Partly allowed

B Krishna v. R Pari

Karnataka HC12 Nov 2024MFA/5373/2015

Case brief

AI extract

What is this about?

Appeals from awards in two injury claims arising out of a bus accident where the bus operated beyond its permitted route. The court held the insurer must pay and recover from the insured despite policy breach, enhanced compensation for an above-knee amputation to Rs.20,46,550, and dismissed the owner's appeal.

What the court decided

AI extract

B Krishna Vs R Pari — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL No.5373/2015 (MV-I)

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C/w

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MISCELLANEOUS FIRST APPEAL No.6726/2013 (MV-I) MISCELLANEOUS FIRST APPEAL No.7246/2014 (MV-I)

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MFA No. 5373/2015:

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BETWEEN:

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B KRISHNA S/O BABU AGED ABOUT 31 YEARS R/AT NO.237, 4^TH CROSS V V NAGARA, KALLAHALLI MANDYA CITY, MANDYA DISTRICT-571401. …APPELLANT

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(BY SRI RAJU BHAT, ADVOCATE)

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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AND:

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R PARI S/O S.M.RAMASWAMY SRI VIJAYALAKSHMI MOTORS CHOWDESHWARI TEMPLE STREET BATAWADI, TUMKUR DISTRICT -572 101

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THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO. LTD. 2^ND CROSS, ASHOKNAGAR

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MANDYA CITY – 571 401 …RESPONDENTS

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(BY SRI SUMANTH L BHARADWAJ, ADVOCATE FOR R1; SMT.GEETHA RAJ, ADVOCATE FOR R2)

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NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 26.05.2014 PASSED IN MVC NO.472/2010 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION), MACT, MANDYA PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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MFA No.6726/2013:

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BETWEEN:

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THE DIVISIONAL MANAGER NEW INDIA ASSURANCE CO. LTD., #2951, 2^ND FLOOR, JLB ROAD CHAMUNDIPURAM, MYSORE – 04 REP. BY THE MANAGER NEW INDIA ASSURANCE CO. LTD., MOTOR TP CLAIMS HUB 2^ND FLOOR, MAHALAKSHMI CHAMBERS NO.9/2, M G ROAD BANGALORE – 560 002 … APPELLANT

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(BY SMT.GEETHA RAJ, ADVOCATE)

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AND:

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SRI. MAHESHA S/O GURUSIDDASHETTY AGED ABOUT 38 YEARS R/AT MUKADAHALLI VILLAGE CHAMARAJANAGAR TALUK & DISTRICT PIN CODE - 571 126

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SRI R PARI, S/O RAMASWAMY S M, MAJOR, PROPRIETOR, OFFICE AT SRI VIJAYALAKSHMI MOTORS CHOWDESHWARI TEMPLE GATAVADI STREET TUMKUR – 572 101 (OWNER OF THE BUS) … RESPONDENTS

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(BY SRI SUMANTH L BHARADWAJ, ADVOCATE FOR R2; R1 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 19.02.2013 PASSED IN MVC

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NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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NO.168/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, KOLLEGAL SITTING AT CHAMARAJANAGAR AWARDING COMPENSATION OF RS.75,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

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MFA No.7246/2014:

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BETWEEN:

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R. PARI S/O S.M.RAMASWAMY AGED ABOUT 50 YEARS SRI VIJAYALAKSHMI MOTORS CHOWDESHWARI TEMPLE STREET BATAWADI, TUMKUR DISTRICT-572 101 … APPELLANT

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(BY SRI SUMANTH L BHARADWAJ, ADVOCATE)

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AND:

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B KRISHNA S/O BABU AGED ABOUT 30 YEARS R/AT NO.237, 4^TH CROSS V.V.NAGAR, KALLAHALLI MANDYA CITY – 571 401

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THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD. 2^ND CROSS, ASHOK NAGAR MANDYA CITY - 571 401 …RESPONDENTS

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(BY SRI RAJU BHAT, ADVOCATE FOR R1; SMT.GEETHA RAJ, ADVOCATE FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 26.05.2014 PASSED IN MVC NO.472/2010 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SENIOR DIVISION), MACT, MANDYA, AWARDING A COMPENSATION OF RS.14,57,303/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL PAYMENT

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THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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M.F.A.No.5373/2015 and M.F.A.No.7246/2014 arise out

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of the award in M.V.C.No.472/2010 passed by the Principal Civil Judge (Senior Division), MACT, Mandya and M.F.A.No.6726/2013 arises out of the award in M.V.C.No.168/2010 passed by Fast Track Court, MACT, Kollegal sitting at Chamarajanagar. Since all these appeals arise out of the same accident, they are taken up together for disposal.

