Karnataka High Court
Sri Veerendra vs Sri Roshan Shetty on 14 December, 2023
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MFA No. 741 of 2017
C/W MFA No. 6332 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 741 OF 2017 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6332 OF 2017 (MV-I)
IN M.F.A NO. 741 OF 2017
BETWEEN:
M/S. NATIONAL INSURANCE COMPANY LIMITED,
BRANCH OFFICE,
1ST FLOOR, SHANKAR BUILDING,
MOSQUE ROAD, UDUPI.
NOW REP. BY ITS REGIONAL OFFICE,
NO. 144, SHUBHARAM COMPLEX,
M.G.ROAD
REP. BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SRI LAKSHMI NARASAPPA, ADVOCATE FOR
Digitally signed SRI A M VENKATESH, ADVOCATE)
by T S
NAGARATHNA
AND:
Location: High
Court of
Karnataka 1 . VEERENDRA,
S/O. THIMMAPPA SHEREGAR,
AGED ABOUT 28 YEARS,
R/O. DAPPEDAR HOUSE,
MEPU, KOTESHWARA VILLAGE,
KUNDAPURA TALUK.
2 . ROHAN SHETTY,
S/O CHANDRASHEKAR SHETTY,
AGED ABOUT 29 YEARS,
R/O SHIVASHAKTHI VADDARSE,
-2-
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MFA No. 741 of 2017
C/W MFA No. 6332 of 2017
BANNADI,
UDUPI TALUK.
...RESPONDENTS
(BY SRI NAGARAJA HEDGE, ADVOCATE FOR R2;
R1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 18.08.2016 PASSED IN MVC
NO.727/2011 ON THE FILE OF THE ADDITIONAL DISTRICT
JUDGE, MEMBER, ADDITIONAL MACT, UDUPI, (SITTING AT
KUNDAPURA), KUNDAPURA, AWARDING COMPENSATION OF
Rs.93,000/- WITH INTEREST @ 8% PA.. FROM THE DATE OF
PETITION TILL REALIZATION.
IN M.F.A NO. 6332 OF 2017
BETWEEN:
SRI VEERENDRA,
S/O. THIMMAPPA SHEREGAR,
AGED ABOUT 28 YEARS,
R/O. DAPPEDAR HOUSE,
MEPU,
KOTESHWARA VILLAGE,
KUNDAPURA TALUK-576 201
UDUPI DISTRICT.
...APPELLANT
(BY SRI ROHITH GOWDA, ADVOCATE)
AND:
1 . SRI ROSHAN SHETTY,
S/O CHANDRASHEKAR SHETTY,
AGED ABOUT 29 YEARS,
R/O SHIVASHAKTHI,
VADDARSE, BANNADI,
UDUPI DISTRICT-576 101.
2 . THE NATIONAL INSURANCE CO. LTD.,
BRANCH OFFICE,
1ST FLOOR, SHANKAR BUILDING,
-3-
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MFA No. 741 of 2017
C/W MFA No. 6332 of 2017
MOSQUE ROAD,
UDUPI-576 101
REP BY ITS BRANCH OFFICER
...RESPONDENTS
(BY SRI NAGARAJA HEGDE, ADVOCATE FOR R1;
SRI LAKSHMI NARASAPPA FOR SRI A.M VENKATESH,
ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 18.08.2016 PASSED IN MVC
NO.727/2011 ON THE FILE OF THE ADDITIONAL DISTRICT
JUDGE AND MEMBER ADDITIONAL MACT, UDUPI (SITTING AT
KUNDAPURA) KUNDAPURA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT KALABURAGI
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals by the Insurance Company and by
the petitioner are directed against the judgment and
award dated 18-08-2016 passed in MVC No.727/2011 by
the learned Additional District Judge and Member,
Additional MACT, Udupi (Sitting at Kundapura),
Kundapura.
2. It is the case of the petitioner before the Tribunal
that, on 27.02.2011 at about 15.15 p.m. when he was
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proceeding on the mud road of Koteshwara Halady, Near
Kageri, the rider of offending motor cycle bearing Chasis
No. ME 121 C05113 2028399 came from Koteshwara side
towards Halady in a rash and negligent manner and
dashed against him. Due to which, petitioner sustained
injuries all over the body and he was shifted to the
hospital. It was further contended that on account of the
injuries, the petitioner is unable to carry on his avocation
and spent huge amount towards treatment, conveyance,
attendant and other incidental expenses and also suffered
loss of income during treatment period and he was unable
to carry on his avocation as he was doing prior to the
accident. Further it was contended that offending vehicle
was owned by Respondent No.1 and insured with
respondent No.2 and as such, they are jointly and
severally liable to pay the compensation. Therefore,
prayed to award compensation of Rs.5,80,000/- with
interest at the rate of 12% per annum.
