The Oriental Insurance Co Ltd vs Sri Dhasharatha V
2022 Latest Caselaw 7585 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 27th DAY OF MAY 2022

                          BEFORE

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

               MFA No.1335 OF 2018 C/W
        MFA Nos.1336 OF 2018, 1337 OF 2018 AND
              MFA NO.1338 OF 2018 (MV)
IN MFA No.1335 OF 2018

BETWEEN:

The Oriental Insurance Co. Ltd.
Regional Office, No.44/45 4th Floor
Leo Shopping Complex
Residency Road
Bangalore - 560 025                           ... Appellant

(By Smt.Harini Shivananda, Advocate)

AND:

1.     Sri.Dhasharatha V.
       S/o T. Varadappa
       Aged about 39 years
       R/at No.59, Nallagutta Halli
       Bangarpet, Kolar - 563 114

2.     Sri. Karunakara
       D/o Srinivasa Gowda
       Owner of TSR Bus
       Thoppanahalli Village
       And post, Bangarpet
       Kolar - 563 114                     ... Respondents

(By Sri.Suresha M. Advocate for R1;
  Notice to R2 served and unrepresented)
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       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 19.08.2017 passed
in MVC No.499/2014 on the file of the Additional Senior
Civil Judge & JMFC & MACT, KGF, awarding compensation
of Rs.7,53,407/- with interest @ 6% p.a., from the date of
petition till realization.

IN MFA No.1336 OF 2018

BETWEEN:

The Oriental Insurance Co. Ltd.
Regional Office, No.44/45 4th Floor
Leo Shopping Complex
Residency Road
Bangalore - 560 025                           ... Appellant

(By Smt.Harini Shivananda, Advocate)

AND:

1.     Sri.Govindaraju
       S/o D.Venkatappa
       Aged about 34 years
       R/at No.36, Nallagutta Halli
       Bangarpet, Kolar - 563 114

2.     Sri. Karunakara
       D/o Srinivasa Gowda
       Owner of TSR Bus
       Thoppanahalli Village
       And post, Bangarpet
       Kolar - 563 114                  ... Respondents

(By Sri.Suresha M. Advocate for R1;
  Notice to R2 served and unrepresented)
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      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 19.08.2017 passed
in MVC No.500/2014 on the file of the Additional senior
civil Judge and JMFC & MACT, KGF, Awarding
Compensation of Rs.62,964/- with interest @ 6% P.A. from
the date of Petition till realization.

IN MFA No. 1337 OF 2018

The Oriental Insurance Co. Ltd.
Regional Office, No.44/45 4th Floor
Leo Shopping Complex
Residency Road
Bangalore - 560 025                         ... Appellant

(By Smt.Harini Shivananda, Advocate)

AND:

1.     Sri. N. Muniswamy
       S/o Nanjundappa
       Aged about 30 years
       R/at No.83, Nallagutta Halli
       Bangarpet, Kolar - 563 114

2.     Sri. Karunakara
       D/o Srinivasa Gowda
       Owner of TSR Bus
       Thoppanahalli Village
       And post, Bangarpet
       Kolar - 563 114                 ... Respondents

(By Sri.Suresha M. Advocate for R1;
  Notice to R2 served and unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 19.08.2017 passed
in MVC No.501/2014 on the file of the Additional senior
civil Judge and JMFC & MACT, KGF, Awarding
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Compensation of Rs.64,303/- with interest @ 6% P.A. from
the date of Petition till realization.

IN MFA No. 1338 OF 2018

The Oriental Insurance Co. Ltd.
Regional Office, No.44/45 4th Floor
Leo Shopping Complex
Residency Road
Bangalore - 560 025                         ... Appellant

(By Smt.Harini Shivananda, Advocate)

AND:

1.     Sri.Y.V.Sathish
       S/o Venkateshgowda
       Aged about 39 years
       R/at No.9, Yalavara
       Kolar - 563 101

2.     Sri. Karunakara
       D/o Srinivasa Gowda
       Owner of TSR Bus
       Thoppanahalli Village
       And post, Bangarpet
       Kolar - 563 114                 ... Respondents

(By Sri.Suresha M. Advocate for R1;
  Notice to R2 served and unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 19.08.2017 passed
in MVC No.502/2014 on the file of the Additional senior
civil Judge and JMFC & MACT, KGF, Awarding
Compensation of Rs.1,06,332/- with interest @ 6% P.A.
from the date of Petition till realization.
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      These Appeals, coming on for admission, this day,
this Court, delivered the following:

                      JUDGMENT

These appeals under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) have been filed by the claimants being

aggrieved by the common judgment dated 19.08.2017

passed by the Motor Accident Claims Tribunal, KGF in

MVC Nos.499, 500, 501 and 502 of 2014.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 10.02.2012 at about 4.30 to

5.00 p.m. the claimants were proceeding in an Ape

Auto bearing registration No.KA-07/A-1372 on the left

side of Kamasamudra road near Ramalingapura bus

stop. At that time, the driver of T.S.R. bus bearing

registration No.KA-22/C-3399 came from opposite

direction in a rash and negligent manner and dashed

against the said auto. As a result of the aforesaid

accident, the claimants sustained grievous injuries and

were hospitalized and the Goods auto was damaged.

