Partly allowed

Smt Mosina Banu v. Basavaraj

Karnataka HC26 May 2022MFA/7810/2015

Case brief

AI extract

What is this about?

The High Court held that despite a permit violation (contract carriage used for stage carriage), the insurance company is liable under the 'Pay and Recover' principle and must satisfy the claim first. The Court enhanced compensation for two appellants who suffered injuries and disability, while dismissing the appeal of a third appellant with minor injuries.

What did the court decide?

Enhanced compensation awarded for two appellants totaling Rs. 1,35,000 and Rs. 1,24,980 respectively with 6% interest; insurance company directed to pay first and recover later. Appeal of third appell

Smt Mosina Banu Vs Basavaraj — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF MAY, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.7809/2015 (MV)

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C/W

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M.F.A.NO.7810/2015 (MV)

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M.F.A.NO.7811/2015 (MV-I)

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IN MFA NO.7809/2015 (MV) :

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BETWEEN:

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MANJUNATHA, S/O ERAIAH, AGED ABOUT 41 YEARS, RESIDENT OF MARAVATHI VILLAGE, AREHALLI HOBLI, BELUR TALUK, HASSAN DISTRICT-573115.

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… APPELLANT

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(BY SRI R. LAKSHMANA, ADVOCATE)

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AND:

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BASAVARAJ, S/O VEERASHETTY, R/OF GENDEHALLI VILLAGE AND POST, KASABA HOBLI, HSAAN DISTRICT, AREHALLI HOBLI, BELUR TALUK, HASSAN DISTRICT-573115.

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THE NATIONAL INSURANCE CO. LTD., BY ITS MANAGER, MANJUNATHESHWARA COMPLEX,

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OLD BUS STAND ROAD, P.B.NO.112, HASSAN DISTRICT-573115.

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... RESPONDENTS

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(BY SRI A.M. VENKATESH, ADVOCATE FOR R2 R1-SERVED & UNREPRESENTED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:4.4.2015 PASSED IN MVC NO.557/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, BELUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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IN MFA NO.7810/2015 (MV)

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BETWEEN:

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SMT. MOSINA BANU @ MALINA BANU, W/O SYED NAVEED, AGED ABOUT 22 YEARS, RESIDENT OF GENDEHALLI VILLAGE, KASABA HOBLI, BELUR TALUK, HASSAN DISTRICT-573115.

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… APPELLANT

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(BY SRI R. LAKSHMANA, ADVOCATE)

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AND:

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BASAVARAJ, S/O VEERASHETTY, R/OF GENDEHALLI VILLAGE AND POST, KASABA HOBLI, HSAAN DISTRICT, AREHALLI HOBLI, BELUR TALUK, HASSAN DISTRICT-573115.

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THE NATIONAL INSURANCE CO. LTD., BY ITS MANAGER, MANJUNATHESHWARA COMPLEX,

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OLD BUS STAND ROAD, P.B.NO.112, HASSAN DISTRICT-573115.

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... RESPONDENTS

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(BY SRI A.M. VENKATESH, ADVOCATE FOR R2 R1-SERVED & UNREPRESENTED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:4.4.2015 PASSED IN MVC NO.558/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, BELUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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IN MFA NO.7811/2015 (MV)

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BETWEEN:

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SMT. GULAB JAN, W/O MOHAMMED GOUSE, @ SYED GAFAR, AGED ABOUT 41 YEARS, RESIDENT OF GENDEHALLI VILLAGE, KASABA HOBLI, BELUR TALUK, HASSAN DISTRICT-573115.

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… APPELLANT

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(BY SRI R. LAKSHMANA, ADVOCATE)

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AND:

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BASAVARAJ, S/O VEERASHETTY, MAJOR, R/OF GENDEHALLI VILLAGE AND POST, KASABA HOBLI, HSAAN DISTRICT, AREHALLI HOBLI, BELUR TALUK, HASSAN DISTRICT-573115.

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THE NATIONAL INSURANCE CO. LTD., BY ITS MANAGER, MANJUNATHESHWARA COMPLEX,

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OLD BUS STAND ROAD, P.B.NO.112, HASSAN DISTRICT-573115.

