Partly allowed

Mr Mahesh T v. Mr Muttu Selvam

Karnataka HC29 Aug 2023MFA/8669/2012

Case brief

AI extract

What is this about?

The High Court allowed a first appeal filed by a motor accident victim against the dismissal of his compensation claim. The court held that the insurer must pay the claimant despite alleged fraud by the vehicle owner, citing the 'pay and recover' principle. The court enhanced the compensation amount to Rs. 2,28,000.

What did the court decide?

The compensation amount was enhanced to Rs. 2,28,000/- by further allowances for pain and suffering and amenities but not for future expenses or lost income. The insurer was directed to deposit the am

Mr Mahesh T Vs Mr Muttu Selvam — Contract and Commercial Disputes | Karnataka HC (2023)

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NC: 2023:KHC:30799 MFA No. 8669 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF AUGUST, 2023 BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 8669 OF 2012 (MV-I)

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BETWEEN:

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MR. MAHESH T., S/O THANGA SWAMY, AGED ABOUT 24 YEARS, R/AT KACHANA CENTRE, HONNAKATTE, KULAI, MANGALORE TALUK, D.K., PERMANENTLY RESIDING AT CHINNA COLONY, PAMBANKULAM, RADHAPURAM TALUK, TIRUVNALVELI DISTRICT - 627 109.

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…APPELLANT

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(BY SRI. G. RAVISHANKAR SHASTRY, 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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MR. MUTTU SELVAM, S/O SUBBAYYA @ SUBRAYA, AGED ABOUT 38 YEARS, R/AT BALAGURIKAR HOUSE, KOORIKATTA, MEENAKALIYA POST, PANAMBUR, MANGALORE TALUK, D.K. - 575 009.

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NATIONAL INSURANCE CO. LTD., FIRST FLOOR, ANANDA BUILDING, KULAI POST, MANGALORE TALUK - 575 001. D.K. REPRESENTED BY ITS BRANCH MANAGER.

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MR. MURALI KRISHNA, S/O KESHAVA SHETTIGAR,

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2 - NC: 2023:KHC:30799 MFA No. 8669 of 2012

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AGED ABOUT 38 YEARS, R/AT PARAPADE, DEREBAIL, MANGALORE, D.K. - 575 004.

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THE ORIENTAL INSURANCE CO. LTD., BEAUTY PLAZA, BALMATTA, MANGALORE - 575 001. D.K. REPRESENTED BY ITS BRANCH MANAGER,

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…RESPONDENTS

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(BY SRI. VIJAYAKUMAR M. C., ADVOCATE FOR R1; SRI. A. M. VENKATESH, ADVOCATE FOR R2; SRI. M. S. SRIRAM, ADVOCATE FOR R4; R3 - SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.07.2012 PASSED IN MVC NO.813/2010 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACTVI, MANGALORE, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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The appeal is filed by the claimant aggrieved by the judgment and award passed in MVC No.813/2010, dated 10.07.2012, on the file of the II Additional Senior Civil Judge, MACT-VI, Mangalore, D.K., claiming compensation of an amount of Rs.8,00,000/-.

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3 - NC: 2023:KHC:30799 MFA No. 8669 of 2012

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The case of the claimant is that on 16.04.2020 at about 10.45 a.m., the petitioner was proceeding as a pillion rider in a motorcycle from Baikampady side towards Kuloor side. The said motorcycle was ridden by its rider at a high speed in a rash and negligent manner. When they reached opposite to Panamboor Petrol pump, the rider of the above said motorcycle lost his control over the same and dashed to a crane from hindside. Thereafter, the motorcycle turned its right side and the claimant hit against the crane. Due to this impact, he sustained injuries. Soon after the accident he was shifted to Government Wenlock Hospital and for expert treatment, he was shifted to the A.J.Hospital, Mangalore and he was admitted as an inpatient on 16.04.2010 and discharged on 30.04.2010. He was inpatient in the said hospital for a period of 15 days.

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It is the case of the claimant that, he was aged 22 years and working as Helper/field worker and was earning an amount of Rs.6,000/- per month. He sustained five fracture injuries and two simple injuries, he was not in a position to attend the work and he sustained disability to an extent of 30%. He had spent a sum of Rs.1,20,000/- for the medical

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expenses and he requires Rs.50,000/- for his future medical expenses.

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It is the case of the respondent that, he did not had a valid driving license. Initially for the damage of the vehicle, the owner of the vehicle has produced the driving license and after looking at all the documents, he has prayed for compensation to the damages. Later, when the matter was investigated through their private investigator, they came to know that the said driving license which is produced is a fabricated document and the owner of the vehicle was not having a valid driving license.

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The Court below on the question of liability has held that, through PW3 who is an officer of the Insurance Company, the claimant has produced Ex.P22 the driving license of the driver and the Insurance Company has produced Ex.R2 the colored driving license and comparing the two driving licenses, the court has come to the conclusion that the colored driving license reveals that the driving license do not bear the force of the driving license as on the date of the accident. The driving license is of the light motor vehicle and basing on that, the

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5 - NC: 2023:KHC:30799 MFA No. 8669 of 2012

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Court has dismissed the claim petition. The court has held that, the Insurance Company has violated the terms and conditions of the policy. The Court below has exonerated the Insurance Company and held that the owner of the vehicle is liable to pay the compensation.

