Partly allowed

Gangadhar G R v. K L Lokesh

Karnataka HC15 Nov 2023MFA/7714/2017

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly against an award enhancing compensation for a motor vehicle accident. The court held the insurer is liable to the third-party claimant and enhanced damages for pain, suffering, future loss, and amenities based on doctor evidence.

What did the court decide?

Enhancement of compensation from Rs. 2,15,060 to Rs. 3,59,080; insurer directed to pay and recover from owner within eight weeks.

Gangadhar G R Vs K L Lokesh — Insurance | Karnataka HC (2023)

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NC: 2023:KHC:40821 MFA No. 7714 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF NOVEMBER, 2023 BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO.7714 OF 2017 (MV-I)

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BETWEEN:

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GANGADHAR G.R. AGED ABOUT 45 YEARS, S/O. RANGASHAMANNA, R/O. GIDDAIAHNA PALYA – 572132, PURAVARA HOBLI, MADHUGIRI TALUK, TUMAKURU DISTRICT. ... APPELLANT

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(BY SRI HARISH N.R., ADVOCATE)

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AND:

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K.L. LOKESH AGED ABOUT 38 YEARS, S/O. K.N. LAKSHMIPATHI, R/O. IMMADAGONDANAHALLI, PIN – 572132

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PURAVARA HOBLI, MADHUGIRI TALUK, TUMAKURU DISTRICT.

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

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ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD., NO.2315/B-12068/B, I FLOOR, ATHARANA ARCADE, M.G. ROAD, TUMAKURU – 572 101. ... RESPONDENTS

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(BY SRI O. MAHESH, ADVOCATE FOR R-2; R-1 SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.06.2017 PASSED IN MVC NO.22/2015 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND MACT XIII, MADHUGIRI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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NC: 2023:KHC:40821 MFA No. 7714 of 2017

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JUDGMENT

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This appeal is filed by the claimant aggrieved by the award passed by the Additional Senior civil Judge and MACT XIII, Madhugiri in MVC No.22/2015 dated 27.06.2017.

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The claim petition was filed seeking

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compensation of an amount of Rs.6,00,000/- for the injuries sustained by the claimant in the motor vehicle accident. The Tribunal has awarded an amount of Rs.2,15,060/- as compensation to the claimant. When it comes to the liability, the Court below has observed that the policy was issued for agricultural purpose, however, the same was used for commercial purpose and the driver of the vehicle was not having driving licence as on the date of the accident. As such, the Tribunal held that the insurance company is not liable to pay the compensation and the owner of the vehicle is liable to pay the compensation. Dissatisfied with the same, the claimant is before this Court.

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NC: 2023:KHC:40821 MFA No. 7714 of 2017

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It is the case of the claimant that on

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02.09.2014 at about 2.00 p.m. when he was traveling in

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the tractor-trailer as a loader and unloader, the driver of the tractor-trailer, drove the same with high speed and as a result, the wheels of the tractor gone under the sand

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and the tractor-trailer fell down and the accident took place. In the said accident, the claimant sustained a fracture of the tibia and fibula and surgery was done with reduction fixator on 04.09.2014 and was discharged on 10.09.2014 and the fixator was removed and a plaster cast was put. Later, the claimant came with a complaint of pain in the right leg and ankle and being unable to do normal activities. After examination, the Doctor gave evidence that foot movements were restricted by 60% and knee joint movement by 40% and also gave evidence that there is disability to an extent of 36% to the limb and 12% to the whole body. According to the claimant, he was working as a loader and unloader and earning Rs.15,000/per month. As there is no evidence, the Court below had taken Rs.6,000/- per month as notional income and the

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disabilities at 10% and granted an amount of Rs.93,600/towards loss of future income, towards pain and sufferings, the Court had granted an amount of Rs.20,000/-, towards loss of amenities at Rs.10,000/-, towards loss of income during laid up period at Rs.12,000/- considering the income at Rs.6,000/- per month, towards transportation, special diet and attendant charges at Rs.10,000/- and towards medical expenses at Rs.69,460/and all together, a compensation of Rs.2,15,060/- was granted.

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Learned counsel appearing for the

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claimant/appellant submits that the Court below without considering the evidence on record had absolved the insurance company from the liability. It is submitted that the claimant is a third party to the insurance policy and if at all there is any violation of the terms and conditions of the policy, the insurance company is still liable to pay the compensation and recover the same from the owner of the vehicle. The Court below without applying the principle of

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5 - NC: 2023:KHC:40821 MFA No. 7714 of 2017

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pay and recover had absolved the insurance company and directed the owner of the vehicle to pay the compensation. Learned counsel for the appellant submits that when the doctor has deposed about the disability to an extent of 36% to the limb and 12% to the whole body, the Court below has taken disability to an extent of 10% to the whole body. Learned counsel submits that the accident is of the year 2015 and the Court below has taken the notional income only at Rs.6,000/- per month, which is on the lower side, when it is the case of the claimant that he was earning Rs.15,000/- per month. It is further submitted that even under the head pain and suffering, loss of amenities, transportation, special diet and attendant charges, very meager amounts were granted and that the compensation granted by the Tribunal is not just and reasonable.

