Karnataka High Court

The Manager vs Anil Kumar S/O H Maresh on 28 February, 2024

                                                   -1-
                                                                  NC: 2024:KHC-D:4630
                                                          MFA No. 104580 of 2018
                                                      C/W MFA No. 103386 of 2018




                           IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 28TH DAY OF FEBRUARY, 2024

                                                 BEFORE
                             THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
                       MISCELLANEOUS FIRST APPEAL NO. 104580 OF 2018 (MV-I)
                                              C/W
                          MISCELLANEOUS FIRST APPEAL NO. 103386 OF 2018

                      IN MFA NO.104580/2018

                      BETWEEN:

                      MINOR ANIL KUMAR
                      S/O. SRI. H. MARESH,
                      AGE: 15 YEARS, OCC: STUDENT,
                      REPRESENTED BY NATURAL GUARDIAN
                      FATHER SRI. H. MARESH S/O. LATE ANJINAMMA,
                      AGE: 38 YEARS, OCC: AGRICULTURIST,
                      R/O. NEAR GRAMAPANCHAYATH OFFICE,
                      SIDDAMMANAHALLI VILLAGE,
                      BALLARI TALUK AND DISTRICT.
                                                                         ...APPELLANT
                      (BY SRI. MANJUNATH JADAI, ADVOCATE)
         Digitally
         signed by
         ROHAN
                      AND:
ROHAN    HADIMANI
HADIMANI T
T        Date:
         2024.03.01
         11:37:03
                      1.   SRI. H. VEERESH S/O. SRI. CHIKKAMMA,
         +0530
                           AGE: 31 YEARS,
                           DRIVER OF THE TRACTOR AND TRAILER,
                           BEARING NO.KA-34/T-8394,
                           R/O. OPP. GOVERNMENT SCHOOL,
                           DARUR VILLAGE, SIRUGUPPA TALUK,
                           BALLARI-583101.

                      2.   SRI. RAMAKRISHNA
                           S/O. SRI. GADILINGAPPA,
                           AGE: 36 YEARS,
                           OWNER OF THE TRACTOR AND TRAILER,
                           BEARING NO.KA-34/T-8394,
                           R/O. OPP. GOVERNMENT SCHOOL,
                              -2-
                                            NC: 2024:KHC-D:4630
                                       MFA No. 104580 of 2018
                                   C/W MFA No. 103386 of 2018



      DARUR VILLAGE, SIRUGUPPA TALUK,
      BALLARI-583101.

3.    SRI. P. AJJANAGOUDA
      S/O. SRI. BANDEGOUDA,
      AGE: 58 YEARS,
      OWNER OF TRAILER BEARING
      NO.AP-02/T-2905,
      KALUHOLLA VILLAGE,
      BOMMANAHAL MANDALAM,
      ANANTHAPUR DISTRICT, A.P-515001.

4.    THE MANAGER,
      M/S. SHRIRAM GENERAL INSURANCE CO. LTD,
      OPP. MAYURA HOTEL,
      NEAR OLD GOVERNMENT BUS STAND,
      BALLARI-583101.
                                             ...RESPONDENTS
(BY SRI. NAGARAJ C. KOLLOORI, ADV. FOR RESPONDENT NO.4,
 NOTICE TO RESPONDENT NO.1 TO 3 SERVED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT
AWARD DT.30.05.2018 PASSED IN MVC NO.336/2015 ON THE FILE
OF MOTOR ACCIDENT CLAIMS TRIBUNAL-III, AT BALLARI AND
ENHANCE THE COMPENSATION BY ALLOWING THE APPEAL TO MEET
THE ENDS OF JUSTICE AND EQUITY AND ETC.

IN MFA NO.103386/2018

BETWEEN:

THE MANAGER,
SHRIRAM GENERAL INSURANCE COM. LTD,
OFFICE AT: OPP: MAYURA HOTEL,
NEAR OLD GOVERNMENT BUS STAND,
BALLARI, REPTD BY ITS
AUTHORIZED SIGNATORY.
                                                   ...APPELLANT
(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE)

AND

1.    ANIL KUMAR S/O. H. MARESH,
      AGED ABOUT 15 YEARS,
                              -3-
                                           NC: 2024:KHC-D:4630
                                    MFA No. 104580 of 2018
                                C/W MFA No. 103386 of 2018




     SINCE MINOR REPTED BY NATURAL
     GUARDIAN FATHER H. MARESH
     S/O. LATE ANJINAMMA (LESI),
     AGE: 38 YEARS,
     OCC: AGRICULTURIST,
     R/O. NEAR GRAMAPANCHAYATH
     OFFICE, SIDDAMMANAHALLI VILLAGE,
     TQ & DIST: BELLARI. PINCODE-583101.

2.   H. VEERESH S/O. CHIKKAMMA,
     AGED ABOUT 31 YEARS,
     OCC: DRIVER,
     R/O. OPP: GOVERNMENT SCHOOL,
     DARUR VILLAGE, SIRUGUAPPA TALUKA,
     BALLARI DISTRICT. PINCODE-583101.

