The Oriental Insurance Co.Ltd vs Sri. S Raghunath S/O Madhava Rao
2022 Latest Caselaw 1846 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU,


   DATED THIS THE 07TH DAY OF FEBRUARY, 2022


                     BEFORE

   THE HON'BLE MR.JUSTICE P.KRISHNA BHAT

           MFA NO. 5641 OF 2010 C/W

           MFA NO 5642 OF 2010 C/W

             MFA NO 6169 OF 2010



IN MFA NO 5641 OF 2010

BETWEEN:

1 .THE ORIENTAL INSURANCE CO.LTD.,
DO-VII NO SHANKAR HOUSE
R M V EXTENSION,
MEKHRI CIRCLE
BANGALORE
THROUGH ITS BANGALORE REGIONAL OFFICE
NO. 44/45, RESIDENCY ROAD
BANGALORE -25,
REPRESENTED BY ITS DEPUTY MANAGER.

                                      ...APPELLANT

(By Sri : S V HEGDE MULKHAND, ADV.)

AND:

1 . SRI. S RAGHUNATH,
S/O MADHAVA RAO
AGED ABOUT 56 YEARS,
R/O NO.84/A, 9TH MAIN
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SHAKAMBARINAGAR,
JP NAGAR 1ST STAGE,
BANGALORE -560078.

2 . NINGAPPA
S/O NINGEGOWDA
MAJOR,
R/O NO. 7, HAROHALLI GRAMA,
MAGADI ROAD,
VISHWANIDUM POST,
BANGALORE.

                                    ... RESPONDENTS

(By Sri. : D.S.SRIDHAR, ADV., FOR C/R1,
R2 - SERVICE HELD SUFFICINET)


     THIS MFA IS    FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
09.02.2010 PASSED IN MVC NO.1083/2009 ON THE
FILE OF THE MEMBER, MACT, COURT OF SMALL
CAUSES, BANGALORE, AWARDING A COMPENSATION
OF Rs.80,000/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL DEPOSIT IN COURT.


IN MFA NO 5642 OF 2010

BETWEEN

THE ORIENTAL INSURANCE CO.LTD.,
DO-VII NO SHANKAR HOUSE
R M V EXTENSION, MEKHRI CIRCLE
BANGALORE
THROUGH ITS BANGALORE REGIONAL OFFICE
NO.44/45, RESIDENCY ROAD
BANGALORE -25,
REPRESENTED BY ITS DEPUTY MANAGER

                                      ...APPELLANT
(By Sri: S V HEGDE MULKHAND, ADV.)
                           3




AND

1 . SRI K G ASHOK, S/O K V GANESH
AGED ABOUT 56 YEARS,
R/O NO. 17 BAZAR STREET,
AUDUGODI MAIN ROAD,
AUDUGODI,
BANGALORE -560030.

2 . NINGAPPA,
S/O NINGEGOWDA
MAJOR,
R/O NO. 7. HAROHALLI GRAMA,
MAGADI ROAD, VISHWANIDUM POST,
BANGALORE.

                                      ... RESPONDENTS
(By Sri: D.S.SRIDHAR, ADV., FOR R1,
R2 SERVICE HELD SUFFICIENT)

      THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE COMMON JUDGMENT AND AWARD DATED
9.2.2010 PASSED IN MVC NO.1084/2009 ON THE FILE
OF VIII ADDITIONAL JUDGE, MEMBER, MACT-V, COURT
OF SMALL CAUSES, BANGALORE, AWARDING A
COMPENSATION OF RS.15,000/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

IN MFA NO 6169 OF 2010

BETWEEN

RAGHUNATHA S
S/O MADHAVA RAO
AGED ABOUT 56 YEARS
R/AT NO. 84/A, 9TH MAIN
SHAKAMBARIANGAR.
J P NAGAR, 1ST STAGE
BANGALORE-560 078
                                       ...APPELLANT
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(By Sri.: D S SRIDHAR, ADV.)

