Karnataka High Court
Guruprasad P vs Subhash P D on 29 July, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.6966/2015
C/W MFA NO.5785/15,
MFA NO.6967/2015 & MFA NO.8821/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.6966/2015 C/W
M.F.A.NO.5785/2015, M.F.A.NO.6967/2015
M.F.A.NO.8821/2017 (M-I)
IN MFA NO.6966/2015
BETWEEN:
P.D.SUBHASH,
S/O LATE P.K.DEVAIAH,
40 YEARS, R/AT NO.413,
ROSE VILLAGE, GOKULA II STAGE,
HMT LAYOUT, MATHIKERE,
BANGALORE-560054.
(OWNER OF CAR NO.KA-04-MH-1848)
... APPELLANT
(BY SRI. T.A.KARUMBAIAH, ADVOCATE)
AND:
1. KRISHNAMURTHY,
S/O LATE KODAPPA @ CHIKKAPUTTAPPA,
33 YEARS, R/AT .KALLUGOPAHALLI,
(HULTHAR HOSADODDI),
BIDADI HOBLI-571511,
RAMANAGARA TALUK & DISTRICT.
2. THE ROYAL SUNDARAM,
GENERAL INSURANCE CO.LTD.,
RAGHAVENDRA PLAZA,
GROUND FLOOR,
NO.186/7, HOSUR MAIN ROAD,
WILSON GARDEN, BANGALORE-560207.
... RESPONDENTS
(BY SRI. S.RAJU, ADVOCATE FOR R1,
SRI. O.MAHESH, ADVOCATE FOR R2,
THROUGH V/C)
2 MFA NO.6966/2015
C/W MFA NO.5785/15,
MFA NO.6967/2015 & MFA NO.8821/2017
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:10.6.2015 PASSED IN MVC NO.330/2012 ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE,
RAMANAGARA, AWARDING A COMPENSATION OF
RS.10,33,893/- TOGETHER WITH INTEREST @ 6% P.A.
FROM THE DATE OF THE PETITION TILL THE DATE OF
REALIZATION AND ETC.,
IN MFA NO.5785/2015
BETWEEN:
GURUPRASAD P.,
S/O PRAKASH S.,
AGED ABOUT 21 YEARS,
R/AT KALLUGOPAHALLI VILLAGE,
BIDADI HOBLI,
RAMANAGARA TALUK-562209.
...APPELLANT
(BY SRI. SHANTHARAJ K., ADVCOATE)
AND:
1. SUBHASH P.D.,
S/O LATE P.K., DEVAIAH,
AGED ABOUT 48 YEARS,
NO.413, ROJ VILLA,
GOKUL II STAGE,
HMT LAYOUT, MATHIKERE,
BANGALORE-560054.
2. THE MANAGER,
ROYAL SUNDARAM,
ALLIANCE GENERAL INSURANCE CO.LTD.,
D.B.PLAZA, 3RD FLOOR, NO.47,
WHITES ROAD, CHENNAI-600014.
...RESPONDENTS
(BY SRI. T.A. KARUMBAIAH, ADVOCATE FOR R1
SRI. O. MAHESH, ADVCOATE, THROUGH V/C)
3 MFA NO.6966/2015
C/W MFA NO.5785/15,
MFA NO.6967/2015 & MFA NO.8821/2017
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:6.6.2015 PASSED IN
MVC NO.23/2013 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, CJM, MACT, RAMANAGARA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPESNSATION AND
ETC.,
IN MFA NO.6967/2015
BETWEEN:
P.D.SUBHASH,
S/O LATE P.K., DEVAIAH, 40 YEARS,
R/AT. NO.413, ROSE VILLAGE,
GOKULA II STAGE, HMT LAYOUT,
MATHIKERE, BANGALORE-560054.
(OWNER OF CAR NO.KA-04-MH-1848)
...APPELLANT
(BY SRI. KARUMBAIAH, ADVOCATE)
AND:
1. GURUPRASAD P.,
S/O PRAKASH S., 21 YEARS,
R/AT. KALLUGOPAHALLI VILLAGE,
BIDADI HOBLI,
RAMARANAGARA TALUK & DISTRICT-571511.
2. THE MANAGER,
ROYAL SUNDARAM ALLINACE,
GENERAL INSURANCE CO.LTD.,
D.B.PLAZA, 3RD FLOOR, NO.47,
WHITES' ROAD, CHENNAI,
TAMILNADU-600009.
(1ST & 2ND FLOOR, SRI. BALAJI,
NO.132, BRIGADE ROAD, BANGALORE)
...RESPONDENTS
(BY SRI.K.SHANTHARAJ, ADVOCATE FOR R1 THROUGH V/C,
SRI.O.MAHESH, ADVOCATE FOR R2 THROUGH V/C)
4 MFA NO.6966/2015
C/W MFA NO.5785/15,
MFA NO.6967/2015 & MFA NO.8821/2017
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMNT AND AWARD DATED:6.6.2015 PASSED IN
MVC NO.23/2013 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE, CJM, MACT RAMANAGARA, AWARDING A
COMPENSATION OF RS.3,84,153/- (RS.25,000/-
AWARDED TOWARDS FUTURE MEDICAL EXPENSES DOES
NOT CARRY ANY INTEREST) TOGETHER WITH INTEREST
THEREON AT THE @ 6% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF DEPOSIT AND ETC.,
IN MFA NO.8821/2017
BETWEEN:
KRISHNA MURTHY
S/O LATE KODAPPA @
CHIKKAPUTTAPPA,
AGED ABOUT 35 YEARS,
KALLUGOPAHALLI,
(HULTHAR HOSADODDI),
BIDADI HOBLI, RAMANAGARA TALUK,
RAMANAGARA DISTRICT.
