Karnataka High Court

Mallesha vs The Branch Manager on 28 May, 2024

                             1
                                             MFA.2290/2012

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 28TH DAY OF MAY, 2024

                         BEFORE

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

               MFA NO.2290 OF 2012 (MV-I)

BETWEEN:

MALLESHA
S/O MADAPPA
AGED ABOUT 40 YEARS
R/AT MENASKYATHANALLI
VILLAGE, T.NARASIPURA TALUK
MYSORE DISTRICT                            ... APPELLANT

(BY SMT. ASHA B. L., ADV.)

AND:

1.      THE BRANCH MANAGER
        ORIENTAL INSURANCE CO. LTD.
        D.O-2 NO.2903, 1ST FLOOR
        NEW MUSLIM HOSTEL COMPLEX
        1ST MAIN, SARASWATHIPURAM
        MYSORE

2.      B.SHASHIKUMAR
        S/O BOREGOWDA, D.NO.810
        SWARNASANDRA, MANDYA            ... RESPONDENTS

(BY SRI.R.GUNASHEKAR, ADV. FOR R1;
    SRI. RAMESH KUMAR R.V., ADV. FOR R2)

      THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.09.2011
PASSED IN MVC NO.363/2008 ON THE FILE OF ADDITIONAL
CIVIL JUDGE (SR.DN.) & CJM, MACT, MANDYA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.04.2024 AND COMING ON FOR
                                 2
                                                MFA.2290/2012

PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                    JUDGMENT

In this appeal, the petitioner has challenged the

judgment and award dated 28.09.2011 in

M.V.C.No.363/2008 passed by the Additional Civil

Judge (Sr.Dn.) & CJM., and M.A.C.T., Mandya ('the

Tribunal' for short).

2. Appellant was the petitioner, respondent No.1

was respondent No.2/insurer and respondent No.2 was

respondent No.1/insured before the Tribunal. For the

sake of convenience, the parties shall be referred to as

per their status before the Tribunal.

3. Brief facts of the case are, on 12.04.2008, the

petitioner being the passenger of the auto rickshaw

bearing registration No.CTS-7695 met with an accident

at 5.30 p.m. near Mahaveera circle on Mysore-

Bangalore Road at Mandya City when the driver of the

said auto rickshaw attempted to avoid cyclist, due to

which the auto was capsized on the road, the petitioner

sustained injuries. After taking treatment at

Government Hospital, Mandya and J.S.S. Hospital,

Mysore, approached the Tribunal for grant of

compensation of Rs.5,55,000/-. Claim was opposed by

respondent No.1 on the ground that the driver of the

auto rickshaw did not possess valid driving licence.

The Tribunal after holding enquiry and hearing both

the parties allowed the claim petition awarding

compensation as follows:

 Sl. No.               Particulars                     Rs.
    1       Pain and suffering                        50,000/-
    2       Medical expenses                           8,000/-
    2       Loss of income due to                     86,400/-
            disability
                         Total                  1,44,400/-

The Tribunal directed the owner of the auto rickshaw to

deposit the compensation with interest at 6% p.a.

Pleading inadequacy and seeking enhancement and

also questioning exoneration of Insurance Company,

the petitioner has filed this appeal on various grounds.

4. Heard the arguments of

Smt.Asha B.L., learned counsel for the petitioner,

Sri.R.Gunashekar, learned counsel for the Insurance

Company and Sri.Ramesh Kumar.R.V., learned counsel

for the owner of the auto rickshaw.

5. It is the contention of learned counsel for the

petitioner that the Tribunal though considered various

aspects while assessing the compensation in a case

where the petitioner is injured, suffered physical

disability, without considering these aspects awarded

compensation under only three heads, which is

inadequate. Inspite of placing medical evidence, the

percentage of disability assessed is also on the lower

side. The income taken by the Tribunal at Rs.4,000/-

per month is also on the lower side and sought for

enhancement. It is further contended that the driver

of the auto rickshaw was holding effective driving

licence, but non-renewal of fitness certificate (FC) is

not a violation of policy and the Tribunal has

committed error in exonerating the Insurance

Company and sought for interference.

6. Per contra, learned counsel for the Insurance

Company has contended that the petitioner has

suffered simple fracture, post-treatment he has

recuperated from the injuries, no physical disablement,

there is no proof of avocation and income. The

Tribunal has considered notional income at Rs.4,000/-

per month, assessed just compensation having regard

to the gravity of injuries and there is no need for

enhancement, on the date of accident, the driver did

not possess valid driving licence and there was no FC

for the auto, it amounts to violation within the meaning

of Section 147 of Motor Vehicles Act, 1988, Insurance

Company has no liability to pay the compensation and

he supported the impugned judgment.

