Partly allowed

United India Insurance Co. Ltd. v. Kumari Lakshmi G

Karnataka HC4 Mar 2024MFA/1036/2022

Case brief

AI extract

What is this about?

The High Court modified the award in two connected miscellaneous first appeals regarding a motor accident. The Court set aside the trial court's joint liability and fastened the entire liability on the motorcyclist (Respondent 1), absolving the Maxi cab owner and Insurance Company. The claimant's appeal for enhanced compensation was dismissed.

What did the court decide?

The insurance deposit was returned; liability shifted entirely to the motorcyclist; compensation retained at Rs. 3,98,000.

United India Insurance Co. Ltd. Vs Kumari Lakshmi G — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF MARCH, 2024 BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO.1036 OF 2022 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.4058 OF 2022(MV-I)

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IN MFA NO.1036/2022:

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BETWEEN:

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UNITED INDIA INSURANCE CO. LTD. B.H.ROAD, SHIVAMOGGA REP. BY ITS DIVISIONAL MANAGER NO.1137/947, 2^ND FLOOR RUB BUILDING A.A.CIRCLE, B.H.ROAD SHIVAMOGGA-577 201

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…APPELLANT

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(BY SRI RAVISH BENNI, ADVOCATE)

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AND:

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH

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Location: HIGH COURT OF KARNATAKA

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KUMARI LAKSHMI G. D/O.DODDAGIDDAPPA JOGI AGED ABOUT 29 YEARS COOLIE

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R/AT THIMLAPURA VILLAGE SHIKARIPURA TALUK SHIVAMOGGA-577 427

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SANJEEVA SHIVANAGOWDA SANGANAGOWDAR S/O.SHIVANAGOWDA AGED ABOUT 45 YEARS R/AT BEKANAKONDA VILLAGE RANIBENNUR TALUK HAVERI DISTRICT-581 208 (DRIVER OF KA-27 EA 9185)

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NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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DEVARAJA GADDACHIKKI S/O.DODDAPPA GADDACHIKKI MAJOR R/AT THIMLAPURA VILLAGE SHIKARIPURA TALUK SHIVAMOGGA-577 427 (OWNER OF MAX CAB KA 15/A-0122)

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NAGENDRA NAIKA S/O.SHIVYA NAIKA AGED ABOUT 40 YEARS R/AT THIMLAPURA VILLAGE SHIKARIPURA TALUK SHIVAMOGGA-577 427

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…RESPONDENTS

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(BY SMT.ANITHA H.R., ADVOCATE FOR R-1; SRI SRIKANTH PATIL K., ADVOCATE FOR R-3; SRI HARISH N.R., ADVOCATE FOR R-4; R-2 IS SERVED AND UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGEMNT AND AWARD DATED 17.09.2021 PASSED IN MVC NO.500/2017 BY THE SENIOR CIVIL JUDGE AND AMACT-15 AT SHIKARIPURA AND ETC.

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IN MFA NO.4058/2022:

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BETWEEN:

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KUMARI LAKSHMI G. D/O.DODDAGIDDAPPA JOGI AGED ABOUT 29 YEARS R/AT THIMLAPURA VILLAGE SHIKARIPURA TALUK SHIVAMOGGA-577 201

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…APPELLANT

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(BY SMT.ANITHA H.R., ADVOCATE)

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3 - NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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AND:

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SANJEEVA SHIVANAGOWDA SANGANAGOWDAR S/O.SHIVANAGOWDA AGED ABOUT 45 YEARS DRIVER OF KA-27 EA 9185 R/AT BEKANAKONDA VILLAGE RANIBENNUR TALUK

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HAVERI DISTRICT-581 208

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DEVARAJA GADDACHIKKI S/O.DODDAPPA GADDACHIKKI MAJOR R/AT THIMLAPURA VILLAGE SHIKARIPURA TALUK SHIVAMOGGA-577 201 (OWNER OF MAX CAB KA 15/A-0122)

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THE UNITED INDIA INSURANCE CO.LTD. B.H.ROAD SHIVAMMOGGA CITY

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NAGENDRA NAIKA S/O.SHIVYA NAIKA AGED ABOUT 40 YEARS R/AT THIMLAPURA VILLAGE SHIKARIPURA TALUK SHIVAMOGGA-577 427

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…RESPONDENTS

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(BY SRI RAVISH BENNI, ADVOCATE FOR R-3; NOTICE TO R-1 IS HELD SUFFICIENT V/O/DTD.28.02.2024; R-2 & R-4 ARE SERVED AND UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGEMNT AND AWARD DATED 17.09.2021 PASSED IN MVC NO.500/2017 BY THE SENIOR CIVIL JUDGE AND AMACT-15 AT SHIKARIPURA AND ETC.

