Partly allowed

Sri. Kandan N v. Sri. R. Paramesh

Karnataka HC11 Nov 2024MFA/2051/2019

Case brief

AI extract

What is this about?

Motor accident claim where the Tribunal fixed liability on the vehicle owner whose unlicensed minor daughter allegedly rode the scooter. The High Court confirmed involvement, applied pay-and-recover against the insurer despite policy breach, enhanced compensation and reduced interest to 6% per annum.

What did the court decide?

Compensation enhanced from Rs.3,27,907/- to Rs.3,67,907/- with 6% interest; insurer to pay balance and recover only that from owner; owner's Rs.1,25,000/- deposit released to claimant.

Sri. Kandan N Vs Sri. R. Paramesh — Insurance | Karnataka HC (2024)

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1 - NC: 2024:KHC:45514 MFA No. 2051 of 2019 C/W MFA No. 3408 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE N S SANJAY GOWDA

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MISCELLANEOUS FIRST APPEAL NO. 2051 OF 2019

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 3408 OF 2019

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(MV-I)

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IN MFA No. 2051/2019:

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BETWEEN:

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SRI. KANDAN N S/O LATE NATESH L, R/ATNO.221, NEW NO.85, 2ND CROSS, BINNY NEW LAYOT, MAGADI ROAD, BENGALURU-560023.

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…APPELLANT

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(BY SRI.K.N. CHANDRASHEKHARA REDDY., ADVOCATE)

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AND:

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Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA

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SRI. R. PARAMESH S/O LATE RAJANNA, AGED ABOUT 35 YEARS, R/AT:NO.D 87, NEAR TCKH VILLAGE, HARINAGAR, ANJANAPURA, BENGALURU-560062.

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THE REGIONAL MANAGER TATA AIG GENERAL INSURANCE CO.LTD., REGISTERED OFFICE, 15^TH FLOOR, TOWER-A, PENINUSUFA BUSINESS PARK, GANPATH RAO, KADAM MARG OFF,

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2 - NC: 2024:KHC:45514 MFA No. 2051 of 2019 C/W MFA No. 3408 of 2019

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SENIPALLI, BAPAT MARG, LOWER PAREL. MUMBAI-400013.

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…RESPONDENTS (BY SRI. K.T.GURUDEV PRASAD., ADVOCATE FOR R-1; SRI. RAVI.S.SAMPRATHI., ADVOCATE FOR R-2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02/01/2019, PASSED IN MVC NO.3288/2017, ON THE FILE OF THE XXI ACMM., & XXIII ADDITIONAL SMALL CAUSES JUDGE AND MACT, BENGALURU, (SCCH-25), AWARDING COMPENSATION OF RS.3,28,000/- ALONG WITH INTEREST AT 8% P.A., FROM THE DATE OF PETITION TILL THE DATE OF DEPOSITING THE AMOUNT.

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IN MFA NO. 3408/2019:

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BETWEEN:

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MR. R. PARMESH S/O LATE RAJANNA AGED ABOUT 37 YEARS , R/AT NO E 87, NEAR TCH COLLEGE HARINAGAR, ANJANAPURA, BENGALURU – 560062

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...APPELLANT

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(BY SRI. K.T.GURUDEV PRASAD., ADVOCATE)

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AND:

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MR. KANDAN. N S/O LATE NATESH L T/AT N 211, NEW NO 85, 2^ND CROSS, BINNY NEW LAYOUT, MAGADI ROAD, BENGALURU – 560023.

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REGIONAL MANAGER

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- 3 - NC: 2024:KHC:45514 MFA No. 2051 of 2019 C/W MFA No. 3408 of 2019

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TATA AIG GENERAL INSURANCE CO LTD 15^TH FLOOR, TOWER A PENINUSUFA BUSINESS PARK GANAPATH RAO KADAM MARG, OFF SENIPALLI BAPAT MARG LOWER PAREL, MUMBAI - 400013

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...RESPONDENTS

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(BY SRI. K.N.CHANDRASHEKAR REDDY., ADVOCATE FOR R-1; SRI. RAVI.S.SAMPRATHI., ADVOCATE FOR R-2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.01.2019 PASSED IN MVC NO.3288/2017 ON THE FILE OF THE XXI ACMM & XXIII ASCJ, MACT, BENGALURU, [SCCH-25], PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA

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ORAL JUDGMENT

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In respect of an accident which had occurred on 30.04.2017, Paramesh who was riding the motor cycle preferred a claim petition.