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3. On issuance of notice, respondent Nos.1 and 2
have appeared through their respective counsels.
Respondent No.1 has filed written statement denying the
entire petition averments more particularly with regard to
the date, time, month, year and place of accident and
manner of the accident and also with regard to the age,
occupation, income, involvement of the vehicle, injuries
sustained by the injured, expenses incurred towards
treatment and medical bills and present physical condition
and has specifically contended that liability of the
respondent No.2 is subject to valid DL held by the driver of
the vehicle, FC and RC of the vehicle. Hence he is not
liable to pay any compensation to the petitioner and
prayed to dismiss the petition.
4. Respondent No.2-Insurance Company filed its
written statement denying the petition averments and
contending that, offending vehicle was ridden by rider
Roshan Shetty who was having only Learner's licence to
ride the two wheeler and I.M.V Act required that when the
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Learner's licence holder rides two wheeler, one pillion rider
should be along with him who should have valid and
effective driving licence to ride particular class of vehicle.
There is gross violation of policy conditions as the vehicle
was not ridden by a person who was holding valid and
effective driving licence refers to driving with particular
class of vehicle at the time of accident and therefore, it is
not liable to pay compensation and prays to dismiss the
petition.
5. On the basis of the above pleadings, the Tribunal
framed appropriate issues for its consideration and
petitioner examined himself as PW1 and marked 13
documents as Exs.P1 to P3. Two witnesses were examined
on behalf of the respondents as RWs 1 and 2 and Exs.R1
to R16 were marked in evidence.
6. The Tribunal after hearing the learned counsel for
both the sides and considering the oral and documentary
evidence available on record, has awarded the
compensation of Rs.93,000/- together with interest at 8%
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p.a. from the date of petition till realization excluding
interest on future maintenance awarded and directed the
Insurance Company to deposit the same.
7. The Tribunal has awarded the compensation as
under:
Pain and suffering Rs.30,000/-
Loss of earning during the period of Rs.15,000/-
treatment
Towards medical expenses Rs.13,000/-
Towards loss of future maintenance Rs.20,000/-
Towards diet, nourishment charges and Rs.15,000/-
conveyance
Total Rs.93,000/-
8. Being aggrieved by the said judgment and award,
the both the Insurance Company and the petitioner have
approached this Court in MFA No.741/2017 and MFA
No.6332/2017 respectively seeking appropriate reliefs.
9. On issuance of notice, the respective parties have
appeared through their counsels in both the appeals.
10. On admitting the appeal, the Tribunal records
have been secured and heard the arguments by both the
sides.
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11. The learned counsel Sri Lakshminarasappa for
Sri A.M. Venkatesh, appearing for the appellant-Insurance
Company submits that the petitioner is a pedestrian and
the respondent No.1 Rohan Shetty happens to be the
owner of the vehicle. He submits that respondent No.1
after having purchased the vehicle, was not having a valid
driving licence, but he was possessing a learner's licence
and therefore, it was incumbent upon him to have the
pillion rider who has a valid driving licence at the time of
the accident and the rider was riding the same at the
instructions of the pillion rider. It is submitted that the
entire police papers disclose that the father of the
respondent No.1 though claims to be the pillion rider
having valid driving licence, do not show his presence at
the time of the accident. It is contended that the entire
investigation papers do not show the presence of such
pillion rider and therefore, the Tribunal has erred in
holding that the respondent No.1 was permitted to ride the
motor cycle with a Learner's Licence. He contends that
the Tribunal has not appreciated the evidence in a proper
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manner and even the evidence of the father of the
respondent No.1 is not satisfactory in this regard. It is
contended that the Central Motor Vehicles Rules,
particularly, Rule 3(1)(b) read with proviso lays down that
"the rider who is having a learner's licence should drive
the same with the pillion rider who has a valid driving
licence." Therefore, the Tribunal had initially erred in
holding the respondent-Insurance Company is liable to
pay the compensation. It is contended that even after the
review petition is filed, the Tribunal accepted the fact that
the rider was not having a valid driving licence, but it
erroneously, came to the conclusion that the Insurance
Company should pay the compensation and then should
recover the same from the respondent No.1. Therefore, he
contends that the impugned judgment and award passed
by the Tribunal is erroneous and the same is liable to be
set aside.
