IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.6614/2010 C/W M.F.A.No.6613/2010 (MV) IN MFA No.6614/2010: BETWEEN:
SRI M SRINIVAS MURTHY AGED ABOUT 34 YEARS S/O MARUTHI T V PRESENTLY R/O No.25/2F II FLOOR, 7TH MAIN, 9TH CROSS MALLESWARAM BANGALORE – 560 003.
(BY SRI K P THRIMURTHY, ADVOCATE) AND:
1. SRI MANESH S/O MANI AGED ABOUT 25 YEARS CHANAPPANAHALLI BANGALORE – 560 037.
..APPELLANT 2. THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE No.2 B, UNITY BUILDING ANNEX, P KALINGA RAO ROAD BANGALORE – 560 027.
..RESPONDENTS (BY SRI S T RAJASHEKARA, ADVOCATE FOR R2, R1 IS SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.02.2010 PASSED IN MVC No.4593/2009 ON THE FILE OF THE III ADDITIONAL JUDGE, MACT, BENGALURU(SCCH-18), AWARDING A COMPENSATION OF Rs.75,200/- WITH INTEREST @ 6% P.A.FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA No.6613/2010:
BETWEEN:
SRI M SRINIVAS MURTHY AGED ABOUT 34 YEARS S/O MARUTHI T V PRESENTLY R/O No.25/2F II FLOOR, 7TH MAIN, 9TH CROSS MALLESWARAM BANGALORE – 560 003.
(BY SRI K P THRIMURTHY, ADVOCATE) AND:
..APPELLANT 1. SRI SAMPATH KUMAR AGED ABOUT 28 YEARS S/O MOHAN M R/AT No.12/274/1A SECTOR ‘A’ RAMAIAH REDDY COLONY BASAVESHWARANAGAR BANGALORE – 560 037.
2. THE NEW INDIA ASSURANCE CO. LTD., REGION OFFICE, No.2 B, UNITY BUILDING ANNEX, P KALINGA RAO ROAD BANGALORE – 560 027.
..RESPONDENTS (BY SRI S T RAJASHEKAR, ADVOCATE FOR R2, R1 IS SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.02.2010 PASSED IN MVC No.4592/2009 ON THE FILE OF THE III ADDITIONAL JUDGE, MACT, BENGALURU(SCCH-18), AWARDING A COMPENSATION OF Rs.1,57,200 /- WITH INTEREST @ 6% P.A.FROM THE DATE OF PETITION TILL DEPOSIT.
THESE MFAs COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These are the two appeals directed against the Judgment and award passed in MVC No.4592/2009 and MVC No.4593/2009 on the file of III Additional Judge, MACT, Bengaluru, dated 20.02.2010 wherein claim petitions filed by petitioners therein came to be partly allowed and a compensation of Rs.1,57,200/- and Rs.75,200/- respectively together with interest at the rate of 6% p.a. from the date of petitions till date of deposit came to be awarded.
2. In order to avoid confusion and overlapping, parties are referred in accordance with rankings held by them before the Tribunal.
3. The proceedings before the Tribunal came to be initiated because of a road traffic accident that occurred on 07.06.2009 at about 11.30 P.M. when one Manish was riding Honda Activa bearing registration No.KA-03-HC-877 and Sampath Kumar was the pillion rider. They were on Mahadevapura ring road near Mahalakshmi Timber Yard, Bangalore, at that time motorcycle bearing registration No.KA-04-S-7762 ridden in a rash and negligent manner dashed against the motorcycle on which said petitioners were traveling, because of which the rider and pillion rider of Honda Activa fell down and sustained injuries all over the body and were driven for getting medical treatment as well. In the process they incurred medical expenditure and various other kind of expenditure. Thus, claim petitions came to be filed.
