IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE BELLUNKE A.S.
M.F.A. NO. 193 OF 2013 (MV) BETWEEN :
UMESH SHETTY S/O DEVADAS SHETTY AGED ABOUT 46 YEARS DOOR NO.1-47, AJARU KONDAMOOLE, KATEEL, KINNIGOLI, MANGALORE TALUK-584148 ...APPELLANT (BY SRI M.J.ALVA, ADV.) AND :
1. THE FUTURE GENERAL INDIA INSURANCE CO. LTD., UNIT NO.201 AND 202 2ND FLOOR, INLAND AVENUE M.G. ROAD, BALLALBAGH MANGALORE-575003 REP. BY ITS MANAGER 2. Mr. HAMSA S/O Mr. ABBU AGED ABOUT 51 YEARS R/AT MOTHER HOUSE THUMBE, BANTWAL TALUK-574143 3. Mr. GANESH K., S/O K.MONAPPA AGED ABOUT 47 YEARS RESIDING NEAR SHARADAKATTE KOLYA, ULLAL, KOTEKAR MANGALORE-575020 …RESPONDENTS (BY SRI H.C.VRUSHABHENDRAIAH, ADV. FOR SRI H.S.LINGARAJ, ADV. FOR R-1;
R-2 & R-3 ARE SERVED & UNREPRESENTED.) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 28.08.2012 PASSED IN MVC NO.896/2011 ON THE FILE OF MEMBER, MACT-VI & II ADDITIONAL SENIOR CIVIL JUDGE, MANGALORE, D.K., DISMISSING THE CLAIM PETITION FOR COMPENSATION.
THIS M.F.A. COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the claimant against the judgment and award dated 28.08.2012 passed in MVC No.896/2011, wherein the learned MACT (Tribunal) had rejected the claim of the claimant for award of compensation for the damages caused to his motorcycle.
2. Brief facts leading to this case for the purpose of this appeal are as under:-
On 20.03.2011, at about 12.15 p.m., the claimant’s Hero Honda motorcycle bearing registration No.KA-19-EA-1044 and Tipper Lorry bearing registration No.MH-4-L-6392 met with an accident and thereby certain damages were caused to the vehicle of the claimant. It is alleged that the accident occurred due to the rash and negligent act of the driver of the Tipper Lorry. On account of the damages caused to the motorcycle, the claimant filed a claim petition before the Tribunal claiming compensation of Rs.30,000/- with interest and cost. The said petition was resisted by respondent No.1 – Insurance Company. The driver and owner of the Tipper Lorry have not contested the petition. It was contended by the Insurance Company that the claim petition is bad for non-joinder of necessary party i.e., insurer of Hero Honda bearing No. KA-19-EA-1044 and it is learnt that the claimant has claimed damages from his insurer. Therefore, he cannot claim once again. The driver of the Tipper Lorry was not holding the valid and effective driving licence as on the date of the accident. Therefore, there is violation of policy condition and hence, prayed to dismiss the claim petition.
3. Based on the above said pleadings, the Tribunal had framed the following issues:-
1) Whether the petitioner proves that the accident that occurred on 20.3.2011 at about 12.15 noon, near the entrance gate of Kodamanithaya Daivasthana, in Kateel Mangalore State High Way road, due to rash and negligent driving of the driver of the Tipper lorry bearing Registration No.MH-4-L- 6392 and due to which the vehicle of the above said petition i.e., Hero Honda Pleasure bearing registration No.KA-19-EA-1044 has got damages?
2) Whether the 1st respondent proves that the driver of the above said vehicle was not holding valid and effective driving licence at the time of alleged accident?
3) Whether the petitioner proves that he is entitle for any compensation? If so, to what amount and from whom?
4) What Award or Order?
4. After holding the trial, the Tribunal answered the issues as under:-
Issue No.1 - : In the Affirmative. Issue No.2 - : In the Negative.
Issue No.3 - : In the Negative.
Issue No.4 - : As per the final order.
5. Consequently, the appellant/claimant is before this Court questioning the finding of the Tribunal on issue Nos.3 and 4.
6. It is contended that the Tribunal dismissed the claim petition solely by relying upon the arguments of the respondent’s counsel. Though documents were produced at Exs.P3 to P6 regarding the repairs effected to the motorcycle, but, the Tribunal has not considered the same. Whole claim of the appellant/claimant was rejected on the ground that he has not examined the author of Exs.P3 to P6. The Tribunal has also not considered that Exs.P1 to P2 were documents issued by the Bajpe Police. A copy of the Driving Licence of the driver of the offending vehicle is also got marked. The Tribunal has mechanically dismissed the petition without proper appreciation of the evidence on record and the law applicable. Therefore, the appellant prayed to allow the appeal.
7. Heard the arguments of the learned counsel appearing for the parties at length.
8. Learned counsel for the appellant submitted that the accident is not in dispute. The rash and negligent act on the part of the driver of the Tipper Lorry has been proved and it is confirmed by the Tribunal. But the Tribunal has dismissed the claim of the appellant/claimant mainly on the ground that he has not examined the person who issued the bills for having carried out repairs to the motorcycle. However, the learned counsel for the appellant submitted that photographs of the damaged vehicle have not been produced. Hence, the learned counsel submitted that the claimant was entitled for a reasonable compensation and prays to allow the appeal.
