The Branch Manager vs Sri Sandeep H A
2023 Latest Caselaw 627 Kant

                                           MFA.5978/2014
                          1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF JANUARY, 2023

                       BEFORE

 THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

             MFA NO.5978 OF 2014 (MV)

BETWEEN:

THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.
M.H.BORAIAH BUILDING
BEHIND VIDHYA GANAPATHI TEMPLE
V.V.ROAD
MANDYA-571425

AND ALSO
THE ORIENTAL INSURANCE CO.LTD.
44/45, RESIDENCY ROAD
LEO SHOPPING COMPLEX
BANGALORE-560 025
BY ITS REGIONAL OFFICER.                ... APPELLANT

(BY SRI H.C. VRUSHABHENDRAIAH, ADVOCATE)

AND:

1 . SRI SANDEEP H. A.
    S/O LATE APPANNA
    AGED ABOUT 22 YEARS
    RESIDING AT MALLIAHNAGAR
    KUDARAGUNDI
    MADDUR TALUK
    MANDYA DISTRICT-571425.

2 . SMT. PREMA
    W/O SHIVALINGAIA
    AGE NOT KNOWN
    RESIDING AT KUDARAGUNDI
    MADDUR TALUK
    MANDYA DISTRICT-571425.          ... RESPONDENTS
                                             MFA.5978/2014
                          2

(BY SRI MARIGOWDA, ADVOCATE FOR R1;
 NOTICE TO R2 IS HELD SUFFICIENT
 BY WAY OF PAPER PUBLICATION)


      THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.06.2014
PASSED IN MVC NO.976/2012 ON THE FILE OF THE SENIOR
CIVIL   JUDGE     AND    MACT,   MADDUR,     AWARDING
COMPENSATION OF RS.2,43,700/- WITH INTEREST @ 6% P.A
ON RS.2,35,700/- FROM THE DATE OF PETITION TILL
REALIZATION.

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.12.2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                  JUDGMENT

In this appeal, the appellant has challenged the

judgment dated 27.06.2014 passed in

M.V.C.No.976/2012 on the file of the Senior Civil

Judge and MACT., Maddur ('the Tribunal' in short).

2. The appellant was the second respondent,

respondent No.1 was the petitioner and respondent

No.2 was respondent No.1 before the Tribunal. The

parties will be referred to as per their status before

the Tribunal for the sake of convenience.

MFA.5978/2014

3. Briefly stated the facts are that, on

19.11.2011, the petitioner was pillion rider of the

motor cycle bearing No.KA-05/HB-3933 at about

11.30 p.m., the rider dashed the motor cycle against

the bridge near Harijan Colony, as a result of which,

the rider succumbed to death and the petitioner

sustained grievous injuries. He has taken treatment

at Government Hospital, Maddur and Mandya. The

petitioner approached the Tribunal seeking

compensation. Claim was opposed by the

respondents. The Tribunal awarded Rs.2,43,700/-

with interest @ 6% per annum.

4. The Insurance Company urging negligence

on the part of the petitioner, the rider did not

possess valid driving licence, the Tribunal committed

an error in fastening the liability against it, the

compensation was excessively assessed and has

come before this court.

MFA.5978/2014

5. Heard Sri.H.C.Vrushabhendraiah, counsel for

the appellant/insurer and Sri.Marigowda, learned

counsel for the petitioner.

6. It is the contention of the learned counsel for

the Insurance Company that at the time of accident,

the rider did not possess valid driving licence, and

for the sole reason of triple riding, the accident took

place, the petitioner has also contributed for the

negligence. Inspite of said pleas are taken, the

Trtibunal fastened the liability against the Insurance

Company and it calls for interference. To buttress his

arguments, he has relied upon the judgment of this

Court in P.S.Somaiah and Another -vs- Director,

Bangalore Dairy and Others1. Insofar as

fastening of liability, he has also relied upon the

judgment of this Court in The Oriental Insurance

2005 ACJ 1359 MFA.5978/2014

Co.Ltd. -vs- Annemma w/o Late Iranna Javalgi

and Others2.

7. Per contra, learned counsel for the petitioner

has argued that there is no evidence in proof of

triple riding as contended by the appellant, if the

driver has no driving licence, the Insurance Company

has to pay and recover from the owner of the motor

cycle. It is also contended that, the Tribunal has

assessed the compensation on the lower side,

though the petitioner has not filed any appeal/cross-

objection, this Court can make enhancement suo-

moto.

8. I gave my anxious consideration to the

arguments advanced on both sides and perused the

materials on record.

9. On a perusal of the materials on record, it is

pertinent to note that there was an accident at 11.30

p.m. on 19.11.2011 wherein the petitioner was the

2018(1) Kar.L.R.249 MFA.5978/2014

pillion rider in the motor cycle ridden by deceased

Ramesha hit against the road side bridge resulting in

his death and injuries to the petitioner.

