Divisional Manager Vs Ganesh S/O Kenchappa Sirasangi

DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., OLD KVG BANK BUILDING SAUNDATTI, DIST: BELAGAVI-590 001 (INGALAGI BUILDING), NOW REPRESENTED BY ITS ADMINISTRATIVE OFFICER.

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… APPELLANT

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(BY SRI. SURESH S. GUNDI, ADVOCATE)

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AND:

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GANESH S/O KENCHAPPA SIRASANGI, AGE: 11 YEARS, OCC: STUDENT, MINOR BY HIS GUARDIAN NATURAL FATHER, SRI. KENCHAPPA S/O GADIGEPPA SIRASANGI, AGE: 38 YEARS, OCC: COOLIE, R/O: BENAKATTI, TAL: SAUNDATTI-591 126.

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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BASAPPA S/O TAMMANNA CHOORI, AGE: MAJOR, OCC: BUSINESS, R/O: BENAKATTI, TAL: SAUNDATTI, DIST: BELAGAVI-591 126.

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… RESPONDENTS (BY SRI. GURURAJ R. TURAMARI, ADVOCATE FOR R1; R2-SERVED AND UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, 1998, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 30.10.2017 PASSED IN MVC NO.2484/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, SAUNDATTI AT SAUNDATTI.

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

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NC: 2025:KHC-D:7559 MFA No. 100323 of 2018

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR)

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Though the appeal is listed for admission, but with consent of both the learned counsel appearing for the parties, the matter is taken up for final disposal.

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This appeal is filed by the appellant/Insurance Company challenging the judgment and award dated 30.10.2017 passed in MVC No.2484/2015 on the file of Senior Civil Judge and Additional MACT, Saundatti (hereinafter referred to as ‘the Tribunal’ for short), questioning the liability fastened on it as well as praying to reduce the quantum of compensation awarded by the Tribunal.

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For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Tribunal.

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HC-KAR

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Brief facts of the case:

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It is the case of the claimant-Ganesh that on

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27.11.2014, one minor boy Ganesh K. Shirasangi was playing by the side of the road i.e., on Kachcha road near Akalamaddi High School, situated in Benakatti village at

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about 4.00 p.m. at that time, the rider of the motorcycle bearing Reg.No.KA-24/H-9649 came from high school side in a rash and negligent manner and dashed to Ganesh and

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caused the accident. Due to the said accident, Ganesh sustained grievous injuries on his left leg thigh portion, head and other parts of the body. Considering the nature of injuries sustained by the claimant, the Tribunal assessed disability of the claimant at 15% to the whole body. The claimant-Ganesh represented by his natural guardian father has filed claim petition under Section 166 of the Motor Vehicles Act, 1988, for claiming compensation.

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HC-KAR

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The Tribunal has awarded compensation under

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the various heads as follows:

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Sl.	Component/Head	Amount
No.		Rs.
1.	Towards pain and suffering, physical shock, hardship inconvenience, discomfort on account of disability.	3,00,000-00
2.	Towards Medical Expenses.	40,342-70
3.	Towards Attendant charges and loss income of the parents during treatment period.	16,000-00
4.	Towards food and nutrition.	10,000-00
5.	Towards transportation.	10,000-00
6.	Towards loss of personal pleasure.	40,000-00
	Total:	4,16,342-70
	Rounded off	4,16,343-00

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In the present case, the owner of the motorcycle has not produced driving licence. When the Insurance Company has taken defence that the rider did not have driving licence, then it is burden on the owner of the motorcycle to prove that the rider of the motorcycle was having driving licence but there is no driving licence. Therefore, there is violation of terms and conditions of insurance policy. Hence, the Insurance Company is exonerated from paying compensation.

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HC-KAR

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Considering the nature of injuries sustained by

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the claimant-Ganesh, compensation awarded by Tribunal is on higher side. Therefore, following the principles laid down by the Hon’ble Apex Court in the case of Master Mallikarjun Vs. Divisional Manager, National Insurance Co. Ltd. & Another¹ , as the claimant has sustained disability at 15% to the whole body, the claimant would be entitled to modified compensation on the following heads:

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SL.NO.	PARTICULARS	AMOUNT (IN.RS.)
1.	Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts, etc and loss of amenities in life on account of permanent disability.	3,00,000/-
2.	Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization.	25,000/-
3.	Medical and incidental expenses during the period of hospitalization.	40,342.70/-

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1 2014 (14) SCC 396

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HC-KAR

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4.	Future medical expenses for	25,000/-
	correction of the mal union of fracture and incidental expenses for such treatment.
	Total	3,90,342.70/-
	Rounded off	3,90,343/-

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REGARDING PAY AND RECOVERY:

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In the present case, the Tribunal has observed

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that the rider of the motorcycle was not having driving licence at the time of the accident, however committed an error in fastening the liability both on owner and insurer of the offending vehicle. However, as per Sub-section (2) of Section 149 of the MV Act, when the Insurance Company established the fact that the rider was not holding driving licence, then as per Sub-sections (1), (4), (7) of Section 149 of the Act, the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third parties and then recover the same from the owner of the motorcycle. Accordingly, the order of pay and recovery is made as per the principle of law laid down by the Hon’ble Supreme

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Court in the cases of PAPPU AND OTHERS Vs. VINOD

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HC-KAR

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KUMAR LAMBA AND ANOTHER² ; NATIONAL

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INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS³ and also as per the full bench decision of this Court in the case of NEW INDIA

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ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER⁴ . Accordingly, an order of pay and recovery is made.

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Just because an order of pay and recovery made that does not mean that the Insurance Company is jointly and liable to pay compensation along with the owner of vehicle. As discussed above, the benefit of pay and recovery is to the third party. Since, the claimantGanesh in this case is a third party to the motorcycle. Therefore, by exonerating the Insurance Company, it is directed the Insurance Company to pay compensation at first instance then recover it from the owner of the

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2 (2018) 3 SCC 208

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3 (2004) 3 SCC 297

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4 2020 ACJ 2560

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HC-KAR

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motorcycle. Therefore, the appeal is liable to be allowed in part.

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Therefore, the claimant-Ganesh is entitled for

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total compensation of Rs.3,42,343/- along with interest at the rate of 6% p.a. from the date of filing of petition till its realization, as against of Rs.4,16,343/- awarded by the Tribunal. The Insurance Company is directed to deposit

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the compensation within eight weeks from the date of receipt of a certified copy of this judgment.

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11. In the result, I proceed to pass the following: ORDER

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i. The appeal is allowed-in-part.

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ii. The judgment and award dated 30.10.2017 passed in MVC No.2484/2015

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on the file of Senior Civil Judge and Additional MACT, Saundatti, stands

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modified.

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HC-KAR

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iii. The claimant/respondent No.1 is entitled

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total compensation of Rs.3,42,343/- along

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with interest at the rate of 6% p.a. from the date of filing of petition till its realization, as against of Rs.4,16,343/awarded by the Tribunal.

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iv. The excess amount, if any, shall be refunded to the appellant/Insurance Company.

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v. The appellant/Insurance Company shall pay the compensation amount to the claimant at the first instance and then recover the same from the owner of the motorcycle bearing Reg.No.KA-24/H-9649.

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vi. The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.

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vii. Draw award accordingly.

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