M/S Oriental Insurance Co Ltd vs Sri Poonacha
2021 Latest Caselaw 5923 Kant

                             1



   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 10Th DAY OF DECEMBER 2021

                         BEFORE

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

                MFA No.639 OF 2016(MV)

BETWEEN:

M/s. Oriental Insurance Co. Ltd.,
R.O. No.44/45, 3rd Floor,
Leo Shopping Complex,
Near Utility Building,
M.G.Road, Bangalore-560 025,
Represented by its
Authorised Signatory,

Representing
The Oriental Insurance Co. Ltd.,
R/o Oriental House,
P.B.No.7037,
A-25/27, Asaf Ali Road,
New Delhi-110002,
Represented by its Manager.

The Oriental Insurance Co. Ltd.,
R/o No.49, 2nd Floor,
Jyothi Mahal, St.Mark's Road,
M.G.Road, Bangalore-560 001,
Represented by its Manager.          ... Appellant

(By Sri. Suresh K., Advocate)
                               2




AND:

1.     Sri. Poonacha,
       S/o Sri. K.M.Madappa,
       Aged about 35 years,
       R/o No.30, 2nd Main,
       2nd Cross, Muthyalanagar,
       Bangalore-560 054.

       Previous Address:
       #26, 8th Cross, Berudappa Road,
       Yeshwanthpura, Bengaluru.

2.     Sri. C.N.Ramu,
       S/o Sri. V,Hanumanthu,
       Aged about 35 years,
       R/o Bo.4468/3488,
       I Floor, Srimanjunatha Complex,
       T.B.Road, Sidlaghatta,
       Chikkaballapura-562 105.           ... Respondents

( Service of notice to R1 & R2 are Held sufficient:
v/o dated: 16.03.2018)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:10.08.2015 passed
in MVC No.3849/2013 on the file of the 8th Additional
Small Causes Judge & XXXIII ACMM, Member MACT,
Bangalore, partly allowing the claim petition for
compensation and seeking enhancement of compensation.

      This MFA, coming on for Admission, this day, this
Court, delivered the following:
                               3



                       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 10.08.2015

passed by the Motor Accident Claims Tribunal,

Bengaluru (SCCH-5) in MVC No.3849/2013.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 11.01.2013 at about 6.30

p.m. the claimant was proceeding on his motorcycle

bearing registration No.KA-04/EW-4536 on West of

Chord road, near National School Junction (signal),

Basaveshwaranagar. At that time, an Eicher bearing

registration No.AP-02/V-5446 came in a rash and

negligent manner and dashed against the vehicle of

the claimant. 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 Nos.2

and 3 appeared through counsel and filed written

statement in which the averments made in the

petition were denied. The age, avocation and income

of the claimant and the medical expenses are denied.

It was pleaded that the petition itself is false and

frivolous in the eye of law. It was further pleaded that

the accident was due to the rash and negligent riding

of the vehicle by the claimant himself. The liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, they

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 Dr.Shivakumar H.S. was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P15. On behalf of the

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R1 to Ex.R6. 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 and also the claimant at 75% and 25%

respectively, as a result of which, the claimant

sustained injuries. The Tribunal further held that the

claimant is entitled to 75% of the total compensation

of Rs.4,00,000/- along with interest @ 8% p.a. and

directed the Insurance Company to deposit the

compensation amount along with interest with liberty

to recover 30% of the award amount from the

insured. Being aggrieved, this appeal has been filed.

6. The learned counsel for the Insurance

Company has raised the following contentions:

Firstly, the Tribunal has framed issue No.1 and

answered issue No.1 in the affirmative holding that

the driver of the tempo is negligent in causing the

accident. The Tribunal has also given a finding that

the offending vehicle was not having permit to attach

a trolley and they have violated the policy condition

and hence, Insurance Company is not liable to pay the

compensation.

Secondly, instead of permitting the insurer to

recover the entire compensation amount from the

insured, the Tribunal has restricted only to the extent

of 30% and the same is erroneous.

Thirdly, in view of the Division Bench decision of

this Court in the case of MS.JOYEETA BOSE AND

OTHERS vs. VENKATESHAN.V AND OTHERS (MFA

5896/2018 and connected matters disposed of

on 24.8.2020), the interest granted by the Tribunal

at the rate of 8% p.a. is on the higher side and the

same has to be reduced to 6% p.a. Hence, he sought

for allowing the appeal.

7. Respondents are served and unrepresented.

8. Heard the learned counsel for the

appellant. Perused the judgment and award.

9. It is not in dispute that the claimant

suffered injuries in the accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

The Tribunal has framed the following issue:

"1) Whether petitioner proves he sustained injuries in road traffic accident that occurred on 11.01.2013, at about 6.30 p.m. near National School Junction, West of Chord road, Basaveshwaranagar, Bengaluru, while the petitioner was rider of the motorcycle bearing registration No.KA- 04/EW-4536, due to rash and negligent act of Eicher Motor/Tempo driver of vehicle bearing registration No.AP-02/V-5446?"

10. The Tribunal has answered issue No.1 in the

affirmative and held that the driver of the offending

vehicle is negligent in causing the accident. The said

vehicle was covered with valid insurance policy. The

Tribunal also given a finding that the offending vehicle

was not having a permit to attach to the trailer.

Hence, they have violated the policy condition. After

giving that finding the Tribunal has held that the

insurer is only entitled to recover 30% of the award

amount. This finding of the Tribunal is perverse and

contrary to the materials available on record. The

Tribunal instead of permitting the insurer to recover

the entire compensation amount with interest for

violating the policy condition has restricted to recover

only 30% of the award amount from the insured.

The same is erroneous. In view of the law laid

down by the Hon'ble Apex Court in the cases of

RANI vs. NATIONAL INSURANCE COMPANY

LTD. reported in (2018) 8 SCC 492 and AMRIT

PAUL SINGH AND ANOTHER vs. TATA AIG

GENERAL INSURANCE COMPANY LIMITED AND

OTHERS reported in (2018) 7 SCC 558, in respect

of third party is concerned, Insurance Company has to

pay the compensation at the first instance with liberty

to recover the same from the owner of the offending

vehicle.

In view of the law laid down by a Division Bench

of this Court in JOYEETA BOSE (supra), the rate of

interest awarded by the Tribunal is reduced from 8%

p.a. to 6% p.a.

In view of the above, the appeal is allowed in

part. The judgment and award passed by the Tribunal

is modified. 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.

At this stage, learned counsel for the appellant

submitted that the claimant has filed an appeal for

enhancement of compensation in MFA No.3286/2016

and the same has been dismissed for non-prosecution

and it has not been recalled. Therefore, he contended

that if that appeal is restored to file, then liberty may

be reserved to him to raise his contentions regarding

quantum of compensation. Hence, the contention in

respect of quantum is left open, only in respect of

liability is concerned, this appeal is considered and

disposed of.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-