Karnataka High Court
Sri.Chetan K L vs Raju on 13 February, 2023
Bench: H.P.Sandesh
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MFA No. 3549 of 2016
C/W MFA No. 1295 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO.3549 OF 2016(MV-I)
C/W.
MISCELLANEOUS FIRST APPEAL NO.1295 OF 2017(MV-I)
IN MFA NO.3549 OF 2016:
BETWEEN:
1. THE CLAIM MANAGER
ROYAL SUNDRAM ALLIANCE
INSURANCE COMPANY LIMITED,
RAGHAVENDRA COMPLEX,
OPP: HINDUSTAN AND
GRANITES, WILSON GARDEN,
BANGALORE-560 027.
BY
ROYAL SUNDARAM ALLIANCE COMPANY LTD.,
Digitally signed by SUBRAMANIAM BUILDING, II FLOOR NO.1,
SHARANYA T CLUB HOUSE ROAD, ANNASALAI,
Location: HIGH CHENNAI-600 002.
COURT OF
KARNATAKA BY ITS MANAGER.
...APPELLANT
(BY SRI. O MAHESH., ADVOCATE [THROUGH VC])
AND:
1. CHETAN K.L.
AGED ABOUT 23 YEARS,
S/O LEELAKRISNA K.S.,
R/AT NO.26, 8TH CROSS,
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MFA No. 3549 of 2016
C/W MFA No. 1295 of 2017
MOOKAMBIKA NAGAR,
HOSKEREHALLI
BANASHANKARI 3RD STAGE,
BANGALORE-560 085.
2. RAJU, MAJOR,
S/O KUNNE GOWDA,
NO.299-1, MALLASANDRA,
HESARAGHATTA MAIN ROAD,
T.DASARAHALLI,
BANGALORE-560 057.
...RESPONDENTS
(BY SRI. D.S.SRIDHAR., ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH
VIDE ORDER DATED 19.10.2022)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.02.2016 PASSED IN MVC
NO.3117/14 ON THE FILE OF THE 19TH ADDITIONAL SMALL
CAUSE JUDGE & MACT, BENGALURU, AWARDING
COMPENSATION OF RS.11,74,400/- WITH INTEREST AT 6%
P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN MFA NO.1295 OF 2017:
BETWEEN:
1. SRI.CHETAN K.L.,
S/O LEELAKRISHNA K.S.
AGED BOUT 23 YEARS
NO.26, 8TH CROSS
MOOKAMBIKA NAGAR
HOSKEREHALLI
BANASHANASRI 3RD STAGE
BANGALURU-560 085.
...APPELLANT
(BY SRI. D.S.SRIDHAR, ADVOCATE)
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MFA No. 3549 of 2016
C/W MFA No. 1295 of 2017
AND:
1. RAJU
S/O KUNNE GOWDA
NO.299-1, MALLSANDRA
HESARAGHATTA MAIN ROAD
T. DASARAHALLI
BANGALURU-560 057.
2. ROYAL SUNDARAM ALLIANCE
INSURANCE CO. LTD.,
RAGHAVENDRA COMPLEX
OPP. HINDUSTAN AND GRANITES
WILSON GARDEN
BANGALURU-560 027
REP. BY ITS MANAGER.
...RESPONDENTS
(BY SRI. O.MAHESH, ADVOCATE FOR R2 [THROUGH VC];
NOTICE TO R1 IS DISPENSED WITH
VIDE ORDER DATED 23.11.2017)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.02.2016 PASSED IN MVC
NO.3117/14 ON THE FILE OF THE 19TH ADDITIONAL SMALL
CAUSE JUDGE & MACT, BENGLAURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR FURTHER ARGUMENTS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 3549 of 2016
C/W MFA No. 1295 of 2017
JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondents.
These two appeals are filed by the Insurance Company as
well as the claimant challenging the judgment and award dated
25.02.2016 passed in M.V.C.No.3117/2014 on the file of the
Motor Accident Claims Tribunal, Bengaluru ('the Tribunal' for
short) questioning the liability and quantum of compensation.
2. The parties are referred to as per their original
rankings before the Tribunal to avoid confusion and for the
convenience of the Court.
3. The factual matrix of the case of the claimant
before the Tribunal is that, on 03.03.2014 at about 9.00 a.m.,
when he was proceeding on his motorcycle, the offending i.e.,
the driver of the tipper lorry came with high speed in a rash
and negligent manner and dashed against him. As a result, he
fell down and sustained injuries. Immediately, he was shifted
to Lakshmi Multi Speciality Hospital, wherein he took treatment
as inpatient from 03.03.2014 to 06.03.2014 and thereafter, he
was shifted to Victoria Hospital, wherein he took treatment as
MFA No. 3549 of 2016
C/W MFA No. 1295 of 2017
inpatient from 07.03.2014 to 17.03.2014. Later, he was
shifted to plastic surgery department, Victoria Hospital, wherein
he took treatment as an inpatient from 17.03.2014 to
18.06.2014. He was also admitted to Sadguna Hospital,
wherein he took treatment as an inpatient from 09.08.2014 to
27.10.2014, in all for a period of 147 days.
4. The claimant, in order to substantiate his claim,
examined himself as P.W.1, the Doctors as P.Ws.2 and 5, the
Medical Record Keeper of Lakshmi Multi Speciality Hospital as
P.W.3 and the Superintendent of RTO office, Nelamangala as
P.W.4 and got marked the documents as Exs.P1 to P33. On the
other hand, the Insurance Company examined one witness as
R.W.1 and got marked the documents as Exs.R1 and R2.