9. As against this, learned counsel for respondent No.1 - Insurance Company submitted that the claimant has not disclosed whether he has made any claim against his own insurer for the damages that might have been caused to the vehicle of the claimant. In fact, causing of the damages to the vehicle in question has not been proved. The Motor Vehicle Inspection Report has not been produced. No charge- sheet was filed against the driver. However, learned counsel would fairly conceded that the fact of the accident is not in dispute. Therefore, the learned counsel for respondent No.1 prays to dismiss the appeal. In support of his arguments, the learned counsel has also relied on the ruling reported in ILR 2000 KAR 2009 (Karnataka State Road Transport Coporation vs. George Ninum).
10. On the basis of the above said facts and circumstances, the following points would arise for consideration:-
1) Whether the finding of the Tribunal on issue Nos.3 and 4 is erroneous in law, facts and evidence on record and therefore, it is liable to be set aside?
2) What order?
11. The accident was between a Tipper Lorry and a motorcycle. The fact of the accident is not in dispute. The finding of the Tribunal is that the driver of the Tipper Lorry was rash and negligent, which resulted in the accident. Having regard to the these facts alone on record, the possibility of causing damage to the motorcycle cannot be ruled out. Admittedly, the police appears to have not registered a regular criminal case and prosecuted the driver for the offence punishable under Section 279 of IPC. On the other hand, the driver appears to have been made to pay fine of Rs.500/- and a check report cum receipt was produced before the Tribunal by summoning and it is marked at Ex.P1. The extract pertaining to the incident in question was reported by issuing a notice under Section 160 of the Motor Vehicles Act by the jurisdictional police. In this report, the date and time of the accident, registration numbers of the vehicles involved in the accident, driving licence held by the driver and particulars about insurance policy which was issued in respect of the offending vehicle are mentioned. Under Ex.P3 several receipts were got marked to show that the vehicle was repaired at a particular Service Station and the claimant had incurred certain expenses. The Tribunal disbelieved the evidence mainly on the ground that the author of those receipts has not been examined, but the Tribunal failed to consider that in a case of the accident between the big vehicle and small vehicle, minimum damages could have been inferred based on the evidence available on record. As stated by PW.1 himself, the Tipper Lorry had hit on the front side of the motorcycle. Immediately he had lodged the police complaint and police have taken some action and levied penalty on him. Having regard to the aforesaid evidence available on record, the Tribunal could not have dismissed the petition. It is also important to note that the respondent - driver or any official of the insurance company were examined to rebut the evidence on record.
12. The one argument that was advanced is that the appellant/claimant has not produced any document to show that he has not claimed damages from his own insurer of the vehicle. Therefore, it is not known how much amount he has claimed from his own insurer. Hence, it was necessary for the owner to disclose these facts. Hence, the learned counsel supported the finding of the Trial Court. It is important to note that this fact alone would not come in the way of refusing the compensation for the damages caused to the claimant’s vehicle. This fact can be ascertained by respondent No.1 - Insurance Company itself and can claim contribution. But, in view of the finding to the fact that the respondent - lorry driver was found to be negligent, the respondent cannot contend that he is not liable to pay the compensation. In the ruling cited by the learned counsel for the respondent No.1 – Insurance Company, involvement of the vehicle in the accident was not proved. In that context, non-examination of the owner or person who carried repairs was held fatal to the case of the claimant to claim compensation. Hence, Co- ordinate bench of this Court had rejected the claim. In my opinion, the said judgment would not be applicable to the case on hand, having regard to the facts and circumstances narrated above.
13. Now the question would be how much compensation is to be quantified in respect of the claim made by the damages. No doubt, under Exs.P3 to P4, total amount spent for repairs would comes to Rs.13,020/-, these receipts can be relied on to hold that the nature of injuries that might have been caused to the motorcycle in question having regard to the nature of the accident and the vehicles involved in the accident. In view of the non-examination of author of these receipts, the entire amount claimed under the receipts cannot be awarded. But at the same time, the claim could not have been dismissed totally. Therefore, having regard to the size of the vehicles that were involved in the accident, reasonable amount of damages of Rs.6,000/- can be inferred having regard to the date of the accident i.e., value of the money that was there at that time. The award of simple interest would also compensate to the sufficient extent. On account of long pendency of the case for various reasons, it would not be appropriate to award 6% as it is normally awarded in MVC cases. Therefore, I award the interest at the rate of 5% per annum on the amount of Rs.6,000/- from the date of the order of the Tribunal. With that observations, points are answered in the affirmative and I proceed to pass the following ORDER The appeal filed by the appellant/claimant is allowed.
The respondent No.1 - Insurance Company is directed to pay the amount of Rs.6,000/- to the appellant/claimant with interest at 5% per annum from the date of the order of the Tribunal till the deposit.
Registry to send the records to the Tribunal along with the copy of this order.
(Sd/-) JUDGE PMR