Partly allowed

The Divisional Manager v. Anu @ Linga Shetty

Karnataka HC22 May 2023MFA/791/2018

Case brief

AI extract

What is this about?

In this Motor Accident Claim appeal, the High Court enhanced the compensation awarded to an injured cleaner and owner-driver. The court upheld the insurer's liability under a package policy despite the lack of specific premium for the cleaner. Interest was reduced to 6% p.a., while total compensation was raised to Rs.2,83,500/-.

What did the court decide?

Compensation enhanced to Rs.2,83,500/- with interest at 6% p.a. Insurance company directed to deposit the amount within 30 days.

The Divisional Manager Vs Anu @ Linga Shetty — Insurance | Karnataka HC (2023)

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MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 791 OF 2018

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(MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 735 OF 2018 (MV-I)

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IN MFA NO.791/2018

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BETWEEN:

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THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD ., DIVISIONAL OFFICE, MANGALORE. THROUGH ITS REGIONAL OFFICE #18, 5TH B & 6TH FLOORS KRIHIBHAVAN, HUDSON CIRCLE BANGALORE- 560 001, REP BY ITS MANAGER

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…APPELLANT

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(BY SRI. JANARDHAN REDDY, ADVOCATE)

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Digitally signed by HARSHITHA B Location: HIGH COURT OF KARNATAKA

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AND:

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ANU @ LINGA SHETTY AGED ABOUT 39 YEARS S/O JAVARA SHETTY R/AT BALLURUPURA HOUSE PALYA HOBLI, ALOORU TALUK, HASSAN DISTRICT-573 134

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C. RAJESH, AGED ABOUT 55 YEARS S/O CHANDRAPPA, R/AT BALLURPURA SINDODANAHALLI POST, ALUR TALUK, HASSAN DISTRICT-573 116 (OWNER OF THE LORRY NO.KA-16-A-959)

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…RESPONDENTS

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(BY SRI.VISHWANATHA POOJARY K., ADVOCATE FOR R1 SRI.SVS LAW CHAMBER, ADVOCATE FOR R2)

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MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 22.11.2017 PASSED IN MVC NO.364/2017 ON THE FILE OF THE 5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MACT, D.K., MANGALURU, SITTING AT PUTTUR, D.K, AWARDING AMOUNT OF RS.2,27,200/- WITH INTEREST AT 7% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA NO.735/2018

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BETWEEN:

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ANU @ LINGA SHETTY NOW AGED ABOUT 40 YEARS S/O JAVARA SHETTY R/O BALLAURUPURA HOSUE PALYA HOBLI, ALOOR TALUK HASSAN DISTRICT-573201

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…APPELLANT

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(BY SRI. VISHWANATHA POOJARY K., ADVOCATE)

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AND:

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C. RAJESH, NOW AGED 56 YEARS, SON OF CHANDRAPPA

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R/O BALLURUPURA, SINGODANAHALLI POST, ALUR TALUK, HASSAN DISTIRCT-573 201

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THE DIVISIONAL MANAGER THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE RAMBHAVAN COMPLEX, NAVABHARATH CIRCLE MANGALROE DAKSHINA KANNADA DISTRICT, PIN-575 001

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…RESPONDENTS

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(BY SRI.JANARDHAN REDDY, ADVOCATE FOR R2 VIDE ORDER DT: 6.12.2021 NOTICE TO R1 IS DISPENSED WITH)

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MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.11.2017 PASSED IN MVC NO.364/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, AND MEMBER, ADDITIONAL M.A.C.T. D.K, MANGALURU, SITTING AT PUTTUR, D.K. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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The appellant has preferred MFA No.791/2018

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against the judgment and award passed in MVC No.364/2017 on the file of the V Addl.District and Sessions Judge, D.K.Mangaluru, sitting at Puttur, D.K. dated 22.11.2017 as to the liability and quantum of compensation and also the rate of interest fixed by the tribunal.

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2. Appellant/claimant has preferred an appeal in MFA No.735/2018 for enhancement of compensation.

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Having heard the arguments on both sides and perusal of the records the following points that would be arise for my consideration are:

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MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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1. Whether the appellant/claimant is entitled for enhancement of compensation as sought for?

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1. Whether the insurance company has made out a grounds to interfere with the liability on the insurance company as awarded by the tribunal?

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1. Whether the insurance company has made out a grounds to reduce the quantum of award amount?

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1. Whether the respondent-Insurance company has made out ground to reduce the rate of interest on the award amount?

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1. What order?

