Allowed

N. Thippeswamy v. C. Rajappa

Karnataka HC19 Oct 2022MFA/2378/2013

Case brief

AI extract

What is this about?

The High Court allowed Motor Accident Claims Appeals filing against a Tribunal award. The Court enhanced compensation to Rs. 5,80,000/- held liability rested on the Insurance Company due to commercial use, rectified disability percentage, eliminated contributory negligence against the claimant, and directed restitution.

What did the court decide?

Impugned award modified; compensation enhanced to Rs. 5,80,000/- to be paid by the Insurance Company with interest at 6% p.a., recoverable from the insured; contributory negligence set aside.

N. Thippeswamy Vs C. Rajappa — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF OCTOBER, 2022

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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.2378/2013 (MV-I)

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CONNECTED WITH

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M.F.A.NO.3397/2013 (MV)

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IN MFA NO.2378/2013

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BETWEEN

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N. THIPPESWAMY S/O NAGENDRAPPA AGE: 37 YEARS OWNER OF TRACTOR/TRAILER BEARING NO. KA-16/T-2181-2182 R/O INAHALLI VILLAGE CHITRADURGA TALUK & DISTRICT-577501

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...APPELLANT

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(BY SRI MAHESH R UPPIN, ADVOCATE)

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AND

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C. RAJAPPA S/O CHOWDAPPA AGE: 39 YEARS COOLIE WORK R/O CHENNAIAHNAHATTI VILLAGE CHITRADURGA TALUK & DISTRICT-577501

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THE BRANCH MANAGER THE ORIENTAL INSURANCE CO. LTD BRANCH OFFICE, SRI SHARADA COMPLEX 1^ST FLOOR, OPP. KSRTC BUS STAND P B ROAD, CHITRADURGA-577501

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... RESPONDENTS

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(BY SRI B M SIDDAPPA, ADVOCATE FOR R1; SRI A N KRISHNASWAMY, ADVOCATE FOR R2)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.01.2013 PASSED IN MVC NO.252/2011 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND MACT-V, CHITRADURGA AND ETC.

IN MFA NO.3397/2013

BETWEEN

SRI C RAJAPPA

S/O CHOWDAPPA AGED ABOUT 39 YEARS

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COOLI BY PROFESSION

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RESIDENT OF CHENNAIAHNAHATTI VILLAGE CHITRADURGA TALUK AND DISTRICT

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...APPELLANT

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(BY SRI B M SIDDAPPA, ADVOCATE)

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AND

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SRI N THIPPESWAMY S/O NAGENDRAPPA AGED ABOUT 37 YEARS

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OWNER OF TRACTOR TRAILER BEARING REG. NO.KA 16/T2181-2182 R/O INAHALLI VILLAGE CHITRADURGA TALUK & DISTRICT

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THE BRANCH MANGER THE ORIENTAL INSURANCE CO LTD SHARADA COMPLEX, 1^ST FLOOR OPP KSRTC BUS STAND P B ROAD, CHITRADURGA

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… RESPONDENTS

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(BY SRI N PRAVEEN KUMAR, ADVOCATE FOR R1; SRI A N KRISHNASWAMY, ADVOCATE FOR R2)

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THESE M.F.A.S COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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These appeals are filed by the claimant and the owner of the offending vehicle challenging the judgment and award dated 28.01.2013 passed in M.V.C.No.252/2011 on the file of the I Additional Senior Civil Judge and MACT-V, Chitradurga (‘the Tribunal’ for short).

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Heard the learned counsel appearing for the respective appellants and the learned counsel appearing for the respective respondents.

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The factual matrix of the case is that on 11.05.2011 at 7.45 a.m., the claimant and another were standing on the side of the road near Balaji Crusher, at that time the driver of the tractor trailer driven the same in a reverse manner and caused the accident, as a result, the claimant had sustained the injuries to both lower limbs as well as he has suffered fracture of left femur, right femur, left clavicle bones, ribs and he was an inpatient for a period of 27 days in the hospital. The claimant in order to substantiate his case, examined himself as PW1 and the

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doctor as PW2. The Tribunal after considering both oral and documentary evidence considered the disability of 20% and awarded compensation on different heads.

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It is the contention of the appellant/claimant counsel

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that the Tribunal has committed an error in taking income of Rs.4,500/- as it was the accident of the year 2011 and the notional income would be Rs.6,500/- and the disability assessed by the Tribunal also very meager and the counsel would submits

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that there is a malunited fractures. Hence, it requires interference of this Court.

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The counsel appearing for the owner in MFA 2378/2013 contended that Tribunal has committed an error in fastening the liability on the insured only on the ground that permit was taken for commercial purpose and the policy was taken for the agricultural purpose. Hence, the very approach of the Tribunal is erroneous.

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Per contra, the learned counsel appearing for the Insurance Company would vehemently contend that the vehicle permit was taken for commercial purpose and while taking the policy misrepresented and obtained the policy for agriculture and forest purpose and hence, there is a clear misrepresentation and fraudulent in obtained the policy for agricultural purpose instead of commercial purpose. The counsel also would submit that while taking the policy, the less premium would be collected for agricutural purpose and if it is commercial purpose the premium would be more, hence, the Insurance Company is not liable to pay the compensation.

