SRI RAVI M v. SRI BASHEER KHAN

consent of learned counsel for parties, the matter is taken up for final disposal.

3. Parties to the appeal shall be referred to as per their status before the tribunal. - 3 - NC: 2024:KHC:7383 MFA No. 3951 of 2022

4. Brief facts of the case are as under: On 23.05.2019 at about 8.15 p.m., when the claimant was walking on footpath of NH-209 road, Lakshmipura, Kengeri Hobli, Bengaluru South Taluk, Bengaluru city, the rider of motor cycle bearing registration No.KA-01-EJ-7119 came from Bengaluru in a rash and negligent manner and dashed against the claimant. Due to the said impact, the claimant fell down and sustained grievous injuries. The claimant was immediately shifted to Sanjay Gandhi Institute of Trauma and Orthopaedic Hospital, Bengaluru, wherein he took treatment as an inpatient for 10 days.

4.1 It is stated he was hale and healthy prior to the occurrence of accident. He was doing business and earning a sum of Rs.20,000/- per month. Due to the injuries sustained by the claimant, he has filed a claim petition seeking compensation.

4.2 On service of notice, the respondents appeared through their counsel. However, respondent No.1 did not - 4 - NC: 2024:KHC:7383 MFA No. 3951 of 2022 file the written statement. Respondent No.2 filed detailed written statement denying the averments made in the claim petition including age, avocation, income and occurrence of accident. It is further stated that the rider of the bike was not holding a valid and effective dirving licence. On these grounds, sought for dismissal of the claim petition.

4.3 On the basis of pleadings, the tribunal framed relevant issues for consideration.

4.4 In order to substantiate the issue and to establish the case, the claimant got examined himself as PW.1 and the Doctor as PW.2 and got marked documents as Exs.P1 to P15. On the other hand, the respondents examined two witnesses as RWs.1 and 2 and got marked documents as Exs.R1 to R3.

4.5 On the basis of material evidence produced by the parties, the tribunal awarded the compensation of Rs.3,49,848/- with interest @ 6% p.a. from the date of - 5 - NC: 2024:KHC:7383 MFA No. 3951 of 2022 petition till realization and fastened the liability against respondent No.1, owner of the offending vehicle and dismissed the claim petition as against respondent No.2, Insurance Company.

4.6 Being aggrieved by the judgment and award passed by the tribunal, the claimant is before this Court seeking enhancement of compensation and to shift the liability as against the Insurance Company.

5. It is the vehement contention of learned counsel for appellant-claimant that the tribunal awarded meager compensation, which calls for interference at the hands of this Court. He further contends that the tribunal has grossly erred in fastening the liability of payment of compensation as against the owner of the offending vehicle on the ground that the rider of the motor cycle was not holding a valid and effective Driving Licence as on the date of accident. Therefore, the tribunal ought to have ordered for 'pay and recovery' directing the Insurance Company to pay compensation by reserving liberty to - 6 - NC: 2024:KHC:7383 MFA No. 3951 of 2022 recover the same from the owner of the motor cycle. Hence, he seeks to enhance the compensation and to shift the liability on the Insurance Company.

6. Per contra, learned counsel for respondent- Insurance Company vehemently contends that the tribunal has awarded just and reasonable compensation, which does not call for interference. He further contends that the tribunal has rightly fastened the liability on the owner of motor cycle on the ground that the rider of the motor cycle does not have a valid and effective Driving Licence. On these grounds, he seeks for dismissal of the appeal.

7. Having heard learned counsel for appellant- claimant and respondent-Insurance Company and perused the impugned judgment and award and evidence adduced by the parties, it is not in dispute that the accident occurred on 23.05.2019. It is evidenced by production of Exs.P1 to P6, Police records, which clearly depict filing of FIR and laying of chargesheet against the rider of the offending vehicle, which is not challenged and Exs.P7 to - 7 - NC: 2024:KHC:7383 MFA No. 3951 of 2022 P15, the medical records depict the injuries sustained by the claimant, due to the accident. Hence, the negligence is rightly attributed against the rider of the offending vehicle.

8. Now coming to the age, avocation, income of the claimant and disability sustained by the claimant, the tribunal assessed the income at Rs.14,000/- per month on the basis of notional income chart, as there is no proof of income produced by the claimant, which does not call for interference and the same is retained. The age of the claimant is 48 years. The appropriate multiplier would be '13', which is rightly applied by the tribunal, which also does not call for interference.

9. PW.2-Doctor has opined the disability suffered by the claimant to an extent of 40% towards permanent disability impairment and 13% to the whole body. However, the tribunal has assessed the disability at 11% without there being any cogent reason. When PW.2-Doctor has opined the disability at 40% towards permanent disability impairment and 13% to the whole body, the - 8 - NC: 2024:KHC:7383 MFA No. 3951 of 2022 tribunal cannot differ the disability from the opinion expressed by PW.2-Doctor without any proper cogent reason and contra material placed by the Insurance Company or the owner of the offending vehicle. Under the circumstances, the disability is taken at 13%. Therefore, the claimant would be entitled to the compensation of Rs.2,83,920/- (Rs.14,000/- x 12 x 13 x 13%) towards loss of future income due to disability as against Rs.2,40,240/- awarded by the tribunal.