12. Per contra, learned counsel appearing for the
petitioner contended that the decision in the case of
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National Insurance Company Limited Vs. Swaran
Singh1 clearly lays down that when the owner of the
vehicle has offered an explanation, it is between the
owner of the vehicle and the insurer to settle their interse
dispute and the petitioner is entitled to recover the
compensation from any one of the tortfeaser. He contends
that insurance policy was in force at the time of the
accident and therefore, no fault can be found with the
impugned judgment and award passed by the Tribunal.
Further, he contends that the Tribunal has awarded a
meager compensation to the petitioner and therefore,
there is a need for reassessment of the compensation to
be awarded to the petitioner.
13. Having heard the arguments by both the sides,
the first point that arise for consideration is, Whether the
Tribunal is justified in fastening the liability on the
respondent No.2 Insurance Company, initially and giving
liberty to it to recover the same from the owner of the
offending vehicle?
2004 (3) SCC 297
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14. It is to be noted that there was an accident on
27-3-2011 at about 3.15 p.m. involving the motor cycle
bearing Chasis No.ME 121 CO.5113 2028399 is not in
dispute. The Insurance Company contend that the
respondent No.1 who was the rider of the motor cycle was
holding only a Learner's Licence and he should have driven
the vehicle with 'L' Board on front as well as on back. No
such material is available as per the investigation report
and the IMV report. It is contended that as per Rule
3(1)(b) read with proviso of Central Motor Vehicles Act,
makes it very clear that the rider of the motor cycle should
have a person with a valid driving licence by his side. This
requirement of law is alleged to have not been fulfilled by
the respondent No.1.
15. One Chandrashekhar Shetty, the father of
respondent No.1 Roshan Shetty has been examined as
RW2 before the Tribunal. In his evidence, he states that on
27-2-2011, respondent No.1 was riding the motor cycle
and he was the pillion rider and he had a valid driving
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licence. He has produced the Learners' Licence of
respondent No.1 at Ex.R14 and his own driving licence at
Ex.R15. He states that he was the pillion rider. In his
cross- examination, it is elicited that he was a Lecturer in a
College and there are certain elicitations as to whether he
had applied for leave on that day or not. Obviously, the
accident had occurred at 3.15 p.m. and it is not known
whether it was working hours of the College. No such
material is available on record to show that it was the
working hours and that RW.2 was very much present in
his College at that time. Therefore, it appears that the
dispute between respondent No.1- owner and respondent
No.2- Insurance Company is to be decided in the
Appropriate Forum.
16. The cross-examination of RW2 also shows that
respondent No.1- Roshan Shetty had filed a claim petition
to the Insurance Company as per Ex.R9 and the same was
rejected by the Insurance Company on the ground that
respondent No.1 was not having a valid driving licence at
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that time and he was not having a person with valid driving
licence as his pillion rider. The claim for damages to the
vehicle was rejected solely on the ground that there was
no such person with a valid driving licence by his side. It is
also pertinent to note that respondent No.1 had not
disclosed before the Insurance Company in his claim
petition that at the relevant date and time, RW2 was the
pillion rider and he had a valid driving licence.
17. The police papers show that either the
complaint/FIR or subsequent statements by PW.1 or any
of the other eye witnesses do not show that RW2 was very
much present as the pillion rider on the vehicle. This aspect
is also admitted by PW1 in his cross- examination.
18. However, it is relevant to note that the pleadings
of the petitioner as well as his affidavit evidence before the
Tribunal show that there was a pillion rider. He states that
the motor cycle which was driven by respondent No.1 with
RW.2 as the pillion rider came and dashed against the
petitioner. Therefore, when there is a specific pleading by
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the petitioner, he had to establish the same. This
contention of the petitioner is admitted by respondent
No.1. Under these circumstances, the ratio laid down by
the Apex Court in the case of Pappu Vs. Vinod Kumar
Lamba and another2 is aptly applicable. In the said
decision, the Apex Court has relied on its earlier decision in
the case of National Insurance Company Limited Vs.
