IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE M.F.A NO.10317 OF 2011 (MV) BETWEEN:
SRIDHAR ACHARY S/O NARASIMHA ACHARY AGED 39 YEARS R/AT KOTESHWARA VILLAGE KUNDAPURA TALUK (BY MR.MAHESH SHETTY, ADV.) AND:
1. PRAKASH ACHARYA S/O BABU AGED ABOUT 42 YEARS R/AT H.NO.109, CHANDRANATH NAGAR HUBLI 2. THE NATIONAL INSURANCE CO. LTD., BRANCH OFFICE: HUBLI REP BY ITS DIVSIONAL OFFICE SHANKAR BUILDING UDUPI … APPELLANT (BY MR.C.M.POONACHA ADV. FOR R2 R1 SERVED AND UNREPRESENTED) - - -
… RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWRD DATED 20.06.2011 PASSED IN MVC NO.946/2007 ON THE FILE OF SENIOR CIVIL JUDGE & MEMBER, ADDITIONAL MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
JUDGMENT Mr.Mahesh Shetty, learned counsel for the appellant.
Mr.C.M.Poonacha, learned counsel for respondent No.2.
3. This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’ for short) by the claimant seeking enhancement of the amount of compensation.
4. Facts giving rise to filing of this appeal briefly stated are that on 12.05.2007 at about 7.30 p.m., the appellant was traveling as a pillion rider, which was being driven in a rash and negligent manner by respondent No.1. The respondent No.1 suddenly applied brakes and lost control over the motor cycle.
Thereupon, the appellant fell down and sustained grievous injuries. The appellants sustained a fracture of lower radius of right hand. The appellant filed a petition under Section 166 of the Act claiming compensation in which inter alia it is pleaded that the petitioner was engaged as a welder and was earning a sum of Rs.6,000/- p.m. The respondent No.1 was proceeded exparte. The respondent No.2 filed the written statement in which inter alia a plea was taken that respondent No.1. had no valid and effective driving licence from the date of accident and therefore, the motor cycle was driven in terms and conditions of the policy. However, respondent No.2 did not lead any evidence.
5. The claims Tribunal on the basis of the pleadings of the parties framed the issues and recorded the evidence. Therefore, vide award dated 20.06.2016, the claims Tribunal inter alia held that in an accident on 12.05.2007, the appellant sustained fracture. The appellant was awarded a sum of Rs,1,05,400/- with 6% interest. However, the insurance company was exonerated of its liability to indemnify the insured on the ground that the appellant failed to produce the driving licence of respondent No.1.
6. Learned counsel for the appellant submitted that the amount of compensation awarded by the claims tribunal on account of pain and suffering is on the lower side and the tribunal also have appreciated that the burden to prove that the motor vehicle was being driven in a violation of the terms and conditions of the policy on learned counsel for respondent No.2-insurance company. On the other hand, learned counsel for respondent No.2 has supported the award passed by the Claims Tribunal.
7. I have considered the submissions made by learned counsel for both the parties. The law laid down by the supreme court in the case of ‘MUKUND DEWANGAN VS. ORIENTAL INSURANCE COMPANY LIMITED’, (2017) 14 SCC 663, the insurance company is liable to make payment of the amount of compensation.
8. In view of the enunciation of law, it is evident that the burden was on the insurance company to prove that he vehicle was being driven in a rash and negligent manner. At the time of the accident, the respondent No.1 did not have any driving licence and the motor cycle written statement driven in violation of the terms and conditions of the policy. The respondent No.2 has failed to discharge the aforesaid burden by leading any evidence. Therefore, the respondent No.2 could not have been exonerated of its liability merely on the ground that the appellant has failed to prove the Driving Licence of respondent No.1. In the result, the finding recorded by the claims tribunal with regard to exonerating of respondent No.1 is set aside. The claims tribunal has awarded a sum of Rs.20,000/- on account of pain and suffering which appears to be inordinarily low. Accordingly, in the facts and circumstances of the compensation under the head pain and suffering is increased to Rs.50,000/-. Thus, in all respondent No.2 is held liable to pay a sum of Rs.1,34,500/- to the appellant with interest at the rate of 6% in the manner indicated by the Tribunal. To the aforesaid extent, the award passed by the Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/- JUDGE SS