IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K.SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO.1519 OF 2017 (MV-I) Between:
The Divisional Manager, Cholamandalam, M.S.GIC Limited, No.135/5, 2nd Floor, 15th Cross, 3rd Phase, J.P.Nagar, Bengaluru-78.
Now rep. by its Legal Manager, Sr.Manager – Claims, Cholamandalam M.S.GIC Limited, No.1/2, Golden Heights, 6th Floor, 59th C Cross, 4th M Block, Rajajinagar, Bengaluru-10. ... Appellant (By Sri Pradeep.B, Advocate) And:
1. H.V.Radha @ Radhamma, D/o Late H.S.Venkataramappa, Now aged about 54 years, R/at Hulkur Village, Guttahalli Post, Bangarapet Taluk, Kolar District-563 101.
2. S.Venkataraman, S/o Narayanappa, Age: Major, R/o Sunnangur Village, Mothakapalli Post, Mulbagal Taluk, Kolar District-563 101. … Respondents (By Sri. H.T.Narayan, Advocate for R1) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated: 25.10.2016 passed in MVC No.308/2013 on the file of the Senior Civil Judge and Principal J.M.F.C. and MACT K.G.F, awarding compensation of Rs.3,78,400/- with interest at 6% p.a from the date of petition till the date of realization.
This MFA coming on for Orders this day, the Court delivered the following:
JUDGMENT Though this appeal is listed for hearing on interlocutory application-I.A.No.1/18 for withdrawal of the amount in deposit, with the consent of learned counsel for both parties, the appeal is taken up for final disposal.
2. The factual matrix of the appeal is as under:
It is stated that the petitioner has filed the claim petition seeking compensation on account of the injuries sustained in a road traffic accident. The case of the respondent NO.1/petitioner that on 21.11.2011 at about 6 p.m. when the she was travelling as a passenger in an autorikshwa bearing registration No.KA-07-A-22, near Kavaraganahalli village on Bethamangala-Mulabgal road, the driver of the said autorikshaw drove the same in a rash and negligent manner with high speed and went on the wrong side of the road and dashed against a bullock cart. As a result of which, the petitioner fell down from the autorikshwa and sustained grievous injuries. Immediately she was shifted to Sri Gaurava Orthopedic & Surgical Hospital, Kolar and was diagonised with closed fracture of left middle 3rd femur and undergone closed reduction and internal fixation with IMIL Nail on 2.11.2011. She was treated as an inpatient and discharged on 2.12.2011. Hence, the petitioner has filed the claim petition before the tribunal claiming compensation on account of the injuries sustained in the accident.
3. On service of notice, the respondents put their appearance through their respective counsel. Respondent No.2 filed its objections resisting the claim petition made by the petitioner and prays for dismissal of the petition. But respondent No.1 has not filed any objection to the claim petition.
4. Based on the pleadings of both the parties, the tribunal has framed issues and given its finding keeping in view the evidence of PW1 and P.W.2- medical officer, who treated the injured and also the documentary evidence marked at Ex.P.1 to P.17. On behalf of the respondent No.2, two witnesses were examined as RWs 1 and 2 and got marked Ex.R1 to R.4. On appreciation of the oral and documentary evidence on record, the tribunal has granted a total compensation of Rs.3,78,400/- with interest at the rate of 6% p.a. from the date of the petition till the date of realization.
The first respondent being the R.C. owner and the 2nd respondent being the insurer of the autorikshaw, the tribunal further held that both respondents are liable to pay the compensation and made an observation in the impugned judgment and award.
5. The learned counsel appearing for the appellant- Cholamandalam M.S. GIC Ltd., has drawn my attention to the evidence of RWs 1 and 2, so also the documents marked at Exs.R1 to 4 produced before the tribunal for having resisted the claim made by the petitioner. But, the tribunal has awarded a sum of Rs.3,78,400/- with interest at 6%p.a. without appreciating the evidence of RWs 1 and 2 and the documents produced on its behalf, hence, preferred this appeal seeking intervention of this Court on the impugned judgment and award passed by the Tribunal. Further the tribunal has not taken into consideration the fact that the auto rikshaw driver was not holding any transport endorsement at the time of the accident. Hence, on that ground also seeks for dismissal of the appeal.
6. Per contra, learned counsel for respondent No.2, who has supporting the judgment and award rendered by the tribunal in MVC No.308/2013, and contended the tribunal has rightly appreciated the evidence of PWs 1 and 2 and also the documentary evidence in that regard and awarded a total compensation of Rs.3,78,400/- with interest at 6% p.a. Therefore, the appeal does not call for interference by this Court.
7. In the backdrop of the contentions taken by the learned counsel for both parties, it is relevant to note that there is no dispute with regard to the injuries sustained by the claimant on 21.11.2011 at about 6.00 p.m., which is reflected in the claim petition filed by the petitioner before the Tribunal seeking compensation for the injuries sustained by her and also there is no dispute with regard to the injured taking treatment in the hospital and discharged on 2.12.2011. It is also not in dispute that the first respondent said to be the R.C. owner of the autorikshaw and respondent No.2 is the insurer, but the only dispute is with regard to not holding having any transport endorsement at the relevant time of the accident. The said aspect has been decided by the Hon’ble Apex Court in the case of Mukund Dewagan Vs. Oriental Insurance Co., Ltd., reported in AIR 2017 SC 366.
8. In view of the decision of the Apex Court stated supra, this Court does not found any valid substance to proceed with any further in this appeal. Consequently, the appeal is dismissed.
Office is directed to transmit the entire trial court records to the concerned tribunal for disbursement of the compensation amount to the respondent No.1/petitioner on proper identification.
In view of the disposal of the main appeal, I.A.No.2/17 filed for stay does not survive for consideration, accordingly it is dismissed.
SD/-
JUDGE Psg*