M/S Iffco-Toki General Insurance ... vs Sri H.R.Manjunath
2021 Latest Caselaw 6362 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17TH DAY OF DECEMBER 2021

                        BEFORE

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

              MFA No.585 OF 2020(MV)
                       C/W
              MFA No.5973 OF 2019(MV)

IN MFA 585/2020
BETWEEN:

SRI H R MANJUNATH
S/O LATE RAMABHADRAIAH
AGED ABOUT 42 YEARS
R/O AROGERE
SIRA TALUK-572137
TUMAKURU DISTRICT.                       ...APPELLANT


(BY SRI.V B SIDDARAMAIAH, ADV.)

AND

1.     THE IFFCO TOKYO GENERAL
       INSURANCE CO LTD
       SRI SHANTHA TOWER
       NO.141, 5TH FLOOR, 3RD MAIN,
       EAST OF NGEF LAYOUT, KASTURI NAGAR
       BENGALURU-560043
       REP. BY ITS MANAGER.

2.     SRI A M VELU MUDALIYAR
       S/O A C MUDALIYANANDA MUDALIYAR
       AGED ABOUT 60 YEARS
       R/O NO.882/1, BALAKRISHNA CLAY PRODUCTS
                           2



      GANDHINAGAR
      KOLAR--563101.             ...RESPONDENTS

(BY SRI.E.I.SANMANTHI, ADV. FOR R1:
    NOTICE TO R2 IS D/W V/OD DTD: 13.09.2021)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 29.03.2019, PASSED
IN MVC NO.73/2016, ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC., AND ADDITIONAL MACT, SIRA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA 5973/2019

BETWEEN:

M/S IFFCO-TOKI GENERAL
INSURANCE CO. LTD.,
SRI SHANTHI TOWERS
NO.141, 5TH FLOOR
3RD MAIN EAST OF NGEF LAYOUT
KASTURINAGAR
BANGALORE 560 043.
REPRESENTED BY ITS
AUTHORIZED SIGNATORY)                   ...APPELLANT


(BY SRI. SANMATHI E I., ADV.)

AND

1.    SRI H.R.MANJUNATH
      S/O LATE RAMBHADRAIAH
      AGED ABOUT 41 YEARS
      R/O AROGERE, SIRA TALUK
      TUMKUR DISTRICT.
                            3



2.    SRI. A.M. VELU MUDALIYAR
      S/O A.C. MUDALIYANDAN MUDALIYAR
      AGED ABOUT 63 YEARS
      R/O 882/1, BALAKRISHNA CLAY PRODUCTS
      GANDHINAGAR, KOLAR.             ...RESPONDENT

(BY SRI.V B SIDDARAMAIAH, ADV. FOR R1:
   R2 SERVED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 29.03.2019 PASSED
IN MVC NO.73/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND J.M.F.C., ADDITIONAL M.A.C.T., SIRA,
AWARDING COMPENSATION OF RS.95,000/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
ITS DEPOSIT.

     THESE MFAs COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

MFA No.585/2020 has been filed by the claimant

and MFA No.5973/2019 has been filed by the

Insurance Company under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as

'the Act', for short) being aggrieved by the judgment

dated 29.03.2019 passed by the Motor Accident

Claims Tribunal, Sira in MVC No.73/2016.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 17.12.2015 at about 10.30

A.M. when the claimant was proceeding on his

motorcycle bearing registration No.KA.06.EC.8182

from Sira to Arogere on Sira-Amarapura road and

when he reached near Melukunte gate, at that time,

the driver of Hanuman Bus bearing registration

No.KA.53.733 was proceeding in front of the above

said motorcycle of the claimant and he suddenly

applied the brake and stopped the Bus on the middle

of the road without giving any signal. 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. It was further pleaded

that the accident was due to the rash and negligent

riding of the vehicle by the claimant himself. The

driver of the offending vehicle did not have valid

driving licence as on the date of the accident. The

liability is subject to terms and conditions of the

policy. 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.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 got exhibited documents

namely Ex.P.1 to Ex.P.9. On behalf of the

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R.1 and Ex.R.2.

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.95,000/- 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 claimant has

contended that due to the accident, the claimant has

sustained fracture of scapula and other injuries. He

was treated as inpatient for a period of 3 days. The

claimant has spent Rs.65,513/- for medical expenses.

