Partly allowed

B T Kumar v. H Mahanthesh

Karnataka HC25 Jul 2023MFA/1348/2012

Case brief

AI extract

What is this about?

In an appeal against a Motor Accident Claims Tribunal award, the High Court allowed an additional insurance policy produced by the owner to be recorded. Liability for compensation, originally placed on the owner due to policy disputes, was shifted to the insurance company. The court also enhanced the compensation amount and awarded interest.

What did the court decide?

Liability shifted to insurer; compensation enhanced by Rs. 60,800 with 6% per annum interest.

B T Kumar Vs H Mahanthesh — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:26270 MFA No. 1348 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 1348 OF 2012 (MV)

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BETWEEN:

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B T KUMAR, S/O. SRI THIMMANNA, NOW AGED ABOUT 26 YEARS, R/O. HALEKALLAHALLI VILLAGE, CHITRADURGA TALUK-577 501.

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…APPELLANT

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(BY SRI N.R RANGEGOWDA, ADVOCATE FOR SRI S RAGHAVENDRA, ADVOCATE)

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AND:

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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H MAHANTHESH, S/O HALAIAH, MAJOR, R/O. JOGIMATTI ROAD, 5TH CROSS, MANJUNATHA NILAYA, CHITRADURGA-577 501.

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THE BRANCH MANAGER, RELIANCE GENERAL INSURANCE CO, LTD., BRANCH OFFICE, EAST WING, 5TH FLOOR, 28, CENTENARY BUILDING, M.G.ROAD, BANGALORE-560 001.

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…RESPONDENTS

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(BY SMT. VIJAYA M.N, ADVOCATE FOR R1; SRI VIJAY KUMAR, ADVOCATE FOR R2)

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NC: 2023:KHC:26270 MFA No. 1348 of 2012

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.11.2011 PASSED IN MVC NO.515/2008 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Being aggrieved by the judgment and award passed

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by the learned I Additional Senior Civil Judge and Additional MACT, Chitradurga in MVC No.515/2008 on 16-11-2011, the petitioner is before this Court in appeal.

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The petitioner contended that on 18-2-2008 at

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about 2.30 p.m. while he was proceeding in a lorry bearing No.KA.16-A-5606 as a cleaner, the driver of the lorry drove the same in a negligent manner and dashed to

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another lorry proceeding in front of it. Due to which, petitioner sustained injuries and he was shifted to Government Hospital Yallapura, after first aid treatment, he was referred to KIMS Hospital Hubballi and thereafter, he was shifted to District Hospital, Chitradurga and then to

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3 - NC: 2023:KHC:26270 MFA No. 1348 of 2012

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Basappa Hospital, Chitradurga, wherein, he took treatment as inpatient from 22-2-2008 to 6-3-2008. He contended

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that he was working as a cleaner in the lorry and earning Rs.5,000/- per month and bata of Rs.100/- per day. Due to the accidental injuries, he could not work as a cleaner and there is permanent disability on account of the injuries sustained. Thus, he claimed compensation from the owner and insurer of the lorry.

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On issuance of notice, the respondent Nos.1 and 2 appeared before the Tribunal. Respondent No.1 owner did not file any objections to the petition. The respondent No.2 alone filed the objection statement contending that respondent No.2 had not issued the policy to the lorry and as such, it was not liable to pay the compensation to the petitioner. It has also contended that the policy which was issued was invalidated on account of the dishonour of the cheque which was issued by owner towards premium amount. Inter alia , it was also contended that the driver of the lorry was not having valid and effective driving licence

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NC: 2023:KHC:26270 MFA No. 1348 of 2012

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as on the date of the accident. Therefore, the petitioner

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be put to strict proof of the same.

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On the basis of the above pleadings, the Tribunal framed appropriate issues and petitioner was examined as PW1 and the Doctor who assessed the disability is examined as PW2 and Exs.P1 to P13 were marked. Respondent No.2 examined its official as RW1 an done witness was examined as RW2 and Ex.R1 to 4 were marked.

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After hearing the arguments by both the sides, the Tribunal has awarded compensation of Rs.1,44,120/under the following heads and fastened the liability on the

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owner of the lorry on the ground that the lorry was not having a valid policy:

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Towards Pain and sufferings	Rs.50,000/-
Medical Expenses	Rs.15,000/-
Loss of earnings due to	Rs.69,120/-
disability
Loss of amenities	Rs.10,000/-
Total	Rs.1,44,120/-

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5 - NC: 2023:KHC:26270 MFA No. 1348 of 2012

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Being aggrieved by the said judgment and award, the petitioner is before this Court in appeal contending that the compensation awarded by the Tribunal is abysmally low and meager and that fastening of the liability on the owner was also erroneous.

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On issuance of notice by this Court, respondent No.2-Insurance Company has appeared through its counsel. Respondent No.1 owner of the lorry also appeared through his counsel.

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The Tribunal records have been secured and the arguments by learned counsel appearing for both the sides were heard.

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During the pendency of this appeal, the counsel for respondent No.1 filed an application under order 41 Rule 27 CPC in IA No.1/2019, seeking to produce the additional evidence in the form of insurance policy which

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was issued after he made the necessary payment in respect of the premium.

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6 - NC: 2023:KHC:26270 MFA No. 1348 of 2012

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The affidavit filed in support of IA No.1/2019 contended that when the cheque issued by respondent No.1 had returned dishonoured, he had approached the insurance company and had made the cash payment of Rs.34,312/- and therefore, insurance policy was issued covering the period from 25-5-2007 to 24-5-2008. The said insurance policy was produced along with the application stating that agent had not issued the policy copy to him at the time of the accident and later, he obtained the same and he is now producing the said insurance policy.