AND


1. THE ORIENTAL INSURANCE CO. LTD
DO.VII, SHANKAR HOUSE
RMV EXTENSION,
MEKHRI CIRCLE
BANGALORE-560080.
BY ITS MANAGER

2 . NINGAPPA
S/O NINGEGOWDA
NO.7, HAROHALLI GRAMA
MAGADI ROAD
VISHWANIDUM POST
BANGALORE.

                                ...RESPONDENTS

(By Sri : S V HEGDE MULKHAND, ADV., FOR R1
R2 -NOTICE DISPENSED WITH)

      THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST    THE   JUDGMENT      AND   AWARD   DATED
09.02.2010 PASSED IN MVC NO.1083/09 ON THE FILE
OF THE MEMBER MACT-V, COURT OF SMALL CAUSES,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.



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

MFA No.5641/2010 and MFA No.5642/2010 are

the appeals at the instance of the Insurance Company

calling in question its liability to pay compensation

awarded in MVC Nos.1083/2009, 1084/2009. MFA

No.6169/2010 is filed by the claimant - Raghunatha

seeking enhancement of compensation awarded in MVC

No.1083/2009 by common Judgment and award dated

09-02-2010 by the learned VIII Additional Judge, Court

of Small Causes, Member, Motor Accident Claims

Tribunal, Bengaluru City.

2. The claim petition was filed with the

averments that on 05-02-2009 at about 12.30 p.m., the

claimant - Raghunatha was proceeding as pillion rider

on a motorcycle and the claimant - K.G.Ashok was

driving the Goods Auto near Maruthi Mandir, M.C.Road,

at that time a Goods Carriage Canter bearing

Registration No.KA-02-D-9292 came in a rash and

negligent manner and dashed against the Goods Auto

and the two-wheeler and on account of the same, both

the claimants suffered injuries. Before the learned

Claims Tribunal, respondent No.2, the owner of the

offending Canter Goods Vehicle remained exparte. The

Insurance Company contested the proceedings by filing

written statement denying the material averments

made in the claim petitions. It has contended that the

driver of the offending vehicle was not having valid and

effective driving licence.

3. During trial, the claimants examined

themselves as PW.1 and PW.2 and one Medical Expert

was examined as PW.3. Exs.P-1 to P-18 were marked.

The respondents did not examine any witness. Ex.R-1

the policy of Insurance and Ex.R-2, the Driving Licence

Extract were produced and marked.

4. After hearing the learned counsel on both

sides and perusing the records, the learned Tribunal

allowed the claim petitions in-part and awarded

compensation of Rs.80,000/- in MVC No.1083/2009

and Rs.15,000/- in MVC No.1084/2009 with interest

thereon at 6% per annum from the date of the petition

till the date of payment.

5. The only contention advanced on behalf of

the Insurance Company in support of two appeals is

that the driver of the offending/insured Canter Goods

vehicle was not having an effective and valid driving

licence to drive the same(Ex.R-2) and therefore there is

violation of the policy condition and hence the Insurance

Company is not liable to pay the compensation awarded

in the two claim petitions and accordingly the direction

in the award to the said extent is liable to be set aside

and the appeals are liable to be allowed.

6. Learned counsel for the respondent-

claimants per contra, contended that Ex.R-2 is the

Driving Licence Extract of the driver of the offending

vehicle and it authorised him to drive the Heavy

Passenger Vehicle, LMV(Transport) and it was in

currency at the time of the accident and therefore in

view of the decision of the Hon'ble Supreme Court in

the case of MUKUND DEWANGAN vs. ORIENTAL

INSURANCE COMPANY LTD., reported in AIR 2017

SC 3668, he was having valid and effective licence to

drive the offending vehicle.

7. In support of MFA No.6169/2010 filed on

behalf of the appellant - Raghunatha, the learned

counsel for the appellant contended that the award of

compensation made by the learned Tribunal is on the

lower side and it is required to be enhanced and the

appeal is required to be allowed.

8. I have given my anxious consideration to

the submissions made on both sides and I have

carefully perused the records.

