Karnataka High Court
Vinayaka S/O N.Ajjappa vs Ramesh Kalal S/O Subhash Kalal on 7 June, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.8245 OF 2018 (MV)
BETWEEN:
Vinayaka S/o N.Ajjappa,
Age 5 years, Minor Represented
By his natural guardian his father
Ajjappa S/o Late Nagappa,
Aged about 55 years,
R/o Door No.5/131-2, Kalikadevi Road,
Kareshivappana Galli,
Davanagere - 577 001. ... Appellant
(By Sri.M.S.Mathapathi., Advocate for
Sri.R.Shashidhara, Advocate)
AND:
1. Ramesh Kalal S/o Subhash Kalal,
Age 23 years, Rider and Owner of
Hero Passion Pro Bearing
No.KA-17/NT-23808,
R/o Chandramouli Temple,
Hondada Circle, Shivaji Nagar,
Davanagere - 577 001.
2. The Divisional Manager,
The National Insurance Co. Ltd.,
Melagiri Plaza, Dental College,
Opp. MCC B Block,
Davanagere - 577 001. ... Respondents
(By Sri.K.Sridhara, Advocate for R2;
Notice to R1 served but unrepresented)
2
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 08.02.2018 passed
in MVC No.671/2015 on the file of the 3rd Additional Senior
Civil Judge & 7th Additional MACT, Davanagere, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
This MFA, coming on for Hearing, this day, this
Court, delivered the following:
JUDGMENT
This appeal under Section 173(1) of Motor
Vehicles Act, 1988 (hereinafter referred to as 'the
Act') has been filed by the claimant being aggrieved
by the judgment and decree dated 08.02.2018 passed
by MACT, Davanagere in MVC No.671/2015.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 18.04.2015 at about 4.45
p.m. the minor claimant was returning from adjacent
house on Kalikadevi road, Kareshivappanagalli,
Davanatgere. At that time, the rider of the motorcycle
bearing registration No.KA-17/NT-23808 came from
Basavaraja Pete being ridden by its rider at a high
speed and in a rash and negligent manner, dashed to
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.
4. On service of notice, the 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, injury suffered
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 negligence of the claimant himself. 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 guardian of the claimant
was examined as PW-1 got exhibited documents
namely Ex.P1 to Ex.P12. On behalf of the
respondents, one witness was examined as RW-1 and
got exhibited documents namely Ex.R1 and Ex.R2.
The Claims Tribunal, by the impugned judgment, inter
alia, held that the accident took place on account of
rash and negligent riding of the offending vehicle by
its rider, as a result of which, the claimant sustained
injuries. The Tribunal further held that the claimant is
entitled to a compensation of Rs.50,000/- along with
interest at the rate of 8% p.a. and since the rider of
the offending vehicle had no valid driving licence,
directed the owner of the offending vehicle to deposit
the compensation amount along with interest. Being
aggrieved, this appeal has been filed.
6. The learned counsel for the claimant has
raised the following contentions:
Firstly, at the time of the accident the claimant
was a minor aged about 2 years 5 months, he has
suffered head injury and also injury to right leg and
right eye and the global compensation awarded by the
Tribunal is on the lower side.
Secondly, even though the driver of the
offending vehicle was not having valid driving licence,
but in view of the law laid down by the Hon'ble Apex
Court in the case of 'PAPPU AND OTHERS vs.
VINOD KUMAR LAMBA AND ANOTHER' AIR 2018
SC 592 and a Full Bench judgment of this Court in
'NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs.
YALLAVVA AND ANOTHER' ILR 2020 Kar.2239,
the insurance company has to pay the compensation
amount with liberty to recover the same from the
owner of the offending vehicle, the insured. Hence,
he sought for allowing the appeal.
7. On the other hand, the learned counsel for
the Insurance Company has raised following counter
contentions:
Firstly, the injuries suffered by the claimant are
minor in nature, he has not examined the doctor.
Considering the injuries suffered and age of the
claimant, the Tribunal has rightly awarded the global
compensation of Rs.50,000/-.
Secondly, since the insured has violated the
policy condition, the Tribunal has rightly exonerated
the Insurance Company.
Thirdly, 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 8% p.a. is on the higher side. Hence, he
sought for dismissal of the appeal.
8. Heard the learned counsel for the parties
and perused the records.
9. It is not in dispute that the claimant has
sustained injuries in the road traffic accident occurred
due to rash and negligent riding of the offending
vehicle by its rider.
Due to the accident the claimant has suffered
contusion over forehead, abrasion over right leg,
lacerated wound over left hand, abrasion over trunk
on right side and fracture of right femur. He was aged
about 2 years 5 months at the time of the accident.
Considering the same, I am of the opinion that the
overall compensation awarded by the Tribunal has to
be enhanced from Rs.50,000/- to Rs.1,00,000/-.
Re.liability:
10. The Tribunal, after considering the evidence
of the parties has rightly held that the driver of the
offending vehicle was not having valid driving licence.
Since the insured has violated the policy condition
Insurance Company has been rightly exonerated from
payment of compensation. However, in view of the
law laid down by the Hon'ble Apex court in the case of
PAPPU (supra) and a Full Bench decision of this
Court in YALLAVVA (supra), in respect of third party
is concerned, at the first instance the Insurance
Company has to pay the compensation amount with
liberty to recover the same from the owner of the
offending vehicle.
11. In the result, the appeal is allowed in part.
The judgment of the Claims Tribunal is modified.
The claimant is entitled to a total compensation
of Rs.1,00,000/- as against Rs.50,000/- awarded by
the Tribunal.
In view of the law laid down by a Division Bench
of this Court in JOYEETA BOSE (supra) the
enhanced compensation carries interest @ 6% p.a.
The Insurance Company is directed to deposit
the compensation amount along with interest @ 8%
p.a. (interest @ 6% p.a. on the enhanced
compensation) 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.
In view of the order dated 16.12.2021 passed
by this Court, the claimant is not entitled to interest
for the delayed period of 153 days in filing the appeal.
Sd/-
JUDGE
Cm/-
