Partly allowed

Sharanappa S/O Yamanappa @ Mudukappa Madiwalar, v. Sri. Veerappa Channabasappa Bavikatti

Karnataka HC13 Jun 2024MFA/24361/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the first appeal partially, holding that the Tribunal did not enhance compensation enough. It directed the insurance company to pay Rs.57,600 with interest under the 'pay and recover' principle despite the driver's invalid license. The judgment also corrected the assessment of disability and compensation heads.

What did the court decide?

The appeal is allowed in part. The insurance company is directed to pay Rs. 57,600 along with interest at 6% p.a. within eight weeks and recover the same from the vehicle owner.

Sharanappa S/O Yamanappa @ Mudukappa Madiwalar, Vs Sri. Veerappa… — Insurance | Karnataka HC (2024)

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NC: 2024:KHC-D:7974 MFA No. 24361 of 2011

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA

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MISCELLANEOUS FIRST APPEAL NO. 24361 OF 2011(MV)

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BETWEEN:

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SHARANAPPA S/O. YAMANAPPA @ MUDUKAPPA MADIWALAR, AGE: 23 YEARS, OCC: COOLIE, R/O: NAGANVI, TQ: GADAG

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…APPELLANT

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(BY SRI. N.M. PATIL, ADVOCATE FOR SRI J.S. SHETTY, ADVOCATE)

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AND:

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SRI. VEERAPPA CHANNABASAPPA BAVIKATTI AGE: MAJOR, OCC: PRIVATE BUSINESS, R/O: MATHAD ONI, NEELGUND, TQ: GADAG

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THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, VIVEKANANDA CORNER, DESAI CROSS, CLUB ROAD, HUBLI

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Digitally signed by GIRIJA A BYAHATTI Location: HIGH COURT OF KARNATAKA

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(BY SMT. ANUSHA SANGAMI, ADVOCATE FOR SRI. S.K. KAYAKAMATH, ADVOCATE FOR R2; NOTICE TO R1 SERVED)

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…RESPONDENTS

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THIS MISCELLANEOUS FIRST APPEAL FILED U/SEC.173(1) OF M.V. ACT, PRAYING TO, MODIFY THE JUDGMENT AND AWARD DATED:18.10.2010, PASSED IN M.V.C. NO.196/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT AND ADDITIONAL M.A.C.T., AT GADAG, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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- 2 - NC: 2024:KHC-D:7974 MFA No. 24361 of 2011

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JUDGMENT

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In this appeal, the petitioner has challenged the judgment dated 18.10.2010 passed in M.V.C.No.196/2006 by the Fast Track Court and Addl. MACT, Gadag, (for short, ‘Tribunal’).

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The appellant was the petitioner and

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respondents were the respondents before the Tribunal. For the sake of convenience, the rank of the parties will be referred to as per their status before the Tribunal.

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Brief facts of the case are, on 18.05.2006, at 10.30 p.m., while the petitioner was riding his cycle on Gadag-Laxmeshwar road near Kutir Hotel, auto rickshaw bearing No.KA-26/5066 driven in a rash and negligent manner and hit against the bicycle of the petitioner causing him injuries. After taking treatment in the District Hospital, Gadag, the petitioner approached the Tribunal seeking compensation of Rs.4,00,000/- with interest at 18%. The claim was opposed by the insurance company. The Tribunal after recording the evidence and hearing both

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3 - NC: 2024:KHC-D:7974 MFA No. 24361 of 2011

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the parties, assessed the compensation of Rs.57,600/with interest at 6% directing the owner of the auto rickshaw to pay the compensation. Pleading inadequacy of compensation, seeking enhancement of compensation and also questioning fastening of liability against the first respondent, the petitioner has filed this appeal on various grounds.

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Heard the arguments of Sri N.M. Patil, learned

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counsel for appellant and Smt. Anusha Sangami, learned counsel for respondent No.2 and perused the records.

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It is the contention of the learned counsel for petitioner that the petitioner has placed evidence through PW-2 Dr. B.S. Patil assessing the whole body disability at 30%. In spite of it, the Tribunal has taken the whole body disability only 7.5%. The petitioner has suffered injuries all over the body including fracture of his right clavicle affecting the earning capacity and thereby the compensation awarded by the Tribunal is inadequate and sought for enhancement. It is further contended that the

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4 - NC: 2024:KHC-D:7974 MFA No. 24361 of 2011

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Tribunal on the ground that the driver of the auto rickshaw was not holding valid driving licence and there is a violation of terms and conditions of the policy, held that the insurance company is not liable to pay the compensation. This aspect has been clarified by the Hon’ble Apex Court in the case of Mukund Dewangan

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Vs. Oriental Insurance Company Limited¹ . Learned counsel has also contended that the insurance company has collected extra premium and he sought direction to the insurance company to pay the compensation.

