Karnataka High Court
Master Vasanth Kumar @ Varun vs The Manager on 30 September, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.5860/2014 C/W
MFA NO.3655/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.5860/2014 (MV-I)
C/W
M.F.A.NO.3655/2017 (MV-I)
IN MFA NO.5860/2014
BETWEEN:
MASTER VASANTH KUMAR @ VARUN
S/O LATE PURUSHOTHAM,
AGED ABOUT 13 YEARS,
R/O 3RD CROSS, KUMBARA BEDI,
HASSAN-573201.
APPELLANT IS MINOR REPRESENTED
BY NATURAL GUARDIAN HIS MOTHER
SMT SUMA,
W/O LATE PURUSHOTHAM
...APPELLANT
(BY SRI.GIRISH B BALADARE, ADVOCATE)
AND:
1. THE MANAGER
SRIRAM GENERAL INSURANCE CO.LTD.,
NO S/5, 3RD FLOOR,
MONARCH CHAMBERS, INFANTRY ROAD,
BANGALORE 01.
2. FAIROZ PASHA
S/O KHALEL AHAMED,
AGED ABOUT 35 YEARS,
HOUSE NO.66,
2 MFA NO.5860/2014 C/W
MFA NO.3655/2017
BEHIND NOORANI MASZID,
EDGA ROAD,
CHIKKNALU,
HASSAN 573201.
RESPONDENTS
(BY SRI.B PRADEEP, ADVOCATE FOR R1,
SRI. RAGHU R., ADVOCATE FOR R2)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:26.10.2013 PASSED
IN MVC NO.319/2011 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, ADDITIONAL MACT, HASSAN,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.3655/2017
BETWEEN
MR FAIROZ PASHA
AGED ABOUT 37 YEARS,
S/O KHALEEL AHAMED
R/O HOUSE NO.66,
BEHIND NOORANI MASZID
EDGA ROAD,
CHIKKANALU
HASSAN CITY
HASSAN DISTRICT-573201
(OWNER OF THE HERO HONDA SPLENDOR
MOTOR BIKE BEARING REGISTRATION
NO.KA-13-Q-2479)
...APPELLANT
(BY SRI.RAGHU R., ADVOCATE)
AND:
1. MASTER VASANTH KUMAR @ VARUN
AGED ABOUT 16 YEARS
3 MFA NO.5860/2014 C/W
MFA NO.3655/2017
S/O LATE PURUSHOTHAMA
R/O 3RD CROSS, KUMBARA BEEDI
HASSAN CITY-573201
RESPONDENT NO.1 IS A MINOR
REPRESENTED BY NATURAL GUARDIAN
HIS MOTHER SMT. SUMA
W/O LATE PURUSHOTHAMA
2. SRIRAM GENERAL INSURANCE COMPAN YLIMITED
NO.S/5, 3RD FLOOR, MONARCH CHAMBERS,
INFANTRY ROAD,
BENGALURU-560 001
REPRESENTED BY ITS MANAGER
(INSURER OF THE HERO HONDA SPLENDOR MOTOR
BIKE BEARING REGISTRATION NO.KA-13-Q-2479)
(COVER NOTE NO.7719960
RESPONDENTS
(BY SRI. B. PRADEEP, ADVOCATE FOR R2,
R1-MINOR REPRESENTED BY HIS MOTHER-SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:
26.10.2013 PASSED IN MVC NO.319/2011 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL
MACT, HASSAN, AWARDING COMPENSATION OF
RS.1,39,800/- WITH INTEREST @ 6% P.A. ON
RS.1,24,800/- FROM THE DATE OF PETITION TILL
REALIZATION.
THESE M.F.AS. COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to 4 MFA NO.5860/2014 C/W MFA NO.3655/2017 as 'MV Act' for brevity) challenging the judgment and award dated 26.10.2013, passed in M.V.C.No.319/2011, on the file of the Addl. Senior Civil Judge and Addl.MACT, at Hassan, (hereinafter referred to as 'the Tribunal' for brevity).
MFA No.5860/2014 is filed by the appellant- claimant seeking enhancement of the compensation awarded by the Tribunal.
MFA No.3655/2017 is filed by the owner of the offending vehicle questioning the liability fixed on the owner by exonerating the insurance company.
Brief facts:
2. On 19.12.2010 at about 8.45 a.m., when the claimant was walking along with his uncle on the left side of the road, near Shanmugam Timber Depot, Chikkanalu, Hassan, a Hero Honda Splendor motor bike bearing registration No.KA-13-Q-2479, came in rash and negligent manner and dashed against the 5 MFA NO.5860/2014 C/W MFA NO.3655/2017 claimant and as a result, the claimant has sustained injuries and he took treatment from the hospital.
3. Hence, a claim petition was filed by the appellant under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. In pursuance of the Notice issued to the respondent Nos.1 and 2, the first respondent remained absent and was placed exparte. However, the second respondent - insurance company appeared through learned counsel and filed the statement of objections denying the averments made in the claim petition.
4. To substantiate the contentions of the appellant-claimant, the claimant got himself examined as PW-1 and also examined the Doctor as PW-2 and got marked the documents Exhibits-P1 to P14. The respondent-insurance company neither examined any witness nor produced any documents. 6 MFA NO.5860/2014 C/W MFA NO.3655/2017
5. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.1,39,800/-, along with interest at 6% per annum, from the date of petition till the date of deposit. The Tribunal fastened the liability on the respondent No.1 - owner therein, to pay the compensation.
6. Heard arguments of the learned counsel for the appellant-claimant and the learned counsel for appellant - owner and perused the materials on record.
