Karnataka High Court

The Manager vs Baburao @ Babu S/O Manik Jadge And ... on 16 June, 2022

Bench: Rajendra Badamikar

                                1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 16TH DAY OF JUNE 2022

                            BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

                MFA No.200280/2015 (MV)
                          C/w
                  MFA No.200208/2015

In MFA No.200280/2015

BETWEEN:

The Manager,
Bajaj Allianz General Insurance
Company Ltd.,
Through its Manager,
V.A.Kalburagi Mansion,
4th Floor, Opp: Municipal Corporation,
Lamington Road, Hubli.
                                                   .....Appellant
(By Sri Subhash Mallapur, Advocate)

AND:
1.     Baburao @ Babu S/o Manik Jadge,
       Age: 40 years, Occ: Labour & Band master,
       R/o Dakulgi now at H.No.18-6-46,
       Shivnagar, Bidar-585401.
2.    N.Sanjay S/o Shivappa Nakkal,
      Age: Major, Occ: Agriculture & Business,
      R/o Rekulgi, Tq. & Dist: Bidar-585402.
                                             .....Respondents
(By Sri.Santosh Biradar, Advocate for R1;
Notice to R2 served)
                                2



       This MFA is filed under section 173(1) of the Motor
Vehicles Act, praying to call for the records, allow this appeal
and set aside the impugned judgment and award dated
20.11.2014 in MVC No.308/2012 passed by in the Court of the
II Additional MACT & Addl. District Judge, Bidar awarding
compensation of Rs.3,43,153/- insofar as the liability is saddled
upon the appellant Insurance Company; and to reduce the same
in case liability is saddled upon the appellant Insurance
Company.



In MFA No.200208/2015

BETWEEN:

Baburao @ Babu S/o Manik Jadge,
Aged about: 40 years,
Occ: Labour & Band Master,
R/o Dakulgi now at H.No.18-6-46,
Shivnagar, Bidar-585401.
                                                    .....Appellant
(By Sri Santosh Biradar, Advocate)


AND:

1.     N.Sanjay S/o Shivappa Nakkal,
       Age: Major, Occ: Agriculture & Business,
       R/o Rekulgi, Tq. & Dist: Bidar-585401.

2.     The Bajaj Allianz General
       Insurance Co. Ltd., GE Plaza,
       Air Port Road, Pune-411006
       Through its Legal Manager,
       4th floor, Kalburgi Mansion,
       Opp: Municipal Corporation,
       Lamington road, Hubli-580001.
                                              .....Respondents
(By Sri.Sanjay M.Joshi, Advocate for R2;
Notice to R1 dispensed with)
                                3



       This MFA is filed under section 173(1) of the Motor
Vehicles Act, praying to allow the appeal, modify the impugned
judgment and award dated 20.11.2014 passed by the court of II
Addl. MACT and Addl. District Judge, at Bidar, in MVC No.308 of
2012, and enhance the compensation as prayed for.


       These appeals coming on for Hearing, this day, the court
delivered the following:

                        JUDGMENT

These two appeals are filed challenging the

judgment and award dated 20.11.2014 passed in MVC

No.308/2012 by the II Addl. MACT and Addl. District

Judge, Bidar. MFA No.200280/2015 is filed by the

Insurance Company challenging the liability, while

MFA No.200208/2015 is filed by the petitioner seeking

enhancement of compensation

2. As these appeals are arising out of the

same judgment and award passed by the tribunal,

they are heard together and common order is being

passed.

3. For the sake of convenience, parties are

referred with the ranks occupied by them before the

Tribunal.

4. The brief facts leading to the case are that

on 18.03.2012 at about 10.30 a.m., on Nelwad to

Hallikhed-B road, the petitioner was the pillion rider of

the TVS Champ motorcycle bearing registration

No.KA-03/S-708. At that time, the driver of the lorry

bearing registration No.KA-38/4936, drove it in a high

speed, rash and negligent manner and dashed against

the motorcycle resulting in the accident. The

petitioner sustained grievous injuries on his leg, chest

and other parts of the body and compound fracture on

the right femur shaft. He was shifted to Government

Hospital, Bidar for first aid and thereafter he was

admitted in Prayavi Hospital, Bidar as an in-patient

from 21.03.2012 to 26.03.2012. He undergone

surgery and he has suffered complete disability.

Hence, he filed a claim petition seeking compensation

of Rs.10,70,000/-, asserting that respondent No.1 is

the owner and respondent No.2 is the insurer of the

vehicle.

5. The respondent No.1 did not contest the

matter while respondent No.2-Insurance Company

filed objections denying the allegations and assertions

made thereunder. The respondent No.2 denied the

age, occupation and income and further contended

that the driver of the offending was not having valid

and effective driving license and there is breach of

policy conditions. It is contended that the cheque

issued towards issuance of policy was bounced and

policy came to be cancelled and hence there was no

insurance coverage by respondent No.2. Hence,

sought for dismissal of the claim petition.

