Karnataka High Court
Sri Muniyappa vs Sri Shivanna on 1 August, 2022
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
®
-1-
MFA No. 6334 of 2014
C/W MFA No. 3275 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISC. FIRST APPEAL NO. 6334 OF 2014 (MV-I)
C/W
MISC. FIRST APPEAL NO. 3275 OF 2013 (MV)
IN MFA NO.6334/2014 :
BETWEEN:
SRI SHIVANNA
S/O NANDAPPA,
R/AT: TAVAREKERE VILLAGE & POST,
NANDAGUDDI HOBLI,
HOSAKOTE TALUK,
BANGALORE DISTRICT 562114
...APPELLANT
(BY MS. SUNANDA SARKAR FOR SRI. DEEPAK J., ADVOCATES)
AND:
1. SRI MUNIYAPPA
S/O LATE MUNISWAMY,
AGED ABOUT 61 YEARS,
R/AT: NO.403, 4TH CROSS,
ASHWATHANAGAR,
MARATHALLI,
Digitally signed
by PANKAJA S BANGALORE 560037
Location: High
Court of 2. THE NEW INDIA ASSURANCE CO.LTD
Karnataka KOLAR BRANCH, BAGALUR MANSION,
2ND FLOOR, BIG BAZAR, KOLAR,
AND ALSO AT: TPC-HUB, NO.9,
-2-
MFA No. 6334 of 2014
C/W MFA No. 3275 of 2013
MAHALAKSHMI CHAMBERS,
M.G. ROAD, BANGALORE 560001
...RESPONDENTS
(BY SRI. K.T. GURUDEVA PRASAD FOR R1, ADVOCATE
SRI. R. JAIPRAKASH, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
173(1) OF MV ACT PRAYING TO SET-ASIDE THE JUDGMENT
AND AWARD DATED 12.02.2013 PASSED IN MVC
NO.4114/2011 ON THE FILE OF THE ADDL. SMALL CAUSES
JUDGE & XXIV ACMM, COURT OF SMALL CAUSES, MAYOHALL
UNIT, BANGALORE AND THE ORDER PASSED IN REV. PETITION
NO.16/2013 ON THE FILE OF THE V ADDL. SMALL CAUSES
JUDGE AND XXIV ACMM, COURT OF SMALL CAUSES,
MAYOHALL UNIT, BANGALORE.
IN MFA NO.3275/2013 :
BETWEEN:
SRI MUNIYAPPA
AGED ABOUT 61 YEARS,
S/O LATE MUNISWAMY,
R/AT: NO.403, 4TH CROSS,
ASHWATHANAGAR,
MARATHALLI,
BANGALORE 560037
...APPELLANT
(BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE FOR R1)
AND:
1. SRI SHIVANNA
S/O NANDAPPA,
AGED ABOUT YEARS,
R/AT: TAVAREKERE VILLAGE & POST,
NANDAGUDDI HOBLI,
-3-
MFA No. 6334 of 2014
C/W MFA No. 3275 of 2013
HOSAKOTE TALUK,
BANGALORE DISTRICT 562114.
2. THE MANAGER,
THE NEW INDIA ASSURANCE CO.LTD
KOLAR BRANCH (G72101),
BAGALUR MANSION,
2ND FLOOR, BIG BAZAR, KOLAR.
REPRESENTED BY ITS MANAGER.
...RESPONDENTS
(BY SRI. T.V. LOKANATHA, ADVOCATE FOR R1,
SRI. R. JAIPRAKASH, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 12.02.2013 PASSED IN MVC NO.4114/2011 ON THE
FILE OF THE ADDL. SMALL CAUSES JUDGE & XXIV ACMM,
COURT OF SMALL CAUSES, MAYOHALL UNIT, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. MFA No.3275/2013 is filed by the claimant seeking for enhancement.
2. MFA No.6334/2014 is by the owner, challenging the exoneration of the liability of the Insurer. -4- MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013
3. The fact that an accident had occurred on 20.05.2011 when the claimant was riding his motor cycle and the offending lorry collided with the motor cycle, is not in dispute.
4. The Tribunal, initially, awarded a compensation of Rs.8,44,356/- and made the Insurance Company liable. However, the Insurance Company sought for the review of the said order in RP No.16/2013 and the Tribunal reviewed its earlier order and recalled its finding fastening the liability on the Insurer. The Tribunal thereafter proceeded to pass an order fastening the entire liability on the owner, on the ground that the vehicle in question was a petrol tanker and the driver of the said petrol tanker did not possess the requisite Endorsement to drive the petrol tanker.
