Karnataka High Court
Nabojeeth @ Nabo vs The Manager on 28 October, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:43471
MFA No. 9479 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 9479 OF 2013 (MV)
BETWEEN:
NABOJEETH @ NABO
AGED 29 YEARS,
S/O HORESSAR BURVA,
R/A, NORTH SALMORE VILLAGE,
BANGAI GOV DIST
ASSAM
NOW AT, NO A402,
NEAR KANVA LAB,
BESIDE URDU GOVT. SCHOOL,
AVALAHALLI,
BANGALORE - 560 061
...APPELLANT
(BY SRI. PRAKASH M H, ADVOCATE)
AND:
1. THE MANAGER
NEW INDIA INSURANCE CO. LTD
Digitally signed
by RAMYA D (GRANT ROAD BRANCH),
Location: HIGH T P HUB, 2ND FLOOR,
COURT OF
KARNATAKA MAHALAKSHMI CHAMBERS,
M G ROAD,
BANGALORE - 560 025.
2. SURESH BABU
S/O GOVINDA REDDY,
BALLAPURA VILLAGE,
SARJAPURA HOBLI,
ANEKAL TALUK,
BANGALORE RURAL DIST - 562 106.
...RESPONDENTS
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NC: 2024:KHC:43471
MFA No. 9479 of 2013
(BY SRI. K. KISHORE KUMAR REDDY ADVOCATE FOR R1;
SRI. M. PRABHKAR ADVOCATE FOR R2)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 11.09.2012 PASSED IN MVC
NO. 3772/2011 ON THE FILE OF THE XI ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, & MACT, BANGALORE, DISMISSING
THE PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
The appeal is filed by the claimant seeking enhancement of compensation as well as for modification of the liability fixed on the owner of the offending vehicle Tractor Trailer.
2. Heard learned counsel for both the parties and perused the material on record.
3. Brief facts of the case are :
That on 16.05.2011 at about 7.00 p.m. the claimant was going on his Motor Cycle bearing No.AP-02-J-4632 near Burgunte Village, in front of MVR Gas Factory, at that time the Tractor Trailer with water tanker bearing -3- NC: 2024:KHC:43471 MFA No. 9479 of 2013 No.KA-07-1930 dashed the motor cycle, due to the impact, the claimant fell down and sustained grievous injuries. Therefore, upon the claim petition filed by the claimant under Section 166 of the Motor Vehicles Act (for short 'the Act'), the Tribunal has awarded compensation of Rs.2,32,000/- along with interest at 6% p.a. from the date of petition till the date of realization, exonerating the Insurance Company and saddling the liability on the owner of the Tractor Trailer with water tanker.
4. The Tribunal has assigned reasons for fastening liability on the owner of the offending vehicle Tractor Trailer with water tanker, that the Tractor was not insured. Therefore, saddled liability on the owner to pay the compensation.
5. In the present case, admittedly the driver of the offending vehicle was holding driving licence as per Ex.R3 is light motor vehicle authorized to drive the Tractor only. The driver was not having licence to drive the Tractor Trailer with water tanker. Therefore, it is proved that as -4- NC: 2024:KHC:43471 MFA No. 9479 of 2013 per Ex.R3 and driver of the offending vehicle was authorized to drive the light motor vehicle/tractor only. But in the present case, the offending vehicle is tractor with trailer and water tanker. Thus it becomes medium goods vehicle. Therefore, when the Tractor is attached to the water tanker, it is not a light motor vehicle as per Section 2(21) of the Act. Thus it becomes goods carriage vehicle as defined under Section 2(14) of the Act. There is no evidence by the claimant that what is the unladden weight of the Tractor. Here the Tractor is attached with the water tanker, therefore, the offending vehicle does not come within the category of light motor vehicle. But admittedly the driver is holding driving licence to drive the light motor vehicle, hence the Insurance Company has proved that there is violation of the condition of Insurance policy. Hence in this regard the Tribunal is correct in exonerating the Insurance Company.
6. But the claimant is a third party, he was hit by the Tractor Trailer with a water tanker. Therefore, when the -5- NC: 2024:KHC:43471 MFA No. 9479 of 2013 claimant is a third party, his right is to be protected as per Sub-sections (1) and (2) of Section 149 of the MV Act, that the claimant is laible to be benefited by the theory of pay and recovery. Here there is violation of conditions of policy as per Sub-section (2) of Section 149 of the Act and since the claimant is a third party, his right is protected as per the principle of pay and recovery as enshrined by the Hon'ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER1, NATIONAL INSURANCE COMPANY LIMITED Vs. SWARAN SINGH AND OTHERS2 and also as per the Full Bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED Vs. YELLAVVA AND ANOTHER3, therefore the order of pay and recovery is made. Therefore, the Insurance Company shall first pay compensation to claimant then recover from the owner of Tractor Trailer and Water Tanker.
1 (2018) 3 SCC 208 2 (2004) 3 SCC 297 3 2020 ACJ 256 -6- NC: 2024:KHC:43471 MFA No. 9479 of 2013
7. The Insurance Company is at liberty to get recovery of the compensation amount paid to the claimant as per the legal recourse available, by attaching movable or immovable properties of the owner of the offending vehicle by filing execution petition directly before the concerned jurisdictional court.
