Karnataka High Court
The Legal Manager vs Manoj on 27 February, 2023
Bench: Dr.H.B.Prabhakara Sastry
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MFA No. 646 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL NO. 646 OF 2020 (MV-I)
BETWEEN:
THE LEGAL MANAGER,
IFFCO TOKIO GIC LTD.,
ADITHYA BUILDING,
2ND FLOOR,
S N R HOSPITAL CIRCLE,
KOLAR-563101
NOW REP BY LEGAL MANAGER,
IFFCO TOKIO GIC LTD.,
CUSTOMER SERVICE CENTER,
SRI SHANTHI TOWERS, 5TH FLOOR,
NO.141, 3RD MAIN,
Digitally signed
by BANGALORE
EAST OF NGEF LAYOUT,
MADHAVACHAR
VEENA
KASTURI NAGAR,
Location: High BANGALORE-560 043
Court of
Karnataka ...APPELLANT
(BY SRI. PRADEEP B., ADVOCATE)
AND:
1. MANOJ
S/O NAGARAJU,
AGED ABOUT 24 YEARS,
R/AT VINAYAKA NAGAR,
GAURIBIDANUR TOWN,
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MFA No. 646 of 2020
CHICKBALLAPUR DISTRICT
2. SALMAN KHAN
S/O SHABBIRULLA KHAN,
AGED ABOUT 27 YEARS,
R/AT MADHAVA NAGAR,
GAURIBIDANUR TOWN,
CHICKBALLAPUR DISTRICT
...RESPONDENTS
(BY SRI. G R VENKATESH.,ADVOCATE FOR R-1;
NOTICE TO R-2 SERVED AND UN-REPRESENTED)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, TO
CALL FOR THE RECORDS AND TO SET ASIDE THE JUDGMENT
AND AWARD DATED 27.06.2019 PASSED IN
M.V.C.NO.91/2017, ON THE FILE OF THE SENIOR CIVIL JUDGE
AND J.M.F.C./MOTOR ACCIDENT CLAIMS TRIBUNAL AT
GOWRIBIDANUR, AWARDING COMPENSATION OF `2,75,040/-
WITH INTEREST AT 6 PER CENT P.A. FROM THE DATE OF
CLAIM PETITION, TILL THE DATE OF REALISATION OF THE
AMOUNT AND TO PASS SUCH OTHER ORDER/ORDERS AS THIS
COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES
OF THE CASE, INCLUDING THE COSTS, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
FINAL HEARING THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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MFA No. 646 of 2020
JUDGMENT
The present appellant - IFFCO-TOKIO General
Insurance Company Limited (hereinafter referred to as
"the Insurance Company" for brevity) was respondent
No.1, in M.V.C.No.91/2017, in the Court of the learned
Senior Civil Judge and Judicial Magistrate First Class / the
Motor Accident Claims Tribunal at Gowribidanur,
(hereinafter referred to as "the Tribunal" for brevity),
which was instituted by the present respondent No.1, who,
as a claimant had instituted a claim petition under Section
166 of the Motor Vehicles Act, 1988 (hereinafter referred
to as "the M.V.Act" for brevity), seeking compensation of a
sum of `15,20,000/- for the injuries alleged to have been
sustained by him in a road traffic accident said to have
occurred on the date 23-06-2016.
The respondent No.2 herein who was also the
respondent No.2 before the Tribunal is said to be the
owner-cum-rider of the alleged offending Motor Cycle
Honda Dio bearing Registration No.KA-40/X-7123.
MFA No. 646 of 2020
2. The summary of the case of the claimant in the
Tribunal was that, on the date 23-06-2016, at about 9:00
a.m., when he was traveling towards his residence from
Manasa Circle, Gowribidanur town in a Suzuki Access
Motor Cycle bearing registration No.KA-01/EU-1613, the
respondent No.2 - Sri. Salman Khan, being the owner-
cum-rider of the Honda Dio Motor Cycle bearing
registration No.KA-40/X-7123, riding the same in a rash
and negligent manner, dashed to the Motor Cycle being
ridden by the claimant/appellant herein, thus causing the
road traffic accident.
In the said road traffic accident, the claimant fell
down from the Motor Cycle and sustained multiple injuries
and was admitted in a Government Hospital, Gowribidanur
and later to Raghavendra Ortho Hospital, Hindupur, where
he underwent a surgery and was in-patient for some time
in the Hospital.