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Then coming to the compensation, as per the

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wound certificate the claimant had sustained five fracture injuries and two simple injuries. The Court below has granted an amount of Rs.60,000/- towards pain and sufferings. The claimant was in hospital for a period of 15 days, towards conveyance, attendant charges and extra nourishment, granted an amount of Rs.3,000/-. The claimant has claimed an amount of Rs.1,20,000/- for the medical expenses and the Court granted an amount of Rs.98,354/- towards medical expenses, as an amount of Rs.40,590/- was reimbursed to the claimant. The Court has granted an amount of Rs.20,000/- towards future medical expenses and for the loss of income during the laid period the court had consider Rs.6,000/- as income and granted an amount of Rs.18,000/- for the three months period.

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NC: 2023:KHC:30799 MFA No. 8669 of 2012

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Aggrieved thereby the claimant has come before

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this court. It is submitted that the officer of the Insurance Company is examined as PW3 and through him the documents basing on which, they settled the claim of the owner of the vehicle was produced and the driving license is marked as per Ex.P22. As per the same, the driver was having a valid driving license to drive the motorcycle and basing on that, they have settle the claim.

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Learned counsel submits that, the Court below merely basing on the evidence of the Insurance Company by filing the colour Xerox without any basis ought not to have come to the conclusion that the said document is a genuine document. The driving license which is produced by the claimant through the Insurance Company is a fabricated and manipulated document. It is submitted that, the Court below in a way has fixed the burden on the claimant whereas the burden lies on the Insurance Company to prove that the driver of the vehicle was not having valid driving license. He submits that there is a policy for the said offending vehicle, which is issued by the respondent-Insurance Company and Ex.P22 shows that, there is a driving license to the driver and as such Insurance

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Company is liable to pay the compensation. Alternatively he submits that, in the light of the law laid down in case of

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National Insurance Company Limited Vs. Swarna Singh

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And Others¹ where it is the case of owner there is a driving license and according to the Insurance Company that it is a fabricated one. The claimant is a third party to the Insurance Company as such they are liable to pay the compensation and recover the same from the owner of the vehicle. Coming to the compensation, he submits that when the claimant sustained five grievous injuries the Court below granting an amount of Rs.60,000/- for pain and suffering which is not a reasonable amount and so far conveyance, transport, attendant charges are concerned only an amount of Rs.3,000/- is granted, which is on the lower side. It is submitted that for future medical expenses when he has claimed Rs.30,000/-, the Court ought not to have granted only Rs.20,000/- without any basis.

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He submits that, in the year 2010 the accident had taken place, the income ought to have been taken more and for the loss of income during the laid up period granting of Rs.18,000/is not reasonable. He submits that the

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1 (2004) 3 SCC 297

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NC: 2023:KHC:30799 MFA No. 8669 of 2012

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compensation is liable to be enhanced. As per the doctor's evidence he had suffered 30% disability. The court failed to give any finding on that and not granted amount under the head of loss of future income due to disability.

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Learned counsel appearing for the Insurance Company submits that, the Insurance Company has marked Ex.R2 the driving license which clearly shows that Ex.P22 is a fabricated document. It is submitted that, it is clear that the fraud is played by the claimant along with owner of the vehicle. It is submitted that, the owner of the vehicle conveniently has remained Ex-parte, which shows that there is collusion between the claimant and the owner of the vehicle. It is submitted that though the act is a beneficial legislation, the person who plays fraud are not entitled for any relief from the court. It is submitted that the Court below had rightly exemplated the Insurance Company and no grounds are made out seeking interference of this Court.

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On the issue of liability the Court has considered the two driving licenses produced one by the claimant through Insurance Company and other by the Insurance Company i.e.,

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Ex.P22 and Ex.R2. The Court observed that at Ex.R2, Ex.P22 is a fake license and he is not having a valid driving license to drive the motor vehicle. When it is the case of the Insurance Company that the driver of the motorcycle was not having a valid driving license, the burden lies on the Insurance Company to prove the same. In this case, when the claimant had produced Ex.P22, Insurance Company they ought to have examined the officer from the transport department or let in some cogent evidence to disbelieve the case of the claimant. In this case no documents are produced by the Insurance Company. The Court below went wrong in appreciating only Ex.R2, but not Ex.P22. There was no basis for the court to come to such conclusion. Even if it is a case of fake license as per the law laid down by the Apex Court in Swarna Singh's case, as the claimant is a third party to the insurance, the pay and recover principle would apply and the Insurance Company has to pay the compensation and recover the same from the owner of the vehicle.

