Karnataka High Court
Sri Vikas Bajaj vs Sri Mahaneeth on 13 November, 2024
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MFA No. 10968 of 2012
C/W MFA No. 10485 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 10968 OF 2012 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO. 10485 OF 2012 (MV)
IN MFA NO. 10968/2012
BETWEEN
SRI. VIKAS BAJAJ,
S/O. S.K. BAJAJ,
NOW AGED ABOUT 30 YEARS,
R/O. 391, HIG, RMV II STAGE,
BANGALORE 560 094.
... APPELLANT
(BY SRI. GANESH BHAT Y.H., ADVOCATE)
AND
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
Location: HIGH
1. SRI. MAHANEETH
COURT OF
KARNATAKA S/O. SRI. NANJUNDAIAH,
NOW AGED ABOUT 31 YEARS,
NO. 180, 11TH CROSS, 3RD MAIN,
BDA HIG, RMV II STAGE,
BANGALORE - 560 094.
2. M/S. KHODAY ENGINEERING
NO.54 KAMMANAYAKANA
AGRAHARA, ANJANAPURA POST,
BANGALORE.
3. THE ORIENTAL INSURANCE CO. LTD.,
HAVING ITS BRANCH OFFICE
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MFA No. 10968 of 2012
C/W MFA No. 10485 of 2012
AT JAYALAKSHMI MANSION,
NEAR NAVRANG THEATRE,
DR.RAJKUMAR ROAD, 4TH BLOCK,
RAJAJINAGAR, BANGALORE 560 010,
REPRESENTED BY
ITS REGIONAL MANAGER.
...RESPONDENTS
(BY SRI. N.Y.VIJAY, ADVOCATE FOR R1;
SRI. VIGHNESHWAR SHASTRY, SR. ADV. FOR
SRI N.SHANKAR RANGAREJI, FOR R2;
SRI. A.N. KRISHNA SWAMY, ADVOCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 31.07.2012
PASSED IN MVC NO.2600/2001 ON THE FILE OF THE IX
ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT-7, COURT
OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO. 10485/2012
BETWEEN:
ORIENTAL INSURANCE CO. LTD.,
BRANCH OFFICE, JAYALAKSHMI MANSON
NEAR NAVRANG THEATRE,
DR.RAJKUMAR ROAD, 4TH BLOCK,
RAJAJINAGAR, BANGALORE 560 010,
NOW REPRESENTED BY
ITS REGIONAL MANGER,
ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, #44/45, LEO
SHOPPING COMPLEX, RESIDENCY ROAD,
BANGALORE 560 025.
... APPELLANT
(BY SRI. A.N. KRISHNA SWAMY, ADVOCATE)
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MFA No. 10968 of 2012
C/W MFA No. 10485 of 2012
AND:
1. VIKAS BAJAJ,
S/O. S.K. BAJAJ,
NOW AGED ABOUT 30 YEARS,
#391, HIG, RMV II STAGE,
BANGALORE 560 094.
2. N. MAHANEETH
S/O. NANJUNDAIAH,
NOW AGED ABOUT 31 YEARS,
# 180, 11TH CROSS, III MAIN,
BDA HIG, RMV II STAGE,
DOLLARS COLONY,
BANGALORE 560 094.
3. M/S KHODAY ENGINEERING
NO.54 KAMMANAYAKANA
AGRAHARA, ANJANAPURA POST,
BANGALORE.
...RESPONDENTS
(BY SRI. N.V.VIJAY, ADVOCATE FOR R2;
SRI. VIGHNESHWAR SHASTRY, SENIOR ADVOCATE FOR
SRI. N.SHANKAR RANGAREJI, FOR R3;
SRI. GANESH BHAT Y.H., ADVOCATE FOR R1)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 31.07.2012
PASSED IN MVC NO.2600/2001 ON THE FILE OF THE IX
ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT-7, COURT
OF SMALL CAUSES, BANGALORE, AWARDING A
COMPENSATION OF RS.5,11,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 20.08.2024 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THIS COURT
PRONOUNCED THE FOLLOWING:
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MFA No. 10968 of 2012
C/W MFA No. 10485 of 2012
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CAV J U D G M E N T
In these appeals, the petitioner is questioning
disallowing of the claim regarding medical bills incurred
towards future medical expenses, whereas the Insurance
Company is questioning its liability to pay the
compensation.
