IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16th DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K SOMASHEKAR M.F.A.NO. 2917/2015 (MV) BETWEEN:
KEMPAIAH AGED 77 YEARS S/O LATE MUNIMAREGOWDA C/O A.B.SHIVANNA ATTIKUPPE VILLAGE & POST MARALAWADI HOBLI KANAKAPURA TALUK RAMANAGARA DISTRICT … APPELLANT (BY SRI GIRIMALLAIAH, ADV.) AND:
1 ICICI LOMBARD MOTOR INSURANCE COMPANY LIMITED SVR COMPLEX, NO.89, 2ND FLOOR, HOSUR ROAD MADIWALA BENGALURU 560 068 BY ITS MANAGER 2 MR.NAGARAJU A.C MAJOR, S/O CHENNABASAVEGOWDA NO.16/1, 1ST CROSS OPP: BUS STAND, KALASIPALYAM BENGALURU 560 002 … RESPONDENTS (BY SRI B.C.SHIVANNEGOWDA, ADV FOR R-1 NOTICE TO R-2 HELD SUFFICIENT V/O DT. 18.2.2019) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 15.12.2014 PASSED IN MVC NO.3494/2013 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES & XXVI ACMM, MACT, BANGALORE PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for admission, with the consent of learned counsel for the appellant and respondent-1, matter is taken up for final disposal.
2. It is stated in the claim petition that on 20.05.2013 at about 5.00 p.m., claimant is said to have injured while alighting from the bus bearing registration No.KA-02-AND-5959 at Harohalli bus stop, Kanakapura Taluk when driver of the bus moved the same in a rash and negligent manner without any signal from the conductor and on account of the same, claimant fell down and sustained injuries. Subsequently, claimant was shifted to Kanakapura Government Hospital and thereafter he was shifted to Sanjay Gandhi Hospital, Bengaluru wherein, he was treated as an inpatient. Therefore, claimant sought for compensation from the respondents for the injuries sustained by him.
3. Before the Tribunal, respondent-1 is the insurer and respondent-2 is owner of the offending vehicle. After service of summons, respondent-1 – insurer filed its objections wherein, it is admitted that offending vehicle was insured with them and insurance policy was in force as on the date of accident and denied other averments made in the claim petition. Based upon the pleadings of the parties, Tribunal has framed the issues. In order to substantiate his case, claimant examined himself as P.W.1, examined two witnesses namely, P.W.2 – Doctor and P.W.3 and got marked the documents Exs.P-1 to P-12. On behalf of respondents, Respondent-1 – insured examined its Manager as R.W.1 and one witness – R.W.2 and got marked the documents Exs.R-1 to R-5. The Tribunal, on appreciation of oral and documentary evidence, has awarded compensation of Rs.1,37,000/- with interest at 6% p.a. from the date of petition till the date of payment to the claimant under various heads which is at paragraph 25 of the judgment and fastened the liability on the owner of the offending vehicle to pay compensation. Being aggrieved by the said judgment and award, appellant – claimant has preferred this appeal.
4. Learned counsel for the appellant has contended that on account of negligence on the part of driver of the offending vehicle, appellant – claimant sustained injuries. It is further contended that Tribunal has committed an error in fastening the liability on the owner of the offending vehicle and as on the date of accident, offending vehicle was insured with first respondent. He has further contended that Tribunal ought to have taken into consideration age of the claimant i.e., 75 years while computing the compensation and compensation awarded under various heads is on the lower side and he prays for enhancement of compensation.
5. Learned counsel for the first respondent – insurer has taken me through the evidence of the injured claimant-P.W.1, Doctor – P.W.2 so also the documents – Wound certificate – Ex.P-6, Discharge summary – Ex.P-7, X-rays – Ex.Ps.11 & 12 and contended that compensation awarded by the Tribunal is just and proper and prays for dismissal of the appeal.
6. On re-appreciation of oral and documentary evidence, it is seen that there is no dispute to the fact that claimant sustained injuries on account of negligence of the driver of the offending vehicle and that offending vehicle was insured with first respondent. Tribunal has considered the oral and documentary evidence available on record and has rightly computed the compensation at Rs.1,37,000/- with interest at 6% p.a. Therefore, this Court is of the considered view that the compensation awarded by the Tribunal is just and proper and does not call for interference.
7. However, Tribunal has fastened liability on the owner of the offending vehicle to pay compensation to the claimant. Keeping in view the principles laid down in the judgment rendered by Hon’ble Apex Court in AMRIT PAUL SINGH & ANOTHER vs TATA AIG GENERAL INSURANCE COMPANY LIMITED & OTHERS reported in (2018)7 SCC 558 wherein Hon’ble Apex Court has dealt with Sections 149(2), (1), 66(1), 66(3), 2(28), (31), (47) and 166 of Motor Vehicles Act, 1988 and held that insurer must be entitled to recover the amount from the owner of the vehicle being in consonance with principle of ‘pay and recover’, this Court is of the considered view that said principle applies to the case on hand.
8. Hon’ble Apex Court in the case of RANI AND OTHERS vs NATIONAL INSURANCE COMPANY LIMITED & OTHERS reported in (2018)8 SCC 492 has dealt with Section 149 of the Motor Vehicles Act, 1988 and held that defence raised by the insurer that offending vehicle did not possess a valid permit and accepting that defence, High Court absolving the insurer and fastening liability on the insured, in such a case, compensation determined must be first paid by the insurer and thereafter recover the same from the owner of the offending vehicle. The principles laid down in the said case are squarely applicable to the case on hand.
9. For the reasons aforestated, I proceed to pass the following:
ORDER (i) Appeal is hereby allowed in part.
(ii) Judgment and award dated 15.12.2014 passed by the Small Causes and MACT, Bangalore in MVC NO.3494/2013 is modified and liability to pay compensation is fastened on the first respondent – insurance company.
(iii) First respondent shall pay compensation with accrued interest to the appellant – claimant as indicated in the judgment and award of the Tribunal and thereafter recover the said amount from the owner of offending vehicle namely, second respondent.
(iv) Office is directed to draw the decree accordingly.
Sd/- JUDGE *sp