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 owner of the auto has spent huge amount

towards repair charges of the auto. 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 No.2

appeared through counsel and filed written statement

in which the averments made in the petitions were

denied. The age, avocation and income of the

claimants, medical expenses and repair charges are

denied. It was pleaded that the petition itself is false

and frivolous in the eye of law. 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 claimants is exorbitant. Hence, he sought for

dismissal of the petitions.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

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 in all the cases and in MVC

No.499/2014 Dr.Ananda was examined as PW-2 and

got exhibited documents namely Ex.P1 to Ex.P33, P1

to P6, P1 to P5 and P1 to P4, respectively. On behalf

of the respondents, neither any witness was examined

nor got exhibited documents. 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.7,53,407/-, Rs.62.964/-,

Rs.64,303/- and Rs.1,06,332/- respectively, along

with interest at the rate of 6% p.a. and directed the

Insurance Company to deposit the compensation

amounts along with interest. Being aggrieved, these

appeals have been filed.

MFA No.1335/2018 (MVC No.499/2014):

6. The learned counsel for the Insurance

Company raised the following contentions:

Firstly, considering the injuries suffered by the

claimant, the disability assessed by the Tribunal is on

the higher side.

Secondly, the injuries suffered by the claimant

are minor in nature, he was inpatient for a period of

only 10 days. The overall compensation awarded by

the Tribunal is on the higher side. Hence, she prays

for allowing the appeal.

7. On the other hand, learned counsel for the

claimant has raised the following contentions:

Firstly, considering the evidence of the doctor

the Tribunal has rightly assessed the whole body

disability at 14%.

Secondly, considering the injuries suffered by

the claimant, the overall compensation awarded by

the Tribunal is just and reasonable. Hence, sought for

dismissal of the appeal.

8. Heard the learned counsel for the parties.

Perused the records.

9. It is not in dispute that the claimant

suffered injuries in the accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

Due to the accident the claimant has suffered

fractures, restricted movements and scar over the

face. He has examined the doctor as PW-2.

Considering the evidence of the doctor and

considering the wound certificate, I am of the opinion

that the whole body disability can be assessed as 8%.

Even though the claimant claims that he was

earning Rs.10,000/- per month, he has not produced

any document to prove the same. Therefore, notional

income has to be assessed as per the guidelines

issued by the Karnataka State Legal Services

Authority. Since the accident has taken place in the

year 2012, the notional income has to be taken at

Rs.7,000/- p.m. The claimant was aged about 35

years at the time of the accident and multiplier

applicable to his age group is '16'. Thus, the claimant

is entitled for compensation of Rs.1,07,520/-

(Rs.7,000*12*16*8%) on account of 'loss of future

income'.

Considering the injuries suffered by the claimant,

wound certificate - Ex.P12 and discharge summary -

Ex.P15, I am of the opinion that the compensation

awarded by the Tribunal under the incidental

expenses, i.e., conveyance, nourishment and

attendant charges at Rs.65,000/- is on the higher

side and the same is reduced to Rs.15,000/-.

Considering the nature of injuries, 'loss of

income during laid-up period' has to be granted for six

months, i.e., Rs.36,000/-.

Considering the evidence of the doctor, the

compensation awarded by the Tribunal under the head

'future medical expenses' is reduced from Rs.50,000/-

to Rs.25,000/-.

Considering the nature of injuries and evidence

of the doctor, the claimant is not entitled to

compensation under the head 'loss of expectancy'.

The compensation awarded by the Tribunal

under other heads is just and reasonable.

10. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 30,000 30,000 Medical expenses 3,40,143 3,40,143 Conveyance, 65,000 15,000 nourishment and attendant charges Loss of income during 3,600 36,000 laid up period Loss of amenities 30,000 30,000 Loss of future income 2,09,664 1,07,520 Future medical expenses 50,000 25,000

Total 7,53,407 583,663

The claimant is entitled to total compensation of

Rs.5,83,663/- as against Rs.7,53,407/- awarded by

the Tribunal.

MFA No.1336/2018 (MVC No.500/2014):

11. The learned counsel for the Insurance

Company raised the following contentions:

Firstly, the claimant was inpatient for only three

days. The compensation awarded by the Tribunal

under the heads of 'conveyance, nourishment and

attendant charges' is on the higher side.