2. The rank of the parties shall be referred to as
per their status before the Tribunal.
3. Brief facts of the case are, on 08.11.1998 while
the petitioner was traveling in the Maruti Gypsy bearing
Reg.No.KA-05/M-276 along with his friend driven by the
first respondent on Sankey road, near Le Meridian Hotel at
8.20 p.m., the said vehicle was met with an accident, due
to which he sustained injuries. After taking treatment, he
has approached the Tribunal for grant of Rs.56,00,000/-
under Section 166 of the Motor Vehicles Act, 1988. Claim
was opposed by the owner and insurer of the Maruti Gypsy
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vehicle. The Tribunal, after taking the evidence and
hearing both the parties, allowed the claim petition on
11.07.2006 by awarding compensation of Rs.9,27,000/-.
Pleading inadequacy and seeking enhancement, the
petitioner has filed MFA.No.12439/2011.
3.1. In the said appeal, the petitioner has filed I.A.
under Order XLI Rule 27 of CPC for production of medical
bills seeking reimbursement of future medical expenses.
This Court, confirming the order dated 11.07.2006 by its
judgment dated 06.09.2011 remanded the matter for
fresh disposal giving an opportunity to the petitioner as
well as the respondent to lead additional evidence
regarding reimbursement of medical expenses, the
medical records produced by the petitioner have been
transmitted to the Tribunal. The Tribunal has considered
the same placed by the petitioner and by the impugned
judgment and award dated 31.07.2012 directed
respondent Nos.2 and 3 to pay Rs.5,11,000/- with interest
at 6% p.a. in addition to Rs.9,27,000/- awarded on
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MFA No. 10968 of 2012
C/W MFA No. 10485 of 2012
11.07.2006. The petitioner alleging that some of the
medical claims were disallowed, he sought for
enhancement.
3.2. The Insurance Company contending that, the
policy of insurance was an 'Act policy', the petitioner is a
friend passenger, the policy of insurance does not cover
the risk of an occupant of the Maruti Gypsy and therefore
it is entitled to recover compensation of Rs.9,27,000/-
along with interest already deposited as per order dated
11.07.2006 and also questioned liability to pay the
compensation of Rs.5,11,000/- with interest as per order
dated 31.07.2012.
4. Heard the arguments of Sri Ganesh Bhat Y.H.,
learned counsel for the petitioner, Sri A.N. Krishna
Swamy, learned counsel for the Insurance Company and
Sri Vighneshwar Shastri, learned Senior counsel appearing
on behalf of Sri N. Shankar Rangareji, learned counsel for
the owner of the vehicle.
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5. It is the contention of learned counsel for the
petitioner that, in spite of placing of sufficient evidence in
the form of Exs.P36 to P47, the Tribunal did not consider
all the medical bills and considered only Rs.5,11,000/-. To
buttress his arguments, he has relied on the judgment of
Hon'ble Apex Court in Sidram -vs- Divisional Manager,
United India Insurance Co. Ltd. and Anr.1
6. Per contra, learned counsel for the Insurance
Company has contended that, the policy of insurance was
an 'Act policy'. The petitioner is a gratuitous passenger in
the vehicle, he is not a third party to cover the risk. The
Tribunal without considering these aspects fastened
liability and Insurance Company has to be exonerated
from its liability. It is further contended that as the risk of
the petitioner was not covered under the policy, the
amount already paid by it to the extent of Rs.9,27,000/-
has to be returned to it by the petitioner and he has to go
against the owner of the vehicle.
1
AIR Online 2022 SC 890
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C/W MFA No. 10485 of 2012
7. Sri Vighneshwar Shastri, learned Senior counsel
appearing on behalf of the owner has contended that, the
Insurance Company, in the statement of objection filed on
the claim petition, the policy of insurance was admitted,
and the risk of the petitioner was admitted subject to
terms and conditions of the policy and the driving licence.
