Partly allowed

Sri Shivagangaiah v. Sri K R Ramesh

Karnataka HC4 Mar 2024MFA/6139/2017

Case brief

AI extract

What is this about?

Claimant sought enhancement of motor accident compensation and challenged liability fixed on the vehicle owner instead of the insurer, as the driver's licence did not cover geared motorcycles. The court applied Swaran Singh to fasten pay-and-recover liability on the insurer, enhanced income and disability assessments, and partly allowed the appeal raising compensation to Rs.3,27,733 with interest

What did the court decide?

Compensation enhanced from Rs.1,87,933/- to Rs.3,27,733/- (enhancement Rs.1,39,800/-) with 6% interest, payable by insurer with right to recover from owner; deposit within eight weeks.

Sri Shivagangaiah Vs Sri K R Ramesh — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:9039 MFA No. 6139 of 2017

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

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BEFORE

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THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI MISCELLANEOUS FIRST APPEAL NO. 6139 OF 2017

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(MV-I)

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BETWEEN:

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SRI SHIVAGANGAIAH S/O GANGAIAH R/O SASALU AT POST GULUR HOBLI, TUMKUR TALUK TUMKUR DISTRICT - 572101

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…APPELLANT

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(BY SRI. RAMESH K R.,ADVOCATE)

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AND:

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Digitally signed by SUVARNA T Location: HIGH COURT OF KARNATAKA

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SRI K R RAMESH S/O RAMASWAMY R/A KALKERE VILLAGE DASARAHALLI POST KORATAGERE TALUK TUMKUR DISTRICT - 572101

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THE NEW INDIA ASSURANCE CO LTD OPP.RAMA MANDIRA GENERAL KARYAPPA ROAD (BAR LINE ROAD) K R EXTENSION, TUMKUR-572101 REP BY ITS BRANCH MANAGER

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…RESPONDENTS

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(BY SRI. R JAI PRAKASH.,ADVOCATE FOR R2; R-1 SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED13.12.2016 PASSED IN MVC NO.173/2016 ON THE FILE OF THE II ADDITIONAL DISTRICT

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NC: 2024:KHC:9039 MFA No. 6139 of 2017

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JUDGE, MACT, TUMAKURU, 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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JUDGMENT

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Aggrieved by the award passed in MVC.No.173/2016 dated 13.12.2016, the claimant is before this court seeking enhancement of the compensation as well as questioning the liability fixed on the owner of the vehicle.

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The case of the claimant is that on 08.12.2015 at about 8.00 a.m. he along with his relative returning to his

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house, at that time a motorcycle driven by its driver came in a rash and negligent manner came from back side and dashed him and caused the accident. As a result, he had sustained two fracture injuries i.e., grievous fracture of (L) Ulna and grievous fracture of (L) tibia. The claim petition

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was filed seeking compensation of an amount of Rs.6,00,000/-. According to the Doctor PW-2, the claimant had sustained 30% disability to the limb and 10% to the whole body. The court below had taken 5% as

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3 - NC: 2024:KHC:9039 MFA No. 6139 of 2017

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the disability. Then coming to the income, according to the claimant he was working as a carpenter and earning an amount of Rs.15,000/-. The court below had taken Rs.6,000/- as income and granted the compensation as

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per the table given below:

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	Heads		Co	mpensation Awarded
1.	Pain and Sufferings	:	Rs.	40,000/-
2.	Medical Expenses	:	Rs.	38,333/-
3.	Food and Nourishment	:	Rs.	5,000/-
4.	Transportation charges	:	Rs.	5,000/-
5.	Loss of amenities	:	Rs.	30,000/-
6.	Loss of Future Income	:	Rs.	50,400/-
7.	Attendant charges	:	Rs.	1,200/-
8.	Loss of income during the laid up period	:	Rs.	18,000/-
	TOTAL	:	Rs.	1,87,933/-

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3. When it comes to the liability, the court below has

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observed that the driver of the offending vehicle was not having valid and effective driving license as on the date of the accident. The insurance company is absolved from the

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4 - NC: 2024:KHC:9039 MFA No. 6139 of 2017

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liability and the respondent no.1 is held liable to pay the compensation.

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Learned counsel appearing for the appellant submits that the driver of the offending vehicle was having a license to drive a vehicle without gear and also LMV. It is submitted that in the light of law laid down in the case of National Insurance Company Ltd., -Vs- Swaran Singh & others¹ still the insurance company is liable to pay the compensation as the appellant is the third party to the insurance policy and liable to recover the same from the owner of the vehicle. It is submitted that the court below holding the owner of the vehicle liable and absolving

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the insurance company is contrary to the settled law.

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When it comes to the compensation, the learned counsel submits that it is the case of the claimant that he is earning an amount of Rs.15,000/-, the court below ought not to have taken an amount of Rs.6,000/-. Further

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1 (2004) 3 SCC 297

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NC: 2024:KHC:9039 MFA No. 6139 of 2017

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when the doctor had given the evidence that he had sustained 10% disability to the whole body, the court below without any discussion & without any reason had taken 5% as disability. He submits that under the head of pain and suffering, loss of income during the laid up period, the amounts that were granted by the court below were not reasonable.