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On 21.02.2010 when the claimants in both the cases were traveling in bus bearing Registration No.KA-06-A-9236, the said bus met with the accident near Manjunatha Petrol Bunk in front of Mysugar High School, Mandya City. Both the claimants suffered injuries in the accident. At the relevant time, respondent Nos.1 and 2 in the claim petition were the registered owner and insurer of the aforesaid bus.

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Injured B.Krishna filed M.V.C.No.472/2010 before the Principal Civil Judge (Senior Division), MACT, Mandya

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claiming compensation of Rs.50,00,000/- and injured Mahesh filed M.V.C.No.168/2010 before the Fast Track Court, MACT, Kollegal sitting at Chamarajanagar claiming compensation of Rs.4,10,000/-.

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Both claimants alleged that due to the accident both of them suffered grievous injuries and permanent physical disability. They claimed that the accident occurred due to actionable negligence on the part of the driver of the bus. Therefore, respondent Nos.1 and 2 are liable to pay compensation.

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Both the cases were contested by the respondents. Respondent No.1 contended that the vehicle was insured with respondent No.2, therefore liability to pay the compensation, if any, is that of the insurer.

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Respondent No.2 apart from disputing the injuries

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and permanent physical disability of the claimants contended that vehicle was operating beyond permit area and the driver of the bus was not having effective driving license, thereby there is breach of policy condition. Hence, it is not liable to indemnify the damages.

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NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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In M.V.C.No.472/2010, the claimant was examined

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as PW.1, the doctor who treated the claimant was examined as PW.2 and Exs.P1 to P20 were marked on his behalf. On behalf of the respondents, RWs.1 and 2 were examined and Exs.R1 to R8 were marked.

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In M.V.C.No.168/2010 the claimant was examined as PW.1 and on his behalf, Exs.P1 to P6 were marked. On behalf of the Insurer, RW.1 Kaveriappa was examined and Exs.R1 to R3 were marked.

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In M.V.C.No.472/2010 the Tribunal on evaluating

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the evidence on behalf of the claimant considered permanent physical disability at 60%, income of the claimant at Rs.4,500/per month, applied 17 multiplier and awarded compensation of Rs.8,26,200/- on the head of loss of future earnings. The Tribunal in all awarded compensation of Rs.14,57,303/- as per

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the table below:

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Sl. No.	Heads	Amount
1.	Injuries pain & Sufferings	45,000/-
2.	Towards Medical expenses	4,85,453/-
3.	Towards loss of income during laid up period	10,650/-
4.	Towards future earning capacity	8,26,200/-
5	Towards cost of artificial leg	50,000/-
6.	Towards loss of amenities in life	25,000/-
7.	Towards conveyance, nourishment & attendant charges	15,000/-
	Total	14,57,303/-

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NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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In M.V.C.No.168/2010 the Tribunal awarded

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compensation of Rs.75,000/- under different heads as per the table below:

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Sl. No.	Particulars	Amount of compensation in Rs.
1.	Pain & Sufferings	30,000/-
2.	Medicalexpenses	20,000/-
3.	Disability	25,000/-
	Total	75,000/-

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In both cases, the Tribunals held that offending bus

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was operating beyond permitted area, there was violation of route permit, thereby there is breach of policy condition. In M.V.C.No.473/2010 the Tribunal exonerated respondent No.2/insurer and dismissed the petition on the ground that there was violation of policy condition and fastened the liability to respondent No.1 / owner of the vehicle.

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In M.V.C.No.168/2010, the Tribunal held that if

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there is violation of policy condition, insurer has to initiate action against the insured, but it is liable to pay the compensation and fastened liability to the insurer.

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Challenging the award in M.V.C.No.473/2010 the claimant and the owner have preferred M.F.A.No.5373/2015

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and M.F.A.No.7246/2014 respectively. The claimant has questioned adequacy of compensation.

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The claimant in M.V.C.No.168/2010 has not challenged the award. Only the insurer has challenged the said award in M.F.A.No.6726/2013 on the question of liability.

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In the appeals, Smt. Geetha Raj, learned Counsel for the insurer submits that the owner of the vehicle himself has admitted in his pleadings that the bus was operating beyond permitted route, thereby there is breach of policy condition. Therefore Insurer cannot be held liable.

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Smt. Sumanth L. Bharadwaj, learned Counsel for the owner and Sri Raju Bhat, learned Counsel for the claimant submit that to prove the breach of policy condition, RTO has not been examined, therefore the said contention was not proved. Under the circumstances, the Tribunal in M.V.C.No.168/2010 was justified in fastening the liability to the insurer and the finding in M.V.C.No.472/2010 exonerating the insurer is unsustainable.

