Sri A. Akash vs Bajaj Allianz Gen.Insu.Co.Ltd
2021 Latest Caselaw 35 Kant

                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY 2021

                           BEFORE

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

                M.F.A.No.11135 OF 2011(MV)
                            C/w.
                 M.F.A.No.484 OF 2012 (MV)

IN MFA 11135/2011
BETWEEN:

Sri. A.Akash,
S/o C.S.Armugam,
Aged about 21 years,
R/at No.1, 5th Cross,
1st Main Road, U.A.S. Layout,
Behind Ganesh Temple,
Sanjayanagar, Bangalore-94.          ... Appellant

(By Sri.Sripad V.Shastri., Advocate)

AND:

1.     Bajaj Allianz Gen. Insu. Co. Ltd.,
       No.105A/107A, C.S.Plaza,
       136, Residence Cross Road,
       Bangalore-25,
       By its Manager.

2.     Mr. G. Aboobakar,
       S/o Abdulla, Major,
       R/at ALFATEH H, No.15-17,
       919/2, 3rd Cross,
       Lower Bendoor,
       Mangalore-575002.
                              2




3.     The Executive Engineer,
       Stores & Workshop division
       Bengalore Mahanagara Palike
       Bangalore.                    ... Respondents

(By Smt. H.R.Renuka, Advocate for R1:
Notice to R2 & R3 are dispensed with
v/o dated:13.11.2013)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:07.07.2011 passed
in MVC No.1838 /2006 on the file of Principal MACT & Chief
Judge, Court of Small Causes, Bangalore partly allowing
the claim petition for compensation and seeking
enhancement of compensation.

IN MFA 484/2012
BETWEEN:

Mr. G. Aboobakar,
Aged about 69 years
S/o Abdulla,
R/at ALFATEH H. No.15-17,
919/2, 3rd Cross,
Lower Bendoor, Mangalore-575 002.          ... Appellant

(By Sri. Giridhar H., Advocate for
 Bopanna & Giri Advocates)

AND:

1.     Sri. A.Akash,
       Aged about 21 years,
       S/o Sri.Armugam,
       R/at No.1, 5th Cross,
       1st Main Road, U.A.S. Layout,
       Behind Ganesh Temple,
       Sanjayanagar, Bangalore-560 094.
                             3




2.   Bajaj Alliance General Insurance
     Company Limited,
     No.1054/107A, C.S.Plaza,
     136, Residence Cross Road,
     Bangalore-25,
     Policy issued by its branch office,
     No.107, Crystal Arc., I Floor,
     Balmatta Road, Mangalore-575001.
     Represented by its
     Branch Manager.

3.   The Executive Engineer,
     Stores & Workshop Division,
     Bangalore Mahangara Palike,
     Bangalore-560 001.
                                             ... Respondents
(By Sri. Shripad V Shastri, Advocate for R1:
Smt. H.R.Renuka, Advocate for R2:
Sri. M.R.Vijay Kumar, Advocate for
Sri. C.T. Parameshwarappa, Advocate for R3(absent))

      This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated: 07.07.2011
passed in MVC No.1838/2006 on the file of Principal MACT,
Chief Judge, Court of Small Causes Bangalore, awarding a
compensation of Rs.76,062/- with interest @ 6% p.a. from
the date of petition till realization.

      These MFAs, coming on for hearing, through video
conference, this day, this Court, delivered the following:

                    JUDGMENT

These two appeals are filed challenging the

judgment and award dated 07.07.2011 passed by the

MACT & Chief Judge, Court of Small Causes at

Bangalore in MVC No.1838/2006. Since the challenge

is to the same judgment, both the appeals are clubbed

together, heard and common judgment is being

passed.

2. The claimant has filed MFA No.11135/2011

seeking enhancement of the compensation and the

owner of the offending vehicle has filed MFA

No.484/2012 challenging the pay and recovery order

passed by the Tribunal.

3. The brief facts of the case are that on

10.01.2006 the claimant was proceeding as a pillion

rider on the motorcycle bearing Registration No.KA-

19/S-9993. When they reached near G.S.F.Circle,

Subramanyanagar, the rider of the motorcycle rode

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

manner dashed against the tanker lorry bearing

Registration No.KA-01/8850 and caused accident. As

a result, he sustained injuries and immediately he was

shifted to the hospital.

3. The claimant filed a petition under Section

166 of the Act on the ground that he was a student of

PUC and because of injuries he was hospitalized and

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 riding of

the offending vehicle by its rider.

4. On service of notice, the respondent Nos.1,

2 and 3 filed separate written statements in which the

averments made in the petition were denied. It was

pleaded by respondent No.1 that the rider of the

motorcycle was not holding a valid and effective

driving licence to drive the said vehicle and the owner

of the vehicle has committed breach of policy

conditions. Issuance of policy was admitted.

