The Divisional Manager vs Mahesh
2021 Latest Caselaw 5541 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF DECEMBER 2021

                          BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.5181 OF 2016 (MV)

BETWEEN:

The Divisional Manager
Cholamandalam General
Insurance Company Limited
No.271, "Ashraya"
Lakshmi vilas road
Devaraja mohalla, Mysore

By The claims manager
Cholamandalam General
Insurance Company Limited
Unit no.4, ninth floor
(level-06) "Golden Heights"
Complex 59th 'c' cross
Industrial Suburb
Rajajinagar, 4th 'M' Block
Bengaluru - 560 010
                                           ... Appellant

(By Sri. O. Mahesh., Advocate)

AND:

1.     Mahesh
       Aged 28 years
       S/o late Somegowda
       R/at Hanur, Kollegala taluk
                              2



      At presently r/at
      Surendra, Gundlupet Town
      Chamarajanagara Dist-571 313

2.    Rangaswamy, Major
      S/o Late Rangegowda
      r/at no.861, Maruthi
      Nagar, Hanur, Kollegala
      Taluk, Chamarajanagar Dist - 571 313

                                          ... Respondents
(R1 & R2 served-unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:05.03.2016 passed
in MVC No.25/2013 on the file of the Senior Civil Judge &
CJM & MACT, Chamarajanagar, Awarding compensation fo
Rs.6,23,025/- with interest at 6% p.a., from the date of
petition till deposit.


      This MFA, coming on for hearing, 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 Insurance Company

being aggrieved by the judgment dated 5.3.2016

passed by the Motor Accident Claims Tribunal,

Chamarajanagar in MVC 25/2013.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 6.12.2012, the claimant and

his friend were returning from Talakadu in Innova car

bearing No.KA-10-M-1888, near Inorahundi on

Madapura-Kaliyur Road, the driver of the said car

drove the same at a high speed and in a rash and

negligent manner, dashed to the tree on the road. As

a result of the aforesaid accident, the claimant

sustained grievous injuries and was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he 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

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. It was pleaded that the petition itself is false

and frivolous in the eye of law. The respondent has

disputed the occurrence of the accident and

involvement of the said car. The driver of the

offending vehicle did not have valid driving licence as

on the date of the accident. The offending vehicle had

no valid fitness certificate and permit as on the date of

accident. 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.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and one Ramu was examined as

PW-2 and Dr..Ravikiran as CW-1 got exhibited

documents namely Ex.P1 to Ex.P15 and Ex.C-1 and C-

2. On behalf of the respondents, neither any witness

was examined nor any document was produced. 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.623,025/- along with

interest at the rate of 6% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the appellant-

Insurance Company has raised the following

contentions:

Firstly, the Tribunal has erred in holding that the

accident was due to either the rash act or negligence

of the insured, who is stated to be driving the vehicle

at the time of the accident and dashed against the

road side tree based on the independent corroborative

evidence except that of interested testimony of

injured-claimant, who was one of the claimant. The

offending vehicle was not having valid permit and

fitness certificate as on the date of accident.

Secondly, the injuries sustained by the claimant

are minor in nature. CW-1, the doctor has stated in

his evidence that the claimant has suffered physical

disability of 66%. But the Tribunal has erred in taking

the whole body disability at 40%, which is on the

higher side. Considering the oral and documentary

evidence and considering the age and avocation of the

claimant, the compensation awarded by the Tribunal

is on the higher side. Hence, he sought for allowing

the appeal.

     7.   The     respondents       are       served       and

unrepresented.

8. Heard the learned counsel for the appellant

and perused the records.

9. The case of the claimant is that on

6.12.2012, the claimant and his friend were returning

from Talakadu in Innova car bearing No.KA-10-M-

1888, near Inorahundi on Madapura-Kaliyur Road, the

driver of the said car drove the same at a high speed

and in a rash and negligent manner, dashed to the

road side tree. As a result of the aforesaid accident,

the claimant sustained grievous injuries and was

hospitalized. After recovering from the injuries, the

claimant has filed the claim petition.

The claimant to prove his case has examined

himself as PW-1 and produced 15 documents. PW-1 in

his deposition has reiterated the averments made in

the claim petition. He has categorically stated that

the driver of the car was rash and negligent in driving

the car and hence, he sustained injuries due to the

driving of the car by its driver.

As per FIR, complaint, spot mahazar, IMV report,

it is very clear that the driver of the car was negligent

in causing the accident. To disprove the version of the

claimant, the respondent-Insurance Company has

neither examined any evidence nor produced any

documents. Further, even though the Insurance

Company has taken a specific pleading that the

offending vehicle was not having valid permit and

fitness certificate as on the date of accident, they

have not examined the officer from the transport

authority or produced any documents. Hence, the

Tribunal has rightly rejected the said pleading of the

Insurance Company.

Therefore, taking into consideration the evidence

of the claimant and documents namely Ex.P-1 FIR,

Ex.P-2 complaint, Ex.P-3 spot mahazar and Ex.P-4

IMV report, I am of the opinion that the accident has

occurred due to rash and negligent driving of the car

by its driver. The Tribunal has rightly answered issue

No.1 in the affirmative. Hence, the finding of the

Tribunal with regard to negligence is concerned, the

same is confirmed.

Re: Quantum of compensation.

10. The claimant claims that he was earning

Rs.9,000/- per month by working in a mobile shop.

But he has not produced any documents to prove his

income. In the absence of proof of income, the

Tribunal considering the age and avocation of the

claimant has rightly taken the income of the claimant

at Rs.5,000/- p.m.

As per wound certificate, the claimant has

sustained fracture of left femur. CW-1, the doctor has

stated in his evidence that the claimant has suffered

disability of 66% to limb. Therefore, taking into

consideration the deposition of the doctor, CW-1 and

injuries mentioned in the wound certificate, the whole

body disability can be taken at 22% as against 40%

taken by the Tribunal. The claimant is aged about 26

years at the time of the accident and multiplier

applicable to his age group is '17'. Thus, the

claimant is entitled for compensation of

Rs.2,24,400/- (Rs.5,000*12*17*22%) on account of

'loss of future income'.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

11. 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 10,000 10,000 Medical expenses 170,025 170,025 Food, nourishment, 15,000 15,000 conveyance and attendant charges Loss of income during 20,000 20,000 laid up period Loss of future income 408,000 224,400 Total 623,025 439,425

12. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.4,39,425/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from

the date of receipt of copy of this judgment.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

DM/-