Partly allowed

Shriram General Ins. Co.Ltd., v. Smt Anitha a G

Karnataka HC8 Jun 2023MFA/4173/2016

Case brief

AI extract

What is this about?

High Court heard three appeals against compensation awards in motor accident cases. It held insurers remain liable despite route permit deviation but enhanced compensation for a pedestrian and a scooter rider based on更佳 medical evidence and income calculations.

What did the court decide?

Compensation enhanced to Rs.13,88,000 for pedestrian claimant and Rs.2,67,220 maintained for scooter rider. Insurer to deposit amounts and recover from owner within four weeks.

Shriram General Ins. Co.Ltd., Vs Smt… — Contract and Commercial Disputes | Karnataka HC (2023)

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NC: 2023:KHC:19860 MFA No.4173/2016 C/w MFA No.2856/2016 MFA No.4172/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF JUNE 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL No.4173/2016 (MV-I) C/w

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MISCELLANEOUS FIRST APPEAL No.2856/2016 (MV-I) MISCELLANEOUS FIRST APPEAL No.4172/2016 (MV-I) MFA No.4173/2016:

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BETWEEN:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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SHRIRAM GENERAL INS. CO. LTD. REGIONAL OFFICE NO.14, II FLOOR MONARCH CHAMBERS, INFANTRY ROAD BENGALURU - 560 001 NOW REPRESENTED BY DEPUTY MANAGER LEGAL SHRIRAM GENERAL INS. CO.LTD. NO.5/4, 3^RD FLOOR, S.V.ARCADE BILEKAHALLI MAIN ROAD OFF: B.G.ROAD, IIM POST BENGALURU – 560 076 …APPELLANT

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(BY SRI A N KRISHNA SWAMY, ADVOCATE)

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AND:

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SMT ANITHA A G W/O MAHALINGAPPA AGED ABOUT 27 YEARS R/AT NO.72/4, 3^RD MAIN, 4^TH CROSS DODDANNA INDUSTRIAL AREA I.P.NAGAR, BENGALURU – 560 058

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GIRISH H.K. S/O LATE KESHAVA MURTHY MAJOR

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DOOR NO.18/151 PROP. SNMS HEBBUR TUMKUR – 572 129 …RESPONDENTS

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(BY SRI D.S.SRIDHAR, ADVOCATE FOR R1; R2 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 19.10.2015 PASSED BY II ADDITIONAL SMALL CAUSES JUDGE, XXVIII ACMM, BENGALURU CONCURRENT CHARGE OF SMALL CAUSES JUDGE, XXVI ACMM (SCCH-9) IN MVC NO.3392/2014 AWARDING COMPENSATION OF RS.2,67,220/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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MFA No.2856/2016:

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BETWEEN:

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SRI GIRISH R B S/O BETTASWAMAIAH AGED ABOUT 29 YEARS R/AT NO.61, 17^TH CROSS VINAYAKA EXTENSION ANDHRAHALLI, BANGALORE – 560 009

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...APPELLANT

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(BY SRI KRISHNA B J, ADVOCATE)

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AND:

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MR.GIRISH H K

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S/O LATE KESHAVAMURTHY PROP: S N M S, HEBBUR – 572 120 TUMKUR TALUK, TUMKUR DISTRICT

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M/S SHRIRAM GENERAL INSURANCE COMPANY LIMITED NO S-5, 2^ND FLOOR, MONARCH CHAMBERS INFANTRY ROAD, BANGALORE – 560 001 REPRESENTED BY ITS MANAGER …RESPONDENTS

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(BY SRI A N KRISHNASWAMY, ADVOCATE FOR R2; R1 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 05.12.2015 PASSED BY THE II ADDITIONAL SMALL CAUSES JUDGE, XXVIII ACMM, BENGALURU, CONCURRENT CHARGE OF SMALL CAUSES JUDGE, XXVI ACMM (SCCH-9) IN MVC NO.4125/2014.