...APPELLANT
(BY SRI. RAJU S., ADVOCATE)
AND:
1. MR. P.D.SUBASH,
S/O LATE P.K.DEVAIAH,
R/AT #413, ROSE VILLA,
GOKUKLA, 2ND STAGE,
HMT LAYOUT, MATHIKERE,
BANGALORE-560054.
2. THE ROYAL SUNDARAM
GENERAL INSURANCE CO.LTD.,
RAGHAVENDRA PLAZA,
GROUND FLOOR, NO.186/7,
5 MFA NO.6966/2015
C/W MFA NO.5785/15,
MFA NO.6967/2015 & MFA NO.8821/2017
HOSUR MAIN ROAD,
WILSOHN GARDAN,
BANGALORE-560027.
THE BRANCH MANAGER.
...RESPONDENTS
(BY SRI. T.A.KARUMBAIAH, ADVOCATE FOR R1
SRI. O.MAHESH, ADVOCATE FOR R2 THROUGH V/C)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:10.06.2015 PASSED
IN MVC NO.330/2012 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, RAMANGARA, PARLTY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,
THESE M.F.As. COMING ON FOR FURTHER
ARGUMENTS THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
MFA.No.6966/2015 is filed under Section 173(1) of Motor Vehicles Act, 1988 (for short the "MV Act") by the owner of the Car bearing No.KA-04-MH-1848 challenging the judgment and award dated 10.06.2015 passed in MVC No.330/2012 by the Addl. Senior Civil Judge, Ramanagara, challenging the liability.
6 MFA NO.6966/2015
C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 MFA.No.5785/2015 is filed under Section 173(1) of MV Act by the claimant challenging the judgment and award dated 06.06.2015 passed in MVC No.23/2013 by the Addl. MACT and Prl. Senior Civil Judge & CJM., Ramanagara, for seeking enhancement of compensation.
MFA.No.6967/2015 is filed under Section 173(1) of MV Act by the owner of the Car bearing No.KA-04- MH-1848 challenging the judgment and award dated 06.06.2015 passed in MVC No.23/2013 by the MACT and Prl. Senior Civil Judge & CJM., Ramanagara, challenging the liability.
MFA.No.8821/2017 is filed by the claimant challenging the judgment and award dated 10.06.2015 passed in MVC No.330/2012 by the Addl. Senior Civil Judge, Ramanagara, for seeking enhancement of compensation.
7 MFA NO.6966/2015
C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017
2. Brief facts in both the appeals are as under: (MVC.No.330/2012 and MVC No.23/2013):
On 04.09.2012 at about 4.00 p.m., the claimants were traveling in a motor cycle bearing Reg.No.KA-42- H-7997 as a pillion rider, when they reached near Dasdappanadoddi Village, Bidadi Hobli, he stopped the vehicle near 'U' turn, at the same time, the driver of the car bearing Reg.No.KA-04-MH-1848 driven by its driver in a very rash and negligent manner and dashed to the claimants from behind. As a result, the claimants fell down along with their vehicle and sustained injuries all over the body. Immediately, the claimants were shifted to the Hospital for treatment.
3. Learned counsel for the owner of the Car bearing No.KA-04-MH-1848 has argued that as on the date of the accident, the owner was not driving, but one Praveen was driving the car. Therefore, submitted that he has not committed any offence, so as to make 8 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 him liable to pay the compensation. Therefore, prays for exoneration from payment of compensation. Further submitted that one Praveen who was driving the car was holding valid and effective driving licence. Therefore, the Insurance Company is liable to pay the compensation. Further submitted that the quantum of compensation awarded is correct, which needs no interference. Therefore, prays for dismissal of the appeal filed by the claimant.
4. On the other hand, Sri O.Mahesh, learned counsel for 2nd respondent - Insurance Company has vehementally submitted that, in the present case, fraud is played. The owner of the car was not driving the car, but one Praveen was driving the car. But Subhash who is the owner of the car, even though, according to him and according to one Praveen, he has not driven the car, but before the learned Magistrate pleaded guilty, but in the evidence before the Tribunal, it is their evidence that Subhash was not 9 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 driving the car, but one Praveen was driving the car. Therefore, submitted that fraud is played in the Court. Hence, submitted that the owner has not at all entitled for any relief in this appeal and whatever compensation is awarded, the owner of the car himself is liable to pay the compensation, but not the Insurance Company.
5. Further submitted that, admittedly, the charge sheet is filed against the appellant in MFA.No.6966/2015 and MFA.No.6967/2015 and he was not holding driving licence as on the date of the accident and accordingly, pleaded guilty before the learned Magistrate. Therefore, the fact remains that there was no driving licence to drive the car. Accordingly, the Tribunal is correct in holding that Subhash who is the owner of the car is liable to pay the compensation to the claimants. Therefore, prays to dismiss the appeals as against the Insurance Company.
10 MFA NO.6966/2015
C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017
6. Further submitted that, since fraud is played by both RW.2- Subhash and RW.3- Praveen and as per their evidence as they have deposed that RW.3 -Praveen was driving the car and caused the accident, but RW.2-Subhash appeared before the learned Magistrate and pleaded guilty by stating that he was driving the car as on the date of the accident is nothing, but making misrepresentation to the Court and playing fraud. Therefore, the entire liability was put on the owner of the car itself, but not on the Insurance Company.
