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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.2494 OF 2013(MV)
BETWEEN:
Ms. Mrudula Chalil,
D/o Late. Kanarotty Nair,
Aged about 38 years,
Residing at No.678, 5th Main,
M.E.S. Road, Muthyalanagar,
Gokula Post,
Bengaluru-560 054.
... Appellant
(By Sri.N.Mohanadas & K.Jeevan, Advocates)
AND:
1. Bajaj Allianz General
Insurance Co. Ltd.,
No.31, Ground floor, TBR Tower,
1st Cross, New Mission Road,
Adjacent to Jain College &
Stock Exchange,
Bengaluru-560 002
Represented by its Manager.
2. Sri. Mohammed Khalid,
S/o Sri. Shaik Ismail,
No.22, 5th Cross, Nehru Road,
Chamrajpet,
2
Bengaluru-560018.
... Respondents
(By Smt. H.R.Renuka, Advocate for R1:
Notice to R2 is held sufficient
v/o dated:27.04.2018 )
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:10.08.2012 passed
in MVC No.5410/2008 on the file of the 21st Additional
Judge, Member, MACT, Court of Small Causes, Bangalore,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.
This MFA, coming on for admission, through video
conference this day, this Court, delivered the following:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being aggrieved by the judgment dated 10.08.2012 passed by the Motor Accident Claims Tribunal in MVC No.5410/2008.
2. Facts giving rise to the filing of the appeal briefly stated are that on 04.05.2008 at about 12.10 3 p.m. the claimant was traveling in the autorickshaw bearing registration No.KA-05/D-8594. At that time, the driver of the autorickshaw drove the same at a high speed and in a rash and negligent manner, lost control over the same and hit the iron bar near H.P.Petrol Bunk on new BEL road. As a result of the same, the autorickshaw capsized and the claimant fell on the road and sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act on the ground that she was working as a Co-ordinator in Japanees Training Center and was earning Rs.33,000/- per month. It was pleaded that she also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
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4. On service of notice, the respondent No.1 filed written statement in which the averments made in the petition were denied. It was pleaded that the petition is not maintainable either in law or on facts and the same is liable to be dismissed. It was further pleaded that the respondent No.2 has not complied with the provisions of Section 134(c) and 158(6) of the Motor Vehicles Act. It was further pleaded that the driver of the auto was not holding a valid and effective driving licence to drive the said vehicle. It was further pleaded that the auto was not having valid and effective permit to ply on the date of the accident. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. The respondent No.2 did not 5 appear before the Tribunal inspite of service of notice and was placed ex-parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant herself was examined as PW-1 and Dr.Sharan Srinivasan as PW-2 and got exhibited 29 documents namely Ex.P1 to Ex.P29. On behalf of the respondents, an officer of the insurance company was examined as RW-1 and got exhibited 4 documents as Exs.R1 to R3(a). The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.1,30,353/- along with interest at the rate of 6% p.a. and since there is violation of policy conditions directed the owner of the 6 offending vehicle to pay the compensation. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimant has raised the following contentions:
Firstly, the Tribunal has erred in holding that the insurance company is not liable to pay the compensation on the ground that offending vehicle was not holding fitness certificate.
Secondly, due to the injuries the claimant has suffered grievous injuries, she has examined the doctor as PW-2, who in his deposition has stated that the claimant has suffered whole body disability of 44.88%, she has to suffer the disability throughout her life, but the Tribunal has not awarded compensation for 'loss of future income due to disability'.
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Thirdly, the compensation awarded by the Tribunal on the other heads is on the lower side. Hence, he sought for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has raised the following contentions:
Firstly, it is not in dispute that as on the date of the accident the offending auto was not having valid fitness certificate, since the owner has violated the policy conditions, the Tribunal has rightly exonerated the insurance company.
Secondly, even though the claimant suffered disability, it is admitted that she continued with her job and she is getting the same salary and there is no loss of income due to disability. Therefore, the Tribunal has rightly not granted the compensation under the said head.
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Thirdly, considering the oral and documentary evidence, the Tribunal has granted just and reasonable compensation and it does not call for interference. Hence, he sought for dismissal of the appeal.
8. Heard the learned counsel for the parties. Perused the original records, judgment and award passed by the Tribunal.
9. It is not in dispute that the claimant suffered injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.
Due to the accident the claimant has suffered the following injuries:
(1) Fracture of right parital bone
(2) Fracture of root of left orbit
(3) Fracture of left nasal bone
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(4) Other simple injuries.
The doctor - PW2 has assessed the whole body disability as 44.88%. It is not in dispute that even after recovering from the injury she is still working in the same position and there is no loss of income. Therefore, the Tribunal has rightly not awarded any compensation under the head 'loss of future income due to disability'.
Due to the injuries claimant suffered lot of pain and she has to suffer the disability and unhappiness throughout her life. Hence, I am of the opinion that the compensation granted under the head 'pain and suffering' has to be enhanced from Rs.20,000/- to Rs.50,000/- and for 'nourishment, attendant and conveyance charges' from Rs.10,000/- to Rs.20,000/-.
The compensation awarded by the Tribunal under other heads are just and reasonable. 10
10. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 20,000 50,000 Medical expenses 50,853 50,853 Nourishment, 10,000 20,000 conveyance and attendant charges Loss of amenities 50,000 50,000 Total 1,30,853 1,70,853 Re.liability:
11. A Division Bench of this Court in MFA No.7792/2015 and connected matter disposed of on 21.12.2020, while dealing with the issue of 'fitness certificate' has held that even if there is no valid fitness certificate as on the date of accident, it is not the defence available for the insurance company under Section 149(2) of the Act and it is not the condition which is mentioned in the policy, but it is only an offence under the Motor Vehicles Act and the 11 Insurance Company cannot escape from the liability and directed the insurance company to pay the compensation.
12. In view of the above, the Insurance Company is directed to deposit the compensation amount along with interest at 6% per annum from the date of petition till the date of realization, within a period of four weeks from the date of receipt of copy of this judgment.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE Cm/-