A mixed first appeal by an insurer challenging liability and a cross-objection by an injured claimant seeking enhanced compensation. The High Court held the insurer liable, dismissing the appeal, and enhanced compensation from Rs. 2,08,000 to include an additional Rs. 55,764.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
MFA 30421/101
C/w. MFA CROB.1025/10
IN THE HIGH COURT OF KARNATAKA GULBARGA BENCH
DATED THIS THE 17TH DAY OF OCTOBER, 2014
BEFORE:
THE HON’BLE MR. JUSTICE A.S.PACHHAPURE
MISCELLANEOUS FIRST APPEAL No.30421 OF 2010 [MV]
C/w. M.F.A. CROSS-OBJECTION No.1025 OF 2010 [MV] IN M.F.A. No.30421 OF 2010 [MV]
IN MFA No.30421/2010.
BETWEEN
THE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., THROUGH ITS OFFICE OF THE MANAGER LAMINGHAM ROAD, HUBLI.
... APPELLANT
(BY SRI.SANJAY M.JOSHI, ADV)
AND
MFA 30421/102
C/w. MFA CROB.1025/10
R/O:PLOT NO.20,APMC YARD V.CHANNABASAVA TRADING CO. LINGASUGUR, DIST:RAICHUR ... RESPONDENTS
(BY SRI.KRUPA SAGAR PATIL, ADV.FOR R1 SRI. BASAVARAJ R. MATH, ADV FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:08.12.2009 PASSED IN MVC NO. 979/2008 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN.) AT GULBARGA, PARTLY ALLOWING THE CLAIM PETITION AND AWARDING THE COMPENSATION OF RS.2,08,000/- WITH INTEREST AT 6% P.A.
IN MFA CROB NO. 1025/2010
BETWEEN
SOMASHEKAR S/O RUDRAPPA AGE: 26 YEARS, OCC: BUSINESS R/O KAKKERI, TQ: SHORAPUR DIST: YADGIR. ... CROSS-OBJECTOR
(BY SRI. KRUPA SAGAR PATIL, ADV.)
AND
MFA 30421/103
C/w. MFA CROB.1025/10
(BY SRI.SANJAY M. JOSHI, ADV FOR R2
R1 SERVED UNREPRESENTED)
THIS MFA CROB IN MFA 30421/09 FILED UNDER ORDER 41 RULE 22 C.P.C AGAINST THE JUDGEMENT AND AWARD DT:8.12.2009 PASSED IN MVC NO 979/2008 ON THE FILE OF THE II ADDL CIVIL JUDGE (SR.DN) AND MACT GULBARGA, PARTLY ALLOWING THE CLAIM PETITION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA AND MFA CROB. COMING ON FOR FINAL HEARING, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
While the insurer has challenged its liability
to pay the compensation for the injuries sustained by the 1st respondent in MFA No.30421/2010, the cross-objection have been filed by the claimant, seeking enhancement of compensation for the injuries sustained in the motor vehicle accident.
Somashekhar-1st respondent [injured] in the main
4 C/w. MFA CROB.1025/10
appeal was proceeding in the Bajaj M-80 moped bearing reg. No.KA-33/H-6863 and at that time, the lorry bearing reg. No.KA-22/A-5425 came from the opposite direction driven in a rash and negligent manner and hit the motorcycle. Thereby, he sustained grievous injuries and was treated in the hospital. He suffered disability. A claim for compensation was made by him towards pain, suffering, mental agony, medical expenses, etc.
The insurer appeared before the Tribunal and filed its objections denying its liability on the ground that the driver was not holding valid driving license. The Tribunal recorded the evidence of P.Ws.1 and 2 and in their evidence, Exs.P1 to 9 were marked. On behalf of the insurer, R.W.1 was examined and in his evidence, Exs.R1 to 3 were marked.