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... RESPONDENTS

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(BY SRI A.M. VENKATESH, ADVOCATE FOR R2 R1-SERVED & UNREPRESENTED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:4.4.2015 PASSED IN MVC NO.559/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, BELUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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THESE M.F.As. 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 under Section-173(1) of the Motor Vehicles Act, by the appellants-claimants challenging the judgment and award dated 04.04.2015, passed in MVC Nos.557/2014, 481/2014 and 558/2014, on the file of Senior Civil Judge and Motor Accident Claims Tribunal at Belur, seeking enhancement.

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Brief facts:

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On 09.12.2013, the appellants-claimants were traveling in a Maxi Cab bearing registration No.KA-18-D555, to go to Belur. When they were so proceeding, near

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Singapura village, when the driver of the Maxi Cab tried to give way to a lorry coming behind. He came to extreme left side and dashed against a tree, which was in the side of the road. As a result of the accident, the appellantsclaimants who were traveling in the Maxi Cab in question suffered injuries. Thereafter, they were admitted to Hospital for treatment.

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Hence, separate claim petitions were filed by the appellants-claimants under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. The Tribunal on appreciating the material on record, passed a common judgment in respect of all the appellants-claimants, allowing the petition in part, and awarded a compensation of Rs.1,32,400/in MFA No.7809/2015 (MVC No.557/2014), Rs.1,52,860/- in MFA No.7810/2011 (MVC No.5582014) and Rs.8,000/- in MFA No.7811/2015 (MVC No.559/2014), along with interest at 12% per annum from the date of petition till the date of deposit.

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Heard arguments of the learned counsel for the

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appellant and the learned counsel for respondent No.2 – insurance company and perused the materials on record.

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The learned counsel appearing for the appellant-claimant submitted that in the present case, the Tribunal had exonerated the respondent-insurance company on the ground that there is violation of conditions of permit. It is submitted that the offending vehicle permit was given for contract carriage, but the vehicle was used for stage carriage. Therefore, submitted that just because the vehicle is used for stage carriage, the insurance company cannot be exonerated by virtue of contract of insurance between the insurer and the owner. Therefore, prays to fasten the burden on the insurance company to pay the compensation.

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The learned counsel for the appellantsclaimants submitted that, alternatively, if there is violation of the condition of insurance policy and if the defence is proved by the insurance company, an order of ‘Pay and

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Recovery’ may be made as per Section – 147 of the MV Act, and also by following the dictum laid down in various judgments of the Hon’ble Supreme Court and by this Court.

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Further, submitted that the quantum of compensation awarded by the Tribunal under each head is not adequate and the same requires to be enhanced. Therefore, prays for enhancement of the compensation.

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On the other hand, the learned counsel appearing for the respondent No.2-insurance company submitted that there is an infraction proved that since permit for contract carriage was used for stage carriage. Therefore, it is proved that there is a violation of permit. Hence, the Tribunal is justified in exonerating the insurance company for payment of compensation. Therefore, submitted that there is no need to interference in the judgment and award passed by the Tribunal.

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Further, submitted that considering the nature of injury and pain and suffering, the quantum of

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compensation awarded by the Tribunal is correct. Therefore, prays not to interfere with the quantum of compensation awarded. Hence, prays to dismiss the appeal.

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In the present case, the offending vehicle is a Maxi Cab. The appellants-claimants were traveling in the said Maxi Cab, which met in an accident and the appellants sustained injuries. The Tribunal had awarded compensation by determining compensation under various heads and the burden of payment of liability was fastened on the owner of the maxi cab, by exonerating the insurance company on the ground that the permit to the maxi cab was given for Contract Carriage, but the same was used as Stage Carriage. Therefore, there is violation of permit conditions. Hence, exonerated the insurance company.

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In the instant case, Exhibit-R2 is the permit, which was given to the maxi cab vehicle in question for Contract Carriage and not for Stage Carriage. Upon

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considering the evidence of the claimants, it is revealed that they have traveled in the maxi cab as passengers by paying fair amount to the driver and therefore it is proved that the vehicle was used for stage carriage. Hence, the respondent No.2 – insurance company proved its defence that there is violation of condition of permit amounting to violation of condition of insurance policy also. Therefore, the Tribunal exonerated the insurance company for payment of compensation.

