is 1960. Therefore, as on the date of the accident, the claimant-Mallamma was aged about 55 years.

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Secondly, due to the accident, she has suffered grievous injuries. She has examined Dr. Prabhakar V as PW-3. He has deposed that the claimant in MVC No.13/2017 has suffered amputation of right leg below the knee and he has assessed the disability at 70% to right lower limb and 42.63% to the whole body and 58% disability to the left lower limb. The Tribunal has assessed the whole body disability at 40% which is on the lower side. In support of his contention, he has relied upon the judgment of this Court in MFA No.811/2015 disposed of on

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18.07.2019 in the case of RAJANNA @ RAJU vs. SRINIVASA AND OTHERS and MFA No.6429/2017 disposed of on 21.12.2021 in the case of NANJEGOWDA V. vs. KUMAR H.B. AND ANOTHER.

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Thirdly, even though the claimant claims that she was earning Rs.15,000/- per month by doing agriculture and milk vending, but the Tribunal has taken the notional income as merely as Rs.6,000/- per month.

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Fourthly, due to the accident, the claimant has sustained grievous injuries. She was inpatient in the hospital for period of 45 days. Even after discharge from the hospital, she was not in a position to discharge her regular work. She has suffered lot of pain during treatment. Considering the same, the compensation granted by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other heads are on the lower side.

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Fifthly, considering the injuries suffered by the claimant the compensation awarded by the Tribunal in MVC No.18/2017 is on the lower side. Hence, he sought for enhancement of compensation.

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Heard the learned counsel for the parties.

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Perused the judgment and award and the original records.

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It is not in dispute that the claimants have

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sustained injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.

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IN MVC No.13/2017:

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The claimant claims that she was earning

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Rs.15,000/- per month. She has not produced any documents to prove her income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal

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Services Authority. Since the accident has taken place in the year 2015, the notional income has to be taken at Rs.9,500/- p.m. As per wound certificate, the claimant has sustained cut lacerated wound right leg. PW-3, the doctor has stated in his evidence that the claimant has suffered disability of 70% to right lower limb and 42.63% to whole body and 58% to left lower limb. Her right leg below knee has been amputated. The Tribunal has assessed the whole body disability as 40%. Considering the evidence of the doctor and considering the amputation of right leg below knee, as per Schedule I of the Workmen’s Compensation Act, for amputation below knee, percentage of disability is considered as 50%. Accordingly, disability is assessed as 50%. The claimant has produced the Aadhar Card as per Ex.P16 wherein the year of birth is shown as 1960. Considering the same, as on the date of the accident

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she was aged about 55 years and multiplier

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applicable to her age group is ‘11’. Thus, the claimant is entitled for compensation of Rs.5,94,000/(Rs.9,0001211*50%) on account of 'loss of future income'.

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'Loss of income during laid-up period' has to be granted for three months, i.e., Rs.27,000/(Rs.9,000*3).

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Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	1,50,000	1,50,000
Medical expenses	1,88,090	1,88,090
Food, nourishment, conveyance and attendant charges	50,000	50,000

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Loss of income during	18,000	27,000
laid up period
Loss of amenities	1,00,000	1,00,000
Loss of future income	2,59,200	5,94,000
Total	7,65,290	11,09,090

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The claimant is entitled to a total compensation of Rs.11,09,090/- as against Rs.7,65,290/- awarded by the Tribunal.

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IN MVC No.18/2017:

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Considering the nature of injuries suffered by the claimant and considering the age and avocation, the overall compensation awarded by the Tribunal is just and reasonable.

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In view of the law laid down by a Division Bench of this Court in JOYEETA BOSE (supra) the enhanced compensation carries interest @ 6% p.a.

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Re.liability:

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It is not in dispute that as on the date of the accident the said bus was used for contract carriage, permit to run between Tumkur – Nelamangala via

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Dabaspet, Thyamagondlu, Gollahalli, railway gate. It is clear from the finding of the Tribunal that the driver of the bus has deviated the route and the accident occurred on Vaddrahalli – Urdigere road which is 65 kms. away from Nelamangala. Therefore, the driver of the bus has violated the permit condition. Since the driver of the bus has violated the policy condition, the Insurance Company is not liable to pay the compensation.

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Sri Ravishankar, learned counsel appearing for the Insurance Company has relied on a judgment of a Division Bench of this Court in MFA No.967/2017 disposed of on 22.04.2022 following the judgment of the Hon’ble Apex Court in the case of NATIONAL INSURANCE COMPANY LTD. Vs. CHELLA BHARATHAMMA & OTHERS reported in 2004 AIR SCW 5301 has held that by violating permit condition by deviating the permitted route, the Insurance

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Company is not liable to pay the compensation. Even

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the Hon’ble Apex Court in the case of RANI –VNATIONAL INSURANCE COMPANY LTD. reported in (2018) 8 SCC 492 has held that by violating the route permit the Insurance Company is not liable to pay the compensation. In respect of third parties is concerned, the Insurance Company has to pay the compensation at the first instance with liberty to recover the same from the owner of the offending vehicle.

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In view of the above, since the insured has violated the policy condition, the Insurance Company is not liable to pay the compensation. But in respect of third parties claim is concerned, Insurance Company has to pay the compensation amount along with interest with liberty to recover the same from the owner of the offending vehicle.

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In respect of the judgments relied upon by

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the learned counsel for the claimants in MFA No.811/2015 disposed of on 18.08.2019 wherein the facts of the case is that due to the amputating the claimant has lost job, therefore, the court has considered functional disability as 100%. In MFA No.4629/2017 relied upon by the learned counsel for the claimant disposed of on 21.12.2021, the claimant was a motor cab driver. Due to the accident he was unable to continue as a driver. Therefore, the court has considered functional disability of 100%. Hence, the facts of the above cases are not applicable to the case on hand.

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The owner of the offending vehicle has relied on the judgment of Punjab and Haryana High Court in the case of RELIANCE GENERAL INSURANCE CO. LTD. Vs. KARNAIL KAUR AND OTHERS reported in 2019 ACJ 635. In view of the judgment of the

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Hon’ble Apex Court as well as the Division Bench judgment of this Court, the judgment relied upon by the owner of the offending vehicle cannot be considered.

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Accordingly, the appeals are allowed in part.

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The judgment and award passed by the Tribunal is modified. The Insurance Company is directed to deposit the entire compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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The amount in deposit is ordered to be

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transferred to the Tribunal forthwith.

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Sd/JUDGE

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HA/Cm/-

Smt Mallamma v. Sri Krishnamurthy S B

Case brief

What is this about?

What did the court decide?

Smt Mallamma v. Sri Krishnamurthy S B

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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