Karnataka High Court

The Branch Manager vs Suhana Bhanu on 19 February, 2024

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                                                        NC: 2024:KHC:6973
                                                   MFA No. 11039 of 2012
                                                C/W MFA No. 8602 of 2012




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 19TH DAY OF FEBRUARY, 2024

                                        BEFORE

                     THE HON'BLE MR. JUSTICE C.M. POONACHA

             MISCELLANEOUS FIRST APPEAL No.11039 OF 2012(MV)
                                         C/W
             MISCELLANEOUS FIRST APPEAL No. 8602 OF 2012 (MV)

             IN MFA No.11039/2012

             BETWEEN:

             1.    SUHANABHANU,
                   D/O MAHAMOD MUNEER,
                   AGED ABOUT 23 YEARS,
                   RESIDENT OF GANDEHALLI VILLAGE,
                   KASABA HOBLI, BELUR TALUK-573 115
                   HASSAN DISTRICT.
                                                              ...APPELLANT

Digitally
             (BY SRI. CHETHAN B., ADVOCATE)
signed by
BHARATHI S   AND:
Location:
HIGH COURT
OF           1.    H. M. MALLESH,
KARNATAKA
                   S/O MANJAIAH,
                   MAJOR,
                   RESIDING AT GOWRIKERE VILLAGE,
                   NANDIPURA POST,
                   MUDIGERE TALUK-577 132,
                   CHIKKAMAGALORE DISTRICT.

             2.    THE MANAGER,
                   THE NATIONAL INSURANCE CO. LTD.,
                   YASHORAMA CHAMBERS,
                   RATNAGIRI ROAD, POST BOX No.179,
                   CHIKKAMAGALORE,
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                                           NC: 2024:KHC:6973
                                     MFA No. 11039 of 2012
                                  C/W MFA No. 8602 of 2012




     REPRESENTED BY
     THE MANAGER,
     THE NATIONAL INSURANCE CO. LTD.,
     MANJUNATHA COMPLEX, BUS STAND ROAD,
     HASSAN-573 201.
                                              ...RESPONDENTS
(BY SRI O. MAHESH, ADVOCATE FOR R2;
R1 SERVED AND UNREPRESENTED)


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 5.3.2012 PASSED IN
MVC NO.57/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT,
BELUR,   PARTLY  ALLOWING     THE   CLAIM   PETITION   FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.


IN MFA No.8602/2012

BETWEEN:

1.   THE BRANCH MANAGER,
     NATIONAL INSURANCE CO. LTD.,
     YASHORAM CHAMBERS,
     RATNAGIRI ROAD, POST BOX No.179,
     CHIKKAMAGALURU.
     BY NATIONAL INSURANCE CO. LTD.,
     REGIONAL OFFICE No.144,
     SUBHARAM COMPLEX, M.G. ROAD,
     BANGALORE-560001.
     BY IT'S MANAGER.
                                                 ...APPELLANT
(BY SRI O. MAHESH, ADVOCATE)

AND:

1.   SUHANABHANU,
     D/O MAHAMMMED MUNEER,
     AGED ABOUT 23 YEARS,
     GANDEHALLI VILLAGE,
     KASABA HOBLI, BELUR TALUK
     HASSAN DISTRICT-577101.

2.   H. M. MALLESH,
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                                                NC: 2024:KHC:6973
                                        MFA No. 11039 of 2012
                                     C/W MFA No. 8602 of 2012



     S/O MANJAIAH,
     MAJOR,
     GOWRIKERE VILLAGE,
     NANDIPURA POST,
     MUDIGERE TALUK,
     CHIKKAMAGALURU DISTRICT-577 132.
     (OWNER - DRIVER - INSURED)
                                                   ...RESPONDENTS

(BY SRI CHETHAN B., ADVOCATE FOR R1;
    SRI JAGADEESHA B.N., ADVOCATE FOR R2)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 5.3.2012 PASSED IN
MVC NO.57/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT,
BELUR, AWARDING A COMPENSATION OF Rs.1,14,500/- WITH
INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.

     THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

1. MFA No.11039/2012 is filed by the claimant. MFA

No.8602/2012 is filed by the Insurer. In both the appeals, the

judgment and award dated 05.03.2012 passed in MVC

No.57/2010 by the Sr. Civil Judge and MACT., Belur are under

challenge. Hence, both the above appeals are taken up

together for consideration.

2. For the sake of convenience, the parties herein are

referred as per their rank before the Tribunal.

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3. It is the case of the claimant that on 21.03.2010 when he

was crossing the road, a goods auto being driven in a rash and

negligent manner came and hit the claimant causing the

accident in question, as a result of which, he sustained grievous

injuries. Claiming compensation for the same, the claim petition

was filed arraying the owner and insurer of the goods Auto as

Respondent Nos.1 and 2 before the Tribunal. Respondents

entered appearance before the Tribunal and filed their

statement of objections.