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If the respondent - insurance company is able to take defence as per Section-149 of the Motor Vehicle Act and the said defence is proved then, as per Section147 of the MV Act, the respondent - insurance company has to satisfy the claim amount at the first instance and then recover from the owner of the offending vehicle. In a more or less similar circumstance, as in the present case wherein there was infraction regarding permit conditions, the Hon’ble Supreme Court in the case of National

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Insurance Co. Ltd Vs. Chella Bharathamma & Others

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reported in AIR 2004 SCC 4882 at para-13, observed as follows:

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“13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the Executing Court concerned as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the Regional Transport Authority concerned. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to

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the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured.”

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In the aforesaid case also, an order of ‘Pay and Recovery’ was made. Therefore, the similar principle is also applicable in the present case.

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Further, a Full Bench of this Court, in the case of New India Assurance Company Limited Bijapur by its Divisional Manager Vs. Yallavva and Another reported in 2020 ACJ 2560, wherein their lordships were pleased to lay down the law, the applicability of pay and recovery at paragraph Nos.57 & 146 of the judgment, which reads as follows:

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“57. In another ruling in Rani V. National Insurance Co. Ltd., 2018 ACJ 2430 (SC), again a three-Judges Bench was called upon to answer with regard to pay and

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recover order passed by the Tribunal. In the said case, the Insurance Company disputed its liability on the ground that the truck had no permit for being plied in the State of Karnataka as its permit was restricted to the State of Maharashtra. The Tribunal allowed compensation and directed the insurance company to deposit the amount, however the High court exempted the insurance company from liability but the Apex Court, in appeal, directed the insurance company to deposit the amount with liberty to recover the same from the owner of the vehicle. Dealing with the aforesaid aspect, at paras 6, 7 and 14, the apex Court again reiterated the earlier principles in Swaran Singh, 2004 ACJ 1 (SC) and modified the judgment of the High Court and restored the Tribunal's order directing the insurance company to pay and recover.

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146. i) Having regard to Section 149(1) r/w Section 149(7) whenever a case falls under Section 149(2)(a) and the same is successfully established or proved by the Insurance Company, as per the twin tests laid by the Hon'ble Supreme Court in Swaran Singh, nevertheless, the insurer or Insurance Company is liable to satisfy the award vis-àvis a third party and is entitled to recover from the insured. This is irrespective of, the policy being an Act policy in terms of Section 147 pertaining to compulsory coverage of risks of third parties and other classes of persons stated therein or a policy covering other risks by specific contract being entered into in that regard and where additional premium is paid by the insured i.e., a contractual policy.

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ii) The Insurer is liable to pay the third party and recover from the insured even if

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there is breach of any condition recognized under Section 149 (2), even if it is a fundamental breach (that is breach of condition which is the cause for the accident) and the insurer proves the said breach in view of the mandate under Section 149(1) of the Act. But, no such order can be passed against the insurer, if, on the facts and circumstances of a case, a finding is given by the court that the third party (injured or deceased) had played any fraud or was in collusion with the insured, individually or collectively, for a wrongful gain to themselves or cause wrongful loss to the insurer.

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iii) The Court can also fasten the absolute liability on the insurer, if there is any breach of condition which is enumerated under Section 149(2) of the Act or any other condition of the policy if the Insurance Company has waived breach of any such condition or has taken the special responsibility to pay by collecting extra premium by covering any type of risk depending upon facts of each case.

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iv) Thus, the rule of pay and recover is applicable in view of the mandate in Section 149(4) of the Act and even if there is a breach of the terms of the insurance policy, the insurer is bound to satisfy the judgment and award as if it were a judgment debtor, even if it satisfies the twin tests enunciated by the Hon'ble Supreme Court under Section 149(4)(a) of the Act.

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v) Before passing any order on the Insurance Company to pay and recover, the Court has to examine the facts and circumstances of each case and if it finds that the victim, injured or the deceased, in a

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particular case, was solely or jointly responsible for breach of such fundamental condition by playing fraud or in collusion with the insured, the Court may exercise its discretion not to fasten the liability on the insurer.

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vi) However, the court should not adopt the above guideline as a general rule in all cases, but only under peculiar facts and circumstances of each case and on giving appropriate reasons.

