Karnataka High Court
Chandrashkekhar vs S N Yogisha on 6 August, 2024
-1-
NC: 2024:KHC:31228
MFA No. 3302 of 2013
C/W MFA No. 3814 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6 TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 3302 OF 2013 C/W
MFA NO. 3814 OF 2013 (MV-I)
IN MFA NO. 3302/2013
BETWEEN:
S N YOGISH
S/O NINGAPPA, AGED 23 YEARS
R/O SOORENAHALLI VILLAGE
HONNAVALLI HOBLI
TIPTUR TALUK ...APPELLANT
(BY SRI. B S BASAVARAJU., ADV.)
AND:
1. CHANDRASHEKAR
S/O YALLAIAH, AGED ABOUT 25 YEARS
R/O MADENUR BOVI COLONY, TIPTUR
TALUK, AND ALSO R/O HASSAN ROAD
NEAR ANANDAKUMAR HOUSE
(EX-MUNCIPAL COUNSELOR)
Digitally signed by ARASIKERE TOWN
PRAJWAL A
Location: HIGH COURT 2. THE MANAGER
OF KARNATAKA M/S UNITED INDIA ASSURANCE
COMPANY LTD, 1ST FLOOR
GANGADARAPPA COMPLEX
NO. 266, SUNKADAKATTE
MAGADI MAINTENANCE ROAD
BANGALORE-91
POST-VISHWANEEDAM ...RESPONDENTS
(BY SRI.G. RAVISHANKAR, ADV. FOR
SRI.GANGADHARAPPA, ADV. FOR R1;
SRI. MOHAN KUMAR T., ADV., FOR R2)
-2-
NC: 2024:KHC:31228
MFA No. 3302 of 2013
C/W MFA No. 3814 of 2013
IN MFA NO. 3814/2013
BETWEEN:
CHANDRASHKEKHAR
S/O YALLAIAH, AGED ABOUT 25 YEARS
R/O MADENUR BOVI COLONY, TIPTUR
TALUK AND ALSO R/O HASSAN ROAD
NEAR ANANDKUMAR HOUSE
(EX-MUNICIPAL COUNSELOR)
ARSIKERE TOWN, HASSAN DIST - 573 103 ...APPELLANT
(BY SRI. B S BASAVARAJU., ADV.)
AND:
1. S N YOGISHA
S/O NINGAPPA, AGED ABOUT 23 YEARS
R/O SOORENAHALLI, HONNAVALLI HOBLI
TIPTUR TALUK, TUMKUR DISTRICT 572 217
2. UNITED INDIA SSURANCE COMPANY LTD.
NO.266, 1ST FLOOR, GANGADHARAPPA COMPLEX
SUNKADAKATTE, MAGADI MAIN ROAD
VISWANEEDAM POST, BANGALORE 560 091
... RESPONDENTS
(BY SRI. MOHAN KUMAR T., ADV., FOR R2;
SRI. B.S.BASAVARAJU, ADV. FOR R1)
THESE MFA'S ARE FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 07.01.2013
PASSED IN MVC NO.106/2011 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MACT, ARASIKERE, AWARDING COMPENSATION
OF Rs.75,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL DEPOSIT AND IN MFA NO.3814 OF 2013 PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
-3-
NC: 2024:KHC:31228
MFA No. 3302 of 2013
C/W MFA No. 3814 of 2013
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In these appeals, the owner of the vehicle as well
as the injured have challenged the judgment and
award dated 07.01.2013 passed in M.V.C.No.106/2011
by the Senior Civil Judge and MACT, Arsikere ('the
Tribunal' for short).
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before
the Tribunal.
3. Brief facts of the case are, on 28.03.2011 at
about 12.00 p.m. while the petitioner was crossing the
road in front of Umesh bunk shop, at Madenur Bovi
Colony, on B.H.Road NH-206, a motor cycle bearing
Engine No.JZMBTM-98712-MD20-SJZZZTWM16610
came and dashed against him. Due to which, he
sustained head injury and he was under hospitalization
NC: 2024:KHC:31228
at NIMHANS, Bengaluru. After taking treatment he has
filed the claim petition, seeking compensation of
Rs.10,00,000/- against the owner and insurer of the
motor cycle. Claim was opposed by the respondents.