4. Having considered the relevant aspects, learned Member granted compensation stated above and fastened the liability on the first respondent – Srinivasa Murthy, S/o T.V.Murthy. Non possessing of licence and the fact that he is the registered owner regard being had to the fact that appellant-respondent No.1 before the Tribunal contended that when the vehicle was parked in parking slot of his office, it was taken or stolen by security staff and accident was committed by him. More particularly said security staff after meeting with the accident has addressed a letter/complaint to the police regarding he committing accident and he had brought the motorcycle without informing its owner who is respondent No.1. Incidentally the said complaint marked as Exhibit R-5 is not dated. The question that would call for consideration is, two wheeler is ridden by a person who never had driving licence. Injuries were sustained and compensation was awarded as under:
5. On perusal of the different heads of income considered for compensation I find that learned Member has considered `loss of earning’ and `loss of future income’ is refused in both cases and there is observation in the Judgment regarding reimbursement of medical expenses. However, claimants are not in appeal and though served remained absent before the court. In the circumstances I find the `loss of future earning’ is not reckoned. Thus, in the absence of details I find that an amount of Rs.50,000/- in MVC No.4592/2009 and Rs.35,000/- in MVC No.4593/2009 would meet the ends of justice.
6. In the instant case, accident is admitted and the doctor has not been examined and future loss of income is not reckoned. I find this is not proper. Hence, said amount of Rs.50,000/- and Rs.35,000/-
are reckoned as global compensation to be included in the total compensation.
7. Thus, the Judgment and award dated 20.02.2010 passed in MVC Nos.4592/2009 and 4593/2009 by MACT, Bangalore, granting compensation deserves to be modified to the said extent. Further regarding liability, it is fastened on the owner considering non possessing of valid licence by the rider of the vehicle. In this connection learned counsel for owner has relied on the following decisions:
(i) United India Insurance Company Ltd. Vs Lehru and others in Civil Appeal No.1959/2003 (ii) Bajaj Allianz General Insurance Company Limited Vs Bhimraj and others in MFA No.10685/2013 dated 22.07.2015.
8. In the circumstances, absence of valid licence makes the owner liable to pay compensation. However, it is necessary to refer the principles laid down in the case of Pappu and others Vs Vinod Kumar Lamba and anr reported in AIR 2018 SC 592 which reads as under:
“Motor Vehicles Act (59 of 1988), S.149 – Insurer’s liability – Accident occurred due to rash and negligent driving of truck- Insurer taking plea that driver of offending truck had no valid licence –Except copy of driving licence of person, owner of offending truck not producing any evidence establishing that it was driven by authorized person having valid driving licence –Fact that offending truck was duly insured – Would not per se make insurance company liable –However, insurance company directed to pay award amount to claimants in first instance and in turn, recover same from owner of vehicle.”
9. Thus, in the facts and circumstances of this case, it is just and proper to direct the insurance company to make good the compensation to the claimants.
10. Thus, in both the cases claimants are entitled for enhancement of compensation. Rs.50,000/- in MVC No.4592/2009 and Rs.35,000/- in MVC No.4593/2009 with interest @ 6% p.a.
11. It is necessary to mention that claimants have not preferred appeal seeking enhancement and they not even participated in the proceedings after receiving notice. Still there is no impediment for this court to assess the just compensation and in case it appears to be lower than the just and fair compensation. Hence, the claimants are entitled for enhanced compensation amount as stated above.
Both the appeals are disposed of.
Insurance company is directed to deposit the compensation amount with interest @ 6% p.a. within four weeks from the date of receipt of certified copy of this order with an option to recover the same from the owner-appellant herein without going for separate suit but filing execution petition.
The impugned Judgment and award is modified to the extent stated above.
Since the claimants did not participate in the proceedings, they remained absent, it is ordered that Taluka Legal Services Authority of Bengaluru shall assist the claimants in securing compensation after following necessary formalities. The liability on the appellant as a RC owner does not get fettered because of his contention of loosing the vehicle as long as he remains registered owner of the vehicle.
Sd/- JUDGE SBN