10. Adverting to the contention of the

Insurance Company that there is a contributory

negligence on the part of the petitioner being a

pillion rider along with one Manikantha, on a careful

perusal of Ex.P2/complaint it is pertinent to note that

deceased Ramesha was riding the motor cycle,

petitioner and one Manikantha were the pillion

riders. Even if this is taken into consideration, the

evidence on record did not point out anything that

triple riding was cause for the accident. Therefore,

on the basis of the triple riding, contributory

negligence cannot be attributed against the

petitioner. Hence, said contention has no support in

favour of the Insurance Company.

11. Insofar as driving licence is concerned, the

material on record did not point out anything which MFA.5978/2014

suggested that at the time of accident, the deceased

Ramesha being the rider of the motor cycle did

possess the valid driving licence. This aspect though

has been discussed by the Tribunal at para-22 of its

judgment, it has gone on an assumption that there

was no charge sheet filed against the deceased for

not holding valid driving licence and therefore, the

Tribunal came to a conclusion that the deceased was

holding valid driving licence is contrary to the

material on record. Hence, the Tribunal ought to

have considered this plea of the Insurance Company.

12. It is further contended on behalf of the

Insurance Company that excess compensation was

assessed. The Tribunal has awarded the

compensation under following heads:

            PARTICULARS                   AMOUNT
1.Loss of future earnings                  Rs.97,200/-
2.Pain and suffering                       Rs.65,000/-
3.Loss of amenities                        Rs.40,000/-
                                                       MFA.5978/2014


4.Medical     expenses, food            &             Rs.20,000/-
nourishment, attendant   and           all
incidental charges
5.Towards future medical expenses                       Rs.8,000/-

6.Towards loss of income during laid                  Rs.13,500/-
up period
                 TOTAL                               Rs.2,43,700/-

13. As seen from the medical records at Exs.P5

and P6, which are the wound certificate and case

sheet of the petitioner indicating that he has suffered

seven injuries including fracture of both bones of left

forearm, compound and segmental comminuted

fracture of mandible, petitioner was under

hospitalization for 21 days, he was treated in the

government hospital and no bills have been

produced. But the case sheet at Ex.P6 points out

that some money has been spent towards implants.

Having regard to the nature of injuries, the petitioner

has suffered pain and suffering and also loss of

amenities and discomfort and he was allowed to rest

during treatment, the medical evidence points out

the whole body disability of 10% and in the year MFA.5978/2014

2011, a probable income of a person with no proof of

income is Rs.6,500/-. If all these evidence are taken

into consideration and the compensation is assessed,

then towards pain and suffering Rs.60,000/-, loss of

amenities and discomfort Rs.40,000/-, medical

expenses Rs.10,000/-, attendant charges/

transportation Rs.10,000/-, food and nourishment

Rs.5,000/-, loss of income for three months at

Rs.19,500/- and for removal of implants as future

medical expenses Rs.10,000/- can be assessed. The

petitioner was aged 20 years at the time of accident.

Hence, the multiplier applicable is '18', then the loss

of income due to disability will be Rs.1,40,400/-

(Rs.6,500/-x12x18x10%). If all put together it

comes to Rs.2,94,900/-. Though the Tribunal

awarded Rs.2,43,700/-, it is on the lower side and it

cannot be said to be on higher side as contended by

the Insurance Company. Hence, the grounds urged

that the compensation was excessively assessed is

incorrect.

MFA.5978/2014

14. Insofar as reliance placed on the case of

P.S.Somaiah (supra) is concerned, the facts

pleaded in the said case is involving three vehicles,

where the facts are quite different to the case on

hand. In the absence of evidence to show that triple

riding was the cause for the accident, the judgment

of this court will not helpful to the insurer.

15. Insofar as the judgment relied upon by the

learned counsel for the appellant in Annemma's

case (supra), the facts pleaded in the said case and

also the facts of the instant case are totally different.

Hence, the appellant cannot take advantage of this

judgment.

16. Insofar as the aspect of driving licence of

the rider is concerned, the concept of 'pay and

recovery' will come and there cannot be any scope

for contributory negligence. Therefore, the

contention of the appellant/Insurance Company can

only be sustained in respect of fastening of the MFA.5978/2014

liability. The said aspect of liability is covered by the

decision of the Hon'ble Supreme Court in Amrit Paul

Singh & Another Vs. TATA AIG General

Insurance3, in terms whereof the insurer is liable to

satisfy the award with liberty to recover the same

from the owner. Accordingly, the appeal deserves to

be allowed in part.

17. In the result, I pass the following order:

The appeal is hereby allowed in part.

The impugned judgment and award passed by

the Tribunal in fixing the compensation of

Rs.2,43,700/- in favour of the petitioner is hereby

confirmed.

The respondent No.2 is directed to satisfy the

award within eight weeks from the date of receipt of

copy of this judgment and to recover the same from

the insured in the same proceedings.

(2018) 7 SCC 558 [Para-24] MFA.5978/2014

The amount in deposit shall be transmitted to

the Tribunal for disbursal.

Sd/-

JUDGE

KNM/-