4. The claimant examined himself as PW.1 and a Doctor

was examined as CW.2 on commission. Exs.P1 to P19 and C1

to C4 were marked in evidence. The representative of the

insurer was examined as RW.1 Exs.R1 to R8 were marked in

evidence. The Tribunal by its judgment and award dated

05.03.2012 allowed the claim petition and awarded a sum of

`1,14,500/- together with interest @ 8% per annum and

directed the 2nd Respondent - Insurer to pay the compensation

awarded. Being aggrieved, the present appeals are filed.

5. Learned counsel for the appellant-insurer vehemently

contended that the accident has not occurred in the manner as

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averred in the claim petition inasmuch as in the claim petition

the claimant has stated that the accident occurred on

19.03.2010 and subsequently, the same was amended as

21.03.2010. However, in the police notice (Ex.P1) and in the

FIR (Ex.P2), the date of accident has continued as 19.03.2010.

Hence, it is submitted that on the said ground alone, the claim

petition is to be dismissed. It is further contended that the

driver of the vehicle did not hold a valid and effective driving

licence as on the date of the accident inasmuch as the insured

vehicle was a goods Auto rickshaw, and the driver of the

insured vehicle was issued with the driving licence (transport)

up to 19.12.2013. Hence, the transport endorsement of the

licence could have been issued from 20.12.2010 and hence, as

on the date of the accident, the driver of the insured vehicle

did not have a valid and effective driving licence. He further

submitted that the driver of the vehicle did not have a driving

licence from 04.09.2008 till 20.12.2010. It is further submitted

that the medical records indicate that the claimant took

treatment at Chikkamangaluru District Hospital as also at

Mangala Hospital, Hassan and the said Mangala Hospital,

Hassan being known for having treated fraudulent cases, the

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claim of the claimant ought not to have been entertained by the

Tribunal. Further, referring to the IMV report (Ex.P3), Mahazar

(Ex.P4) and the seizure Mahazar (Ex.P5), it is submitted that

the same do not tally with the manner in which the accident is

stated to have been occurred and hence, the claim of the

claimant ought not to have been granted. It is further

submitted that the complainant who was the brother of the

claimant has not been examined, in the absence of which, the

Tribunal ought not to have accepted the case of the claimant.

Hence, he seeks for allowing of the appeal filed by the insurer.

6. Per contra, learned counsel for the claimant justifying the

finding of the Tribunal with regard to the occurrence of the

accident submits in the claim petition, erroneously the date of

the accident was mentioned as 19.03.2010 and pursuant to

order dated 01.07.2011 passed by the Tribunal, the date in the

claim petition has been amended. It is further submitted that

except in FIR and police notice, in all other police records as

well as in the medical documents, the date of the accident is

mentioned as 21.03.2010. It is further contended that in the

FIR erroneously, the date has been entered as 19.03.2010 and

the fact that it is erroneously entered is clear from the

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complaint wherein, it is specifically stated that the accident

occurred on 21.03.2010. It is further submitted that in the

charge sheet (Ex.P15), the date of accident has been correctly

mentioned as 21.03.2010. Further, with regard to the licence,

the finding of the Tribunal that the insurer was liable to pay the

compensation awarded is justified by the learned counsel for

the claimant. It is further submitted that the quantum of

compensation awarded is on the lower side and the same is

required to be enhanced.

7. The submissions of the learned counsels have been

considered and the material on record including the records of

the Tribunal have been perused. The questions that arise for

consideration are

(i) Whether the finding of the Tribunal on Issue No.1 framed by the Tribunal with regard to the claimant having been proved the occurrence of the accident as averred in the claim is just and proper?

(ii) Whether the insurer is required to be exonerated from payment of compensation having regard to the fact that the driver of the insured vehicle did not have a valid and effective driving licence as on the date of the accident?

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(iii) Whether the quantum of compensation is required to be enhanced.

Re: Question No.(i)

8. It is forthcoming that when the claim petition was filed,

the date of accident was mentioned as 19.03.2010.

Subsequently, I.A.3 was filed by the claimant and the Tribunal

vide order dated 11.07.2011 allowed I.A.3 and permitted the

claimant to amend the date of accident as 21.03.2010.

9. In the Police Notice (Ex.P1) and in the FIR (Ex.P2), the

date of accident is mentioned as 19.03.2010. However, it is

forthcoming from the complaint which is annexed along with

the FIR that the date of accident as mentioned in the said

complaint was 21.03.2010. In the motor vehicle accident

report, (Ex.P3), the date of inspection of the vehicle is shown

as 26.03.2010 at 5.30 p.m. In the spot Mahazar (Ex.P4), it is

shown that the same was drawn on 24.03.2010 between 10.00

a.m. and 10.30 a.m. In the seizure mahazar (Ex.P5), it is

shown that the vehicle was seized at 24.03.2010 between

12.00 p.m. and 12.30. In all the medical records, the history

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of the injuries are shown as RTA on 21.03.2010. In the charge

sheet (Ex. P14), the date of accident is shown as 21.03.2010.

