Partly allowed

The Manager v. Dilip

Karnataka HC10 Nov 2023MFA/2107/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed MFA No.1931/2018 partly, enhancing the claimant minor's compensation to Rs.80,000. It allowed the insurance company's appeals partly, applying the pay and recovery principle as the driver lacked a valid license for hazardous vehicles, directing the insurer to pay and recover from the owner.

What did the court decide?

Insurance company to pay Rs.80,000 as enhanced compensation to minor with 6% interest, recover from vehicle owner within 8 weeks.

The Manager Vs Dilip — Contract and Commercial Disputes | Karnataka HC (2023)

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1 - NC: 2023:KHC:40602 MFA No. 2104 of 2018 C/W MFA No. 1931 of 2018 MFA No. 2107 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 2104 OF 2018 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 1931 OF 2018 (MV-I) MISCELLANEOUS FIRST APPEAL NO. 2107 OF 2018 (MV-I)

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IN MFA NO. 2104/2018

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BETWEEN:

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Digitally signed by JAI JYOTHI J Location: HIGH COURT OF KARNATAKA

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THE MANAGER, THE ORIENTAL INSURANCE CO. LTD., C. NANJAPPA COMPLEX, SUBHASH CIRCLE, HASSAN, THROUGH ITS BENGALURU REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCY ROAD CROSS, BENGALURU - 560 025, REPRESENTED BY ITS DEPUTY MANAGER.

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(BY SRI. S.V. HEGDE MULKHAND, ADVOCATE)

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AND:

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…APPELLANT

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MANJU, S/O C. RAJEGOWDA, AGED ABOUT 31 YEARS, R/O BITTAGOWDANAHALLI VILLAGE, DODDAMAGGEHOBLI, HASSAN TALUK, PRESENT ADDRESS: NEAR SHRI KRISHNA KALYANA MANTAP,

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NC: 2023:KHC:40602 MFA No. 2104 of 2018 C/W MFA No. 1931 of 2018 MFA No. 2107 of 2018

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INFRONT OF THAVARU CHARITABLE TRUST, HASSAN CITY - 573 201.

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C K YOGEESH, BPC DEALERS B M ROAD, CHANNARAYAPATNA, CHANNARAYAPATNA TALUK HASSAN DISTRICT - 573 116.

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…RESPONDENTS

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(BY SRI. B. PRADEEP, ADVOCATE FOR R2; R1 - SERVED AND UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.11.2017 PASSED IN MVC NO.815/2015 ON THE FILE OF THE 5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT, HASSAN, AWARDING COMPENSATION OF RS.3,53,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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IN MFA NO. 1931/2018

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BETWEEN:

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DILIP, S/O LATE LAKSHMAN, AGED ABOUT 17 YEARS, R/O: KABBALI VILLAGE DUDDA HOBLI, HASSAN TALUK AND DISTRICT - 573 201 APPELLANT BEING MINOR REPRESENTED BY HIS NATURAL GUARDIAN MOTHER MANJULA.

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…APPELLANT

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(BY SMT. KAVITHA H.C, ADVOCATE)

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3 - NC: 2023:KHC:40602 MFA No. 2104 of 2018 C/W MFA No. 1931 of 2018 MFA No. 2107 of 2018

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AND:

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K.C. YOGEESH, BPC DEALERS B M ROAD, CHANNARAYAPATNA TALUK HASSAN DISTRICT - 573 201.

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THE MANAGER,

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THE ORIENTAL INSURANCE COMPANY LIMITED, C. NANJAPPA COMPLEX, SUBHASH CIRCLE, HASSAN - 573 201. (POLICY NO. 472 605/31/2015/2485 VALID FROM 14.09.2014 TO 13.09.2015)

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…RESPONDENTS

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(BY SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R2; VIDE ORDER DATED 13.11.2019, NOTICE TO R1 IS DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.11.2017 PASSED IN MVC NO.899/2015 ON THE FILE OF THE 5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 2107/2018

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BETWEEN:

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THE MANAGER, THE ORIENTAL INSURANCE CO. LTD., C. NANJAPPA COMPLEX, SUBHASH CIRCLE, HASSAN, THROUGH ITS BENGALURU REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX,

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4 - NC: 2023:KHC:40602 MFA No. 2104 of 2018 C/W MFA No. 1931 of 2018 MFA No. 2107 of 2018

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RESIDENCY ROAD CROSS, BENGALURU - 560 025, REPRESENTED BY ITS DEPUTY MANAGER.