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4 - NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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

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JUDGMENT

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These two appeals - MFA Nos.1036/2022 and

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4058/2022 are preferred by the Insurance Company and the claimant respectively questioning the common judgment and award dated 17^th September 2021 passed in MVC.No.500/2017 by the Court of Senior Civil Judge and AMACT-15, Shikaripura (for short ‘ the Tribunal’ ).

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MFA No.1036/2022 is preferred by the Insurance Company on the ground that the judgment and award passed by the Tribunal is perverse, arbitrary, illegal and the same requires to be set aside. MFA No.4058/2022 is preferred by the claimant on the premise of inadequate and meager compensation awarded by the Tribunal.

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Parties to the appeal shall be referred to as per

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their status before the Tribunal.

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Brief facts of the case are as under:

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On 2.8.2016 at about 12.00 noon the claimant was

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traveling in maxicab bearing Registration No.KA-15/A-

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5 - NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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0122 belonging to the 2^nd respondent and driven by the 4^th respondent from Timlapura village to Havanur Dyamamma temple. While she was traveling in the said maxicab, the driver of the said maxicab drove the same in rash and negligent manner near Haligere bus stand, at that time, the 1^st respondent, who was riding the motorcycle bearing No.KA-17/AE-9185 came from the opposite direction in a

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rash and negligent manner and dashed against the maxicab and hit the upper right arm of the claimant, which she had kept outside the window, due to which she sustained fractured injury in the upper right arm. Immediately, she was shifted to Nanjappa hospital, Shivamogga, where she took treatment as an in-patient for one month. Hence, she filed the claim petition seeking compensation against the respondents.

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4.1 On service of notice, respondents filed separate written statements denying the averments made in the claim petition including age, avocation, income and disability and sought for dismissal of the claim petition.

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6 - NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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4.2 On the basis of the pleadings, the Tribunal framed relevant issues for consideration.

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4.3 In order to substantiate the issues and establish the case, the claimant got examined himself as PW.1 and other two witnesses as PWs.2 and 3 and got marked documents as per Ex.P1 to Ex.P32. On the other hand, respondents examined two witnesses as RW.1 and RW.2 and got marked documents as per Ex.R1 to Ex.R6.

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4.4 On the basis of the material evidence, both oral

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and documentary, the Tribunal awarded compensation of Rs.3,98,000/- with interest at 9% per annum and fastened

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the liability against the 1^st and 3^rd respondents in the ratio of 50:50.

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4.5 Being aggrieved by the same, the Insurance Company is before this Court in MFA.No.1036/2022 seeking to set aside the judgment and award passed by the tribunal on the ground of it being perverse, arbitrary and erroneous and the claimant is also before this Court in

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7 - NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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MFA.No.4058/2022 seeking enhancement of

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compensation.

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Learned counsel for Insurance Company vehemently contends that the tribunal has erred in fastening the liability as against the owner of the Maxi cab. Filing of FIR and laying of chargesheet against the rider of the motor cycle itself show that there was negligence on the part of the rider of the motor cycle in occurrence of accident. However, no FIR and chargesheet have been laid against the driver of the Maxi cab. On these grounds, he seeks to fasten the entire liability as against the rider of the motor cycle and absolve the liability as against the owner of maxi cab.

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Learned counsel for claimant vehemently contends that the tribunal has erred in awarding meager compensation, which calls for interference at the hands of this Court. Hence, he seeks to enhance the compensation awarded by the tribunal.

