Partly allowed

Bajaj Allianz General Insurance Co. Ltd., v. Shva Prasad S/O. Venkateshappa

Karnataka HC28 Aug 2020MFA/22017/2013

Case brief

AI extract

What is this about?

High Court allowed an appeal to enhance motor accident compensation from Rs. 1,44,000 to Rs. 2,09,000 plus pain and suffering, citing relevant Supreme Court precedent to reject insurer's claim of license violation.

What did the court decide?

Enhanced compensation of Rs.1,05,000 to be added to earlier award, carrying 6% p.a. interest; insurance appeal dismissed.

Bajaj Allianz General Insurance Co. Ltd., Vs Shva… — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 28^th DAY OF AUGUST 2020

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BEFORE

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THE HON’BLE MR. JUSTICE M.NAGAPRASANNA

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MFA No.21781/2013 (MV) C/W MFA No.22017/2013

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IN MFA No.21781/2013

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BETWEEN:

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SHIVA PRASAD S/O VENKATESHAPPA, AGE:39 YEARS, BUSINESS, R/O KUDLIGI TOWN IN KUDLIGI TQ. BELLARY DIST.

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.. APPELLANT

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(BY SRI.T.BASAVANA GOUD, ADV.)

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AND:

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N. CHANDRAPPA @ CHANDRU, S/O SANNA NAGAPPA, AGE:29 YEARS, DRIVER OF THE AUTO BEARING NO.KA-17/A-5663, R/O CHIKKA KURUBANAHALLI VILLAGE, BELAGERE POST, CHANNAGIRI (TQ.) DAVANAGERE DIST.

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SUNKAPPA M. S/O MELAPPA, AGE:62 YEARS, OWNER OF THE AUTO BEARING NO.KA-17/A-5663, R/O BATTANAHALLI, KORACHAHATTI VILLAGE IN KUDLIGI TQ. BELLARY DIST.

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THE DIVISIONAL MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., NO.105-A, 1ST FLOOR, CEARS PLAZA, 136, RESIDENCY ROAD BANGALORE-560025.

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.. RESPONDENTS

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(BY SRI.RAVINDRA R.MANE, ADV. FOR R3, R1 SERVED; NOTICE TO R2 HELD SUFFICIENT)

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THIS APPEAL IS FILED UNDER U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:17-11-2012 PASSED IN MVC NO.1274/2009 ON THE FILE OF SENIOR CIVIL JUDGE CUM MEMBER, VI-MACT, AT KUDLIGI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA No.22017/2013

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BETWEEN:

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BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., THROUGH THE DIVISIONAL MANAGER 105-A, 1ST FLOOR, CEARS PLAZA, 136, RESIDENCY ROAD, BANGALORE HEREIN REPRESENTED BY BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., 4TH FLOOR, V.A.KALBURGI MANSION, OPPOSITE MUNICIPAL CORPORATION LAMINGTON ROAD, HUBLI, REPTD., BY ITS AUTHORIZED SIGNATORY.

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.. APPELLANT

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(BY SRI.R.R.MANE, ADV.)

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AND:

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SHVA PRASAD S/O. VENKATESHAPPA AGE: 39 YEARS, OCC: BUSINESS R/O. KUDLIGI, DIST: BELLARY

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N. CHANDRAPPA @ CHANDRU S/O. SANNA NAGAPPA AGE: 29 YEARS, OCC: DRIVER OF GOODS AUTO BEARING NO KA17/A 5663, R/O. CHIKKA KURUBANAHALLI VILLAGE, POST: BELAGERE, TQ: CHANNAGIRI, DIST: DAVANAGERE

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SUNKAPPA M. S/O. MELAPPA AGE: 62 YEARS, OCC: OWNER OF GOODS AUTO BEARING NO KA17/A 5663, R/O. BATTANAHALLI KORACHARAHATTI VILLAGE, TQ: KUDLIGI, DIST: BELLARY

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.. RESPONDENTS

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(BY SRI.T,BASAVANA GOUD, ADV. FOR R1, R2 SERVED; NOTICE TO R3 DISPENSED WITH)

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THIS APPEAL IS FILED UNDER U/S 173(1) OF MV ACT 1988, AGAINST THE JUDGMENT AND AWARD DATED:17-11-2012 PASSED IN MVC NO.1274/2009 ON THE FILE OF SENIOR CIVIL JUDGE CUM MEMBER, VI-MACT AT KUDLIGI, AWARDING THE COMPENSATION OF Rs.2,95,000/- WITH INTEREST AT THE RATE OF 8% P.A., FROM THE DATE OF PETITION, TILL DEPOSIT.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals, though listed for admission, are taken

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up for final disposal with the consent of the learned counsel appearing for the parties.

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These appeals under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) have been filed by the claimant and Insurance Company being aggrieved by the judgment dated 17.11.2012 passed by the Senior Civil Judge cum Member VI-MACT, Kudligi in M.V.C.No.1274/2009.

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Parties will be referred to as per their ranking before the Claims Tribunal.

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Facts giving rise to the filing of the appeal briefly stated are that, on 18.10.2008 at about 8.30 p.m. claimant and his friend were proceeding on motorcycle from Kottur to Kugligi, at which point of time, the offending vehicle bearing Reg.No.KA-51/R-3964 came from opposite direction and dashed into the motorcycle of the claimant.

