Karnataka High Court
Bajaj Allianz General Insurance ... vs Annappa S/O. Hanumanthappa on 18 February, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18 T H DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.103464/2017
C/W M.F.A.No.103465/2017 (MV)
IN MFA No.103 464/2017
BET WEEN
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.,
BY ITS MANAGER,
VIVEKANANDA CORNER,
DESAI CROSS,
BY ITS AU THORIZ IED SIGNATORY.
...APPELLANT
(BY SRI R.R.MANE, ADVOCAT E)
AND
1. ANNAPPA S/O HAN UMANT HAPPA,
AGE: 32 YEARS, WELDING WORK,
R/O ANAJI, TQ: DAVANAGERE,
DIST: DAVANAGER E-57 7001.
2. (RAJESH S/O CHANNAPPA HU L IB UTTI),
SINCE DECEASED BY HIS L.R. MOTHER
SAVITRAMMA W/ O CHANNAPPA HU LIBU TTI,
AGE: MAJOR, OCC: HOUSEHOLD WORK
AND BU SINESS,
R/O KADARAMANDALAG I VILLAGE,
TQ: B YADAGI, DIST: HAVERI-581106.
3. MR.K.FREDIK ANTONY D'SOU JA,
AGE: MAJOR, OCC: BUSINESS,
S/O KAMIL D'SOUJA, H.NO.23,
KAREGU DDA SANSHE, TP-MU DIGERE,
DIST: CHIKKAMANGALOR E-577550.
2
4. SHOB HA W/O RAJESH HU LIBU TTI,
AGE: 46 YEARS, OCC: HOU SEHOLD WORK,
R/O KODIYAL HOS APETE,
TQ: RANEBENNUR-5811 15.
5. VINAYA S/O RAJES H HU LIB UTT I,
AGE: 17 YEARS, OCC: STUDENT,
R/O KODIYAL HOS APETE,
TQ: RANEBENNUR-5811 15.
6. GANASHREE D/O R AJESH HU LIB UTT I,
AGE: 14 YEARS, OCC: STUDENT ,
R/O KODIYAL HOS APETE,
TQ: RANEBU NNU R-581115.
(RESPONDENT NOS.5 AND 6 ARE MINORS
REP.B Y NATU RAL GU ARDIAN MOTHER I.E.
THE RESPOND ENT NO.4 HEREIN)
...RESPONDENTS
(BY SRI M.H.PATIL , ADVOCATE FOR R1;
SRI S.N.B ANAKAR, ADVOCATE FOR R4 TO R6)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 13.06.2 017 PASS ED IN
MVC No.318/ 20 17 ON THE FIL E OF THE ADDL.SENIOR CIVIL
JUDGE AND MEMB ER, ADDL. MOTOR ACCIDENT CLAIMS
TRIB UNAL, RANEBENNU R, AWARDING COMPENSATION OF
`1,44,813/- WIT H INTEREST AT 7% P.A. FROM THE DAT E OF
PET IT ION T ILL ITS REALIZ ATION.
IN MFA No.103 465/2017
BET WEEN
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.,
BY ITS MANAGER, VIVEKANANDA CORNER,
DESAI CROSS,
BY ITS AU THORIZ IED SIGNATORY.
...APPELLANT
(BY SRI R.R.MANE, ADVOCAT E)
AND
1. MANJU NAT H S/O HANUMANT HAPPA,
AGE: 36 YEARS, OCC: CONTRACTOR,
3
R/O ANAJI VILLA GE,
TQ. AND DIST: DAVANAGERE- 577001.
2. (RAJESH S/O CHANNAPPA HU L IB UTTI),
SINCE DECEASED BY HIS L.R. MOTHER
SAVITRAMMA W/ O CHANNAPPA HU LIBU TTI,
AGE: MAJOR, OCC: HOUSEHOLD WORK
AND BU SINESS,
R/O KADARAMANDALAG I VILLAGE,
TQ: B YADAGI, DIST: HAVERI-581106.
