Karnataka High Court
Sri.Yallappa Shivappa Sajali, vs Sri.Ashok Ballappa Naik, on 10 August, 2017
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF AUGUST, 2017 R
BEFORE
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
M.F.A. No.20929/2011 (MV)
C/w.
M.F.A. No. 21251/2011 (MV)
IN MFA NO.20929 OF 2011
BETWEEN:
SRI. YALLAPPA SHIVAPPA SAJALI,
AGED ABOUT 17 YEARS, OCC: COOLIE,
R/O. BENKANHALLI, TQ. HUKKERI,
DIST. BELAGAVI
SINCE MINOR REPTD.
BY NATURAL MOTHER AS GUARDIAN
BY SMT. YALLAWWA SHIVAPPA SAJALLI
... APPELLANT
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1 ASHOK BALLAPPA NAIK,
AGED ABOUT 50 YEARS,
OCC: BUSINESS IN BUFFALO
R/O. BENKANHALLI, TQ. HUKKERI,
DIST. BELAGAVI.
2 DIVISIONAL MANAGER,
IFFCO TOKIO GENERAL INSURANCE CO, LTD.,
NO.127/A, BHAVANI ARCADE,
III FLOOR, NEAR OLD BUS STAND,
OPPOSITE BASAVVANNA, COTTON MARKET,
HUBBALLI - 590029
...RESPONDENTS
(BY SRI. R.R.MANE, ADV. FOR R2 ; R1 SERVED)
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
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THIS MFA IS FILED UNDER SECTION 173(1) OF THE M.V.
ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD
DATED 02.11.2010, PASSED IN MVC No.1654/2009, BY THE FILE
OF THE PRESIDING OFFICER, FAST TRACK COURT IV & MACT,
BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION, BY ENHANCING THE COMPENSATION.
IN MFA NO.21251 OF 2011
BETWEEN:
IFFCO TOKIO GENERAL INSURANCE COMPANY LTD.,
BY ITS DIVISIONAL MANAGER,
NO.127/A, BHAVANI ARCADE, III FLOOR,
NEAR OLD BUS STAND, OPP. BASAV VANNA,
COTTON MARKET, HUBLI - 580029,
HEREIN REPTD. BY IFFCO TOKIO GENERAL INSURANCE CO, LTD.,
CUSTOMER SERVICE CENTRE,
KSCMF BUILDING, III FLOOR, III BLOCK,
#8, CUNNINGHAM ROAD, BENGALURU,
REPTD. BY ITS AUTHORISED SIGNATORY.
... APPELLANT
(BY SRI. R.R.MANE, ADVOCATE)
AND:
1 SHRI YALLAPPA S/O. SHIVAPPA SAJALI,
AGE: 18 YEARS, OCC: COOLIE,
R/O. BENKANHALLI, TQ. HUKKERI,
DIST. BELAGAVI.
(THE RESPONDENT NO.1 BEING A MINOR,
REPTD. BY NATURAL GURDIAN MOTHER
SMT. YALLAWA SHIVAPPA SAJALI,
AGE: 37 YEARS, OCC: COOLIE,
R/O. BENKANHALLI, TQ. HUKKERI, DIST. BELAGAVI
2 SHRI ASHOK BALAPPA NAIK,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. BENKANHALLI, TQ. HUKKERI,
DIST. BELGAUM.
(OWNER OF THE MOTOR CYCLE BEARING
NO.KA-23/W-3309)
...RESPONDENTS
(BY SRI. SANJAY S. KATAGERI, ADV. FOR R1; R2 SERVED)
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
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THIS MFA IS FILED UNDER SECTION 173(1) OF THE M.V.
ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 02.11.2010, PASSED IN MVC No.1654/2009, ON THE FILE
OF THE PRESIDING OFFICER, FAST TRACK COURT IV & MACT,
BELAGAVI, AWARDING A COMPENSATION OF `65,000/- WITH
INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION
TILL THE DATE OF ACTUAL DEPOSIT.
