Partly allowed

Oriental Insurance Company Ltd., v. Basappa S/O Irappa Ulagaddi

Karnataka HC12 Sept 2024MFA/101914/2023

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part. It upheld the 'pay and recover' order between the insurance company and the vehicle owner due to policy breach. The court recalculated the claimant's age by averaging three documents and adjusted the future prospectus from 25% to 10%. Disability was upheld at 100% for a coolie worker. Total compensation was reduced to Rs. 12,65,907.

What did the court decide?

The appeal allowed in part. Total compensation fixed at Rs. 12,65,907 with 6% interest. Insurance company directed to deposit the amount.

Oriental Insurance Company Ltd., Vs Basappa S/O Irappa Ulagaddi — Insurance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13086 MFA No. 101914 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF SEPTEMBER 2024

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BEFORE

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THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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MISCELLANEOUS FIRST APPEAL NO. 101914 OF 2023

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BETWEEN:

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ORIENTAL INSURANCE COMPANY LTD., BY THE DIVISIONAL MANAGER, 2^ND FLOOR, YALAMANCHALI COMPLEX, STATION ROAD, HOSAPETE, BY ITS AUTHORISED SIGNATORY.

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…APPELLANT

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(BY SRI. RAVINDRA R. MANE, ADVOCATE)

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AND:

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BASAPPA S/O. IRAPPA ULAGADDI, AGE ABOUT 61 YEARS, OCC: AGRICULTURE, R/O: YELBURGA, NOW AT ITAGI, TQ: YELBURGA, DIST: KOPPAL.

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YASHAVANT NARAYANKAR

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Location: HIGH COURT OF KARNATAKA

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RAMESH S/O. SOMAPPA BHAJANTRI, AGE: 43 YEARS, OCC: DRIVER, R/O: GANDHI NAGAR, KOPPAL, NOW AT ITAGI VILLAGE, TQ: YELBURGA,

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DIST: KOPPAL.

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H. S. GURURAJ S/O. H. S. VEDYASACHARYAM, AGE: 56 YEARS, OCC: OWNER OF THE APE, PICK -UP VEHICLE, R/O: SHANKARLING DEVASTHAN PORT, 16/32 WARD, HOSAPETE, TQ: HOSAPETE, DIST: BALLARI.

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…RESPONDENTS

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(BY SRI.RAJASHEKHAR B. HALLI, ADVOCATE FOR R1; SRI. A. B. PATIL, ADVOCATE FOR R3; R2 - SERVED)

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THIS MFA FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, PRAYS TO CALL FOR THE RECORDS, ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND AWARD DATED 02.01.2023 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE & MEMBER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, YELBURGA IN MVC NO.23/2012 AND TO PASS SUCH OTHER ORDER.

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2 - NC: 2024:KHC-D:13086 MFA No. 101914 of 2023

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

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CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the insurance company

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challenging the quantum and also the order of pay and recover in the judgment dated 02.01.2023 passed in MVC No.23/2012 by the Senior Civil Judge and MACT, Yelburga.

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Respondent No.1 filed a claim petition contending that on 07.10.2011 at about 4:00 pm when he was traveling in APE Pick-up vehicle bearing No.KA-35/A2126 from Itagi to Belageri village and on the way due to rash and negligent driving of the driver of the said vehicle, the vehicle turned turtle on the road and as a result, he sustained severe injuries. With that he made a claim petition seeking compensation.

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The Tribunal after recording evidence and appreciating the evidence on record has allowed the petition directing the respondent No.2 - owner of the

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3 - NC: 2024:KHC-D:13086 MFA No. 101914 of 2023

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vehicle to pay the compensation and also ordered the insurance company to pay and recover the same from respondent No.2/ owner. The said judgment and award has been challenged by the insurance company in this appeal.

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Heard the learned counsel for the appellant and learned counsel for respondent No.3. Respondent No.2 even after service of notice remained absent and unrepresented.

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Learned counsel for the appellant would contend that the claimant is a gratuitous passenger travelling in a goods vehicle and therefore there is a fundamental breach of policy conditions, on that basis the Tribunal ought to have totally exonerated the insurance company. He contends that the quantum awarded by the Tribunal is also on a higher side. He contends that the Doctor has assessed the total disability as 75% and the Tribunal has taken the disability as 100%. He submits that Tribunal has taken the age of the claimant as 45 years

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4 - NC: 2024:KHC-D:13086 MFA No. 101914 of 2023

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based on the wound certificate but, as per the Police records his age is 50 years and as per the disability certificate his age is 55 years. Therefore, the Tribunal ought to have taken the age of the injured accordingly. He contends that considering the age of the injured, he is entitled to future prospectus of 10% as against 25% awarded by the Tribunal. With this he prayed to allow the appeal.

