The High Court
Case Details
- 1 - NC: 2025:KHC:12337 RFA No. 642 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 642 OF 2023 (MON) BETWEEN: M/S ICICI LOMBARD GENERAL INSURANCE CO., LTD., NO.89, SVR COMPLEX II FLOOR, HOSUR ROAD, MADIVALA, BENGLAURU-560 068 THROUGH ITS REGIONAL OFFICE, 9TH FLOOR, THE ESTATE, NO.121, DICKENSON ROAD, BENGALURU-560 042 BY ITS LEGAL MANAGER MANAGER MR.ASHWIN. (BY SRI. KRISHNA KISHORE S.,ADVOCATE) AND: 1. 2. THE HEAD MISTRESS, CARMEL SCHOOL, PADMANABHA NAGAR, BANASHANKARI II STAGE, BENGALURU-560 070 REP BY ITS HEAD MISTRESS SMT.SREEBALA. KUM.K.V.JYOTHIKA, AGED 14 YEARS, D/O SRI K.R.VASU, SINCE MINOR, REP. BY HER FATHER AND NATURAL GUARDIAN SRI K.R.VASU, R/AT NO.27, MUNESHWARA NAGAR, HOSAKEREHALLI KEREKODI, BSK II STAGE, BENGALURU-560 085. Digitally signed by CHANDANA B M Location: High Court of Karnataka APPELLANT (BY SRI. K.P.BHUVAN, ADVOCATE FOR R1; V/O DTD 02.07.2024 NOTICE TO R2 IS HELD SUFFICIENT) RESPONDENTS - 2 - NC: 2025:KHC:12337 RFA No. 642 of 2023 THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.07.2022 PASSED IN OS No.3087/2016 ON THE FILE OF THE LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, (CCH-64), BENGALURU, CITY, PARTLY DECREEING THE SUIT FOR RECOVERY OF MONEY AND ETC,. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL JUDGMENT This appeal by the 1st defendant in O.S.No.3087/2016 is directed against the impugned judgment and decree dated 25.07.2022 passed by the LXIII Addl.City Civil and Sessions Judge, Bangalore, whereby the said suit filed by the respondent – plaintiff against the appellant – 1st defendant for recovery of a sum of Rs.2,24,000/- together with interest at 24% p.a. was partly decreed by the trial court, which directed the appellant – 1st defendant to pay a sum of Rs.2,00,000/- together with interest at 9% p.a. from the date of the suit till realization in favour of the respondent – plaintiff. 2. A perusal of the material on record will indicate that the 1st respondent – plaintiff instituted the aforesaid suit against the appellant – 1st defendant and 2nd defendant of recovery of a sum of Rs.2,24,000/- together with interest at 24% p.a. interalia contending - 3 - NC: 2025:KHC:12337 RFA No. 642 of 2023 that the plaintiff is running a school under the name and style “Carmel School”, Padmanabhanagar, Bangalore and had provided vehicle facilities for transport of its students. It was contended that the appellant – 1st defendant – Insurance company had issued an insurance policy in relation to a school van of the plaintiff bearing Reg.No.KA-07 A-1543 for the period from 28.05.2012 to 27.05.2013. It was also contended that 2nd defendant, Kum.K.V.Jyothika sustained injuries in a road traffic accident that occurred when she was crossing the road on account of the aforesaid vehicle, pursuant to which, she filed a claim petition in
Facts
MVC No.3825/2013 against the plaintiff’s school and 1st defendant – Insurance company. Meanwhile, the plaintiff had already paid a sum of Rs.2 lakhs towards medical expenses to the 2nd defendant – student. The plaintiff who was arrayed as 1st respondent in MVC No.3825/2013 also contended that the said sum of Rs.2 lakhs paid by it to the 1st defendant – Insurance company is to be refunded back to the plaintiff by the MACT by directing the entire compensation to be paid only by the 1st defendant – Insurance company to the 2nd defendant – claimant. However, the MACT while allowing the claim petition vide judgment and award dated 10.02.2015 awarded compensation in a total sum of Rs.4,37,500/- - 4 - NC: 2025:KHC:12337 RFA No. 642 of 2023 in favour of the 2nd defendant – claimant and out of the said amount, deducted Rs.2 lakhs already paid by the plaintiff and accordingly, directed the Insurance company to pay the balance sum of Rs.2,37,500/- to the claimant. Insofar as the claim for refund by the plaintiff was concerned, the MACT reserved liberty in favour of the plaintiff to institute a fresh suit for the said amount. It was contended that the plaintiff having issued a legal notice demanding payment, the 1st defendant did not comply with the said demand and as such, the plaintiff instituted the aforesaid suit. 3. The appellant – 1st defendant filed its written statement and contested the suit and sought for its dismissal. 4. Based on the aforesaid pleadings, the trial court framed the following issues:- “ 1. Whether the plaintiff proves that the insurance police veering No.3004/71689375/00/000 permits the plaintiff to recover from the 1st defendant the amount that already paid to the 2nd defendant towards medical expenses? 2. Whether the plaintiffs is entitle to recover the suit claim amount from the defendant? 