7. Further submitted that counter to the argument canvassed by the owner of the car regarding pay and recovery, the Insurance Company is not liable to pay interest from the date of filing appeal till passing of the order by this Court and for this period, burden of payment of interest may be put entirely on the owner of the car who is examined as R.W.2 herein. Further submitted that the claimants 11 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 are not entitled for interest for the delayed period in preferring the appeal.
8. Therefore, in all the learned counsel for respondent No.2-Insurance Company vehemently argued to dismiss the appeal filed by the owner of the car and also make the owner of the car himself liable to pay the compensation without applying the theory of pay and recovery in the present case, as there is fraud played in the Court by misrepresenting RW.2 as driver of the car and pleaded guilty before the learned Magistrate. Therefore, prays to exonerate respondent No.2-Insurance Company from paying the compensation.
9. On the other hand, learned counsel appearing for the claimants in MFA.No.5787/2015 and MFA.No.8821/2017 submitted that the compensation awarded under each head is not adequate. Therefore, 12 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 prays for enhancement of compensation by allowing the appeal filed by the claimant.
Regarding liability and theory of pay and recovery:
10. In the present case, the claimants met with an accident while they were going on the motor cycle and at that time, a Car bearing No.KA-04-MH-1848 came with high speed and in a rash and negligent manner and dashed against the motor cycle from behind. Therefore, in this way, the accident has caused.
11. Upon perusal of evidence of RW.2- Subhash who is the owner of the Car bearing No.KA- 04-MH-1848 and RW.3-Praveen, it is the evidence of RW.3 that he was driving the car as on the date of the accident and RW.2- Subhash being the owner did not drive the car. However, it is their evidence that and more particularly, after considering the evidence of 13 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 RW.2 -Subhash that he had appeared before the learned Magistrate and upon the advice of police, he pleaded guilty and paid the fine amount. RW.3- Praveen had stated that he was driving the car, but RW.2- Subhash who is the owner of the car has pleaded guilty by saying he was driving the car. Further the evidence of RW.2 is that he was not holding driving licence to drive the motor cycle or car. As per the charge sheet, RW.2- Subhash who is the owner of the car was arrayed as accused and accordingly, he appeared before the learned Magistrate and pleaded guilty and paid the fine amount. According to him noticing this mistake committed, he preferred an appeal in Crl.A.No.12/2014 before the Prl. District & Sessions Judge, Ramanagara. Therefore, submitted that in this regard the evidence of RW.2 and RW.3 is that Praveen was driving the car and caused the accident, but RW.2
- Subhash had pleaded guilty before the learned 14 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 Magistrate.
12. But upon considering these evidences and factual matrix, it is an undisputed fact proved that in the said accident caused between the Car bearing No.KA-04-MH-1848 and motor cycle bearing No.KA- 42-H-7997, in which, the claimants were going and accident has occurred and the claimants sustained injuries. Further more, it is revealed that even RW.3- Praveen was holding the driving licence and drive the car, but RW.2 -Subhash was not holding driving licence, but he was charge sheeted for the offence committed and he pleaded guilty before the learned Magistrate and paid the fine amount. Therefore, the fact remains, as it is proved that, since RW.2 has pleaded guilty for non-holding of driving licence, he was charge sheeted and it is proved that there is no driving licence by R.W. 2- owner of the car. RW1 who is the officer of the Insurance Company has deposed 15 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 the same fact. Therefore, it is the contention of the Insurance Company that fraud is played in this case before the learned Magistrate as well as before the Tribunal.
13. But upon considering all the evidences and factual matrix as above discussed, it is proved fact that RW.2 was not having the driving licence to drive the car, and pleaded guilty before the learned Magistrate and paid the fine amount. Therefore, whatever may be the contention of fraud as contended by the learned counsel for the Insurance Company, but that is nothing to do with the claim of the claimants for no fault of them. The claimants also suffered injuries in the road traffic accident. Therefore, either the owner of the car has to pay or the Insurance Company has to indemnify the owner, in case the Insurance Company is legally liable to pay the compensation. Therefore, even though, as contended and as discussed above, fraud is played, 16 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 but that is nothing to do with the claim of the claimants. At the most, it can be said that the owner of the car has taken the risk and he may be held liable in accordance with law. But as discussed above, the fact remains that RW.2 was not holding the driving licence to drive the car. The Insurance Company has taken its defence under Section 149(2) of the MV Act and it is established that RW.2 was not holding driving licence as he has deposed before the Tribunal in his evidence. Therefore, in this regard, as the Insurance Company is able to take its successful defence and also successfully established the fact that RW.2 was not holding the driving licence, then the Insurance Company can be exonerated from the liability, but whereunder Section 149(2) of MV Act, defence is established, but the claimants in the present case being third parties, their rights are not affected. Therefore, in this regard, the Insurance Company shall satisfy the claim of the claimants at the first 17 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 instance and then recover it from the owner of the Car bearing No.KA-04-MH-1848 who is the appellant in MFA.No.6966/2015 and MFA.No.6967/2015 as per the principles of law laid down by the Hon'ble Apex Court in the case of PAPPU AND OTHERS -Vs- VINOD KUMAR LAMBA AND ANOTHER reported in (2018) 3 SCC 208 and full bench decision of this Court in the case of New India Assurance Company Limited vs. Yellavva And Another reported in 2020 ACJ 2560 (HCK), wherein the Hon'ble Apex Court held as under:
"57. In another ruling in Rani V. National Insurance Co. Ltd., 2018 ACJ 2430 (SC), again a three-Judges Bench was called upon to answer with regard to pay and recover order passed by the Tribunal. In the said case, the Insurance Company disputed its liability on the ground that the truck had no permit for being plied in the State of Karnataka as its permit was restricted to the State of Maharashtra. The Tribunal allowed compensation and directed the insurance company to deposit the amount, however the High court exempted the insurance company from liability but the Apex Court, in appeal, directed the insurance company to deposit the amount with liberty to recover the same from the owner of the vehicle. Dealing with 18 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 the aforesaid aspect, at paras 6, 7 and 14, the apex Court again reiterated the earlier principles in Swaran Singh, 2004 ACJ 1 (SC) and modified the judgment of the High Court and restored the Tribunal's order directing the insurance company to pay and recover.