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So far as quantum of compensation in

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M.V.C.No.472/2010, Sri Raju Bhat, learned Counsel submits

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that the doctor who treated the claimant, assessed disability of the claimant at 75% to the whole body and there was amputation of left leg above knee. The Tribunal without assigning any justifiable reasons has reduced the disability to 60% which is unsustainable. He further submits that the income notionally considered by the Tribunal is on the lower side and the compensation awarded on other heads is also on the lower side.

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In support of their submissions they rely upon the judgment of the Hon’ble Supreme Court in the case of Pappu v Vinod Kumar Lamba¹ .

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Smt.Geetha Raj, learned Counsel for the Insurer justifies the quantum of compensation awarded in the said case.

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On considering the submissions of the parties and on examining the materials on record, the points that arise for consideration of the Court are:

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(1) Whether violation of route permit exonerates the insurer to indemnify the liability of the owner arising out of motor accident?

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1 (2018)3 SCC 208

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10 - NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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(2) Whether compensation awarded in M.V.C.No.472/2010 is just one?

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Analysis

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Reg. Insurer’s liability:

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The parties are not in dispute that on 21.02.2010 at 6.30 p.m. when the claimants were traveling in bus bearing Registration No.KA-06-A-9236 near Manjunatha petrol bunk, Maddur, the same met with accident due to actionable negligence on the part of the driver of the bus.

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The evidence on record shows that route permit of the bus in question was from Bangalore to Kanakapura and Kanakapura to Bangalore. But the accident took place within the limits of Mandya City. RW.2 the Power of Attorney Holder of the Insure d/O wner in his cross-examination in M.V.C.No.472/2010 clearly admitted that the bus had no permit to operate from Ramanagar to Mysore and on that day, the bus was operating beyond permitted route. Justification was offered saying that another bus carrying passengers on that route had a breakdown, as passengers were stranding, to help them as a substitute bus bearing No.KA-06-A-9236 was sent to that area. But the fact remains that offending vehicle had operated

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NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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beyond the permitted area. The question is in such cases whether the insurer is totally exonerated of all its responsibilities of indemnifying the liability of the third party victims.

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The law on the point is no more res integra. Hon’ble Supreme Court in its judgment in Rani v. National Insurance Company Ltd.² has held that such violation amounts to violation of the policy condition. However, in that judgment relying on it’s earlier judgment in Pappu v Vinod Kumar Lamba³ it is held that the insurer has to pay the compensation and recover the same from the insured. Therefore in the above cases, the Tribunals should have proceeded accordingly. Therefore, the finding of the Tribunal in M.V.C.No.472/2010 totally exonerating the insurer and finding of the Tribunal in M.V.C.No.168/2010 exonerating the insured, was incorrect and is liable to be set aside. The Court has to follow the principle of pay and recover.

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Reg. Quantum in M.V.C.No.472/2010:

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To prove that he has suffered grievous injuries and amputation of his left leg, the claimant relied on his own

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2 (2018) 8 SCC 492

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3 (2018) 3 SCC 208

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NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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evidence and the evidence of PW.2 the doctor who treated him.

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As per wound certificate Ex.P4 and the evidence of PW.2, the

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claimant was brought to the hospital with the following injuries:

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(i) Abrasion over dorsum of left hand measuring 5cm x 2 cm.

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(ii) Crush injury over left thigh at the level of middle 1/3^rd . Lacerated wound over back of leg in popliteal fossa measuring 15 cm x 5 cm x bone depth with lacerated wound over posterior aspect of left thigh. Crush injury of left foot with avulsion of the sole of the foot and heel pad.

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(iii) Lacerated wound over upper 1/3^rd of right leg measuring 20 x 10 cm with greese mark at wound site.

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(iv) Abrasion over outer aspect of right side foot in an area of 8 x 4 cm.

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The evidence of PW.2/Ex.P4 wound certificate

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shows that the claimant has suffered the following injuries:

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(i) fracture of shaft of left femur at middle 1/3^rd , all muscles of compartment was avulsed below mid thigh level with sciatic nerve was cut.

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(ii) fracture of tibia and fibula in mid shaft.

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The medical evidence further shows the claimant

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had amputation of left leg above knee. The claimant was treated as inpatient in the hospital twice as follows:

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21.02.2010 to 27.04.2010

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17.10.2011 to 21.10.2011

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Totally the claimant was treated as inpatient for seventy five days. There was no dispute that PW.2 was competent to assess the disability of the claimant as he was the doctor who treated him. He assessed whole body disability at 75%. The Tribunal without assigning any reasons reduced the same to 60% which is incorrect.