3. Whether the suit is barred by limitation? 4. What order or decree?” - 5 - NC: 2025:KHC:12337 RFA No. 642 of 2023 5. Plaintiff examined its Head Mistress as PW-1 and documentary evidence at Exs.P1 to P12 were marked, while the appellant examined DW-1 and marked the Insurance policy as Ex.D1. By the impugned judgment and decree, the trial court partly decreed the suit, aggrieved by which, the appellant – 1st defendant is before this Court by way of the present appeal. 6. Heard learned counsel for the appellant and learned counsel for the 1st respondent – Insurance company. Though the notice of this petition has been served on the 2nd respondent, she has remained unrepresented and not contested the appeal. 7. The only point that arises for consideration in the present appeal is, as to whether the trial court was justified in decreeing the suit filed by the plaintiff against 1st defendant. In this context, it is relevant to state that it is an undisputed fact that the 2nd defendant met with an accident on account of the vehicle owned by plaintiff and insured by the appellant – Insurance company on 20.03.2013 when the Insurance policy at Ex.P1 / Ex.D1 was in force. Accordingly, the MACT passed judgment and award dated 10.02.2015 at Ex.P4 as under:- - 6 - NC: 2025:KHC:12337 RFA No. 642 of 2023 “ This petition is filed under Section 166 of Motor Vehicles 1989, claiming compensation for the injuries sustained by the petitioner in a road traffic accident dated 20- 03-2013 2. The case of the petitioner, as set-out in the petition is as follows: That on 20-03-2013, at about 1.00 p.m., when the petitioner was going from her school, as a pedestrian, after getting down from the RVS school van and crossing the Hosakerehalli Kodi Main Road, in front of Lakshmi Silk Collections, Muneshwara Nagar, Bengaluru, the driver of another School Van bearing Reg. No.ΚΑ-07-A-1543 came in a rash and negligent manner and dashed to the petitioner, due to which the petitioner fell down and sustained injuries. The petitioner was hospitalized, taken treatment as an inpatient in the hospital and incurred huge medical expenses. The petitioner was aged 5 years at the time of accident and due to the accidental injuries, she is permanently disabled and put to irreparable loss and hardship. The accident was due to the rash and negligent driving of the school van by its driver. The respondents, being the owner and insurer of the offending school Van, are liable and responsible to pay the compensation to the petitioner. On all these grounds, petitioner prayed for awarding the compensation of Rs. 10,00,000/- to her. 3. In response to the notice, both respondent No.1 & 2 appeared before this Tribunal through their counsel and filed the written statement and admitted that the offending school - 7 - NC: 2025:KHC:12337 RFA No. 642 of 2023 van was Insured with the respondent No.2 and insurance policy was in force on the date of the accident. The respondents denied other petition averments regarding the accident, manner in which the accident took place and rash and negligent driving of the offending school van by its driver, as the cause for the accident. The respondents also denied the injury sustained by the petitioner, medical expenses insured by them and disability caused to the petitioner. According the respondent No.1, accident was due to the negligence of the petitioner in trying to cross the road without observing the movements of the vehicle. Therefore, it is not due to the negligence of the driver of the school van. The respondent No.1 further contended that they have paid a sum of Rs.2,00,000/-towards medical expenses to the petitioner and petitioner is liable to refund the same. Even if the petitioner is entitled for the compensation, respondent No.2 is liable to pay the same. The respondent No.2 further contended that the driver of the school van had no valid driving license and school van had not valid permit and fitness certificate. Therefore, there is violation of policy condition by the owner of the school van. Hence, they are not liable to indemnify the owner of the school van and to pay the compensation to the petitioner. On all these grounds, respondents prayed for the dismissal of the claim petition with cost. 4. On the basis of the above pleadings, following issues were framed: 1. Whether the petitioner proves that the accident dated 20.03.2013 at about 1.00 p.m. on Hosakerehalli Kodi Main Road, in front of Lakshmi Silk Collections, Muneshwara Nagar, Bengaluru, - 8 - NC: 2025:KHC:12337 RFA No. 642 of 2023 was due to the rash and negligent driving of the driver of the School Van bearing Reg. No.KA-07-A- 1543 and that she has sustained the injuries due to the said accident? 