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vii) If the Insurance Company makes out a case under Section 149(2)(b) of the Act, then also the Insurance Company has to satisfy the award so far as third party is concerned, as it is the duty of the Insurance Company to indemnify the insured on the basis of the policy of the insurance and even when the contract of insurance itself is void, nevertheless the liability to indemnify the insured would arise and insurer is entitled to recover from the insured.

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viii) Thus, in a case where Section 149(2)(b) applies and the Insurance Company successfully establishes that the policy is void, in such a case also, the insurer is not absolved of its liability to satisfy the judgment or award as rights or obligations would flow even from a policy which is void vis-à-vis third party. In such a case, the insurer is not completely absolved of its liability, the insured would have to satisfy the award vis-à-vis the third party and recover from the insured the amount paid to the third party and may also have a right to seek damages from the insured.

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ix) The judgment of the Division Bench of this Court in Subramanyam, holding that a pay and recovery order cannot be made as there is no liability to pay or satisfy the award or decree in respect of a case falling under Section 149(2) is not correct. Hence, that portion of the judgment in Subramanyam, which states that if the case falls within the scope of Section 149(2) of the Act and the insurer is successful in establishing any of the defences as stated therein, it would be completely absolved of its liability to satisfy the award is also not correct and to that extent, it is held to be bad in law.

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x) Article 142 of the Constitution of India being a power granted under the Constitution only to the Supreme Court can be exercised in appropriate cases only by the Apex Court. Exercise of power under Article 142 by the Hon'ble Supreme Court in a particular case cannot be a precedent for other Courts and Tribunals to exercise such a power unless the same is indicated to be a precedent by the Apex Court.”

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Therefore, upon following the principles of law

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laid down in the above stated judgments, in the present case also an order of pay and recovery can be made. Therefore, it is directed that respondent No.2 - insurance company to satisfy the claim amount at the first instance and then recover it from the owner of the maxi cab, offending vehicle, by following the procedure laid down in

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the aforesaid judgments stated supra. Therefore, in this regard the appeals are liable to be allowed in part.

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IN MFA NO.7809/2015 (MVC NO.557/2014):

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The Tribunal has awarded compensation in

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various heads as follows:

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Pain, Injuries And Suffering	:	Rs.	30,000/-
Medical Expenses	:	Rs.	8,500/-
Diet, Nourishment and Conveyance	:	Rs.	6,000/-
Attendant Charges	:	Rs.	900/-
Loss of Income during treatment	:	Rs.	5,000/-
Loss of future income due to disability	:	Rs.	72,000/-
Incidental and Loss of Amenities	:	Rs.	10,000/-
TOTAL	:	Rs.	1,32,400/-

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Exhibit-P5 is the wound certificate which shows

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the appellant had suffered following injuries:

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“i. Commuted fracture of left & right radius, ii. Swelling and deformity of left wrist, iii. Swelling and deformity of right wrist

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The Tribunal has awarded Rs.30,000/- towards

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‘pain and suffering’ which is insufficient and the same is

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enhanced and accordingly a sum of Rs.50,000/- is awarded under the head ‘Injuries, Pain and Suffering’ .

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The Medical Expenses awarded at

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Rs.8,500/- which is as per the evidence produced. Therefore, the same is kept in tact.

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Towards incidental expenses viz., ‘Diet, Conveyance, Nourishment, Etc.’ a sum of Rs.6,000/- is awarded. However, considering the medical records and the nature of injuries sustained, a sum of Rs.15,000/- is awarded under the head ‘Diet, Conveyance, Nourishment, Etc.

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Further, the Tribunal has awarded compensation of Rs.900/- towards ‘Attendant Charges’ the same is kept in tact.

