Partly allowed

The Reliance General Insurance Company Ltd. v. Swamy T N

Karnataka HC23 Jan 2023MFA/9895/2018

Case brief

AI extract

What is this about?

This First Appeal regarding a motor vehicle accident involved an insurer challenging liability due to an alleged invalid driving licence. The High Court held that the insurer must pay compensation first under the 'pay and recover' principle, then recover from the owner. Compensation and interest rates were partially reduced.

What did the court decide?

Compensation reduced to Rs. 1,54,718/-; interest rate reduced to 6% p.a.; insurer to pay initially and then recover from owner.

The Reliance General Insurance Company… — Pension and Retirement Benefits | Karnataka HC (2023)

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MFA No. 9895 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.9895 OF 2018

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BETWEEN:

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THE RELIANCE GENERAL INSURANCE COMPANY LTD., EAST WING, 5^TH FLOOR, NO.28, CENTENARY BUILDING, M.G.ROAD, BENGALURU-560 001. NOW REPRESENTED BY MANAGER LEGAL

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…APPELLANT

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(BY SMT. PADMA S. UTTUR., ADVOCATE FOR SRI. ASHOK N. PATIL, ADVOCATE)

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AND:

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Digitally signed by PAVITHRA B Location: HIGH COURT OF KARNATAKA

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SWAMY T. N., S/o.NANJUNDAPPA, AGED ABOUT 28 YEARS, R/at 23, 5/2, MATHRUSHRI NILAYA, KANADASAPURA ROAD, BUDIGERE CROSS, BENGALURU-560 049.

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CHANDRA SHEKAR. N S/o NARASIMHAIAH. T No.67/1, 2^ND MAIN ROAD, MUNESHWARA LAYOUT, LAGGERE, BENGALURU-560 091.

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…RESPONDENTS

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(BY SRI. MUNIYAPPA D., ADVOCATE FOR R1; SRI. PAWAN KUMAR G., ADVOCATE FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 26/09/2018, PASSED IN MVC NO.1769/2017 PASSED BY THE COURT OF V ADDITIONAL SMALL CAUSES JUDGE AND XXIV ACMM, MEMBER, MACT (SCCH-20), MAYO HALL UNIT, AT BENGALURU, IN THE INTEREST OF JUSTICE AND EQUITY.

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MFA No. 9895 of 2018

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

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JUDGMENT

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This appeal is filed by the Insurance Company

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challenging the liability and for reduction of the quantum of compensation.

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Brief facts of the case is as under :

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On 31.10.2017, at about 07.00 P.M., when the

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claimant was riding motor cycle bearing No.KA-53-U-8943, near ABT factory, Soukya Road, Samethanahalli Village, Bengaluru, at that time, a Canter bearing No.KA-52-6406, driven by its driver in a rash and negligent manner, so as to endanger the human life, dashed the motor cycle of the petitioner. Due to the impact, the claimant fell down and sustained grievous injuries. Immediately, he was shifted to Vydehi hospital and thereafter was shifted to Sathya Sai Hospital, Bengaluru, wherein he was treated as an inpatient and spent considerable amount towards medical expenses, conveyance, food, transport and other charges. He was aged about 27 years, hale and healthy, working as

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MFA No. 9895 of 2018

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an Executive in Flipkart Company earning Rs.16,000/p.m. thereby contributing entire salary to his family and due to the injuries sustained in the accident, he is unable to attend duty and hence filed claim petition before the Tribunal claiming Rs.4,00,000/- as compensation from the respondents, being the owner and insurer of the offending vehicle.

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After issuance of notice, respondents No. 1 and 2, being the owner and insurer of the offending vehicle appeared and filed written statement.

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The claimant in support of this case, deposed himself as PW1 and relied upon the documents-Exs. P1 to P21. The insurer examined its officer as RW1 and got marked the documents-Exs. R1 and R2.

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The Tribunal relying upon the documents mainly, Exs.P1-FIR, P3-Seizer Mahazar, P15-Charge Sheet, Ex.P17-IMV report held that the accident occurred due to rash and negligent driving of the driver of the Canter Lorry and thereby the claimant sustained injuries. Further,

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MFA No. 9895 of 2018

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relying upon Exs.P4 to P14, P16, P19, P20 and P21; especially Ex.P4-Discharge Summary which shows the injuries sustained by the claimant and associated reports and Ex.P3-Medical Bills regarding amount spent for treatment awarded Rs.49,718/- towards medical expenses and owing to the nature of injuries sustained by the claimant has awarded Rs.75,000/- towards pain and suffering, Rs.10,000/- towards nourishment and attendant charges, Rs.10,000/- towards conveyance and Rs.15,000/towards loss of amenities. However, taking the notional income of Rs.10,000/- and owing to the nature of injuries, he might not have been able to attend duties for three months and hence the Tribunal has awarded a sum of Rs.30,000/- for loss of income during laid up period totalling to a sum of Rs.1,89,718/- as compensation to the claimant with interest at 9% p.a. from the date of petition till realisation.