The claimant further stated that, due to the injuries
sustained by him in the said road traffic accident, he
MFA No. 646 of 2020
incurred huge medical expenses and loss of his income,
which income he was earning from the business of the
weaved material, being an ITI holder in Electronics
Mechanic trade. He also contended that he has lost his
bright and brilliant future. He further contended that he
incurred expenses of more than `1,20,000/- towards his
medical treatment, `1,00,000/- towards nourishment and
`1,00,000/- towards transportation and other
miscellaneous expenses. He also contended that due to
the injuries sustained, he has suffered physically and
mentally and has lost the future earnings which he has
calculated at a sum of `12,00,000/-. Thus, in total, the
claimant claimed compensation of a sum of `15,20,000/-
from the appellant - Insurance Company. The present
appellant who was arraigned as respondent No.1 before
the Tribunal was also held liable along with respondent
No.2 being in its capacity as the insurer of the alleged
offending Motor Cycle.
MFA No. 646 of 2020
3. Before the Tribunal, the present appellant -
Insurance Company, as respondent No.1, appeared
through its counsel and filed its written statement,
contending that the claim petition filed by the claimant
(respondent No.1 herein) is false, frivolous and denied the
road traffic accident as well the claim made by the
petitioner therein. However, the respondent No.2 (the
owner-cum-rider of the Motor Cycle bearing Registration
No.KA-40/X-7123) in the Tribunal, remained ex-parte.
4. Before the Tribunal, the claimant got himself
examined as PW-1 and also examined one Sri.
shantharaj as PW-2 and got marked documents from
Exs.P-1 to P-11. On behalf of the Insurer and owner of
the offending vehicle, one Sri. Vinay Kumar was examined
as RW-1 and four documents were got marked as Exs.R-1
to R-4.
5. After framing the issues and recording the evidence
led by both side, the Tribunal, by its impugned judgment
MFA No. 646 of 2020
dated 27-06-2019 allowed the claim petition in part,
holding the respondent No.1 (appellant herein) before it,
liable to pay the compensation to the claimant of a sum of
`2,75,040/- together with interest thereupon at the rate of
`6% per annum from the date of the claim petition till the
date of realisation of the amount.
Challenging the said judgment and award passed by
the Tribunal, the appellant - Insurance Company has
preferred this appeal.
6. Learned counsel for the appellant -Insurance
Company, in his brief argument, submitted that, the only
ground upon which the present appellant rests the present
appeal is about the absence of the Driving Licence for the
respondent No.2 - owner-cum-rider of the offending Motor
Cycle to drive the motor cycle as on the date of the
accident. Though the respondent No.1 in the Tribunal
(appellant herein) produced a copy of the Driving Licence
at Ex.R-3, which clearly goes to show that the respondent
MFA No. 646 of 2020
No.2 - owner of the offending motor cycle had the Driving
Licence to drive only Light Motor Vehicles (LMV) but not
the Motor Cycle, but the Tribunal did not consider the
same, as such, the present appeal is preferred.
7. Learned counsel for the first respondent herein
(claimant before the Tribunal) has remained absent and
has not addressed his argument. Respondent No.2,
though has been served, but remained absent.
8. In the memorandum of appeal, the main
contention taken by the appellant - Insurance Company is
only about the alleged absence of the Driving Licence for
the respondent No.2 in the Tribunal who is said to be the
owner-cum-rider of the alleged offending Motor Cycle to
drive the said vehicle. Though in a single sentence, the
quantum of compensation awarded is also contended as
on the higher side, however, the said ground was not
pressed into service by the learned counsel for the
appellant. As such, the only ground in the memorandum
MFA No. 646 of 2020
of appeal as well in the argument of the learned counsel
for the appellant is with respect to the alleged absence of
the Driving Licence with respondent No.2 to ride the Motor
Cycle at the time of the accident.