3. MR.K.FREDIK ANTONY D'SOU JA,
AGE: MAJOR, OCC: BUSINESS,
S/O KAMIL D'SOUJA, H.NO.23,
KAREGU DDA SANSHE, TP-MU DIGERE,
DIST: CHIKKAMANGALOR E-577550.
4. SHOB HA W/O RAJESH HU LIBU TTI,
AGE: 46 YEARS, OCC: HOU SEHOLD WORK,
R/O KODIYAL HOS APETE,
TQ: RANEBENNUR-5811 15.
5. VINAYA S/O RAJES H HU LIB UTT I,
AGE: 17 YEARS, OCC: STUDENT ,
R/O KODIYAL HOS APETE,
TQ: RANEBENNUR-5811 15.
6. GANASHREE D/O R AJESH HU LIB UTT I,
AGE: 14 YEARS, OCC: STUDENT ,
R/O KODIYAL HOS APETE,
TQ: RANEBU NNU R-581115.
(RESPONDENT NOS.5 AND 6 ARE MINORS
REP.B Y NATU RAL GU ARDIAN MOTHER I.E.
THE RESPOND ENT NO.4 HEREIN)
...RESPONDENTS
(BY SRI M.H.PATIL , ADVOCATE FOR R1;
SRI S.N.B ANAKAR, ADVOCATE FOR R4 TO R6)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 13.06.2 017 PASS ED IN
MVC No.319/ 20 17 ON THE FIL E OF THE ADDL.SENIOR CIVIL
JUDGE AND MEMB ER, ADDL. MOTOR ACCIDENT CLAIMS
TRIB UNAL, RANEBENNU R, AWARDING COMPENSATION OF
`99,610/- WIT H INTEREST AT 7% P.A. FROM THE DATE OF
PET IT ION T ILL ITS REALIZ ATION.
4
THESE A PPEA LS COMING ON FOR ADMISS ION, T HIS
DAY THE COU RT DELIVERED THE FOLLOW ING:
JUDGMENT
These two appeals are filed by the insurer of the
motorcycle bearing registration No.KA-18/Q-2021
challenging the judgment and award dated
13.06.2017 passed by the Court of Addl.Senior Civil
Judge and Addl.M.A.C.T., Ranebennur (hereinafter
referred to as the 'Tribunal', for brevity) in MVC
Nos.318/2007 and 319/2007 questioning the liability
saddled on it to pay the compensation.
2. Though the appeals are listed for
admission, with the consent of the learned counsels
appearing for the parties, the same are taken up for
final disposal. The parties are referred to by their
rankings before the Tribunal for the purpose of
convenience.
3. Brief facts of the case that would be
relevant for the purpose of disposal of these appeals
are:
On 05.04.2007, the claimants in these two cases
were traveling in a motorcycle bearing registration
No.KA-18/Q-2021 as rider and pillion rider
respectively and when their motorcycle reached near
Kummur cross on Kummur-Byadgi road, the offending
car bearing registration No.KA-01/MA-144 came from
Hamsabavi side towards Kaginele in a rash and
negligent manner and dashed against the motorcycle
in which the claimants were traveling and caused the
accident. In the said accident, the claimants were
grievously injured and they were admitted in a
private hospital. It is under these circumstances, two
separate claim petitions have been filed under
Section 166 of the Motor Vehicles Act, 1988 (for
short, the 'Act') and the Tribunal had partly allowed
the claim petitions and awarded compensation of
`1,44,813/- to the claimant in MVC No.318/2007 and
`99,610/- to the claimant in MVC No.319/2007 and
had saddled the liability to pay the compensation on
the insurer of the motorcycle bearing registration
No.KA-18/Q-2021. Being aggrieved by the same, the
Insurer is before this Court in these two appeals.
4. Learned counsel for the appellant/insurer
submits that the claim petitions were not
maintainable as against the owner and insurer of the
motorcycle since there was no cause of action for the
claimants to make a claim as against them. He
submits that though the Tribunal had dismissed the
claim petition as against the owner of the motorcycle,
has proceeded to direct the insurer of the motorcycle
to pay the compensation amount. He submits that the
claim petition has been dismissed even as against
owner of the offending car even though the accident
in question was caused due to the rash and negligent
driving by the driver of the car and charge sheet has
been filed only as against the driver of the car. He
therefore submits that the claim petition was not
maintainable under Section 166 of the Act before the
Tribunal.
