Karnataka High Court
Sri. S. Chetan vs Sri . Sanjay Kumar Jain S on 3 September, 2024
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NC: 2024:KHC:35807
MFA No.5633 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCELLANEOUS FIRST APPEAL NO.5633/2022 (MV-I)
BETWEEN:
SRI. S. CHETAN
S/O T. SRINIVASAMURTHY
AGED ABOUT 29 YEARS
R/AT NO.149, AKKIPET MAIN ROAD
NEAR COTTONPET POLICE STATION
BENGALURU-560 053.
Digitally signed by
AASEEFA PARVEEN ...APPELLANT
Location: HIGH (BY SRI. M.V. MAHESWARAPPA, ADV.,)
COURT OF
KARNATAKA
AND:
1. SRI. SANJAY KUMAR JAIN S
S/O SHANTHILAL
R/AT NO.553, SREE KRUPA MANSION
6TH MAIN, 4TH BLOCK
RAJAJINAGAR, BENGALURU-560010.
2. THE MANAGER (LEGAL)
HDFC ERGO GENERAL INSURANCE COMPANY LTD
2ND FLOOR, NO.25/1, BUILDING NO.2
SHANKARANARAYANA BUILDING
M G ROAD, BENGALURU-560001.
...RESPONDENTS
(BY SRI. MALLIKARJUNA REDDY N.A. ADV. FOR
SRI. PRADEEP B., ADV. FOR R2
V/O DTD:03.09.2024 NOTICE TO R1 H/S)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.04.2022 PASSED IN MVC
NO.5210/2019 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES
JUDGE AND MACT, SCCH-11, BENGALURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
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MFA No.5633 of 2022
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
ORAL JUDGMENT
Heard Sri.M.V.Maheswarappa, learned counsel for the
appellant as well as Sri.Mallikarjuna Reddy N.A., learned
counsel who represents Sri.B.Pradeep, learned counsel on
record for respondent No.2 - insurance company.
2. The order under challenge in this appeal is the one
that is rendered by the Motor Accidents Claims Tribunal,
Benagluru, in MVC No.5210/2019 dated 06.04.2022.
3. This is a claimant's appeal. As against the claim for
Rs.10,00,000/- in total, the Tribunal through the impugned
order awarded a sum of Rs.1,68,794/- as compensation.
4. Arguing the matter Sri.M.V.Maheswarappa, learned
counsel for the appellant contends that this appeal is filed on
two grounds. Firstly, that the Tribunal went wrong in
exonerating respondent No.2 - insurance company from
liability. Secondly, the amount awarded as compensation is
grossly low and does not commensurate to the loss sustained
by the appellant.
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5. Making his submission on the first ground, learned
counsel Sri.M.V.Maheswarappa contends that the appellant
sustained injuries in a road traffic accident and he is third party
to the insurance policy. On the ground that the rider of the
offending motor bike was not holding valid driving licence which
amounts to violation of the terms and conditions of the policy,
the Tribunal exonerated the insurance company from liability.
Learned counsel states that as the appellant is third party to
the insurance policy and should not suffer, by setting aside the
impugned order, this Court may fasten the liability against the
insurance company also along with the owner of the offending
vehicle.
6. The submission that is made by Sri.Mallikarjuna
Reddy, representing the insurance company in this regard is
that sufficient evidence was produced that the rider of the
offending motor bike was not holding driving licence. However,
in case, this Court is of the opinion that the appellant who is
the claimant should not suffer, the Court may order pay and
recovery.
7. The case of the appellant is that on the date of
accident while he was proceeding on his Honda Dio vehicle
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bearing Registration No.KA.02 JK.2851 on Lalbagh Main Road,
the rider of a Honda Activa vehicle bearing Registration
No.KA.02 EW.9375 came from opposite direction at high speed,
in a rash and negligent manner and dashed against his vehicle.
Due to which, he fell down and sustained injuries.