2. Whether the petitioner is entitled for compensation? If so how much and from whom? 3. What order? 5. To prove the above issues, father and guardian of the minor petitioner examined before this Tribunal as P.W.1 and two witnesses on her behalf as PW.2 & PW.3 and got marked Ex.P.1 to P.20 documents. The respondent No.1 examined herself as RW1 and got marked ExR.1 to R.4 documents. 6. I have heard the arguments. 7. By considering the evidence on record and because of my below discussed reasons, I answer the above issues in the following: Issue No.1: IN THE AFFIRMATIVE. Issue No.2: PARTLY IN THE AFFIRMATIVE Issue No.3: AS PER FINAL ORDER. ISSUE NO.1: R E A S O N S 8. The father and guardian of the minor petitioner, who was examined before this Tribunal as PW.1, has reiterated the petition averments in his examination-in-chief affidavit and deposed about the accident, manner in which the accident took place and rash and negligent driving of the school van by its driver as the cause for the accident. PW 1 further deposed about the injury sustained by the petitioner due to the accident, treatment taken for those injuries and medical expenses incurred by them. PW.1 further deposed that due to the accidental injuries, petitioner was permanently disabled, - 9 - NC: 2025:KHC:12337 RFA No. 642 of 2023 lost her earning capacity and put to irreparable loss and hardship. 9. The petitioner summoned Medical Record Officer at K.R. hospital, Bengaluru and examined as PW.2 and he produced the case sheet relating to the petitioner. 10. The petitioner examined the Dr. Avinash
Legal Reasoning
sheet in the criminal case is prima facie for this case to prove and establish that the accident was due to the rash and negligent driving of the offending School Van by its driver. Even the sketch and spot mahazar produced as per Exs.P.2 & P.3 would also indicate that the accident was due to the negligent driving of the School Van by its driver. The IMV report produced as per Ex.P.4 goes to shows that there was no mechanical defect in the offending vehicle to cause the accident. By producing all these materials, petitioner has discharged the initial burden placed upon her to prove the accident and rash negligent driving of the School Van by its driver as the cause for the accident. 15. The respondent No.1 & 2, in their written statement tried to impress upon this Tribunal that there is contributory negligence on the part of this petitioner for the cause of the accident, as she was trying to cross the road negligently with observing the movements of the vehicle and thereby contributed for the cause of accident. Even thought the respondents pleaded about the contributory negligence on the part of the petitioner for the cause of the accident, they failed to prove and substantiate the same by leading any evidence before this Tribunal. The respondents have not made any attempt to examine the driver of the offending school van to prove that petitioner has contributed for the cause of accident. It is pertinent to note here that, the petitioner is 5 years old girl at the time of accident. Therefore, one cannot place the liability of contributory negligence on her part for the cause of the accident. Under - 12 - NC: 2025:KHC:12337 RFA No. 642 of 2023 such circumstances, I have to accept the petitioner's version and hold that the accident was due to the rash and negligent driving of the offending School Van by its driver. 16. To show that she has sustained injuries due to the accident, petitioner produced the wound certificate as per Ex.P.5, discharge summary as per Ex.P.7 and also examined the Medical Officer, who has treated the petitioner, as PW.3. All these evidence goes to show that due to the accident, petitioner has sustained major composite soft tissue defect involving lateral half of right foot dorsum with closed fracture of left 1/3rd of tibia. I will discuss about all these evidence in detail while determining the compensation. So far as this issue is concerned, it is proved that due to the accident, petitioner has sustained grievous injuries. Hence, I answer the issue No.1 in the Affirmative. Issue No.2:- 17. This issue is regarding the quantum of compensation to be awarded to the petitioner and liability to pay the same. The wound certificate relating to the petitioner produced as per Ex.P.5, coupled with the discharge summary marked as per Ex.P.7 and the evidence of the Medical Officer, who was examined as PW.3 goes to show that due to the accident, petitioner has sustained major composite soft tissue defect involving lateral half of right dorsum with closed fracture of left 1/3rd of tibia. The petitioner has taken treatment as inpatient in the hospital, for a period of 10 days from 20-03-2013 to 29-03-2013. Considering the injuries sustained by the petitioner and number of days treatment, she has taken as an in-patient in the hospital, I feel it is just and proper to award a sum of - 13 - NC: 2025:KHC:12337 RFA No. 642 of 2023 Rs.35,000/- to the petitioner under the head pain and sufferings. 