The Manager vs Bheemanna
2022 Latest Caselaw 10604 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF JULY 2022

                          BEFORE

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

                MFA No.5493 OF 2019(MV)
                          C/W
                MFA No.3245 OF 2022(MV)

IN MFA 5493/2019
BETWEEN:

The Manager,
IFFCO-TOKIO GIC Ltd.,
Branch Office, MBAV Mansion,
1st Floor, above UCO Bank,
General Kariyappa Road,
3rd Cross, M.G.Road,
Tumakuru City,

Now Rep. by
The Manager,
IFFCO-TOKIO GIC LTD.,
Customer Service Center,
Sri. Shanthi Towers, 5th Floor,
3rd Main NGEF Layout,
Kasthurinagar, Bengaluru-43.             ... Appellant

(By Sri. Pradeep B., Advocate)

AND:

1.     Bheemanna,
       S/o Doddagujjarappa,
       Aged about 64 years,
       R/at Gangayyanna Palya Village,
       Thalekoppa Post,
                               2



       Chelur Hobli, Gubbi Taluk,
       Tumakuru District-560728.

2.     Nagaraju G.B.,
       S/o Bheemanna,
       Aged about 37 years,
       R/o Gangayyaana Palya Village,
       Thalekoppa post,
       Chelur Hobli,
       Hubbu Taluk,
       Tumkur District-560720.          ... Respondents

(By Sri.Mushtaq Ahmed, 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:29.01.2019 passed
in MVC No.237/2017 on the file of the Senior Civil Judge
and Addl. MACT-17, at Gubbi, awarding compensation of
Rs.95,800/- with interest @ 9% p.a. from the date of
petition till realization.

IN MFA 3245/2022
BETWEEN:

Bheemanna,
Aged about 65 years,
S/o Doddagujjarappa,
R/at Gangayyanna Palya Village,
Thalekoppa Post,
Chelur Hobli, Gubbi Taluk,
Tumakuru District-560728.                   ... Appellant

(By Sri. Mushtaq Ahmed, Advocate)

AND:

1.     Nagaraju G.B.,
       Aged about 40 years,
                             3



     S/o Bheemanna,
     R/o Gangayyaana Palya Village,
     Thalekoppa post,
     Chelur Hobli,
     Hubbu Taluk,
     Tumkur District-572122.

2.   The Manager,
     IFFCO TOKIO GENERAL INSURANCE
     Co. LTD.,
     Branch Office, MBAV Mansion,
     1st Floor, above UCO Bank,
     General Kariyappa Road,
     3rd Cross, M.G.Road,
     Tumakuru City-572122,
     Rep. by its Manager.         ...Respondents

(By Sri. Pradeep B., Advocate for R2:
Notice to R1 is dispensed with
V/o dated: 11.07.2022)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:29.01.2019 passed
in MVC No.237/2017 on the file of the Senior Civil Judge
and Addl. MACT-17, at Gubbi, partly allowing the claim
petition for compensation and seeking enhancement of
compensation.

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

                     JUDGMENT

MFA No.5493/2019 is filed by the Insurance

Company whereas MFA No.3245/2022 is filed by the

claimant under Section 173(1) of the Motor Vehicles

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

judgment and award dated 29.01.2019 passed by the

Senior Civil Judge & Member, Addl. MACT - 17 in MVC

No.237/2017. 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 appeal

briefly stated are that on 17.12.2015 at about 6.30

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

bearing registration No.KA-06/EQ-4973 as a pillion

rider on Chelur - Sira road to go to Chelur for

treatment. When they reached near

Malamachanakundte gate, Chelur Hobli, Gubbi Taluk,

at that time, the rider of the motorcycle rode the

same at a high speed and in a rash and negligent

manner and at the same time 3 dogs came across the

road and he was unable to control the vehicle and

skidded on the road. 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 riding of the offending vehicle by

its rider.

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

2 appeared through counsel and respondent No.2 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

there is contributory negligence on the part of the

claimant. It was further pleaded that the driver of the

offending vehicle did not have valid driving licence as

on the date of the accident. It was further pleaded

that 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.

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.G.B.Chandan was examined

as PW-2 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.R4. 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.95,800/- along with interest @

9% p.a. and directed the Insurance Company to

deposit the compensation amount along with interest.