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
Both these appeals have been filed under Section
173(1) of the Motor Vehicles Act, 1988, assailing the
judgment and award passed by the Presiding Officer, Fast
Track Court IV and MACT, Belagavi (henceforth referred to
as 'the Tribunal', for brevity) in MVC No.1654/2009.
MFA No.20929/2011 is filed by the claimants seeking
enhancement of compensation, whereas the other MFA
No.21251/2011 is filed by the Insurance Company, which
was the 2nd respondent in the Tribunal below, seeking
setting aside of the judgment and award under appeal.
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
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2. Since both these appeals have arisen out of a
single judgment and award, both these matters are treated
as connected matters and a common argument was heard
and taken up for passing a common judgment.
3. For the sake of convenience, the parties would be
referred to with the ranks they were holding respectively in
the Tribunal below.
4. In MFA 20929/2011, the appellant/claimant has
stated that the Tribunal below has committed an error in
not considering the permanent physical disability he has
sustained, as such, the compensation awarded by the
Tribunal below is on the lower side. Further, stating that
the compensation awarded under other heads are also
meager, the claimant has sought for enhancement of the
compensation.
5. In MFA No.21251/2011, the appellant/Insurance
Company, which was the 2nd respondent in the Tribunal
below, has taken a contention that the motorcycle bearing
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
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registration No.KA-23/W-3309, the particulars of which
vehicle is mentioned in the Registration Certificate at
Ex.R2, was not the vehicle insured as on the date of
accident. As such, the vehicle involved in the accident
and the one covered under the policy were two different
vehicles. It is further contended that the documents
clearly show that the accident has not occurred in the
manner agitated by the claimant in his claim petition, but
the claimant himself was riding the motorcycle and fell
down due to skid, as such, the occurrence of the accident
at the alleged rash and negligent riding of the motorcycle
by a different rider is not the fact. According to the
appellant/Insurance Company, the said point is further
corroborated by the fact of delay in lodging the complaint
before the police. It is further contended in the said
appeal by the insurer that the alleged rider of the
motorcycle had no driving licence to drive the motorcycle.
With these, the Insurance Company has prayed to allow
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
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its appeal by setting aside the judgment and award under
appeal.
6. The records of the Tribunal below were called for
and the same are placed before this Court.
7. Heard the arguments from both sides. The
learned counsels for the claimant and the Insurance
Company reiterated the contentions taken up in their
memorandum of appeals, respectively even in their
arguments also.
8. In the light of the above, the points that arise for
my consideration are:
i. Whether the claimant has made out
grounds for enhancement of compensation?
ii. Whether the finding of the Tribunal below
holding the insurer also as liable to pay
compensation is erroneous?
9. The claim petition was filed by one Smt. Yallawwa
Shivappa Sajalli in the Tribunal below under Section 166
M.F.A.No. 20929/2011
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of the Motor Vehicles Act, 1988, in her capacity as a
natural mother-cum-minor guardian of the alleged injured
claimant Yallappa Shivappa Sajali, who was shown to be
of the age 17 years as on the date of filing the claim
petition.
10. The summary of the case of the claimant in the
Tribunal below was that, on the date 28.07.2009 at about
14.00 hours, the claimant Yallappa Sajali, while coming
on a service road near Benkanhalli village, a motorcycle
bearing registration No.KA-23/W-3309 coming from
Benkanhalli village in a rash and negligent manner and in
a high speed, dashed to the claimant causing the accident.
Due to the said accident, the claimant Yallappa sustained
grievous injuries and took medical treatment for a
considerable period. It is the further case of the claimant
that, prior to the accident the claimant was doing coolie
work and was earning a sum of `2,500/- per month, but
due to the injuries suffered by him in the accident, he
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
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became permanently physically disabled and as such, he
is not in a position to do any work and lost his working
capacity. With this, the claimant claimed the
compensation of `5,00,000/- arraying respondents 1 and
2, holding them as owner and insurer of the alleged
offending vehicle and liable to pay him the compensation.
