Karnataka High Court
Sri Puttaswamy vs Sri B M Saiprasad on 13 December, 2022
-1-
MFA No. 530 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE T G SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 530 OF 2013 (MV-I)
BETWEEN:
1. SRI PUTTASWAMY
S/O V.K.HONNEGOWDA,
AGED ABOUT 41 YEARS,
R/AT, NO. 128, 9TH MAIN,
T.K.LAYOUT, MYSORE.
...APPELLANT
(BY SRI. H V BHANUPRAKASH .,ADVOCATE)
AND:
1. SRI B M SAIPRASAD
S/O B.M.MAHADEVAIAH,
AGE MAJOR,
R/AT NO.7, RAJAPUTH,
N.R.MOHALLA,
MYSORE.
2. SRI M R SHIVAKUMAR
S/O M.L.RAJU,
AGED ABOUT 41 YEARS,
R/A NO C.H.21, 3RD CROSS,
K.R.VANAM, CHAMARAJA MOHALLA,
MYSORE.
3. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO LTD.,
D.NO.2, SUNDER ARKADE,
OPP. TO SUBURB BUS STAND,
-2-
MFA No. 530 of 2013
B.N.ROAD, MYSORE.
(INSURER OF AUTO RICKSHAW
BEARING NO.KA-04-3121)
...RESPONDENTS
(BY SRI. P B RAJU FOR R3., ADVOCATE)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 16.11.2011 PASSED IN MVC
NO.1138/2010 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-II, MEMBER, ADDITIONAL MACT, MYSORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 173(1) of Motors Vehicles Act, 1988 (in short 'M.V Act') passed in MVC No.1138/2010 on the file of the Fast Track Court-II and Member, Additional Motor Accident Claims Tribunal at Mysore (in short 'the Tribunal'), seeking enhancement of compensation.
2. For the sake of convenience, the parties will be referred to as per their rank before the Tribunal. -3- MFA No. 530 of 2013
3. The brief facts are that, on 08.09.2010 the petitioner was riding his motorcycle bearing No.KA-09-EH- 6017 at 7.50 a.m, near B.M.Hospital cross road junction on Mysore-Hunsur Road, auto rickshaw bearing Registration No.KA-04-3121 driven in a rash and negligent manner from back dashed against the motorcycle, due to which, he sustained injuries to his head and left leg, under hospitalization for one week and spent Rs.75,000/- for treatment. He has approached the Tribunal under Section 166 of Motors Vehicles Act. The tribunal, after considering the evidence awarded Rs.1,10,000/- with interest at 6% p.a. The petitioner is before this Court seeking enhancement.
4. Heard the arguments of Sri. H.V.Bhanu Prakash, learned counsel for the appellant and Sri. P.B.Raju, learned counsel for respondent No.3.
5. The learned counsel for the appellant submits that the petitioner sustained fracture of shaft of left femur and head injury, was under hospitalization and sufficient -4- MFA No. 530 of 2013 compensation was not awarded by the Tribunal and it is case for enhancement.
6. Per contra, learned counsel for respondent No.3 submitted that for violation of the policy conditions the trial Court has dismissed the claim against insurance company and therefore, respondent Nos.1 and 2 are alone liable to pay the compensation and supported the impugned judgment.
7. I gave my anxious consideration to the arguments addressed on behalf of the parties and perused the material placed before the Court.
8. No doubt, the petitioner has suffered fracture of left femur, as he was an employee injury is not affecting his earning capacity, assessed compensation under other heads and awarded Rs.1,10,000/-. The accident was of the year 2010, having regard to the injuries and also avocation of the petitioner, the tribunal has correctly assessed the compensation. Hence, enhancement is not warranted.
-5-MFA No. 530 of 2013
9. As regards the liability is concerned, the Tribunal fastened the liability against the driver and the owner of the Auto rickshaw for violation of the policy condition. On the date of accident Auto rickshaw was covered with insurance. For want of driving license of the driver, the liability was exonerated against respondent No.3. The concept of 'pay and recovery' is settled by the Hon'ble Apex Court in Pappu and others Vs. Vinod Kumar Lamba and another (2018) 3 SCC 208 in case of violation of any policy condition, the insurer has to satisfy the award and to recover the same from insured in same proceedings. Hence, the appeal deserves to be allowed with a modification. In the result, I pass the following:
ORDER
i) The appeal is allowed in-part.
ii) The award at Rs.1,10,000/- with interest at 6% p.a. passed by the Tribunal is hereby confirmed.
iii) Respondent No.3 is directed to satisfy the award and recover it from second respondent in the said proceedings within 8 weeks from the -6- MFA No. 530 of 2013 date of receipt of certified copy of this judgment.
iv) Registry is directed to send the records to the concerned Tribunal.
v) Draw award accordingly.
Sd/-
JUDGE SKS