18. As the petitioner had been in the hospital as an inpatient for the period of 10 days, I feel it is just and proper to award a sum of Rs.5,000/- to the petitioner towards attendant charges, extra nutritious food and transportation charges. 19. It is evident from Ex.P.10 that the petitioner has incurred the medical expenses to the tune of Rs.2,72,222/-. The petitioner also produced some more medical bills as per Ex.P.20, through which she incurred the medical expenses to the tune of Rs.50/-. So, the total medical expenses incurred by the petitioner to the tune of Rs.2,72,272/-, which can be rounded all into Rs.2,72,500/- Hence, I feel it is just and proper to award a sum of Rs.2,72,500/- to the petitioner, towards medical expenses. 20. By examining the PW.3, petitioner tried to impress upon this Tribunal that she had suffered disability due to the accident. The witness examined as PW3 is Dr. Avinash Parthasarathy, Orthopaedic Surgeon at Sreenivasa hospital, Bengaluru and he opined that the petitioner had 18% whole body disability due to the accidental injuries. PW.3 is not a doctor, who has actually treated the petitioner. PW.3 has only examined the petitioner for the purpose of assessment of the disability. As per the evidence of PW.3, tibia fracture caused to the petitioner is well united. PW. 3 also admitted that, since the petitioner is at the tender age of 5 years, the soft tissue will improve, when she grows up. As per the evidence of PW 3, petitioner had difficulty to stand on affected leg, to climb stairs, restriction of movements of right - 14 - NC: 2025:KHC:12337 RFA No. 642 of 2023 foot and right ankle. Since the petitioner is a minor girl, aged 5 years girl, at this stage, her functional disability cannot be accurately adjudicated and determined. Inspite of the same, considering the injury sustained by the petitioner, and difficulties she had, her whole body disability may not be as high as 18%, as deposed by PW.3 Considering the injury sustained by the petitioner and difficulties she had at present, whole body disability of the petitioner may be more than 10%. Therefore, I determine the whole body disability of the petitioner as 10%. 21. So far as awarding compensation, in case of minor or children suffering disability due to the accidental injuries, we governed by a recent decision of the Hon'ble Supreme reported in, 2013 ACJ 245 (Mallikarjuna V/s Divisional Manager, National Insurance Co. Ltd., & Another). Since it is very difficult to determine the quantum of compensation in case of children suffering from disability, Hon'ble Supreme Court in the above decision has laid down the law to award the fixed compensation on the basis of the extent disability caused to the children. As per the ratio laid down in the above decision the extent of disability is up to 10%, fixed compensation of Rs.1,00,000/- has to be awarded towards loss of future income and loss of amenities and happiness due to the permenant disabilities. By relying upon the above decision, I feel it just and proper to award Rs.1,00,000/- to the petitioner towards loss of future income and loss of amenities and happiness due to permanent disabilities. - 15 - NC: 2025:KHC:12337 RFA No. 642 of 2023 22. Since the petitioner is a minor, school going girl and she aged 5 years at the time of accident and she is non- earning member, there cannot be any loss of income to the petitioner during the period of taking treatment. Therefore, there are no grounds to award the compensation to the petitioner towards loss of income during the period of taking treatment. 23. As per the evidence of PW.3, petitioner requires future treatment for surgery, which costs about Rs.60,000/- As per Ex.P.19, cost of the surgery is shown as Rs.60,000/-, But the petitioner has not examined the Doctor, who has issued Ex.P.19. Therefore, this Tribunal cannot accept Ex.P.19. However, since the petitioner required further treatment, I feel it is just and proper to award a sum of Rs.25,000/- to the petitioner towards future medical treatment. The petitioner is not entitled for the compensation under other heads. So, the petitioner is entitled for compensation under the following heads: 1 Pain and sufferings Attendant charges, nutritious expenses & transportation charges 2 3 Medical expenses 4 Loss of earning capacity and loss of amenities and happiness 5 Future Medical Expense Total Rs. 35,000/- Rs.5 ,000/- Rs. 2,72,500/- Rs. 1,00,000/- Rs.25,000/- Rs. 4,37,500/- In total petitioner is entitled for the compensation of Rs.4,37,500/-. 