Partly allowed

Avinash B. R. v. Karthik

Karnataka HC12 Jan 2023MFA/5825/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a misc. first appeal partially, modifying the Tribunal's award. The Court held that a valid defence was established under Section 149(2) of the MV Act regarding the insurer's liability. Additionally, the compensation was enhanced by Rs. 60,000/- due to grievous injuries sustained.

What did the court decide?

Additional compensation of Rs. 60,000/- along with interest at 6% per annum granted; insurer directed to follow 'pay and recover' principle.

Avinash B. R. Vs Karthik — Insurance | Karnataka HC (2023)

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MFA No. 5825 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.5825 OF 2017(MV-I)

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BETWEEN:

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AVINASH B. R. AGED ABOUT 25 YEARS, S/O. LATE RANGAMUTHAIAH. B.T., R/O. SRINIVASA NILAYA, I MAIN, SIDDAGANGA EXTENSION, TUMAKURU TOWN, STUDYING IN SIT IN MBA 4TH SEM MARKETING, B.H. ROAD, TUMAKURU-572 101.

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

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(BY SRI. PATEL D. KARE GOWDA, ADVOCATE)

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…APPELLANT

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AND:

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KARTHIK, AGED ABOUT 22 YEARS, S/O. NANJAPPA, R/O. KOLALA VILLAGE-572129, KORATAGERE TALUK, TUMAKURU DISTRICT.

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KRISHNAMURTHY, AGED ABOUT 33 YEARS, S/O. CHIKKELLAIAH, R/O. C. YEDAVANAHALLY-572 216,

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MFA No. 5825 of 2017

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KOPPA POST, KADABA HOBLI, GUBBI TALUK, TUMAKURU DISTRICT.

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THE MANAGER,

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ICICI LOMBARD GENERAL INSURANCE CO.,LTD., BRANCH OFFICE, PRAJA PRAGATHI BUILDING, II FLOOR, B.H. ROAD, TUMAKURU-572 101.

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K. V. NANJAPPA, AGED ABOUT 61 YEARS, S/O. H. N. VEERABHADRAIAH, R/O. KOLALA VILLAGE AND HOBLI-572 129, KORATAGERE TALUK, TUMAKURU DISTRICT.

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…RESPONDENTS

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(BY SRI. FAYAZ SAB B.G., ADVOCATE FOR R1 AND R4; SRI. ABDUL KHADAR, ADVOCATE FOR R2; SRI. A.N. KRISHNASWAMY, ADVOCATE FOR R3)

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.05.2017 PASSED IN MVC NO.130/2014 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE & MACT, TUMAKURU, SEEKING FOR ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

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THE COURT DELIVERED THE FOLLOWING:

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MFA No. 5825 of 2017

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JUDGMENT

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This appeal is filed by the claimant against the Judgment and Award dated 02.05.2017 in MVC No.130/2014 passed by the II Addl. Senior Civil Judge and MACT, Tumakuru (for brevity, referred to as 'the Tribunal'), questioning the liability fixed on the owner of the Autorickshaw as well as for enhancement of compensation.

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Though the matter is listed for admission, with the

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consent of learned counsel appearing for the parties, it is heard for final disposal.

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The brief facts of the case are that on 18.09.2012 at 8.00 p.m. when the petitioner was walking along with his friend on the left side footpath near petrol bunk of Kolala village on Tumakuru - Kolala Road, a goods auto bearing Registration No.KA-06-B-4721 driven by its driver in a rash and negligent manner with high speed, came behind and dashed to the petitioner. As a result, the petitioner fell down, sustained multiple injuries and immediately was taken to Dr. Narasimhaiah Hospital, Tumakuru and treated. Thereafter, the

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MFA No. 5825 of 2017

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petitioner was taken to Abhaya Hospital, Bengaluru for further

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treatment as per the advice of the doctor. Seeking compensation for the accidental injuries, petitioner preferred MVC No.130/2014 against the driver, owner and insurer before the Tribunal. It appears that as the second respondent had sold the vehicle in question to one Sri. K.V. Nanjappa, said person was arrayed as fourth respondent in the claim petition.

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Upon issuance of notice, respondents appeared through their respective learned counsel before the Tribunal and filed separate written statements. The Tribunal, upon hearing learned counsel for the parties, framed issues. By appreciating the oral and documentary evidence produced, the petitioner was held entitled for global compensation of Rs.1,20,000/- with 6% interest per annum from the date of petition till realisation. The insurance company was absolved from any liability. The first and fourth respondents i.e. driver and owner of the offending vehicle were jointly and severally held liable to pay the compensation to the petitioner. Seeking enhancement of compensation, the petitioner has preferred this appeal.

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MFA No. 5825 of 2017

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Having heard learned counsel appearing for the parties, I have perused the records.

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In the present case, the driver of the Autorickshaw was not holding a driving licence to drive the Autorickshaw. Therefore, Tribunal has held that respondent No.1 driver and respondent No.4 owner of the Autorickshaw are jointly and severally liable to pay the compensation.

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The driver or the owner of the Autorickshaw have

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not produced the driving licence. Therefore, the Tribunal is correct in absolving the insurance company to pay the compensation. But as per sub-section (2) of Section 149 of the MV Act, if the insurance company is able to establish successfully its defence as per subsections (1), (4) and (7) of the MV Act, then the insurance company as if it were the judgment debtor in respect of the liability together with interest, has to satisfy the claim in respect of third parties and then recover it from the owner of the Autorickshaw as per the principle of law enunciated by the Hon'ble Supreme Court in

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PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND

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ANOTHER reported in (2018) 3 SCC 208 , NATIONAL

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MFA No. 5825 of 2017

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INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS reported in (2004) 3 SCC 297 and the Judgment of this Court in NEW INDIA ASSURANCE COMPANY LIMITED vs. YALLAVVA AND ANOTHER reported in 2020 ACJ 2560 (HCK) . Therefore, a direction in terms of pay and recover principle needs to be issued directing the insurance company to satisfy the claim of the claimant as a third party and then recover the same from the owner of the Autorickshaw.

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With regard to quantum of compensation, the Tribunal has granted a global compensation of Rs.1,20,000/along with interest. The medical evidence on record proves that the claimant sustained following injuries:

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" Fracture of right clavicle, right bari frontal EDH, Fracture involving right arbital roof, right frontal, Sinus, adjacent ethmoids and left temporal contusion (head injury)"

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The claimant was admitted in the hospital for a period of ten days at Abhaya Hospital, Bengaluru. The injuries

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MFA No. 5825 of 2017

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are grievous in nature. The claimant has spent medical expenses of Rs.66,000/-. The claimant must have spent some considerable amount towards incidental expenses like food, transportation, nourishment etc. Therefore, considering the overall facts of the case and the injuries sustained as discussed above, it is just and proper to award additional compensation of Rs.60,000/- along with interest at 6% per annum from the date of petition till realisation in addition to what has been awarded by the Tribunal.

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Accordingly, I pass 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 dated 02.05.2017, passed in MVC No.130/2014, on the file of II Addl. Senior Civil Judge and MACT, Tumakuru, is modified to an extent that the appellant – claimant is entitled for an additional compensation of Rs.60,000/- (Rupees Sixty Thousand Only), along with interest at 6% per

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MFA No. 5825 of 2017

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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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iii. Registry is directed to send a copy of this Judgment to the concerned Tribunal, forthwith.

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iv. Draw Award accordingly.

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Sd/JUDGE

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