Even after discharge from the hospital, he was not in

a position to discharge his regular work. He has

suffered lot of pain during treatment. Considering the

same, the compensation of Rs.95,000/- granted by

the Tribunal is on the lower side.

He further contended that if this Court holds that

the driver of the offending vehicle was not having a

valid and effective driving licence, the insured has

violated the policy condition and if the Insurance

Company is exonerated from the liability, in view of

the law laid down by the Hon'ble Supreme Court in

the case of PAPPU AND ORS. V. VINOD KUMAR

LAMBA AND ANR. reported in AIR 2018 SC 592 and

NATIONAL INSURANCE CO. LTD. VS. SWARAN

SINGH reported in (2004) 3 SCC 297, the Insurance

Company has to pay the compensation to the claimant

at the first instance with liberty to recover the same

from the owner of the offending vehicle. Hence, he

sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has contended that the

claimant has sustained simple injuries and he has not

examined the doctor regarding disability and injuries

suffered by him. There is no loss of income due to the

disability. He was inpatient in the hospital only for a

period of 3 days. Considering the same, the Tribunal

has granted just and reasonable compensation and it

does not call for interference.

He further contended that the Tribunal has given

a wrong finding that there is no case filed against the

driver of the offending vehicle for not having valid and

effective driving licence. In fact, in the charge sheet,

it is clearly mentioned that the driver of the offending

vehicle was not having valid and effective driving

licence. The Insurance Company has also taken a

specific contention before the Tribunal that the driver

of the offending vehicle was not having valid and

effective driving licence. They have examined the

officer of the Company and they have taken summons

to the owner of the offending vehicle but the owner

has not appeared before the Tribunal and he has not

produced any documents or driving licence to show

that the driver of the offending vehicle was having a

valid and effective driving licence. Since the insured

has violated the policy condition, Insurance Company

is not liable to pay any compensation. Since the driver

of the offending vehicle was not holding valid and

effective driving licence, the Insurance Company is

not liable to pay even if liberty is reserved to recover

the same from the owner of the offending vehicle.

Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award and original

records.

9. It is not in dispute that the claimant has

sustained 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 sustained

fracture of scapula and other injuries. He was treated

as inpatient for a period of 3 days. The claimant has

spent Rs.65,513/- for medical expenses. Even after

discharge from the hospital, he was not in a position

to discharge his regular work. He has suffered lot of

pain during treatment. Considering the injuries

suffered by the claimant and Ex.P-7-Discharge

Summary, Ex.P.8-Medical Bills, the claimant is entitled

to compensation of Rs.30,000/- in addition to the

compensation awarded by the Tribunal.

RE: LIABILITY

The Insurance Company has taken a defence in

the written statement that the driver of the offending

vehicle was not holding a valid and effective driving

licence. Insurance Company has examined the officer

of the company and they have taken summons

against the owner of the offending vehicle and notice

has been served but he was unrepresented. The

owner has not produced driving licence to show that

the driver of the offending vehicle was holding a valid

and effective driving licence. The Police has also

registered an FIR and filed a charge sheet after

thorough investigation for the offence punishable

under Section 181 of the Act against the driver of the

offending vehicle on the ground that he was not

holding a valid and effective driving licence. Even in

the appeal filed by the Insurance Company, they have

taken a specific ground that the driver of the offending

vehicle was not holding a valid and effective driving

licence and even after notice was issued by this Court,

the respondent/owner was served and unrepresented.

In view of the above, it is very clear that the

driver of the offending vehicle was not holding a valid

and effective driving licence as on the date of the

accident. Since the insured has violated the policy

condition, the Insurance Company is not liable to pay

the compensation. However, in view of the law laid

down by the Hon'ble Supreme Court in the case of

'PAPPU' and 'SWARAN SINGH', the Insurance

Company is liable to pay compensation to the claimant

at the first instance, with liberty to recover the same

from the owner of the offending vehicle.

10. In the result, the appeals are disposed of.

The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.1,25,000/-.

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 with

liberty to recover the same from the owner of the

offending vehicle.

The amount in deposit shall be transmitted to

the Tribunal.

Sd/-

JUDGE HA/-