24. Now, 1 have to consider the question of liability to pay compensation. The respondent No.2 admitted that - 16 - NC: 2025:KHC:12337 RFA No. 642 of 2023 offending School van was insured with them and insurance policy was in force on the date of accident. Even though the respondent No.2 contended that there is violation of the policy conditions by owner of the school van, they failed to prove and substantiate the same by leading any evidence before this Tribunal. Therefore there is no such violation of the policy conditions, as alleged by the respondent No.2. Hence, it is the respondent No.2, who is liable and responsible to pay compensation to the petitioner. 25. The respondent No.1 contended that they have paid a sum of Rs.2,00,000/- to the petitioner towards her medical expenses. To prove the same, the respondent No.1 have produced a cheque issued by them as per Ex.R.1, Advance receipt as per Exs.R.2 & R.3 and also account extract as per Ex.R.4. The petitioner admitted that the respondent No.1 has paid a sum of Rs.2,00,000/- for the medical expenses. So, out of the compensation amount already awarded, the petitioner has been paid with Rs.2,00,000/-. Hence, the petitioner is entitled for only the balance amount i.e 4,37,500/- – 2,00,000/- = 2,37,500/-from the respondents. So far as the amount already paid by the Respondent No.1, it is open for them to recover the same from respondent No.2, if the contract of insurance entered into between them permits and provides. This Tribunal can not order for refund of Rs.2,00,000/- to the respondent No. 1, either by the petitioner or by the respondent No.2, since there is no such specific prayer in their statement of objections and counter claim. Accordingly, I answer this issue partly in the affirmative. - 17 - NC: 2025:KHC:12337 RFA No. 642 of 2023 ISSUE No.3:- 26. In view of my above findings, the petition is deserves to be partly allowed. Hence, I proceed to pass the following:
Arguments
Parthasarathy. Orthopaedic Surgeon at Srinivasa hospital, Bengaluru as PW.3 and he deposed that the petitioner has sustained major composite soft tissue defect involving lateral half of right foot dorsum with closed fracture of left 1/3rd of tibia and fracture of lower 1/3rd of right tibia due to the accident. PW.3 further deposed that he examined the petitioner on 15-11-2014 for assessment of the disability and on the basis of the infirmities and disability the petitioner had PW.3 opined that the petitioner had the whole body disability of 18%. 11. The petitioner has produced the F.I.R., registered in respect of the accident as per Ex.P.1 Ex.P.2 is the sketch and Ex.P.3 is the mahazar of the accident spot. The IMV report is marked as per Ex.P.4. The Wound certificate is marked as per Ex.P.5. Ex.P.6 is the charge sheet filed against the driver of the offending school van. Ex.P.7 is the discharge summary. Ex.P.8 is the outpatient slip. The Lab report is marked as per Ex.P.9. The Medical bills were marked as per Ex.P.10. The Prescription chits were marked as per Ex.P.11. The Photos with CD were marked as per Ex.P.12. Ex.P.13 is the x-ray report. The Authorization letter of PW.2 is marked as per Ex.P.14. Ex.P.15 is the case sheet. Ex.P.16 is the outpatient slip. The Disability Assessment Form is marked as - 10 - NC: 2025:KHC:12337 RFA No. 642 of 2023 per Ex. P.17. X-ray report is marked as per Ex.P.18. Ex.P.19 is the medical certificate and Ex.P.20 is the medical bills. 12. The respondent No. 1 examined before this Tribunal as RW.1 and she deposed that they have paid a sum of Rs.2,00,000/- to the petitioner towards medical expenses. RW.1 further deposed that the accident was due not due to the negligent of the driver of the offending school van and it is due to the negligence of the petitioner. RW.1 further deposed that the respondent No.2 is liable to pay compensation to the petitioner and the petitioner is liable to repay Rs.2,00,000/- amount received from them. 13. The respondents produced the copies of D.D. dated 21-08-2013 as per Ex.R.1. The receipts dated 21-03- 2013 and 23-03-2013 were marked as per Ex.R.2 & R.3. The Bank statement is marked as per Ex.R.4. 