IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.5855/2009 (MV) BETWEEN:
THE ORIENTAL INSURANCE CO. LTD., No.6, 7TH MAIN, III BLOCK NEXT TO BTS, KALYANA MANTAPA KORAMANGALA, BANGALORE – 34. REPRESENTED BY ITS THE ASST. MANAGER THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE LEO SHOPPING COMPLEX No.44/45, RESIDENCY ROAD BANGALORE – 560 025.
…APPELLANT (BY SRI M U POONACHA, ADVOCATE) AND:
1. SMT. LAKSHMAMMA W/O RAMANNA AGED 79 YEARS R/AT No.17/1, OLD No.58 MADHAVAMANDIRA 2ND FLOOR, SAMIPURA MAIN ROAD CHAMARAJPET, BANGALORE.
2. SRI N SURESH S/O M NARAYANA, MAJOR R/AT No.126, 3RD CROSS NANJAPPA BLOCK, K.G.NAGARA GAVIPURAM GUTTAHALLI BANGALORE – 18.
...RESPONDENTS (BY SRI R CHANDRASHEKAR, ADVOCATE FOR R1- ABSENT SERVICE OF NOTICE TO R2 IS HELD SUFFICIENT V/O DATED:12.06.2013) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:10.02.2009 PASSED IN MVC No.1053/2008 ON THE FILE OF THE XI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, METROPOLITIAN AREA, BANGALORE, (SCCH.No.12), AWARDING A COMPENSATION OF Rs.70,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Learned counsel for the appellant present. Learned counsel for the respondent absent. No representation. The matter is of the year 2009 in terms of appeal and in terms of claim petition and accident it is of the year 2008. Hence, the appeal is taken up for final disposal.
This appeal by the Insurance Company is directed against the judgment and award dated 10.02.2009 passed in MVC No.1053/2008 by the XI Additional Judge, Court of Small Causes and Member MACT, Bengaluru SCCH 12.
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 claim petition came to be filed before the Tribunal in respect of a road traffic accident that occurred on 7.1.2008 at about 9.30 p.m. when the petitioner was waiting for an autorickshaw near Dhondusa Kalyana Mantapa at Chamarajapet, Bengaluru due to rash and negligent driving of a car bearing Registration No.KA.05.D.3417 by its driver and dashed against the petitioner. Due to which, she sustained grievous injuries. The petitioner claims to have undergone treatment in hospital and despite medical treatment she is not that fit as she was in the pre accident period. Thus she presented a claim petition seeking an amount of Rs.6,00,000/- as compensation.
4. Second respondent-Insurance Company appeared and resisted the claim of the petitioner contending that there is breach of terms and conditions of the policy and the accident was solely due to the negligence of the petitioner herself as she tried to cross the road without observing the traffic rules and there is contributory negligence on her part.
5. The learned Member was accommodated with the oral evidence of PWs 1 and 2 and RW1 and documentary evidence of Exs.P1 to P10 and Exs.R1 and 2.
6. The learned Member after hearing the parties considered the case on the basis of the oral and documentary evidence and other materials available on record and partly allowed the petition and granted the compensation of Rs.70,000/- with interest at 6% p.a. from the date of petition till its realization and holding that 2nd respondent shall pay 50% of the compensation amount and petitioner is not entitled to balance 50% of compensation amount as she has contributed negligence to an extent of 50% towards the accident. The same is challenged by the Insurance Company in this appeal.
7. The learned counsel for the Insurance Company Sri. M.U.Poonacha, would submit that the driver of the offending vehicle was not possessing valid driving licence and had licence to drive light motor vehicle and non transport vehicle and was not authorized to drive a transport vehicle by virtue of non possessing either driving licence for transport vehicle nor the endorsement on the vehicle that he possessed and therefore, the liability saddled on the insurance company is liable to be set aside.
8. In the accident, the petitioner sustained fracture of lateral end of right clavicle which is grievous injury and she took treatment as inpatient from 7.1.2008 to 16.1.2008 and as per the evidence of the Doctor, petitioner suffered permanent disability of 9% to the whole body. Petitioner has produced copy of FIR, panchanama, sketch, chargesheet, wound certificate, discharge summary, medical bills, outpatient record, admission record and X rays films as per Exs.P1 to P10. The learned member has awarded compensation of Rs.20,000/- towards pain, shock and agony, Rs.40,000/- towards medical expenses, Rs.10,000/- towards loss of future happiness and loss of amenities and in all Rs.70,000/-. The same is just and fair and it is maintained.
9. However there are no grounds to reckon contributory negligence. Considering the quantum of compensation. In the circumstances, I find that, there was no necessity for the learned member to apportion the negligence in the ratio of 50:50 on the part of the driver of the offending vehicle and the petitioner and the same deserves to be set aside by fastening entire negligence on the part of the driver of the offending vehicle.
10. At this stage, learned counsel for the appellant-Insurance Company would submit that the claimant has not preferred any appeal nor the counsel for claimant is present. Considering the copy of the sketch of the place of accident, discharge summary, wound certificate with reference to the claim, apportionment of negligence between the driver of the car and the petitioner-injured does not appear to be proper. There is no appeal by the claimant nor the counsel for the appellant is present. Even then, the Court is bound to grant just compensation irrespective of the fact as to whether claimant has preferred the appeal or cross objections.
11. For the foregoing reasons, the appeal filed by the appellant is rejected. However, the impugned judgment and award dated 10.2.2009 passed by the Tribunal in MVC No.1053/2008 is modified by setting aside 50% of the contributory negligence fixed against the petitioner by fastening the entire negligence on the part of the driver of the offending vehicle.
The insurance company is directed to deposit the entire compensation amount with interest within four weeks from the date of receipt of a copy of this judgment.
The amount deposited by the Insurance Company shall be transmitted to the jurisdictional Tribunal, forthwith.
Sd/- JUDGE tsn*