146. i) Having regard to Section 149(1) r/w Section 149(7) whenever a case falls under Section 149(2)(a) and the same is successfully established or proved by the Insurance Company, as per the twin tests laid by the Hon'ble Supreme Court in Swaran Singh, nevertheless, the insurer or Insurance Company is liable to satisfy the award vis-à- vis a third party and is entitled to recover from the insured. This is irrespective of, the policy being an Act policy in terms of Section 147 pertaining to compulsory coverage of risks of third parties and other classes of persons stated therein or a policy covering other risks by specific contract being entered into in that regard and where additional premium is paid by the insured i.e., a contractual policy.
ii) The Insurer is liable to pay the third party and recover from the insured even if there is breach of any condition recognized under Section 149 (2), even if it is a fundamental breach (that is breach of condition which is the cause for the accident) and the insurer proves the said breach in view of the mandate under Section 149(1) of the Act. But, no such order can be passed against the insurer, if, on the facts and circumstances of a case, a finding is given by the court that the third party (injured or deceased) had played any fraud or was in collusion with the insured, individually or 19 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 collectively, for a wrongful gain to themselves or cause wrongful loss to the insurer.
iii) The Court can also fasten the absolute liability on the insurer, if there is any breach of condition which is enumerated under Section 149(2) of the Act or any other condition of the policy if the Insurance Company has waived breach of any such condition or has taken the special responsibility to pay by collecting extra premium by covering any type of risk depending upon facts of each case.
iv) Thus, the rule of pay and recover is applicable in view of the mandate in Section 149(4) of the Act and even if there is a breach of the terms of the insurance policy, the insurer is bound to satisfy the judgment and award as if it were a judgment debtor, even if it satisfies the twin tests enunciated by the Hon'ble Supreme Court under Section 149(4)(a) of the Act.
v) Before passing any order on the Insurance Company to pay and recover, the Court has to examine the facts and circumstances of each case and if it finds that the victim, injured or the deceased, in a particular case, was solely or jointly responsible for breach of such fundamental condition by playing fraud or in collusion with the insured, the Court may exercise its discretion not to fasten the liability on the insurer.
vi) However, the court should not adopt the above guideline as a general rule in all cases, but only under peculiar facts and circumstances of each case and on giving appropriate reasons.
20 MFA NO.6966/2015
C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017
vii) If the Insurance Company makes out a case under Section 149(2)(b) of the Act, then also the Insurance Company has to satisfy the award so far as third party is concerned, as it is the duty of the Insurance Company to indemnify the insured on the basis of the policy of the insurance and even when the contract of insurance itself is void, nevertheless the liability to indemnify the insured would arise and insurer is entitled to recover from the insured.
viii) Thus, in a case where Section 149(2)(b) applies and the Insurance Company successfully establishes that the policy is void, in such a case also, the insurer is not absolved of its liability to satisfy the judgment or award as rights or obligations would flow even from a policy which is void vis-à-vis third party. In such a case, the insurer is not completely absolved of its liability, the insured would have to satisfy the award vis-à-vis the third party and recover from the insured the amount paid to the third party and may also have a right to seek damages from the insured.
ix) The judgment of the Division Bench of this Court in Subramanyam, holding that a pay and recovery order cannot be made as there is no liability to pay or satisfy the award or decree in respect of a case falling under Section 149(2) is not correct. Hence, that portion of the judgment in Subramanyam, which states that if the case falls within the scope of Section 149(2) of the Act and the insurer is successful in establishing any of the defences as stated therein, it would be completely absolved of its liability to satisfy 21 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 the award is also not correct and to that extent, it is held to be bad in law.
x) Article 142 of the Constitution of India being a power granted under the Constitution only to the Supreme Court can be exercised in appropriate cases only by the Apex Court. Exercise of power under Article 142 by the Hon'ble Supreme Court in a particular case cannot be a precedent for other Courts and Tribunals to exercise such a power unless the same is indicated to be a precedent by the Apex Court."