14. There is no serious dispute as such regarding the occurrence of the accident. There is also no dispute regarding the injuries sustained by the petitioner due to the accident. To prove that the accident was due to the rash and negligent driving of the offending School Van by its driver, petitioner has produced the F.I.R. as per Ex.P.1. It is evident from Ex. P.1 that on 20-03-2013 at about 1.00 p.m., when the petitioner was going as a pedestrian, after getting down from the RVS school van and crossing the Hosakerehalli Kodi main road, in front of Lakshmi Silk Collections, Muneshwara Nagar, Bengaluru, driver of another School Van bearing Reg. No.KA- 07-A-1543 came in a rash and negligent manner and dashed he petitioner, due to which the petitioner fell down and sustained injuries. The Kengeri Traffic Police who have registered the F.I.R., have conducted the investigation and - 11 - NC: 2025:KHC:12337 RFA No. 642 of 2023 filed the charge sheet against the driver of the offending School Van, as evident from Ex.P.6. The filing of the charge
Decision
ORDER The petition filed by the petitioner U/s.166 of MV Act is partly allowed with costs. The petitioner is awarded compensation of Rs. 2,37,500/- (Rs.Two lakhs thirty seven thousand five hundred only) with interest at the rate of 6% p.a. from the date of petition till its realization. The respondent Nos.1 & 2 are jointly and severally liable to pay the compensation to the petitioner. The respondent No.2 shall deposit the compensation amount awarded with interest within two months from the date of award. Out of the said compensation of the compensation amount, 50% of the compensation amount with proportionate interest shall be deposited in the name of the minor petitioner as FD in any nationalized bank till she attains the age of majority (without any encumbrance or premature withdrawal) with liberty to the father/guardian of the minor petitioner to draw the accrued interest periodically. Remaining amount with proportionate interest shall be released to the father/guardian Guardian of the minor petitioner through A/c payee cheque verification. on proper identification and verification. Advocate fee is fixed at Rs.500/- Draw award accordingly.” - 18 - NC: 2025:KHC:12337 RFA No. 642 of 2023 8. As can be seen from the said judgment and award, liberty is reserved in favour of the plaintiff to recover a sum of Rs.2 lakhs paid by it to 2nd defendant from the 1st defendant – Insurance company. The trial court considered and appreciated the entire material on record including the pleadings and evidence of both sides and has upheld the claim of the plaintiff as hereunder:- “ 10. In order to prove the claim made by the plaintiff against the defendant, the Head Mistress of the plaintiff is examined as PW1 and hence reiterated the allegations made in the plaint. In support of her oral evidence has also produced the documentary evidence at Exs.P1 to 12. Ex.P1 is the copy of Insurance Policy, Ex.P2 is the certified copy of claim petition in MVC No.3825/2013, Ex.P3 is the certified copy of written statement in MVC No.3825/2013, Ex.P4 is the certified copy of judgment and award in 'MVC No.3825/2013, Ex.P5 & 6 are the copies of advance receipt of K.R.Hospital, Ex.P7 is the cheque issued to the KR Hospital, Ex.P8 is the Bank statement of plaintiff/Carmel School, Ex.P9 is the legal notice dated 04.06.2015, Ex.P10 is the postal receipt dated 05.06.2015, Ex.P11 is the postal acknowledgement, Ex.P12 is the copy of RC of the vehicle bearing Reg. No.KA-07/A-1543. 11. Per contra, the authorized Officer of defendant No.1 examined as DW1 and has produced the insurance policy at Ex.D1. - 19 - NC: 2025:KHC:12337 RFA No. 642 of 2023 This is all oral and documentary evidence placed on record by the plaintiff and defendant No.1 in support of their respective contentions. 12. I have gone through the judgment relied on by the learned Counsel for the plaintiff and kept in mind the views taken by the Hon'ble High Court of Karnataka in the said decision while coming to the final conclusion. 