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NC: 2023:KHC:19860 MFA No.4173/2016 C/w MFA No.2856/2016 MFA No.4172/2016

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MFA No.4172/2016:

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BETWEEN:

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MANAGER SHRIRAM GENERAL INS. CO.LTD., S/5, II FLOOR, MONARCH CHAMBERS INFANTRY ROAD, BENGALURU-560 001 NOW REPRESENTED BY ITS DEPUTY MANAGER LEGAL SHRIRAM GENERAL INS. CO. LTD. NO.5/4, 3^RD FLOOR, S.V. ARCADE BILEKAHALLI MAIN ROAD OFF: B.G.ROAD, IIM POST BENGALURU – 560 076

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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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GIRISH R.B. S/O BETTASWAMAIAH AGED ABOUT 29 YEARS R/AT NO.61, 17^TH CROSS VINAYAKA EXTENSION ANDHRAHALLI, BENGALURU - 560 009

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GIRISH H.K. S/O LATE KESHAVAMURTHY MAJOR DOOR NO.18/151 PROP. SNMS HEBBUR TUMKUR – 572 129 …RESPONDENTS

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(BY SRI KRISHNA B J, ADVOCATE FOR R1; SRI A.V.VIRUPAKSHA PRABHU, ADVOCATE FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 05.12.2015 PASSED BY II ADDITIONAL SMALL CAUSES JUDGE, XXVIII ACMM, BENGALURU, CONCURRENT CHARGE OF SMALL CAUSES JUDGE, XXVI ACMM (SCCH-9) IN MVC NO.4125/2014 AWARDING A COMPENSATION OF RS.10,53,600/- WITH INTEREST @ 6% P.A FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT.

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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR FINAL HEARING, THIS DAY, K.S.MUDAGAL J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals arise out of the accident which took place on 26.07.2014 at 8.30 a.m. near 10^th cross, Karimsab layout, Hegganahalli Village between bus bearing registration No.KA-25-B-3906, auto-rickshaw bearing registration No.KA-02-AD-5829 and scooter bearing registration No.KA-02-HL-3787.

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Girish an injured in the said accident filed M.V.C.No.4125/2014 and Anitha another injured filed M.V.C.No.3392/2014 before the Small Causes Court, XXVI Additional Chief Metropolitan Magistrate and MACT, Bangalore.

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M.V.C.No.3392/2014 filed by Smt.Anitha was partly allowed by award dated 19.10.2015. The insurer has challenged that award in M.F.A.No.4173/2016.

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M.V.C.No.4125/2014 filed by Girish was partly allowed on 05.12.2015. Challenging the said award, the claimant has preferred M.F.A.No.2856/2016.

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For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

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On 26.07.2014 at about 8.30 a.m. near 10^th Cross, Karimsab Layout, Hegganahalli Main Road within the limits of Peenya traffic police, bus bearing registration No.KA25-B-3906, auto-rickshaw bearing registration No.KA-02-AD5829 and scooter bearing registration No. KA-02-HL-3787 hit the claimant in M.V.C.No.4125/2014 who was a pedestrian. The claimant in M.V.C.No.3392/2014 was rider of scooter bearing registration No. KA-02-HL-3787. In the accident, she also suffered injuries.

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Smt.Anitha filed M.V.C.No.3392/2014 and Girish who was pedestrian filed M.V.C.No.4125/2014 claiming that the accident and consequent injuries to them were caused by actionable negligence on the part of the driver of bus bearing No.KA-25-B-3906. They further contended that due to the injuries suffered in the accident, they have suffered permanent physical disability. At the relevant time, respondent No.1 was the registered owner and respondent No.2 was the insurer of the bus bearing No.KA-25-B-3906. The claimants contended that respondent No.1 being owner is vicariously liable to the tortious act of the driver of the bus and respondent No.2 being insurer is liable to indemnify the damages.

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In both cases, respondent No.1 registered owner of the vehicle did not contest the matter. Respondent No.2 insurer alone contested the claim petitions denying occurrence of the accident, actionable negligence on the part of the driver of the bus bearing No.KA-25-B-3906, injuries suffered by the victims/claimants, their age, occupation, income and permanent physical disability alleged by them. The insurer further contended that the said bus was operating in violation of policy condition, therefore it was not liable to indemnify the damages.

