Karnataka High Court
Sri Yashavanth Kancan vs Sudhakara on 7 February, 2020
Author: N S Sanjay Gowda
Bench: N.S.Sanjay Gowda
MFA.822/2017
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A.No.822/2017
BETWEEN:
SRI. YASHAVANTH KANCAN,
S/O LATE K.GOPAL MENDON,
AGED ABOUT 26 YEARS,
R/AT MATHRUSHREE,
NEAR YASHASWI ICE PLANT-KOLA
MALPE POST, KODAVOOR VILLAGE,
UDUPI TALUK & DISTRICT-34 ... APPELLANT
(BY SRI. PRADEEP K.C., ADVOCATE)
AND:
1. SUDHAKARA, S/O, DEJU POOJARI,
AGED ABOUT 44 YEARS,
R/AT LAKSHMI NAGAR,
KODAVOOR-MALPE, UDUPI TALUK,
UDUPI DISTRICT-56.
2. THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL MANAGER,
DIVISIONAL OFFICE,
VISHNU PRAKASH BUILDING,
2ND FLOOR, COURT ROAD, UDUPI-78.
... RESPONDENTS
(BY SRI. S.K. ACHARYA , ADVOCATE FOR R-1,
SRI S.V. HEGDE MULKHAND, ADVOCATE FOR R-2)
MFA.822/2017
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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:13.07.2016 PASSED IN MVC No.458/2012 ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, UDUPI
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The claimant, being dissatisfied with the award of compensation of Rs.3,52,223/-, is in appeal.
2. The undisputed facts are that on 24.01.2011, when the claimant was riding a motorcycle bearing registration No.KA- 20/J-3378, an auto rickshaw bearing registration No.KA- 20/B-215 collided with the motorcycle head on, as a result of which, he suffered grievous injuries and was hospitalized on more than one occasion. The claimant, therefore, proceeded to seek for compensation against the owner of the auto as well as the Insurance Company, which has insured the auto.
3. A plea was taken up by the Insurance Company that the owner/driver of the auto rickshaw did not possess a valid and effective driving licence.
MFA.822/20173
4. The Tribunal, on consideration of evidence adduced before it, came to the conclusion that the claimant had suffered 20% disability and proceeded to award compensation of Rs.3,52,223/- under the following heads:
1 Pain and sufferings 1,00,000/-
2 Medical expenses 72,223/-
3 Loss of earning during laid up period 30,000/- 4 Disability 1,00,000/-
5 Loss of marriage prospects 20,000/- 6 Loss of amenities 30,000/-
TOTAL 3,52,223/-
5. The Tribunal, however, proceeded to exonerate the Insurance Company on the ground that the owner of autorickshaw did not possess a valid and effective driving licence.
6. Learned counsel for the claimant contended that exoneration of liability of the Insurance Company cannot be sustained and the Tribunal was duty bound to adopt the pay and recovery principle and ought to have directed the Insurance Company to satisfy the award and thereafter, reserved liberty to it to recover the same from the owner. He MFA.822/2017 4 also submits that the compensation awarded towards disability is on the lower side and requires to be enhanced.
7. On the contrary, learned counsel for the Insurance Company contended that the sums awarded by the Tribunal were just and proper and the Tribunal has rightly exonerated the Insurance Company from its liability.
8. I have considered the submissions of learned counsel for both parties and perused the materials on record.
9. I have examined the material on record especially Ex.R2 - Driving License which indicates that the owner was issued with driving licence only on 12.04.2011, whereas the accident in question took place on 24.01.2011. It is, therefore, clear that as on the date of accident, the owner/driver did not possess the permanent driving licence and therefore, there was clear breach of policy conditions.
10. It is no longer in dispute that whenever the Insurance Company pleads breach of policy conditions as a defence, the principle of pay and recovery is to be adopted. As laid down by the Apex Court in the case of PAPPU AND OTHERS Vs.. MFA.822/2017 5
VINOD KUMAR LAMBA AND ANOTHER - (2018) 3 SCC 208, it would be necessary to direct the Insurance Company to satisfy the award in this case and thereafter, proceed to recover the same in the manner stated in Pappu's case.
11. As far as compensation is concerned, the Tribunal, having determined the functional disability of the claimant at 20%, has proceeded to award global compensation of Rs.1,00,000/- on that account. In my view, this award of Rs.1,00,000/- is incorrect.
12. Having regard to the injuries suffered by the claimant, and since there was no credible evidence adduced before the Tribunal, it would be safe to assume the notional income of the deceased at Rs.6,500/- as determined by the Karnataka State Legal Services Authority for the motor vehicle accident victim of the year 2011. As a consequence, the claimant will be entitled to loss of income at Rs.2,49,000 (6500 X 12 X 20% X 16). A sum of Rs.1,00,000/- awarded towards disability is set aside.
13. In my view sums awarded by the Tribunal under other heads are just and proper and do not call for interference. MFA.822/2017 6
14. Thus, the claimant is held entitled for following compensation:
1 Pain and sufferings 1,00,000/-
2 Medical expenses 72,223/-
3 Loss of earning during laid up period 30,000/- 4 Loss of income due to disability 2,49,000/- 5 Loss of marriage prospects 20,000/- 6 Loss of amenities 30,000/-
TOTAL 5,01,223/-
The enhanced amount shall carry interest at 6% p.a. from the date of petition till its realisation.
The insurance company shall deposit the compensation amount within a period of four weeks from the date of receipt of a certified copy of this judgment and thereafter, recover the same from the owner.
Sd/-
JUDGE PKS