It was pleaded by respondent No.2 that the

accident occurred due to rash and negligent driving of

the offending vehicle. It was further pleaded that the

motorcycle is duly insured and the insurance company

is liable to pay the compensation.

It was pleaded by respondent No.3 that the

accident occurred due to the rash and negligent riding

of the rider of the motorcycle and there were two

pillion riders in the motorcycle and there is no

negligence of the part of the driver of the lorry. 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, they sought for

dismissal of the petition.

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.Mali Manjunath as PW-2

and got marked 13 documents as Exs.P1 to P13. On

the other hand, the respondents have examined an

officer of the insurance company as RW-1 and the

owner of the motorcycle as RW-2 and got marked 2

documents as Exs.R1 and R2. After appreciation of

the evidence, the Tribunal awarded compensation of

Rs.76,062/- with interest at 6% per annum and held

that there is negligence on the part of the rider of the

motorcycle and as there were two pillion riders the

owner of the motorcycle has committed breach of

policy conditions, exonerated the insurance company

and directed the owner of the motorcycle to pay the

compensation. Being aggrieved, both these appeals

are filed.

6. The learned counsel for the insured has

contended that the accident occurred due to the rash

and negligent driving of the driver of the tanker lorry.

But the Tribunal has held that there is negligence on

the part of the rider of the motorcycle and the

insurance company was exonerated from the liability

only on the ground that three persons were

proceeding on the motorcycle and since the owner of

the motorcycle has violated the policy conditions,

directed the owner of the motorcycle to pay the

compensation and the same is contrary to the

materials available on record. In support of his

contentions he relied on the judgment of the Hon'ble

Apex Court in the case of LAKSHMICHAND vs.

RELIANCE GENERAL INSURANCE CO. LTD.

reported in 2016 ACJ 551.

7. The learned counsel appearing for the

insurance company has raised the following

contentions:

Firstly, the accident occurred due to the rash and

negligent riding of the rider of the motorcycle and

three persons were traveling in the motorcycle and

they have violated the policy conditions. Since the

insured has violated the policy conditions, the Tribunal

has rightly fastened the liability on the insured.

Secondly, the treated doctor has not been

examined to prove the injuries suffered by the

claimant and the overall compensation granted by the

Tribunal is just and reasonable. Hence, he sought for

dismissal of both the appeals.

8. The learned counsel appearing for the

claimant has contended that at the time of the

accident the claimant was aged about 16 years and he

was a student of PUC. Due to the accident he suffered

head injury and other grievous injuries, the

compensation awarded by the Tribunal is on the lower

side. Hence, he sought for enhancement of

compensation.

9. Heard the learned counsel for the parties.

Perused the original records. Judgment and award

passed by the Tribunal.

10. It is not in dispute that the claimant

sustained injuries in the accident occurred on

10.01.2006. The Tribunal on the basis of the evidence

of the parties and the materials available on record

has rightly held that the accident occurred due to rash

and negligent riding of the rider of the motorcycle, but

the Tribunal exonerated the insurance company only

on the ground that three persons were travelling in

the motorcycle and they have violated the policy

conditions. It is not the finding of the Tribunal that

since there are 3 persons proceeding in the

motorcycle they lost balance and caused the accident.

The Hon'ble Supreme court in the case of

LAKSHMICHAND (supra) has held that in order to

avoid liability, the Insurance Company must not only

establish the defence claimed in the proceeding

concerned, but also establish breach on the part of the

owner of the vehicle and such burden of proof would

rest on the Insurance Company. Just because the

motorcycle was carrying two pillion riders, it will not

amount to negligence unless respondent proves

contrary. In view of the above, the finding of the

Tribunal that the insurance company is not liable to

pay the compensation is unsustainable.

Re.quantum:

11. Due to the accident the claimant suffered the

following injuries:

(1) Concussive head injury and a cut lacerated wound on left ear 3 x 2 and a small cut on chin.

(2) Tenderness over right hand, x-ray showed fracture of base of metacarpal bone.

(3) Abrasion over left heel of right leg.

Even though he has examined the doctor, but the said

doctor is not the doctor who treated him. The

Tribunal after considering the evidence of the parties

and taking into consideration the materials available

on record has rightly granted just and reasonable

compensation.

12. Accordingly, both the appeals are disposed

of. The insurance company is directed to deposit the

entire compensation amount along with an interest @

6% per annum, from the date of filing of the claim

petition till the date of realization, within a period of

four weeks from the date of receipt of a copy of this

order. The amount so deposited shall be released to

the claimant, after verifying his identity.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

The amount in deposit before this Court shall be

transmitted to the Tribunal, forthwith.

Sd/-

JUDGE

Cm/-