Bharath vs N G Prakash
2021 Latest Caselaw 134 Kant

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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

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

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.

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

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.

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.

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.

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/-