The Tribunal, after taking the evidence and hearing
both the parties by impugned judgment allowed the
claim petition, granting compensation of Rs.75,000/-
with interest at the rate of 6% p.a., directing the
owner of the vehicle to pay the compensation and
dismissed the claim against the insurance company.
Aggrieved by the same, owner of the motor cycle has
filed MFA.No.3302/2013, pleading inadequacy and
seeking enhancement, the petitioner has filed
MFA.No.3814/2013 on various grounds.
4. Heard the arguments of Sri A.V.
Gangadharappa, learned counsel for the petitioner and
Sri B.S. Basavaraju, learned counsel for the owner of
the vehicle and Sri Mohan Kumar T., learned counsel
for the Insurance Company.
NC: 2024:KHC:31228
5. It is the contention of the learned counsel for
the petitioner that the petitioner has suffered head
injury, due to which he has to undergo brain surgery,
skull operation and he was inpatient at NIMHANS,
Bengaluru for two times; first time for 1 month and 15
days on the second occasion. The skull was kept inside
the abdomen, which shows that gravity of the injury
sustained by the petitioner. The Tribunal did not
consider these aspects and awarded lesser
compensation. No compensation is assessed towards
loss of future income so also towards loss of income
during laid up period and even compensation assessed
towards medical expenses is on lower side. The
petitioner has been transported to the hospital in an
Ambulance and huge money has been spent towards
attendant, traveling and food and nourishment and
sought for enhancement.
6. Per contra, learned counsel for the owner of
the vehicle has contended that the vehicle was a brand
NC: 2024:KHC:31228
new one, the owner has paid premium to the
showroom to cover the insurance to the newly
purchased motor cycle. Only after ascertaining and
assuring issuance of policy, the vehicle was plied, and
only after the accident he was surprised and came to
know that the issuance of policy date as 28.03.2011
from 13.33 hours which is manipulated by the
showroom as well as the insurance company and his
liability has to be indemnified by the insurer, and
sought for direction to the insurance company to
indemnify him.
7. It is contended by the learned counsel for the
insurance company that the insurance company has
not received any proposal or money from the
showroom and only on receipt of insurance premium,
policy was issued with effect from 28.03.2011 from
13.33 hours. Prior to issuing of the policy, the vehicle
was plied on the public road, caused accident without
insurance cover under such circumstances, the owner
NC: 2024:KHC:31228
has to pay the compensation. It is further contended
that the compensation assessed is proportionate to the
injury sustained by the petitioner, the Tribunal has
awarded just compensation and has supported the
impugned judgment.
8. I have given my anxious consideration to the
arguments addressed on behalf of the parties and
perused the records.
9. The material on record did point out that the
motor cycle involved in the accident is a brand new
one, which was delivered to the hands of the owner on
27.03.2011, unfortunately accident took place on
28.03.2011 at 12.00 noon. Medical records shows that
the petitioner has suffered the head injury. He was
under hospitalization at NIMHANS for more than 45
days, 1 month on first time and 15 days on the second
time.
NC: 2024:KHC:31228
10. The charge sheet is filed against the rider of
the motor cycle. Hence, the prosecution papers
coupled with medical records goes to establish that the
accident in question was due to negligence on the part
of the rider of the motor cycle and petitioner being the
victim of the accident, is entitled to claim
compensation.
11. Ex.P4 is the wound certificate issued by the
Government hospital, Tiptur where the petitioner was
first treated. It goes to show that the petitioner has
suffered the head injury with fracture of right parietal
region and right temporal lobe concussion injury with
minimal mass effect with the diffuse cerebral edemus.
