Karnataka High Court
Sri Abhishek S/O Ramachandra vs Sri K B Thippeswamy on 11 April, 2014
Author: B.Manohar
Bench: B.Manohar
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF APRIL 2014
BEFORE
THE HON'BLE MR.JUSTICE B.MANOHAR
MFA NO.8470/2012 (MVC)
BETWEEN:
SRI.ABHISHEK
S/O.RAMACHANDRA,
AGED ABOUT 11 YEARS,
MINOR, STUDENT
REP. BY HIS NATURAL FATHER
SRI.RAMACHANDRA
S/O.CHANDRANAIK,
AGED ABOUT 34 YEARS,
SOCIAL WORKER,
R/O.NAYAKANAHATTY,
KELAGOTE, CHITRADURGA. ... APPELLANT
(BY SRI.B.M.SIDDAPPA, ADVOCATE)
AND
1. SRI.K.B.THIPPESWAMY,
S/O.KENCHA MUDDAPPA,
MAJOR, OWNER OF AUTO
KA.16/A-5184,
R/O.BOSEDEVARAHATTY,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT.
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2. THE MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LIMITED,
BRANCH OFFICE,
CEARS PLAZA, 1ST FLOOR,
RESIDENCY ROAD,
BANGALORE. ... RESPONDENTS
(BY SRI.B.S.VIVEK, ADV FOR SRI.B.C.SEETHARAMA
RAO, ADV FOR R2, R1 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
21.09.2011 PASSED IN MVC.NO.114/2008 ON THE FILE
OF 1 ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL
MACT, CHITRADURGA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING AND
HAVING RESERVED FOR JUDGMENT ON 28-03-2014
THIS DAY THE COURT MADE THE FOLLOWING:-
JUDGMENT
Appellant is the claimant, being dissatisfied with the quantum of compensation awarded in MVC No.114/2008 dated 21.09.2011 passed by the Motor Accident Claims Tribunal, Chitradurga (for short, 'the Tribunal') and fastening the liability on the owner of the vehicle to 3 compensate the claimant filed this appeal seeking for enhancement of compensation.
2. The case of the claimant is that on 18.08.2007 while he was standing near Habeeb Kirani Shop on Jagalur-Nayakanahatty road, an auto rickshaw bearing registration No.KA-16/A-5184 driven by its driver in a rash and negligent manner came and dashed against the claimant. Due to the said accident he has sustained grievous injuries and he was shifted to the Primary Health Centre, Nayakanahatty road, Jagalur for first-aid. Thereafter, he was shifted to a private hospital for treatment. Further, he claimed that he has spent more than Rs.20,000/- for his treatment and he has suffered permanent disability. Hence, he filed a claim petition claiming compensation of Rs.2,00,000/- for the injuries he sustained and the disability suffered by him.
3. The Tribunal, on considering the oral and documentary evidence held that due to the rash and 4 negligent driving of the auto rickshaw by its driver, the accident had occurred and the claimant sustained injuries and hence he is entitled for compensation. With regard to quantum of compensation is concerned, the wound certificate discloses that the claimant has suffered following injuries:
i) Pain, tenderness, swelling over the left side of the foot.
ii) Pain, swelling and tenderness over the left side of knee joint.
iii) Abrasion over the left leg and undisplaced facture of left clacanium.
4. The Tribunal taking into consideration the pain and suffering that the claimant has suffered in the accident, awarded a sum of Rs.20,000/- towards pain and sufferings; Rs.5,000/- towards medical expenses; and Rs.25,000/- towards future unhappiness and loss of amenities. In all, Rs.50,000/- with interest at the rate of 5 6% p.a. from the date of petition till realization. The Tribunal further held that since the said auto rickshaw is operating beyond the permit limit and the first respondent has violated the terms of the policy, the Insurance Company is not liable to pay the compensation and the liability was fixed on the owner of the said auto rickshaw and the claim petition was dismissed as against the insurer by its judgment and award dated 21-09-2011. The appellant being aggrieved by the impugned judgment and award filed the appeal.
5. Sri.B.S.Vivek, the advocate appearing for the appellant contended that the compensation awarded by the Tribunal is on the lower side. The appellant had sustained fracture of left clacanium and other grievous injuries. He was inpatient for a period of 5 days. Though the doctor has assessed the disability to an extent of 5% to the whole body, no compensation has been awarded towards future loss of income and also towards attendant 6 and nourishment charges. The compensation awarded towards the amenities is on the lower side and sought for enhancement of compensation. He further contended that dismissing the claim petition as against the Insurer and fastening the liability on the owner of the vehicle is contrary to law. Even though the driver of the auto rickshaw had violated the conditions of the policy, the Insurer has to compensate the appellant as a third party and recover the same from the owner of the offending vehicle. The denial of compensation from the Insurance Company is contrary to law. In support of his contention, he relied upon the judgments reported in ILR 2009 KAR 4135 in the case of NEW INDIA ASSURANCE COMPANY LIMITED v/s SMT.MAHADEVAMMA AND OTHERS and also judgment of the Hon'ble Supreme Court reported in AIR 2013 SC 1064 in the case of THE MANAGER, NATIONAL INSURANCE CO. LTD. v/s SAJU P.PAUL AND ANOTHER.