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It was the case of claimant that while he was riding

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his motor cycle he was hit by another two wheeler bearing Reg. No.KA-05-JZ-1876 which was owned by

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4 - NC: 2024:KHC:45514 MFA No. 2051 of 2019 C/W MFA No. 3408 of 2019

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Kandan N. He contended that the accident occurred due to the rash and negligent riding of the rider of the scooter.

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Kandan entered appearance and contested the petition. He stated that his vehicle was never involved in the accident and he had parked his scooter on the left side of the road and had gone to attend nature call and at that time, Paramesh who was riding his motor cycle in a rash and negligent manner suffered a skid and had a fall and sustained injuries.

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He contended that using the registration of his vehicle which was parked by the side of the road he a false complaint had been filed and documents were do documents as if his vehicle was involved in the accident.

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The insurer also entered appearance and supported the case of the owner. The Tribunal, by the

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5 - NC: 2024:KHC:45514 MFA No. 2051 of 2019 C/W MFA No. 3408 of 2019

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impugned order, has come to the conclusion that the two wheeler owned by Kandan was in fact being driven by his minor daughter-Jaishree and, therefore, Kandan was liable to pay the compensation. In order to come to this conclusion, the Tribunal has placed reliance on the chargesheet that has been filed against Jaishree. The Tribunal has also proceeded to award a sum of Rs.3,28,000/to Paramesh after finding that he had suffered 11% disability to the whole body and was earning a sum of Rs.9,000/- per month.

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As a consequence of this award, Kandan, the owner of the vehicle is in appeal, and Paramesh - the claimant is also in appeal seeking for enhancement.

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Learned counsel for Kandan, the owner of the two wheeler who has been made liable contended that his vehicle was never involved in the accident and this is clear from the IMV report which indicates that there is no damage to both the vehicles. He

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6 - NC: 2024:KHC:45514 MFA No. 2051 of 2019 C/W MFA No. 3408 of 2019

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contended that since his vehicle was parked by the side of the road, unnecessarily, his vehicle was sought to be impleaded by creating that his daughter was riding the two wheeler.

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Learned counsel for the claimant, however, contends that the accident did occur as a result of Kandan’s daughter’s driving which was rash and negligent, and the Tribunal was justified in recording the said finding. It is, however, submitted that the sums awarded are inadequate and the same are required to be enhanced.

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Since the occurrence of the accident is in serious dispute, it will have to be first decided as to whether the two wheeler owned by the Kandan was involved in the accident. As stated above, the police after investigation, had laid a chargesheet against Jaishree holding that she was riding the two wheeler that too without driving licence.

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7 - NC: 2024:KHC:45514 MFA No. 2051 of 2019 C/W MFA No. 3408 of 2019

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In order to establish that Jaishree was not driving

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and was not involved in the accident, Kandan has not chosen to examine his daughter Jaishree. However, a clear suggestion is made to the following effect-

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“¸ÀzÀj ªÁºÀ£ÀªÀ£ÀÄß ªÀÄ»¼É Nr¸ÀÄwÛzÀÝgÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è gÀ¸ÉÛ §¢AiÀÄ°è D¥Á¢vÀ ªÁºÀ£ÀªÀ£ÀÄß ¤°è¸À¯ÁVvÀÄÛ. 1£ÉÃ JzÀÄgÀÄzÁgÀgÀ ªÀÄUÀ¼ÀÄ ªÁºÀ£ÀzÀ §½ ¤AwzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è.”

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This suggestion by itself clearly indicates that Jaishree - the daughter of Kandan was present at the spot of the accident. If this suggestion is accepted, it follows that Jaishree was involved in the accident. The police after investigation have, in fact, laid a chargesheet holding that Jaishree was riding the motorcycle and therefore, it will have to be inferred that she was riding the two-wheeler.

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It is nodoubt true that both the IMV report indicates that there was no damage to both the two wheelers i.e., one driven by Paramesh and the one allegedly

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8 - NC: 2024:KHC:45514 MFA No. 2051 of 2019 C/W MFA No. 3408 of 2019

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driven by Jaishree. However, since it is the admitted case of both the parties that an accident did occur, this IMV report cannot be of any reliance. Even according to Kandan, the two - wheeler driven by Paramesh did suffer a skid and it should have therefore indicated some damage. The fact that Paramesh also contends that there was a collision and he also suffered injuries, this would also indicate that there must have been a damage to the vehicle.