6. After recording the evidence and

appreciating the oral and documentary evidence, the

tribunal has awarded compensation of Rs.3,43,153/-

with interest @ 6% p.a. to the petitioner by fastening

the liability on respondent Nos.1 and 2 jointly and

severally.

7. The Insurance Company has filed the

appeal in MFA No.200280/2015 on the ground that

there was no coverage of insurance and the policy was

cancelled since the cheque issued was dishonored.

Hence, he would contend that the Insurance Company

is not liable to indemnify the petitioner.

8. Per contra, learned counsel for petitioner

would contend that there is no intimation of

cancellation of policy either to RTO or respondent No.1

and being a third party, the company is liable to pay

compensation. He would further contend that the

disability was taken on lower side and the

compensation was awarded on lower side.

9. Having heard the arguments and perusing

the records, there is no dispute of the fact that the

claimant-petitioner suffered injury i.e. fracture of right

femur shaft in accident dated 18.03.2012 at 10.30

a.m., when he was proceeding as pillion rider on the

motorcycle bearing registration No.KA-03/S-708. It is

also an undisputed fact the driver of the offending

lorry was prosecuted.

10. The main contention of the Insurance

Company is that the cheque issued towards payment

of premium being dishonored and notice being issued

to RTO, the policy is cancelled and the Insurance

Company is not liable. However, there is no evidence

to show that notice has been served on RTO Bidar.

Even RW.1 has admitted this aspect during his cross-

examination. Even there is no material to show that

the Insurance Company has also issued a notice to

respondent No.1 intimating the cancellation of policy

in view of the bouncing of cheque. Under these

circumstances, in view of the decision of the Hon'ble

Supreme Court in the case of United India

Insurance Company Ltd., Vs. Basheer Ahmed &

Others, reported in (2010) ACC 609 and New India

Assurance Company Ltd., Vs. Rula reported in

2000 ACJ 630 (SC), the company cannot absolve its

liability subsequent to cancellation of the policy on the

ground that the cheque through which premium was

paid was dishonored. The Hon'ble Apex Court in the

above cited decisions has clearly held that the

Insurance Company is liable and the said principle is

again reiterated by the Hon'ble Apex Court in the case

of Divisional Manager Oriental Company Ltd., Vs.

Tusar Ranjan Das & Others, reported in 2011 ACJ

1401. Hence, now it is not open for the Insurance

Company to dispute the liability without showing any

evidence regarding intimation being issued to the

owner and RTO regarding cancellation, which is not

forthcoming in the instant case.

11. However, it is evident from the evidence

lead by the Insurance Company that the cheque

issued towards payment of premium is dishonored.

The respondent No.1-owner did not appear and

contested the matter. Under these circumstances, at

the most, Insurance Company is liable to pay

compensation and recover it from the owner under the

principles of pay and recovery.

12. MFA No.200208/2015 is filed by the

petitioner seeking for enhancement. Learned counsel

for the appellant-petitioner has contended that the

compensation awarded under the various head is on

lower side. The tribunal has awarded the

compensation under the various heads is as under;

 Sl.N             Heads               Amount
 o.

1. Injury, pain & sufferings Rs.30,000/-

2. Loss of future amenities Rs.15,000/-

3. Loss of future earnings Rs.2,52,000/-

4. Loss of earnings during Rs.14,000/-

medical treatment

5. Expenses towards Rs.10,000/-

conveyance & nourishment

6. Towards medical expenses Rs.22,153/-

Total Rs.3,43,153/-

13. Though the compensation awarded under

the head of future amenities is on lower side, but it is

also evident that the tribunal has taken the income of

the petitioner @ Rs.7,000/- per month. The accident

has occurred in the year 2012. As per the Lok Adalath

Chart, this Court is consistently taking the notional

income @ Rs.6,500/- per month for the accident

occurred in the year 2012. Hence, the tribunal has

taken the income on higher side while calculating the

loss of income. Hence, the lesser compensation

awarded by the tribunal is already covered by

considering higher monthly income and does not call

for any interference.

14. Learned counsel for the petitioner further

contend that the disability taken was on lower side.

The doctor has given disability to the extent of 50% to

the whole body. Admittedly, he is not a treated doctor

and what is the base for him to assess the disability to

the whole body is not at all forthcoming. Appreciating

these aspects, the tribunal has rightly taken the

disability @ 20% only, which does not call for any

interference. Under these circumstances, the

petitioner has not made out any case for

enhancement. Hence, the appeal in MFA

No.200208/2015 filed by the petitioner does not

survive for consideration.

15. However, the appeal in MFA

No.200280/2015 filed by the Insurance Company,

though does not survive for consideration regarding

liability, but it needs to be allowed in part regarding

pay and recovery.

16. Accordingly, I proceed to pass the

following;

ORDER

(a) The appeal in MFA No.200280/2015 filed by the Insurance Company is allowed in part.

(b) The judgment and award by the tribunal stands confirmed.

(c) However, the appellant/Insurance Company is at liberty to recover the

compensation from respondent No.1 in view of the dishonor of the cheque issued in respect of payment of premium being dishonored.