THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE, 2017 BEFORE THE HON’BLE MR. JUSTICE N. K. SUDHINDRA RAO M.F.A. NO.5964/2014 (MV) BETWEEN THE MANAGER, BAJAJ ALLIANZ INSURANCE CO. LTD.
G. E. PLAZA, AIRPORT ROAD, YARAVADA, PUNE – 411 006. BY THE BRANCH MANAGER, BAJAJ ALLIANZ INSURANCE COMPANY LIMITED BRANCH OFFICE, SRI HARI COMPLEX, SITHA VILAS ROAD, MYSORE – 570 024.
AND NOW BY BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. REGIONAL OFFICE, GOLDEN HEIGHTS, 4TH LEVEL, NO.1/2, 59TH CROSS, 4TH “M” BLOCK, RAJAJINAGAR, BANGALORE – 560 010.
BY ITS MANAGER. ...APPELLANT (BY SRI. O. MAHESH, ADVOCATE) AND 1. HARISH Y. H., AGE 28 YEAR, S/O LATE HANUMEGOWDA, R/O YADIYURU VILLAGE, MALLIPATTANA HOBLI, ARKALGUD TALUK, HASSAN DISTRICT – 573 201.
2. RAJEGOWDA, AGE 48 YEARS, S/O BIREGOWDA, DODDABEMMATHI VILLAGE, MALLIPATTANA HOBLI, ARAKALGUD TALUK, HASSAN DISTRICT – 573 201. ... RESPONDENTS (BY SRI. GIRISH B. BALADARE, ADV. FOR R-1 [ABSENT], R-2 SERVED.) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.7.2014 PASSED IN MVC NO.1287/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, ARKALGUD, AWARDING A COMPENSATION OF RS.2,26,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF PAYMENT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The matter is called in the afternoon session. The learned counsel for the appellant is present. Learned counsel for the respondent is absent. No representation on behalf of the respondent.
2. This appeal is filed seeking to set aside the judgment and award dated 22.07.2014 in MVC No.1287/2012 passed by the Senior Civil Judge and MACT at Arakalgud wherein the Tribunal allowed the claim petition in part and awarded a sum of Rs.2,26,000/- with interest at 6% pa from the date of petition till realization.
3. The brief facts of the case that emanate from the records are that, on 26.04.2012 at about 11.00 a.m., the petitioner to attend his personal work, was going on TVS XL motor cycle bearing registration No.KA.13.W/3644 to Konanur from Yadiyuru slowly and cautiously by observing all traffic rules on left side of the road, on Malipatna- Konanur Road, in between Neelakunda and Gerukuppe, near Dharmappa’s land of Gerukuppe, at that time, the driver of a Trax bearing registration no. KA.13/A-1930 came from opposite direction in a rash and negligent manner with high speed and hit the motor cycle on which the petitioner was proceeding. Due to which, the petitioner fell and sustained injuries to his left femur bone, left patella, head, tenderness over right shoulder and other parts of the body. Out of said 5 injuries, 3 grievous are grievous and two are simple in nature. The claimant took treatment for the said injuries and he was said to be an inpatient for 5 days in the Government Hospital at Arakalgud. It is stated that, Arkalgud police have also registered a criminal case against the driver of the offending vehicle in Crime No. 86/2012 for the offences punishable under Sections 279, 337 of IPC r/w. Sections 134(A) & (B), 184 of IMV Act.
4. Before the Tribunal, the appellant/claimant got himself examined as PW.1 and also got examined Doctor who treated him as PW.2-Dr. Abdul Basheer, and got marked Exs.P1 to P20, including FIR, Complaint, Wound Certificate, Mahazars etc. and sought for compensation of Rs.14,00,000/-. In support evidence of the respondent, two persons were examined as RWs. 1 & 2 and they have also got marked the documents Exs. R1 to R10 including Insurance Policy, MLC Extract, DL Extract, etc.
5. The Tribunal considering maternal propositions asserted by one and denied by the other party, the oral and documentary evidence, has framed the issues on accident, injuries sustained by the petitioner, entitlement of compensation etc.., and based on which, awarded compensation of Rs.2,26,000/- with interest at 6% pa from the date of petition till the date of payment as against the claim of Rs.14,14,000/- and directed the 2nd respondent –Insurance Company to deposit the award amount within one month from the date of its order.