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5. Learned counsel for the insurance company

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submits that the policy was given for agricultural purposes and when the vehicle was used for commercial purposes,

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NC: 2023:KHC:40821 MFA No. 7714 of 2017

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the insurance company is not liable to pay the compensation. He submits that the Court below had rightly held that the owner is liable to pay the compensation. It is submitted that the compensation awarded by the Court below is just and proper and no grounds are made out by the claimant for enhancement of compensation.

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Having heard the learned counsels on either side, perused the material on record. It is the case of the claimant that he sustained fracture and injuries in a road traffic accident and the Tribunal had granted compensation of Rs.20,000/- under the head of pain and sufferings. Considering the injuries sustained by the claimant, this Court is inclined to grant an amount of Rs.40,000/towards pain and sufferings, towards loss of amenities, considering that he is a loader and unloader and is unable to do the physical activities due to the injuries, this Court is inclined to grant an amount of Rs.25,000/-, towards transportation and special diet, considering the accident of the year 2015, this Court is inclined to grant Rs.30,000/-.

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7 - NC: 2023:KHC:40821 MFA No. 7714 of 2017

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When it comes to loss of income during the laid up period,

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the accident has taken place in the year 2015, he was working as a loader and unloader, the Tribunal had taken Rs.6,000/- as income of the claimant and this Court is inclined to take Rs.8,500/- as income and for injuries sustained by him, it would take minimum three months to resume to his work. Under the head loss of income during laid up period, he is entitled for an amount of Rs.25,500/(8,500 x 3), towards medical expenses, the Court below had rightly granted compensation of Rs.69,460/- basing

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on the evidence let in. Under the head loss of future income, when the doctor has given evidence about the disability to an extent of 36% to the limb and 12% to the whole body, the Court below, without any basis, has taken disability at 10%. Considering the evidence of the doctor and the disability sustained by the claimant, this Court is inclined to take disability to an extent of 12% by applying the multiplier '13' (8500 x 12 x 13 x 12/100 = 1,59,120/).

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8 - NC: 2023:KHC:40821 MFA No. 7714 of 2017

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In the light of the law laid down by the Hon'ble

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Supreme Court in the case of V.MEKALA VS.M.MALATHI

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AND ANOTHER¹ , the claimant is entitled for an amount of

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Rs.10,000/- towards legal expenses.

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The claimant is entitled for compensation under

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the following heads:

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Sl.No.	Description of Items	Amounts Rs.
1.	Pain and Suffering	40,000.00
2.	Loss of amenities	25,000.00
3.	Transportation, special diet and attendant charges	30,000.00
4.	Loss of income during laid up period (8,500 X 3)	25,500.00
5.	Medical Expenses	69,460.00
6.	Loss of future income	1,59,120.00
7.	Legal Expenses	10,000.00
	Total	3,59,080.00

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As far as liability is concerned, as rightly argued

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by the learned counsel for the appellant, claimant is a third party to the insurance, whether it is a case of licence or no licence or any violations of the conditions of the

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1 (2014) 11 SCC 178

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9 - NC: 2023:KHC:40821 MFA No. 7714 of 2017

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insurance policy, it is between the insurance company and the owner of the vehicle. So far as third party is concerned, as there was a valid insurance policy on the date of the accident, the insurance company is liable to pay compensation and recover the same from the owner of the vehicle.

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Accordingly, Appeal is allowed-in-part ,

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enhancing the compensation amount from Rs.2,15,060/to Rs.3,59,080/-.

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

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ii. The whole amount shall carry interest @ 6% per annum from the date of petition, till the date of realization.

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iii. Respondent No.2 - Insurance Company shall deposit the entire compensation amount within a period of eight weeks from the date of receipt of copy of the judgment. On such

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10 -

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NC: 2023:KHC:40821 MFA No. 7714 of 2017

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deposit, the claimant is entitled to withdraw the same without furnishing any security.

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iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court

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forthwith without any delay.

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v. No costs.

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SD/JUDGE

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MBM

Gangadhar G R v. K L Lokesh

Case brief

What is this about?

What did the court decide?

Gangadhar G R v. K L Lokesh

Case brief

What is this about?

What did the court decide?

What the court decided

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