Respondent No.1 in the Tribunal below remained ex-parte,
however respondent No.2/Insurance Company, after
entering its appearance filed its written statement,
wherein it denied the manner of occurrence of the alleged
accident as depicted by the claimant in his claim petition.
It also denied that the alleged rider of the motorcycle had
a valid driving licence to ride the motorcycle.
11. Based upon the pleadings of the parties, the
Tribunal below framed the following issues:
i. Whether petitioner proves the accident
occurred on 28-07-2009 at 14-00 hours near
Benkanahalli due to rash and negligent
driving of motor vehicle KA-23/W-3309 Motor
Cycle?
M.F.A.No. 20929/2011
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ii. Whether petitioner proves the bodily injuries
sustained in the said accident?
iii. Whether R-2 insurer proves that accident took
place due to the negligence of petitioner
himself?
iv. Whether R-2 insurer proves that rider of the
motor cycle KA-23/W-3309 was not holding
effective D.L. at the relevant time?
v. Whether R-2 insurer proves the collusion
between petitioner and R-1 owner in filing the
petitioner?
vi. Whether petitioner is entitled for
compensation? If so what is the quantum and
from whom recoverable?
vii. To what order or decree?
The Tribunal below answered issues No. 1, 2 and 6
in the affirmative and issues No.3, 4 and 5 in the negative.
For answering those issues, the Tribunal below relied
upon the evidence of PWs.1 and 2 and the documents
produced and marked by the claimant as Exs.P1 to P14
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
: 10 :
and the documents produced by the Insurance
Company/respondent No.2 therein as Exs.R1 to R3.
12. MFA No.20929/2011 is claimant's appeal, as
such, his only contention is regarding the enhancement of
compensation. MFA 21251/2011, though is by the
Insurance Company, but it has not denied or disputed the
occurrence of the accident on the date, time and place
shown in the claim petition. However, its contention is
regarding the manner of occurrence of accident.
13. The claimant in order to prove his case in the
Tribunal below got examined his mother and natural
guardian Smt.Yallawwa as PW1 and also got examined
one Dr.S. R. Angadi as PW2 and through them got marked
documents at Exs. P1 to P14. No witness was examined
from the respondent's side, however, by consent, a copy of
Driving Licence particulars said to be of one Maruti
Yallappa Ghasti was marked as Ex.R1, Registration
Certificate copy of the alleged offending vehicle was
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
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marked as Ex.R2 and copy of the Insurance Policy of the
alleged offending vehicle for the period from 27.10.2008 to
26.10.2009 was marked as Ex.P3.
14. Regarding the first contention of the Insurance
Company that the vehicle under insurance was not the
vehicle involved in the accident is concerned, the said
contention of the respondent Insurance Company solely
based upon the alleged chassis and engine number shown
in the policy with that of R.C. book at Ex.R2. However,
the renewal of the very same policy with the same earlier
number for the subsequent year shows the registration
number of the vehicle, which undisputedly is the
registration number of the alleged offending vehicle. This
clarifies that the said policy has been issued exclusively
for that particular vehicle bearing registration No.KA-
23/W-3309 which is the alleged offending vehicle in the
instant case. As such, the first contention of the learned
counsel for the Insurance Company that the said alleged
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C/w. M.F.A.No. 21251/2011
: 12 :
motorcycle was different from the insured vehicle is not
acceptable.
15. The second contention of the
appellant/Insurance Company in MFA No.21251/2011 is
that, the accident has not occurred in the manner as
depicted by the claimant in the Tribunal below. According
to the claimant, the alleged motorcycle bearing
registration No.KA-23/W-3309 coming from Benkanhalli
village in a rash and negligent manner dashed to him
while he was walking on the service road in that place.
