1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO MISCELLANEOUS FIRST APPEAL NO.4850 OF 2019(MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.4851 OF 2019(MV-I) BETWEEN:
UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, BRIDGE ROAD, BALMATTA, MANGALORE D.K., NOW REPRESENTED BY ITS DEPUTY MANAGER T.N. ADISESH, REGIONAL OFFICE, 6TH FLOOR, KRUSHI BHAVAN, HUDSON CIRCLE, NRUPATHUNGA ROAD, BENGALURU-560 002.
...COMMON APPELLANT (BY SRI. L.SREEKANTA RAO, ADVOCATE) AND:
1. DHANANJAYA @ DHANANJAYA NAIK, S/O SUNDARANAIK, AGED ABOUT 26 YEARS, R/O BAREMBADY HOME, RAMAKUNJA VILLAGE, KOILA POST, PUTTUR TALUK, D.K. DISTRICT.
2. PAVAN KUMAR.M., MAJOR, S/O DIVAKARA BHAT, R/O HARI NIVASA, KEMMARA K.C. FARM POST, PUTTUR TALUK, D.K. DISTRICT.
…COMMON RESPONDENTS (BY SRI. VISHWANATHA POOJARY.K., ADVOCATE FOR C/R-1 - IN MFA No.4850/2019) IN MFA 4850 OF 2019:
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED: 27.02.2019 PASSED IN MVC NO.1176/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MACT, MANGALURU, D.K., SITTING AT PUTTUR AWARDING COMPENSATION OF Rs.6,16,900/- WITH INTEREST AT THE RATE OF 7% P.A. (EXCLUDING INTEREST ON FUTURE MEDICAL EXPENSES) FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
IN MFA 4851 OF 2019:
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED: 27.02.2019 PASSED IN MVC NO.1177/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MEMBER, ADDITIONAL MACT, MANGALURU, D.K., SITTING AT PUTTUR, D.K., AWARDING COMPENSATION OF Rs.36,300/- WITH INTEREST AT 7 PER CENT P.A. (EXCLUDING INTEREST ON FUTURE MEDICAL EXPENSES) FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These appeals are directed against the judgment and award dated 27.02.2019 passed by the V Additional District And Sessions Judge, Member, Additional MACT, Mangaluru, D.K., Sitting At Puttur, D.K. in:
MVC No.1176/2017 wherein the claim petition came to be allowed in part and the compensation of Rs.6,16,900/- came to be awarded together with interest at 7% per annum (excluding interest on future medical expenses) from the date of petition till realization.
MVC No.1177/2017 wherein the claim petition came to be allowed in part and Rs.36,300/- came to be awarded together with interest at 7% per annum from the date of petition till realization towards repair charges, professional charges, professional charges/surveyor fee, transportation charges and conveyance charges.
2. With the consent of learned counsel on both sides, both the appeals are taken up together for final disposal.
3. Being aggrieved by the said order, the insurance company has come up in these two appeals.
4. The facts leading to the accident are that; on 16.11.2016 at about 4 pm, the petitioner was proceeding on his motor cycle bearing registration No.KA-21-L-0394 from his house towards Uppinangady.
When he reached Athoor, Uppinangady village, Puttur Taluk, Dakshina Kannada District, driver of the car bearing registration No.KA-01-N-6285 drove the same from the Uppinangady side in a rash and negligent manner and dashed against the petitioner causing injuries.
5. The petitioner suffered the following injuries (in MVC 1176/2017):
1. Right frontal hemorrhagic contusion with perilesional Edema.
2. Subdural hematoma along right fronto temporo parietal region with midline shift of about 7mm towards left side.
3. Subarachnoid hematoma along right frontal cortical sulci.
4. Linear undisplaced fracture of left petrous temporal bone.
5. Communited fracture shaft of right tibia.
6. Abrasion 3 x 1cm on the middle or right leg.
7. Lacerated wound 4cm over left occipital region.
6. The daily income of the claimant is considered at Rs.400/- per day and calculated at Rs.12,000/- per month. Loss of future income is considered at Rs.3,67,200/-.
7. Insofar as MVC No.1177/2017 is concerned, the compensation is sought for damages to the vehicle. The damages stated are as under.
Front fork bent; Fuel tank dented; Cover muffler dented: Headlamp assy broken: side indicators broken: Brake pedal twisted; Frame assy bent; Engine guard bent: Pillion step LH bent: Swing arm bent: Fork main pipes bent: Handle bar bent: Stem bent: Front fender cut; Front Visor broken; RH cover cut; RH rear cowl broken; Fork needs resetting; Chassis stripping and resetting needed.
8. The only grievance of the learned counsel for the appellant is that the vehicle was not having fitness certificate, as such, the claimant cannot seek compensation. It is necessary to clarify that the date of accident was on 16.11.2016. The policy was issued on 17.07.2016 and the fitness certificate is stated to have expired on 14.04.2016. Thus, it had expired earlier to the date of issuing of the policy.
9. The insurance company was conscious and very well aware that the fitness certificate has been expired. Knowing fully well about the lack of permit to the vehicle and without raising objections, the policy is issued.
10. It is necessary to mention “after the commencement of the game, there shall be no change of rules of game”. The insurance company claiming to be an institution under the Motor Vehicles Act, which is a social legislation is estopped from blowing both hot and cold at the same time. It is necessary for the insurance company to understand that when once the vehicle was accepted for policy and after issuance of the policy, same was issued knowing abundantly clear that there was no fitness certificate and once accident happens perhaps the insurance company started remembering about the absence of fitness certificate.
11. As it is only the objection raised by learned counsel, I find objection is not tenable and compensation granted both for the injuries and damages are just, fair and equitable. There is no necessity of proceeding further in the appeals, as such, they are liable to be rejected at this stage itself.
Accordingly, both the appeals are rejected.
Amount in deposit shall be transmitted to the Tribunal.
Sd/-
JUDGE GH