IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A. NO. 7599 OF 2009 (MV) C/W M.F.A.CROB NO.65/2010 M.F.A. NO. 7599 OF 2009 (MV) BETWEEN;
National Insurance Co., Ltd., Chitradurga Branch.
Through its Regional Office, #144, Subharam Complex, M.G. Road, Bangalore-560 001.
Rep by its Asst. Administrative Officer (By Sri.K.S.Lakshmi Narasappa, Advocate) AND:
1. Sri Shivarudrappa, Aged about 56 years, S/o Thippanna, Group ‘D’ Employee, Health Department, Adivala, Hiriyur Taluk.
2. Sri M.B.Thippeswamy, Major in age, S/o M.R.Basavaraj, Residing at Sri Malleshwara Nagar, ... Appellant Challakere Town, Challakere, (Insured of Auto No.KA.16/5701) 3. Mr.Arif Khan, Major in age, S/o Mr.Anwar Khan, R/o Gopalapura Extension, Hiriyur, Chitradurga District. (Owner of Auto No.KA.16/5701) (By Sri.B.L.Kumar, Advocate for R1;
…Respondents vide order dated 02.01.2012 R2 and R3 –notice held sufficient) This Miscellaneous First Appeal is filed under section 173(1) of MV Act against the judgment and award dated 08.07.2009 passed in MVC No.117/2006 on the file of the Civil Judge (Sr.Dn) and Member, Additional Mact, Hiriyur, awarding a compensation of Rs.66,000/- with interest @ 6% P.A from the date of petition till realization.
MFA CROB No.65/2010 BETWEEN Sri Shivarudrappa, Aged about 57 years, S/o Thippanna, Group ‘D’ Employee, Health Department, Adivala, Hiriyur Taluk.
(By Sri.B.L.Kumar, Advocate) …Cross Objector AND 1. The Branch Manager, Branch Office, P.B.No.94, B.M. Complex, Laxmi Bazar, Chitradurga. National Insurance Co., Ltd., Chitradurga Branch.
Through its Regional Office, #144, Subharam Complex, M.G. Road, Bangalore-560 001.
2. Sri.M.B.Thippeswamy S/o M.R.Basavaraj, Aged 35 years, R/o Sri.Malleswhara Nagar, Challakere Town, Challakere, 3. Arif Khan, S/o Anwar Khan, Aged about 40 years, R/o Gopalapura Extension, Hiriyur, Chitradurga District.
(By B.C.Seetharam Rao, Advocate …Respondents vide order dated 02.01.2012 R2 and R3 notice held sufficient) This MFA Crob.No.65/2010 in MFA No.7599/2009 filed under Section 41 Rule 22, read with Section 151 of CPC against the judgment and award dated 08.07.2009 passed in MVC No.117/2006 on the file of the Civil Judge (Senior Division) Additional MACT, Hiriyur, partly allowing compensation and seeking enhancement of compensation.
This M.F.A. and MFA Crob coming on for Final Hearing this day, the Court delivered the following:
JUDGMENT MFA No.7599/2009 is filed by the insurer of offending vehicle challenging the judgment and award passed by the Tribunal on the ground of liability. Whereas MFA Cross Objection No.65/2010 is filed by the claimant seeking enhancement of compensation awarded by the Tribunal.
2. With the consent of learned counsels appearing for the parties both the appeal and Cross Objection were heard together and disposed of finally by this common judgment. Perused the judgment and award passed by the Tribunal.
3. As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident occurred on 15.01.2005 due to rash and negligent driving of an Autorikshaw bearing registration No.KA-16/5701 by its driver, the points that arise for consideration are:
i) Whether the finding of the Tribunal on liability in fastening the liability on the appellant-insurer of the offending vehicle is sustainable in law?
ii) Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement.
4. Sri.Lakshminarasappa, for Sri.B.C.Seetharam Rao, learned counsel for the appellant submits that the driver of the offending vehicle having not possessed the transport endorsement as on the date of accident could not have driven the offending vehicle which is a transport vehicle, the Tribunal without considering this has committed an error in fastening the liability on the appellant. He submits quantum of compensation awarded by the Tribunal is just and reasonable and there is no scope for reduction. Therefore, he prays for allowing the appeal preferred by the insurer and dismissing the cross- objection preferred by the claimants.
5. Sri.B.L.Kumar the learned counsel appearing for the claimant submits that issue relating to liability is already covered by the judgment of the Hon’ble Supreme Court in the case of Mukund Dewangan V/s. Oriental Insurance Company reported in AIR 2017 SC 3668 against the insurer. He submits quantum of compensation awarded by the Tribunal is on the lower side and therefore, he prays for dismissing the appeal preferred by the insurer and allowing the cross-objection.
6. The driver of the offending vehicle having possessed the licence to drive light motor (Non-Transport) vehicle had driven the offending Autorikshaw which is a light motor goods transport vehicle and the unladen weight of which is less than 7500 kgs. If that is so the instant case is fully covered by the aforesaid judgment of the Hon’ble Supreme Court against the insurer, hence the appeal filed by the insurance company is liable to be dismissed as devoid of merit.
IN MFA.CROB No.65/2010 As per Ex.P6-wound certificate, claimant had sustained the following injuries.
i) Contusion injury over neck 8x3 cms;
ii) Tenderness lover back, iii) Loss of teeth;
iv) Fracture of upper jaw;
v) Fracture of T.L.Spine A.P, vi) Fracture of shoulder;
vii) Anterior compression present vertebra;
viii) Fresh of bleed back L2, L3 and dislocation of right clavicle;
Except wound certificate, the claimant has not produced any other medical records to show the nature of injuries sustained by him and duration of treatment underwent. Even Doctor was not examined regarding disability. He has not produced any medical bills regarding amount spent for treatment, medicine and incidental expenses. Therefore, considering the nature of injuries indicated in the wound certificate, a total of Rs.1,00,000/- is awarded as against Rs.66,000/- awarded by the Tribunal with interest at 6% PA. Hence, the following order;
ORDER i) MFA filed by the insurance company is dismissed;
ii) MFA.Crob filed by the claimant is allowed in part;
iii) Claimant is entitled for a total compensation of Rs.1,00,000/- as against Rs.66.000/- awarded by the tribunal with interest at 6% PA from the date of claim petition till the date of payment.
iv) The Insurance Company is directed to deposit the compensation amount with interest at 6% PA from the date of claim petition till the date of realization within two months from the date of receipt of a copy of this order.
v) Amount deposited in the appeal of Insurance Company is ordered to be transmistted to the Tribunal for disbursement in favour of the claimant in terms of the award of the Tribunal.
In view of disposal of main appeal, IA.No.1/2015 for amendment of claim amount is dismissed as it does not survive for consideration.
No order as to costs.
SD/- JUDGE SB