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2022 Supreme(Kar) 189
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
P. KRISHNA BHAT, J.
The Branch Manager, Bajaj Allianz General Insurance Co. Ltd - Appellant
Versus
M. Nagappa S/o. Veerabhadrappa & Ors. - Respondents
Misc. First Appeal No. 24592 of 2010 (MV-I) c/w Misc. First Appeal No. 24896 of 2010 (MV-I)
Decided On : 28-06-2022
For the Appellant : Sri. Ravindra R. Mane.
For the Respondent: Sri. Y. Lakshmikant Reddy.
Headnote:
Appeal - Rash and negligent driving - Functional disability - Appeals are that, claimant- was traveling in a passenger Auto-rickshaw while said Auto-rickshaw was passing, on account of rash and negligent driving of the driver of Auto-rickshaw, it capsized and fell into a ditch on the left side of the road, resulting in grievous injuries to the claimant – Held, In regard to functional disability suffered by the claimant, as already noticed, relevant medical reports are Ex.P4-Wound Certificate, Ex.P8-Out Patient Book, Ex.P9-Disability Certificate and Discharge Summary. Learned Tribunal has also placed on record evidence of PW4-Professor of Orthopedic Surgery, VIMS Hospital, Bellary - He has stated in his evidence that he had perused Wound Certificate and other relevant records from Hospital, where claimant had undergone surgery on two occasions. He also stated that after two surgeries, claimant used to take follow-up treatment under him - Therefore, keeping in view the above observations made by the Hon’ble Apex Court, Court of the view that the functional disability of the claimant is required to be taken at 50% - Appeals are disposed off.
JUDGMENT :
These appeals are at the instance of the Insurance Company and the claimant calling in question the correctness of the judgment and award dated 11.6.2010 in MVC No.524/2008 passed by the learned MACT-X, Bellary (for short, ‘Tribunal’).
2. Brief facts insofar as the same are relevant for the purpose of adjudicating these appeals are that on 11.09.2007, the claimant-Nagappa was traveling in a passenger Auto-rickshaw bearing registration No.KA-34/8236 from Bagewadi village to Kakkabevinahalli via Tekkalakote and at about 11 a.m., while said Auto-rickshaw was passing near K.E.B. Grid on SH-19 road, on account of rash and negligent driving of the driver of Auto-rickshaw, it capsized and fell into a ditch on the left side of the road, resulting in grievous injuries to the claimant.
3. On claim petition being filed, respondent No.1 and 2 namely owner-insured of the vehicle and Insurance Company appeared through their respective counsel and respondent No.2-insurer filed its detailed statement of objections.
4. During trial, claimant examined himself as PW1 and one Orthopedic Surgeon was examined as PW4 and Exs.P1 to P166 were marked for the claimants. Respondent/Insurance Company examined one of its officials as RW1 and Ex.R1 to R5 were marked.
5. After hearing the learned counsel on both sides and perusing the records, the learned Tribunal allowed the claim petition in part awarding a compensation of Rs.3,40,000/- with interest thereon at 6% per annum from the date of petition till date of payment.
6. Sri. R.R. Mane, learned counsel appearing for the appellant/Insurance Company in support of his appeal vehemently contended that the Insurance Company is not liable to pay compensation amount and the award passed by the learned Tribunal to the said extent is erroneous inasmuch as there was violation of the material terms of policy of insurance as the Auto-rickshaw in question was plying in violation of permit condition and also there was overloading of passengers in the said Auto-rickshaw at the time of the accident. He submitted that even the quantum of compensation awarded in a sum of Rs.3,40,000/- is on the higher side and therefore, appeal filed by the Insurance Company is required to be allowed by dismissing the appeal of the claimant.
7. Per contra, learned counsel appearing for the appellant/claimant in support of his appeal contended that even if Auto-rickshaw is plied in violation of permit condition, the Insurance Company cannot be absolved from liability to pay compensation and therefore, effective order to be passed is for “Pay and Recover” in view of decision of the Hon’ble Apex Court in Amrit Paul Singh & Another Vs. Tata AIG General Insurance Company Ltd. & Others, (2018) 7 SCC 558. He also submitted that even in cases of ‘overloading’, the Hon’ble Apex Court in United India Insurance Company Limited Vs. K.M. Poonam & Others, (2015) 15 SCC 297 has held that Auto-rickshaw being passenger auto, the insurance company is liable to pay compensation in respect of permitted number of passengers to be carried in the said vehicle and in regard to excess number of passengers, the Insurance Company is liable to pay compensation in the first instance and recover the same from the insured. Further, learned counsel for the claimant contended that the compensation awarded is on the lower side inasmuch as the claimant had suffered comminuted condyler fracture of left humerus resulting in permanent disability. He submitted that on the heads of compensation like pain and suffering, conveyance charges, nourishing food and loss of earning capacity, the compensation awarded is on the lower side and same is required to be enhanced.
8. I have carefully considered the submissions made on both sides and perused the records.
9. The factum of claimant/Nagappa suffering injuries in the alleged accident is not in question.