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Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, the points that would arise for consideration are?

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(1) Whether the Tribunal has committed an error in

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fastening the liability on the owner instead of Insurance Company?

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

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(3) Whether the Tribunal has committed an error in

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taking the contributory negligence on the part of the claimant?

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(4) What order?

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Point No.1

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8. Having heard the learned counsel appearing for the

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respective parties and also on perusal of the material on record is not in dispute that permit was taken for the commercial purpose and while obtaining the policy, the policy was taken for agricultural purpose and hence there is a force in the contention of the counsel for the Insurance Company that the permit was

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taken for commercial purpose and policy was taken for

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agricutural purpose. However, the victim is a 3^rd party and he was at the spot where the jelly powder was loading to the tractor and when such being the case, when there is a permit is for a commercial purpose and policy is taken for agricultural purpose, and the victim is a 3^rd party, the Insurance Company has to pay the compensation and recover and the same from the insured. Accordingly, the Point No.1 is answered.

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Point No.2

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The quantum of compensation is concerned, the claimant has suffered type-3 compound fracture of shaft of middle one-third left femur and also he has sustained fracture of shaft upper one-third right femur, fracture of left clavicle bone and fracture of left 2^nd , 3^rd , 4^th and 5^th ribs on the left side and he was an inpatient for a period of 27 days and having taken note of the nature of injuries and the fractures, the compensation awarded on the head of pain and sufferings is just and reasonable and it does not requires any interference. However the Tribunal has taken the income of Rs.4,500/towards loss of income during laid up period and calculated future loss of income and having taken note of the nature of the

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injuries and also the evidence of the doctor, the Tribunal has considered the disability of 20% and when he had suffered fractures of left femur and right femur and also malunited fractures and no doubt, no disability in respect of left clavicle bone and also the ribs but the Tribunal has lost its sight in taking into note of the malunited fractures in respect of the left leg and only considered 20% of disability and hence, it requires to be enhanced to 25% disability instead of 20%. Now, taking the income of Rs.6,500/- as notional income, this Court has to recalculate the compensation on the head of future loss of income, hence, it comes to Rs.2,92,500/- (6,500 x 12 x 15 x 25%).

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The Tribunal has awarded an amount of Rs.65,000 /- on the head of medical expenses and the same is based on the documentary evidence hence, its does not requires any interference. The Tribunal has awarded an amount of Rs.10,000/- on the head of loss of amenities. The claimant was aged about 35 years at the time of the accident and he has to lead his rest of life with the said disability, hence, it is appropriate to award an amount of Rs.40,000/- on the head of loss of amenities. On the head of loss of earning during laid up

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period, the Tribunal has awarded only an amount of Rs.4,500/when the claimant had suffered fracture of both bones and lower limb and also the clavicle and ribs and it takes minimum 5 months to reunite the fracture taking rest and hence, it has to be enhanced by taking the income of Rs.6,500/-, it comes to Rs.32,500/- (6,500 x 5) as against Rs.4,500/-. The Tribunal has already awarded an amount of Rs.25,000- on the head of future medical expenses which does not requires any interference. However, the Tribunal has not awarded any compensation on the head of food and nourishment, conveyance and other incidental charges. Having considered the fact that the claimant was an inpatient for a period 27 days, it is appropriate to award an amount of Rs.25,000/- on the said head. In all, the claimant is entitled for compensation of Rs.5,80,000/as against Rs.3,66,500/-. Accordingly, point no.2 is answered as affirmative.

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Point No.3

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Admittedly, the accident was occurred in a place

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where the jelly power was loading and the injured was at the spot and when the vehicle i.e., tractor suddenly moved in a

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reverse manner, the Tribunal has committed an error in taking the contributory negligence on the part of the claimant on the ground that the claimant would have taken care of when loading of jelly powder was in process but the Tribunal has lost sight of the fact that suddenly, the tractor moved in a reverse manner and while taking the tractor in a reverse manner, it is the duty of the driver to take care but he has not done the same and unfortunately, the Tribunal has taken the contributory negligence on the part of the claimant. Hence, it requires interference. Accordingly, point no.3 is answered as affirmative.

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Point No.4

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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) The appeals are allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 28.01.2013 passed in M.V.C.No.252/2011 is modified directing the Insurance Company to pay the compensation of Rs.5,80,000/- as against Rs.3,66,500/- with

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interest at 6% per annum from the date of petition till deposit and recover the same from the insured.

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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) The contributory negligence fastened on the appellant/claimant is set aside.

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(v) Registry is directed to transmit the amount in deposit by the appellant in MFA No.2378/2013 to the Tribunal, forthwith.

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(vi) Registry is directed to send the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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SN

N. Thippeswamy v. C. Rajappa

Case brief

What is this about?

What did the court decide?

N. Thippeswamy v. C. Rajappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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