IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE N.K.SUDHINDRARAO M.F.A. No.3252/2012 C/W M.F.A. No.2093/2012 (MV) IN M.F.A. NO.3252/2012 BETWEEN:
SRI BYREGOWDA S/O. RAMAIAH, AGED ABOUT 26 YEAS, R/AT NO.AREKYATHANAHALLI, MAKALI POST, DASANAPURA HOBLI, BENGALURU ORTH TALUK.
(BY SRI.SHRIPAD V. SHASTRI, ADV.,) AND:
1. H.S. GANGAIAH S/O. SIDDARAMAIAH, HAROKATHANAHALLI, MAKALI POST, DASANAPURA HOBLI, BENGALURU NORTH TALUK.
2. THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE-7, SHANKAR HOUSE NO.1, 3RD FLOOR, RMV EXTENSION, MEKRI CIRCLE, BENGALURU-80.
… APPELLANT …RESPONDENTS (BY SRI. M. ARUN PONNAPPA ADV., FOR R2 NOTICE TO R1 IS DISPENSED WITH V/O DATED 31.05.2016) THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 7.9.2011 PASSED IN MVC NO.7281/2010 ON THE FILE OF XXII ACMM., AND XXIV ASCJ., MACT., BENGALURU PARTLY ALLOWING THE CLAIM PETITIN FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC., IN M.F.A. NO.2093/2012 BETWEEN:
THE ORIENTAL INSURANCE CO.LTD., DIVISIONAL OFFICE-7, SHANKAR HOUSE NO.1, 3RD FLOOR, RMV EXTENSION, MEKRI CIRCLE, BENGALURU-560080.
NOW BY REGIONAL OFFICE, LEO SHOPPING COMPLEX, 44/45, RESIDENCY ROAD, BANGALORE-560025. (REPRESENTED BY ITS DEPUTY MANAGER SMT. B.S.PADMAJA) (BY SRI. ARUN PONNAPPA, ADV.,) AND:
1. SRI BYREGOWDA AGED ABOUT 25 YEAS, R/AT NO.AREKYATHANAHALLI, MAKALI POST, DASANAPURA HOBLI, BENGALURU ORTH TALUK.
2. H.S. GANGAIAH S/O. SIDDARAMAIAH, HAROKATHANAHALLI, MAKALI POST, DASANAPURA HOBLI, BENGALURU NORTH TALUK.
… APPELLANT …RESPONDENTS (NOTICE TO R1 AND R2 SERVED - UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 7.9.2011 PASSED IN MVC NO.7281/2010 ON THE FILE FO XXII ACMM., AND XXIV ASCJ., MACT., BENGALURU AWARDING COMPENSATION OF RS.1,64,600/-. AND ETC., THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Appeals are directed against the judgment and award passed by the XXIV Addl., Small Causes Judge, Bengaluru on 07.09.2011 wherein, the claim petition came to be allowed in part and a compensation of Rs.1,64,600/- was awarded to the claimant-petitioner.
2. M.F.A. No.3252/2012 has been filed by the claimant for enhancement of compensation and M.F.A. No.2093/2012 has been filed by the Insurance Company to set aside the judgment award. It is stated that the liability is clamped both on the insurer and the owner, however there is a condition that the insurance company has to indemnify the respondent No.1 – owner and shall deposit the said amount within 30 days from the date of this award and thereafter may recover the said amount from the respondent No.1- owner without initiating any separate proceedings.
3. Road traffic accident said to have occurred on 18.10.2010 at about 10.30 a.m., when the petitioner was proceeding as pillion rider of motorcycle bearing registration No.KA-02-EN-4120 near Makali service road, Dasanapura Hobli, on N.H.4, Bangaluru-Tumkuru road and it was ridden in a rash and negligent manner and dashed against another motorcycle bearing registration No.KA-05 HE-762, because of which the petitioner sustained injuries and on preferring a claim petition, the learned Member has awarded compensation at Rs.1,64,610 together with interest @ 6% per annum from the date of petition till realization. Peculiarly, the liability fixed jointly and severally between the owner and the Insurance company. Again there is a condition to the effect that upon payment of compensation amount to the claimant, the insurance company is given an option to recover from the owner of the vehicle.
4. Learned counsel for the claimant Sri Shripad V. Shastri, would submit that the injuries are not properly considered and disability has been under assessed and the same has been resulted in rejection of compensation on every count. The date of accident was 18.10.2010 and monthly income claimed by the claimant was Rs.7,000/-.
5. Insofar as the injuries are concerned as per the wound certificate, they are as under a. Abration on left leg b. Fracture of left Tibia Insofar as the second injury is concerned, it is stated to be fracture of left tibia. But the Doctor considered it as a simple injury. Insofar as the ‘grievous hurt’, it is defined under Section 320 of IPC. The disability assessed by the doctor on the injury at 40% to the left lower limb and 13% to the whole body. The income is considered at `3,500/- per month.
6. In the circumstances of the case, the petitioner claimed to be a corporate employee. PW-2- Doctor in his cross-examination has stated that he has no difficulty in leading a normal life. Hence, the learned Member on considering the evidence of the Doctor has come to a conclusion and assessed the disability 6%. On perusal of the judgment, considering the nature of injuries sustained by the petitioner -claimant in the accident, I find that there are no grounds to interfere with the finding of the learned Member and basically amount of compensation and assessment of disability are neither under assessed nor higher. They are fairly assessed. There is no purpose or necessity far continuing both the appeals. Both appeals are rejected.
7. Later on, since the judgment is not yet signed, submission of the learned counsel for the Insurance Company is heard.
8. After judgment was dictated, learned counsel for the Insurer Sri. Arun Ponnappa would submit that he has a case on merits, on the ground that as on the date of incident policy was not in force as the policy in question bears the period from 19.10.2010 to midnight of 18.10.2011.
9. In the circumstances, I have assessed the submission made by learned counsel for the Insurance Company and the reasons assigned by the learned Member with reference to the admission regarding collecting premium for renewal on 18.10.2010. I find that only the formality of policy was not done. Even if it was issued on 19.10.2010, it does not have over riding power against the subsistence of receiving the premium amount on 18.10.2010. Thus, after hearing the submission of the learned counsel for the Insurance Company, I find that the order passed earlier today prevails.
Sd/- JUDGE BS/tsn*