IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.1602/2010 (MV) BETWEEN:
NATIONAL INSURANCE CO., LTD., KUNDAPURA BRANCH.
THROUGH ITS REGIONAL OFFICE # 144, SUBHARAM COMPLEX M.G.ROAD, BANGALORE – 560 001 REP BY ITS ADMINISTRATIVE OFFICER SMT.D KARTHIKA.
(BY SRI S KRISHNA KISHORE, FOR SRI B C SEETHARAMA RAO, ADVOCATE) AND:
1. SMT.ASMABI W/O INBRAHIM AGED ABOUT 43 YEARS RESIDENT OF GUNDMI VILLAGE POST:SASTAN, UDUPI TALUK.
2. SRI G MOHAMMED S/O FAKIR BEARY AGED ABOUT 47 YEARS RESIDENT OF GUNDMI VILLAGE POST:SASTAN, UDUPI TALUK.
…APPELLANT 3. SRI V LAKSHMINARAYANA, MAJOR S/O VARADA PILLAI RESIDING AT H.No.116/768 4TH MAIN ROAD, BHAIRAVEHWAR NAGAR NAGARABHAVI MAIN ROAD, BANGALORE.
INSURER OF MARTUTI VAN No.KA.02/M-3017) ...RESPONDENTS (BY SRI MAHESHKIRAN SHETTY, ADVOCATE FOR R1 SRI G M SRINIVASA REDDY, ADVOCATE FOR R3 R2 IS SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.12.2009 PASSED IN MVC No.733/2003 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT AND MACT, KUNDAPUR, AWARDING A COMPENSATION OF Rs.61,600/- AND ENTITLED FOR INTEREST AT THE RATE OF 6% P.A. ON THE SUM Rs.40,910 ONLY, FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION SEEKING TO SET ASIDE THE SAME AGAISNT THE APPELLANT.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the Insurance Company is directed against the judgment and award dated 11.12.2009 passed in MVC No.733/2003 by the Presiding Officer, Fast Track Court and MACT, Kundapura, wherein the claim petition filed under Section 166 of MV Act came to be allowed in part granting the compensation of Rs.61,600/- with interest at 6% p.a. on Rs.40,910/- only from the date of petition till its realization and holding that respondents 2 and 3 are jointly and severally liable to pay compensation and fixing primary liability on the Insurance Company which is challenged by the Insurance Company in this appeal.
2. In order to avoid confusion and overlapping, parties hereinafter are referred to with reference to their rankings as it stood before the Tribunal.
3. The proceeding came to be initiated before the Tribunal because of a road traffic accident that occurred on 6.3.2003 at 5.45 hours when the petitioner was traveling as a passenger in a Maruti Omni bearing Registration No.KA.02.M.3017 from Yellapura side towards Bagalkote. By that time, near Kolikeri of Yellapura, the first respondent drove the said vehicle in a rash and negligent manner, lost control over it and dashed to the road side electric pole. Because of which, petitioner sustained grievous injuries and for that he took treatment at Vijayashree Hospital, Kundapura and she incurred expenses. She claims that she was doing beedi rolling work and also working as an agricultural coolie and earning Rs.5,000/- per month and due to accidental injuries she sustained permanent disability and she claims compensation of Rs.4,60,000/-.
4. The claim of the petitioner was contested by the respondents. The appellant in this appeal being respondent No.3-Insurance Company before the Tribunal disputed the liability to compensate to the petitioner because of the injuries sustained by her and took up the contention that the vehicle Maruthi Omni is insured and the liability is governed by the terms and conditions of the policy and the vehicle could be used only for his trade, business or for their personal purposes and the petitioner is excluded.
5. The learned member of the Tribunal was accommodated with the oral evidence of PWs 1 to 3 and documentary evidence of Exs.P1 to P49 on behalf of petitioner and DW1 to D3 and Exs.D1 on behalf of respondents and Ex.C1 and C2 on behalf of the Court.
6. The learned Member after hearing the parties considered the case on the aspects of accident, injury, negligence on the basis of the oral and documentary evidence and other materials available on record and partly allowed the petition and granted the compensation as stated above, which is challenged in this appeal by the Insurance Company.
7. The question that was focused by the learned counsel for the appellant is that, there is no liability on the part of the Insurance Company because the petitioner was a gratuitous passenger. On being questioned, learned counsel for appellant would state that Insurance Company has not stated whether she was a gratuitous or non gratuitous passenger and he has no answer for the same.
8. The learned counsel for the appellant has relied on the following decisions:
(i) In the case of Oriental Insurance Company Limited Vs. Sudhakaran K.V. and others reported in [(2008)7 Supreme Court Cases 428];
(ii) In the case of the Branch Manager, The New India Assurance Company Limited Vs. Mahadev Pandurang Patil and another reported in ILR 2012 Karnataka 1841;
(iii) In the case of National Insurance Company Limited Vs. Srinivasa and others (MFA No.4246/2009 Disposed of on 1/7/2017) 9. Road traffic accident dated 6.3.2003 is not disputed. As per Ex.P3- wound certificate, petitioner suffered three injuries, viz., (i) lacerated wound over the right leg about 6 x 3 cm with skin loss; (ii) contusion injury to right leg and (iii) Abrasions all over the body. The learned Member considering the nature of injuries sustained by the petitioner and the period of treatment taken by her, has awarded a sum of Rs.61,623-62 which is rounded off to Rs.61,700/- (Rs.12,000/- for pain and sufferings; Rs.16,533.62 for medical expenses; Rs.4,500/- for special diet nourishment and attendant charges; Rs.6,300/- for loss of income during treatment period; Rs.20,790/- for loss of future income due to disability; Rs.1,500/- for conveyance charges). The compensation awarded by the learned Member is just and reasonable and it does not call for interference.
10. Insofar as liability is concerned, learned Member has observed that the persons who were traveling in the said vehicle are all relatives of the driver of the vehicle and the Insurance Company is liable to pay the compensation. In the circumstances, I do not find that the Insurance Company is to be absolved from its liability. Thus, the insurance company is liable to make good the compensation awarded by the Tribunal.
Hence, I find that the judgment and award passed by the learned Member does not call for interference.
12. For the foregoing reasons, the appeal filed by the Insurance Company is devoid of merits and hence, it is rejected.
The amount deposited by the Insurance Company shall be transmitted to the concerned Tribunal.
Sd/- JUDGE tsn*