10. It is clear from the aforementioned that apart from

Exs.P1 and P2 i.e., the Police Notice and FIR wherein, the date

of accident is mentioned as 19.03.2010, in all other places, the

date of accident is mentioned as 21.03.2010. It is forthcoming

that in the complaint, the date of accident is mentioned as

21.03.2010. Although, in the claim petition, the date of

accident was initially mentioned as 19.03.2010, subsequently,

the same has been amended and consequent to the same, the

date of accident is amended as 21.03.2010. In the examination

of chief of PW.1, the date of accident is mentioned as

21.03.2010. Hence there is no inconsistency or contradiction in

the case of the claimant with regard to the date of the accident.

The confusion appears to have occurred due to erroneous

mentioning of the date of the accident in the FIR resulting in

mentioning the incorrect date in the police notice and in the

claim petition. The claim petition has been amended as noticed

above and the charge sheet has been filed with the date of

accident as mentioned in the complaint.

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11. Reliance placed by the learned counsel for the insurer of

the motorcycle IMV report(Ex.P3), spot mahazar (Ex.P4),

seizure mahazar (Ex.P5) to putforth its contention that the date

of accident is shown as 19.03.2010, would not aid the case of

the insurer in view of the fact that Exs.P4 and P5 disclose that

the said documents were prepared on 24.03.2010 and Ex.P3

discloses that the inspection of the insured vehicle took place

on 26.03.2010 and there is no contradiction vis-à-vis the said

documents and the date of the accident.

12. In view of the aforementioned, the finding of the Tribunal

regarding the occurrence of the accident is just and proper and

no interference in the same is warranted. Hence, question

No.(i) is answered in the affirmative.

Re: Question No.2:

13. The insurer has raised a specific contention that the

driver of the insured vehicle did not have a valid and effective

driving licence as on date of the accident. The insured vehicle is

a goods auto. The driving licence is marked as Ex.P8 which

discloses that the driver is authorized to drive the vehicle from

05.09.2005 to 04.09.2008. Ex.R5 is also a copy of Driving

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licence. The extract of the driving licence issued by RTO,

Chickmagalur is marked as Ex.P16 which discloses that the

driving licence was issued to the driver of the vehicle on

01.03.2001 and the LMV-3 wheeler NT and CAB is issued w.e.f.

01.03.2001. It is further forthcoming that the validity of

transport vehicle is up to 19.12.2013 and the validity of non

transport is up to 28.02.2021.

14. Having regard to the judgment of the Hon'ble Supreme

Court in the case of MUKUND DEWANGAN VS ORIENTAL

INSURANCE COMPANY LTD.,1 wherein it has held that up to

the gross vehicle weight of 7500 kgs, transport endorsement is

not required to drive a LMV. Hence, the finding of the Tribunal

holding that the insurer is liable to pay the compensation even

with regard to the aspect of driving licence is just and proper.

Hence, Question No.(ii) is answered in the negative.

Re. Question No.(iii)

15. With regard to quantum of compensation, it is necessary

to notice that the claimant was aged 22 years. Avocation of

the claimant is stated as household work and milk vending.

(2017)14 SCC 663

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However, no documents have been produced by the claimant to

prove her income. The Tribunal has assessed the income of the

claimant as `4,500/- per month. Having regard to the fact that

no documents have been produced to prove the income of the

claimant, it is required to be re-assessed as per the chart

followed for settlement of claims in the Lok Adalath conducted

by the Legal Services Authority and having regard to the date

of accident, the same is re-assessed as `5,500/-.

16. The claimant had sustained fracture of right elbow and

shoulder and other minor injuries. The claimant has taken

treatment as an inpatient for 9 days. The Doctor has been

examined on commission as CW.2 who has deposed regarding

treatment and the disability. The Tribunal has assessed the

disability of the claimant at 5% which is just and proper. In

view of the same, the quantum of compensation is re-assessed

as follows:

16.1 The Tribunal has awarded a sum of `25,000/- towards

pain and suffering and `25,000/- towards medical expenses

which is just and proper.

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16.2 The Tribunal has awarded a sum of `10,000/- towards

food, nourishment and attendant charges. Having regard to

the nature of injuries sustained and the period of treatment, it

is just and proper to re-assess the same as `15,000/-.

16.3 The Tribunal has awarded compensation towards loss of

income during laid up period as `4,500/-. Having regard to the

nature of injuries sustained and the period of treatment, the

loss of income during laid up period is taken as two months and

the same is re-assessed as (`5,500 x 2) `11,000/-.

16.4 The Tribunal has not awarded any amount towards loss of

amenities. Having regard to the nature of injuries and the

resultant disability the loss of amenities is assessed as

`15,000/-.

16.5 The loss of future earning capacity is re-assessed as

(`5,500 x 12 x 18 x 5%) = `59,400/-.

17. In view of the aforementioned, the compensation re-

assessed is as follows:

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Sl.No        Compensation Head            Amount       Amount
                                          Awarded by awarded       by
                                          the Tribunal this Court (`)
                                          (`)

1            Pain and suffering                 25000.00            25000.00

2            Medical expenses                   25000.00            25000.00

3            Food, nourishment and              10000.00            15000.00
             attendant charges

4            Loss of income during               4500.00            11000.00
             laid up period

5            Loss of amenities                         00           15000.00

6            Loss of future earning             50000.00            59400.00
             capacity,   permanent
             disability

                                  Total        114500.00           150400.00