The learned counsel for the appellant drawing the
attention of the Court to the wound certificate at Ex.P4
stated that, in the said wound certificate it is clearly
recorded that the patient was going on a two wheeler,
which got skid and the rider fell down. Referring to this,
the learned counsel contended that the claimant was
riding the motorcycle himself and fell down due to skid of
the vehicle as per the information given to the doctor at
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
: 13 :
the earliest point of time. However, in order to claim
compensation, the claimant in collusion with the
respondent No.1, who was his relative, lodged a false
complaint belatedly with the police and giving a twist to
the incident stating that the claimant was a pedestrian
and the motorcycle dashed to him.
The learned counsel for the claimant in his
argument submitted that the contention and argument of
the appellant regarding the manner of occurrence of
accident is unfounded one, since they have not
established their contention. He further submitted that,
after due investigation, the police have filed charge sheet
against the accused rider of the motorcycle for the
offences punishable under Sections 279 and 338 of the
IPC. As such, the manner of occurrence of the accident
has stood proved.
16. It is not in dispute that the accident in
question has taken place on the date 28.07.2009 and that
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
: 14 :
the complaint before the police with respect to the said
accident was lodged only on 01.08.2009 i.e., with the
delay of about 4 days. Merely because there is some delay
in lodging the complaint, it cannot be concluded in a
compensation claim matter like the present one that the
complaint is fictitious and filled with false information.
The person who denies the manner of accident in a
particular way is required to substantiate his contention
with satisfactory evidence.
17. No doubt in Ex.P4, which is the wound
certificate, it has been recorded that the patient was
brought with the history of Road Traffic Accident at 2.00
pm on 28.07.2009 in Benkanhalli, Hukkeri Taluk and the
patient was going in a two wheeler which skid and fell
down. By a perusal of the said certificate, it cannot be
inferred as to at whose instance or the source the said
observation has been recorded in the said document. It
cannot be inferred that the alleged history of Road Traffic
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
: 15 :
Accident was given by none else than the injured himself,
for the reason that the injured was shown to have been
accompanied by one Mr. Ashok Balappa Naik. Thus,
when there are more than one person before the doctor at
the time of examination of the patient, it is not known at
whose instructions or information, the said history of
alleged accident has been recorded.
18. Secondly, merely because the alleged history of
accident is recorded in a wound certificate, the said
alleged history cannot be taken as the proven fact
regarding the manner of occurrence of accident. It is also
for the reason that, even according to the evidentiary value
of the content of the said document, the stray narration
regarding the occurrence of the accident is only a say of a
person before the doctor, but not confirmation by anybody
including the doctor. As such, it is shown in the said
certificate itself that it was 'alleged' before the doctor.
That being the case, when stray allegation recorded in the
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
: 16 :
wound certificate is shown to be not correct by virtue of
the investigation conducted in a criminal case pertaining
to the very said Road Traffic Accident, then it would be
incumbent upon a person relying upon the said alleged
history, as recorded in Ex.P4, to summon the doctor who
has recorded the said alleged history and elicit more
details from him regarding source and reliability of the
information given to him. At the same time, it is also
necessary on the part of the person relying upon the
version recorded in the said wound certificate to summon
and examine the Investigating Officer, who has conducted
investigation and filed charge sheet on a different contest
holding that guilty person was a different person other
than the injured himself. At least, the Insurance
Company in the instant case would have examined any
of the eyewitnesses to the incident, provided there was
any, in the case. Apart from not doing any of these
exercises, in order to substantiate its case, the Insurance
Company also omitted to examine any of its witnesses,
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C/w. M.F.A.No. 21251/2011
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who could present the contents of Ex.P4 in a suitable
manner according to them and to substantiate it.