Being aggrieved, this appeal has been filed.

6. Sri B.Pradeep, learned counsel appearing for

the Insurance Company has raised the following

contentions:

Firstly, the claimant himself was riding the

motorcycle, skidded and fell down. Since it is a self

fall, to make a false claim, claimant has claimed that

his son, i.e., respondent No.1 was riding the

motorcycle and he was proceeding as a pillion rider.

This is a story created by the claimant to make

Insurance Company to pay the compensation.

Secondly, even as per the MLC extract - Ex.P12,

the complaint has been lodged after 8 months. After

the accident, there is a delay in lodging the complaint.

The Tribunal has not considered this aspect of the

matter.

Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal is just and reasonable compensation.

      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 the appeal filed by the Insurance

Company.

7. On the other hand, Sri Mushtaq Ahmed,

learned counsel for the claimant has raised the

following contentions:

Firstly, immediately after the accident the

hospital authorities have intimated to Chelur police

and the police have taken the statement of the

claimant, the claimant was under the impression that

the police have registered FIR. After 8 months, the

claimant came to know that police have not registered

the FIR, he has filed the complaint. He has also filed

PCR NO.91/2016 before the JMFC, Gubbi. Therefore,

the delay has occurred.

Secondly, due to the accident the claimant has

suffered grievous injuries, he has examined the doctor

and the doctor has assessed the whole body disability

as 15%. He has suffered lot of pain during treatment

and he has to suffer the disability and unhappiness

throughout his life. Considering the same, the overall

compensation granted by the Tribunal is on the lower

side. Hence, he sought for allowing the appeal filed

by the claimant.

8. Heard the learned counsel for the appellant

and perused the judgment and award and the original

records.

9. The case of the claimant is that on

17.12.2015 at about 6.30 p.m., the claimant was

proceeding on a Dream Nio Honda motorcycle bearing

registration No.KA-06/EQ-4973 as a pillion rider along

with the respondent No.1 on Chelur - Sira road to go

to Chelur. When they reached near

Malamachanakundte gate, Chelur Hobli, Gubbi Taluk,

at that time respondent No.1 rode the motorcycle at a

high speed and in a rash and negligent manner and at

the same time 3 dogs came across the road and he

could not control the vehicle and vehicle skidded on

the road. As a result, the claimant sustained injuries

and was hospitalized.

10. Immediately after the accident the

respondent No.1 has taken the claimant to the

hospital with the help of the public on the same day.

As per MLC extract - Ex.P12 it has been written as

self fall from bike when dog came in his way at 6.30

p.m. In the wound certificate it is also mentioned that

respondent No.1 has brought the claimant to the

hospital. As per the complaint - Ex.P2, it is specifically

stated that immediately after the accident Chelur

police have taken the statement of the claimant and

the claimant was under the impression that the police

have lodged the complaint and registered the FIR.

After 8 months, when the claimant visited the police

station and enquired the police, he came to know that

police have not registered the FIR. Therefore, he has

lodged the complaint on 27.07.2016. Inspite of that,

the police have not filed the FIR and the claimant has

filed PCR No.91/2016 before the JMFC, Gubbi on

29.07.2016 as per Ex.P9. In the meantime, the police

have registered FIR as per Ex.P1 on 15.08.2016.

Therefore, it is very clear from the above records that

there is no delay in lodging the complaint. Since the

police have not registered the FIR, the claimant has to

give a fresh complaint in 2017 and as per IMV report

- Ex.P5 the offending vehicle is also damaged.

Considering the evidence of the parties and the

materials available on record, the Tribunal has rightly

answered issue No.1 in the affirmative.

Re.quantum:

11. Considering the evidence of the doctor and

considering the wound certificate - EX.P4 and Medical

bills EX.P11, discharge summary Ex.P13, I am of the

opinion that the overall compensation awarded by the

Tribunal is just and reasonable.

Re.interest:

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

Bench of this Court in the case of JOYEETA BOSE

(supra), the rate of interest awarded by the Tribunal

is reduced from 9% p.a. to 6% p.a.

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.

Accordingly, both the appeals are disposed of.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-