Dismissed

Sri. P. Naveen Kumar v. the Sriram General Insurance

Karnataka HC13 Oct 2022MFA/6533/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed two appeals filed under Section 173(1) of the MV Act. One appellant challenged liability and jurisdiction against their own insurer; the other sought compensation enhancement. The Court held the original award was just and proper, dismissing both appeals.

What did the court decide?

The judgment and award dated 11.02.2019 passed by the Tribunal in MVC No.948/2015 is confirmed.

Sri. P. Naveen Kumar Vs the Sriram General Insurance — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR

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MFA NO.4486/2019(MV-I) C/W MFA NO.6533/2019(MV-I)

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IN MFA NO.4486/2019:

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BETWEEN :

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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD. 4^TH FLOOR, GOLDEN HEIGHT BUILDING 59^TH CROSS, RAJAJI NAGAR BANGALORE-560 010 REP. BY ITS MANAGER

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... APPELLANT

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(BY SRI. H.N. KESHAVA PRASHANTH, ADVOCATE)

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AND:

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P. NAVEEN KUMAR

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S/O P. SEETARAMASHETTY @ SITARAMULU NOW AGED ABOUT 49 YEARS R/O NO.1/100, TALLAKERE VILLAGE GUMMAGATTA MANDAL ANATHAPUR DIST(AP) NOW RESIDING AT KOTITOPU TUMKURU

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N. SHIVAKUMAR S/O NANJUNDAPPA AGED ABOUT 44 YEARS R/O NO.9, HOSUR

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GOWRIBIDANUR TALUK CHIKKABALLAPURA DIST

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(OWNER OF LORRY REG NO.KA-54-1180)

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THE MANAGER SHRIRAM GENERAL INSURANCE CO. LTD. NO.G-3, MUNARCH CHURCH, 3^RD FLOOR,INFANTRY ROAD BANGALORE-560 001

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R. LOKESH S/O RAMAKRISHNAPPA AGED ABOUT 44 YEARS R/O HOSUR, GOWRIBIDANUR TALUK CHIKKABALLAPURA DIST (OWNER OF LORRY REG.NO.KA-40-9150)

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THE MANAGER ICICI LOMBARD GENERAL INSURANCE COMPANY LTD. NO.89, SVR COMPLEX 2^ND FLOOR, MADIVALA HOSUR MAIN ROAD BANGALORE-68

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... RESPONDENTS

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(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE FOR R1, SRI. O. MAHESH, ADVOCATE FOR R3, SRI. B. PRADEEP, ADVOCATE FOR R5, R2 AND R4 ARE SERVED)

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THIS APPEAL IS FILED UNDER SECTION UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.02.2019 PASSED IN MVC NO.948/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT-X, TUMAKURU, AWARDING COMPENSATION OF RS.4,80,114/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF ORDER.

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IN MFA NO.6533/2019:

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BETWEEN :

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SRI. P. NAVEEN KUMAR S/O P. SEETARAMASHETTY @ SITARAMULU AGED ABOUT 49 YEARS R/O NO.1/100, TALLAKERE VILLAGE GUMMAGATTA MANDAL ANATHAPUR DISTRICT(AP) NOW RESIDING AT KOTITOPU TUMKURU-572 102 ... APPELLANT

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(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)

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AND:

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THE SRIRAM GENERAL INSURANCE COMPANY LIMITED NO.G3, MUNARACH CHURCH 3^RD FLOOR, INFANTRY ROAD

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BENGALURU-560 001

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REPRESENTED BY ITS BRANCH MANAGER

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SRI. N. SHIVAKUMAR S/O NANJUNDAPPA AGED ABOUT 44 YEARS R/O NO.9, HOSUR GOWRIBIDANUR TALUK CHIKKABALLAPURA DISTRICT

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THE ICICI LOMBARD GENERAL INSURANCE CO. LTD. NO.89, SVR COMPLEX 2^ND FLOOR, MADIVALA HOSUR MAIN ROAD BANGALORE-560 068

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REPRESENTED BY ITS BRANCH MANAGER

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R. LOKESH S/O RAMAKRISHNAPPA

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AGED ABOUT 44 YEARS R/O NO.9, HOSUR, GOWRIBIDANUR TALUK CHIKKABALLAPURA DIST