As there is no dispute regarding the driving licence of the
driver, the Insurance Company has admitted the policy,
the Tribunal has rightly fastened liability. The Insurance
Company has already satisfied the award. When once the
Insurance Company has satisfied the award accepting the
policy, it cannot blow hot and cold and now asking this
Court to determine the liability which was already
satisfied. The appeal is filed after 6 years of satisfying the
award. The order passed by this Court while remanding
the claim petition was only to the extent of considering the
future medical expenses, post award that has been
determined by the Tribunal and the Insurance Company is
bound to satisfy the award and liability cannot be taken
out against the Insurance Company.
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8. I gave my anxious consideration to the
arguments addressed by the learned counsel for both the
parties and perused the records.
9. There is no dispute as to the claim petition filed
by the petitioner which came to be disposed of on
11.07.2006 awarding a sum of Rs.9,27,000/- with interest
at 6% p.a. Seeking enhancement of compensation, the
petitioner has approached this Court in
MFA.No.12439/2006 (MV). This Court, by order dated
06.09.2011 allowed the appeal and remanded the matter
to the extent of producing additional documents disclosing
future medical expenses incurred by the petitioner. It is
relevant to extract the order of this Court, which reads as
follows:
"The appeal is allowed in part. Impugned
judgment and award is modified and matter is
remitted back to the Tribunal with a direction to afford
sufficient opportunity to the claimant and to the
contesting parties to lead their evidence in support of
the documents that have been produced by way of
additional documents disclosing the additional
expenses incurred towards medical expenses and
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thereafter to dispose of the case in accordance with
law.
Registry is directed to forward the application
along with the documents that have been produced by
the claimant before this court to the Tribunal".
10. By virtue of additional records produced by the
petitioner, which have been transmitted to the Tribunal
along with the application filed under Order XLI Rule 27 of
CPC, to determine further medical expenses incurred by
the petitioner, post-remand, the parties have appeared
before the Tribunal and on behalf of the petitioner, PWs.1,
9 and 10 have been further examined and medical records
are produced as per Exs.P36 to P47. No evidence was let
in on behalf of the Insurance Company. The Tribunal, after
hearing both the parties by the impugned judgment,
awarded a sum of Rs.5,11,000/- in addition to the award
already passed with interest at 6% p.a. Pleading
inadequacy and questioning omission of certain medical
bills, the petitioner is before this Court in appeal
MFA.No.10968/2012 whereas the Insurance Company is
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MFA No. 10968 of 2012
C/W MFA No. 10485 of 2012
questioning the original order dated 11.07.2006 as well as
the impugned judgment has filed MFA.No.10485/2012.
11. In the light of the above, two points that arise
for consideration are:
(i) Whether the award passed by the Tribunal in a
sum of Rs.5,11,000/- is proper?
(ii) Whether the Insurance Company has the legal
right to question the liability after satisfying the
award?
Re. Point No.(i):-
12. As regarding the award of compensation of
Rs.9,27,000/-, it was confirmed by this Court and satisfied
by the Insurance Company. This appeal only pertains to
the medical bills incurred towards further medical
expenses and with a limited scope, the matter was
remanded accordingly. The petitioner has led further
evidence by examining PWs.1, 9 and 10 and Exs.P36 to
P47 are records pertain to medical bills. On this aspect,
the Insurance Company has further cross-examined the
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C/W MFA No. 10485 of 2012
witnesses. The medical bills at Ex.P36 carries 285 bills
amounting to Rs.3,80,224/- which includes the Air ticket
bills where the petitioner was traveled from Bengaluru to
Mumbai and Mumbai to Bengaluru for an amount of
Rs.13,269/-. Hence the contention of the petitioner that
the same was not considered by the Tribunal is incorrect.
The petitioner also produced Ex.P42 comprises 42 bills
amounting to Rs.1,73,999/-. Ex.P47 carries 8 bills
amounting to Rs.8,991/- and remaining are the OPD slips,
discharge summaries, admission slips, prescriptions and
review sheets which do not carry any bills along with it.
Hence, the total amount of bills which the petitioner has
produced comes to Rs.3,80,224/-, Rs.1,73,999/- and
Rs.8,991/-. On perusal of the cross-examination of the
witnesses nothing has brought out that these are the
amounts were not spent by the petitioner and hence these
bills are considered as conveyance bills also. The total bills
comes to Rs.5,63,214/- wherein the Tribunal has
considered it at Rs.5,11,000/-, thereby a sum of
Rs.52,214/- was left out by the Tribunal which the
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MFA No. 10968 of 2012
C/W MFA No. 10485 of 2012
petitioner is entitled to. Apart from this, there is no other
evidence available on record to consider the request of the
petitioner for awarding future medical expenses or to
reimburse any medical expenses. Accordingly, the
petitioner is entitled for enhanced compensation of
Rs.52,214/-. Hence, point No.(i) is answered accordingly.