3.   RAMAKRISHNA S/O. GADILINGAPPA,
     AGED ABOUT 36 YEARS,
     OCC: OWNER,
     R/O. OPP: GOVERNMENT SCHOOL,
     DARUR VILLAGE, SIRUGUAPPA TALUKA,
     DIST: BALLARI-583101.

4.   P. AJJANAGOUDA S/O. BANDEGOUDA,
     AGED ABOUT 58 YEARS, OCC: OWNER,
     R/O. KALUHOLLA VILLAGE,
     BOMMANAHAL MANDALAM,
     ANANTHPUR DISTRICT.
     PINCODE-515001.
                                             ...RESPONDENTS
(BY SRI. MANJUNATH JADAI, ADV. FOR RESPONDENT NO.1,
NOTICE TO RESPONDENT NO.2 AND 3 IS SERVED,
NOTICE TO RESPONDENT NO.4 IS DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, PRAYING TO CALL FOR RECORDS AND TO
SET ASIDE THE JUDGMENT AND AWARD DATED 30-05-2018 PASSED
BY THE COURT OF THE III MOTOR ACCIDENT CLAIMS TRIBUNAL,
BALLARI IN MVC NO.336/2015 AND THIS HON'BLE COURT MAY PASS
ANY SUCH ORDERS AS DEEMS FIT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE, INCLUDING THE COSTS OF THE
ABOVE PROCEEDINGS, IN THE INTEREST OF JUSTICE AND EQUITY.

     THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                -4-
                                             NC: 2024:KHC-D:4630
                                        MFA No. 104580 of 2018
                                    C/W MFA No. 103386 of 2018




                             JUDGMENT

MFA.No.104580/2018 is filed by the claimant seeking

for enhancement of the compensation. Similarly,

MFA.No.103386/2018 is filed by the Insurance Company

challenging the liability fastened on it. Both the appeals are

filed challenging the judgment and award dated 30.05.2018

passed in MVC.No.336/2015 on the file of the Principal Sr.

Civil Judge & MACT-III, Ballari (for short, 'Tribunal').

2. Brief facts giving rise to filing of these appeals

are, that on 02.03.2014 around 9:40 AM the appellant minor

Anil Kumar was riding the bicycle. The tractor bearing

registration No.KA-34/T-8394 came from hind side and

dashed to the said bicycle. Due to the impact, minor fell

down and sustained severe injuries all over the body. It is

averred that the accident took place due to the negligence of

the driver of the tractor. Therefore, the respondent No.2

being the owner of the tractor and the respondent No.4

being the insurer of the tractor are jointly and severally liable

to pay the compensation.

NC: 2024:KHC-D:4630

3. The respondents No.1, 2 and 3 remained exparte.

The respondent No.4/insurer filed objections to the claim

petition by denying the averments made in the claim

petition. It has admitted that the policy was in force on the

date of the accident. However, it is contended that the

liability, if any, is subject to the terms and conditions of the

policy. Hence, they sought for dismissal of the claim petition.

4. During the trial before the Tribunal, the father of

the minor examined himself as PW1 and got marked 15

documents as Exs.P1 to P15. Respondent No.4 got examined

its legal officer as RW1 and got marked 4 documents as

Exs.R1 to R4. The Tribunal after analyzing the evidence

available on record, has awarded global compensation of

Rs.55,000/- together with interest at the rate of 8% per

annum from the date of petition till realization of the

compensation amount and directed respondent No.4/insurer

to pay the said compensation.

5. Being aggrieved by the aforesaid judgment and

award, both these appeals have been filed.

NC: 2024:KHC-D:4630

6. Sri. Nagaraj C.Kolloori, learned counsel appearing

for the Insurance Company submits that the driver of the

tractor was not possessed with the driving licence at the time

of the accident and he was chargesheeted under Section 3 of

the Motor Vehicles Act, 1988 by the Police. It is submitted

that non-possessing of driving licence is violation of the

terms and conditions of the policy and fastening the liability

on the insurance company by the Tribunal is contrary to law.

The Tribunal ought to have fastened the liability on the

owner of the vehicle. It is further submitted that the

insurance company has issued legal notice to the owner of

the tractor to produce driving licence of the driver of the

tractor and the copy of the said legal notice is produced at

Ex.R3. Despite the same, the driving licence was not

produced nor represented before the Tribunal. Hence, he

seeks to allow the appeal filed by the insurance company by

fastening the liability on the owner of the tractor.

7. Sri. Manjunath Jadai, learned counsel appearing

for the claimant submits that the injured was aged about 11

years at the time of the accident and he has taken treatment

NC: 2024:KHC-D:4630

at different hospitals. It is submitted that the Tribunal taking

note of the various decisions of this court as well as the

Hon'ble Apex court has fastened the liability on the insurer.

Hence, he seeks to dismiss the appeal filed by the insurer by

enhancing the compensation in favour of the claimant.

