Karnataka High Court
Sri Narasimharaju vs Sri Harish Babu on 3 June, 2019
Author: K.Somashekar
Bench: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2019
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.2028 OF 2015 (MV)
CONNECTED WITH
MFA NO.2031 OF 2015 (MV)
IN MFA NO.2028 OF 2015(MV)
BETWEEN
Sri Narasimharaju
S/o Kollarappa
Aged about 43 years
R/at Shivanagar
Madhugiri Taluk
Tumkur District, No.14
Manjunathanagara
Naasandra Post
Bangalore - 560073
Rep by his wife Smt. Nagamani
W/o Narasimharaju as
Natural Guardian
Aged about 25 years
R/at No.14, Manjunathanagara
Nagasandra Post
Bangalore - 560073.
... Appellant
(By Sri. Vasanthappa , Advocate)
2
AND
1. Sri Harish Babu
S/o Late Rajanna
Ankasandra, Chelur Hobli
And Taluk, Tumkur District
And Taluk - 572216.
2. National Insurance Co. Ltd.,
Regional Office
No.144, Subbaram Complex
M. G. Road
Bangalore - 560001.
... Respondents
(By Sri. K. N. Srinivasa, Advocate for R-2;
R-1 Served )
This MFA is filed under Section 173(1) Of MV Act
against the judgment and award dated 13.11.2014
passed in MVC No. 2562/2011 on the file of the 12th
Additional Small Causes Judge and Member, MACT,
Bangalore partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
IN MFA NO.2031 OF 2015(MV)
BETWEEN
Sri Hanumantharaju
S/o Sri Bheemanna
Aged about 36 years
R/at Shivanagar
Madhugiri Taluk
Tumkur District, No.14
3
Manjunathanagara
Nagasandra Post
Bangalore - 560073.
... Appellant
(By Sri. Vasanthappa - Advocate)
AND
1. Sri Harish Babu
S/o Late Rajanna
Ankasandra, Chelur Hobli
And Taluk, Tumkur District
And Taluk - 572216.
2. National insurance Co.Ltd.
Regional Office
No.144, Subbaram Complex
M. G. Road
Bangalore - 560001.
... Respondents
(By Sri. K. N. Srinivasa, Advocate for R-2;
R-1 Served )
This MFA is filed under Section 173(1) Of MV Act
against the judgment and award dated 13.11.2014
passed in MVC No. 2563/2011 on the file of the 12th
Additional Small Causes Judge and Member, MACT,
Bangalore partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
These MFAs coming on for admission, this day,
the court delivered the following:
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JUDGMENT
Though these matters are set down for admission, with the consent of learned counsel for both the parties, the same are taken up for final disposal.
2. These appeals are preferred against the judgment and award dated 13.11.2014 passed by the Tribunal in MVC Nos.2562/2011 and 2563/2011. By the impugned judgment, the Tribunal has exonerated the Insurance Company of its liability and has directed the owner of the offending vehicle to pay the compensation.
3. Both these appeals are preferred by the claimants seeking enhancement of compensation awarded by the Tribunal and with a prayer to shift the liability on the Insurance Company to pay the compensation instead of the owner of the offending vehicle.
4. The factual matrix of the appeals is as under: 5
It is stated in the claim petition that on 30.03.2011 at about 6.30 p.m. when the claimants / appellants were traveling as a pillion and rider respectively, they had parked their motor cycle bearing Reg.No.KA-06-ED-5820 on the extreme left side of the road at Thimmanna's land near Kallugudi village, Chelur Hobli, Gubbi Taluk for the purpose of attending to nature call. At that time, the driver of a tractor bearing Reg.No.KA-06-TA-3488/3489 had come from Ranganahalli side in a rash and negligent manner without observing traffic rules and dashed against the parked motor cycle and also moved further and dashed against the claimants as well, as a result of which both of them fell down and sustained grievous injuries. The appellant in both the appeals were treated in different hospitals as in-patients and had spent huge amounts towards their treatment. Both of them were hale and healthy prior to the accident and were earning Rs.15,000/- per month and Rs.10,000/- per month respectively by flower business and milk vending 6 business. Hence, they filed claim petitions seeking compensation for the injuries sustained.
5. On issuance of notice, respondents appeared through their respective counsel and filed their written statements. Respondent No.1 - owner of the offending tractor in his written statement had denied the averments in the petition but however had admitted that he was the owner of the tractor and also admitted that the insurance policy was in force as on the date of the alleged accident and moreover, the driver held and valid and effective driving licence to drive the tractor and hence, he was not liable to pay any compensation to the claimants.
Respondent No.2 - Insurer in its written statement had pleaded that the claim petitions were not maintainable for want of territorial jurisdiction and moreover the petitions were not maintainable for non- joinder of necessary parties. However, he had admitted the issuance of the insurance policy in favour of the owner of the offending tractor but however contended that the driver did not hold a valid and effective driving 7 licence to drive the tractor. Further, it was alleged that the medical records disclosed that the accident occurred due to the two wheeler being hit by a four wheeler, whereas the tractor trailer involved in the accident was a six wheeler and hence, the claimants had colluded with the police and owner of the offending vehicle and have implicated the insured vehicle with an intention of getting compensation.