Swaran Singh referred supra and it was held that, "the
burden would shift to the Insurance Company when the
owner of the vehicle appear before the Tribunal and say
that he was having a valid driving licence or was permitted
under law to ride the vehicle".
19. In the case on hand, respondent No.1 has
contended that he was having a valid driving licence and
RW.2 was a pillion rider. Not only that, respondent No.1
has examined his father RW2-Chandrashekhar shetty.
Obviously, Chandrashekhar Shetty states that he was the
pillion rider and that respondent No.1 was authorized to
2018 SCC 208
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drive the motor cycle to the Learner's licence. Therefore,
burden shifts to respondent No.1- Insurance Company to
show that the terms and conditions of the policy including
the Rule 3 of the Central Motor Vehicles Rules is violated.
20. The official of respondent No.2 is examined as
RW1 and he says that he came to know that respondent
No.1 alone was riding the motor cycle. Obviously, the fact
that RW.2 was in his College at a particular time has not
been logically proved by respondent No.2-Insurance
Company. Under these circumstances, the ratio laid down
in the case of Pappu Vs. Vinod Kumar Lamba and another,
supra is squarely applicable to the case on hand.
21. Further, the judgment of the Apex Court in the
case of Oriental Insurance Company Limited Vs.
Nanjappan and others3 also lays down that "the
insurer is liable to pay the quantum of the
compensation fixed by the Tribunal and later recover
the same from the insured and for such purpose of
AIR 2004 SC 1630
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recovery, it is not necessary that a separate suit has to
be filed. The award itself can be enforced by filing an
Execution Petition".
22. The judgment in the case of National Insurance
Company Limited Vs. Challa Upendra Rao and others4
also lays down that "the Insurance Company is liable to be
satisfy the award and then it is at liberty to recover the
same if found that the terms and conditions of the
insurance policy were violated".
23. In view of the above circumstances, when
respondent No.1 has contended that he was permitted to
ride the motor cycle as per the Rules, the burden is on the
respondent No.2-Insurance Company. Under theses
circumstances, the petitioner who is a third party cannot
be put to hardship and in view of the policy issued by
respondent No.2, it is liable to satisfy the claim of the
petitioner. Hence, the point raised is answered accordingly.
AIR 2004 SC 4882
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24. The second point raised is regarding the quantum
of compensation. The petitioner had suffered head injury
with undisclosed fracture of the occipital bone, grazed
abrasion over the right knee and the face. It appears that
after the admission of the petitioner in the hospital, there
was no disability or complications on account of head
injury. The Tribunal has awarded compensation of
Rs.93,000/- as mentioned supra.
25. The Tribunal has awarded a sum of Rs.20,000/-
towards loss of future maintenance and such head appears
to be nothing but an invention by the Tribunal. There
cannot be loss of future maintenance. However,
considering the nature of the injuries suffered by the
petitioner, who was aged 28 years, it is just and proper to
award a sum of Rs.40,000/- under the head of 'loss of
amenities in life'.
26. I do not find any reason to make enhancement in
respect of compensation awarded under the head of 'pain
and suffering', 'loss of income during the treatment period'
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'medical expenses' and towards 'diet and nourishment
charges and conveyance'. However, considering the period
of inpatient treatment, which was from 27-2-2011 to
3-3-2011, it would be just and proper to award a sum of
Rs.5,000/- under the head of 'attendant charges'. Thus,
there shall be an enhancement of Rs.25,000/-.
27. For the aforesaid reasons, the point raised is
answered accordingly. Hence, the following:
ORDER
(i) The appeal filed by the Insurance
Company in MFA No.741/2017 is hereby
dismissed.
(ii) The appeal filed by the petitioner in
MFA No.6332/2017 is allowed in part. In addition
to the compensation of Rs.93,000/- awarded by
the Tribunal, the petitioner is entitled for a sum
of Rs.25,000/- together with interest at 6% p.a.
from the date of petition till its realization.
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(iii) The Insurance Company is directed to
deposit the compensation amount within six
weeks from the date of receipt of the copy of this
order.
(iv) The Insurance company is at liberty to
recover the entire compensation amount
awarded by the Tribunal as well as by this Court
along with the accrued interest at 6% p.a. from
respondent No.1 by executing the award passed
by the Tribunal.
(v) The amount in deposit in MFA
No.741/2017 shall be transmitted to the
concerned Tribunal forthwith.
Sd/-
JUDGE
tsn*