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In light of the evidence of both the parties that there was an accident, there must have been a resultant damage atleast to the motor cycle driven by Paramesh. Since the IMV report is contrary to the admitted case of the parties, reliance can be placed on said document.

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The net result of this discussion is that the vehicle owned by Kandan was driven by his daughter who did not possess a driving licence. In other words, the vehicle owned by Kandan was being driven in

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9 - NC: 2024:KHC:45514 MFA No. 2051 of 2019 C/W MFA No. 3408 of 2019

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violation of the policy conditions. It is settled law in the case of Yellavva¹ that in the event of breach of policy conditions, the insurer would still be liable to pay the compensation, if the vehicle was covered with the policy and thereafter proceed to recover the same from the owner of the offending vehicle. Consequently, the insurer would have to pay the compensation and thereafter proceed to recover the same from the owner of the offending vehicle. To this extent, the finding of the Tribunal is modified.

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However, an argument was advanced by the insurer that whenever the owner of the offending vehicle, who has committed a breach of policy condition, prefers an appeal the principle of pay and recovery cannot be applied. This Court in the case of Yellavva’s case has refuted this assertion and held that the filing of an appeal by the owner of the

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1 New India Assurance Co. Ltd. Vs. Yallavva and Another, ILR 2020 KAR 2239

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10 - NC: 2024:KHC:45514 MFA No. 2051 of 2019 C/W MFA No. 3408 of 2019

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offending vehicle would have no bearing on the liability of the insurer, and the principle of ‘pay and recover’ would have to be applied. Consequently, this argument is rejected.

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The compensation awarded by Tribunal are just and proper except the sums awarded towards ‘loss of future income’ and ‘loss of income during laid-up period.

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The Tribunal has assessed the disability at 10% which is also just and proper. It has, however, adopted a notional income of Rs.9,500/- and since the Karnataka State Legal Services Authority has fixed a sum of Rs.11,000/- for the accidents of the year 2017, it would be appropriate to adopt the said notional income. As a consequence, the claimant is entitled to a sum of Rs.1,98,000/- (Rs.11,000/- x 12 x ‘15’ x 10%) towards ‘loss of future income’.

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The Tribunal has taken the laid-up period as two

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months and since the monthly income has been taken as Rs.11,000/-, the claimant is entitled to a sum of Rs.22,000/- towards ‘loss of income during laid-up period’.

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Consequently, the award of the Tribunal is modified and the following sums are awarded as compensation:

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Sl. No.	Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
1.	Pain and sufferings	35,000/-	35,000/-
2.	Loss of future earnings	1,62,000/-	1,98,000/-
3.	Medical expenses	52,907/-	52,907/-
4.	Loss of income during the laid up period	18,000/-	22,000/-
5.	Conveyance, nourishment and nutritious food	20,000/-	20,000/-
6.	Loss of amenities in life	20,000/-	20,000/-

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12 -

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NC: 2024:KHC:45514 MFA No. 2051 of 2019 C/W MFA No. 3408 of 2019

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7.	Future medical	20,000/-	20,000/-
	expenses
	Total	3,27,907/-	3,67,907/-

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It is noticed that pursuant to the award, the owner Kandan has deposited a sum of Rs.25,000/- at the time of filing the appeal and has made a further deposit of Rs.1,00,000/-. In total, he has deposited Rs.1,25,000/-. This sum shall be made over to the claimant and the insurer would be liable to pay only the balance amount to the claimant and thereafter recovered only this balance amount from Kandan.

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It is also noticed that the Tribunal has awarded interest at the rate of 8% per annum. Since this Court has consistently awarded interest at the rate of 6% per annum, the rate of interest is also modified to 6% per annum. Consequently, the appeals are disposed of in the above mentioned terms.

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The Insurance Company is directed to deposit the amount of compensation awarded within two months

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from the date of receipt of a certified copy of this judgment.

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The other aspects of the Award of the Tribunal

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remain undisturbed.

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This appeal is, accordingly, allowed in part .

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Sd/(N S SANJAY GOWDA) JUDGE

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HNM

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List No.: 1 Sl No.: 44

Sri. Kandan N v. Sri. R. Paramesh

Case brief

What is this about?

What did the court decide?

Sri. Kandan N v. Sri. R. Paramesh

Case brief

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