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Learned counsel for respondent No.1 - claimant would contend that the injured has sustained paraplegia and taking into consideration that he is a coolie/agriculturist it has rightly taken the disability of whole body of 100%, even though the Doctor has assessed the disability of whole body as 75%. He contends that the Tribunal has taken the correct age of the injured as 45 years based on the wound certificate. He admits that the Tribunal has taken the income of the injured at Rs.6,500/- per month and it ought to have taken the notional income of Rs.6,000/- as per the chart prepared by

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5 - NC: 2024:KHC-D:13086 MFA No. 101914 of 2023

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the legal services authority for settlement of disputes in Lok-Adalat for the year 2011, with this he prayed to dismiss the appeal.

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Having heard the learned counsels, the Court

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has perused the impugned judgment and award and the other materials placed on record.

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It is not in dispute that the injured - claimant

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was a gratuitous passenger in a goods vehicle and there is a breach of policy condition. Considering the same, the Tribunal has ordered for pay and recovery. The Full Bench of this Court in the case of New India Assurance Company Limited, Bijapur Vs. Yallavva and Another¹ ,

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held that the insurance company is required to pay the adjudged compensation at the first instance and recover the same from the owner of the vehicle. The appellant is a insurance company and respondent No.2 is a owner of the vehicle, as there is a breach of policy conditions, the Tribunal has rightly held that owner has to pay the amount

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1 2020 (2) KCCR 1405 (FB)

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6 - NC: 2024:KHC-D:13086 MFA No. 101914 of 2023

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of compensation as awarded and it is first to be paid by the insurance company and insurance company can recover the same from the owner of the vehicle in question.

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The age of the claimant as per wound certificate is 45 years, as per Police records 50 years and as per disability certificate 55 years. The Tribunal has taken the age of the injured as 45 years based on the wound certificate. When there are three documents contain three different ages, it is preferable to take average of all three ages which comes to 50 years. Therefore, the age of the injured - claimant is taken as 50 years. Considering the age of the injured, he is entitled to future prospectus at 10% as against 25% awarded by the Tribunal.

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The injured - claimant has sustained injury by which he has suffered paraplegia. The Doctor has assessed the disability of the whole body at 75%. The injured - claimant is a coolie/ agriculturist. Considering these aspect, he has suffered paraplegia, it is impossible for the

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7 - NC: 2024:KHC-D:13086 MFA No. 101914 of 2023

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injured - claimant to continue the coolie/agriculturist. Therefore, the Tribunal has rightly taken the disability of the whole body of injured as 100%. The compensation awarded under the other heads are not disputed. In view of the same, the respondent No.1 - claimant is entitled to compensation as under;

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Loss of future income (Rs.6,000/- + 600 = 6,600/- x 12 x 13 x 100/100) 10,29,600/-. The other heads of compensation awarded are remained undeterred. In view of the same, the respondent No.1 is entitle to total compensation of Rs.12,65,907/- as against Rs.13,28,307/awarded by the Tribunal.

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In the result the following:

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ORDER

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i) The appeal is allowed in part.

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ii) The respondent No.1 - claimant is entitled to total compensation of Rs.12,65,907/as against Rs.13,28,307/- awarded by the

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8 - NC: 2024:KHC-D:13086 MFA No. 101914 of 2023

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Tribunal with interest at the rate of 6% per annum from the date of petition till its realization.

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iii) The order of pay and recover as passed by the Tribunal remained unaltered.

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iv) The appellant - insurance company is directed to deposit the compensation amount with interest within a period of six weeks from the date of receipt of copy of this judgment.

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v) Amount in deposit is ordered to be transmitted to the Tribunal.

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Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

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PJ CT:ANB List No.: 1 Sl No.: 44

Oriental Insurance Company Ltd., v. Basappa S/O Irappa Ulagaddi

Case brief

What is this about?

What did the court decide?

Oriental Insurance Company Ltd., v. Basappa S/O Irappa Ulagaddi

Case brief

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What did the court decide?

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