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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD. 4^TH FLOOR, GOLDEN HEIGHT BUILDING 59^TH CROSS, RAJAJI NAGAR BANGALORE-560 010 REP. BY ITS BRANCH MANAGER

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... RESPONDENTS

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(BY SRI. O. MAHESH, ADVOCATE FOR R1, SRI. B. PRADEEP, ADVOCATE FOR R3, SRI. H.N. KESHAVA PRASHANTH, ADVOCATE FOR R5 NOTICE TO R2 AND R4 ARE D/W V/O DT:27-8-21)

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THIS APPEAL IS FILED UNDER SECTION UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.02.2019 PASSED IN MVC NO.948/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT-X, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These two appeals are filed under Section 173(1)

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of the Motor Vehicles Act, 1988 (‘MV Act’ for short), challenging the judgment and award dated 11.02.2019 passed by the Principal Senior Civil Judge and MACT-X, Tumakuru in MVC No.948/2015.

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MFA No.6533/2019 is filed by the claimant seeking enhancement, while MFA No.4486/2019 is filed by respondent No.5-Insurance company challenging the liability disputing the jurisdiction itself.

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For the sake of convenience, the parties

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herein are referred as per the ranks occupied by them before the Tribunal.

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The brief facts of the case are that the

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claimant/appellant was the owner of lorry bearing registration No.AP-02-W-8388. The said vehicle met with an accident on 22.08.2013 involving vehicles bearing registration No.KA-40-9150 and KA-54/1180.

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The vehicle was extensively damaged and the claimant/petitioner filed a claim petition under Section 166 of MV Act claiming compensation of Rs.15,00,000/- on account of damages to his vehicle.

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The said claim petition was contested by the respondents and respondent No.5 who is the

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insurer of the vehicle owned by the petitioner has disputed the liability on the ground that the petition under Section 166 of MV Act is not maintainable as the Provisions attract in respect of the bodily injuries or death in respect of third parties and petitioner/claimant cannot claim damages against his own insurer under Section 166 of MV Act and it is asserted that his remedy was to approach Consumer Forum. The other two insurance companies of other two vehicles are raised different issues and the Tribunal after assessing the oral as well as documentary evidence has allowed the claim petition by awarding a total compensation of Rs.4,80,114/with interest at the rate of 8% p.a. However, the Tribunal has fastened the liability on respondent No.5 the appellant in MFA No.4486/2019 to the extent of 40% while the other two insurance companies were fastened with the liability of 30% each.

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Being aggrieved by this award of

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compensation, the respondent No.5- Bajaj Allianz General Insurance company has filed MFA No.4486/2019 challenging the liability, while MFA No.6533/2019 is filed by the claimant seeking enhancement.

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Heard the arguments advanced by all the parties concerned and perused the records.

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Learned counsel for respondent No.5-Bajaj Allianz General Insurance company contends that he is disputing the liability and negligence as well as quantum. It is contended that MACT is for third party claims or damages and claimant cannot claim compensation against his own insurer as he does not fall within the purview of Section 165(1) of third party. It is also contended that the other two vehicles are third parties but not respondent No.5 and the remedy for claimant is to approach the Consumer Forum. He has also disputed the liability to the extent

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of 40% fastened on the driver of the said vehicle and has also raised other grounds.

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Per contra, learned counsel for respondent-

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claimant and other respondents as far as liability is concerned, support the judgment and award of the Tribunal. However, the learned counsel for the claimant asserts that the compensation awarded is on

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lower side. It is contended that the other claim petitions were also filed before the MACT, Bellary, wherein contributory negligence was already fixed and the claim was satisfied there and now it is not open to

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dispute the contributory negligence as fixed by the Tribunal. Hence, he would seek for dismissal of the appeal filed by the insurance company and sought for allowing his appeal.

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Having heard the arguments and perusing the records, there is no dispute of the fact that the vehicle of the petitioner was involved in the accident and infact three vehicles bearing registration Nos.AP-

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02-W-8388, KA-40-9150 and KA-54/1180 were

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involved in the accident. It is also important to note here that the claim petitions were also filed in MACT, Bellary and there the liability was fastened on all the three insurance companies at a ratio of 30:30:40 as held in the instant case. Admittedly, the said claim is satisfied. When the liability as fastened by MACT, Bellary is accepted and settled by the insurance companies, now again the respondent No.5 is not justified raising the dispute regarding 40% liability fastened on the basis of contributory negligence. This issue has been settled by settling the claim before MACT, Bellary and when the claim is already satisfied in other claim petitions arising out of the same accident, now it is not open to raise this issue once again.