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The Tribunal has assessed a monthly income of the appellant at Rs.4,800/- per month as notional income. But considering the year of the accident i.e., 2013, as per the chart of Karnataka State Legal Services Authorities, the notional income of the appellant is

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assessed as Rs.8,000/- per month. Further, the Doctor, PW-2 had stated that the appellant suffered 30% of permanent physical disability towards a particular limb. Therefore, while applying the said disability towards wholebody, the functional disability is assessed at 10%, taking 1/3^rd of the permanent physical disability, the appellant was aged 40 years old, as on the date of the accident and the appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla

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Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104 , is ‘15’. Therefore, the compensation under the head ‘Loss Of Future Earning Capacity’ is recalculated and quantified as follows:

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Rs.8,000 x 10% x 15 x 12 = Rs.1,44,000/-

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Therefore, compensation under the ‘loss of future earning capacity’ is Rs.1,44,000/- as against Rs.72,000/- as awarded by the Tribunal. Therefore, the compensation under the head is enhanced.

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Further, the Tribunal has awarded

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compensation under the head ‘Loss Of Amenities And Other Discomforts ’ at Rs.10,000/- which is inadequate the same is enhanced Rs.25,000/- .

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Further, the Tribunal has awarded

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compensation towards ‘loss of income during laid-up period’ at Rs.5,000/- only but considering the nature of injuries sustained and disability occurred, the appellant may in have been not able to walk for three months and. Therefore, ‘Loss Of Earning During Laid-Up Period ’ is assessed at Rs.24,000/- (‘Rs.8,000 x 3).

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Hence, the appellant in MFA No.7809/2015, is entitled for a total enhanced compensation, under various heads as follows:

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Pain, Injuries And Suffering	: Rs.	50,000/-
Medical Expenses	: Rs.	8,500/-
Diet, Nourishment and Conveyance	: Rs.	15,000/-
Attendant Charges	: Rs.	900/-
Loss of Income during treatment (Rs.8,000 x 3)	: Rs.	24,000/-

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Loss of future income due to : Rs. 1,44,000/disability (Rs.8000 x 10/100 x 15 x 12)

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Incidental and Loss of Amenities : Rs. 25,000/- TOTAL : Rs. 2,67,400/-

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Therefore, the appeal in MFA No.7809/2015, is Allowed In Part . The appellant is awarded a total compensation of Rs.2,67,400/- as against the compensation awarded by the Tribunal at Rs.1,32,400/-. Hence, the appellant is entitled for an additional compensation of Rs.1,35,000/- (Rs.2,67,400 – Rs.1,32,400), along with interest at 6% per annum from the date of filing of the petition till deposit.

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IN MFA NO.7810/2015 (MVC NO.558/2014):

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The Tribunal has awarded compensation in various heads as follows:

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Pain, Injuries And Suffering	: Rs.	30,000/-
Medical Expenses	: Rs.	25,000/-
Diet, Nourishment and Conveyance	: Rs.	5,000/-
Attendant Charges	: Rs.	600/-
Loss of Income during treatment	: Rs.	4,500/-

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Loss of future income due to : Rs. 77,760/disability Incidental and Loss of Amenities : Rs. 10,000/- TOTAL : Rs. 1,52,860/-

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Exhibit-P5 is the wound certificate which shows

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the appellant had suffered following injuries:

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“i. Fracture radius right ii. Tenderness chest iii. Tenderness TL Spine iv. Abrasion right knee”

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The Tribunal has awarded Rs.30,000/- towards ‘pain and suffering’ which is insufficient and the same is enhanced and accordingly a sum of Rs.50,000/- is awarded under the head ‘Injuries, Pain and Suffering’ .

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The Medical Expenses awarded at Rs.25,000/- which is as per the evidence produced. Therefore, the same is kept in tact.

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Towards incidental expenses viz., ‘Diet, Conveyance, Nourishment, Etc.’ a sum of Rs.5,000/- is awarded. However, considering the medical records and the nature of injuries sustained, a sum of Rs.15,000/- is

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awarded under the head ‘Diet, Conveyance,

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Nourishment, Etc.

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Further, the Tribunal has awarded

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compensation of Rs.600/- towards ‘Attendant Charges’ the same is kept in tact.

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The Tribunal has assessed a monthly income of the appellant at Rs.4,500/- per month as notional income. But considering the year of the accident i.e., 2013, as per the chart of Karnataka State Legal Services Authorities, the notional income of the appellant is assessed as Rs.8,000/- per month. Further, the Doctor, PW-2 had stated that the appellant suffered 8% of permanent physical disability. The appellant was aged 21 years old, as on the date of the accident and the appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And

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Another reported in AIR 2009 SC 3104 , is ‘18’. Therefore, the compensation under the head ‘Loss Of

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Future Earning Capacity’ is recalculated and quantified as follows:

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Rs.8,000 x 8% x 18 x 12 = Rs.1,38,240/-

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Therefore, compensation under the ‘loss of future earning capacity’ is Rs.1,38,240/- as against Rs.77,760/- as awarded by the Tribunal. Therefore, the compensation under the head is enhanced.

