Karnataka High Court
New India Assurance Co Ltd vs Ganganna S/O Ningaiah on 28 March, 2013
Author: B.S.Indrakala
Bench: B.S. Indrakala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MRS. JUSTICE B.S. INDRAKALA
M.F.A.No. 3555/2009 (MV)
BETWEEN:
New India Assurance Co. Ltd.,
1st Floor, Mayur Complex, Next to Pai,
Bhavan, Peenya, Bangalore 560 058,
KIADB Main Road, Peenya,
Bangalore- 560 058, reptd by its
Senior Divisional Manager,
New India Assurance Co. Ltd.,
Divisional Office No.12, Mayur Complex,
KIADB Main Road,
Peenya, Bangalore- 560 058. .. Appellant
(By Sri. A.N. Krishnaswamy, Advocate)
AND:
1. Ganganna,
S/o Ningaiah,
R/o Hosapalya, Koalala Hobli,
Koratagere Tq., Tumkur Dist.
2. Prakashkumar,
S/o Venkatachl,
Now aged about 38 years,
R/o D # 2504, Nrupathunga Road,
2
Ist Cross, Near Iyyappa Swamy Temple,
T. Dasarahalli,
Bangalore- 560 057. ...Respondents
( By Sri. Ganapathi, Advocate for R-1, Sri. B.S.
Jeevan Kumar, Advocate for R-2)
This MFA is filed under Section 173(1) of M.V. Act
against the Judgment and Award dated. 05.01.2009,
passed in MVC No.464/2003 on the file of Civil Judge
(Sr. Dn.) and JMFC and Additional MACT, Madhugiri,
Awarding a compensation of Rs.4,15,000/- with interest @
6% P.A. from the date of petition till payment.
This MFA coming on for Hearing this day, the Court
delivered the following: -
JUDGMENT
The above appeal is directed against the judgment and award dated 5.1.2009 passed in MVC No.464/2003 on the file of the Civil Judge, Sr. Dvn., & Addl. MACT, Madhugiri.
2. Respondent no.2 therein, viz the insurance company has preferred this appeal interalia contending amongst other grounds that the discrepancy in the name of the driver as mentioned in the FIR and the charge sheet 3 is not properly appreciated, neither the claimant nor the owner of the vehicle who was arrayed as 1st respondent in the case has discharged their onus of proving as to who was the actual driver of the lorry in question, besides the amount of compensation awarded under the heading "disability" is too excessive etc.
2. Learned counsel appearing for the appellant Sri A N Krishnaswamy submitted that in the FIR lodged, a copy of which is marked as Ex.P.2, the name of the driver is mentioned as Chikkanarasaiah while in the charge sheet
- a copy of which is marked as Ex.P.3, the name of the driver is mentioned as Pujanna and in the circumstances, the burden was heavy on the claimant to establish as to who was the actual driver of the vehicle. He further contended that in that regard, except the testimony of the claimant himself, there is no other evidence adduced by him. Further, he contended as it is not established by the claimant as to who was the driver and whether the driver 4 had the valid driving licence or not, the insurance company is not liable to indemnify the owner of the vehicle. Apart from the said contention of exonerating the liability, learned counsel for the appellant further submitted that the amount of compensation awarded is too excessive in relation to the nature of injuries suffered to as per the wound certificate and also the disability as deposed to by the doctor.
3. Per contra, learned counsel appearing for the owner/respondent no.1 herein Sri Ganapathi submitted that before the tribunal respondent no.1/owner was absent and he was unaware of such discrepancies appearing in the documents filed before the tribunal. In the circumstances, he further contended that an opportunity may be given to the owner to establish that the vehicle was handed-over to the driver having a valid driving licence and the insurance company is liable to indemnify him.
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4. In view of such submissions, the points that arise for consideration are:
(1) Whether the impugned judgment and award is liable to be set-aside/modified?
(2) What order?
5. The cause of the accident is not in dispute but the identity of the driver who was driving the vehicle at the time of the accident is disputed by the appellant. The appellant has also contended that the driver of the vehicle was not having a valid driving licence so as to make the appellant/insurance company liable to indemnify the owner.
6. On perusal of the FIR and the charge sheet, as rightly contended to by the counsel for the appellant, it is seen that the driver's name varies. In the circumstances, the further contention of the learned counsel that perhaps the person who was actually driving viz., Chikkanarasaiah 6 was not having the driving licence and as such a different person is included in the charge sheet, cannot be easily ignored, but, at the same time, the owner who had remained absent should also be given an opportunity to explain as to who actually was driving the vehicle and whether the said driver had a valid driving licence or not?
7. Thus, because of the lacuna on the part of the owner of the vehicle, the claimant who has nothing to do with the act of the owner should not suffer and in the circumstances, considering such contention raised by the appellant/insurance company, it is necessary to remand the case for fresh adjudication with regard to the ground urged by the appellant in that regard.
8. With regard to the quantum of compensation awarded, on perusal of the impugned judgment and award, it is seen that the tribunal though assessed the monthly income of the claimant at Rs.2000/- per month and the 7 disability at 10%, towards loss of earning capacity/disability a sum of Rs.3,40,000/- is wrongly assessed. In the circumstances, even with regard to the quantum of compensation to be paid, the same requires re-evaluation.
9. For the foregoing reasons, the impugned judgment is liable to be set-aside and the matter requires to be remanded to the tribunal for fresh adjudication in accordance with law. Hence, the following:
ORDER The above appeal is allowed. The Judgment and Award passed in MVC No.464/2003 dated 5.1.2009 on the file of the Civil Judge (Sr.Dn.) & JMFC & Addl. MACT, Madhugiri is set-aside. The matter is remanded to the tribunal for fresh adjudication by giving opportunity to all the parties and in particular, the owner of the vehicle/2nd respondent herein in the light of the observations made herein above.8
As the accident is of the year 2002, the tribunal is directed to dispose of the case within four months from the date of receipt of the records. All the contentions urged by both the appellant as well as the owner are left open.
As all the parties are duly represented, they are directed to appear before the tribunal on 20.04.2013 without further notice.
The amount in deposit is ordered to be refunded to the appellant.
Office is directed to return the records forthwith Sd/-
JUDGE Brn