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The main contention of the

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appellant/insurance company is that the claimant cannot file petition under Section 166 of MV Act in

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respect of damage to the vehicle against his own insurance company. He argues that it is open for him to approach the Consumer Forum. However, it is to be noted here that three vehicles are involved in the instant case. The Consumer Forum cannot fix the liability on two different vehicles in the absence of other insurance companies are being made parties and before Consumer Forum other insurance companies cannot be made parties. On the contrary, the Tribunal has observed that if the case is not only claiming damage against respondent No.5 alone who is the insurer of the damaged vehicle but it is in respect of other two vehicles and petitioner become third party in respect of other two insurance companies. Further the Tribunal has also observed that the liability on respondent Nos.2, 4 and 5 cannot be separated and it is joint. Hence, the Tribunal considered this aspect and as the liability is inseparable and the Consumer Forum cannot decide this issue, it has rightly entertained the petition.

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Under such circumstances, when the liability is joint and inseparable in respect of damage to the claimant’s vehicle in respect of respondent Nos.2 and 4, question of driving the claimant to Consumer Forum does not arise at all. Even apart from that if the petitioner approaches the Consumer Forum, entire liability is required to be paid by the respondent No.5 itself. But here before the Tribunal the liability was divided between respondent Nos.2, 4 and 5 to the extent of ration 30:30:40. In fact the respondent No.5 is benefited by this aspect as claimant did not approach the Consumer Forum. Under these circumstances the arguments advanced by the learned counsel for the petitioner in this regard are unsustainable. Hence, the appeal filed by the insurance company does not survive for consideration and needs to be rejected.

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As regards the enhancement, though the learned counsel for the petitioner contends that the compensation award was on meager side no material

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evidence is placed in this regard. It is argued that he was earning monthly Rs.50,000/- and the same was not considered and only Rs.25,000/- was awarded. But the petitioner admittedly has not produced any material documents to show his monthly income of Rs.50,000/from the vehicle. Under these circumstances, the Tribunal has taken the notional monthly loss at Rs.25,000/- and awarded Rs.75,000/for 3 months considering the extensive damage. Further the Tribunal on the basis of Ex.P10 has awarded damage to the extent of Rs.3,95,144/-.

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Learned counsel for respondent No.5 insurer would contend that the estimation was hardly Rs.2,25,000/-. However, the photographs at Ex.P9 clearly disclose that vehicle was damaged extensively. The estimation of assessment by Pw.2 as per Ex.P8 is for Rs.2,25,000/-. But that was only an estimation and actual repair bills were found in final bill as per Ex.P10. Further the Tribunal has awarded Rs.75,000/-

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under the loss of income for 3 months and considering the facts and circumstances, in my considered opinion the approach of the Tribunal is just and proper in this regard. Further towards towing charges and other incidental expenses Rs.10,000/- was awarded. Hence the total compensation of Rs.4,80,114/- awarded by the Tribunal is just and proper.

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Though the learned counsel for the insurance company has raised a issue regarding interest, considering the fact that it is a damage to the vehicle and the insurance company is unnecessarily dragging the proceedings without settling the claim even after coverage of insurance, question of interference with interest at the rate of 8% p.a. does not arise at all. Further the other insurance companies have already satisfied the claim and hence, now question of interference with the interest portion also which does not arise at all. Hence, both the appeals being devoid of any merits does not survive for

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consideration and both the appeals need to be dismissed. Accordingly, I proceed to pass the following:

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ORDER

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i. Both the appeals are dismissed .

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ii. The judgment and award dated 11.02.2019 passed by the Principal Senior Civil Judge and MACT-X, Tumakuru in MVC No.948/2015 is confirmed.

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iii. The amount in deposit shall be transmitted to the concerned Tribunal.

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Sd/JUDGE

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CT:NR

Sri. P. Naveen Kumar v. the Sriram General Insurance

Case brief

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What did the court decide?

Sri. P. Naveen Kumar v. the Sriram General Insurance

Case brief

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