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Due to which, the claimant sustained grievous injuries and was shifted to Government Hospital, Kudligi. Thereafter he was shifted to Suchethana Hospital, Davanagere where he took treatment as an inpatient for 40 days.

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The claimant filed claim petition under Section 166 of the Act before the Tribunal on the ground that he has spent huge sums of money towards treatment for the injuries sustained by him in the accident and that he was earning Rs.10,000/- p.m. It was considered that due to the injuries sustained by him, his future income is lost and accordingly claimed compensation to the tune of Rs.10,56,241/- along with interest.

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On service of notice, respondent No.1-owner of the offending vehicle did not appear and was placed ex-parte. Respondent No.3-Insurane Company appeared and filed its statement of objections and contended that the driver of the auto did not have valid and effective driving licence at the time of the accident and was not

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qualified to drive a particular class of vehicle that he was driving which was in violation of Rule 3 of the Central Motor Vehicles Rules, 1989. The age, avocation and income of the claimant was also denied by the Insurance Company.

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On the basis of the pleadings of the parties, the

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Claims Tribunal framed the issues and thereafter recorded the evidence.

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The claimant, in order to prove his case, examined himself as P.W.1 and the doctor was examined as P.W.3 and got marked 14 documents namely Exs.P1 to P14. On the other hand, Insurance Company examined one witness as R.W.1 and got marked Exs.R1 to R4.

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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

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claimant is entitled to a compensation of Rs.2,95,000/along with interest at the rate of 6% p.a.

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The Insurance Company has preferred MFA

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No.22017/2013 on the ground that the Tribunal ought not to have fastened liability upon the Insurance Company for

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payment of compensation, in the light of the fact that there was clear violation of policy conditions, as the driver of the offending vehicle did not have licence to drive a transport vehicle but only had a licence to drive Light Motor Vehicle. The claimant has preferred MFA No.21781/2013 seeking enhancement of compensation that is awarded by the Tribunal.

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I have heard Sri.T.Basavana Goud, learned

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counsel for the claimant and Sri.R.R.Mane, learned counsel for the Insurance Company through video conference.

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The learned counsel for the Insurance Company contends that the Tribunal could not have fastened the liability of payment of compensation upon it, as the driver of the offending vehicle did not have licence to drive the

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said transport vehicle, as he had only licence to drive a Light Motor Vehicle. With regard to the compensation, learned counsel would contend that the compensation awarded by the Tribunal is just and proper and does not warrant any interference.

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On the other hand, learned counsel for the claimant would contend that the Tribunal has taken income at Rs.3,000/- p.m. and has awarded meager compensation under the head loss of future earning and the Tribunal has not awarded any compensation under loss of amenities.

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I have given my anxious consideration to the submissions of the learned counsel for the parties and perused the material on record.

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The contention of the Insurance Company with regard to driver of the offending vehicle not possessing a valid licence to drive transport vehicle is concerned, the issue is no longer res integra, in the light of the judgment of the Apex Court in ‘MUKUND DEWANGAN V/S ORIENTAL INSURANCE COMPANY LIMITED ’ reported

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in 2017 AIR(SC) 3668. Admittedly, the unladen weight of

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the offending vehicle is less than 7,500 kgs and the driver of the goods auto was entitled to drive the same holding Light Motor Vehicle licence. Hence, in terms of the law laid down in MUKUND DEWANGAN (SUPRA) , the appeal filed by the Insurance company in MFA No.22017/2013 is dismissed.

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In MFA No.21781/2013, admittedly, the claimant has not produced any evidence to show that, he was earning Rs.10,000/- p.m. Therefore, the notional income has to be fixed as per the guidelines issued by the High Court Legal Services Committee. Since the accident has taken place in the year 2008, the notional income has to be taken at 4,250/- p.m. The disability determined by the Tribunal at 25% is just and proper and the same is to be taken into consideration. Hence, the claimant is entitled to compensation under the head of loss of future earning would be Rs.2,04,00/- (Rs.4,250/- x 12 x 16 x 25/100) as against Rs.1,44,000/- awarded by the Tribunal. The

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Tribunal has awarded Rs.25,000/- towards pain and suffering. Since the claimant has suffered two fractures, I deem it appropriate to enhance the same to Rs.40,000/(enhancement of Rs.15,000/-). The Tribunal has not awarded any compensation towards loss of amenities, which I deem it appropriate to grant Rs.30,000/-. Thus, the claimant is entitled to an enhanced compensation of Rs.1,05,000/- which shall carry interest at 6% p.a. from the date of the petition till its satisfaction by the Insurance Company. Hence, I pass the following:

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ORDER

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i) MFA No.21781/2013 is allowed in part. The claimant is entitled to an enhanced compensation of Rs.1,05,000/- which shall carry interest at 6% p.a. from the date of the petition till its satisfaction by the Insurance Company

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ii) MFA No.22017/2013 is dismissed.

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iii) The amount in deposit in MFA No.22017/2013 shall be transferred to the Tribunal forthwith.

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Sd/-

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JUDGE

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MBS/-

Bajaj Allianz General Insurance Co. Ltd., v. Shva Prasad S/O. Venkateshappa

Case brief

What is this about?

What did the court decide?

Bajaj Allianz General Insurance Co. Ltd., v. Shva Prasad S/O. Venkateshappa

Case brief

What is this about?

What did the court decide?

What the court decided

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