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In M.V.C.No.4125/2014 on behalf of the claimant,

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PWs.1 to 3 were examined and Exs.P1 to P17 were marked. On behalf of the insurer, RWs.1 and 2 were examined and Exs.R1 to R7 were marked.

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In M.V.C.No.3392/2014 on behalf of the claimant, PWs.1 and 2 were examined and Exs.P1 to P12 were marked. On behalf of the insurer, RWs.1 and 2 were examined and Exs.R1 to R7 were marked.

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The Tribunal on hearing the parties, by the impugned judgments and awards held that the accident occurred due to actionable negligence on the part of the

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driver of the bus. In M.V.C.No.4125/2014, the Tribunal awarded compensation of Rs.10,53,600/- on different heads

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as per the table below:

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Sl. No.	Particulars	Amount in Rs.
1.	Injury pain & sufferings	65,000/-
2.	Loss of earnings during Medical treatment	28,000/-
3.	Medical expenses	6,08,000/-
4.	Loss of future earnings	2,85,600/-
5.	Loss of amenities	30,000/-
6.	Conveyance, nourishment, food and attending charges	7,000/-
7.	Future medical expenses	30,000/-
	Total	10,53,600/-

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12. In M.V.C.No.3392/2014, the Tribunal awarded

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compensation of Rs.2,67,220/- on different heads as per the

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table below:

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Sl. No.	Particulars	Amount in Rs.
1.	Injury pain & sufferings	35,000/-
2.	Loss of earnings during Medical treatment	21,000/-
3.	Medical expenses	22,820/-
4.	Loss of future earnings due to disability	1,34,400/-
5.	Loss of amenities	20,000/-
6.	Conveyance, nourishment, food and attending charges	19,000/-
7.	Future medical expenses	15,000/-
	Total	2,67,220/-

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Questioning the quantum of compensation

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awarded in M.V.C.No.4125/2014, the claimant therein has

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preferred M.F.A.No.2856/2016 and questioning its liability, the Insurer has preferred M.F.A.No.4172/2016. The claimant in M.V.C.No.3392/2014 has not challenged the award, whereas the insurer has challenged the said award questioning its liability in M.F.A.No.4173/2016. Therefore the above matters are connected and taken up together for disposal by this common judgment.

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Sri A.N.Krishna Swamy, learned counsel for the Insurer relying on the evidence of R.W.2 and Ex.R1 to Ex.R7 submits that the bus was being operated in deviation of route permit. He further submits that in view of Section 66, Section 72(2)(1) of the Motors Vehicles Act, 1988 condition of policy in Ex.R1 to the effect that policy covers use only under a permit, the Tribunal should have exonerated the Insurer of its liability as it was a clear case of breach of policy condition. In support of his submission, he relies upon judgment of the Hon’ble Supreme Court in the case of National Insurance Co.Ltd. vs. Challa Bharathamma and others¹ .

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Sri.B.J.Krishna and Sri.D.S.Sreedhar who represent the claimants submit that there was a permit to

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1 AIR 2004 SC 779

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operate the bus, but the bus was operated on parallel road in the same route. Even otherwise, as per the judgment in

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Challa Bharathamma’s case itself, the Insurer is liable to pay the compensation and recover the same from the owner. In support of their submissions they rely upon the judgment of the Hon’ble Supreme Court in the case of Pappu v Vinod Kumar Lamba² .

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So far as the quantum of compensation, Sri.B.J.Krishna, learned counsel representing the claimant/appellant in MVC No.4125/2014 (appellant in MFA No.2856/2016) submits that against the medical evidence adduced by the claimant, the Tribunal has reduced the permanent physical disability without assigning acceptable reasons, thereby reduced the compensation payable on the head of loss of further earnings. He further submits that the compensation awarded on all the heads is on the lower side. He submits that the Tribunal has responsibility to award just compensation in accordance with the settled judicial norms. Therefore, he seeks dismissal of the appeal of the Insurer and enhancement of compensation by allowing his appeal.

