Partly allowed

Divisional Manager v. Hydar

Karnataka HC29 Nov 2023MFA/2618/2017

Case brief

AI extract

What is this about?

Insurance company underwrote a motor vehicle policy as an 'Act Policy' covering only the driver. The Court held the insurer has no liability for injuries sustained by the pillion rider. The claimant's cross-objection was allowed in part with compensation enhanced from Rs. 2,18,500 to Rs. 2,75,200.

What did the court decide?

Maximum compensation enhanced to Rs. 2,75,200; insurer not liable as policy is 'Act Policy' covering only driver.

Divisional Manager Vs Hydar — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:43285 MFA No. 2618 of 2017 C/W MFA.CROB No. 21 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^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. 2618 OF 2017 (MV-I) C/W

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MFA CROSS OBJECTION NO. 21 OF 2018 (MV-I)

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IN MFA NO. 2618/2017

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BETWEEN:

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DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, CRESCENT COURT, K. M. ROAD, CHIKMAGALUR - 577 101.

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…APPELLANT

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(BY SRI. A.N. KRISHNA SWAMY, ADVOCATE)

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AND:

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

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HYDAR, S/O B. K. HASANABBA, NOW AGED ABOUT 36 YEARS, OCC: MASON, R/O SHANTHINAGAR, HARIHARAPURA, KOPPA TALUK, CHIKMAGALUR DISTRICT.

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VIJAYAKUMAR S. NAYAK, S/O SIDDAPPA NAYAK, NOW AGED ABOUT 39 YEARS, R/O SRINGERI ROAD, HARIHARAPURA, KOPPA TALUK,

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NC: 2023:KHC:43285 MFA No. 2618 of 2017 C/W MFA.CROB No. 21 of 2018

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CHIKMAGALUR DISTRICT.

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…RESPONDENTS

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(BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE FOR R1; SRI. R.B. DESHPANDE, ADVOCATE FOR R2;)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.11.2016 PASSED IN MVC NO.14/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE & PRINCIPAL JMFC, MACT, TARIKERE, AWARDING COMPENSATION OF RS.2,18,500/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA CROB NO.21/2018

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BETWEEN:

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SRI. HYDAR, S/O B.K. HASANABBA, AGED ABOUT 39 YEARS, MASON, R/O SHANTHINAGAR, HARIHARAPURA, KOPPA TALUK, CHIKKAMAGALURU DISTRICT - 577 101.

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…CROSS OBJECTOR

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(BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE)

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AND:

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SRI. VIJAYAKUMAR S. NAYAK, S/O SIDDAPPA NAYAK, AGED 39 YEARS, R/AT SRINGERI ROAD, HARIHARAPURA, KOPPA TALUK, CHIKKAMAGALURU DISTRICT.

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THE UNITED INDIA INSURANCE CO. LTD.,

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NC: 2023:KHC:43285 MFA No. 2618 of 2017 C/W MFA.CROB No. 21 of 2018

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CHIKKAMAGALURU POLICY BEARING NO.2414000/3111/02/00008211.

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…RESPONDENTS

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(BY SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R2; SRI. R.B. DESHPANDE, ADVOCATE FOR R1 (VAKALAT NOT FILED); VIDE ORDER DATED 30.01.2023 NOTICE ISSUED TO R1)

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THIS MFA CROB IS FILED U/O.41 RULE 22 R/W 173(1) OF THE MV ACT, AGAINST THE JUDGMENT AND AWARD DT.08.11.2016 PASSED IN MVC NO.14/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MAMACT, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL AND MFA CROB, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the award passed in M.V.C.No.14/2013 dated 08.11.2016 on the file of Senior Civil Judge and Prl. JMFC., Tarikere, the Insurance Company has preferred the present appeal. The claimant has also filed cross objection in MFA CROB No.21/2018. The claim petition was filed seeking compensation of an amount of Rs.16,25,000/- for the injuries sustained by the claimant in the accident.

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4 - NC: 2023:KHC:43285 MFA No. 2618 of 2017 C/W MFA.CROB No. 21 of 2018

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The case of the claimant is that on 28.10.2011,

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he was proceeding on a motor cycle as a pillion rider, while he was returning in the said motor cycle, the rider of the vehicle drove the same in a rash and negligent manner. He lost control over the vehicle and the vehicle fell down on the road. Due to that, he sustained grievous injuries.

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It is the case of the Insurance Company that it is an Act Policy and the Insurance Company has no liability in respect of the pillion rider. The Court below while holding the Insurance Company liable, had observed that the driving license of respondent No.1 is marked which discloses that he had valid driving license to drive the

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motor vehicle and it was valid from 14.05.2001 to 31.05.2021. Further, Ex.R.2 is the insurance policy of the motor cycle which is valid from 31.07.2011 to 30.07.2012. Hence, the Court below had observed that as on the date of the accident, the rider of the vehicle was having a

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5 - NC: 2023:KHC:43285 MFA No. 2618 of 2017 C/W MFA.CROB No. 21 of 2018

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driving license and there was a valid insurance policy as on the date of the accident and hence, the respondents are liable to pay the compensation.

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Learned counsel appearing for the appellant - Insurance Company submits that the policy, Ex.R.2 is an Act Policy and in that, the liability of pillion rider is not covered. When the liability is not covered, the Court below ought not to have held that the Insurance Company is liable to pay the compensation. Just because there is a policy and the rider of the vehicle is having a valid driving license, that itself cannot be a ground to held that the Insurance Company is liable to pay the compensation. It is submitted that the award passed by the Tribunal is without appreciating the evidence on record.