Re. Point No.(ii):-
13. It is the contention of the Insurance Company
that Maruti Gypsy was issued with the 'Act policy'. The
petitioner being the passenger of the Gypsy is not a third
party and therefore it has no liability to pay the
compensation. For the first time, such an argument is
placed in this appeal. On careful perusal of the statement
of objection filed by the Insurance Company, it is
specifically admitted that there was a policy issued to the
vehicle and liability on the part of the Insurance Company
is subject to the valid driving licence. Since there is no
issue regarding driving licence of the driver, the Tribunal
has fastened liability against the Insurance Company.
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14. Interesting to note that either in the first round
or in the additional round of litigation, the Insurance
Company has not produced policy of insurance nor led any
evidence explaining before the Tribunal that the policy of
insurance is an Act Policy and it will not cover the risk of
the petitioner. Without there being any pleadings and
evidence, the order of Tribunal cannot be blamed.
Accordingly, the Insurance Company has satisfied the
award of Rs.9,27,000/- with interest passed by the
Tribunal. After 6 years of satisfying the award, it cannot
now question its liability to pay the compensation. When
the Insurance Company has satisfied the award and same
was paid to the petitioner, if the Insurance Company
having any grievance, it has to work out its remedy
against the owner of the vehicle and it cannot ask the
petitioner to deposit the compensation before the Court.
15. Again, interesting to note that post remand, the
Insurance Company though claiming that the policy of
insurance is an Act Policy, it has no liability, the officers of
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C/W MFA No. 10485 of 2012
the Insurance Company have not stepped into the witness
box nor led any evidence. The Hon'ble Apex Court in
Oriental Insurance Company Ltd. v. Surendra Nath
Loomba and Ors.2, held that when there is a dispute
regarding nature of policy without production of the
certificate of insurance it cannot be ascertained. Here in
this case, without any pleadings, without producing the
policy of insurance and without leading any evidence, the
Insurance Company is pleading that the policy is an 'Act
Policy' which cannot be accepted.
16. The Hon'ble Apex Court in Oriental Insurance
Co. Ltd. v. Sudhakaran K.V. and others3 held that in
case of insurance Policy is an Act Policy, it does not cover
the risk of the occupants of the vehicle that, they are not
the third party to cover their risk. In order to apply the
said principle, the Insurance Company is required to lead
evidence by producing the policy of insurance. Without
doing so, after satisfying the award, the Insurance
2
AIR 2013 SC 483
3
2008 ACJ 2045 SC
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Company blaming the petitioner is not acceptable. Since
the Insurance Company has already satisfied the award in
the first round, it is required to satisfy this award also and
if there is any grievance about liability on account of Act
Policy, the Insurance Company has to work out its remedy
against the owner of the vehicle in an appropriate forum.
Hence, point No.(ii) is answered accordingly.
17. In view of the findings on point Nos.(i) and (ii),
the appeal filed by the Insurance Company is devoid of
merits and the appeal filed by the petitioner merits
consideration, in the result, the following:
ORDER
i. MFA.No.10968/2012 filed by the petitioner is
allowed in part;
ii. MFA.No.10485/2012 filed by the Insurance
Company is dismissed;
iii. The impugned judgment and award is modified;
iv. The petitioner would be entitled to enhanced
compensation of Rs.52,214/- with interest at
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6% p.a. from the date of petition till the date of
deposit;
v. The Insurance Company is directed to deposit
enhanced compensation along with interest
within 8 weeks from the date of receipt of
certified copy of this judgment;
vi. Rest of the order of Tribunal is kept in tact;
vii. Amount in deposit shall be transmitted to the
Tribunal along with records forthwith;
viii. As regarding liability is concerned, it is open to
the Insurance Company to work out its remedy
against the owner of the vehicle in a separate
proceedings.
Sd/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
MKM
Ct-cmu