7. It is the contention of learned counsel for the

owner of the auto that on the date of accident, the

driver did possess valid driving licence and on the date

of issuance of policy, FC was in force, Insurance

Company cannot raise defence under Section 147 of

Motor Vehicles Act for expiry of FC and it has to

indemnify the insured.

8. I have given my anxious consideration to the

arguments addressed on behalf of both sides and also

perused the records.

9. The material on record points out that there

was an accident involving the auto rickshaw and

cyclist. At Mahaveer circle of Mandya city on

12.04.2008 at 5.30 p.m., the driver of the auto

rickshaw in order to avoid hitting against the cyclist

applied sudden brake, due to which, the auto rickshaw

was capsized and the petitioner has sustained injuries

over his lips, eyes, nose, hands, knees and ears. He

has suffered fracture of radius and there is a tear of

left ear pinna measuring 8 x 2 cm. For the reason of

actionable negligence on the part of the driver of the

auto rickshaw, he has been prosecuted by the Mandya

Traffic Police in Crime No.70/2008 for the offences

punishable under Sections 279 and 337 of IPC and

Section 134(b) of the Motor Vehicles Act, 1988. The

injury certificate issued by the Government Hospital,

Mandya and J.S.S.Hospital, Mysore clearly points out

and ratifies the fracture of left radius and also tearing

of left ear pinna. The driver of the auto rickshaw has

also been charge sheeted in C.C.No.885/2008 before

the Additional Civil Judge (Sr.Dn.) & CJM., Mandya for

the said offences only. Petitioner being the passenger

of the auto rickshaw, no question of attributing any

contributory negligence would arise. Hence, sufficient

material is placed before the Tribunal to explain that

the accident was due to actionable negligence of the

driver of the auto rickshaw in which the petitioner has

sustained injuries.

10. PW-2/Dr.H.K.Raghu is a Junior Resident of

Surgery Department, Mandya Institute of Medical

Sciences, Mandya, who has given first aid to the

petitioner soon after the accident.

11. PW-3/Dr.Y.Shashikumar, Assistant Professor

of J.S.S.Hospital, Mysore, who has treated the

petitioner, is of the opinion that the petitioner has

suffered limb disability of 16%+14%7.5% = 37.5%.

With reference to the wound certificate at Exs.P4 and

P5, ENT as well as Orthopedic Surgeons have treated

the petitioner and the Tribunal has assessed 12%

whole body disability. The petitioner has suffered

fracture of left wrist joint and there is tearing of ear

pinna, which certainly affects the earning capacity of

the petitioner and the Tribunal has rightly assessed

12% disability to the whole body.

12. The petitioner is entitled to claim just

compensation for the injuries sustained by him. The

Tribunal did not consider to award compensation on

other various heads. It is pertinent to note that in a

case of injury, compensation has to be assessed

towards pain and suffering, medical expenses,

attendant charges, food and nourishment, conveyance

expenses, loss of amenities and discomfort and loss of

income during laid-up period and loss of future income.

But the Tribunal has only considered medical bills,

disability and pain and suffering. Hence, it requires re-

assessment of compensation.

13. The accident is of the year 2008 and the

petitioner claims that he is an agriculturist; without

any proof of income, having regard to the minimum

wages and the earning capacity of the petitioner, who

is aged 40 years, his notional income ought to have

been taken at Rs.4,500/- instead of Rs.4,.000/- taken

by the Tribunal. While assessing the future income,

the principles laid down by the Hon'ble Apex Court in

National Insurance Co.Ltd. -Vs- Pranay Sethi and

Others1 has to be considered for adding future income

as we have to assess the loss of future income and not

the present or past income. For the age of 40, the

applicable multiplier is '15' and 25% has to be added

as future prospects in order to calculate the loss of

future earning. Then it comes to Rs.4,500/- +

(2017) 16 SCC 680

Rs.1,125/- (25%) = Rs.5,625/- x 12 x 15 x 12% =

Rs.1,21,500/-.

14. The petitioner has produced the medical bills

as per Ex.P8, which comes to Rs.5,327.49 paise.

Hence, the medical bills has to be considered at

Rs.6,000/-. The petitioner has to be awarded a sum of

Rs.30,000/- towards pain and suffering; Rs.5,000/-

towards attendant charges, travelling expenses and

food and nourishment; Rs.30,000/- towards loss of

amenities and discomfort. The fracture would have

made the petitioner to laid up for minimum of four

months. Hence, loss of income during laid up period

comes to Rs.4,500/- x 4 months = Rs.18,000/-. The

evidence of the petitioner did not suggest assessment

of compensation under other heads. Thus, in all the

petitioner is entitled to compensation as follows:

  Sl.              Particulars                  Rs.
  No.
   1      Pain and sufferings                  30,000/-
   2      Medical expenses                      6,000/-
   3      Attendant charges, food and           5,000/-
          nourishment and travelling
          expenses



   3      Loss of income during laid-up         18,000/-
          period
   4      Loss of amenities and                 30,000/-
          discomfort
   5      Loss of future earnings            1,21,500/-
                   Total                    2,10,500/-
         (-) Award of the Tribunal           1,44,400/-
        Enhanced compensation                 66,100/-

This is the just compensation that the petitioner is

entitled to in the facts and circumstances of the case.

