1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR MISCELLANEOUS FIRST APPEAL NO.8791 OF 2010 (MV) BETWEEN:
KUMARI PALLAVI D/O P. REVANGOWDA AGED ABOUT 9 YEARS SINCE APPELLANT IS A MINOR REPRESENTED BY HER NATURAL GUARDIAN FATHER P.REVANAGOWDA S/O BASALINGANAGOWDA AGED ABOUT 47 YEARS AGRICULTURIST, R/O GUNDAGATTI HARAPPANAHALLI TALUK …APPELLANT (BY SHRI. H.C. PRAKASHA, ADVOCATE) AND:
1. AJAYA S/O HANUMANTHAPPA AGED ABOUT 23 YEARS DRIVER OF THE BIKE R/O NALUVAGALU VILLAGE KUMARAPATNAM POST RANEBENNUR TALUK HAVERI DISTRICT 2. UMESH HITTALAMANI S/O HANUMANTHAPP 2 AGED ABOUT 34 YEARS R/O NALUVAGALU VILLAGE KUMARAPATNAM POST RANEBENNUR TALUK HAVERI DISTRICT 3. THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO. LTD., WALI COMPLEX, SHIMOGA ROAD HARIHARA … RESPONDENTS (VIDE ORDER DATED 03.12.2013, NOTICE TO R1 IS DISPENSED WITH;
R2 – SERVED BUT UNREPRESENTED SHRI. D.S. SRIDHAR, ADVOCATE FOR R3) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 3.12.2009 PASSED IN MVC NO.145/2009(OLD MVC 249/07) ON THE FILE OF SENIOR CIVIL JUDGE & MACT-IX, HARAPANAHALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
3 JUDGMENT This appeal is presented by the claimant before the Tribunal challenging judgment and award dated December 3, 2009, in MVC No.145/2009.
2. The instant claim petition was filed contending inter alia that a minor injured claimant suffered fracture of right tibia in a road traffic accident that occurred on 06.06.2006. Medical bills as per Exhibits P8 to P18 were marked which cumulatively account for Rs.4,100/-. Except the said evidence, no other evidence has been placed by the claimant. In the circumstances, the Tribunal has awarded a sum of Rs.20,000/- with 6% interest per annum and absolved the insurer of the offending vehicle from liability. Feeling aggrieved, the claimant is before this Court.
3. Shri Prakasha H.C., learned advocate for the appellant firstly contended that the child victim has 4 suffered fracture of right tibia and same is a grievous injury. However, Tribunal has awarded inadequate compensation. He next contended that absolving the insurer of the liability is unsustainable in law inasmuch as the insurer has not made any effort to show that there was any breach of policy conditions.
4. Learned advocate for the respondent-Insurer contended that admittedly the rider of offending vehicle did not possess any licence. Hence, the Tribunal has rightly absolved the insurer.
5. I have carefully considered rival submissions and perused the records.
6. So far as the quantum of compensation is concerned, except exhibits Ex.P8 to P18, medical bills amounting to Rs.4,100/-, no evidence is placed by the claimant. The accident has occurred in the year 2009 and the Tribunal has awarded a sum of Rs.10,000/-
5 towards pain and sufferings, Rs.5,000/ towards medical expenses, Rs.3,000/- towards loss of amenities, Rs.2000/- towards conveyance and thus in all awarded a sum of Rs.20,000/-. In the absence of any medical evidence, keeping in view the age of the child, in my view, ends of justice would be met by awarding an additional global compensation of Rs.10,000/-.
7. So far as the liability is concerned, learned Tribunal has recorded that adverse inference has to be drawn against the petitioner and respondents No.1 and 2 with regard to production of driving licence.
8. The insurer’s plea is that rider of the offending vehicle did not possess a valid licence. No material is placed before the Court to show that any efforts were made with regard to production of driving licence of the rider. Once the insurer enters into a contract, 6 burden lies upon him to satisfy the Court that there was a breech of terms of contract to be absolved from the liability.
9. The insurer has got issued notices Ex.R2 and R3 to the owner and rider of the vehicle. However, it appears that same was not followed to its logical conclusion. In the circumstances, following the authority in National Insurance Co.Ltd. Vs. Swaran Singh & Others (2004(3) SCC 297), it would appropriate to direct the insurer to pay and recover the compensation amount from the owner. Hence, the following:
ORDER (i) Appeal is allowed in part.
(ii) Additional global compensation of Rs.10,000/- is awarded in addition to Rs.20,000/- awarded by the Tribunal;
7 (iii) The insurer shall deposit the sum of Rs.20,000/- with interest at 6% p.a. from the date of claim petition till the date of deposit + Rs.10,000/- global compensation within four weeks from the date of receipt of a copy of this order.
(iv) Insurer is entitled to pay and recover from the owner.
Sd/- JUDGE Yn.