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…APPELLANT

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(BY SMT. KAVITHA H.C, ADVOCATE)

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AND:

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DILIP, S/O LATE LAKSHMAN, AGED ABOUT 17 YEARS, R/O: KABBALI VILLAGE DUDDA HOBLI, HASSAN TALUK AND DISTRICT - 573 201. SINCE MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN MANJULA, W/O LATE LAKSHMAN, R/O KABBALI VILLAGE, DUDDA HOBLI, HASSAN TALUK AND DISTRICT - 573 201

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K.C. YOGEESH, BPC DEALERS B M ROAD, CHANNARAYAPATNA TALUK HASSAN DISTRICT - 573 116.

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…RESPONDENTS

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(BY SMT. KAVITHA H.C, ADVOCATE FOR R1; R2 - SERVED AND UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 03.11.2017 PASSED IN MVC NO.899/2015 ON THE FILE OF THE 5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT, HASSAN, AWARDING COMPENSATION OF RS.50,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE PAYMENT.

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5 - NC: 2023:KHC:40602 MFA No. 2104 of 2018 C/W MFA No. 1931 of 2018 MFA No. 2107 of 2018

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Being aggrieved by the common order passed in MVC No.815/2015 and MVC No.899/2015, the Insurance Company has preferred two appeals i.e., MFA No.2104/2018 and MFA No.2107/2018. No appeal is filed by the claimant in MVC No.815/2015. The claimant in MVC No.899/2015 has preferred MFA No.1931/2018.

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The claim petition was filed seeking compensation for the injuries sustained in the accident. In the claimant's appeal i.e., MFA No.1931/2018, the claimant is a 14 years old boy and has sustained injuries.

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It is the case of the claimant that, claimant in MVC No.815/2015 was driving the motor bike on 19.02.2015 which belongs to his brother-in-law along with his minor son i.e., the claimant in MVC No.899/2015, at about 7.30 p.m., the lorry belonging to the first respondent which was driven in a rash and negligent

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NC: 2023:KHC:40602 MFA No. 2104 of 2018 C/W MFA No. 1931 of 2018 MFA No. 2107 of 2018

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manner in the process of overtaking the vehicle, it was dashed against the motor bike of the claimant, due to which both the rider and pillion rider of the bike fell down and sustained injuries. The claimant in MVC No.899/2015 sustained commuted right fibula in lower 1/3rd with vertical patela and also fracture of right fibula and lower third with vertical fracture patela.

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It is the contention of the learned counsel for

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the Insurance Company that it was carrying hazardous products and driving such a vehicle, a special license is required, whereas, the driver of the said vehicle was not possessing such license and has violated terms and conditions of the insurance policy. Hence, the Insurance Company is not liable to pay compensation. The Court below has observed that the owner of the vehicle was examined himself as RW2. He had produced documents i.e., as per Exs.R2 to R8 and at the time of accident, the lorry was not carrying any hazardous materials. The Court below had given finding that the driver was having license

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7 - NC: 2023:KHC:40602 MFA No. 2104 of 2018 C/W MFA No. 1931 of 2018 MFA No. 2107 of 2018

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and the lorry was not carrying hazardous material at that point of time. Hence, the Insurance Company is liable to pay compensation. When it comes to the compensation to be paid in respect of MVC No.899/2015 in respect of the minor boy, the Court had observed that he had neither examined any doctor nor produced any other documents except Wound Certificate and had granted compensation of an amount of Rs.50,000/- as global compensation. Aggrieved thereby, the Insurance Company is before this Court questioning the liability and the claimant in MVC No.899/2015 is before this Court seeking enhancement of compensation.

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Learned counsel appearing for the Insurance Company submits that the Court has given a finding that at that point of time, when the accident taken place, the lorry was not carrying any hazardous materials basing on Ex.R2 to R8.