5. As could be seen from the contentions advanced by the Insurer in the Review Petition, the basic contention was that there was a breach of the policy conditions, in as -5- MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013 much as, the driver though possessed a license to drive a heavy goods vehicle but did not have the additional endorsement to drive the petrol tanker and therefore, it could not be made liable.
6. It is settled law that even in case whether the driver of the vehicle did not possess a valid and effective driving license, the Insurance Company would still nevertheless have to satisfy the compensation and thereafter proceed to recover the compensation from the owner, as per the principles laid down in the case of Shamanna and Another Vs. Divisional Manager, Oriental Insurance Company Limited - (2018) 9 SCC 650.
7. In this view of the matter, the finding of the Tribunal that the Insurer was entitled to be exonerated of its liability will have to be modified and it will have to be held that the Insurer would be first required to pay the compensation to the claimants and thereafter proceed to recover the same from the owner.
-6-MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013
8. However, learned counsel for the Insurer submits that the principle of pay and recovery cannot be applied if the owner has entered appearance or the owner has preferred an appeal. The contention sought to be advanced is that the principle of pay and recovery will have to be applied only when there is no contest by the Insured or the Insured has accepted the award and has not preferred any appeal.
9. In my view, this argument is completely misconceived. The Supreme Court in more than one case has held that the principle of pay and recovery is applicable in cases where the vehicle was insured and there was a breach of the policy conditions. It is settled law that the Insurer is bound to indemnify the insured in the event of an accident occurred out of the use of the motor vehicle even if it establishes its defence that there was a breach of the policy conditions.
-7-MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013
10. It has also been held that whenever the Insurer puts- forth a defence that it is not liable by successfully proving its defence, the Apex Court has held that they would still be liable to pay the compensation to the claimant and they would be at liberty to recover the compensation that they have paid by proceeding against the insured who had contravened the policy conditions.
11. This, basically means that whenever an accident occurs out of the use of a motor vehicle, which is insured, the Insurer would have to pay the compensation to the victim of the motor vehicle accident, even if it is entitled to avoid the liability and it would thereafter be at liberty to recover the same from the owner of the offending vehicle.
12. In the light of this settled legal proposition, the argument that if the owner has entered appearance, the principle of pay and recovery would not apply cannot be advanced at all.
-8-MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013
13. If the owner of the vehicle appears and contests his liability, that would not in any way alter the liability of the insurer to pay the compensation to the victim. If the owner is unsuccessful in establishing that he has no liability, even then the only consequence would be that the owner cannot escalate liability and the Insurer's right to recover the compensation from the owner would stand affirmed. However, that affirmation of the liability of the owner will not and cannot discharge or absolve the liability of the insurer to pay the compensation to the victim.
14. It is to be stated here that since the vehicle was insured, the insurer will have to pay the compensation to the victim even if the Insurer is absolved because of its liability because of a breach of the policy conditions and this is because of the fact that the Motor Vehicles Act is a beneficial legislation with the overriding objective of ensuring that the victims of a motor vehicle accident receive their statutory entitlement of just compensation. -9- MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013
15. Viewed in this context, it is clear that it would irrelevant as to whether the owner of the vehicle appeared or did not appear or did not contest or contested the proceedings for applying the pay and recover principle. So long as it is established that that there was an insurance policy issued in respect of the motor vehicle which was involved in the accident, the Insurer would be liable to pay the victim, even if the insurer is able to establish its defence that there has been a breach of the policy conditions and it can avoid liability.
16. Consequently, it is held that in the present case, the Insurer would have to satisfy the compensation that is liable to be paid to the claimant and thereafter to proceed to recover the same from the owner of the offending vehicle.
17. In this case, so far as the enhancement is concerned, the Tribunal has determined the permanent disability at 5% and has taken the notional income of the
- 10 -
MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013 claimant at Rs.4,000/- per month and awarded compensation as under:
Sl. Particulars Amount in Rs.
No.