The petitioner was operated, skull was removed and
was preserved in the abdomen of the petitioner by
effecting a surgery. It goes to explain the gravity and
nature of injury. Hence, the petitioner is required to be
awarded just compensation.
NC: 2024:KHC:31228
12. The compensation assessed by the Tribunal at
Rs.75,000/- in all is on the lower side. Medical bills
constitutes a sum of Rs.29,657/-, wherein the Tribunal
has considered it at Rs.28,000/- only and same has to
be reimbursed. Towards pain and suffering Rs.50,000/-
has to be awarded, towards loss of amenities in life
and discomfort at Rs.50,000/-, towards attendant
charges at Rs.10,000/-, towards traveling expenses at
Rs.10,000/-, towards food and nourishment at
Rs.10,000/- and towards loss of income during laid up
period at Rs.26,000/- (Rs.6,500/- x 4 months) is
assessed.
13. Therefore, the petitioner is entitled for
compensation under the following heads:
Sl. Particulars Amount
No. in (Rs.)
1. Pain and Sufferings 50,000/-
2. Medical Expenses 29,657/-
3. Loss of income during laid up 26,000/-
4. Loss of Amenities and 50,000/-
unhappiness
6. Attendant charges 10,000/-
7. Food & nourishment 10,000/-
8. Transportation 10,000/-
Total 1,85,657/-
- 10 -
NC: 2024:KHC:31228
Less: compensation awarded 75,000/-
by the Tribunal
Enhanced compensation 1,10,657/-
Rounded off 1,11,000/-
It is the just compensation which the petitioner is
entitled in the facts and circumstances of the case.
14. Learned counsel for the petitioner seeking
compensation towards future loss of income. Except
self-serving testimony of the petitioner, there is no
medical evidence. Even the disability certificate is not
produced. In the absence of medical evidence, it is not
proper to make a guess work and assess the
compensation on future loss of income. Insofar as
future medical expenses is concerned, no material is
placed on record to show that the petitioner is required
further treatment post discharge. Hence, it is not a
case for grant of compensation towards future medical
expenses.
15. As regarding liability is concerned, as rightly
contended by the insurance company, the effect of the
- 11 -
NC: 2024:KHC:31228
policy from 28.03.2011 from 13.33 hours, wherein the
accident took place at 12.00 noon on the same day
and at the time of accident there was no policy.
Insurance company having own right, can avoid its
liability. Hence, the Tribunal has rightly dismissed the
claim against the insurance company.
16. Adverting to the arguments of the learned
counsel for the owner is concerned, if the showroom
has collected premium from the owner towards the
insurance, it ought to have been paid to the insurance
company within time and before getting policy issued,
the vehicle was delivered to the owner on 27.03.2011
itself and how a showroom can deliver the vehicle to
ply on the public road without policy coverage of
insurance which is mandatory under the law. If at all
the owner of the motor cycle has any grievance against
the showroom, he can go against the showroom for
legal redressal, but he cannot insist the insurance
company to indemnify him when there is no policy in
- 12 -
NC: 2024:KHC:31228
force. Hence, the owner of the motor cycle has to pay
the compensation.
17. Accordingly, the appeal filed by the owner
has to fail and the appeal filed by the petitioner merits
consideration, in the result, the following:
ORDER
(i) MFA.No.3302/2013 filed by the owner is
dismissed.
(ii) MFA.No.3814/2013 filed by the petitioner
is allowed in part.
(iii) The impugned judgment and award is
modified;
(iv) The petitioner would be entitled to
enhanced compensation of Rs.1,11,000/-
with interest at the rate of 6% per annum
from the date of petition till deposit;
(v) The owner of the motor cycle is directed
to deposit the entire compensation
amount with interest at 6% p.a. within
eight weeks from the date of receipt of
certified copy of this judgment and work
out his remedy against the showroom if
- 13 -
NC: 2024:KHC:31228
he is so advised in accordance with law.
(vi) The amount in deposit, if any, shall be
transmitted to the Tribunal along with
records forthwith.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
MKM