Secondly, the injuries suffered by the claimant

are minor in nature. The overall compensation

awarded by the Tribunal is on the higher side. Hence,

she prays for allowing the appeal.

12. On the other hand, learned counsel for the

claimant has contended that considering the injuries

suffered by the claimant, the overall compensation

awarded by the Tribunal is just and reasonable.

Hence, sought for dismissal of the appeal.

13. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

14. It is not in dispute that the claimant

suffered injuries in the accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

Considering the injuries suffered by the claimant

and the wound certificate, I am of the opinion that the

overall compensation awarded by the Tribunal is just

and reasonable.

MFA No.1337/2018 (MVC No.501/2014):

15. The learned counsel for the Insurance

Company raised the following contentions:

Firstly, the claimant was inpatient for only six

days. The compensation awarded by the Tribunal

under the heads of conveyance, nourishment and

attendant charges is on the higher side.

Secondly, the injuries suffered by the claimant

are minor in nature. The overall compensation

awarded by the Tribunal is on the higher side. Hence,

she prays for allowing the appeal.

16. On the other hand, learned counsel for the

claimant has contended that considering the injuries

suffered by the claimant, the overall compensation

awarded by the Tribunal is just and reasonable.

Hence, sought for dismissal of the appeal.

17. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

18. It is not in dispute that the claimant

suffered injuries in the accident occurred due to rash

and negligent driving of the offending vehicle by its

driver.

Considering the injuries suffered by the claimant

and the wound certificate, I am of the opinion that the

overall compensation awarded by the Tribunal is just

and reasonable.

MFA No.1338/2018 (MVC No.502/2014):

19. The learned counsel for the Insurance

Company has contended that the claimant has

produced only estimation cost for repair of the auto,

he has not examined the author of the document.

Under these circumstances, the compensation

awarded by the Tribunal for 'auto repair expenses' at

Rs.1,01,832/- is on the higher side. Hence, she

prays for allowing the appeal.

20. On the other hand, learned counsel for the

claimant has contended that the claimant has

produced the estimation as per Ex.P3 and 4

photographs and one CD as per Ex.P4, but he has not

examined the author of Ex.P3 and no survey has been

conducted. Hence, sought for dismissal of the appeal.

21. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

22. It is not in dispute that the auto was

damaged in the accident occurred due to rash and

negligent driving of the offending vehicle by its driver.

Considering Exs.P3 and P4 and considering the

evidence of the parties, I am of the opinion that the

compensation awarded by the Tribunal towards 'auto

repair expenses' at Rs.1,01,832/- is to be reduced to

Rs.80,000/- and the compensation awarded towards

'loss of earnings for 15 days' at Rs.4,500/- is retained.

The claimant is entitled to total compensation of

Rs.84,500/- as against Rs.1,06,332/- awarded by the

Tribunal.

Re.liability:

23. The learned counsel appearing for the

Insurance Company has contended that as on the

date of the accident the offending vehicle was not

having fitness certificate, it was expired and it was

not renewed. Hence, insured has violated the policy

conditions and Insurance Company is not liable to pay

the compensation. But the Tribunal has wrongly

fastened the liability on the Insurance Company.

24. On the other hand, learned counsel for the

claimant has raised the following contentions:

Firstly, the Insurance Company has not produced

any document to prove that the offending vehicle was

not having fitness certificate as on the date of the

accident.

Secondly, as on the date of the accident, the

offending vehicle was having valid registration

certificate and it has not been cancelled. Under these

circumstances, Insurance Company is liable to pay the

compensation. In support of his contentions, he relied

on a judgment of a Division Bench of this Court in MFA

No.5993/2015 disposed of on 22.12.2020.

25. Heard the learned counsel for the parties and

perused the judgment and award.

26. Even though the Insurance Company has

taken a defence that the offending vehicle was not

having valid fitness certificate but they have not

proved the same by examining an officer or transport

authority. Even assuming that if there is no fitness

certificate, it is not in dispute that as on the date of

the accident the offending vehicle was having valid

registration certificate and the same has not been

cancelled. A Division Bench of this Court in MFA

No.5993/2015 disposed of on 22.12.2020, under

similar circumstances, has held that the Insurance

Company is liable to pay the compensation. In view

of the above, the contention of the learned counsel for

the Insurance Company that the Insurance Company

is not liable to play the compensation is not

sustainable.

27. Accordingly, appeals are allowed in part.

The judgment and award passed by the Tribunal is

modified.

The Insurance Company is directed to deposit

the compensation amounts of Rs.5,83,663/-,

Rs.62,964/-, Rs.63,303/- and Rs.84,500/-,

respectively, in all the above appeals, 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.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-