10. The tribunal awarded Rs.45,000/- towards pain and suffering, Rs.12,608/- towards medical expenses and Rs.10,000/- towards conveyance, which do not call for interference and the same are retained.

11. The tribunal awarded Rs.4,000/- towards food and extra nourishment and medical attendant. However, the claimant was inpatient for 10 days. Therefore, this Court deems it appropriate to award Rs.10,000/- under this head. - 9 - NC: 2024:KHC:7383 MFA No. 3951 of 2022

12. The tribunal awarded Rs.28,000/- towards loss of income during treatment period. However, this Court deems it appropriate to award Rs.42,000/- (Rs.14,000/- x 3) under this head.

13. The tribunal awarded Rs.10,000/- towards loss of amenities. However, this Court deems it appropriate to award additional amount of Rs.25,000/-. In all, Rs.35,000/- is awarded under this head.

14. In view of the above, the claimant would be entitled to a total compensation of Rs.4,38,528/- as against Rs.3,49,848/- as mentioned in the table below: Heads Amount in Rs. Pain and suffering Medical expenses Food and extra nourishment and medical attendant Conveyance Loss of income during treatment Loss of future income Loss of amenities TOTAL 45,000-00 12,608-00 10,000-00 10,000-00 42,000-00 2,83,920-00 35,000-00 4,38,528-00

15. Coming to the aspect of shifting or fastening the liability against the Insurance Company, learned counsel - 10 - NC: 2024:KHC:7383 MFA No. 3951 of 2022 for claimant relied on the Full Bench judgment of this Court in the case of New India Assurance Co. Ltd. Vs. Yallavva reported in 2020(2) KCCR 1405 (FB), wherein clause (x) of para-110 reads as under: "SUMMARY OF FINDINGS:

110. The summary of our findings to the various issues as raised in these petitions is as follows: xxxxxxxxx (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proves its defense in accordance with the provisions of Section 149(2) read with sub- section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as - 11 - NC: 2024:KHC:7383 MFA No. 3951 of 2022 arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section(3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal."

16. Learned counsel contends that though the defence is taken by the Insurance Company that there is a clear admission by the rider of the offending vehicle that he did not possess a valid and effective Driving Licence as on the date of occurrence of accident, he should be held liable and the Insurance Company should be absolved, the Hon'ble Apex Court has held that the Insurance Company is liable to pay and thereafter, recover the same from the insured.

17. Learned counsel for Insurance Company, relying on the judgment of Division Bench of this Court in the case of Smt.Adilakshmamma and Others vs. Sri Raju B. and another in MFA.No.3297/2019 [Decided on - 12 - NC: 2024:KHC:7383 MFA No. 3951 of 2022

13.04.2023], contended that the fact and circumstances of the case are similar to this case. The Division Bench of this Court exonerated and absolved the liability of the Insurance Company, but on considering the submissions of both parties and having perused the judgments relied on by both learned counsels, it is seen that the Hon'ble Apex Court in the case of Rani and Others vs. National Insurance Company Limited and Others reported in (2018)8 SCC 492, has held at Head Note 'B' that it is the duty of the insurer to satisfy judgment and award against person in respect of third-arty risk. The Hon'ble Apex Court has also dealt with para-15 of the judgment in the case of Pappu and Others vs. Vinod Kumar Lamba and another reported in (2018)3 SCC 208 and thereafter, para-16, wherein it has gone on to hold that - "16. …………whether in the fact situation of this case the insurance company can be and ought to be directed to pay the claim amount, with liberty to recover the same from the owner of the vehicle (Respondent 1)?" - 13 - NC: 2024:KHC:7383 MFA No. 3951 of 2022

18. Under the circumstances, though there may be similarity between the facts of the Insurance Company with that of the Division Bench of this Court in the case of Adilakshmamma, the principle laid down by the Hon'ble Apex Court is that even if there is violation and breach of terms and conditions, the Insurance Company is liable to pay the compensation and thereafter, recover the same from the owner of the offending vehicle.

19. In view of the same, this Court is of the opinion that the tribunal has committed an error in fixing the liability as against respondent No.1, the owner of the offending vehicle and absolving the liability of the Insurance Company, which requires to be set-aside and is accordingly set-aside.

20. Accordingly, I pass the following: i) ii) ORDER The appeal is allowed-in-part; The judgment and award dated 02.03.2022 passed in MVC.No.3982/2019 by the Court of I - 14 - NC: 2024:KHC:7383 MFA No. 3951 of 2022 Additional Small Causes Judge and MACT, Bengaluru, is modified; iii) The claimant is entitled to a total compensation of Rs.4,38,528/- as against Rs.3,49,848/- awarded by the tribunal; iv) The liability is fastened on respondent No.2- Insurance Company. However, respondent No.2-Insurnace Company shall pay compensation and would be at liberty to recover the same from respondent No.1-owner of the offending vehicle. v) The enhanced compensation amount shall be paid with interest @ 6% p.a. by respondent No.2-Insurance Company within a period of four weeks from the date of receipt of a copy of this order; vi) The compensation amount shall be released in favour of the appellant-claimant upon proper verification; - 15 - NC: 2024:KHC:7383 MFA No. 3951 of 2022 vii) All other terms and conditions stipulated by the tribunal shall stand intact. SD/- JUDGE LB List No.: 1 Sl No.: 62