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Finding that the said application filed under order 41 Rule 27 CPC and the policy produced by the respondent No.1 issued go to the root of the matter, the learned counsel for respondent No.2-Insurance Company was directed to ascertain the truth or otherwise of the said policy. In pursuance of the same, the official of the respondent No.2-insurance company has filed an affidavit stating that the policy which was issued on the cash

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7 - NC: 2023:KHC:26270 MFA No. 1348 of 2012

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payment made by respondent No.1 was bearing Engine Number and chassis number of the vehicle, but not the registration number and therefore, the insurance company was not in a position to ascertain the issuance of policy at the time of the trial before the Tribunal. The said explanation which has been offered by the official of the insurance company is just, proper and acceptable. Therefore, the application IA No.1/2019 filed by the respondent No.1/owner under order 41 Rule 27 CPC is allowed and as such, the copy of the policy produced by the respondent No.1 is taken on record and considered as a piece of evidence in this appeal.

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In view of the application filed under order 41 Rule 27 CPC having been allowed and the affidavit filed by the official of the respondent No.2- Insurance Company having been considered as true, the liability which was fastened upon the respondent No.1/owner by the Tribunal now shifts to the respondent No.2-Insurance company.

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Hence, the respondent No.2 Insurance Company is liable to pay the compensation to the petitioner.

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Learned counsel appearing for the respondent No.2-Insurance Company contends that since the existence of the proper insurance policy was not informed to it, the liability to pay the interest on the compensation amount be exempted.

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Per contra, learned counsel appearing for the respondent No.1 contends that she had produced the original document while an application under Section 151 of CPC was filed by the respondent No.1 on 1-10-2013. The records reveal that the respondent No.1 had brought to the notice of this Court that there was existence of valid policy issued by respondent No.2- Insurance Company. It is also submitted by the learned counsel appearing for the

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respondent No.1 that though she has not produced the copy of the policy before the Tribunal, she had mentioned about the valid policy existed at the time of the accident.

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In the light of these submissions and the record, it is

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evident that the insurance company cannot be exempted from paying interest to the appellant herein.

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The learned counsel appearing for the appellant contends that the compensation awarded by the Tribunal is on the lower side and is meager. The accident occurred in the year 2008 and the Tribunal has taken the notional income of the petitioner at Rs.4,000/- per month. The guidelines issued by the Karnataka State Legal Services Authority for settlement of the disputes before the Lok Adalat prescribe the notional income of Rs.4,500/- for the year 2008. In umpteen number of decisions, this Court has held that the guidelines issued by KSLSA are held to be acceptable on the ground that they are in general conformity with the minimum wages fixed under the Minimum Wages Act. Therefore, the notional income of the petitioner is accepted as Rs.4,500/- per month.

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PW2 in his testimony has stated that the petitioner had sustained fracture of femur and the fracture of malleolus for which he had taken treatment in various

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hospitals and ultimately, the disability was assessed by PW2 and he found that there was a disability of 35% to the limb. The Tribunal has taken the functional disability

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at 8%. It is evident that in the nature of the injuries suffered by the petitioner and the disability assessed by

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PW2 go to show that the functional disability cannot be 35% under none of the norms prescribed. Obviously, the fracture suffered by the petitioner was to the right femur and for a cleaner, the functionality squarely depend upon his legs and hands. Hence, this Court considers the functional disability of the petitioner at 11%. Hence, the compensation under the head of 'loss of future earning on account of the disability' is calculated as: 4,500/- x 12 x 18 x11% =1,06,920/-.

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The Tribunal has not awarded any amount under

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the head of 'loss of income during the laid up period'. Admittedly, the petitioner was unable to resume his work atleast for a period of four months as a cleaner of the

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lorry. Hence, a sum of Rs.18,000/- (4,500/-x4) is awarded under this head.

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The Tribunal has awarded a sum of Rs.50,000/under the head of 'pain and sufferings' and Rs.15,000/under the head of 'medical expenses' which do not require any interference.

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Sofar as the compensation awarded under the head of 'loss of amenities' is concerned, keeping in mind that the accident was in the year 2008, a sum of Rs.15,000/- has to be awarded to the petitioner under this

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head. Therefore, the petitioner is entitled for a total

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compensation of Rs.2,04,920/- under the following heads:

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Towards Pain and sufferings	Rs. 50,000/-
Medical Expenses	Rs. 15,000/-
Loss of earnings due to disability	Rs. 1,06,920/-
Loss of income during laid up period	Rs. 18,000/-
Loss of amenities	Rs. 15,000/-
Total	Rs. 2,04,920/-
Less: awarded by the Tribunal	Rs. 1,44,120/-
Enhancement	Rs. 60,800/-

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Thus, the petitioner is entitled for a sum of Rs.60,800/- together with interest in addition to what

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has been awarded by the Tribunal and therefore, the appeal deserves to be allowed in part. Hence, the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The impugned judgment and award passed by the Tribunal is modified by setting aside the liability fastened upon the respondent No.1/owner of the vehicle by holding that insurance company is liable to pay the compensation and by further awarding a sum of Rs.60,800/- in addition to what has been awarded by the Tribunal along with interest at 6% p.a. from the date of petition till its realization.

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(iii) Respondent No.2-Insurance Company is directed to deposit the compensation amount together with interest within six weeks from the date of receipt of the copy of this order.

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(iv) The rest of the order of the Tribunal remain unaltered.

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Sd/JUDGE

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tsn*

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List No.: 1 Sl No.: 83

B T Kumar v. H Mahanthesh

Case brief

What is this about?

What did the court decide?

B T Kumar v. H Mahanthesh

Case brief

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