14. It is the contention of the learned counsel for the Insurance Company that, in the present case, as discussed above, the owner has pleaded guilty by stating that he drove the car by not holding the driving licence, therefore, in the present case, the owner himself was driving the car and caused the accident without holding the driving licence, then the principles of pay and recovery is not applicable. It is submitted that this principle is applicable only when some other person or driver or agent other than the owner was driving the car and met with an accident without holding driving licence, in those cases only, 22 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 the principles of pay and recovery is applicable. Learned counsel for the Insurance Company has made submission by relying on the judgments of the Hon'ble Apex Court, but the learned counsel is not able to produce as to what are the judgments of the Hon'ble Apex Court in this regard to say that the principles of pay and recovery is not applicable in the facts and circumstances involved in the case. But when the owner himself was driving the car or any other person other than the owner without holding driving licence drives the car and caused the accident, under these circumstances, it can not be made distinguished between the owner of the car himself driving the car or any other person driving the car, so as to apply the principles of pay and recovery. The principles of pay and recovery is applicable when the Insurance Company is able to take its defence under Section 149(2) of the MV Act and establishes the same, then the Insurance Company has to satisfy the claim of the 23 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 claimants at the first instance and then recover it from the owner of the vehicle. The main criteria is that, if by taking the example that the driver of the offending vehicle is not having driving licence and meets with an accident, then there is breach of conditions of policy. Then the Insurance Company is not liable to pay the compensation, but insofar as third parties are concerned, it is nothing to do with claiming compensation. Therefore, under this beneficial legislation, a statute regarding pay and recovery may be made under Sections 147 and 149 of the MV Act. Therefore, the principles of pay and recovery is applicable wherever the claimants are third parties and their rights are not affected.
15. Therefore, under these circumstances, the principles of pay and recovery is applicable that at the first instance, the Insurance Company shall pay the amount and then recover it from the owner of the car. 24 MFA NO.6966/2015
C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 It is nothing, but safeguarding interest of the claimants who are third parties who have sustained injuries in the accident. Therefore, I do not accept the contention in this regard made by the learned counsel for the Insurance Company.
16. Therefore, it is proved fact that R.W.2 is the owner of the car who had driven the car and caused the accident and in the said accident, the claimants being the third parties had sustained injuries. Therefore, as per the documentary evidence, it is revealed that RW.2 who is the owner of the car was driving the car without holding driving licence and caused the accident. Therefore, under these circumstances, the principles of pay and recovery is applicable. Accordingly, it is held that respondent No.2
- Insurance Company shall satisfy the claim of the claimants at the first instance and then recover it from the owner of the car in accordance with law. 25 MFA NO.6966/2015
C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 Regarding quantum of compensation in MFA.NO.5785/2015 (MVC.No.23/2013)
17. Learned counsel for the claimant submitted that the amount of compensation awarded by the Tribunal under each head is on the lesser side. Therefore, prays for enhancement of compensation.
18. The Tribunal has awarded the compensation under various heads as follows:
Compensation towards medical
Rs.1,64,313-00
expenses
Compensation towards pain, and
Rs.30,000-00
sufferings
Compensation towards loss of future Rs.1,05,840-00 earnings Compensation towards loss of earnings Rs.14,000-00 during the period of treatment and rest Compensation towards conveyance Rs.10,000-00 charges Compensation towards nourishment and Rs.10,000-00 attendance charges Compensation towards loss of future medical expenses (does not carry any Rs.25,000-00 interest) Compensation towards loss of amenities Rs.25,000-00 and enjoyment in life In total 3,84,153-00 26 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017
19. As per Ex.P.5 - wound certificate and evidence of the doctor - PW.2 and other medical documents prove the fact that the claimant sustained the following injuries:
1. abrasions over leftside face and forehead-8 x 5 cm and 5 x 3 cm.
2. Laceration over medial malleolm left side 4 x 2 cm. bone deep.
3. CT Scan shows:fracture superior ischeo pubic yamus, fracture neck of right femur, fracture left femur head with dislocation, fracture of left acetabulim and fracture of left sacrum.
20. As per the medical evidence and wound certificate as discussed above, injury Nos.1 and 2 are simple in nature and injury No.3 is grievous in nature. Injury No.3 shows that there are fracture superior ischeo public yamus, fracture neck of right femur, fracture left femur head with dislocation, fracture of left acetabulim and fracture of left sacrum.. Therefore, considering the nature of injuries sustained by the claimants, the Tribunal has awarded compensation of Rs.30,000/- towards injury, pain and suffering, which 27 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 is on the lower side and the same is enhanced to Rs.60,000/-. Accordingly, compensation of Rs.60,000/- is awarded under the said head. The Tribunal has awarded compensation of Rs.1,64,313/- towards medical expenses for having taken treatment in the hospital soon after the accident and it is as per the medical bills are produced and there is no need to make modification under this head.
21. But the learned counsel for the appellant / claimant has filed an application in I.A.No.1/2021 under Order 41 Rule 27 of CPC by stating that the appellant after discharging from the hospital at the first instance, once again was constrained to admit to the Hosmat Hospital, Bangalore, on 08.04.2020 for undergoing surgery and discharged on 13.04.2020, which is explained in detail in the affidavit and for the said surgery, he spent Rs.2,68,540/- and therefore, prays for awarding Rs.2,68,540/- towards future medical expenses. The appellant has produced the 28 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 original discharge summary and final bill issued from the Hosmat Hospital, Bangalore, stating that the appellant was once again admitted to the Hosmat Hospital on 08.04.2020 and discharged on 13.04.2020 for further treatment and surgeries. It is revealed in the said discharge summary and final bill that the appellant was constrained to admit in the hospital once again for right hip replacement with 2 centimeter shortening. Therefore, the appellant has produced the original copy of the discharge summary and final bill. Learned counsel for the owner of the car bearing No.KA-04-MH-1848 had objected the application and disputed the said discharge summary and final bill of the Hosmat Hospital, Bangalore.
22. Considering the rival submissions of both the counsels and upon perusing the application filed for additional evidence, quite naturally, for having taken treatment in future the medical bills are produced. Therefore, there is no occasion for the 29 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 appellant to file this document before the Tribunal as the appellant has taken the treatment in the year 2020 for the injuries sustained in the accident. Therefore, the application filed for additional evidence under Order 41 Rule 27 is liable to be allowed. Therefore, I do not find any reason to discard the additional medical evidence i.e., discharge summary and final bill, which are in the original form. Considering the nature of injuries sustained along with the history, it was required for the appellant to undergo one more surgery i.e., right hip replacement and spent Rs.2,68,540/-.