19. The learned counsel for the Insurance
Company in his argument relied upon a judgment of the
Hon'ble Supreme Court in North West Karnataka Road
Transport Corp. Vs. Gourabai and Ors. reported in
MANU/SC/1098/2009, wherein with respect to the claim
petition under Sections 166 and 168 of the Motor Vehicles
Act, 1988, the Hon'ble Apex Court observed that, brushing
aside of the evidence of the doctor that deceased suffered
head injury due to fall from height of 8 to 10 ft. of his own
house, by MACT and High Court was erroneous. It is
submitted that in the said case before the Hon'ble
Supreme Court, the evidence of the doctor was available,
who had admitted the deceased to the hospital. It is with
respect to the evidentiary value of the said doctor and the
appreciation of the evidence of the doctor, the Hon'ble
Supreme Court observed that the MACT and High Court
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: 18 :
have committed error, whereas in the case on hand, the
author or Ex.P4, who is said to be the doctor, who
examined the injured at the first instance has not at all
been examined by either of the parties. As already
observed, had the contention of the Insurance Company
being that the history of accident as recorded in Ex.P4 was
the true history, which incidentally was contrary to the
contention of the claimant, then it was incumbent upon
the insurer to summon the author of the said document
and to examine him. The Insurance Company neither
examined the said doctor nor confronted Ex.P4 to PW1 in
her cross-examination.
20. It also cannot be ignored that in the instant
case, the injured claimant who is said to be a minor in
age, was not examined by either of the parties. It is not
necessary that a minor injured shall be examined in all
cases. However, in a case like the one on hand, where one
of the respondents had taken a specific contention
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regarding the manner of occurrence of accident, nothing
had prevented the said respondent to summon any of the
eyewitnesses to the alleged accident including the
claimant himself. This effort also the respondent -
Insurance Company has not done in the instant case.
21. As such, merely because in a medical wound
certificate, the purpose of which certificate is to speak
about the nature of injuries, but not necessarily the
manner of occurrence of accident, the other party cannot
solely bank upon and contend that an observation made
in that document itself is a complete and absolute truth.
For these reasons and also for the reason that the
evidence of PW1 corroborated by the documents at
Exs.P1, P2, P3, P4, P5, P6 and P7, go to establish that the
manner of occurrence of accident was the rash and
negligent riding of the motorcycle by its rider and dashing
of the said vehicle to the claimant Yallappa, the argument
of learned counsel for the Insurance Company is not
acceptable.
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C/w. M.F.A.No. 21251/2011
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22. The third contention of the respondent
Insurance Company is that, the alleged rider of the
motorcycle did not possess a valid driving licence to ride
motorcycle as at the time of accident, as such there is
violation of conditions of policy, due to which the
Insurance Company is not liable to compensate the
claimant. In his support, the learned counsel for the
respondent/Insurance Company relied upon few
decisions.
The first decision relied upon by the learned counsel
for the Insurance Company is of The Oriental Insurance
Co. Ltd., Vs. Zaharulnisha and others reported in 2008
ACJ 1928. In the said case, the Hon'ble Supreme Court,
while dealing with an appeal arising out of Section 149(2)
(a) (ii) of Motor Vehicles Act, 1988, where the dispute was
with respect to possessing of the driving licence and the
liability of the Insurance Company, was pleased to observe
that, in the case before it, the driver had licence to drive
heavy motor vehicle, but he was driving two wheeler
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scooter at the time of accident. It was observed that it
cannot be taken that the driver had valid and effective
driving licence, as such, held the Insurance Company was
not liable to pay the compensation.
Secondly, the learned counsel for the Insurance
Company relied upon a decision in the case of M/s. United
Indian Insurance Company Ltd., Vs. Shri. R. S.
Shivarammayya and Another reported in 2011 Kant.
M.A.C. 632(Kant.), wherein a full bench of this Court
with respect to the liability of Insurance Company to pay
compensation in a case where it was alleged that the
driver had a driving licence of a different class of vehicle
than the one involved in the accident, was pleased to
observe that, where the driving licence of a driver is found
to have been issued to drive a particular class of vehicle,
but the driver was found to be driving another class of
vehicle, if that conflicts with the nature of vehicle, then
one has to conclude that the driver was not duly
authorized to drive that particular class of vehicle.
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Relying upon these two citations, learned counsel for
the insurer submitted that in the Shivarammayya's case
(supra) also, the rider of the offending vehicle, which was a
motorcycle, was not possessing a driving licence to drive
motorcycle, but he had licence to drive only a light motor
vehicle.