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My answer to the above points are as under:

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Point No.1: Partly in the Affirmative

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Point No.2: In the Negative

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Point No.3: In the Negative

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Point No.4: Partly in the Affirmative Point No.5: As per final order

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5 - MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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REASONS

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5. Point Nos.1 and 3 : That there is no

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dispute between the parties as to the alleged accident. It is also not in dispute that appellant has sustained injuries as per the wound certificate Ex.P.7. Ex.P.12 is the case sheet. Exs.P7 and 12 reveals that the date of admission is 13.12.2016 and the date of discharge is 17.12.2016. The claimant has also produced five medical bills amounting to Rs.27,855/- with medical prescription Ex.P.9. Dr. Ullas Shetty and Dr.Mayur Rai issued disability certificate Exs.P.10 and 11. The claimant has deposed in his evidence that due to the accidental injuries, he is unable to do any work. He has lost income and future income and is suffering from permanent disability. The treated doctor PW2Dr.Mayur Rai has deposed in his evidence that he has examined the petitioner and found injuries as per Ex.P7. The claimant has taken follow-up treatment as

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6 - MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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out patient and he has clinically and radiologically examined the injured by taking X-ray and evaluated the permanent disability of the claimant to the extent of 18% to his right lower limb and Rs.35,000/- is required for removal of implant. On the basis of permanent disability certificate, the tribunal has assessed permanent disability of the claimant to the extent of 8%. With regard to the physical disability of

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the claimant concerned 8% is quite reasonable. Hence, there is no need to interfere in this regard. But the tribunal has assessed the notional income of the petitioner at Rs.8,000/-. The tribunal ought to have assessed income of the petitioner at Rs.9,500/- as per the chart issued by the Karnataka State Legal Service Authority. That there is no dispute as to the multiplier 15 adopted by the tribunal. Hence, it comes Rs.9,500/-. Rs.9,500/-X12X15X8%=1,36,800/-, which is rounded of to Rs.1,37,000/-. Accordingly, the

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7 - MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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appellant/claimant is entitled for compensation

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towards loss of future income due to disability.

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Considering the nature of injuries sustained by the petitioner and oral and documentary evidence, it is just and proper award the compensation on the

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following heads.

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Sl.No.	Heads	By Tribunal	By this Court
1.	Pain and agony	Rs.30,000/-	Rs.30,000/- (As awarded by the tribunal)
2.	Earning during loss of laid up period	Rs.24,000/-	Rs.28,500/-
3.	Medical Expense	Rs.27,855/-	Rs.28,000/-
4.	Food and Nourishment and Attainder charges during treatment	-	Rs.10,000/-
5.	Future medical Expense	Rs.30,000/-	Rs.30,000/-(As awarded by the tribunal)
6.	Loss of future income due to disability	Rs.1,15,200/-	Rs.1,37,000/-
7.	Loss of Amenities	-	Rs.20,000/-
	Total	Rs.2,27,200/-	Rs.2,83,500/-

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8 - MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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Accordingly, the appellant/claimant is

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entitled for enhancement of compensation and I

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answer point No.1 in Partly affirmative and point No.3 in the Negative.

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8. Point No.2 : With regard to the liability of insurance company is concerned, learned counsel appearing on behalf of insurance company has submitted his argument that as on the date of the accident, risk of the cleaner is not covered nor received any additional premium to cover such risk of the cleaner. On these ground sought for allow this appeal by dismissing the liability of the Insurance company.

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In this regard in the impugned judgment at para 21 and 22, the tribunal has observed as under:

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MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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" 21. In Ex.P3 mahazar drawn by Uppingady Police and also in the sketch map of the accident spot produced at Ex.P.4 it is mentioned that offending lorry was carrying coffee seeds. Ex.P3 shows that coffee seeds bags of 70Kg/each were thrown out from the lorry into rough road and they were scattered in slush of rain water, out of which coffee seeds of about 12 bags were sustained loss to the tune of Rs.2,00,000/-. The presence of coffee seeds bags scattered near the accident spot are also mentioned in Ex.P4. The said documentary evidence shows that the petitioner has been engaged as cleaner in the offending lorry when it was carrying coffee seeds bags. Ex.R1 shows that the respondent No.2 has received Rs.19,632/- as premium towards 3rd party basic+Rs.100/- towards compulsory PA for owner/driver, Rs.50/- towards LL to paid driverIMT 28. Further, respondent No.2 received Rs.3,086/- as service tax and Rs.110/- as Swatcha Bharatha Cess, in total respondent no.2 has received Rs.25,238/- as insurance premium. The respondent no.2 has not produced fully worded contract. It is not the case of respondent no.2 that inspite of demand to pay premium towards cleaner or loader, the RC owner has not