9. It is the contention of the learned counsel

appearing for the Insurance Company that the driver of

the offending Canter Goods vehicle was not having valid

and effective driving licence and therefore there being

violation of the policy condition, the Insurance Company

is not liable to pay the compensation. Ex.R-2 is the

Driving Licence Extract of the driver of the offending

Canter Goods vehicle. It shows that at the time of the

accident, he was having driving licence which authorised

him to drive a Heavy Passenger Vehicle and

LMV(Transport) vehicle. RW.1 who was examined

before the learned Tribunal (an official of the Insurance

Company) has admitted that the unladen weight of the

offending vehicle is 4,080 Kgs. In view of the decision

in MUKUND DEWANGAN's case(supra) rendered by

the Hon'ble Supreme Court, since the driver of the

offending vehicle was having driving licence which

authorised him to drive HPV and LMV(Transport), it

cannot be said that he was not having valid and

effective driving licence to drive the offending vehicle

and accordingly the contention of the learned counsel

for the Insurance Company advanced in this behalf is

rejected.

10. In so far as the enhancement of

compensation for the claimant - appellant Raghunatha

(claimant in MVC No.1083/2009) is concerned, he is

stated to be a Accounts Officer working in Defence

Department. Ex.P-9 is the wound certificate and Ex.P-

10 is the discharge summary. Ex.P-9 shows that he has

suffered fracture of left humerus and he was inpatient in

the hospital for 3 days. The learned Tribunal upon

considering the documentary evidence and the evidence

of the claimant has awarded Rs.15,000/- under the

head of pain and suffering. The said amount awarded is

on the lower side and he is entitled to be awarded

Rs.40,000/- under the said head. Under the head of

medical expenses, the learned Tribunal has awarded

Rs.49,000/- which is as per the bills produced and

therefore the same is liable to be maintained. Under the

head conveyance charges, attendants expenses and

nourishment and food, the learned Tribunal has

awarded Rs.3,000/- which is on the lower side and

therefore a sum of Rs.5,000/- is awarded under the said

head.

11. On account of the injuries suffered, the

claimant-appellant has established that he could not

attend to work and he had to take leave or 29 days.

The learned Tribunal has awarded only Rs.3,000/- for

loss of income during the laid up period. Since he has

lost the leave to his credit for a period of one month he

is required to be awarded one month's salary towards

loss of income for the laid up period. He has produced

the pay slip and based on the pay slip Ex.P-13 the

learned Tribunal has observed that his monthly salary

was Rs.31,494/-. Therefore, instead of Rs.3,000/-

awarded by the learned Tribunal towards loss of income

during the laid up period, a sum of Rs.31,494/-(his

monthly salary) is awarded under the said head.

12. Since the claimant is a Defence Department

employee and he continues to be in the said

employment, no compensation need be awarded under

the head loss of future income as rightly held by the

learned Tribunal and accordingly the said finding is

maintained. Under the head loss of amenities, the

learned Tribunal has awarded Rs.10,000/- which is on

the lower side and therefore, I award a sum of

Rs.20,000/- under the said head.

13. Thus, the claimant - appellant is entitled for

total compensation of Rs.1,45,494/- which is as under:

As awarded As awarded by the Heads by this Court Tribunal (in Rs.) (in Rs.) Pain and suffering 15,000.00 40,000.00 Medical expenses 49,000.00 49,000.00 Loss of Income 3,000.00 31,494.00 during laid up period Food, nourishment & 3,000.00 5,000.00 attendant's charges Loss of amenities 10,000.00 20,000.00 Total 80,000.00 1,45,494.00

The Tribunal has awarded a sum of Rs.80,000/-.

The enhanced compensation is Rs.65,494/-. On the

said enhanced compensation, the claimant is entitled to

be awarded interest @ 6% p.a. from the date of petition

till the date of payment.

The Insurance Company shall deposit the

enhanced compensation awarded by this judgment with

interest within eight weeks from the date of receipt of

the certified copy of this judgment.

MFA Nos.5641/2010 and 5642/2010 are

dismissed.

MFA No.6169/2010 is allowed in-part.

The amount in-deposit shall be transmitted to the

learned MACT forthwith along with the records.

Sd/-

JUDGE

rsk/-