8. I have heard the arguments of the learned

counsel for the insurer, the learned counsel for the claimant

and perused the material available on record.

9. The points that arise for consideration in these

appeals are:

(i) Whether the Tribunal is justified in fastening the liability on the Insurance Company?

(ii) Whether the claimant is entitled for higher compensation?

10. The answer to point No.1 is negative and the

answer to point No.2 is partly in the affirmative for the

following reasons.

11. The parties to the proceedings do not dispute that

the minor son of PW1 was riding bicycle on 02.03.2014, at

NC: 2024:KHC-D:4630

that time a tractor driven by its driver came in rash and

negligent manner and dashed to the bicycle of the minor son

of PW1. Due to the impact, the son of PW1 fell down and

sustained injuries. In support of the claim petition, the father

of minor son has been examined. In his evidence, he has

reiterated the averments made in the claim petition.

Respondent No.4 has examined RW1 who is the law officer of

the insurance company. In his evidence, he has reiterated

the averments made in the statement of objections and it is

stated that they have issued legal notice to the owner of the

tractor to make available the driving licence of the driver of

the tractor. However, the same was not produced. The

evidence on record indicate that the jurisdictional police after

investigation filed chargesheet against the driver of the

tractor for the offence punishable under Sections 279 and

337 of IPC as well as under Section 3 read with Section 181

and Section 187 of the Motor Vehicles Act, 1988 which

clearly indicates that the respondent No.1-driver of the

tractor was not having valid and effective driving licence as

on the date of the accident. The insurance company has

NC: 2024:KHC-D:4630

made an attempt to secure the driving licence by sending the

legal notice dated 05.06.2016 to the owner of the vehicle

which is produced and marked as Ex.R3. Despite service of

the said notice, the owner of the tractor has not made

available the driving licence of respondent No.1-driver. The

evidence on record clearly indicates that respondent No.1

who was driving the tractor was not having driving licence at

the time of the accident. This Court taking note of the law

laid down by the Hon'ble Apex Court in the case of

SHAMANNA AND ANOTHER Vs. DIVISIONAL MANAGER,

ORIENTAL INSURANCE COMPANY LTD., AND OTHERS1 is of

the considered view that the insurance company shall pay

the compensation amount to the claimant and recover the

same from the owner of the vehicle. The relevant paragraphs

of the aforesaid judgment are extracted herein below:

"13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in oriental insurance co. Ltd. V. Nanjappan and others (2004) 13 SCC 224: (AIR 2004 SC 1630) where this Court held that "... that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the

AIR 2018 SC 3726

- 10 -

NC: 2024:KHC-D:4630

subject -matter or determination before the Tribunal and the issue is decided against the owner and in favour of the insurer."

14. In the result, the impugned judgment of the High Court insofar as enhancement of the compensation to Rs.4,94,700/- is affirmed. Insofar as direction of the impugned judgment directing the appellants/claimants to recover the compensation from the owner of the vehicle is set aside and the appeal is partly allowed. The first respondent insurance company shall pay the enhanced compensation to the appellants/claimants along with the accrued interest and the insurance company shall recover the same from the owner of the vehicle. No costs."

12. The Tribunal after analyzing the evidence

available on record has awarded global compensation of

Rs.55,000/-. This court is of the considered view that the

minor who has sustained the injuries of lacerated wound in

the perineal region, bleeding from the wound, cut lacerated

wound over the right hand and X-ray on record indicate that

there is no fracture and the above injuries are simple in

nature. The medical evidence available on record indicate

that the minor injured has taken treatment as inpatient in

VIMS Hospital, Bellary from 02.03.2014 to 26.03.2014 and

incurred expenses nearly to a sum of Rs.40,000/- towards

the same. This Court is of the considered view that the

Tribunal is not justified in awarding Rs.55,000/- as global

- 11 -

NC: 2024:KHC-D:4630

compensation. This Court taking note of the evidence of PW1

corroborated with the medical evidence on record is of the

considered view that the injured appellant is entitled to an

additional compensation for a sum of Rs.45,000/- along

with interest at the rate of 6% per annum from the date of

petition till realization. It is made clear that the insurance

company shall make aforesaid payment to the claimant and

recover the same from the owner of the vehicle.

13. In the result, this Court proceeds to pass the

following:

ORDER

a) Both the appeals are allowed in part.

b) The impugned judgment and award of the

Tribunal is modified by directing the Insurance

Company to pay an additional sum of

Rs.45,000/- as a global compensation totalling

to a sum of Rs.1,00,000/- as against

Rs.55,000/- awarded by the Tribunal.

- 12 -

NC: 2024:KHC-D:4630

c) The enhanced compensation amount shall carry

interest at the rate of 6% per annum from the

date of petition till the date of payment.

d) The Insurance Company shall deposit the

enhanced compensation amount with accrued

interest before the Tribunal within a period of six

weeks from today.

e) On such deposit, the same shall be released in

favour of the claimant.

f) The apportionment, deposit and disbursement of