23. Upon considering the additional evidence, I do not find any duplication in the said medical bills and whatever amount spent by the appellant for surgery of undergoing right hip replacement, the same are produced before the Court as additional evidence. Therefore, I do not find any reason to discard the additional evidence records. Therefore, 30 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 I.A.No.1/2021 filed for additional evidence is allowed and accordingly, as per the medical documentary evidence produced, the appellant is entitled for compensation of Rs.2,68,540/-, which is rounded off to Rs.2,69,000/- under the head future medical expenses as against Rs.25,000/- awarded by the Tribunal. Accordingly, it is awarded under the said head.
24. The accident was occurred in the year 2012. Therefore, the notional income ought to be taken at Rs.7,000/- as per the Notional Income Chart recognized by the Karnataka State Legal Services Authority. The appellant was aged 19 years. Therefore, the appropriate multiplier applicable is 18. Therefore, the doctor-P.W.2 had stated that the claimant has suffered permanent physical disability. Accordingly, the doctor - P.W.2 has assessed the permanent physical disability suffered by the claimant at 29% to the right lower limb and 15% to the left 31 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 lower limb. Therefore, the counsel for the claimant submitted that the permanent physical disability is to be considered at 44%, but the Tribunal has taken permanent disability at 14% towards the whole body, which is not correct. Therefore, requested to take permanent physical disability at 44% considering the avocation of the claimant as he is an agriculturalist, sericulturist and was also doing dairy farm business. It is true that P.W.2-doctor has not stated the permanent physical disability towards the whole body, but stated the permanent disability to the right lower limb and left lower limb as above stated. In the present case, it is proved that the claimant had sustained fracture neck of right femur, fracture left femur head with dislocation, fracture of left acetabulim and fracture of left sacrum. Therefore, femur bone is the main bone for the leg is concerned. The claimant is an agriculturist, sericulturist and was also doing dairy farm business. Even though, there is 32 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 no evidence regarding proof of income, but it can be believed that in the absence of any contra evidence, fracture to the femur bone affects the claimant while working in the field being an agriculturist, sericulturist and dairy farm business. Therefore, even though, P.W.2 had not stated as to what would be the permanent physical disability towards the whole body, but considering the disability assessed by PW.2 - doctor towards the right lower limb and left lower limb and nature of injuries sustained, the percentage of disability is to be considered as per the principles of law laid down by the Hon'ble Apex Court in the case of Raj Kumar vs. Ajay Kumar reported in (2011) 1 SCC 343. Therefore, 20% of disability is to be taken into consideration as functional disability towards whole body considering the nature of injuries sustained by the appellant/claimant coupled with avocation as discussed above. Hence, the loss of 33 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 future earning capacity due to disability is calculated and quantified as follows:
Rs.7,000/- x 20% x 18 x 12 = Rs.3,02,400/-
Accordingly, Rs.3,02,400/- is awarded under the head loss of future earning capacity due to disability.
25. Further the Tribunal has awarded compensation of Rs.14,000/- towards loss of earnings during laid up period and treatment period for a period of four months by holding the notional income at Rs.3,500/-. But, as above stated, the notional income is to be considered at Rs.7,000/- per month. Therefore, the loss of earning capacity during laid up period and treatment period for four months is awarded at Rs.28,000/- (Rs.7,000/- per month x 4 months). Further the Tribunal has awarded compensation of Rs.10,000/- towards conveyance charges, Rs.10,000/- towards nourishment and 34 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 attendance charges. Totally, Rs.20,000/- is awarded by the Tribunal under the said heads. The appellant/claimant has taken treatment initially for a period of 11 days and thereafter, admitted in the hospital for a period of 6 days in the second admission. Therefore, the appellant must have spent considerable amount towards conveyance, transportation, food and nourishment and attendance charges as the claimant was constrained to travel. Hence, Rs.30,000/- is awarded under the said head.
26. Further the Tribunal has awarded compensation of Rs.25,000/- towards loss of amenities and enjoyment in life, which is found to be on the lesser side. Considering the nature of injuries sustained as above stated, the appellant had suffered injuries to both right and left leg femur and other injuries also. Therefore, the claimant would find difficulty to stand for long duration, climbing stair case, squatting and sitting crossed leg, walking and 35 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 working in the field where the claimant is required to stand for long time. Therefore, the claimant suffered discomfort, enjoyment in life and mental agony. Hence, compensation of Rs.75,000/- is awarded under the head loss of amenities and enjoyment in life.
27. Thus, in all, the appellant/claimant is entitled for enhancement compensation under various heads as follows:
Compensation towards medical Kept in tact Rs.1,64,313-00 expenses Compensation towards pain, and Rs.60,000-00 sufferings Compensation towards loss of Rs.3,02,400-00 future earnings Compensation towards loss of earnings during the period of Rs.28,000-00 treatment and rest Compensation towards conveyance charges, nourishment Rs.30,000-00 and attendance charges Compensation towards loss of future medical expenses (does not Rs.2,69,000-00 carry any interest) Compensation towards loss of Rs.75,000-00 amenities and enjoyment in life Total Rs.9,28,713-00 36 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017
28. The Tribunal has awarded the compensation of Rs.3,84,153/-, but the appellant/claimant is entitled to total compensation of Rs.9,28,713/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs.5,44,560/- (Rs.9,28,713/- - Rs.3,84,153/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.5,44,560/- along with interest at the rate of 6% per annum on the enhanced compensation from the date of petition till its realization.