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The learned counsel for the claimant has drawn

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the attention of this Court to Exs.R2 to R8 and submits

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NC: 2023:KHC:40602 MFA No. 2104 of 2018 C/W MFA No. 1931 of 2018 MFA No. 2107 of 2018

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that as per the said documents, it is stated that he had taken 12,000/- ltrs. kerosene from the Bharath Petrolium Corporation and as per their own statement as on 19.02.2015, still there is a balance of 959 ltrs. Learned counsel submits that their documents itself shows that still there is 959 Ltrs., is left in the lorry and it is submitted that the Court has failed to appreciate the evidence and they came to a conclusion contrary to the evidence. He submits that as there are violation of terms and conditions of the policy and the driver was not having valid license, the Insurance Company is not liable to pay compensation.

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Learned counsel for the claimant submits that the claimant is a 14 years old boy. As per Wound Certificate, he had sustained two fractures. The Court ought to have granted the compensation on each head and also as it would have an impact on his future prospects, the Court ought to have applied the multiplier and grant the compensation under the head of future loss of income. It is submitted that the compensation that has

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NC: 2023:KHC:40602 MFA No. 2104 of 2018 C/W MFA No. 1931 of 2018 MFA No. 2107 of 2018

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been granted by the Tribunal is not a reasonable compensation.

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Heard the learned counsel on either side and perused the entire material on record. First coming to the liability, it is the case of the Insurance Company that the tanker at the time of accident was carrying hazardous materials and the driver who is driving such special class of vehicle, requires a special license, whereas in this case, the driver was not possessing a license. It is stated that though he was having license, it expired long back i.e., on 04.09.2008 . At that point, he was having only license to drive heavy goods vehicle. The Court has observed that by considering the evidence and documents as per Exs.R2 to R8, the lorry was not carrying hazardous material at the time of the accident. Such observation of the Court below is contrary to Exs.R2 to R8. In the documents filed on behalf of the owner of the vehicle, it clearly mentioned that as on that day, the balance in the tanker was 959 ltrs. In view of the same, this Court finds that the findings

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10 -

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NC: 2023:KHC:40602 MFA No. 2104 of 2018 C/W MFA No. 1931 of 2018 MFA No. 2107 of 2018

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given by the Tribunal is contrary to Exs.R2 to R8 and admittedly, the driver of the tanker was not possessing license to drive the vehicle containing hazardous materials. He was not having valid license. Hence, the principle of pay and recovery will apply. The Insurance Company shall pay the compensation and recover the same from the owner of the vehicle. The owner of the vehicle though in this appeal is served, no vakalath is filed on his behalf.

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Coming to the compensation, in this case, though wound certificate is filed, no doctor was examined, no evidence is adduced to show that what are the amounts spent by the claimant and whether he has suffered any disability or not. Considering the same, the Court had granted an amount of Rs.50,000/-. Considering the wound certificate and he has sustained two grievous injuries i.e., two fractures. This Court is inclined to grant a sum of Rs.80,000/- globally.

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11 -

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NC: 2023:KHC:40602 MFA No. 2104 of 2018 C/W MFA No. 1931 of 2018 MFA No. 2107 of 2018

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Accordingly, MFA No.2104/2017 and MFA

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No.2107/2018 filed by the Insurance Company are partly allowed by applying the principle of pay and recovery.

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MFA No.1931/2018 filed by the claimant is partly

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allowed. The claimant is entitled for compensation of an amount of Rs.80,000/- globally with interest at 6% per annum from the date of petition till the date of realization.

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The Insurance Company shall pay the compensation amount and recover the same from the owner of the vehicle.

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The amount shall be deposited by the Insurance Company within eight weeks.

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The learned counsel for the Insurance Company is

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permitted to file vakalath by 20.11.2023.

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SD/JUDGE

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SNC List No.: 1 Sl No.: 123 CT: BHK

The Manager v. Dilip

Case brief

What is this about?

What did the court decide?

The Manager v. Dilip

Case brief

What is this about?

What did the court decide?

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