Partly allowed

Sri Kiran Kumar J.S. @ Kiran v. Reliance General Insurance Company Ltd.

Karnataka HC21 Oct 2022MFA/6900/2018

Case brief

AI extract

What is this about?

The High Court allowed the claimant's appeal in part and dismissed the insurer's appeal. While accepting the insurer's argument that permit deviation does not absolve liability, the Court enhanced the compensation quantum by correcting notional income, disability percentage multiplier, and future loss of amenities.

What did the court decide?

The claimant's appeal allowed in part; compensation enhanced to Rs.3,73,045/-; insurer directed to deposit amount within six weeks; insurer's appeal dismissed.

Sri Kiran Kumar J.S. @ Kiran Vs Reliance General… — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST 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.2183/2017 (MV-I)

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C/W. M.F.A.NO.6900/2018 (MV-I)

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In M.F.A.NO.2183/2017:

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BETWEEN:

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RELIANCE INSURANCE COMPANY LIMITED REGIONAL OFFICE, NO.28 EAST WING, 5^TH MAIN CENTENARY BUILDING M.G.ROAD, BENGALURU-560 001 BY ITS DEPTY MANAGER (LEGAL). … APPELLANT

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(BY SRI H.S.LINGARAJ, ADVOCATE [THROUGH VC])

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AND:

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1 . KIRAN KUMAR J.S. @ KIRAN NOW AGED ABOUT 27 YEARS S/o. SHIVALINGAIAH R/AT NO.1025, 25^TH CROSS 26^TH MAIN, 4^TH T BLOCK JAYANAGAR, BENGALURU-69

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2 . SUJATHA W/O LOKESH MAJOR, R/AT THOTAHALLI VILLAGE ACHALU POST, KANAKAPURA TALUK RAMANAGARA DISTRICT-562 117. ... RESPONDENTS

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(BY SRI GIRIMALLAIAH, ADVOCATE FOR R1; SRI K.VENKATESH, 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:20.01.2017 PASSED IN MVC NO.4676/15 ON THE FILE OF THE 19^TH ADDITIONAL SMALL CAUSES JUDGE & MACT., BENGALURU, AWARDING COMPENSATION OF RS.3,31,125/- WITH INTEREST AT 9% P.A., FROM THE DATE OF PETITION TILL REALIZATION.

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In M.F.A.NO.6900/2018:

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BETWEEN:

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SRI KIRAN KUMAR J.S. @ KIRAN S/O SHIVALINGAIAH AGED ABOUT 28 YEARS NO.1025, 25^TH CROSS, 26^TH MAIN 4^TH "T" BLOCK, JAYANAGAR BENGALURU-560 069. … APPELLANT

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(BY SRI GIRIMALLAIAH, ADVOCATE)

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AND:

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1 . RELIANCE GENERAL INSURANCE COMPANY LTD., BRANCH OFFICE EAST WING, 5^TH FLOOR, NO.28 CENTENARY BUILDING, M.G.ROAD BENGALURU-560 001

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2 . SMT. SUJATHA W/O LOKESH MAJOR, THOTAHALLI VILLAGE ACHALU POST, KANAKAPURA TALUK RAMANAGARA DISTRICT. ... RESPONDENTS

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(BY H.S.LINGARAJ, ADVOCATE [THROUGH VC] FOR R1; R2 IS SERVED)

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THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.01.2017, PASSED IN MVC NO.4676/2015, ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSES JUDGE & MACT, (SCCH-17), BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR

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COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS 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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Heard the learned counsel appearing for the Insurance

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Company and the learned counsel appearing for the claimant.

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These two appeals are filed by the Insurance Company as well as the claimant, respectively, challenging the judgment and award dated 20.01.2017, passed in M.V.C.No.4676/2015 on the file of the Motor Accident Claims Tribunal, Bengaluru (SCCH-17) (‘the Tribunal’ for short), questioning the liability and the quantum of compensation.

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

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The factual matrix of the case of the claimant before

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the Tribunal is that he met with an accident on 17.07.2015, as a result, he had sustained spinal injury and fracture of metatarsal

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bone and took the treatment as an inpatient for a period of 10 days.

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The claimant in order to substantiate his case, he has examined himself as P.W.1, examined the Doctor as P.W.2 and a witness as P.W.3 and got marked the documents as Exs.P1 to P15. P.W.2, the Doctor has assessed the disability at 20% to the spine and the Tribunal considered only 13%. On the other hand, the Insurance Company has examined three witnesses as R.Ws.1 to 3 and got marked the documents as Exs.R1 to R4.

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The very contention of the learned counsel appearing for the Insurance Company is that though the permit was valid, the vehicle moved outside the jurisdiction of the permit. Hence, the Insurance Company is not liable. But, the Tribunal fastened the liability on the Insurance Company. Hence, the Insurance Company filed an appeal in MFA No.2183/2017 before this Court.