8. Respondent No.2 - insurance company examined its
Manager as RW1 who deposed that the rider of the offending
motorcycle was not possessing valid driving licence.
Respondent No.2 - insurance company also relied upon the
contents of Ex.R6 - charge sheet, Ex.P1 - certified copy of the
order, Ex.P2 - certified copy of the judgment to establish that
the rider of the offending vehicle did not possess valid driving
licence. The owner of the offending vehicle failed to contest the
matter. Thus, perceiving the fact that the insurance company
established that the rider of the offending vehicle was not
holding valid driving licence, the Tribunal exonerated the
insurance company from liability. However, this Court is
convinced with the submission that is made by
Sri.M.V.Maheswarappa, learned counsel for appellant that the
appellant being third party to the insurance policy should not
suffer. At the same time, this Court is of the view that as the
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terms and conditions of the policy were violated by the insured,
even the insurance company should not suffer. Therefore, this
Court considers desirable to order the insurance company to
pay the compensation which the appellant/claimant is entitled
to and thereafter to recover the same from respondent No.1
i.e. the owner of the offending vehicle.
9. Coming to the quantum of compensation that is
awarded, the Tribunal through the impugned order awarded a
sum of Rs.1,68,794/- as compensation divided under the
following heads:
Sl. Heads of compensation Amount
No in Rs.
1 Towards injury, pain and
50,000-00
suffering
2 Towards medical expenses 55,594-00
3 Towards food, extra
nourishment, medical and 3,200-00
attendant charges
4 Towards conveyance
10,000-00
charges
5 Towards loss of income
20,000-00
during treatment
6 Deprivation of future
30,000-00
amenities
Total 1,68,794-00
10. Learned counsel for the appellant submits that the
evidence of PW2 clearly establishes that the disability in respect
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of the limb is 39% and to the whole body is 13%, but the
Tribunal did not award any amount towards loss of future
earnings. Learned counsel also states that the Tribunal awarded
a sum of Rs.3,200/- only towards food, extra nourishment and
attendant charges which is unjustifiable.
11. It is not in dispute that the appellant sustained
fracture of left proximal lateral tibia, which is grievous in
nature. Likewise, it is not in dispute that the appellant took
treatment for the said injury as inpatient. However, a perusal of
record reveals that the appellant who examined himself as PW1
during the course of cross-examination admitted that he was
working at Ernst and Young LLP Company as Analyst by the
date of accident and he continued to work in the same
Company even after the accident. He further deposed that he
was drawing Rs.35,000/- as salary by the date of accident and
as on the date of giving evidence he is drawing Rs.49,000/-.
The statements thus given by the appellant himself go to show
that there was no loss of earnings due to the said disability.
However, this Court is of the view that the appellant would have
incurred substantial amount towards extra nourishment and
attendant charges during the course of treatment. Also having
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considered the nature of injuries sustained, this Court is of the
view that the appellant would not have attended his normal
pursuits at-least for a period of two months. Therefore, this
Court considers desirable to enhance the compensation globally
by Rs.20,000/-.
12. Thus, in the light of the foregoing discussion the
following
ORDER
i) The appeal is allowed in part.
ii) The compensation that is awarded by the Motor
Accidents Claims Tribunal, Bengaluru, through orders in MVC
No.5210/2019 dated 06.04.2022 is enhanced by Rs.20,000/-.
iii) The enhanced sum shall carry interest at the rate of
6% per annum from the date of petition till the date of deposit.
iv) Respondent No.2 is directed to deposit the entire
compensation within a period of eight weeks from the date of
receipt of copy of this order.
v) On such deposit, respondent No.2 - insurance
company is given liberty to recover the same from respondent
No.1 by initiating appropriate proceedings.
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vi) On deposit, the appellant is permitted to withdraw
the entire amount.
Sd/-
(DR.CHILLAKUR SUMALATHA)
JUDGE
AP
