The Manager vs Mallesha S M
2021 Latest Caselaw 3784 Kant

                               1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF NOVEMBER 2021

                           BEFORE

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

                 MFA No.261 OF 2018 (MV)

BETWEEN:

The Manager,
Shriram General Ins. Co. Ltd.,
No.302, 3rd Floor,
S-S Corne, No.48,
3rd Floor, Hospital Road,
Bangalore-01.
Now Rep. by
Legal Manager,
Shriram General Ins. Co. Ltd.,
No.5/4, 3rd Floor,
S.V. Arcade,
Belekahalli Main Road,
Opp Bannerghatta road,
Limb Post, Bangalore-76.                   ... Appellant

(By Sri. Pradeep B., Advocate)

AND:

1.     Mallesha S.M.,
       S/o Mallikarjuna,
       Now Aged about 32 years,
       R/at Sulleri Village and Post,
       Channapatna Taluk,
       Ramanagara District.
                               2



2.    Dinesh,
      S/o Eranna H.C.,
      Hutagere Village,
      Hebbaralu Post,
      Athagur Hobli,
      Maddur Taluk,
      Mandya Dist.                         ... Respondents

(By Smt. T.J.Sulsa, Advocate for R1(absent):
R2 served)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:13.11.2017 passed
in MVC No.263/2014 on the file of the Senior Civil Judge &
JMFC, Additional MACT, Channapattana, Ramanagar
District, awarding compensation of Rs.5,68,813/- with
interest at 6% p.a. from the date of petition till the date of
deposit.

      This MFA, coming on for hearing, 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 Insurance Company

being aggrieved by the judgment dated 13.11.2017

passed by the Motor Accident Claims Tribunal,

Channapattana in MVC No.263/2014.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 21.12.2013 at about 12.30

p.m., the claimant was proceeding on his motorcycle

bearing registration No.KA-01/HA-5783 from his

house to Global Village, near Mysuru road from

Nayandanahalli ring road junction to Panthara playa.

At that time, the driver of the heavy goods vehicle

bearing registration No.KA-11/6939 being driven by

its driver at a high speed and in a rash and negligent

manner, dashed to 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.

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 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. 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 Dr.K.P.Raju was examined as

CW-1 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.R2 and C1 to C9. 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.5,68,813/- 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 Insurance

Company has raised the following contentions:

Firstly, as on the date of the accident the vehicle

had no valid permit and the driver of the offending

vehicle was not having valid and effective driving

licence. The police have filed charge sheet against

the driver of the offending vehicle under Section 181

of the Motor Vehicles Act. Even the owner was a

party before the Tribunal and he has been served and

remained unrepresented. The Insurance Company

has taken summons to the driver and owner of the

offending vehicle and it has been served. Therefore,

the Insurance Company has discharged its burden to

prove that the driver of the offending vehicle was not

having valid and effective driving licence and the

vehicle was not having valid permit. The Tribunal

without considering this aspect of the matter has

given a finding that the Insurance Company has failed

to discharge its burden. This finding of the Tribunal is

apparent on the face of the record.

Secondly, the injuries suffered by the claimant

are minor in nature. He has not produced any

documents to show that he has been removed from

service. Since there is no loss of income and since he

has failed to prove that there is loss of income due to

disability, the compensation awarded by the Tribunal

for 'loss of future income due to disability' is

unsustainable.

Thirdly, considering the injuries suffered by the

claimant, the overall compensation awarded by the

Tribunal is on the higher side. Hence, he prays for

allowing the appeal.

7. Respondent No.2 is served and

unrepresented. None appears for respondent No.1.

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 suffered

injuries due to rash and negligent driving of the driver

of the offending vehicle.

Due to the accident the claimant has suffered

fracture of undisplaced medial tibial fracture with

crush syndrome of left knee and leg. He has examined

the doctor as CW-1. He has categorically stated that

the claimant has suffered disability of 57% to lower

limb and 19% to the whole body. Considering the

evidence of the doctor and considering the disability

suffered by the claimant, I am of the opinion that the

Tribunal has rightly assessed the whole body disability

as 10%. It is very clear from the evidence of the

parties that due to the injuries the claimant has

difficulty in carrying out day today work. Considering

the same the Tribunal has rightly awarded

compensation under the head 'loss of future earnings

due to disability'. Considering the evidence of the

parties and considering the injuries and disability

suffered by the claimant, the overall compensation

awarded by the Tribunal is just and reasonable.

Re.liability:

10. The respondent Nos. 1 and 2 have been

served before the Tribunal. The respondent No.1 has

remained ex-parte and respondent No.2 - Insurance

Company has filed detailed statement of objections

and has taken a specific contention that the driver of

the offending vehicle was not having valid and

effective driving licence and also has taken a

contention that there was no valid permit and fitness

certificate. They have also examined an officer of the

Insurance Company as RW-1 who has categorically

stated that they have taken summons to respondent

No.1 who is the owner cum driver. Inspite of service

of summons he has not appeared before the Tribunal

and he has not produced the driving licence and valid

permit. Even before this Court also the owner has not

appeared. The Insurance Company has taken a

specific contention that the owner of the offending

vehicle was not having valid permit and the driver of

the offending vehicle was not having valid and

effective driving licence. Therefore an adverse

inference has to be drawn against the owner of the

offending vehicle that he has violated the policy

conditions. Therefore, Insurance Company is not liable

to pay the compensation. However, 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, AMRIT PAUL

SINGH AND ANOTHER vs. TATA AIG GENERAL

INSURANCE COMPANY LIMITED AND OTHERS

reported in (2018) 7 SCC 558, NATIONAL

INSURANCE CO. LTD. Vs. SWARAN SINGH

reported in (2004) 3 SCC 297 and PAPPU AND

ORS. vs. VINOD KUMAR LAMBA AND ANR.

reported in AIR 2018 SC 592, 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. Accordingly, the Insurance Company is

directed to deposit the compensation amount along

with interest 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.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed-in-part.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-