Karnataka High Court
Bajaj Allainz General Insurance ... vs S L Ashok S/O Lingegowda on 9 November, 2022
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER 2022
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.9716 OF 2010 (MV) c/w
MFA CROB No.98 OF 2011 (MV)
IN MFA NO.9716 OF 2010:
BETWEEN:
BAJAJ ALLAINZ GENERAL INSURANCE COMPANY LTD
NO.363, SRI HARI COMPLEX,
SEETHA VILAS ROAD, MYSORE CITY,
REPRESENTED BY ITS
BAJAJ ALLAIANZ GENERAL INSURANCE COMAPNY
BANGALORE, REPRESENTED BY ITS
ASSISTANT VICE PRESIDENT. ... APPELLANT
(BY SMT. H.R. RENUKA, ADVOCATE)
AND:
1. S.L. ASHOK
S/O LINGEGOWDA
AGED ABOUT 28 YEARS
R/O SADOLALU VILLAGE,
KASABA HOBLI, MADDUR TALUK.
2. T. SURESH
S/O THIMMEGOWDA
AGED ABOUT 29 YEARS
R/O MAGALAPURA VILLAGE,
HURDI POST, MALLAVALLI TALUK
MANDYA DISTRICT.
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3. S.L. SHIVAKUMAR
S/O LATE LINGEGOWDA
AGED ABOUT 35 YEAS
R/O SODALALU VILLAGE,
MADDUR TALUK.
4. THE MANAGER
NATIONAL INSURANCE CO. LTD.,
BRANCH OFFICE, NO.1570, I FLOOR
V.V. ROAD, MANDYA CITY,
MANDYA.
... RESPONDENTS
(BY SRI A. HANUMANTHAPPA, ADVOCATE FOR R1;
SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R4;
NOTICE TO R2 & R3 SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED 08.12.2009
PASSED IN MVC NO.254/2007 ON THE FILE OF THE CIVIL
JUDGE(SR.DN) AND MACT, MADDUR, AWARDING A
COMPENSATION OF RS.1,10,200/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA.CROB NO.98/2011:
BETWEEN:
SRI S.L. ASHOK,
S/O LINGEGOWDA,
AGED 30 YEARS,
OCC: DRIVER & AGRICULTURIST,
R/O SADOLALU VILLAGE,
KASABA HOBLI, MADDUR TALUK. ...CROSS OBJECTOR
(BY SRI A. HANUMANTHAPPA, ADVOCATE)
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AND:
1. T. SURESH,
S/O THIMMEGOWDA,
R/O HURDI POST,
MALAVALLI TALUK,
MANDYA DISTRICT.
(OWNER OF THE VEHICLE BER
REG NO.KA-11/7519)
2. THE MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD,
BRANCH OFFICE NO.383,
SRIHARI COMPLEX, SEETHA VILAS ROAD,
MYSORE CITY.
3. S.L. SHIVAKUMAR,
S/O LATE LINGEGOWDA,
R/O SADOLALU VILLAGE,
MADDUR TALUK
(OWNER OF THE BAJAJ CT-100 BEARING
REG.NO.11/L-7061).
...RESPONDENTS
(BY SMT. H.R. RENUKA, ADVOCATE FOR R-2;
NOTICE TO R-1 & R-3 SERVED BUT UNREPRESENTED)
THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF
CODE OF CIVIL PROCEDURE R/W SECTION 173(1) OF MV ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED:
08.12.2009, PASSED IN MVC NO.254/2007, ON THE FILE OF
THE CIVIL JUDGE (SR.DN.) MADDUR AND ETC.
THIS MFA AND MFA CROB. COMING ON FOR FINAL
HEARING, THIS DAY, THIS COURT DELIVERED THE FOLLOWING:
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JUDGMENT
MFA No.9716/2010 is filed by the Insurance Company under Section 173(1) of the Motor Vehicles Act, (for short, 'the Act') and MFA Crob.No.98/2011 is filed by the claimants under Order 41 Rule 22 of CPC being aggrieved by the judgment and award dated 08.12.2009 passed by the Civil Judge (Sr.Dn.), Maddur in MVC No.254/2007. Since the challenge is to the same judgment, both the appeal and cross objection are clubbed together, heard and common judgment is being passed.
2. Facts giving rise to the filing of the appeal and cross objection briefly stated are that on 23.04.2007 at about 3.15 p.m. the claimant was proceeding on Bajaj motorcycle bearing registration No.KA-11/L-7061 towards his native place of Sadolalu from Maddur. At that time, a Goods Auto bearing registration No.KA-11/7519 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. 5 As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
4. On service of notice, the respondent Nos.1 and 2 appeared through counsel and filed written statements in which the averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the vehicle by the claimant himself. It was further pleaded that the driver of the offending vehicle did not have valid driving licence as on the date of the accident. It was 6 further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Bhaskar K. was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P17. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R2. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.1,10,200/- along with interest at the rate of 6% p.a. and directed the respondent No.2 Insurance Company to 7 deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.
