Karnataka High Court

Ms.Mrudula Chalil vs Bajaj Allianz General Insurance ... on 5 January, 2021

Author: H T Prasad

                                1



     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

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.

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

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

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'.

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.

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




      (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. 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

Insurance Company cannot escape from the liability

and directed the insurance company to pay the