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6. On the other hand, Sri.B.C.Seetharama Rao, learned counsel appearing for the second respondent argued in support of the judgment and award passed by the Tribunal and contended that except undisplaced fracture of left clacanium, other injuries are minor in nature. The compensation awarded by the Tribunal is just and fair compensation. With regard to liability is concerned, he contended that the driver of the auto rickshaw had violated the policy conditions. Hence, the Insurer is not liable to compensate the appellant. In support of his contentions, he relied upon the judgment passed in MFA NO.7723/2011 disposed of on 8th October 2013 and sought for dismissal of the appeal.
7. I have carefully considered the arguments addressed by the learned counsel for the parties, perused the judgment and award, and oral and documentary evidence adduced by the parties and the judgments relied upon by the parties.
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8. The records clearly disclose that on 18-08-2007 due to the rash and negligent driving of the auto rickshaw bearing registration KA-16/A-5184, the appellant had sustained fracture of left clacanium bone and other injuries. He was in the hospital for a period of 5 days. At the time of accident, he was aged about 10 years. The Tribunal based upon the Police records held that the claimant has sustained injuries due to the rash and negligent driving of the auto rickshaw by its driver. In the accident, he has sustained fracture of left clacanium bone and other injuries. The compensation awarded by the Tribunal is on the lower side. The evidence of the doctor clearly discloses that the claimant has sustained permanent disability to an extent of 5% to the whole body. However, no compensation has been awarded towards the future loss of income. In the absence of the same, Rs.25,000/- awarded towards loss of amenities and future unhappiness is on the lower side. Hence, he is entitled for another sum of Rs.25,000/- towards the loss of amenities. 9 Further, no compensation has been awarded towards attendant and nourishment charges, though he was inpatient for a period of 5 days. Hence, he is entitled to a sum of Rs.10,000/- towards attendant and nourishment charges. In all, the appellant is entitled for enhanced compensation of Rs.35,000/- in addition to the compensation awarded by the Tribunal.
9. The Tribunal held that the accident had occurred about 20 Kms away from Challakere city limits. Even though the auto rickshaw had obtained permit to ply within the city limits, the driver had violated the conditions of the policy. Hence, the liability was fastened on the owner of the vehicle. Admittedly, the accident had occurred on Jagaluru-Nayakanahatty road which is about 20 Kms away from Challakere City limits. The first respondent had obtained the license to ply within the city limits of Challakere. In the recent judgment of this Court made in MFA No.7723/2011 disposed of on 08-10-2013, 10 this court relying upon the judgment of the Hon'ble Supreme Court reported in 2004 ACJ 2094 in the case of NATIONAL INSURANCE COMPANY CO. LTD. v/s CHELLA BHARATHAMMA AND OTHERS and the Division Bench judgment of this Court made in MFA No.9582/2007 in the case of B.T.VENKATESH v/s JAGADEESH KUMR AND OTHERS disposed of on 24-08-2012, held that the Insurer is not liable to compensate the claimant since the owner and driver of the offending vehicle has violated the conditions of the permit. Paragraph 6 of the above said judgment reads as under:
"So far as fastening the liability on insurance company is concerned, the findings of the Tribunal is clear that, there is violation of the policy conditions by the owner and driver of the offending which is insured with the 3rd respondent-Insurance Company. In the light of the policy conditions being violated, the question of fastening the liability on the Insurance Company to indemnify the liability of paying compensation does not arise for 11 consideration. Accordingly, the findings of the Tribunal is restricting the liability to pay the compensation on the owner of the offending auto rickshaw appears to be just and proper and same does not call for any interference in this appeal."
10. The judgments relied upon by the appellant is not applicable to the facts of the present case. Further, the judgment of the Hon'ble Supreme Court relied upon by the appellant with regard to pay and recovery is applicable only to the peculiar facts and circumstances of the case. In fact, the issue with regard to pay and recovery is pending before the Hon'ble Supreme Court. I find there is no infirmity or irregularity in the said finding of the Tribunal. Accordingly, I pass the following:
ORDER The appeal is allowed in part. The claimant is entitled for enhanced compensation of Rs.35,000/- with interest at the rate of 6% p.a. from the date of petition till 12 realization. The first respondent is liable to compensate the claimant. The appeal against the Insurance Company is dismissed.
Sd/-
JUDGE mpk/-*