Karnataka High Court
Sri R Raghu vs M/S Vinayaka Cars Pvt Ltd on 8 December, 2023
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MFA No. 9123 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 9123 OF 2012 (MV-I)
BETWEEN:
SRI. R. RAGHU
S/O S. RAJU,
AGED ABOUT 30 YEARS,
R/AT NO.334/1,
MANJUNATHA NILAYA,
NEW AGE SCHOOL,
MARATHALLI,
BANGALORE-571 491.
...APPELLANT
(BY SRI. K. T. GURUDEVA PRASAD, ADVOCATE)
AND:
Digitally 1. M/S. VINAYAKA CARS PVT. LTD.,
signed by JAI NO.219/11, BELLARY ROAD,
JYOTHI J
Location:
RAMANA MARISHI ROAD,
HIGH COURT PALACE ARCADE,
OF
KARNATAKA SADASHIVANAGAR,
BANGALORE-560 080.
RERESENTED BY ITS MANAGING DIRECTOR.
2. UNITED INDIA INSURANCE CO. LTD.,
MOTOR DEALER DIVISION,
NO. 143 & 144, 1ST FLOOR,
CEN CHAMBERS, 1ST MAIN ROAD,
SESHADRIPURAM,
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MFA No. 9123 of 2012
BANGALORE-560 020.
REPRESENTED BY ITS
BRANCH MANAGER.
...RESPONDENTS
(BY SRI. B. C. SEETHARAMA RAO FOR R2;
R1 - SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF M.V. ACT AGAINST
THE JUDGMENT AND AWARD DATED 08.02.2012 PASSED IN
M.V.C. NO.5478/2010 ON THE FILE OF THE 22ND ADDITIONAL
SMALL CAUSES JUDGE, COURT OF SMALL CAUSES, MEMBER,
MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.
THIS APPEAL, COMING ON FOR JUDGEMENT, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an Appeal filed by the claimant seeking
enhancement of the compensation, aggrieved by the
award passed in M.V.C.No.5478/2010 dated 08.02.2012
on the file of XXII Additional Small Causes Judge, Court of
Small Causes and Member, Motor Accident Claims
Tribunal, Bangalore. The claim petition was filed seeking
compensation of amount of Rs.10,00,000/- on account of
the injuries sustained by the claimant, whereby the
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Tribunal had awarded compensation of an amount of
Rs.2,11,500/-.
2. The case of the claimant is that on 11.07.2010
at about 1.30 p.m., he was proceeding on a scooter on the
left side of the road. At that time, one car came from
behind and dashed his scooter, due to which he fell down
and sustained grievous injuries. In the accident, he had
sustained two fractures and was hospitalized for
treatment. According to the doctor, he has sustained 15%
disability. It is the case of the claimant that he was
working as Scooter Mechanic and earning Rs.20,000/- per
month.
3. The Insurance Company has filed its written
statement stating that respondent No.1 - M/s. Vinayaka
Cars Private Limited (hereinafter referred to as 'dealer')
has played fraud and he had issued same chassis number,
a cover note to the vehicles i.e., with registration
No. KA-01-TRMB-744 which is offending vehicle and
another vehicle with registration No. KA-01-TRMB-1107. It
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is stated that the accident had taken place on 11.07.2010
and a cheque was issued and sent by respondent
No.1/dealer on 16.07.2010 with a back date of
05.07.2010. It is submitted that after coming to know
about the mischief done by the dealer, they have cancelled
all the cover notes including these two cover notes issued
by him. It is submitted that they have not received any
premium as on the date of the accident, the said cover
note is not in existence and the Insurance Company is not
liable to pay the compensation.
4. The Court below considering the evidence on
record i.e., Exhibits-R1 to R36, has come to the conclusion
that there was a mischief played by the dealer and as
there was no valid cover note as on the date of accident,
the Insurance Company was held not liable to pay the
compensation and it is respondent No.1 who is liable to
pay the compensation.
5. When it comes to the compensation,
considering the injuries sustained by the claimant, the
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Court below had granted an amount of Rs.30,000/- under
the head of pain and suffering, an amount of Rs.95,000/-
towards medical expenses. Considering the income of the
claimant at Rs.5,000/-, towards loss of earning during the
treatment period, an amount of Rs.15,000/- was granted,
an amount of Rs.15,000/- towards conveyance and
nourishment expenses, an amount of Rs.50,000/- towards
disability, an amount of Rs.15,000/- towards future
medical expenses and an amount of Rs.15,000/- towards
loss of amenities and enjoyment of life was granted. All
put together, the compensation of an amount of
Rs.2,35,000/- was granted.
6. Learned counsel appearing for the
appellant/claimant submits that the claimant is a third
party and the cover notes are issued by the Insurance
Company to the dealer. If the dealer has done any
mischief or fraud, the claimant is not concerned with the
same. It is further submitted that only for the purpose of
avoiding the compensation, the Insurance Company has
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come up with such plea. It is also submitted that the
compensation granted by the Court below is not a
reasonable compensation.