The Tribunal after hearing the counsel for the parties and on appreciation of the evidence on
MFA 30421/105
C/w. MFA CROB.1025/10
record, assessed the disability at 15.985%, income
at Rs.4,000-00 p.m. and granted a sum of
Rs.2,08,000-00 as compensation on all the heads with interest at 6% p.a. and ordered the insurer to indemnify the owner. Aggrieved by the liability, the insurer has preferred the appeal, whereas the claimant has filed its cross-objection, seeking enhancement.
parties.
are;
MFA 30421/106
C/w. MFA CROB.1025/10
submits that a notice was issued to the owner under Ex.R2, calling upon him to produce the driving license, but he did not produce the same. Therefore, in the absence of the driving license, there is no liability to indemnify the owner and seeks to set aside the Judgment and Award.
On the other hand, learned counsel for the injured submits that breach of the policy condition has not been proved and further the compensation on
each of the heads is on the lower side. He also submits that the income assessed has to be reasonably increased.
MFA 30421/107
C/w. MFA CROB.1025/10
basis of its own reasons, upheld the disability at 15.985%. I do not find any grounds to increase the disability assessed.
7. So far as the income is concerned, the
Tribunal has taken it at Rs.4,000-00 p.m. The accident is of the year 2008. Generally, a sum of Rs.4,500-00 is considered as income in the Lok Adalats held with the consent of the parties and hence it is just and proper to accept the income of the injured at Rs.4,500-00 p.m. Thereby, loss of future income would be;
Rs.4,500 x 12 x 15.985 x 18 = Rs.1,55,374-00 100
The difference would be Rs.1,55,374-00 – 1,38,110-00 = Rs.17,264-00.
right femur, only a sum of Rs.7,000-00 has been
MFA 30421/108
C/w. MFA CROB.1025/10
granted towards pain, suffering and mental agony. I think it is just and proper to grant an additional sum of Rs.13,000-00 on this head. No compensation has been granted towards loss of amenities. Therefore, the compensation awarded towards loss of prospects in life has to be adjusted. As the implants were put in at the time of reduction of the fracture, therefore towards future medical expenses, a sum of Rs.20,000-00 is just and proper for removal by another surgery. Towards loss of income during the period of treatment, a sum of Rs.8,000-00 has been granted. Considering the period of 3 months to heal-up the fracture, with the income at Rs.4,500-00 p.m., the difference will be Rs.5,500-00. Thereby, the injured is entitled to the following additional sum:
| Rs. Ps. | |
|---|---|
| Loss of future income. | : 17,264-00 |
| Pain, suffering and mental |
: 13,000-00 |
| agony. | |
| Future medical expenses. | : 20,000-00 |
MFA 30421/109
C/w. MFA CROB.1025/10
Loss of income during the : 5,500-00 period of treatment. Total : 55,764-00
Thereby, the injured is entitled to a sum of Rs.55,764-00 with interest at 9% p.a. from the date of the petition till its payment in addition to the compensation awarded by the Tribunal.
MFA 30421/1010
C/w. MFA CROB.1025/10
of the notice issued earlier to the proceedings are insufficient to hold that the driver was not holding a valid driving license. That apart, I.A. No.1/14 has been filed before this Court during the pendency of the proceedings along with the xerox copy of the license held by the driver, wherein the particulars of the driving license has been furnished. Though the application was filed on 15.09.2014, it appears that the insurer has not verified the same. Anyhow, as the material placed on record is insufficient to conclude that the driver was not holding a valid driving license, I am of the opinion that the insurer is liable as it has failed to establish
breach of the policy conditions. Hence, I answer point Nos.1 and 2 in affirmative.
Consequently, the appeal of the insurer is dismissed. Cross-objections are allowed in part. The injured-Somashekhar i.e., the 1st respondent in the cross-objection is entitled to the compensation of Rs.55,764-00 with interest at 9% p.a. from the
MFA 30421/1011
C/w. MFA CROB.1025/10
date of the petition till its payment in addition to the compensation awarded by the Tribunal.
Sri. Sanjay M. Joshi, Advocate, for the insurer is permitted to file vakalat within 15 days from
today.
Sd/JUDGE.
Ksm*
3 issues framed by the court
Whether the insurer is liable to indemnify the owner despite alleged failure to produce a valid driving license?
Whether the injured party is entitled to enhancement of compensation?
Whether the insurer must enhance the compensation awarded by the Tribunal?
The Bajaj Allianz General Insurance Co. Ltd.
A.S. Pachhapure
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