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Learned counsel appearing for the Insurance Company relied on the judgment of the Hon'ble Apex Court in National Insurance Company Limited V/s Challa Upendra

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NC: 2023:KHC:30799 MFA No. 8669 of 2012

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Rao² , submits that in the said case has observed that even in the case pay and recover, before release of the amount to the claimant, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay. Further the offending vehicle shall be attached as part of the security. If necessary executing Court shall take assistance from the Transport Authority concerned. In case there is any default, it shall be opened to the Executing Court to direct the realization by disposal of the security furnished or from any other property or properties of the owner of the vehicle i.e., insured. The Apex Court has also observed that, in some cases the Insurer has been given option and liberty to recover the amount from the insurer, the insurer shall not be required to file a suit, they can initiate the proceedings before the executing court concerned as if the dispute between the insurer and the owner was subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.

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Learned counsel appearing for the claimant submits that, if the owner has to give a security before releasing the amount to a third party, conveniently the owner of the vehicle

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2 2005 SCC (Cri) 357

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remained ex-parte, she would not be in a position to realize the amount. Further it is submitted that, the judgment of the Apex Court in Challa Upendra Rao³ is of a two Judge Bench and in

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Swaran Singh's case the Hon'ble Apex Court has not laid down any such guidelines. As such, being a third party he is entitled for the amount and it is for the Insurance Company to take steps to recover the same from the owner of the vehicle.

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As rightly pointed out by the learned counsel for the claimant, he is a third party to the Insurance policy. If any fraud is played by the owner of the vehicle, it is for the Insurance Company to take appropriate steps against the owner of the vehicle. The Hon’ble Apex Court in Swaran Singh's case has not laid down such law that whenever pay and recover is applied, before paying the amount, the owner shall furnish the security, then on such security the owner shall release the amount. Considering the law laid down in Swaran Singh's Case the Insurance Company shall pay the amount and recover the same from the owner of the vehicle. However,

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1 (2004) 3 SCC 297

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2 2005 SCC (Cri) 357

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NC: 2023:KHC:30799 MFA No. 8669 of 2012

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without filing a separate suit they can initiate the Proceeding before the executing court.

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Then coming to the aspect of compensation in this case the claimant had sustained five grievous injuries and two simple injuries. The Court below had granted only an amount of Rs.60,000/- for pain and sufferings sustained by him. In the considered opinion of this court Rs.1,00,000/- will be an appropriate amount for the pain and sufferings, he has undergone. Then coming to the aspects of disability, doctor had deposed that the claimants had sustained 30% disability. As per the evidence of the doctor, all the fractures are united. The evidence of the doctor on the face of it do not inspire confidence in the mind of the Court that it would have impact on his future earning as the fracture are united. If at all he has any discomfort, under the head of loss of future earning due to disability he is not entitled for any amount. Under the head of loss of amenities considering the injuries this Court is inclined to grant an amount of Rs.30,000/-, towards conveyance, transport and attendant the Court below had granted only an amount of Rs.3,000/-. He was in the hospital for 15 days and it takes another three months to recover from the injuries, hence, an amount of Rs.20,000/- is granted under the said head.

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Towards medical expenses an amount of Rs.45,100/- was reimbursed from the mediclaim and as per the receipts court has rightly granted an amount of Rs.20,000/-. Hence, this court is not inclined to interfere with the compensation granted under the head of future expenses and loss of income during the laid up period as rightly granted by the court below at Rs.30,000/- and Rs.18,000/respectively.

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In the light of the law laid down by the Hon'ble Supreme Court in the case of V. MEKALA -vs- M. MALATHI AND ANOTHER⁴ , the claimant is entitled for an amount of Rs.10,000/- towards legal expenses.

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The claimant is entitled for compensation under the following heads:

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Sl.No.	Description of Items	Compensation Awarded Rs.
1.	Pain and Sufferings	1,00,000=00
2.	Loss of amenities	30,000=00
3.	Conveyance, Transport and Attendant	20,000=00
4.	Medical Expenses	20,000=00
5.	Future Expenses	30,000=00

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4 (2014) 11 SCC 178

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NC: 2023:KHC:30799 MFA No. 8669 of 2012

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6.	Loss of income during the laid up period	18,000=00
7.	Legal Expenses	10,000=00
	Total	2,28,000=00

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(a) Accordingly, the appeal is Allowed-in-part, enhancing the compensation amount from Rs.1,31,000/- to Rs.2,28,000/-.

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(b) The enhanced amount shall carry interest @ 6% per annum from the date of petition, till the date of realization.

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(c) Respondent-Insurance Company shall deposit the enhanced compensation amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the same without furnishing the security.

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(d) The Registry is directed to return the Trial Court Record to the Tribunal along with the certified copy of the order passed by this court forthwith without any delay.

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NC: 2023:KHC:30799 MFA No. 8669 of 2012

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(e) No costs.

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Pending miscellaneous petitions, if any, shall stand closed.

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SD/JUDGE

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KBM List No.: 1 Sl No.: 32 CT:PH

Mr Mahesh T v. Mr Muttu Selvam

Case brief

What is this about?

What did the court decide?

Mr Mahesh T v. Mr Muttu Selvam

Case brief

What is this about?

What did the court decide?

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