IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO 6085 OF 2015(M V) BETWEEN THE NEW INDIA ASSURANCE CO LTD., CHANDANA COMPLEX HARSHA MAHAL ROAD HASSAN THROUGH ITS BENGALURU REGIONAL OFFICE NO. 9/2 DO-III MAHALAKSHMI COMPLEX MG ROAD, BENGALURU-56001 REPRESENTED BY ITS MANAGER. ... APPELLANT (BY SRI. S. V. HEGDE MULKHAND - ADV.) AND 1. SRI JAYARAMA S/O THIPPEGOWDA AGED ABOUT 49 YEARS R/O NUGGEHALLY VILLAGE CHANNARAYAPATNA TALUK HASSAN DISTRICT – 573116.
2. SRI CHAMARAJ S/O RAMASWAMYGOWDA MAJOR IN AGE R/O MUKIKERE VILLAGE HIRISAVE HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573116.
3. SRI RAMACHANDRA S/O LATE DYAVAIAH MAJOR IN AGE R/O AMBEDKAR NAGAR KR PETE TOWN MANDYA DISTRICT-571812. ... RESPONDENTS (RESPONDENTS NO.1, 2 AND 3 ARE SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.02.2015 PASSED IN MVC NO. 2035/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHANNARAYAPATNA, AWARDING COMPENSATION OF RS.1,50,000/- WITH INTEREST @ 6% P.A. ON RS.1,30,000/- (EXCLUDING FUTURE MEDICAL EXPENSES OF RS.20,000) FROM THE DATE OF PETITION TILL DEPOSIT.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard learned counsel for the appellant. Though notice is served on respondents, they remained unrepresented.
2. This appeal is preferred by the appellant/insurance company against the judgment and award dated 27.02.2015 passed by the Tribunal in MVC No.2035/2011 on the ground of liability.
3. The factual matrix of the appeal is as under:
It is stated in the claim petition that on 24.10.2009 at about 3.00 p.m. when the claimant was proceeding in auto bearing Reg.No.KA-13-5462 on the left side of Nuggehalli road, in front of Morarji School, near Janatha house, at that time the driver of JCB bearing Reg.No.KA- 13-M-5378 moved the bucket of JCB to the road side in rash and negligent manner and dashed against the auto due to the said impact, the auto turned turtle and the claimant sustained grievous injuries. Immediately, he was shifted to Government Hospital, Channarayapatna, SSM Hospital, Hassan and Nimhans Hospital, Bangalore and he was treated as inpatient and continued follow-up treatment and has spent sufficient amount towards, medical, conveyance and nourishment. Further, it is stated that the Channarayapatna Town Police have registered a case against the driver of the offending vehicle in Cr.No.362/2009. First respondent is the owner, second respondent is the insurer of the offending vehicle and the third respondent is the RC owner of auto and they are jointly and severally liable to pay the compensation. On these grounds, the claimant filed the claim petition seeking compensation.
4. On issuance of notice, first respondent though he was represented by a counsel, but did not chose to file written statement. The second and third respondents filed written statement denying the petition averments. Based upon the pleadings, the Tribunal framed the issues. In order to substantiate his claim, the claimant examined himself as PW.1 and also examined PW.2 – Doctor and got marked Exs.P1 to P9. On behalf of the respondents RW.1 and RW.2 were examined and Exs.R1 to R9 were got marked. The Tribunal after hearing the learned counsel for the petitioner and learned counsel for respondents, passed the impugned judgment awarding compensation of Rs.1,50,000/- with interest @ 6% p.a. It is this judgment which is challenged by the insurance company on the question of liability by urging various grounds.
5. Sri S.V.Hegde Mulkhand, learned counsel for the appellant/insurance company contends that the impugned judgment and award is arbitrary and contrary to the evidence on record and the law laid down by this Court. Further, he contends that the accident had occurred on 24.10.2009 and the complaint was lodged belatedly on 31.10.2009 by falsely implicating the JCB bearing No.KA-13-M-5378 and the Tribunal has erred in fastening the liability on the insurer of the JCB to pay the compensation. Further, he contends that the petitioner has stated before the Tribunal that after the alleged accident on 24.10.2009, he was shifted to Channarayapatna Government Hospital for treatment. But whereas, Ex.R-7, the endorsement shows that the petitioner was admitted to SSM Hospital on 25.10.2009.
Further, he contends that the medical records of the NIMHANS dated 6.11.2015 shows that the petitioner sustained injuries in a road traffic accident while sitting in an auto rickshaw and fell down on his back. But none of the medical records reflects that the petitioner sustained injuries due to the involvement of the insured JCB bearing No.KA-13-M-5378. The said JCB has not caused any accident as alleged. The petitioner who was traveling in a goods auto rickshaw bearing No.KA-13-5462 which had no insurance policy, only with a motive to secure the compensation illegally, the JCB has been falsely implicated.
6. Further, it is contended that the petitioner has admitted in the cross examination that he had no difficulty in giving complaint immediately after the accident. The autorickshaw in which the petitioner was traveling had no insurance coverage as on the date of the accident. He contends that the medical records produced, complaint belatedly filed and all other surrounding circumstances proves that in order to secure the compensation, the JCB which was insured has been falsely implicated.