Regarding quantum of compensation in MFA.NO.8821/2017 (MVC.No.330/2012)
29. The learned counsel for the appellant/claimant has argued that the amount of compensation awarded under each head is on lesser side. Therefore, prays for enhancement of compensation.
37 MFA NO.6966/2015
C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017
30. Further submitted that the notional income at Rs.4,500/- per month was taken by the Tribunal, which is not just and proper. Hence, the same is to be taken at Rs.7000/- per month. Further the percentage of disability held by the Tribunal is on the lower side.
31. Further the compensation awarded under the heads pain and agony, loss of amenities, loss of income during laid up period, rest, nourishment and attendants charges are on the lesser side. Therefore, prays for enhancement of compensation.
32. On the other hand, learned counsel for the owner of the Car bearing No.KA-04-MH-1848 has submitted that the amount of compensation awarded on each head is correct, proper and there is no ground available for making enhancement of compensation. Therefore, prays for dismissal of the appeal filed by the claimant.
38 MFA NO.6966/2015
C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017
33. The Tribunal has awarded the compensation under various heads as follows:
Compensation Heads Compensation
amount
1.Towards pain and agony Rs.60,000/-
2.Loss of amenities Rs.20,000/-
3.Loss of income during laid up period Rs.18,000/-
4.Medical expenses Rs.7,66,293/-
5.Loss of future income Rs.1,37,700/-
6.Rest.Nourishment and attendants Rs.1,900/-
charges
7.Future medical expenses Rs.30,000/-
Total 10,33,893/-
34. In the present case, Ex.P-3 is the wound Certificate, Exs.P5 to 8 are four discharge summaries, Ex.P16 are 14 X-ray, which prove the fact that the appellant had sustained the following injuries:
"Head injury compound communite right front arm depressed, mid shaft fracture left femur. Fracture on the left ankle. Fracture of left clevical bone suffered by neuro problem. Three implants are inserted".
35. The Tribunal has awarded compensation of Rs.60,000/- towards pain and agony, which is on the 39 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 lesser side. Considering the nature of injuries sustained by the claimant, compensation of Rs.75,000/- is awarded under the head pain and agony. Further the Tribunal has awarded compensation of Rs.20,000/- towards the loss of amenities, which is on the lesser side. As above discussed, the claimant is also suffering from neuro problem. Therefore, the appellant/claimant has suffered head injury compound communite right front arm depressed, mid shaft fracture left femur, fracture on the left ankle, fracture of left clevical bone suffered by neuro problem. Therefore, the appellant/claimant not only suffered injures to the hands and legs, but also suffered head injury causing neuro problems. Therefore, the appellant/claimant is finding difficulty in squatting, climbing stairs, walking and working in the field where the claimant is required to stand for long time. Therefore, compensation of Rs.75,000/- is awarded under the head loss of amenities. 40 MFA NO.6966/2015
C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017
36. Further the Tribunal has assessed notional income at Rs.4,500/- per month and awarded compensation Rs.18,000/- (Rs.4,500/- per month x 4 months) under the head loss of income during laid up period. But considering the year of accident as 2012, notional income at Rs.7,000/- per month is to be taken into consideration as per the Notional Income Chart recognized by the Karnataka State Legal Service Authority. Accordingly, compensation of Rs.28,000/- (Rs.7,000/- per month x 4 months) is awarded under the head loss of income during laid up period. The Tribunal has awarded compensation of Rs.7,66,293/- under the head medical expenses, which is found to be correct. Therefore, there is no need to make interference on this head.
37. The Tribunal has taken the notional income at Rs.4,500/- and functional disability at 15% and awarded compensation of Rs.1,37,700/- towards loss 41 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 of future income, but the claimant has examined two doctors as PW.2 and PW.3. PW-2- doctor has deposed that the claimant has neuro disability of 36.66% and P.W.3 has deposed that the petitioner has disability of 18% for the whole body. The Tribunal has not considered as to what are the neuro problems suffered by the claimant and came to the conclusion that the claimant has suffered 15% of functional disability against the evidence of the doctors-PW-2 and PW-3. The disability assessed by the doctors-PW-2 and PW-3 and the documentary evidence i.e., wound certificate, since the claimant had suffered four fractured injuries as above stated and considering the profession of the claimant that he was an agriculturist, sericulturist and also was doing dairy farm business, the percentage of disability held at 15% by the Tribunal is on lesser side. Therefore, believing the evidence of the doctors - PW.2 and PW.3, disability at 18% is to be taken into consideration towards the whole body and it is 42 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 considered as functional disability as per the principles of law laid down by the Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another reported in (2011) 1 SCC 343.
38. The appellant was aged about 30 years as on the date of the accident and the appropriate multiplier applicable is "17". Therefore, the loss of future income is re-calculated and quantified as follows:
Rs.7,000/- x 18% x 17 x12=Rs.2,57,040/-.
Accordingly, Rs.2,57,040/- is awarded under the head loss of future income.
39. The Tribunal has awarded compensation of Rs.1,900/- only towards rest, nourishment and attendants charges, which is found to be meager one. Considering the medical evidence that the appellant/claimant was admitted in the hospital as inpatient for a period of 19 days and therefore, the 43 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 appellant must have spent some amount towards conveyance, transportation, food, rest, nourishment and attendants charges etc. Accordingly, compensation of Rs.25,000/- is awarded under the head "rest, nourishment and attendants charges".