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Learned counsel appearing for the claimant submits that he is a third party to the Insurance Policy and even if there is any violation of terms and conditions of the policy, still the Insurance Company is liable to pay the

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6 - NC: 2023:KHC:43285 MFA No. 2618 of 2017 C/W MFA.CROB No. 21 of 2018

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compensation and recover the same from the owner of the vehicle.

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Having heard the learned counsel on either side, perused the entire material on record. A bare perusal of Ex.R.2 shows that it is an Act Policy where the risk of the pillion rider is not covered. In that case, the question of applying pay and recover will not arise. The Court below without considering this had held that the Insurance Company is liable to pay the compensation. In that view of the matter, this Court finds that the Insurance Company has no liability to pay the compensation to the claimant who is a pillion rider when the policy is an Act policy and it is the owner alone who is liable to pay the compensation.

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IN MFA CROB No.21/2018

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Learned counsel for the claimant submits that the compensation that was awarded by the Tribunal was not reasonable. According to the claimant, he was working as a mason and earning an amount of Rs.600/- per day and

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7 - NC: 2023:KHC:43285 MFA No. 2618 of 2017 C/W MFA.CROB No. 21 of 2018

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the Court below had taken only an amount of Rs.4,500/as the income per month. It is stated that it is on the lower side. When the doctor had deposed that the claimant requires an amount of Rs.1,50,000/- for the future operation, the Court below had only granted an amount of Rs.30,000/-. No amount was granted towards loss of amenities. It is submitted that the compensation that was awarded was not just and reasonable.

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The claimant had sustained grievous injuries and

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the Court below had granted only an amount of Rs.35,000/- under the head of pain and suffering. This Court is inclined to grant Rs.50,000/- under the head of pain and suffering . Towards medical expenses considering the evidence on record, the Court below had granted an amount of Rs.78,300/- and no interference is called for in that regard. When it comes to conveyance, food and attendant charges, the Court below had granted only an amount of Rs.5,000/-. Considering the injuries and the hospitalization, this Court is inclined to grant an

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8 - NC: 2023:KHC:43285 MFA No. 2618 of 2017 C/W MFA.CROB No. 21 of 2018

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amount of Rs.15,000/- towards conveyance, food and attendant charges . Then coming to the loss of income during the laid up period, as this is an accident of the year 2012, this Court is inclined to take Rs.6,500/- as the income, for three months, it would come to Rs.6,500x3 = Rs.19,500/-. Hence, an amount of Rs.19,500/- is granted towards loss of income during the laid up period .

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When it comes to loss of future income the Court below had considered 5% disability and an amount of Rs.4,500/- as the income. This Court is considering the income of the claimant at Rs.6,500/- and loss of future income would come to Rs.6,500x12x16x5 = Rs.62,400/- . Then coming to future medical expenses, this Court is not able to appreciate the contention of the learned counsel for the appellant that when the doctor has deposed that he requires Rs.1,75,000/-, the Court below had only granted Rs.30,000/- operation for removal of implants. Then coming to loss of amenities, no amount

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9 - NC: 2023:KHC:43285 MFA No. 2618 of 2017 C/W MFA.CROB No. 21 of 2018

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was granted. Considering the injuries sustained by the claimant, an amount of Rs.10,000/- is reasonable towards loss of amenities . Altogether, the claimant is entitled for an amount of Rs.2,75,200/- .

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The claimant is therefore, entitled to the compensation under the following heads:

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	Heads		C	ompensation Awarded
1.	Pain and Sufferings	:	Rs.	50,000/-
2.	Medical expenses	:	Rs.	78,300/-
3.	Conveyance, food and attendant charges	:	Rs.	15,000/-
4.	Loss of income during the laid up period	:	Rs.	19,500/-
5.	Loss of future income	:	Rs.	62,400/-
6.	Future medical expenses	:	Rs.	30,000/-
6.	Loss of amenities	:	Rs.	10,000/-
7.	Legal Expenses	:	Rs.	10,000/-
	TOTAL	:	Rs.	2,75,200/-

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10 - NC: 2023:KHC:43285 MFA No. 2618 of 2017 C/W MFA.CROB No. 21 of 2018

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Accordingly, the appeal of the Insurance

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Company is allowed by holding that the owner alone is liable to pay the compensation. The cross objection filed by the claimant in MFA CROB No.21/2018 is allowed-inpart by enhancing the compensation from an amount of Rs.2,18,500/- to an amount of Rs.2,75,200/- which the owner of the vehicle is liable to pay.

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i. Insurance company is at liberty to withdraw the amount deposited.

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ii. The enhanced amount shall carry interest at 6% p.a. from the date of petition till the date of realization.

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iii. 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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iv. No costs.

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11 -

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NC: 2023:KHC:43285 MFA No. 2618 of 2017 C/W MFA.CROB No. 21 of 2018

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Pending miscellaneous petitions, if any, shall stand

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closed.

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Sd/JUDGE

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MEG List No.: 1 Sl No.: 76 CT: BHK

Divisional Manager v. Hydar

Case brief

What is this about?

What did the court decide?

Divisional Manager v. Hydar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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