01. Injury, pain and suffering 48,000-00
02. Medicine & hospital 7,62,000-00
charges
03. Loss of earning during the 4,256-00
period of treatment
04. Food and nourishment, 8,512-00
conveyance & attendant
charges
05. Loss of future income 21,600-00
TOTAL RS.8,44,356-00
18. The claimant suffered head injuries and was
unconscious for 22 days. The neurosurgeon who treated at Yashoda Hosipital, Dr. Srinivas has stated that the claimant has suffered the following injuries:
a. Left temporal contusion with traumatic sub arachnoid hemorrhage b. D8 vertebral body fracture c. Multiple ribs fractures - 2 to 8 ribs on right side with hemothorax, flail chest & lung contusion. d. Right scapular fracture
- 11 -
MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013 e. Right brachial plexus neuropraxia f. Right Optic Neuropathy He has also stated that he underwent the following surgeries:
a. Right arm wound suturing by orthopedic surgeon on 20.05.2011 b. Right sided inter costal drain (ICD) insertion by Thoracic surgeon on 20.05.2011 c. Tracheostomy by Neurosurgeon on 24.05.2011
19. The doctor has stated that the claimant has stuttering of speech, memory lapse to day of week calculation, illegible handwriting and he had MMSE score of
18 out of 25. He has also stated that the claimant has a restriction of right upper limb movements - grip, elbow and shoulder movements. He has ultimately stated that based on the injuries suffered, the total disability would be 87.5%. In my view, since the claimant was unconscious for 22 days and had undergone Tracheostomy thereby indicating that he was under ventilation, it is obvious that
- 12 -
MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013 he would have suffered severe head injuries. The fact that the doctor has opined that he has memory loss, stuttering of speech, illegible handwriting would also indicate that the claimant would not be able to do any work so as to earn anything for his livelihood. However, since the claimant was aged about 61 years as on the date of accident, it would be appropriate to determine the total disability at 75%.
20. The Tribunal has determined the notional income at Rs.4,000/- since there was no evidence to indicate his actual income. As the accident is of the year 2011, it would be appropriate to adopt the monthly income determined by the Karnataka State Legal Services Authorities, which for the year 2011 would be Rs.6,500/- per month for the purpose of calculation of future loss of income. The appropriate multiplier applicable to his age group is '9'. Therefore, the 'loss of future income' would be Rs.5,26,500/- (Rs.6,500x12x9x75%)
- 13 -
MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013
21. The Tribunal has awarded a sum of Rs.48,000/- towards 'pain and suffering'. Since the claimant was on a ventilator and had lost consciousness for more than 20 days, it would be appropriate to enhance the same to Rs.1,00,000/-.
22. The sum of Rs.7,62,000/- awarded towards 'medical expenses' based on the documentary evidence is undisturbed.
23. As noticed above, the claimant was unconscious for more than 20 days. Having regard to the nature of injuries, the claimant must have taken rest for six months. Therefore, the sum of Rs.39,000/- (Rs.6,500x6) is awarded towards 'loss of income during laid up period'.
24. The Tribunal has awarded a sum of Rs.8,512/- towards 'food, nourishment and conveyance'. In my view, it is appropriate to enhance the said sum to Rs.40,000/-. The Tribunal has not awarded any compensation towards
- 14 -
MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013 'loss of amenities'. In my view, having regard to the serious head injuries the claimant suffered and consequential disabilities, which would resulted in severe impairment towards his daily life, it is appropriate to award a sum of Rs.1,00,000/- towards 'loss of amenities'. In all, the claimant is entitled to the following compensation:
Sl.No. Particulars Amount in Rs.
01. Injury, pain and suffering 1,00,000-00
02. Medicine & hospital charges 7,62,000-00
03. Loss of earning during the 39,000-00
period of treatment
04. Food and nourishment, 40,000-00
conveyance & attendant
charges
05. Loss of future income 5,26,500-00
06. Loss of amenities 1,00,000-00
TOTAL RS.15,67,500 -00
25. Accordingly, I pass the following :
ORDER i. MFA No.6334/2014 is dismissed. ii. MFA No.3275/2013 is allowed in part.
- 15 -
MFA No. 6334 of 2014 C/W MFA No. 3275 of 2013 iii. The judgment and award dated 12.02.2013 passed by the MACT and V. Addl. Small Causes Judge and XXIV ACMM, Court of Small Causes, Bangalore in MVC No.4114/2011 is hereby modified. iv. The claimant is entitled for the total compensation of Rs.15,67,500/- as against Rs.8,44,356/- awarded by the Tribunal, with interest at 6% per annum from the date of petition till the date of realisation. v. The Insurer shall pay the said compensation and thereafter proceed to recover the same from the owner of the offending vehicle. vi. The amount in deposit by the owner of the offending vehicle shall be make over to the claimant and will be entitled to deduct the said sum from the compensation awarded by the Tribunal.
SD/-
JUDGE SNC