23. The learned counsel for the
appellant/Insurance Company further submitted that in
the instant case, an endorsement issued by the Regional
Transport Officer, Chikkodi showing particulars of the
driving licence of the rider/accused is marked as Ex.R1 by
consent. The said document shows that the accused was
licensed to drive only light motor vehicle, which was the
offending vehicle in the instant case.
Ex.R1, which is an endorsement shown to have been
issued by the Regional Transport Officer, Chikkodi, no
doubt gives details of the driving licence No.2216/08-09.
It is further shown in the said document that the name of
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the licensee is Sri. Maruti Y. Ghasti, R/o. Benkanhalli and
the type of vehicle licensed to drive is shown as Light
Motor Vehicle (NT) only. No doubt, the said document
shows that the licensee named therein is licensed to drive
only light motor vehicle, as such the said licence cannot
be taken as a licence to ride a motorcycle/two wheeler
also. But the point to be considered here is whether the
said document at Ex.R1 can be taken as that of the
accused in the related criminal case and also that, except
the licence as shown in Ex.R1, the accused did not
possess a separate or any other licence or endorsement to
ride the motorcycle also.
In this regard, it cannot be ignored that except
getting Ex.R1 marked as a consent document, the
Insurance Company which has produced the said
document has put no efforts to prove the contents of the
document or to confront this document to the witness on
the claimant's side or at least to establish their contention
that the document at Ex.R1 pertains to none else than the
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alleged rider of the motorcycle in the case on hand. It is
for the reason that merely because a document is shown
to have been marked 'by consent' in the order sheet, by
that itself it cannot be taken that the contents of the said
document stands proved in its entirety and also that the
name shown in the said document is of none else than the
accused in the criminal case pertaining to the accident.
To establish a nexus between the person named in Ex.R1
and the alleged rider of the motorcycle in the instant case,
who incidentally was the accused in the criminal case as
per Ex.P7, the Insurance Company should have put some
effort, which it did not do. It did not even put a
suggestion to PW1 to the effect that the document at
Ex.R1 pertains to the alleged rider of the motorcycle as at
the time of accident. Without doing any such minimum
required effort, the Insurance Company now cannot say
that Ex.R1 since bears the name of the licensee of the
driving licence which is identical to that of named accused
at Ex.P7, both are one and the very same persons. This
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inference throws further strength for the reason that the
police who have conducted and completed investigation in
the criminal case pertaining to the accident in question
have accused the rider of the motorcycle only for the
offence punishable under Sections 279 and 338 of the
IPC. Had the rider/driver of the offending vehicle did not
possess a valid driving licence, necessarily he must be
have been accused under Section 3 R/w. Section 181 of
the Motor Vehicles Act, 1988 in the charge sheet. But in
the instant case, since the respondent Insurance
Company is trying to prove that the document being
produced by it through Ex.R1 establishes that the rider of
the offending motorcycle did not possess a valid driving
licence, the non-observation of the said aspect, if so, by
the Investigating Officer while filing the charge sheet,
acquires importance. For this reason, even though Ex.R1
speaks about the driving licence to drive only a light motor
vehicle, but in the absence of any satisfactory evidence or
proof to establish that the said Ex.R1 pertains to none else
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than the accused rider and that except Ex.R1 there is
nothing to show that he had a valid driving licence, the
contention of the Insurance Company that the rider of the
motorcycle did not possess a valid driving licence to ride
the motorcycle cannot be accepted. In view of the said
observation, the decision relied upon by the learned
counsel for the Insurance Company in Zaharulnisha
(supra) and Shivarammayya (supra) would not enure to
the benefit of the Insurance Company.
24. Though the learned counsel for the Insurance
Company also relied upon two decisions, one reported in
2009(4) T.A.C. 382(S.C.) in the case of National
Insurance Co. Ltd., Vs. Parvathneni and Another and
another reported in 2010 Kant M.A.C. 346 (Kant) in the
case of The Oriental Insurance Co. Ltd., Vs. K.
