The Manager vs Appanna @ Happanna
2022 Latest Caselaw 10460 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 7TH DAY OF JULY 2022

                         BEFORE

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

               MFA No.2422 OF 2019(MV)
                         C/W
               MFA No.2423 OF 2019(MV)

IN MFA No.2422/2019
BETWEEN:

The Manager,
Reliance GIC Ltd.,
Maganoor Basappa Commercial
Complex, P.B.Road,
CHitradurga Town,
Now rep. by
The Manager,
Reliance General Insurance Co. Ltd.,
No.28, Centenary Buidling,
East Wing, Near City Bank,
5th Floor, M.G.Road,
Bangalore-560 001.                        ... Appellant

(By Sri.Pradeep B., Advocate)

AND:

1.     Appanna @ Happanna,
       S/o Chandrappa @ Ramachanrappa,
       Aged about 32 years,
       R/o Sujimalleswara Nagara,
       Challakere Town,
       Chitradurga District-578265.
                             2



2.     Palguna Naika,
       S/o Chandra Naika,
       Aged about 29 years,
       R/o Ramjihatty Village,
       Challakere Taluk-587075.              ... Respondents

(By Sri.Vijay kumar S.C., Advocate for R1:
Notice to R2 is served but unrepresented)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 05.01.2018
passed in MVC No.126/2017 on the file of the Senior Civil
Judge and MACT, Challakere, awarding compensation of
Rs. 1,18,200/- with interest at 9% p.a. from the date of
petition till date of deposit.

IN MFA No.2423/2019
BETWEEN:

The Manager,
Reliance GIC Ltd.,
Maganoor Basappa Commercial
Complex, P.B.Road,
CHitradurga Town,
Now rep. by
The Manager,
Reliance General Insurance Co. Ltd.,
No.28, Centenary Buidling,
East Wing, Near City Bank,
5th Floor, M.G.Road,
Bangalore-560 001.                              ... Appellant

(By Sri.Pradeep B., Advocate)

AND:

1.     Chandrappa @ Ramachanrappa,
       S/o Chowdappa,
       Aged about 55 years,
                               3



     R/o Sujimalleswara Nagara,
     Challakere Town,
     Chitradurga District-578265.

2.   Palguna Naika,
     S/o Chandra Naika,
     Aged about 29 years,
     R/o Ramjihatty Village,
     Challakere Taluk-587075.                  ... Respondents

(By Sri.Vijay kumar S.C., Advocate for R1:
Notice to R2 is dispensed with)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 05.01.2018
passed in MVC No.131/2017 on the file of the Senior Civil
Judge and MACT, Challakere, awarding compensation of
Rs. 88,800/- with interest at 9% p.a. from the date of
petition till date of deposit.

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

                    JUDGMENT

These appeals are filed by the Insurance

Company under Section 173(1) of the Motor Vehicles

Act, (for short, 'the Act') being aggrieved by the

judgment and award dated 05.01.2018 passed by the

Senior Civil Judge and MACT, Challakere in MVC

Nos.126/2017 and 131/2017. Since the challenge is

to the same judgment, both the appeals are clubbed

together, heard and common judgment is being

passed.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 09.02.2016 at about 6.45

p.m. the claimants were proceeding in a motorcycle

bearing registration No.KA-25/Y-9871 from Varavu

village towards Challakere to reach their house. At

that time, an auto rickshaw bearing registration

No.KA-16/C-4326 being driven by its driver at a high

speed and in a rash and negligent manner, came from

Challakere town and dashed to the vehicle of the

claimants. As a result of the aforesaid accident, the

claimants sustained grievous injuries and were

hospitalized.

3. The claimants filed petitions under Section

166 of the Act seeking compensation. It was pleaded

that they 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 Nos.1

and 2 appeared through counsel and filed separate

written statements in which the averments made in

the petition were denied. The age, avocation and

income of the claimants and the medical expenses are

denied. It was pleaded that the petitions itself are

false and frivolous in the eye of law. 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 claimants themselves

were examined as PW-1 and PW-2, Dr.Dinesh S.P. as

PW-3 and Dr.Venkatashivareddy was examined as

CW-1 and got exhibited documents namely Ex.P1 to

Ex.P80. On behalf of the respondents, two witnesses

were examined as RW-1 and RW-2 and got exhibited

documents namely Ex.R1 to Ex.R3. 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 claimants are

entitled to compensation of Rs.1,18,200/- and

Rs.88,800/- along with interest @ 9% p.a. and

directed the Insurance Company to deposit the

compensation amount along with interest. Being

aggrieved, these appeals have been filed.