9. In the light of the above, the occurrence of the
road traffic accident which is said to have taken place on
the date 23-06-2016 involving two Motor Cycles bearing
registration No.KA-01/EU-1613 and registration No.KA-
40/X-7123 is not in dispute. Further, it is also not
specifically disputed that the present respondent No.1 who
was the claimant in the Tribunal was the rider of his
Suzuki Access Motor Cycle bearing registration No.KA-
01/EU-1613 and in the alleged road traffic accident, he
sustained injuries. The evidence of PW-1 and PW-2 to that
effect which are further corroborated by the documents at
Exs.P-1 to P-11 supports the contention of the occurrence
of the alleged road traffic accident on the date, time and
place mentioned in the claim petition as well the claimant
sustaining injuries in the said accident. Ex.P-6, which is
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MFA No. 646 of 2020
the Wound Certificate mentions the nature of the injuries
sustained by the claimant as fracture of right radius on the
forearm. The evidence of the Doctor (PW-2) also shows
that, considering that the claimant had sustained the
injury as shown in the Wound Certificate, he has assessed
the disability for right upper limb at 32.22% and to the
whole body at 10.74%. It is appreciating the evidence of
PW-1 and PW-2 (Doctor) coupled with the documentary
evidence, the Tribunal vide its impugned judgment has
awarded the compensation under the following heads and
with the amount mentioned against them.
Sl.No. Particulars Amount in `
1 Pain and suffering 30,000/-
2 Medical expenses 60,555/-
3 Diet, Nourishment, conveyance & 15,000/-
attendant charges
4 Loss of income during laid-up period 11,606/-
5 Loss of future income on account of 1,37,879/-
permanent physical disability
6 Loss of Amenities and enjoyment of 20,000/-
life
Total 2,75,040/-
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MFA No. 646 of 2020
10. Since the accident in question and the
involvement of the offending Motor Cycle being owned
and driven by the respondent No.2 are not disputed, so
also the injuries suffered by the claimant as narrated by
him as PW-1 and by Doctor as PW-2, supported by the
medical documents from Exs.P-6 to P-11, the quantum of
compensation awarded by the Tribunal, which is also not
specifically disputed in this appeal, warrants no
interference at the hands of this Court.
11. The only remaining question would be the
liability of the present appellant, i.e the Insurance
Company, according to which the respondent No.2 did not
possess a valid Driving Licence to drive the offending
Motor Cycle, as on the date of the accident.
12. A careful reading of the written statement filed
by the appellant herein (Insurance Company) in the
Tribunal would go to show that, no where in its written
statement, it has taken a specific contention regarding the
absence of the Driving Licence to drive a Motor Cycle by
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MFA No. 646 of 2020
the respondent No.2. Though in paragraph 16 of the
written statement, it is stated that if there is any valid
policy, the liability is limited to the terms and conditions of
the policy and valid Driving Licence, but the same cannot
be construed as taking a specific contention regarding the
absence of possessing a valid Driving Licence on the part
of the rider of the alleged offending Motor Cycle. Though
RW-1 the witness who was examined on behalf of the
respondent No.1 in the Tribunal, has, in his evidence,
taken a contention that the rider of the offending Motor
Cycle (respondent No.2) did not possess a valid Driving
Licence to drive the two wheeler as at the time of the
accident, however, the said evidence was without the
basis and support of any pleading. As such, an evidence
led without there being any supportive pleading to that
effect would not take the case of the appellant - Insurer
any further. Thus, in the absence of a specific pleading
regarding the respondent No.2 not having a valid Driving
Licence to ride the Motor Cycle at the time of the accident,
the copy of the Driving Licence produced by the
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MFA No. 646 of 2020
respondent No.1 in the Tribunal which is at Ex.R-3 also
would be of no avail to the appellant.
No doubt a perusal of the said document at Ex.R-3
would go to show that, the Respondent No.2 did possess a
Driving Licence to drive a Light Motor Vehicle (LMV) for a
specific period from 04-02-2013 upto 03-02-2033,
however, in the absence of a specific pleading about the
absence of the Driving Licence to ride the Motor Cycle and
also in the absence of examining any witness in support of
Ex.R-3, particularly, the RTO Officials, it cannot be taken
that the respondent No.1 had taken a contention about the
absence of possessing a valid Driving Licence with
respondent No.2 to drive the Motor Cycle. As such, the
only contention taken up by the appellant/Insurance
Company in its memorandum of appeal since does not
hold good at this appellate stage, I find no reason to
interfere in the impugned judgment and award passed by
the Tribunal.
13. Accordingly, I proceed to pass the following:-
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MFA No. 646 of 2020
ORDER
The appeal filed by appellant/Insurance Company is
dismissed as devoid of merit;
The amount in deposit by the appellant - Insurance
Company in the Registry be transmitted to the Tribunal
without delay;
Registry to transmit a copy of this judgment along
with Trial Court records to the Tribunal, without delay.
Draw the award accordingly.
Sd/-
JUDGE
BMV*