7. Further, he contends that the driver of the JCB had no valid and effective driving license at the time of the accident to drive such type and class of vehicle as required under the provisions of MV Act, 1988. The Tribunal having ignored all these aspects, erred in fastening the liability to pay the compensation on the appellant/insurer which is unsustainable in law. On all these grounds, he prays to allow the appeal, by setting the aside the judgment and award passed by the Tribunal.
8. As already observed, though notice is served upon the respondents in this appeal, they have remained unrepresented. However, keeping in view the arguments advanced by the learned counsel for the appellant and on evaluation of oral and documentary evidence on record, the Tribunal has held that the petitioner has proved that on 24.10.2009 at about 3 p.m. when, he and others were coming in an auto-rickshaw bearing No.KA-13-5462 on the left side of Nuggehalli road, in front of Morarji School, at that time the driver of a JCB bearing No.KA-13-M-5378 turned his Bucket to the road side in a rash and negligent manner and dashed against the auto and as a result of it the auto turned turtle and petitioner sustained bodily injuries.
9. PW.1 in his evidence has stated that he has sustained grievous injuries and immediately was shifted to the Government hospital, Channarayaptna, SSM hospital, Hassan and Nimhans Hospital, Bangalore and was treated as inpatient. Ex.P3 is the wound certificate, Ex.P8 is the case sheet and Ex.P9 is the X-Ray. PW.2 – Dr.V.Mahesh who examined the claimant has assessed the disability at 26%. The wound certificate reveals that the claimant has sustained cervical spine tenderness and associated injuries and the same is grievous in nature. He was treated as inpatient from 06.11.2009 to 27.11.2009. The contents of the medical documents and the X-rays make it clear with regard to the gravity of the injuries sustained by the claimant. The claimant has undergone surgery. The Tribunal having considered the nature and gravity of injuries, period of treatment taken, follow up treatment has awarded compensation under the heads pain and suffering and medical, conveyance and nourishment. The Tribunal has also awarded compensation under the heads disability, loss of amenities and future medical expenses by taking into consideration the grievous nature of injuries sustained by the claimant. The compensation awarded by the Tribunal under the above heads appears to be just and reasonable and needs no intervention.
10. Third respondent is the RC owner of the auto and he was examined as RW.2. It is reflected in the judgment that even prior to the date of incident he has sold the auto and the auto has been falsely implicated for the purpose of compensation. He also admits that he has no documents for having sold the auto and he does not know about the accused and one Mr.Madhu. He has denied the ownership and liability. On appreciation of this evidence, the Tribunal has rejected the claim petition against the third respondent.
11. Learned counsel for the appellant has taken me through the evidence of RW.1 and the documents produced as per Ex.R1-policy, Ex.R-2 – ‘B’ register extract, Ex.R3 – DL extract and other documents to contend that the insurance company is not liable to pay the compensation. It is evident to note that the evidence of PW.1 corresponds with the contents of the documents produced and it is very clear that there is a rash and negligent act on the part of offending vehicle – JCB by its driver. Further, a case in Cr.No.362/2009 and the charge sheet has also been filed against him. Further, the contents of Ex.P3 – wound certificate reveals that the incident occurred on 24.10.2009 and the claimant was examined at Government Hospital, Channarayapatna on 31.10.2009. Further the contents of Ex.R6- inpatient admission register reveals that on 25.10.2009 at about 9.00 a.m. the claimant was admitted at SSM Hospital, Hassan and Ex.P2- complaint reveals that the incident occurred on 24.10.2009 at 3.00 p.m. The Tribunal after thoroughly considering all these oral and documentary evidence on record has rightly held that the accident occurred due to the rash and negligent act on the part of the driver of the offending JCB as a result of which the claimant sustained grievous injuries and the Tribunal rightly awarded compensation of Rs.1,50,000/- which is neither said to be unjust or unreasonable.
12. Learned counsel for the appellant vehemently contends that the Tribunal ought not to have fastened the liability to pay the compensation awarded and ought to have dismissed the appeal filed by the claimant as there was no valid driving licence to drive the offending vehicle. However, at a cursory glance of evidence of PW.1 and PW.2 as well as documentary evidence as per Exs.P1 to P9 and so also the evidence of RW.1 and RW.2 and Exs.R1 to R9, the Tribunal has rightly held that it was only due to the rash and negligence act of the driver of offending vehicle the accident has occurred and due to the accidental injuries the claimant is suffering from disabilities. Further, the claimant being the inmate of the auto and that charge sheet is filed against the driver of JCB, the Tribunal has rightly held that the respondents 1 and 2 being the RC owner and insurer of JCB, are jointly and severally liable to pay the compensation amount. I find no justifiable ground to interfere with the said finding of the Tribunal. The Tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the injured and awarded just and fair compensation, and the same does not calls for interference.
Accordingly, the appeal preferred by the appellant/insurance company is hereby dismissed as devoid of merits. Consequently, the judgment and award passed by the Tribunal in MVC No.2035/2011 is hereby confirmed. The amount in deposit, if any, shall be transmitted to the concerned Tribunal, forthwith along with the LCR.
SD/- JUDGE DKB