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8 - NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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Having heard learned counsel for claimant and learned counsel for Insurance Company and perused the impugned judgment and award and documents exhibited at Exs.P1 to P32, it is seen that the Police records at Exs.P1 to P7 clearly depict filing of FIR and laying of chargesheet against the rider of the motor cycle i.e. respondent No.1. Therefore, the negligence is attributed against the rider of the motor cycle rather than the driver of the maxi cab. The occurrence of accident, involvement of vehicle and injuries suffered by the claimant are established by production of these documents.

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Now coming to the aspects of age, avocation and income and other heads of compensation, it is stated that the claimant was aged 24 years as on the date of occurrence of accident and the tribunal applied the multiplier at '18'. Though it is stated that the claimant was working as a teacher, nothing is placed on record to prove the same. Therefore, the tribunal has taken the notional income at Rs.9,000/- per month. The Doctor has

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9 - NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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been examined as CW.1 who has opined the disability to an extent of 12.33% of permanent impairment to a particular limb. However, he has not opined the disability to the whole body. Hence, the tribunal assessed the disability at 6% to the whole body. In view of the same, the tribunal awarded Rs.1,23,000/- towards loss of future income due to disability. However, I do not find any reason to interfere with the same. Hence, it is retained.

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The tribunal awarded Rs.50,000/- towards pain and suffering, Rs.20,000/towards future medical expenses, Rs.57,000/- towards loss of income during laid up period for 6 months, Rs.58,000/- towards medical expenses, RS.20,000/- towards food and nourishment, Rs.70,000/- towards loss of amenities and discomfort. However, I do not find any good ground or cogent reason to interfere with the compensation awarded by the tribunal, which are just and reasonable and the same are retained. Therefore, the claimant is entitled for total

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10 - NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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compensation of Rs.3,98,000/- along with interest @ 9% p.a. as awarded by the tribunal.

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Now coming to the aspect of fixing the liability, the tribunal has fastened the liability as against respondent Nos.1 and 3 in the ratio of 50:50 by holding that both the vehicles responsible for causation of the accident.

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On careful perusal of the records and submission of learned counsel for both parties, it is not in dispute that the FIR and chargesheet have been laid against the rider of the motor cycle. However, no case is filed against the driver of the maxi cab. Therefore, the question of fastening any liability against the owner of the maxi cab does not arise as it is the negligence and fault of the rider of the motor cycle, due to which, the accident occurred. Hence, the entire liability will have to be fastened as against respondent No.1-owner-cum-rider of the motor cycle and the liability as against respondent No.3 will have to be absolved in view of there being no FIR or

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NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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chargesheet against the driver of the said maxi cab. Under the circumstance, the entire liability is ordered to be fastened against respondent No.1-owner-cum-rider of the motor cycle.

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12. Accordingly, I pass the following:

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ORDER

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i) The appeal in MFA.No.1036/2022 preferred by the Insurance Company is allowed ;

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ii) The appeal in MFA.No.4058/2022 preferred by the claimant is dismissed;

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iii) The judgment and award dated 17.09.2021 passed in MVC.No.500/2017 by the Court of Senior Civil Judge and AMACT-15, Shikaripura, is modified;

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iv) The entire liability is fastened as against respondent No.1-rider of the motor cycle, whereas, respondent No.3-Insurance Company is absolved from the liability;

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v) The claimant is entitled to recover the amount from respondent No.1-rider of the motor cycle;

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NC: 2024:KHC:9153 MFA No. 1036 of 2022 C/W MFA No. 4058 of 2022

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vi) The amount deposited by the Insurance Company along with statutory deposit before this Court shall be released/returned in favour of the appellantInsurance Company in MFA.No.1036/2022, upon proper verification;

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vii) The original records shall be transmitted to the jurisdictional tribunal forthwith;

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viii) All other terms and conditions stipulated by the tribunal shall stand intact.

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Sd/JUDGE

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GSS/LB List No.: 1 Sl No.: 70

United India Insurance Co. Ltd. v. Kumari Lakshmi G

Case brief

What is this about?

What did the court decide?

United India Insurance Co. Ltd. v. Kumari Lakshmi G

Case brief

What is this about?

What did the court decide?

What the court decided

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