13. At the outset it is necessary to note the admitted facts. The Plaintiff is the owner of school van bearing Reg. No.KA-09/A-1543. The plaintiff insured the said vehicle with the Land defendant No.1 and defendant No.1 issued Policy No.I.P.3004/71689375/00/000 valid from 28.05.2012 to 27.05.2013, on 20.03.2013 at about 01.00 p.m., the school van of the plaintiff was proceeding on Hosakerehalli Gate Main Road, Muneshwara Nagara, Bengaluru, caused accident to defendant No.2, as on the date of accident the policy issued by the defendant No.1 was in force, plaintiff had paid an amount of Rs.2 lakhs to the defendant No.2 towards medical expenses, defendant No.2 filed MVC claim petition in MVC No.3825/2013 against the present defendant No.1 and 2, the present plaintiff who is respondent No.1 filed objections, the claim petition filed by defendant No.2 was partly allowed and granted compensation of Rs.4,37,500/- and respondent No.1/present defendant No.1 ordered to pay Rs.2,37,500/- after deducting Rs.2,00,000/- payment made by the respondent No.1/present plaintiff to the petitioner/present defendant No.2, while deciding the MVC petition the Tribunal has made observation that so far as the amount already paid by respondent No.1, the option was given to the owner of the vehicle to recover the same from - 20 - NC: 2025:KHC:12337 RFA No. 642 of 2023 the insurer, if the contract of insurance entered into between them permits and provides. None of the parties to the said claim petition have challenged the findings of the Tribunal before higher authority. 14. From the evidence placed on record there is no dispute between the parties to the suit that plaintiff had paid an amount of Rs.2 lakhs to the defendant No.2 towards medical expenses after the accident. In the light of arguments of both sides and materials placed on record, let me consider the issues for consideration. 15. Issue No.1:- It is the definite case of the plaintiff as per the insurance policy bearing No.3004/71689375/00/000 obtained from defendant No.1 permits him to recover the amount that already paid to the defendant No.2 towards medical expenses. As a matter of repeat it is necessary to note that the plaintiff being the owner of the vehicle insured the vehicle with defendant No.1 and defendant No.1 issued Ex.P1/insurance policy. The insured vehicle of the plaintiff made an accident to defendant No.2. After the accident plaintiff has paid Rs.2 lakhs to the injured/defendant No.2 towards medical expenses. The said fact brought, to the knowledge of the Tribunal in the claim petition filed by the defendant No.2. The Tribunal while calculating the compensation has taken note the payment of 2 lakhs, made by plaintiff to defendant No.2, but has not passed any order for repayment to the plaintiff. However, Tribunal has made observation in its judgment to the effect that "so far as the amount already paid by the respondent - 21 - NC: 2025:KHC:12337 RFA No. 642 of 2023 No.1, it is open for them to recover the same from respondent No.2, if the contract of insurance entered into between them permits and provides". 16. In order to prove the plaint allegations plaintiff examined as PW1 and has reiterated the averments made in the plaint and has produced Insurance Policy, MVC No.3825/2013 claim petition filed by the defendant No.2 against the plaintiff and defendant No.1, objection statement filed by plaintiff in the claim petition, judgment and award passed in the claim petition, two advance receipts and certified copy of the cheque at Ex.P1 to 7. 17. Now the question is whether the plaintiff is entitled to the amount claimed in the suit. 18. Ex.P1 is the Certificate of Policy issued by the defendant No.1. As per the contents of Ex.P1 the defendant No.1 collected premium of Rs. 11,716.00 towards third party liability. It means the insured/defendant No.1 has undertaken to indemnify the insured/plaintiff. The defendant No.1 has not disputed the third party liability. The plaintiff/insured has made payment of Rs.2 lakhs to the defendant No.2/third party towards medical expenses. It has come in the evidence of DW1 that defendant No.1 has not challenged the judgment and award passed in MVC No.3825/2012 by the MACT Tribunal. It means defendant No.1 accepted the finding of Tribunal that plaintiff/owner of the vehicle has made payment of Rs.2 lakhs to the defendant No.2/third party towards medical expenses. As noted supra, the Tribunal while calculating the compensation has taken note the payment of 2 lakhs made by plaintiff to defendant No.2, - 22 - NC: 2025:KHC:12337 RFA No. 642 of 2023 but has not passed any order for repayment to the plaintiff. It is not the contention of defendant No.1 that plaintiff has not paid Rs.2 lakhs to the defendant No.2. Undisputedly as per the terms and conditions of the policy the defendant No.1/insurer has to indemnify the plaintiff/insured in case of claim of third party. The liability of payment has not been disputed. The only contention taken by the defendant No.1 that the plaintiff has not intimated about the payment made to defendant No.2. The payment made by the plaintiff to the defendant No.2 is supported by documents produced by the plaintiff at Ex.P5 to 8. Moreover, the while calculating the compensation Tribunal has taken note the payment of 2 