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2 (2018)3 SCC 208

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On considering the submission on both sides and on examining the material on record, the questions that arise for our consideration are:

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(1) Whether the Tribunal was justified in holding that the Insurer is liable to pay compensation to the claimants?

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(2) Whether the compensation awarded in MVC No.4125/2014 is just and proper?

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Reg. Liability:

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Occurrence of the accident involving Bus No.KA25/B-3906 due to actionable negligence on the part of the driver of the said bus is not under challenge. Respondent No.1, owner of the bus did not contest the petition at all. Regarding the accident, Peenya Traffic Police registered a case in Crime No.136/2014. On investigation, the said Police charge sheeted the driver of the Bus for the offences punishable under Sections 279, 338 of IPC and Sections 134 (A & B), 187, 66(1) and Section 192 of the Motor Vehicles Act, 1988.

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In the charge sheet, it is specifically stated that the driver of the bus operated the bus violating route permit from Malecross to Bengaluru. The said evidence was further

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substantiated by the evidence of R.W.2-the Deputy Commissioner for Transport and Senior RTO to the effect that the driver of the bus operated the bus in deviation of the route permit. Respondent No.1 who is the owner of the bus did not contest the matter and cross-examine R.W.2 to deny that the bus was operated in deviation of the route permit. Under the circumstances, the Tribunal was not justified in holding that the driver of the offending bus operated the bus in the same route on parallel road, therefore, the Insurer is liable to indemnify the damages.

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The question whether such breach of condition would completely absolve the Insurer in the proceedings was examined by the Hon’ble Supreme Court in Chella Bharathamma’s case relied on by the learned counsel for the Insurer himself. In the said judgment and in the judgments of larger Bench of the Hon’ble Supreme Court in Rani and Others vs. National Insurance Company Limited And Others³ and Pappu’s case referred to supra it was held that even if there is such violation, the insurer’s liability to the third party is not absolved and the Insurer has to indemnify the damages and recover the same from the owner of the

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3 (2018)8 SCC 492

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vehicle. Having regard to the said ratio, the Insurer is entitled to succeed in these appeals only to that extent.

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Reg. Quantum of Compensation in MVC No.4125/2014 (MFA No.2856/2016):

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The claimant in this case contended that at the time of accident, he was aged about 27 years and working as Fitter and Machine Operator, earning salary of Rs.15,500/p.m. He further contended that due to the injuries suffered in the accident, he suffered permanent physical disability and not able to pursue his work and earn. Thus he claimed compensation of Rs.30,00,000/-.

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To prove the injuries suffered by him and permanent physical disability, he examined P.W.2, Orthopedic Surgeon and P.W.3, Plastic Surgeon who treated him in Lakshmi Multi Specialty Hospital, Magadi Road, Bengaluru. The aforesaid two witnesses in corroboration with the evidence of the claimant deposed that he was admitted into the said Lakshmi Multi Speciality Hospital on 26.07.2014 and he was treated as Indoor Patient till 01.09.2014. Ex.P6 and P7 are the wound certificate and discharge summary issued by the said hospital. These documents coupled and

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the evidence of P.W.2 show that the claimant had suffered following injuries:

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Contusion over forehead in the middle, CT brain shows bilateral occipital infarct.

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Contusion over the right shoulder, Chest X-ray shows fracture of right clavicle in the middle.

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Contusion over the left shoulder on lateral aspect, X-ray of chest shows fracture of left clavicle in the middle.

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Contusion over the right scapular region on the back, X-ray of chest shows fracture in the sub scapular region.

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Abrasion over the right maxillary region.

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The above evidence goes to show that the claimant had suffered three fractures and head injury. P.W.2 who treated the claimant deposed with reference to the permanent physical disability to each injured organ. He further deposed that permanent physical disability to the whole body was 32%. The Tribunal without assigning any acceptable reasons, on the general observations without considering the injuries suffered by the victim has held that the claimant has suffered 20% permanent physical disability to the whole body which is incorrect.