Shivarao and another, since those judgments deal with
the concept of pay and recovery principles, the same are
also not helpful to the Insurance Company herein as its
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liability as an insurer of the offending vehicle now has
been crystallized.
25. In view of the above discussion, the only point
that remains to be considered is regarding the
reasonableness of the quantum of compensation awarded
in the instant case.
26. According to the claimant/appellant in MVC
No.20929/2011, the quantum of compensation awarded
by the Tribunal below is a meager amount. The Tribunal
below has awarded the compensation as shown below:
Towards Pain and Suffering `20,000/-
Towards Loss of amenities and `20,000/-
comforts in life
Towards Special diet, conveyance and `10,000/-
incidental charges
Towards Medical expenses `5,000/-
Towards Disability `10,000/-
Total `65,000/-
27. The wound certificate at Ex.P4 read with
evidence of PW1 and also the discharge card at Ex.P8 go
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
: 28 :
to show that, in the accident the claimant had sustained
fracture of distal end of right radius bone of the right
forearm and external injury in the form of contusion.
Taking note of the same, the Tribunal below has awarded
compensation of `20,000/- towards 'pain and suffering'.
Considering the age of the injured, who was said to be of
16 years as at the time of accident, it has also awarded a
compensation of `20,000/- towards 'loss of amenities' and
`10,000/- towards 'special diet, conveyance and incidental
charges'. I am of the view that, in the circumstance of the
case the said compensation awarded by the Tribunal
below cannot be considered as an amount lesser than the
reasonable.
Towards 'medical expenses', even though the
claimant could not produce any details or receipts
amounting to `5,000/-, but the only document in the form
of a bill produced by him at Ex.P11 being a receipt for a
sum of `200/-, still the Tribunal below has awarded a
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
: 29 :
compensation of a sum of `5,000/- towards medical
expenses. Thus, I do not propose to enhance the same.
Towards 'disability', the Tribunal below has awarded
the compensation of a sum of `10,000/-. However, while
arriving at such a figure, the Tribunal below except stating
that the claimant has examined one Dr.S.R.Angadi as
PW2, has not given any specific reasons on the point. But
making an observation that the injured was a minor and
the alleged injury would not come in the said injured
discharging his normal work in future also, has recorded
that it does not affect his future earning capacity. Though
the evidence of PW2 that the injured was suffering with a
disability, which according to him is 20% to the right wrist
joint and the disability certificate issued by him at Ex.P13
cannot be totally ignored. By the evidence of the said
doctor, it can only be inferred that the injury sustained by
the claimant in the accident in question has put the
injured to some inconvenience permanently in doing his
M.F.A.No. 20929/2011
C/w. M.F.A.No. 21251/2011
: 30 :
work. As such, the quantum of compensation awarded
towards 'disability' deserves to be marginally enhanced.
Thus, I am of the view that in the facts and circumstances
of the case, enhancement of compensation under the said
head by a sum of `20,000/- would be reasonable.
28. Barring this, the claimant has not made out
any other grounds to enhance compensation. Accordingly
I proceed to pass the following order:
ORDER
MFA No.20929/2011 is allowed in part. The judgment and award dated 02.11.2010 passed by the Fast Track Court-IV and MACT, Belgaum in MVC No.1654/2009 is modified to the extent that the total compensation of a sum of `65,000/- awarded by the Tribunal below is enhanced by a sum of `20,000/- making the total compensation at `85,000/- (Rupees Eighty Five Thousand Only). The other terms of the judgment and award under appeal with respect to fixation of liability M.F.A.No. 20929/2011 C/w. M.F.A.No. 21251/2011 : 31 : upon the respondents to pay compensation together with interest on the awarded amount and the terms regarding release of the awarded amount to the claimant, shall remain unaltered.
MFA No.21251/2011 is dismissed. No costs. Draw the modified award accordingly. The amount in deposit, if any, by the Insurance Company in the Registry be transferred to the concerned MACT without delay. Registry to send a copy of this order along with lower Court records to the concerned MACT, without delay.
Sd/-
JUDGE gab