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MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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paid the same. When the respondent no.2 is able to demand the receive service tax of Rs.3,086/and Swatcha Bharatha Cess Rs.110/-, why not demanded the respondent no.1 to pay additional premium to cover the risk of cleaner or loader cum un-loader is not known. For making payment of Rs.100/- as additional premium to cover the risk of cleaner or loader cum un-loader will not be any burden to the RC owner/respondent no.1. Therefore, the defence of respondent no.2 that additional premium to cover the risk of cleaner is not paid by the respondent no.1 and on the said ground disputing liability of insurance company to indemnify the respondent no.1 is not sustainable. At this stage it is worth to refer Sec.147 of MV Act, same is reproduced below for ready reference.

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Sec.147:- Requirements of policies and limits of liability-(1) In order to comply with the requirements of this chapter, a policy of insurance must be a policy which-

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(a) xxxxxxx

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MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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(b) Insurers the person or classes of

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person specified in the policy to the extent

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specified in sub section(2)-

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(i) against any liability which may be incurred by him in respect of the death or bodily (injury to any person, including owner of the goods, or his authorized representative carried in the vehicle) or damage to any property of a 3rd party caused by or arising out of the use of the vehicle in a public place.

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(ii) against the death or bodily injury to any passenger of a public service vehicle, caused by or arising out of the use of the vehicle in a public place,

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Provided that a policy shall not be required-

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(i) to cover liability in respect of the death, arising out of and in the course of his employment of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the workmen's compensation Act 1923(8 of 1923) in respect of the death of or bodily injury to any such employee.

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(a) engaged in driving the vehicle, or

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(b) if it is a public service vehicle engaged as

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MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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conductor of the vehicle or in examining tickets on the vehicle, or

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(c) If it is a goods carriage, being carried in the vehicle, or

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To cover any contractual liability.

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22. As per the above provision of law it is the duty of insurance company to cover the risk of employee i.e. cleaner of the lorry, because as admitted by RW1 it is the discretion of respondent no.1 to engage cleaner, accordingly engaged the petitioner as cleaner in the offending lorry. Hence, there is no force in the argument of learned counsel for respondent no.2. Since the respondent no.2 has issued package policy, risk is covered. The contractual liability between respondent no.1 and 2 is subsisting as on the date of accident. Hence respondent No.2 shall indemnify the respondent No.1 in making compensation to the petitioner. Accordingly, I answer Issue No.2 partly in the affirmative holding that the petitioner is entitled for just compensation of Rs. 2,27,200/- from the respondent No.2."

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A perusal of the impugned judgment, it is clear that the tribunal has properly appreciated evidence on record in accordance with law and facts.

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MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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Considering the facts and circumstances of

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the case and also keeping in the mind of Rule 100 of Karnataka Motor Vehicle Rules, 1989 , it is held that there are no grounds to interfere with the impugned judgment and award as to the liability of the insurance company. Accordingly, I answer point No.2 in the

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Negative .

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12. Point No.4 : With regard to the interest on award amount is concerned, the tribunal has awarded amount of Rs.2,27,200/- with interest 7% PA. (Excluding future medical expense) which is on higher side.

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Considering the rate of interest on fixed deposit in nationalized bank as on the date of accident, it is just and proper to award an interest at 6% instead of 7%. Hence, the same is liable to be modified. Accordingly, point No.4 is answered partly in the affirmative.

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MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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14. Point No.5 : For the aforesaid reasons and

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discussions, I proceed to pass the following:

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ORDER

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MFA No.791/2018 filed by the Insurance

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company is partly allowed.

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MFA No.735/2018 filed by the claimant is partly allowed.

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The appellant is entitled for enhanced

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compensation of Rs.2,83,500/- with interest 6% P.A. (excluding interest on future medical expenses) from the date of petition till the date of deposit of compensation amount.

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Respondent-Insurance company is directed to deposit the said compensation amount with interest at 6% before the tribunal within 30 days from the date of

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award.

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MFA No. 791 of 2018 C/W MFA No. 735 of 2018

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All other terms and conditions stipulated by the

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Tribunal shall stand intact.

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The Registry is directed to transfer the deposit amount to the tribunal along with accrued interest.

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Draw award accordingly.

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SD/JUDGE

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List No.: 38 Sl No.: 5

The Divisional Manager v. Anu @ Linga Shetty

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Anu @ Linga Shetty

Case brief

What is this about?

What did the court decide?

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