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Further, taking into consideration that as on the date of accident, policy in respect of the offending vehicle was

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MFA No. 9895 of 2018

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in force, held that respondents 1 and 2 are jointly and severally liable to pay compensation to the claimant and directed that respondent No.2-insurer shall deposit the award amount with interest.

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Being aggrieved by the said judgment, the Insurance Company has filed this appeal to exonerate the liability fastened on it.

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Heard both sides and perused the records.

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The learned counsel for the Insurance Company

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contended that the driver of the offending vehicle-Canter lorry was not holding valid and effective driving licence as on the date of accident. The insurer had relied upon exhibits R1 and R2, in support of their case but the Tribunal has not taken them into consideration and hence, prays to exonerate the insurer from paying compensation to the claimant. Further, contended that the compensation and rate of interest awarded to the claimant are on the higher side and thus prays to allow the appeal.

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MFA No. 9895 of 2018

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Considered the submissions of the learned

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counsel for the parties.

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Occurrence of the accident and the injuries sustained by the claimant are not in dispute. Ex.R1 is the copy of the notice issued under Section 133 of the M.V. Act by the police to the owner of the vehicle and Ex.R2, reply to the notice and based on this, the Tribunal could have drawn an adverse inference, in view of the fact that in Ex.R1 it was clearly stated that the valid period of the driving licence was from 26.5.2005 to 15.11.2016 whereas, the accident has occurred on 31.1.2017 and that respondent No.2-owner of the offending vehicle has not placed any evidence to rebut the contention of the Insurance Company that the driver of the offending vehicle did not possess valid and effective driving licence as on the date of accident.

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The Tribunal has also observed in the judgment that the DL was valid only till 15.11.2016. Therefore, as on the date of accident there was no valid driving licence and

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MFA No. 9895 of 2018

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also much prior to the accident. Therefore, the insurance company has discharged its burden in proving that the driver was not holding driving licence as on the date of accident. Then the onus shifts on the owner of the vehicle. But the owner of the vehicle has failed to discharge his onus/burden. Therefore, the insurance company has successfully established its defence as per sub section (2) of Section 149 of the M.V. Act. When the appellantcompany established its defence under Sub Section (2) of Section 149 of the M.V.Act then, the insurance company, as if a judgment debtor, shall satisfy the claim to the claimant as the claimant is a third party as per Sub Section (1), (5), (7) of Section 149 of the M.V.Act. The Hon’ble Apex Court in the following judgments has discussed in detail about the concept of 'pay and recover'.

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PAPPU AND OTHERS -V- VINOD KUMAR LAMBA AND ANOTHER (2018) 3 SCC 208

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NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER (2020 ACJ 2560)

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3. NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS (2004) 3 SCC 297.

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MFA No. 9895 of 2018

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In view of the aforesaid decisions, the Insurance

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Company at the first instance has to pay the compensation amount to the claimant and thereafter has to recover from the owner of the Canter lorry.

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Now coming to the aspect of quantum of compensation, from the records it is apparent that the claimant had suffered fracture of metacarpal head fracture injury and upon local anesthesia, k-wiring was done. He was an inpatient in the hospital for two days. The quantum of compensation awarded under the head 'injury, pain and suffering' is on the higher side and therefore, the same is reduced to Rs.40,000/- as against *Rs.75,000/- awarded by the Tribunal. However, the compensation awarded under the other heads are correct and it needs no modification. Therefore, the claimant would be now entitled to * Rs.1,54,718/- as against Rs.1,89,718/awarded by the Tribunal.

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Corrected vide court order dated 05.04.2023

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MFA No. 9895 of 2018

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Further, interest awarded by the Tribunal at the rate

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of 9% p.a. is scaled down to 6% p.a. from the date of petition till realisation.

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Therefore, the appeal filed by the insurance

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company is liable to be allowed in part and the impugned judgment and award passed by the Tribunal is modified in respect of the claim of the Insurance Company regarding liability, quantum of compensation as well as the rate of interest.

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Hence, the following order:

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ORDER

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1. The appeal is allowed in part;

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The impugned judgment and award passed by the Tribunal is modified;

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The claimant is entitled to a compensation of * Rs.1,54,718/- as against Rs.1,89,718/- awarded by the Tribunal with interest at the rate of 6% p.a. from the date of petition till realisation as against 9% p.a. awarded by the Tribunal;

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Further, the Insurer shall pay the aforesaid compensation amount with 6% p.a. from the date of

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Corrected vide court order dated 05.04.2023

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10 -

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MFA No. 9895 of 2018

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petition till realisation to the claimant initially, and thereafter, recover the same from the owner of the offending vehicle i.e., respondent No.2 herein.

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Rest of the impugned judgment and award remains unaltered.

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Sd/JUDGE

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The Reliance General Insurance Company Ltd. v. Swamy T N

Case brief

What is this about?

What did the court decide?

The Reliance General Insurance Company Ltd. v. Swamy T N

Case brief

What is this about?

What did the court decide?

What the court decided

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