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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.5849 OF 2013(MV)
BETWEEN:
Bharath,
5 years, Minor,
S/o. C.Yogesh,
R/B, N/G father, C.Yogesh,
R/o Harshitha Nilaya,
K.E.B. Layout,
Behind Lakshmi Talkies, Tumkur.
... Appellant
(By Sri. Patel D.Karegowda., Advocate)
AND:
1. N.G.Prakash,
Aged 29 years,
S/o Late. Gangadharaiah,
R/o Naduvala Palya Village,
Chikkenahalli Post, Tumkur-572 101.
2. The Branch Manager,
The New India Assurance Co. Ltd.,
Branch Office,
Tumkur Shopping Complex,
B.H.Road, Tumkur-572 101.
... Respondents
(By Sri.S.T.Rajashekara, Advocate for R2:
Notice to R1 is dispensed with v/o dated:05.01.2021)
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This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:27.03.2013 passed
in MVC No. 103/2012 on the file of the Principal Senior
Civil Judge, MACT, Tumkur, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
This MFA, coming on for orders, 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 27.03.2013 passed by the Motor Accident Claims Tribunal in MVC No.103/2012.
2. Facts giving rise to the filing of the appeal briefly stated are that on 17.11.2011 at about 2.30 a.m. the claimant, his parents and family friend of his parents were returning from Sigandhur towards Tumkur in a TATA Indica Vista car bearing registration No.KA-06/M-9170. When they reached near Chikkadanavandi cross between Shimoga - Sagara 3 road, the driver of the said car drove the same at a high speed and in a rash and negligent manner, lost control over the vehicle and the car toppled down towards the road side and caused the accident. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The minor claimant represented by his father filed a petition under Section 166 of the Act on the ground that he was aged about 4 years and was studying in LKG and due to the injuries sustained, he suffered lot of pain. It was pleaded that he 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.
4. On service of notice, the respondent No.2 filed written statement in which the averments made in the petition were denied. It was pleaded that the 4 occupants in a private car are not covered under the policy, and as such, the claim petition against the insurance company is not maintainable. It was further pleaded that the driver of the offending vehicle was not holding a valid and effective driving licence to drive the said vehicle. The liability of the respondent No.2 is subject to validity of the vehicle documents and the validity of the effective DL of the drivers of the vehicle and subject to terms, conditions, limitations and exceptions of the policy at the relevant point of time. The 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.1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
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5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The father of the claimant was examined as PW-1 and got exhibited documents namely Ex.P1 to Ex.P3. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 and Ex.R2. 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.3,000/- along with interest at the rate of 6% p.a. and since the insurance company has not collected any additional premium for covering the risk of third parties, directed the owner of the offending vehicle to deposit the compensation amount 6 along with interest. Being aggrieved, this appeal has been filed.
6. Sri Patel D.Karegowda, the learned counsel for the claimant has raised the following contentions:
Firstly, the Tribunal has rightly given a finding that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle, but wrongly fastened the liability on the insured. In the same accident, mother of the appellant died. The claimant as well as his father had filed a claim petition in MVC No.102/2012, in which the MACT has held that the insurance company is liable to pay the compensation. The finding of the Tribunal is not challenged by the insurance company before this Court. In fact, the claimants have filed an appeal before this Court seeking enhancement of compensation in MFA No.7723/2015. This Court by order dated 16.12.2015 allowed the appeal. 7 Therefore, the finding of the Tribunal regarding fastening of the liability on the insured is unsustainable.
Secondly, the claimant was a minor aged about 4 years at the time of the accident, he suffered grievous injuries. The global compensation awarded by the Tribunal at Rs.3,000/- is on the lower side. Hence, he sought for allowing the appeal.
7. On the other hand, Sri S.T.Rajashekara, learned counsel for the Insurance Company has raised the following contentions:
Firstly, the Tribunal on consideration of the oral and documentary evidence has rightly fastened the liability on the insured.
Secondly, the compensation awarded by the Tribunal is just and reasonable. Hence, he sought dismissal of the appeal.
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8. Heard the learned counsel for the parties. Perused the judgment and award passed by the Tribunal.
9. It is not in dispute that the claimant suffered the injuries in the accident occurred due to rash and negligent driving of the offending vehicle by its driver. In the said accident the mother of the claimant died. The claimant as well as his father have filed a claim petition in MVC No.102/2012 before the MACT, Tumkur. The claim petition has been allowed fastening liability on the insurance company. The insurance company has not challenged the award and in fact, satisfied the award and the same has attained finality. Even the appeal filed by the claimants before this Court in MFA No.7723/2015 was disposed of on 16.12.2015 fastening the liability on the insurance company. In view of the above, the insurance company is liable to satisfy the award. 9
Re.quantum:
10. At the time of the accident, the claimant was age about 4 years. He suffered contusion wound over the forehead.
Taking into consideration the injuries suffered by the claimant and his age, the global compensation of Rs.25,000/- is awarded in place of Rs.3,000/- awarded by the Tribunal.
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/-