6. Heard Sri. O. Mahesh, learned counsel appearing for the Respondent-Bajaj Allianz General Insurance Company. He contends that, there is no proper assessment of oral and documentary evidence produced before the Tribunal. He denies the claim of the claimant by contending that, alleged accident was false and cooked-up one against insured vehicle and there was no compliance of Section 134(C) of Motor Vehicles Act by the claimant. It was further contended that the petitioner is not maintainable for non-joinder of proper and necessary parties. He specifically denied liability stating that, the respondent-Insurance company is not liable to pay any compensation since the driver of the insured vehicle who said to have been involved in the alleged accident had no valid Driving Licence, therefore, the finding recorded by the Tribunal that the accident alleged was due to negligence of the driver of the vehicle in question, is not correct and without proper application of material evidence placed on record by both the parties, the tribunal has recorded such finding. Further he contended that the insured transport vehicle had no fitness certificate to be used on public places since fitness certificate which was issued earlier had expired on 30.01.2010 and not renewed or he obtained fresh certificate and the licence which the driver possessed was to drive a LMV-NT for a period of 20 years and he was not aurhtorised to drive any type or category of transport vehicle. He further contended that the Tribunal has failed to frame proper, relevant and necessary issues in the light of pleadings of respective parties to the claim proceedings and it mechanically without proper application of mind and ignoring legal position, has framed issues and also non-framing of proper and necessary issues vitiate the entire proceedings and therefore, he prayed for setting aside of the judgment and award passed by the Tribunal.
7. As noted above, learned counsel submitted regarding the amendment of the MV Act. 1994; permit conditions; provisions relating to renewal of fitness certificate and also the impact of not possessing valid licence and fitness certificate.
8. RW.1-K.P. Kumar, examined before the Tribunal, in his evidence, has unequivocally and in well ascertained words admit that at the time of accident, the policy-EX.R4, respondent/Insurance Company was in existence and it was a package policy and further it was in force as on the date of accident. In the present proceedings, the holder of the licence is one Mallikarjuna. In The document referred by the respondent/Insurance before the Tribunal, wherein his date of birth is shown as 13.10.1983 and the validity of the licence is upto 12.02.2032 and the class of vehicle is M.C with Gear. It is not that it cannot be disputed that M.C. refers to Motor Car. In this connection having availed the driving licence and admitting it, the respondent- Insurance company cannot justify its conduct by denying it during the proceedings.
9. Regard being had to the fact that the day in and day out there are commercial advertisements to invite the necessary owners of motor vehicles to prescribe for insurers and thereby gracing defences which are not necessary. Regard being had to the denial, the denial made by a private person and denial made by the institution are seen at different levels. In so far as the compensation is concerned, the pattern of award made by the Tribunal is as under:-
HEADS Rs.
Pain and sufferings 20,000-00 Loss of earning capacity 97.920-00 Food, Conveyance, and other expenses during treatment period.
10,000-00 Medical expenses 98,140-00 TOTAL 2,26,060-00 10. The concept of medical expenses includes the expenses during treatment and in so far as loss of earning capacity is concerned, the notional income of the deceased is taken at Rs.4,000/- and the disability is stated at 35% and the total disability to be reckoned by applying proportion of 1/3rd, which is just and proper and in the circumstances and the Tribunal has followed the same. The total functional disability in this case is 35% and 1/3rd of it would come to 12% and considering the age of the claimant as 26 years as on the date of the accident, on applying the multiplier ‘17’ and taking the notional monthly income of the claimant at Rs.4,000/-, loss of earning capacity works out to Rs.97,920/- (Rs.48000x12x17x12%). In sofar as the compensation awarded under other heads is concerned, they are just and appropriate in the circumstances of this case. Hence, this court does not find discrepancies, infirmities, irregularities in the judgment and award passed by the Tribunal. Therefore, and compensation is not exorbitant and it is just and proper.
11. In the circumstances of the case, there are no grounds to interfere with the judgment and award passed by the Tribunal. Accordingly, the appeal is dismissed.
Sd/- JUDGE KGR*