6. On the basis of the pleadings, the Tribunal framed issues and awarded compensation of Rs.2,29,670/- to the appellant in MFA 2028/2015 and Rs.45,000/- to the appellant in MFA 2031/2015. However, the Tribunal totally exonerated the Insurance Company of its liability to pay the said compensation and fastened the liability on the owner of the tractor - Respondent No.1 in both these appeals, to pay the compensation. It is this judgment which is under challenge in the present appeals urging various grounds.
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7. Learned counsel for the claimants / appellants in both the appeals contends that the compensation awarded by the Tribunal is on lower side and the same needs to be enhanced. Further, the Tribunal has erred in fixing the liability on the owner of the offending vehicle though as on the date of accident, the policy was in force. Further, the Tribunal has taken lower income while awarding compensation under loss of dependency and the further though the evidence of PW.5 Doctor was evident that the claimant in MVC 2562/2011 suffered 35% disability to the whole body, the Tribunal has taken it at 15%, which requires to be interfered with by this court. In so far as the claimant in MVC No.2563/2011 is concerned, the Tribunal has awarded very meager compensation on the whole and has committed grave error in not awarding any compensation towards 'loss of earning during laid up period'. Hence, the learned counsel contends that the compensation awarded by the Tribunal in respect of the appellant in both these appeals requires to be enhanced suitably.
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It is the further contention of the learned counsel for the appellant in both the appeals that the order passed by the Tribunal is arbitrary in so far as fixing the liability on the first respondent - owner of the offending vehicle and exonerating respondent no.2 - Insurer from the liability of making payment of compensation. Further, the Tribunal has absolved the Insurance Company of the liability and fastened the liability on the owner of the offending tractor on the ground that the driver of the offending vehicle did not possess the valid and effective driving licence to drive the said vehicle; in that, the vehicle involved in the accident is a Tractor attached to trailer but the driver of the said tractor and trailer held licence only to drive a tractor. It is on this ground that the Tribunal has absolved the Insurance Company of its liability. In this connection, it is useful to refer to the decision of the Apex Court in the case of RANI & OTHERS VS NATIONAL INSURANCE COMPANY LIMITED & OTHERS - (2018) 8 SCC 492, wherein it is held that even in case where the offending vehicle did not possess a valid permit to operate in the State 10 concerned, the compensation determined must be first paid by the insurer, who could thereafter recover the same from the owner of the offending vehicle. Therefore, the said ratio laid down is squarely applicable to the present case. Therefore, the learned counsel contends that the Insurance Company be directed to first pay the compensation with liberty to recover the same from the owner of the offending vehicle. On these grounds, learned counsel for the appellant in both the appeals prays for allowing the appeals by enhancing the compensation awarded by the Tribunal and further fastening the liability on the Insurance Company to pay the compensation.
8. The learned counsel for Respondent No.2 - Insurance Company vehemently opposes the contentions put forth by the counsel for the appellant in both the appeals and submits that question of enhancement of compensation would not at all arise in this case as the Tribunal considering the evidence on record has granted just and fair compensation to the 11 claimants, which does not call for interference in this appeal. Though he refutes the question of fastening the liability on the Insurance Company to pay the compensation, in view of the Apex Court judgment in Rani's (supra) case, he contends that this Court may direct the Insurer to pay the compensation awarded by the Tribunal with liberty to recover the same from the owner of the offending tractor.
9. In the backdrop of the contentions taken by the learned counsel for the parties, I find that as contented by the learned counsel for the second respondent - Insurance Company, the Tribunal has taken into consideration the evidence on record and has rightly awarded just and fair compensation in respect of the appellant in both the appeals, which aspect does not call for any interference in these appeals.
Though the driver of the offending tractor and trailer held licence only to drive a tractor, in view of the Apex Court ruling in RANI & OTHERS VS NATIONAL INSURANCE COMPANY LIMITED & OTHERS - (2018) 8 SCC 492, holding that even in case where the offending 12 vehicle did not possess a valid permit to operate in the State concerned, the compensation determined must be first paid by the insurer, who could thereafter recover the same from the owner of the offending vehicle, I find that it would be appropriate to direct the Insurer to first pay the compensation with liberty to recover the same from the owner of the offending vehicle. For the reasons and findings as stated above, I proceed to pass the following:
ORDER MFA No.2028/2015 and 2031/2015 filed by the appellants / claimants are allowed in part. The quantum of compensation granted by the Tribunal in MVC Nos.2562/2011 and 2563/2011 in respect of the appellant in both these appeals remains unaltered.
However, in view of the judgment of the Apex Court in Rani's case (supra), the second respondent - National Insurance Co. Ltd. in each of these appeals is directed to pay the respective compensation awarded by 13 the Tribunal in respect of the appellant in both these appeals. Accordingly, Respondent No.2 shall deposit the entire amount awarded by the Tribunal along with interest accrued, within a period of four weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be disbursed to the claimants, on proper identification. However, the impugned judgment and award, in so far as it relates to rate of interest, apportionment and deposit is concerned, shall remain unaltered. The respondent No.2 - Insurance Company is at liberty to recover the compensation paid by it from the owner of the offending tractor.
The Lower Court Records shall be transmitted to the concerned Tribunal forthwith.
There shall be no order as to the costs. Office to draw the decree accordingly.
Sd/-
JUDGE KS