40. The Tribunal has awarded compensation of Rs.30,000/- towards future medical expenses, which is on the lesser side. PW-3 -doctor who is an Orthopedic surgeon has deposed that the claimant may require surgery in future in the form of removal of implant from his left shoulder, left hip and left ankle, which may cost Rs.1,50,000/- to Rs.2,00,000/-.
41. The learned counsel for the Insurance Company submitted that the amount of compensation of Rs.30,000/- awarded by the Tribunal towards future medical expenses is correct, which needs no interference. But while considering the evidence of doctors - PW-2 and PW-3, PW-2 who is Neuro surgeon 44 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 has deposed that the claimant was advised to undergo neuropsychological assessment. Further PW-3 - doctor has deposed that 4 times surgeries were conducted as in detail deposed in his evidence on various dates and further it is deposed by the doctor that the claimant may require surgery in future in the form of removal of implant from his left shoulder, left hip and left ankle, which may cost Rs.1,50,000/- to Rs.2,00,000/-. Therefore, it is proved that the appellant may require surgery for removal of implant from the above stated parts of the body, which may cost Rs.1,50,000/- to Rs.2,00,000/-. Hence, I do not find any reason to disbelieve the evidence of doctor- PW-3. Therefore, considering the nature of injuries and surgeries undergone by the claimant, compensation of Rs.1,00,000/- is awarded under the head future medical expenses.
45 MFA NO.6966/2015
C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017
42. Thus, in all, the appellant/claimant is entitled for enhanced amount of compensation is as under:
Compensation Heads Compensation
amount
1.Towards pain and agony Rs.75,000/-
2.Loss of amenities Rs.75,000/-
3.Loss of income during laid up Rs.28,000/-
period
4.Medical expenses Rs.7,66,293/- Kept in tact
5.Loss of future income Rs.2,57,040/-
6.Rest.Nourishment and Rs.25,000/-
attendants charges
7.Future medical expenses Rs.1,00,000/-
Total 13,26,333/-
43. The Tribunal has awarded the
compensation of Rs.10,33,893/-, but the
appellant/claimant is entitled to total compensation of Rs.13,26,333/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs.2,92,440/- (Rs.10,33,893/- - Rs.13,26,333/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.2,92,440/- along with interest at the rate of 6% per annum on the enhanced 46 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 compensation from the date of petition till its realization.
44. The another contention of the learned counsel for the Insurance Company is that payment of interest from the date of filing of appeal till passing of order by this Court, as already held above, the Insurance Company primarily is not liable to indemnify the owner of the car for the reasons above stated and an order of pay and recovery can be made as above discussed.
45. Therefore, I do not accept the contention of learned counsel appearing for the Insurance Company. The Insurance Company shall pay interest also as above ordered on the enhancement amount and then recovery it from the owner of the Car bearing No.KA-04-MH-1848.
46. There is a delay of 894 days in filing MFA No.8821/2017. The claimant is not entitled for 47 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 interest for delay period of 894 days on the enhanced amount of compensation. Hence, I proceed to pass the following ORDER MFA No.6966/2015 and MFA No.6967/2015 filed by the owner of the Car bearing No.KA-04-MH-1848 are hereby dismissed.
MFA No.5785/2015 and MFA No.8821/2017 filed by the appellants/claimants are hereby allowed-in- part.
The impugned judgment and award dated 10.06.2015 passed in MVC No.330/2012 by the Addl. Senior Civil Judge, Ramanagara, and the impugned judgment and award dated 06.06.2015 passed in MVC No.23/2013 by the MACT and Prl. Senior Civil Judge & CJM., Ramanagara, are modified to the extent that the claimant in MFA No.5785/2015 is entitled to enhanced compensation of Rs.5,44,560/- along with interest 48 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 at 6% per annum on enhanced compensation from the date of filing of appeal till its realization and the claimant in MFA No.8821/2017 is entitled to enhanced compensation of Rs.2,92,440/- along with interest at 6% per annum on enhanced compensation from the date of filing of appeal till its realization.
The claimant in MFA.No.8821/2017 is not entitled for interest for the delay period of 894 days on the enhanced amount of compensation.
The 2nd respondent-Insurance Company shall deposit the amount with accrued interest in favour of the claimants by deducting the amount, which is already deposited by the owner of the Car bearing No.KA-04-MH-1848 in the respective appeals before this Court.
The amount deposited by the owner of the Car bearing No.KA-04-MH-1848 before this Court shall be transmitted to the Tribunal along with TCR and copy 49 MFA NO.6966/2015 C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 of this order forthwith and after transmitting the amount, the same may be released in favour of the respective claimants.
The rate of interest on future medical expenses awarded in MFA.No.5785/2015 shall carry from the date of filing of application till its realization.
In MFA.No.8821/2017, the amount of compensation awarded under the head future medical expenses shall not carry interest.
The 2nd respondent- Insurance Company in all the cases shall satisfy the claim of the claimants at first instance and then recover it from the owner of the Car bearing No.KA-04-MH-1848 as per the principles of law laid down by the Hon'ble Apex Court in the case of SHAMANNA Vs. ORIENTAL INSURANCE CO. LTD., reported in (2018) 9 SCC
650..
50 MFA NO.6966/2015
C/W MFA NO.5785/15, MFA NO.6967/2015 & MFA NO.8821/2017 The Insurance Company is directed to deposit the amount before the Tribunal within a period of three months from the date of receipt of copy of this order.
Sd/-
JUDGE PB/VS