6. Smt.H.R.Renuka, the learned counsel for the Insurance Company has raised the following contentions:
Firstly, at the time of the accident the driver of the offending vehicle was holding LLR and he was driving the transport vehicle. Since the insured has violated Rule 3 of the Central Motor Vehicle Rules, 1989, the Insurance Company is not liable to pay the compensation. But, the Tribunal inspite of holding that the driver of the offending vehicle was not having valid and effective driving licence and he was holding only LLR, has erred in fastening liability on the Insurance Company.
Secondly, the overall compensation awarded by the Tribunal is on the higher side and sought for dismissal of the appeal. Hence, she sought for allowing the appeal filed by the Insurance Company.8
7. On the other hand, Sri A.Hanumanthappa, learned counsel appearing for the claimant has raised the following contentions:
Firstly, if this Court holds that the driver of the offending vehicle was not having a valid and effective driving licence, in respect of third party claim is concerned, Insurance Company has to pay the compensation amount at the first instance with liberty to recover the same from the owner of the offending vehicle.
Secondly, at the time of the accident claimant was earning Rs.8,000/- per month, but the Tribunal has taken the notional income as only Rs.3,000/- per month.
Thirdly, due to the accident the claimant has suffered grievous injuries, he was inpatient for a period of 3 days, he has suffered lot of pain during treatment and the compensation awarded by the Tribunal for 'pain and sufferings', 'loss of amenities' and other incidental expenses 9 is on the lower side. Hence, he sought for enhancement of compensation.
8. The learned counsel appearing for respondent No.4 submits that it is only a formal party.
9. Heard the learned counsel for the parties and perused the judgment and award and the original records.
10. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 23.04.2007 due to rash and negligent driving of the Goods Auto bearing registration No.KA-11/7519.
The claimant claims that he was earning Rs.8,000/- per month. He has not produced any documents to prove his income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2007, the notional income has to be taken at Rs.4,000/- p.m. As per wound certificate, the claimant has sustained fracture of both bones of left leg. 10 Taking into consideration the deposition of the doctor, PW-2 and injuries mentioned in the wound certificate, the Tribunal has rightly taken the whole body disability at 10%. The claimant was aged about 25 years at the time of the accident and multiplier applicable to his age group is '18'. Thus, the claimant is entitled for compensation of Rs.86,400/- (Rs.4,000*12*18*10%) on account of 'loss of future income'.
Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He was treated as inpatient for a period of one month in the hospital and thereafter, has received further treatment. He has suffered lot of pain during treatment and he has to suffer with the disability and unhappiness throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.20,000/- to Rs.35,000/-, 'loss of amenities' from Rs.10,000/- to Rs.25,000/- and 'loss of 11 income during laid-up period' for a period of three months, i.e., Rs.12,000/- (Rs.4,000*3).
Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.
11. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 20,000 35,000 Medical expenses 8,000 8,000 Food, nourishment, 5,000 5,000 conveyance and attendant charges Loss of income during 6,000 12,000 laid up period Loss of amenities 10,000 25,000 Loss of future income 61,200 86,400 Total 1,10,200 1,71,400 The claimant is entitled to a total compensation of Rs.1,71,400/- as against Rs.1,10,200/- awarded by the Tribunal.12
Re.liability:
12. It is not in dispute that as on the date of the accident the driver of the offending vehicle was having LLR. Rule 3 of the Central Motor Vehicles Rules is extracted hereinbelow:
"3. General.--The provisions of sub- section (1) of section 3 shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as--
(a) such person is the holder of an effective learner's licence issued to him in Form 3 to drive the vehicle;
(b) such person is accompanied by an instructor holding an effective driving License to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle; and
(c) there is painted, in the front and the rear or the vehicle or on a plate or card affixed 13 to the front and the rear, the letter "L" in red on a white background.
Provided that a person, while receiving instructions or gaining experience in driving a motor cycle (with or without a side-car attached), shall not carry any other person on the motor cycle except for the purpose and in the manner referred to in clause (b)."
It is very clear from the aforesaid Rule that the person who was holding effective learners licence has to drive the vehicle accompanied by an instructor holding an effective driving licence to drive such vehicles.
13. In the case on hand, admittedly, the driver of the offending vehicle was having LLR and he was not accompanied by any instructor who was holding an effective driven licence. Since the insured has violated the policy condition, Insurance Company is not liable to pay the compensation. The Tribunal has erred in fastening liability on the Insurance Company. Since the offending vehicle 14 was covered with valid insurance policy, in view of the law laid down by the Hon'ble Apex court in the case of PAPPU AND OTHERS vs. VINOD KUMAR LAMBA AND ANOTHER' AIR 2018 SC 592 and a Full Bench judgment of this Court in 'NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER' ILR 2020 Kar.2239, the insurance company has to pay the compensation amount with liberty to recover the same from the owner of the offending vehicle, the insured.
14. In the result, the appeal and the cross objection are allowed in part. The judgment of the Claims Tribunal is modified.
The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment with liberty to recover the same from the owner of the offending vehicle. 15
The amount in deposit is ordered to be transferred to the Tribunal forthwith.
Sd/-
JUDGE Cm/-