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The Tribunal considered the income of the deceased at Rs.4,500/- per month notionally. There was no dispute that the claimant was aged 26 years and he was able-bodied person. Considering his age, avocation, prevailing wage rates and cost of living during 2010, the income considered at Rs.4,500/- by the Tribunal per month is on the lower side. The Tribunal should have considered income at minimum of Rs.5,500/- per month.

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Since the disability was more than 50%, in view of the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi⁴ and having regard to the age, amputation of the claimant, 40% ought to have been added to his income by way of future prospects. Therefore his monthly income comes to Rs.5,500/- + Rs.2,200/- =

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4 (2017) 16 SCC 680

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14 - NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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Rs.7,700/-. The applicable multiplier is 17. Having regard to 75% of the disability, the compensation payable on the head of loss of future earnings comes to Rs.7,700 x 17 x 12 x 75% =Rs.11,78,100/-.

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Having regard to the nature of the injuries and period of hospitalization, compensation awarded on the head of pain and suffering is on the lower side. Awarding compensation of Rs.75,000/- on that head would meet the ends of justice.

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In view of amputation of the leg of the claimant, he is deprived of enjoyment of life like any other normal person. Therefore awarding Rs.1,00,000/- on the head of loss of amenities would be proper.

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The medical expenses is awarded based on records and that needs to be maintained.

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Compensation on the head of loss of income during laid up period has to be considered for atleast six months at the rate of Rs.5,500/- which comes to Rs.5,500 x 6 – Rs.33,000/-.

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As per the evidence of PW.2, the claimant had to go for fixing artificial limb. Therefore compensation of Rs.50,000/-

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NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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awarded on head of future medical expenses needs to be maintained.

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Having regard to the period of hospitalization, compensation awarded on the head of conveyance, attendant charges, diet and nourishment requires to be enhanced to Rs.25,000/-. The Tribunal ought to have awarded compensation on the head of loss of marriage prospects. Learned Counsel for the claimant submits that the claimant has not yet married. Considering the aforesaid facts and circumstances, awarding Rs.1,00,000/- on the lead of loss of marriage prospects would meet the ends of justice. Thus just compensation payable is as follows:

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Sl. No.	Particulars	Amount in Rs.
1.	Loss of future earnings	11,78,100/-
2.	Pain and Sufferings	75,000/-
3.	Loss of income during laid up period	33,000/-
4.	Medical expenses	4,85,453/-
5.	Future medical expenses	50,000/-
6.	Loss of amenities	1,00,000/-
7.	Food, Nourishment, Attendant charges and conveyance	25,000/-
8.	Marriage prospects	1,00,000/-
	Total	20,46,553/- rounded off to 20,46,550/-

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Hence, the claimant is entitled to total compensation of Rs.20,46,550/-. The said compensation shall carry interest at 6% per annum.

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For the aforesaid reasons, M.F.A.No.7246/2014 is liable to be dismissed, M.F.A.No.5373/2015 and M.F.A.No.6726/2013 deserve to be allowed in part. Hence, the following:

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ORDER

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M.F.A.No.7246/2014 is dismissed.

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M.F.A.No.* 5373/2015 and M.F.A.No.6726/2013 are partly allowed.

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The award in MVC No.472/2010 on the file of Principal Civil Judge (Senior Division), MACT, Mandya is modified as follows:

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The claimant is entitled to compensation of Rs.20,46,550/- with interest thereon at the rate of 6% p.a. from the date of petition till its realization.

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Respondent No.2 Insurer shall deposit the award amount

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in both cases on adjusting the amount already deposited, by it, as well as the insured, if any, before the Tribunal within four

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weeks from the date of receipt of copy of this order.

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Corrected vide order dated 07.03.2025

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NC: 2024:KHC:45908-DB MFA No.5373/2015 C/w MFA No.6726/2013 MFA No.7246/2014

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The judgment and award in M.V.C.No.168/2010 awarding compensation of Rs.75,000/- with interest at 6% per annum is maintained.

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Respondent No.2 insurer shall deposit the amount before the Tribunal within four weeks from the date of receipt of copy of this order on adjusting the amount already deposited, if any.

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In both the cases, respondent No.1/insured shall pay the amount deposited by the insurer forthwith. In case of default, respondent No.2 insurer shall recover the same in execution of this decree.

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Registry is directed to transmit the amount in deposit and the TCR to the respective Tribunals, forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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KSR

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List No.: 1 Sl No.: 38

B Krishna v. R Pari

Case brief

What is this about?

What the court decided

B Krishna v. R Pari

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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Case details

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