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The learned counsel appearing for the Insurance Company also would vehemently contend that when the permit is given for a particular area, the rider of the auto rickshaw

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moved outside the jurisdiction of the permit, the Insurance Company is not liable to pay the compensation.

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Learned counsel appearing for the claimant would vehemently contend that the compensation awarded is very meager and it was an accident of the year 2015, the income was taken as Rs.7,000/- instead of Rs.9,000/- i.e., the correct notional income. The contention of the learned counsel is that the disability taken as 13% is also on lesser side and multiplier applied is 17 instead of ‘18’ and the compensation awarded on other heads are also very meager.

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Having heard the respective counsel and on perusal of the material available on record, the points that would arise for consideration of this Court are:

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(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company?

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

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(iii) What order?

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Point No.(i):

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Having heard the respective counsel and on perusal of the material available on record, the accident was occurred on 17.07.2015 at about 7:30 p.m. When the injured was proceeding on an Activa Honda, at that time, an auto rickshaw i.e., the offending vehicle dashed against him at Marannana Doddi gate, Sathanur Hobli.

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The main contention of the learned counsel for the Insurance Company is that the permit was given only to Kanakapura Town and not to the rural area of Marannana Doddi gate. Hence, there is a violation.

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Having considered the evidence available on record and the material available before the Court, particularly, Ex.R4Permit, which was given to ply the vehicle in Kanakapura Town, but the vehicle was proceeded outside the area of permit and the same cannot be a fundamental breach as contended by the Insurance Company in view of the judgments rendered by this Court in the case of THE DIVISIONAL MANAGER, UNITED

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INDIA INSURANCE CO. LTD., v. Smt. JAYAMMA AND

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OTHERS reported in ILR 2018 KAR 1849 and in the case of

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S.N. KENCHANNA v. ANITHA & OTHERS reported in ILR

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2018 KAR 3921 , mere deviation will not absolve the liability of the Insurance Company. Hence, I do not find any force in the contention of the learned counsel for the Insurance Company. Hence, I answer point No.(i) as ‘negative’.

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Point No.(ii):

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Now coming to the aspect of the quantum of compensation is concerned, the claimant has sustained the injury i.e., compression fracture of vertebra and fracture of metatarsal bone. The Tribunal having considered the material available on record, awarded compensation of Rs.50,000/- on the head of pain and suffering and an amount of Rs.10,000/- on the head of attendant charges, extra food and conveyance charges. The claimant was an inpatient for a period of 10 days. An amount of Rs.3,325/- awarded towards medical expenses by the Tribunal based on the documentary evidence. Hence, I do not find any error committed by the Tribunal in awarding compensation under these heads.

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Now coming to the aspect of ‘loss of income during laid-up period’ is concerned, the income of Rs.7,000/- was taken

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by the Tribunal. It was an accident of the year 2015 and the claimant was earning Rs.15,000/- at the time of the accident. The Tribunal has rightly taken the loss of income for a period of three months. Considering he was an inpatient for a period of 10 days, the date of accident and his age, his notional income would be Rs.9,000/-, then, it comes to Rs.27,000/- as against Rs.21,000/- awarded by the Tribunal.

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With regard to ‘Loss of future income due to disability’ is concerned; the Tribunal while taking the disability of 13% ought to have considered the evidence of P.W.2, the Doctor. The Doctor, who examined before the Court is not a treated Doctor. But, he treated him only after the discharge; no surgery is conducted and only conservative treatment was given. When such being the case, the Tribunal also taken note of the said fact into consideration and rightly assessed 13% disability. However, the Tribunal taken the multiplier as 17 instead of 18 since he was aged about 25 years at the time of accident, the relevant multiplier would be 18. After taking the notional income of Rs.9,000/- with 13% disability and the multiplier 18, it comes to Rs.2,52,720/- (9000x12x18x13/100).

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The Tribunal also awarded compensation of

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Rs.20,000/- on the head of loss of amenities. The injured is suffering from 13% disability, he has to lead rest of his life with the said disability and he was aged about 25 years at the time of the accident. Hence, awarded an amount of Rs.30,000/- as against Rs.20,000/- awarded by the Tribunal.

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In all, the claimant/appellant is entitled for a sum of Rs.3,73,045/- as against Rs.3,31,125/- awarded by the Tribunal.

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Point No.(iii):

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In view of the discussions made above, I pass the following:

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ORDER

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(i) The appeal filed by the claimant in MFA No.6900/2018 is allowed-in-part.

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(ii) The impugned judgment and award of the Tribunal dated 20.01.2017, passed in M.V.C.No.4676/2015, is hereby modified granting compensation of Rs.3,73,045/- as against Rs.3,31,125/- awarded by the Tribunal with interest at 6% per annum from the date of petition till its realization

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excluding the interest for a period of 463 days in filing the appeal.

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