15. Now the aspect of liability is concerned, there

are two-fold taken by the Insurance Company. Firstly,

the driver of the auto rickshaw did not possess valid

and effective driving licence and secondly, the vehicle

did not have the fitness certificate at the time of

accident. Firstly, regarding driving licence, though

such a contention has been taken, in the course of

evidence of the Officer of the Insurance Company, so

also during the course of cross-examination of the

petitioner, driving licence aspect has not been raised.

On careful perusal of the prosecution papers, it is

pertinent to note that in the charge sheet filed against

the driver of the auto rickshaw, there is no mention of

any provision regarding driving licence under Section 3

read with Section 181 of the Motor Vehicles Act.

Hence, the issue regarding driving licence is thereby

answered.

16. Secondly, whether the Insurance Company

can avoid its liability on the ground of fitness

certificate. The cross-examination of RW-1 did plead

that the auto rickshaw did not hold fitness certificate

and it can avoid its liability. Accordingly, the Tribunal

accepted the contention of the Insurance Company and

directed the owner of auto rickshaw to pay

compensation.

16(a) In this regard, the contentions taken on

behalf of both sides is carefully evaluated whereas the

Co-ordinate Bench of this Court in MFA No.7439/2013

DD 28.02.2019 has considered the similar aspect to

the effect that whether the Insurance Company can be

exonerated of its liability on the ground that the

insured did not possess fitness certificate for the

offending vehicle as on the date of accident. After

discussing the circumstances elaborately and also

referring several judgments at para-10 of its judgment

held as follows:

"10. The Tribunal while fixing the liability on the insurer placed reliance on the decision of the Kerala High Court in the case of Thara -vs- Syamala reported in 2009 ACJ 2440. It is pertinent to note that the said decision of the Kerala High Court has been over-ruled by the Full Bench decision in the case of V M Augustine, Vattakavumkal -vs- Ayyappankutty alias Mani & another reported in AIR 2015 Kerala 131. It is held that lapse of certificate of fitness would constitute breach of the provisions of Motor Vehicles Act or Rules. However, there is nothing under Section 56 of the Act, which suggests that the registration or permit issued would stand cancelled or revoked on account of lapse of period of fitness certificate."

16(b). While coming to such conclusion, the Co-

ordinate Bench of this Court has referred to the

judgments of the Kerala High Court in 2009 ACJ 2440

and AIR 2015 Kerala 131. In view of such finding,

the lapse of certificate of fitness could not constitute

breach of provisions of the Motor Vehicles Act and

Rules.

17. On perusal of the policy as well as the extract

issued by the RTO, Mandya as per Exs.R2 and R3, it is

pertinent to note that the policy of insurance

commences w.e.f. 000:00 of 27.09.2007 to midnight of

26.09.2008 whereas the RC was lapsed on

18.10.2007. It shows that on the date of Insurance

Company issuing Ex.R2/policy, the auto rickshaw was

holding valid fitness certificate. The fitness certificate

came to be expired on 18.10.2007 whereas the

accident took place on 12.04.2008 and thereby the

fitness certificate is not in force. Since on the date of

issuance of policy, the fitness certificate was in force,

the Insurance Company issued the policy knowing fully

well that the fitness certificate is going to expire on a

particular date.

18. The terms of the policy under Ex.R2 having a

limitation as to use of the vehicle only contemplates

sub-section (3) of Section 66 of the M.V.Act, 1988,

which does not contemplate any issue regarding the

fitness certificate. The policy was not issued subject to

fitness certificate, thereby the Insurance Company

cannot avoid its liability in the light of the judgments of

Coordinate Bench in Rajesh Poojary's case (supra).

Hence, the judgment and award passed by the Tribunal

dismissing the claim against the Insurance Company

and directing the insured to pay compensation is liable

to be set aside and the Insurance Company cannot

avoid its liability to pay compensation. Thereby the

appeal merits consideration. In the result, the

following:

ORDER

i) The appeal is allowed-in-part;

     ii) Impugned      judgment      and       award   is
          modified;

iii) The petitioner is entitled to enhanced compensation of Rs.66,100/- with interest @ 6% p.a. from the date of petition till the date of deposit;

iv) Both the respondents are held liable to pay the compensation. The Insurance Company is directed to deposit the total compensation within eight weeks from

the date of receipt of certified copy of this judgment;