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Further, the Tribunal has awarded

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compensation under the head ‘loss of amenities and other discomforts ’ at Rs.10,000/- which is inadequate the same is enhanced Rs.25,000/- .

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Further, the Tribunal has awarded

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compensation towards ‘loss of income during laid-up period’ at Rs.5,000/- only but considering the nature of injuries sustained and disability occurred, the appellant may in have been not able to walk for three months. Therefore, ‘Loss Of Earning During Laid-Up Period ’ is assessed at Rs.24,000/- (‘Rs.8,000 x 3).

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Hence, the appellant in MFA No.7810/2015, is

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entitled for a total enhanced compensation, under various heads as follows:

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Pain, Injuries And Suffering : Rs. 50,000/Medical Expenses : Rs. 25,000/Diet, Nourishment and Conveyance : Rs. 15,000/Attendant Charges : Rs. 600/Loss of Income during treatment : Rs. 24,000/(Rs.8,000 x 3) Loss of future income due to : Rs. 1,38,240/disability (Rs.8000 x 8/100 x 18 x 12) Incidental and Loss of Amenities : Rs. 25,000/- TOTAL : Rs. 2,77,840/-

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Therefore, the appeal in MFA No.7810/2015, is allowed in part . The appellant is awarded a total compensation of Rs.2,77,840/- as against the compensation awarded by the Tribunal at Rs.1,52,860/-. Hence, the appellant is entitled for an additional compensation of Rs.1,24,980/- (Rs.2,77,840 – Rs.1,52,860), along with interest at 6% per annum from the date of filing of the petition till deposit.

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M.F.A.NO.7811/2015 (MVC No.559/2014):

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In the present case, considering the Wound

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Certificate, Exhibit-P13, it shows the appellant has suffered the following injuries:

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i. Pain over left chest, ii. Pain over left knee,

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The Tribunal has awarded a compensation of Rs.8,000/- towards ‘Pain And Suffering and Incidental Expenses’. The aforesaid injuries are simple in nature and also the appellant has not proved that due to the injuries suffered, there is physical incapacity causing loss of earning capacity. Therefore, considering these factors, that the appellant suffered only tenderness injuries, accordingly, a Global Compensation of Rs.8,000/ - was awarded by the Tribunal which is justified and does not require any interference.

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However, as discussed supra, it is directed that respondent No.2 - insurance company to satisfy the claim amount at the first instance and then recover it from the owner of the maxi cab, offending vehicle, by following the

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principles laid down by the Hon’ble Apex Court. Therefore, in this regard the appeal is allowed in part.

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Accordingly, I pass the following:

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ORDER

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i. The appeals in MFA No.7809/2015 and MFA No.7810/2015 are allowed in part .

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ii. The appeal in MFA No.7811/2015 is Dismissed.

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iii. The appellant MFA No.7809/2015 is entitled for an additional compensation of Rs.1,35,000/- (Rs.2,67,400 – Rs.1,32,400), along with interest at 6% per annum from the date of filing of the petition till deposit, in addition to what has been awarded by the Tribunal.

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iv. The appellant in MFA No.7810/2015 is entitled for an additional compensation of Rs.1,24,980/- (Rs.2,77,840 – Rs.1,52,860), along with interest at 6% per annum from the date of filing of the petition till deposit, in

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addition to what has been awarded by the Tribunal.

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v. In MFA No.7811/2015 the compensation awarded by the Tribunal remains unaltered. However, Respondent No.2 – Insurance Company shall pay the compensation in the first instance and thereafter recover from the Owner of the vehicle in question.

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vi. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

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vii. Draw awards accordingly.

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Sd/JUDGE

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Smt Mosina Banu v. Basavaraj

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Smt Mosina Banu v. Basavaraj

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Manjunatha Vs Basavaraj