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Per contra , learned counsel for insurance company has contended that the petitioner suffered clavicle fracture, which is an ornamental bone, no disability is caused affecting the earning capacity. In the evidence, the doctor has exorbitantly assessed the nature of injuries. For an ornamental bone, assessment of 7.5% disability is disproportionate and compensation assessed is on the higher side, which needs to be reduced. Learned

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1 (2017) 14 SCC 663

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5 - NC: 2024:KHC-D:7974 MFA No. 24361 of 2011

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counsel did not dispute the principles laid down in Mukund Dewangan and he submits that the said principles may be adopted to this case.

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I gave anxious consideration to the material evidence on record and perused the records.

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The material on record point out that there was an accident between a cyclist/petitioner and the auto rickshaw on 08.05.2006 injuring him. The petitioner has suffered fracture of clavicle and other injuries. He was hospitalized for 13 days. Since the petitioner was treated at Government Hospital, there are no medical bills. The petitioner was 19 years at the time of accident. The Tribunal has awarded the compensation towards medical bills, loss of amenities and discomfort, attendant charges, traveling expenses, food and nourishment charges.

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It is pertinent to note that the Tribunal did not

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award compensation towards pain and suffering, loss of income during laid up period. But assessed loss of earning

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capacity at Rs.48,600/-. It is hard to accept the evidence of PW-2 that the petitioner has sustained 30% disability.

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The Tribunal is not correct in assessing the disability at 7.5% to the whole body. Hence, in a case of this nature, the petitioner is entitled to compensation of Rs.20,000/towards pain and suffering, Rs.5,000/- towards medical

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expenses, Rs.2,000/towards attendant charges, Rs.1,000/towards traveling expenses, Rs.3,000/towards food and nourishment, Rs.10,000/- towards loss of amenities and discomfort and Rs.12,000/- towards loss of three months’ income during laid up period, which comes to Rs.53,000/- and thereby the compensation assessed by the Tribunal at Rs.57,600/is just compensation and accordingly, the petitioner is entitled. Hence, it is not a case for enhancement of compensation.

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As regarding the liability is concerned, on perusal of the impugned judgment, there is no specific finding that the insurance company has established that the driver of the auto rickshaw was not holding driving

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licence at the time of accident. The Hon’ble Apex Court in Mukund Dewangan (supra) discussed about the liability on the part of the insurance company in a case of this nature. This matter was also considered by the Larger Bench of the Hon’ble Apex Court in M/s. Bajaj Alliance

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General Insurance Co. Ltd. Vs. Rambha Devi & others² and Singh Ram Vs. Nirmala and others³ . In view of the law being settled, not holding of the valid driving licence at the time of accident is a breach of policy conditions. Thereby the insurance company can avoid its liability but the principle of “pay and recovery” is applicable. By applying the said principle, the insurance company has to deposit and then recover it from the insurer in the same proceedings. Accordingly, the appeal merits consideration, in the result, the following:

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ORDER

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(i) Appeal is allowed in part.

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2 Civil Appeal No.841 of 2018 decided on 08.03.2022

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3 Civil Appeal No.2103 of 2018, arising out of SLP © No.22630/2015, decided on 06.03.2018

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(ii) The judgment and award dated 18.10.2010 passed in M.V.C.No.196/2006 by the Fast Track Court and Addl. MACT, Gadag, is modified.

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(iii) The respondent-insurance company is directed to pay the compensation of Rs.57,600/- along with interest at 6% p.a. from the date of petition till the date of deposit, within eight weeks from the date of receipt of the copy of this judgment and recover the same from the owner of the offending vehicle in the same proceedings.

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(iv) Rest of the order of the Tribunal is kept intact.

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Sd/JUDGE

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List No.: 1 Sl No.: 30

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Naa

Sharanappa S/O Yamanappa @ Mudukappa Madiwalar, v. Sri. Veerappa Channabasappa Bavikatti

Case brief

What is this about?

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Sharanappa S/O Yamanappa @ Mudukappa Madiwalar, v. Sri. Veerappa Channabasappa Bavikatti

Case brief

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What did the court decide?

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