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Learned counsel for the insurance company

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submits that the court below had rightly considered the evidence and granted the compensation. When the case of the claimant is that he is earning an amount of Rs.15,000/- per month there is no evidence in that regard, the court had rightly taken Rs.6,000/- as income. Learned counsel submits that no grounds are made for enhancement of the compensation.

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Having heard the learned counsel on either side,

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perused the entire material on record. In this case, the first issue that draws attention of this court is about the

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liability. There is no dispute about the fact that driver of

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the offending vehicle was having a driving license to drive

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a vehicle without gear, but he was driving a vehicle with

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gear. If there is any violation of the terms and conditions of the policy and the person who is driving the vehicle is not having the driving license, in those cases, as per the

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law laid down in Swaran Singh's case referred supra insurance company is liable to pay and recover the same from the owner of the vehicle. In view of the above discussion this court holds that insurance company is liable to pay the compensation and recover the same from the owner of the vehicle.

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Then coming to the compensation, there is no evidence with regard to the income of the claimant. According to the claimant, he was doing carpenter job and earning an amount of Rs.15,000/-. Considering the chart prepared by the Karnataka State Legal Services Authority on national income, this court is taking the income at Rs.9,000/-, as the accident is of the year 2015. Then coming to the disability, the court below without any basis

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NC: 2024:KHC:9039 MFA No. 6139 of 2017

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had taken 5% as disability. When the doctor had given the evidence and also categorically mentioned how he arrived at 10% disability, the court below without any reason shouldn't have taken 5%. Hence this court is taking 10% as disability. Under the head of loss of future income an amount of Rs.1,51,200/- (Rs.9,000/- x 12 x 14 x 10/100) is granted. Then towards pain and suffering , as he had sustained two fractures, this court is granting an amount of Rs.60,000/-. Towards medical expenses, food and attendant charges, transport, loss of amenities, the court below had reasonably granted the amounts and no interference is called for. When it comes to loss of income during the laid up period, considering the income at Rs.9,000/-, for three months he was under rest, this court is granting an amount of Rs.27,000/-.

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In the light of the law laid down by the Hon'ble Supreme Court in the case of V.MEKALA vs. M.

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MALATHI AND ANOTHER² , the claimant is entitled for an

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amount of Rs.10,000/- towards Legal Expenses .

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The claimant is therefore, entitled to the

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compensation under the following heads:

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	Heads		Co A	mpensation warded by Tribunal	Compensation Awarded by this Court
1.	Pain and Sufferings	:	Rs.	40,000/-	60,000/-
2.	Medical Expenses	:	Rs.	38,333/-	38,333/-
3.	Food and Nourishment	:	Rs.	5,000/-	5,000/-
4.	Transportation charges	:	Rs.	5,000/-	5,000/-
5.	Loss of amenities	:	Rs.	30,000/-	30,000/-
6.	Loss of Future Income	:	Rs.	50,400/-	1,51,200/-
7.	Attendant charges	:	Rs.	1,200/-	1,200/-
8.	Loss of income during the laid up period	:	Rs.	18,000/-	27,000/-
9.	Legal Expenses	:	Rs.	00/-	10,000/-
	TOTAL	:	Rs.	1,87,933/-	3,27,733/-
	Enhancement	:	Rs.	1,39	,800/-

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Accordingly, the appeal filed by the claimant is partly allowed , enhancing the compensation amount

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2 (2014) 11 SCC 178

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from Rs.1,87,933/- to Rs.3,27,333/-. The Insurance company is liable to pay the compensation and recover the same from the owner of the vehicle.

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ORDER

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i) The Appeal is partly allowed enhancing the compensation amount from Rs.1,87,933/- to Rs.3,27,733/-. The enhanced amount is Rs.1,39,800/-.

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ii) The Insurance company is liable to pay the compensation and recover the same from the owner of the vehicle.

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iii) The enhanced amount shall carry interest at 6% per annum from the date of petition till the date of realization.

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iv) The respondent - insurance company shall deposit the amount within a period of eight weeks from the date of receipt of copy of the judgment. On such deposit, the claimant is entitled to withdraw the entire amount without furnishing any security.

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v) Registry is directed to return the Trial Court Records to the Tribunal, along with certified

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NC: 2024:KHC:9039 MFA No. 6139 of 2017

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copy of the order passed by this Court forthwith without any delay.

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vi) No costs.

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Pending miscellaneous petitions, if any, shall stand

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closed.

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SD/JUDGE

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TS List No.: 1 Sl No.: 31

Sri Shivagangaiah v. Sri K R Ramesh

Case brief

What is this about?

What did the court decide?

Sri Shivagangaiah v. Sri K R Ramesh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

Statutes considered

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