7. It is submitted that for two grievous injuries
sustained by the claimant, granting an amount of
Rs.30,000/- is on the lower side. It is submitted that as
per the evidence of the doctor, the claimant has sustained
15% disability, the Court below had not granted any
amount under the head of loss of future income due to
disability. Further, the compensation that is granted by the
Court below on the other heads is also not reasonable.
8. It is further submitted that the Court below had
apportioned the contributory negligence at 10% on the
claimant and 90% on the owner of the vehicle. It is
submitted that without there being any evidence, the
Court had come to such a conclusion, as per the sketch
the claimant was traveling on the extreme side of the road
and a vehicle had come from behind and dashed the
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claimant. The Court below without any basis, has held that
there is contributory negligence on part of the claimant.
9. Learned counsel appearing for respondent No.2
Insurance Company submits that, the Insurance Company
has given a cover note to the dealer. There is no
relationship between insurer and insured, as admittedly
this vehicle belongs to the dealer and when the accident
had taken place just to avoid the payment of
compensation and to make the Insurance Company liable,
they have created a cover note as if it is issued on
05.07.2010. They have filed the documents before the
Court to show that an anti-dated cheque was given to
cover the risk and in fact, the cheque was given on
16.07.2010. Thereafter, they have withdrawn all the cover
notes and also cancelled two cover notes which were
issued by the dealer with due notice. They submitted that
when the Insurance Company has not received any
premium and as on that date, there is no liability for the
Insurance Company. It is submitted that the Court below
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has rightly held that the Insurance Company is not liable
to pay the compensation.
10. The notice is served on the 1st respondent i.e.,
the dealer. No vakalath is filed on behalf of respondent
No.1.
11. Having heard the learned counsel for the
appellant/claimant and the learned counsel for respondent
No.2 - Insurance Company, this Court has perused the
entire material on record.
12. The first issue is with regard to the liability,
where the Court below has held that the Insurance
Company is not liable as a mischief has been played by
the dealer by pressing into service of a cover note for
which a cheque was given on 16.07.2010, much after the
accident had taken place. This Court has perused the
evidence placed by the Insurance Company i.e., Exhibits-
R1 to R36. These documents clearly show the mischief
done by the dealer and the Tribunal had rightly held that
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the Insurance Company is not liable and it is respondent
No.1 - dealer, who is liable to pay the compensation.
13. Then coming to the quantum of compensation
granted, considering the two grievous injuries sustained
by the claimant, under the head of pain and suffering,
this Court is granting an amount of Rs.50,000/-. Under
the head of medical expenses, incidental expenses, loss of
amenities, future medical expenses and disability, the
Tribunal had rightly granted the compensation.
14. Learned counsel for the appellant/claimant
submits that the Court below ought to have granted future
loss of income by applying the multiplier. The Court below
had rightly granted compensation by perusing the
evidence of the claimant that he was working and the
disability has not come against it. When it comes to the
loss of income during the laid up period, the Court had
taken an amount of Rs.5,000/- as income, as this is the
accident of the year 2010. This Court is inclined to take an
amount of Rs.5,500/- towards loss of income during
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the laid up period, it comes to an amount of
Rs.22,000/-.
15. In light of the law laid down by the Hon'ble
Supreme Court in the case of V.MEKALA vs. M.
MALATHI AND ANOTHER1, the claimant is entitled for an
amount of Rs.10,000/- towards legal expenses.
Altogether, the claimant is entitled for compensation of an
amount of Rs.2,57,000/-. Then coming to the
contributory negligence, this Court has perused the award.
The Court below without any basis and without any
reasons, has come to the conclusion that there is
contributory negligence. The evidence on record do not
disclose that there is contributory negligence on the part
of the claimant.
16. The claimant is therefore, entitled to the
compensation under the following heads:
(2014) 11 SCC 178
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Heads Compensation
Awarded
1. Pain and Sufferings : Rs. 50,000/-
2. Medical expenses : Rs. 95,000/-
Loss of income during the
3. : Rs. 22,000/-
laid up period (Rs.5,500x4)
4. Incidental expenses : Rs. 15,000/-
5. Loss of amenities : Rs. 15,000/-
6. Future medical expenses : Rs. 15,000/-
7. Disability : Rs. 50,000/-
7. Legal Expenses : Rs. 10,000/-
TOTAL : Rs. 2,57,000/-
i) Accordingly, the Appeal is allowed-in-part, by
enhancing the compensation amount from an
amount Rs.2,35,000/- to Rs.2,57,000/- which is
payable by respondent No.1 - dealer.
ii) The enhanced amount shall carry interest at 6%
p.a. from the date of petition till the date of
realization.
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iii) The dealer shall deposit the amount within a
period of eight weeks from the date of receipt
of copy of the judgment. On such deposit, the
claimant is entitled to withdraw the entire
amount without furnishing any security.
iv) Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court forthwith
without any delay.
v) The amount in deposit shall be released in
favour of the Insurance Company forthwith.
vi) No costs.
Pending miscellaneous petitions, if any, shall stand
closed.
Sd/-
[
JUDGE
MCR