7. The learned counsel for the appellant-
claimant submitted that the amount of compensation awarded under various heads are on lesser side. Therefore, prays for enhancement of compensation.
8. The learned counsel for the appellant - owner argued that there was a valid insurance policy and as per Sub-Rule-(2) of Rule-142 of the MV Act, 7 MFA NO.5860/2014 C/W MFA NO.3655/2017 that a Cover Note shall be valid for a period of sixty days from the date of its issue. Therefore, submitted that the insurance Policy was issued within the validity period of the cover note and hence the Insurance Policy covers from the date of issue of Cover Note. Therefore, fastening the liability on the owner of the vehicle is not correct and prays for allowing the appeal and direct the insurance company to pay the compensation.
9. On the other hand, the learned counsel for the respondent - insurance company submitted that there was no insurance coverage as on the date of the accident in respect of the offending vehicle. Therefore, the Tribunal is correct is holding the owner is liable to pay the compensation, by exonerating the insurance company which needs no interference and also submitted that the quantum of compensation awarded is correct. Hence, prays to dismiss the appeals. 8 MFA NO.5860/2014 C/W MFA NO.3655/2017
10. In the present case, the Tribunal has awarded compensation of Rs.1,39,800/- by fastening the liability on the owner of Hero Honda Splendor Motor Bike bearing registration No.KA-13-Q-2479, on the ground that the owner has not produced the insurance policy. Therefore, the Tribunal came to the conclusion that the insurance policy was not in force as on the date of the accident. Therefore, held the insurance company is not liable, but the owner of the offending vehicle is liable. Accordingly, delivered the impugned judgment and award.
11. The learned counsel for the appellant - owner in MFA No.3655/2017 submitted that the insurance policy was in force and the contract of the insurance was in force as on the date of the accident as per Coverage Note issued by the insurance company. In this regard, the appellant-owner had filed application under Order-41, Rule-27 of CPC for production of additional evidence i.e., copy of Cover 9 MFA NO.5860/2014 C/W MFA NO.3655/2017 Note dated 16.12.2010 bearing No.771996 and the Notarized copy of insurance policy.
12. The learned counsel for the insurance company is disputing the said document on the ground that the entries are different from the cover note produced before this court and the Tribunal. Therefore, questions the veracity of the coverage of the insurance policy, which question is to be decided by the Tribunal and hence prays to remand the matter to the Tribunal to give a finding, as the question is regarding disputed facts and for resolving the same, after leading evidence is necessary.
13. Further, the learned counsel for the owner- appellant submitted that the owner of the offending Motor Cycle bearing registration No.KA-13-Q-2479 is originally covered under the insurance policy.
14. The learned counsel for the respondent - insurance company submitted that the amount of 10 MFA NO.5860/2014 C/W MFA NO.3655/2017 premium paid is striked out and mentioned as Rs.740/- and further the insured declared value is stated as Rs.25,000/- in the cover, not but that amount is different in the insurance policy. Therefore, submitted the said cover note is not under the insurance policy, which facts are to be examined by in the Tribunal, by necessary cross-examination of the owner.
15. Further, the learned counsel for the respondent - insurance company submitted that if the premium for the insurance policy is paid by cash, then there is no question of issuing cover note and the insurance policy will be issued directly. Therefore, as per the insurance policy produced by appellant-owner the date commences from 28.12.2010. Hence, disputed the issuance of the cover note.
16. On hearing the learned counsel appearing for the respondent - insurance company, I find force 11 MFA NO.5860/2014 C/W MFA NO.3655/2017 in the submission made, where the insurance company is disputing the insurance policy regarding the date. Therefore, in this regard for ascertaining the existence of the contract of insurance between the insurer and insured and to find out whether as on the date of the accident the insurance coverage was there or not by leading evidence if necessary, the matter is required to be remanded to the Tribunal.
17. Therefore, the matter is remanded to the Tribunal. However, it is made clear that the question of adequacy of the quantum is not touched by this Court. Hence, the impugned judgment and award is remanded on both the aspects regarding quantum of compensation as well as on the coverage of the insurance policy as discussed herein above. Further, liberty is reserved to both the parties to lead any additional evidence, both oral and documentary if the parties are so advised.
12 MFA NO.5860/2014 C/WMFA NO.3655/2017
18. In view of the observations made above, I proceed to pass the following:
ORDER i. MFA No.5860/2014 filed by the appellant- claimant seeking enhancement of the compensation awarded by the Tribunal is ALLOWED.
ii. MFA No.3655/2017 filed by the owner of the offending vehicle questioning the liability fixed on the owner by exonerating the insurance company is ALLOWED.
iii. The judgment and award dated 26.10.2013, passed in M.V.C.No.319/2011, on the file of the Addl. Senior Civil Judge and Addl.MACT, at Hassan, set-aside and the matter is remanded to the Tribunal for fresh consideration, regarding the adequacy of the quantum of compensation awarded, determining the liability and also on the issue of 13 MFA NO.5860/2014 C/W MFA NO.3655/2017 contract of coverage of insurance policy as discussed hereinabove.
v. Both the parties shall appear before the Tribunal on 09.11.2022, without expecting Notice from the Tribunal. Liberty is reserved to the parties to produce additional evidence, both oral and documentary if the parties are so advised vi. The Tribunal is directed to dispose off the said case within the period of FOUR MONTHS from 09.11.2022.
vii. All the contentions of the parties are kept open.
viii. The amount in deposit made shall be refunded to the owner.
ix. In view of the disposal of the appeal, I.A.No.3/2017 does not survive for consideration stands disposed off.
14 MFA NO.5860/2014 C/WMFA NO.3655/2017
x. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
SD/-
JUDGE JJ