5. Per contra, learned counsel appearing for
the claimants at the outset submits that the
claimants may be permitted to convert their claim
petitions as one under Section 163A of the Act and
compensation may be awarded to them under the
said provision of law.
6. I have carefully considered the arguments
addressed on both sides and also perused the
material available on record.
7. As rightly contended by the learned counsel
for the claimants since the charge sheet has been
filed only as against the driver of the offending car
bearing registration No.KA-01/MA-144 and when the
Tribunal has also given a finding that the accident in
question was caused due to rash and negligent
driving of the driver of the offending car, the Tribunal
was not at all justified in entertaining the claim
petition filed by the claimants under Section 166 of
the Act as against the owner and insurer of the
motorcycle bearing registration No.KA-18/Q-2021.
However since the claimants have now submitted
before this Court that their claim petitions may be
considered under Section 163-A of the Act, I am of
the considered view that if the claim petitions filed
by the claimants are considered as one under Section
163-A of the Act and if compensation is awarded to
them under the said provision of law that would meet
the ends of justice.
8. The claimant in MVC No.318/2007 was aged
about 22 years and he had suffered fracture of right
clavicle and fracture of middle 3 r d of left tibia in
addition to other injuries. The doctor who had
examined him had issued a disability certificate
stating that he had suffered overall disability of 45%
to the particular limbs. The Tribunal has taken the
whole body disability at 9%. In my considered view
having regard to the evidence of the doctor and the
nature of injury suffered by the claimant, the
disability to the whole body could be considered at
12% and if the income is taken at `40,000/- per
annum by applying the multiplier of '17', the claimant
would be entitled for a sum of `81,600/- towards loss
of future prospects due to disability. In addition to
the same, the claimant is entitled for a sum of
`5,000/- towards pain and suffering, `15,000/-
towards medical expenses and a further sum of
`10,000/- towards loss of income during laid up
period. Therefore in all, the claimant is entitled for a
total compensation of `1,13,600/- as against
`1,44,813/- awarded by the Tribunal.
9. In MVC No.319/2007, the claimant was
aged about 26 years and he had suffered fracture of
6 t h and 7 t h ribs and also fracture of inferior ramus of
left pubic. The doctor who had treated him had
deposed before the Tribunal that the disability caused
to the claimant as a result of injury to the particular
limb was to the extent of 35%. However the Tribunal
has considered the same at 7%, I am of the
considered view that having regard to the evidence of
the doctor and also the nature of the injuries, the
disability can be safely considered to the whole body
at 10%. The annual income of the claimant is taken
at `40,000/- and if the multiplier of '18' is made
applicable, the claimant would be entitled for a
compensation of `72,000/- towards loss of future
earning due to disability. In addition to the same, the
claimant is entitled for a sum of `5,000/- towards
pain and suffering, `490/- towards medical expenses
and a further sum of `10,000/- towards loss of
income during laid up period. Therefore in all, the
claimant is entitled for a total compensation of
`87,490/- as against `99,610/- awarded by the
Tribunal.
10. The compensation awarded shall carry
interest at 6% per annum from the date of petition
till realization. Accordingly, the following:
ORDER
The Miscellaneous First Appeals are
partly allowed.
The claimants in MFA No.103464/2017
and MFA No.103465/2017 are held entitled
for total compensation of `1,13,600/- and
`87,490/- respectively with interest at 6%
per annum from the date of petition till
realization.
The owner and Insurer of the offending
motorcycle bearing registration No.KA-18/
Q-2021 and the owner of the offending car
bearing registration No.KA-01/MA-144 are
held jointly and severally liable to pay the
compensation amount awarded to the
claimants.
The amount in deposit in these two
appeals is directed to be transferred to the
Tribunal for the purpose of disbursement.
The order passed by the Tribunal
insofar as it relates to disbursement and
deposit etc., remains unaltered.
Sd/-
JUDGE
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