5. The Tribunal, after considering both oral and
documentary evidence placed on record, allowed the claim
petition and granted compensation of Rs.11,74,400/- with
interest at 6% per annum. Being aggrieved by the judgment
and award, the Insurance Company in the appeal in
M.F.A.No.3549/2016 would contend that, as on the date of the
accident, the driver was not having valid driving license to drive
the tipper lorry and the Tribunal committed an error in coming
MFA No. 3549 of 2016
C/W MFA No. 1295 of 2017
to the conclusion that fee was paid for renewal of the license
prior to the expiry of driving license i.e., on 26.02.2014 and
merely because the RTO authorities not issued renewed license,
it does not mean that he was not having driving license.
Hence, fastened the liability on the Insurance Company. It is
also contended that the compensation awarded is on the higher
side and exorbitant compensation is awarded and committed an
error in coming to the conclusion that it is only a benevolent
piece of legislation and the very approach of the Tribunal is
erroneous.
6. Learned counsel appearing for the respondent-
claimant in the appeal in M.F.A.No.1295/2017 would
vehemently contend that compensation awarded on all the
heads is very meager and the claimant was inpatient for a
period of 147 days. It is also contended that the compensation
awarded on the head of pain and suffering and other heads are
meager and though the Doctor assessed the disability at 60%,
the Tribunal has taken only 20% disability. It is further
contended that the income was taken only at Rs.6,000/- per
month and notional income would be Rs.8,500/- per month.
Hence, it requires interference.
MFA No. 3549 of 2016
C/W MFA No. 1295 of 2017
7. Having heard the respective counsel and also on
perusal of the material available on record, the points that
would arise for consideration of this Court are:
(1) Whether the Tribunal committed an error in
fastening the liability on the Insurance
Company, even though there was no valid
and effective driving license?
(2) Whether the Tribunal committed an error in
not awarding just and reasonable
compensation?
(3) What order?
Point Nos.(1) and (2)
8. Having heard the respective counsel and also on
perusal of the material available on record, there is no dispute
with regard to the date of the accident. But, the only
contention of the Insurance Company is that, accident occurred
on 03.03.2014 and license was renewed on 05.03.2014. The
claimant also examined Superintendent of the RTO as P.W.4,
who comes and deposes that the transport license was valid
from 03.10.1975 to 25.02.2017 in terms of Ex.P29. On perusal
of the document at Ex.P29 which is renumbered as Ex.P30, he
says that driver paid the renewal of license on 26.02.2014 and
MFA No. 3549 of 2016
C/W MFA No. 1295 of 2017
he renewed the transport license but, he cannot say on which
date, they have issued the renewal of transport license.
However, he says that, normally, it is issued from the date of
the fees paid. But, in the cross-examination, he admits that
RDL was issued on 05.03.2014 and also admits that, driving
license extract was issued on 18.09.2014 to Insurance
Company. But, the Insurance Company also not produced the
driving license extract which was issued in favour of the
Insurance Company on 18.09.2014. The Insurance Company
also took the specific defence that no valid and effective driving
license as on the date of the accident and also not summoned
the RTO and concerned RTO register for having issued the
driving license in favour of the driver and driver is also not
examined before the Tribunal. The document at Ex.P30 is also
not clear with regard to on what date, the transport driving
license was issued and its validity. The vehicle involved in the
accident is a HGV and with regard to the license in respect of
HGV also, no material is placed before the Court. Though the
Insurance Company took the defence that the driver was not
having valid driving license, the Insurance Company has not
proved the same by examining the transport authority and also
MFA No. 3549 of 2016
C/W MFA No. 1295 of 2017
not summoned the driving license in respect of the HGV vehicle
which was involved in the accident.
9. When such being the material on record, the main
contention of the Insurance Company that fastening the liability
on them is erroneous cannot be accepted, unless the same is
proved. This Court cannot fasten the liability either on the
owner or on the Insurance Company, in the absence of any
material. Hence, the matter requires to be remanded to the
Tribunal and an opportunity is given to the Insurance Company
to prove the defence which they have taken that no driving
license to the driver of the tipper lorry as on the date of the
accident. Learned counsel appearing for the Insurance
Company also contend that compensation awarded is on the
higher side and unless the issue with regard to fastening the
liability is decided and liability is fastened either on the owner
or on the Insurance Company, the same cannot be considered
and the matter has to be considered afresh by the Tribunal
both in respect of liability and quantum. It is the contention of
the claimant also that, income taken by the Tribunal and the
percentage of disability is on the lesser side. Hence, it is
appropriate to direct the parties to appear before the Tribunal
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MFA No. 3549 of 2016
C/W MFA No. 1295 of 2017
and lead further evidence and the Tribunal is directed to give
an opportunity to both the claimant as well as the Insurance
Company to substantiate their contention regarding liability and
quantum and consider the matter afresh. Hence, I answer
point Nos.(1) and (2) accordingly.
Point No.(3)
10. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeals filed by both the claimant as well
as the Insurance Company are allowed.
(ii) The impugned judgment and award dated
25.02.2016 passed in M.V.C.No.3117/2014 of
the Tribunal is set aside and the matter is
remanded to the Tribunal to consider the
matter afresh, in view of the observations
made by this Court and give an opportunity
to the respective parties to substantiate their
contention.
(iii) The parties are directed to appear before the
Tribunal on 20.03.2023.
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MFA No. 3549 of 2016
C/W MFA No. 1295 of 2017
(iv) The parties shall appear before the Tribunal
without expecting any notice from the
Tribunal.
(v) The Registry is directed to send the records to
the concerned Tribunal, forthwith to enable
the Tribunal to take up the matter on
20.03.2023.
(vi) The Tribunal is also directed to dispose of the
matter within six months and the respective
counsel are directed to assist the Tribunal in
disposal of the case within six months from
20.03.2023.
(vii) The amount in deposit is ordered to be
transmitted to the Tribunal.
Sd/-
JUDGE
ST