6. Sri B.Pradeep, the learned counsel for the

Insurance Company has raised the following

contentions:

Firstly, as on the date of the accident the

offending vehicle was not having valid permit to ply

the vehicle within 10 kms. from Challakere town. The

accident occurred on 09.02.2016, the permit has been

issued from 10.02.2016 to 09.02.2021. It is very clear

from Ex.R2 that as on the date of the accident there

was no permit to ply the vehicle. Since the insured

has violated the policy condition Insurance Company

is not liable to pay the compensation.

Secondly, the Tribunal has given a finding that

the permit has effect from 08.02.2016. This finding is

contrary to the materials available on record and

contrary to the evidence given by RW-1 - official from

Regional Transport Office, Chitradurga.

Thirdly, considering the injuries suffered by the

claimants and considering the evidence of the parties,

the overall compensation awarded by the Tribunal is

on the higher side.

Fourthly, in view of the law laid down by a

Division Bench of this Court in the case of

MS.JOYEETA BOSE AND OTHERS vs.

VENKATESHAN.V AND OTHERS (MFA 5896/2018

and connected matters disposed of on

24.8.2020), the rate of interest awarded by the

Tribunal at 9% p.a. is on the higher side. Hence, he

sought for allowing of the appeals.

7. On the other hand, Sri S.C.Vijaya Kumar,

learned counsel appearing for the claimants has raised

the following contentions:

Firstly, even assuming that the offending vehicle

was not having a valid permit, in respect of third

parties is concerned, the Insurance Company has to

pay the compensation with liberty to recover the same

from the owner of the offending vehicle. In support of

his contentions, he has relied on the judgments of the

RANI vs. NATIONAL INSURANCE COMPANY

LTD. reported in (2018) 8 SCC 492 and AMRIT

PAUL SINGH AND ANOTHER vs. TATA AIG

GENERAL INSURANCE COMPANY LIMITED AND

OTHERS reported in (2018) 7 SCC 558.

Secondly, considering the evidence of the doctor

and considering the wound certificate, the overall

compensation awarded by the Tribunal is just and

reasonable. Hence, he sought for dismissal of the

appeals.

8. The owner of the offending vehicle is served

and unrepresented.

9. Heard the learned counsel for the parties

and perused the judgment and award and the original

records.

10. It is not in dispute that the claimants have

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

11. As per Ex.R2 - permit issued by the Regional

Transport Authority, Chitradurga, it is valid from

10.02.2016 to 09.02.2021. The accident occurred on

09.02.2016. As per Ex.P2 there was no permit as on

the date of the accident, the offending vehicle was not

having any permit and there was no route permit.

There is reference in Ex.R2 to that effect and that has

been clarified by respondent No.1 - J.Vishwanath, an

official from the Regional Transport Office,

Chitradurga. He has categorically stated that on

09.02.2016 there was no valid permit for the said

vehicle. In his cross-examination he has agreed that

as on 08.02.2016 the RC has been changed in the

name of the owner of the offending vehicle. As per

Ex.R2, the route permit is valid from 10.02.2016.

Therefore, the finding given by the Tribunal that as on

the date of the accident route permit was in existence

is contrary to the materials available on record and

the same is perverse. It is very clear from the

evidence of the parties and Exs. R1 and R2 that as on

the date of the accident the offending vehicle was not

having valid route permit. A Division Bench of this

Court in MFA No.200139/2018 disposed of on

07.10.2020, considering the judgment of the Hon'ble

Apex Court has held that if the offending vehicle did

not have a permit but in violation of the restricted

zone of the permit, it was taken beyond its operative

limits at the time of the accident, the principle of pay

and recover should be applied. Even the Hon'ble Apex

Court in the case of AMRIT PAUL SINGH (supra)

has held that even if there is violation of route permit

or offending vehicle was not having a route permit,

the Insurance Company has to pay the compensation

with liberty to recover the same from the owner of the

offending vehicle.

Re.quantum:

12. The Tribunal after considering the evidence

of the doctor and considering the wound certificate

and discharge summary has awarded just and

reasonable compensation.

Re.interest:

13. In view of the law laid down by a Division

Bench of this Court in JOYEETA BOSE (supra) the

rate of interest awarded by the Tribunal at 9% p.a. is

scalled down to 6% p.a.

14. Accordingly, the appeals are allowed in part.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. 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.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-