lakhs made by plaintiff to defendant No.2 and deducted the said amount from the final award amount. At this juncture it is necessary to note that the MACT recorded finding to the effect that defendant No.2 is entitled for the compensation of Rs.4,37,500/-. In view of the payment made by the plaintiff to defendant No.2 to the tune of Rs.2 lakhs and ordered that defendant No.1 shall deposit compensation of Rs.2,37,500/-. In fact defendant No.1/insurer is liable to pay the entire compensation of Rs.4,37,500/- and an amount of Rs.2 lakh deducted out of the total compensation amount compensation of Rs.4,37,500/-. If the plaintiff not paid an amount of Rs.2 lakhs to the defendant No.2, definitely the defendant No.1 shall have to pay it. The plaintiff has not filed suit to claim amount outside the preview of Ex.P1/policy. Mere not intimating by the plaintiff to defendant No.1 is not ground to reject the claim of the plaintiff. In view of the coverage of third party liability issued by defendant No.1 under Ex.P1/insurance policy, plaintiff is entitled to claim - 23 - NC: 2025:KHC:12337 RFA No. 642 of 2023 Rs.2 lakhs from the defendant No.1 the amount that already paid by plaintiff to the defendant No.2 towards medical expenses. 19. The defendant No.1 has not pointed out that the claim made by the plaintiff is hit by any of the terms and conditions of the Insurance policy issued by the defendant No.1. It appears that the defendant No.1 wants to avoid liability on silly grounds which are not sustainable in the eye of law. On appreciation of evidence placed on record, in the considered opinion of this Court plaintiff proves that Ex.P1/insurance policy permits the plaintiff to claim amount of Rs.2 lakhs that already paid to the defendant No.2 by him towards medical expenses and plaintiff is entitled to claim the amount as leaded in the plaint from the defendant No.1. For the reasons discussed above, I answered issue No.2 as in the affirmative. 20. Issue No.2:- In view of my findings on issue No.1 the plaintiff is entitled to recover the suit claim amount from the defendant. The plaintiff claimed amount with interest at the rate of 24 % p.a.. The evidence placed on record clearly discloses that defendant No.1 withheld the payment of Rs.2 lakhs without any valid reasons. Therefore, the defendant No.1 is liable pay the interest on the said amount for withholding the payment of Rs.2 lakhs to the plaintiff. Having regards to the facts and circumstances of the case the defendant is liable to pay Rs.2 lakhs with interest at the rate of 9% p.a.. For the reasons discussed above, I answered issue No.2 partly in the affirmative. - 24 - NC: 2025:KHC:12337 RFA No. 642 of 2023 21. Issue No.3:- It is the definite defence of the defendant No.1 that the suit filed by the plaintiff is barred by limitation In this regard, it is necessary to note that the accident occurred on 20.03.2013. The plaintiff paid an amount to defendant No.2 to the tune of Rs.2 lakhs towards the medical expenses in the year 2013. The defendant No.2 filed MVC No.3825/2013 claiming compensation on account of injuries sustained in the accident against the present plaintiff and defendant No.1. The said MVC case was decided on 10.12.2015. The observation made by the Tribunal, is a cause of action to the plaintiff the file suit against the defendants and the plaintiff has filed the suit on 20.04.2016. From the date of disposal of the MVC petition, the plaintiff has filed the suit is well within time. Absolutely nothing has been produced by defendant No.1 to demonstrate that the suit filed by the plaintiff is barred by limitation. The defendant No.1 utterly failed to prove that the suit filed by the plaintiff is barred by law of limitation. The said defence taken by the defendant No.1 remains intact without any proof. For the reasons discussed above, I answer this issue in the negative. 22. Issue No.4:- In view of the findings on issue No.1, I proceed to pass the following. ORDER The suit of the plaintiff is hereby decreed partly with costs. The defendant shall pay Rs.2,00,000/- with interest at 9% p.a., from the date of suit till is realization to the plaintiff. Draw decree accordingly. - 25 - NC: 2025:KHC:12337 RFA No. 642 of 2023 9. Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the considered opinion that the impugned judgment and decree passed by the trial court does not suffer from any illegality or infirmity warranting interference by this Court in the present appeal, which is devoid of merit and liable to be dismissed. 10. Accordingly, the appeal is hereby dismissed. Sd/- (S.R.KRISHNA KUMAR) JUDGE ND/SRL List No.: 1 Sl No.: 44