8. Accordingly, the Insurance Company is directed to pay the compensation to the claimant at the first instance and then recover it from the owner of the offending vehicle Tractor Trailer with water tanker. Regarding quantum of compensation:
9. In the present case, it is proved that the claimant has suffered the following injuries:-
"1. Tenderness and swelling in lower 1/3rd right leg.
2. Cut lacerated wound 2 x 3 cms of right leg right lower 1/3rd medial side.
3. Tenderness in throchantric lumbar region X-ray shows compression fracture L2 and L3 LS-S1 larthesis.
4. Fracture of both bones of right leg." -7-
NC: 2024:KHC:43471 MFA No. 9479 of 2013
10. The claimant is awarded compensation under various heads as follows :-
a. Pain and suffering Rs.50,000/-
b. Medical and incidental expenses Rs.23,600/-
c. Loss of income Rs.16,000/-
d. Loss of future income Rs.1,22,400/-
e. Loss of amenities Rs. 10,000/-
f. Future medical expenses Rs. 10,000/-
______________
Total Rs.2,32,000/-
______________
11. The Doctor PW.3 has in detail deposed in his affidavit evidence as to how permanent disability of 19% to the whole body is calculated and assessed. But the Tribunal has committed error in considering only 15% as permanent physical disability. Therefore, considering the nature of injuries sustained by the claimant permanent physical disability is to be considered at 19%. Since the claimant has suffered fractured injuries, his future prospects would be hampered. Hence, following the principles of law laid down by this Court and the Hon'ble -8- NC: 2024:KHC:43471 MFA No. 9479 of 2013 Supreme Court in the cases of New India Assurance Company Vs. Abdul S/o Mehaboob Tahasildar4 and Sidram Vs. Divisional Manager, United India Insurance Company Limited and Another5, certain income is to be added towards loss of future prospects in life. What would be the income to be added is guided by the Hon'ble Supreme Court in the case of National Insurance Co., Ltd., Vs. Pranay Sethi6 according to the age limit of the claimant/deceased. The claimant is aged 28 years, 40% of income is to be added towards loss of future prospects in life.
12. The accident has occurred in the year 2011. The Tribunal has taken the income at Rs.4,000/- which is on the lower side. As per notional income chart prepared by the Karnataka State Legal Service Authority, the notional income is to be taken at Rs.6,500/- per month. The 4 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018 DD.27.05.2022 5 (2023) 3 SCC 439 6 (2017) 16 SCC 680 -9- NC: 2024:KHC:43471 MFA No. 9479 of 2013 claimant is aged 27 years and therefore, the appropriate multiplier to be adopted is '17'. Therefore, "loss of earning capacity due to disability" would come to :-
Rs.6,500/- + Rs.2,600/- (40% of Rs.6,500/-)= Rs.9,100 x 19/100 x 17 x 12 = Rs.3,52,716/-
13. Further on other heads the compensation awarded by the Tribunal is on the lower side. Therefore, the compensation towards pain and suffering is enhanced to Rs.50,000/-. The claimant has incurred Rs.18,100/- towards Medical expenses, hence Rs.19,000/- is awarded towards Medical expenses. Further towards loss of income during laid up period Rs.26,000/- (Rs.6,500 x 4 months), towards Loss of amenities a sum of Rs.30,000/-, towards Future medical expenses a sum of Rs.15,000/- and towards Incidental charges Rs.15,000/- is awarded.
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NC: 2024:KHC:43471 MFA No. 9479 of 2013
14. Thus in all the claimant is entitled to the following compensation:-
a. Loss of earning capacity due to disability : Rs.3,52,716-00 b. Pain and suffering : Rs. 50,000-00 c. Medical expenses : Rs. 19,000-00 d. Loss of income during laid up period :Rs. 26,000-00 (Rs.6,500 x 4) e. Loss of amenities :Rs. 30,000-00 f. Future medical expenses :Rs. 15,000-00 g. Incidental charges : Rs. 15,000-00 ________________ TOTAL : Rs. 5,07,716-00 ________________________________________________
15. Accordingly, I proceed to pass the following:-
ORDER a. The appeal is allowed-in-part. b. The impugned judgment and order dated 11.09.2012 passed in MVC No.3772/2011 by the XI Additional Judge and MACT, Bangalore, is modified.
c. The claimant is entitled for total compensation of Rs.5,07,716/-. The enhanced compensation
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NC: 2024:KHC:43471 MFA No. 9479 of 2013 would come to Rs.2,75,716/- i.e. (Rs.5,07,716/- less Rs.2,32,000/-) along with interest at 6% p.a. from the date of petition till the date of realization, i addition to the compensation awarded by the Tribunal.
d. At the first instance the Insurance Company shall pay the compensation and recover it from the owner of the tractor trailer with water tanker bearing No.KA.07-T-1930.
e. The enhanced compensation shall not carry interest for the delayed period of 311 days. f. Registry is directed to transmit the Trial Court Records to the concerned Tribunal forthwith.
g. No order as to costs.
h. Draw award accordingly.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
NG List No.: 1 Sl No.: 21