IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.No.3472 OF 2013 (MV) BETWEEN:
M/S. ICICI LOMBARD COMPANY LTD., REGIONAL OFFICE, NO.89, 2ND CROSS, SVR COMPLEX, HOSUR MAIN ROAD, MADIWALA, BENGALURU–560 068. ... APPELLANT (BY SRI. B.C.SHIVANNE GOWDA, ADVOCATE) AND:
1. RAVI B, S/O BETTAIAH, AGED ABOUT 32 YEARS, R/AT NO.2237, MAHANHI MATADA ROAD, NELAMANGALA, BENGALURU RURAL DISTRICT.
2. UMESH, S/O PUTTAIAH, ANJENYA SWAMY LAYOUT, ADEPETE, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT-572 104.
... RESPONDENTS (BY SRI. LAKSHMAIAH.T, ADVOCATE FOR R1;
SRI B.P.GANGADHARA, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED: 16.1.2013 PASSED IN MVC NO.6979/2011 ON THE FILE OF THE 14TH ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF Rs.44,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The Insurance Company is before this Court, assailing the judgment and award dated 16-1-2013 in MVC.No.6979/2011 on the file of the 14th Additional Judge, MACT, Court of Small Causes, Bangalore.
2. In this appeal, the appellant is Insurance Company.
Respondent No.1 is the claimant and respondent No.2 is the owner of the vehicle before the Tribunal.
3. The claimant-respondent No.1 herein filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation for the injuries suffered by him in a road traffic accident occurred on 27-7-2011. It is stated that when the claimant was crossing the road as a pedestrian in Nelamangala Town, a motorcycle bearing Reg.No.KA-52-H-8820 came in a rash and negligent manner and dashed against the claimant. Due to the impact, the claimant fell down and sustained multiple severe injuries on his head, legs, hands, face and other parts of the body. It is further stated that initially the claimant was taken to NIMHANS Hospital for first aid treatment and then he was shifted to J.P. Hospital, Nelamangala for treatment and admitted as an inpatient from 27-7-2011 to 31-7-2011.
4. On service of notice, the respondents appeared before the Tribunal and respondent No.1-Insurance Company filed its statement of objections denying the claim averments and contended that the driver of the offending vehicle was not having a valid and effective driving licence as on the date of accident. Further it is stated that the accident occurred due to the negligence of the claimant, there is no negligence on the part of the rider of the motorcycle. Hence, prayed for dismissal of the claim petition.
5. The claimant himself examined as PW-1 and got marked documents Ex.P-1 to Ex.P-13. Respondent No.1- Insurance Company examined its official as RW-1 and got marked documents Ex.R-1 to R-5.
6. The Tribunal on assessment of the entire material on record, saddling liability on the Insurance Company, awarded total compensation of Rs.44,000/- with interest at 6% per annum, on the following heads:
Amount in (Rs.) 1. Pain and suffering 15,000 2. For medical expenses and other incidental charges 3. Loss of amenities and future discomfort 4. Loss of earning during the treatment period 9,000 10,000 10,000 Total 44,000 7. The Insurance Company-appellant being aggrieved by the judgment and award passed by the Tribunal is before this Court in this appeal.
8. Heard the learned counsel for the appellant- Insurance Company and perused the lower court records.
9. Learned counsel for the appellant submits that the rider of the motorcycle bearing Reg.No.KA-52-H-8820 did not possess a valid and effective driving licence as on the date of accident. He further submits that the said contention is specifically mentioned in the written statement and the appellant had also taken witness summons to RTO as well as owner of the vehicle- respondent No.2, but they have not appeared before the Tribunal. Since Insurance Company had no details with regard to driving licence, it had taken witness summons to owner of the vehicle-respondent No.2 and had also issued letter-Ex.R-3 to him and in that circumstance, it is for the claimant-respondent No.1 to prove that whether rider of the offending vehicle was possessing a valid and effective driving licence as on the date of accident.
10. Issue No.1 framed by the Tribunal is as to whether the claimant proves that he has sustained injuries in the motor vehicle accident that occurred on 27-7-2011 at about 2.45 p.m., near B.H.Road, Nelamangala town, with the jurisdiction of Nelamangala traffic police station on account of rash and negligent riding of the motorcycle bearing registration No.KA-52-H-8820 by its rider as alleged in the petition? The Tribunal by analyzing the material on record has answered the said issue in the affirmative.
11. It is the case of the claimant that while he was crossing the road, the motorcycle bearing Reg.No.KA-52- H-8820 came in a rash and negligent manner and dashed against him. With regard to the said accident, the police have registered the case against the rider of the offending vehicle in Cr.No.208/2011 for the offences punishable under Sections 279 and 337 of IPC and have also filed the charge-sheet. There is no dispute with regard to the policy issued by respondent No.1-Insurance Company in respect of second respondent’s vehicle which was in force as on the date of accident.
12. The Tribunal has observed that the driver of the motorcycle one Mr. Kumar is not examined before the Tribunal and also the appellant-Insurance Company has not taken summons to the said rider and no record from the Regional Transport Authority was produced to prove their contention that the rider of the motorcycle was not holding a valid and effective driving licence as on the date of accident. Further it is noticed that the witness summons taken to the RTO Authorities has returned stating that without particulars of the licence they are not in a position to produce the document. The appellant- Insurance Company had not made any further efforts to secure the details of the licence or otherwise from respondent No.2-owner of the motorcycle. If the rider of the motorcycle were to be summoned, he would have stated as to whether he had the licence to drive the motorcycle or not. Owner of the Motorcycle or rider would have been the best witness to say whether rider had licence to drive the motorcycle or not. The contention that the rider of the offending vehicle had no driving licence to drive the vehicle as on the date of accident cannot be accepted in the facts and circumstances of the case. The Tribunal has rightly by its detailed reasoning rejected the contention of the appellant-Insurance Company. I find no error or perversity in the judgment and award passed by the Tribunal.
Accordingly, the appeal is dismissed.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE SMJ