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The Tribunal notionally considered the income of the claimant at Rs.7,000/- p.m. The accident took place in the year 2014. The claimant was working as skilled labour i.e., Fitter and Machine Operator. Having regard to the nature of his work, prevailing wage rates and cost of living during the year 2014 and the age of the claimant, the notional income considered by the Tribunal is on the lower side. The Tribunal should have considered the monthly notional income of the claimant at Rs.8,500/-. Considering the age of the claimant, the appropriate multiplier would be 17. At that rate, the compensation payable on the head of loss of future earnings would be Rs.8500x 32% = 2720 x 12 x 17 = 5,54,880/-.

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Having regard to the evidence of P.W.2 and P.W.3, nature of injuries suffered by the claimant and period of hospitalization and other medical evidence, the compensation awarded on the head Pain and Suffering is on the lower side. The Tribunal ought to have awarded a sum of Rs.1,00,000/- on the head Pain and Suffering.

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The medical expenses awarded by the Tribunal is based on the evidence adduced by the claimant. That needs

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no interference. The compensation awarded on the head loss of income during the laid up period i.e., four months shall be increased in commensurate with wage rate of Rs.8,500/p.m. which comes to Rs.34,000/- (8500 x 4).

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Having regard to the nature of injuries suffered by the claimant, the evidence of doctor and other material on record, the compensation awarded towards loss of amenities is on the lower side and that should have been enhanced by awarding Rs.50,000/-.

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The Tribunal has awarded a sum of Rs.7,000/towards Food, Nourishment and Attendant charges. The claimant was hospitalized for a period of 37 days in Bengaluru. Towards conveyance, food and nourishment for the said period, the Tribunal ought to have awarded a sum of Rs.300/- per day which comes to Rs.11,100/- (300 x 37).

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Though P.W.3-Plastic Surgeon deposed that the claimant requires future medical treatment, no evidence was produced by the appellant even before this Court to show that the claimant took any further treatment spending a sum of Rs.2,00,000/-. Therefore, compensation of Rs.30,000/awarded on the head of future medical expenses needs to be

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maintained. The claimant is entitled to total compensation as

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follows:

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Sl. No.	Particulars	Amount in Rs.
1	Pain and Suffering	1,00,000.00
2	Loss of Future income	5,54,880.00
3	Medical Expenses	6,08,000.00
4	Loss of income during the laid up period.	34,000.00
5	Loss of amenities	50,000.00
6	Food, Nourishment, Attendant charges and conveyance	11,100.00
7	Future medical expenses	30,000.00
	Total	13,87,980.00 rounded to 13,88,000.00

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Hence, the claimant is entitled to total compensation of Rs.13,87,980/- which is rounded to Rs.13,88,000/-. The award of the Tribunal in MVC No.4125/2014 requires to be modified accordingly. The interest awarded at the rate of 6% p.a. on the compensation amount is in accordance with Section 34 of CPC. The same does not warrant interference of this Court. In the light of the discussions made above, all the appeals deserve to be allowed in part. Hence, the following:

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ORDER

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MFA Nos.2856/2016, 4172/2016 and 4173/2016 are

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partly allowed.

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The award in MVC No.4125/2014 is modified as follows:

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The claimant is entitled to compensation of

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Rs.13,88,000/- with interest thereon at the rate of 6% p.a. from the date of petition till its realization.

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Respondent No.1 is liable to pay the said

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compensation. Respondent No.2-Insurer shall deposit the said compensation before the Tribunal within four weeks from the date of receipt of a copy of this award and recover the same from Respondent No.1 by executing this award.

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The award in MVC No.3392/2014 is modified as follows: The claimant is entitled to compensation of Rs.2,67,220/- with interest thereon at 6% p.a. from the date of petition till its realization.

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Respondent No.1 is liable to pay the said compensation. Respondent No.2-Insurer shall deposit the said compensation before the Tribunal within four weeks from the date of receipt of a copy of this award and recover the same from Respondent No.1 by executing this award.

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On deposit of the amount, the Tribunal to release the award amount to the claimants.

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