Allowed

A.v.Shobha v. Ganjeppagari Ampanna

Karnataka HC2 Jun 2022MFA/6407/2018

Case brief

AI extract

What is this about?

This High Court allowed two Motions for Filing Appeals regarding compensation in a motor vehicle accident. The court enhanced the total compensation from Rs.1,38,295 to Rs.2,18,295, covering chronic disability, pain, and loss of amenities. It also reduced the interest rate from 9% to 6% per annum.

What did the court decide?

Total compensation enhanced to Rs.2,18,295; interest rate reduced to 6% p.a.; judgment of Claims Tribunal modified.

A.v.Shobha Vs Ganjeppagari Ampanna — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD

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MFA No.6407 OF 2018(MV)

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C/W MFA No.2853 OF 2018(MV)

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IN MFA No.6407/2018:

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BETWEEN:

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A.V.Shobha, D/o Veerabhadrappa @ A.Veeranna, Now Aged about 22 years, R/at Hanumanthanahalli Village, Challakere Taluk.

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… Appellant

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(By Sri.Rangegowda.N.R., Advocate)

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AND:

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Ganjeppagari Ampanna @ Hampanna, S/o G.Shankrappa, Aged about 40 years, Agriculturist, R/o B.T.Project, Gummagatta Mandal, Rayadurga Taluk, Anantapur District, A.P.State.

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The Branch Manager, New India Assurance Co. Ltd., Vijayashree Complex,

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P.B.Road, Chitradurga – 577 501.

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... Respondents

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(By Sri.E.I.Sanmathi, Advocate for R2; Notice to R1 is dispensed with)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 09.01.2018 passed in MVC No. 1353/2016 on the file of the Senior Civil Judge and MACT, Challakere, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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IN MFA No.2853/2018:

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BETWEEN:

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Branch Manager, New India Assurance Co. Ltd., Vijayashree Complex, P.B.Road, Chitradurga – 560 038. (Policy No.610700311500003006 Valid from 01-08-2015 to 31-07-2016)

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… Appellant

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(By Sri.Sanmathi.E.I., Advocate)

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AND:

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A.V.Shobha, D/o Veerabhadrappa @ A.Veeranna, Aged about 23 years, 3^rd year B’Com Student, R/at Hanumanthanahalli Village, Challakere Taluk-560 058.

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Sri. Ganjeppagari Ampanna @ Hampanna.G, S/o G.Shankrappa, Aged about 41 years, Agriculturist,

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R/o B.T.Project, Gummagatta Mandal, Rayadurga Taluk, Anantapur District, A.P.State. (RC Owner of TVS Appachi Motor Cycle Bearing No. AP 02 UP TR -2464)

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... Respondents

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(By Sri.Rangegowda.N.R., Advocate for R1; Notice to R2 served but unrepresented)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 09.01.2018 passed in MVC No. 1353/2016 on the file of the Senior Civil Judge and MACT, Challakere, awarding compensation of Rs.1,38,295/- with interest @9% p.a. from the date of the petition till realization.

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These appeals coming on for admission, this day, this Court, delivered the following:

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J U D G M E N T

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MFA No.6407/2018 is filed by the claimant

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whereas MFA No.2853/2018 is filed by the Insurance

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Company under Section 173(1) of the Motor Vehicles

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Act, (for short, ‘the Act’) being aggrieved by the judgment and award dated 09.01.2018 passed by the MACT, Challakere in MVC No.1353/2016. Since the challenge is to the same judgment, both the appeals

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are clubbed together, heard and common judgment is being passed.

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Facts giving rise to the filing of the appeals briefly stated are that on 06.05.2016 the claimant was proceeding in a motorcycle bearing registration No.KA-16/K-9680 as a pillion rider at Kondlahalli village. At that time, one TVS Appachi motorcycle bearing registration No.AP-02/UPTR-2464 being driven

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by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle in which the claimant was proceeding. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that she spent huge amount towards medical expenses, conveyance, etc. It was further pleaded

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that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent Nos.1 and 2 appeared through counsel and filed separate 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 by respondent No.1 that the offending vehicle is insured with respondent No.2 and the liability if any has to be borne by respondent No.2. It was further pleaded that the rider of the offending vehicle was holding a valid and effective driving licence at the time of the accident.

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It was pleaded by respondent No.2 that the accident was due to the rash and negligent riding of

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the vehicle in which the claimant was proceeding. It was further pleaded that the rider of the offending vehicle did not have valid driving licence as on the date of the accident. It was 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, they sought for dismissal of the petition.

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On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant herself was examined as PW-1 and got exhibited documents namely Ex.P1 to Ex.P60. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R4. 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

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driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.1,38,295/- along with interest at the rate of 9% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed.

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The learned counsel for the Insurance

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Company has raised the following contentions:

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Firstly, at the time of the accident the offending vehicle was not having valid registration certificate. Admittedly, the registration certificate issued by the RTO has been expired. Hence there is fundamental breach of condition of the policy. Therefore, Insurance Company is not liable to pay the compensation. But the Tribunal has erred in fastening the liability on the Insurance Company. In support of his contentions, he relied on the judgment of the

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Hon’ble Apex Court in Civil Appeal No.5887/2021 in the case of UNITED INDIA INSURANCE COMPANY LTD vs. SUSHIL KUMAR GODARA disposed of on 30.09.2021.

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Secondly, the claimant was a student. Due to

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the injuries suffered in the accident there is no loss of earnings. Therefore, the Tribunal has rightly not granted any compensation under the head 'loss of future income'.

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Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is on the higher side.

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Fourthly, in view of the law laid down by a Division Bench of this Court in the case of MS.JOYEETA BOSE AND OTHERS vs.

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VENKATESHAN.V AND OTHERS ( MFA 5896/2018 and connected matters disposed of on

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24.8.2020), the rate of interest awarded by the Tribunal at 9% p.a. is on the higher side. Hence, he sought for reduction of the compensation.

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On the other hand, the learned counsel

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appearing for the claimant has raised the following contentions:

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Firstly, there is no pleading in the written statement that the offending vehicle was not having permanent registration certificate.

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Secondly, even though the offending vehicle was not having registration certificate, it does not amount to any violation of fundamental breach since such a defence is not available to the Insurance Company under Section 149(2) of the Motor Vehicles Act. Under similar circumstances this Court has fastened the liability on the Insurance Company. In support of his contentions, he has relied on a judgment of this

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Court in MFA No.4711/2017 disposed of on 25.02.2021.

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Thirdly, the judgment relied upon by the learned counsel for the Insurance Company is not applicable to the facts of this case.

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Fourthly, at the time of the accident the claimant was studying in B.Com. The injuries have affected her studies. The doctor has been examined and he has assessed the disability of 32%. But the Tribunal has failed to grant any compensation under the head 'loss of future income'.

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Fifthly, due to the accident the claimant has suffered grievous injuries, she was inpatient for a period of 3 days. She has suffered lot of pain during treatment and she has to suffer the disability and unhappiness throughout her life. The compensation awarded by the Tribunal under the heads 'pain and sufferings' and other heads is on the lower side and

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the Tribunal has failed to grant any compensation under the head 'loss of amenities'. Hence, he prays for enhancement of compensation.

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Heard the learned counsel for the parties and perused the records.

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It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred

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due to rash and negligent driving of the offending vehicle by its driver.

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As per wound certificate, the claimant has sustained fracture of right tibia and right fibula and other injuries. The doctor has assessed the disability of 32.2%. Since she was a student, there is no loss of income. Therefore, the Tribunal has rightly not granted any compensation under the head 'loss of future income'.

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Due to the accident she has lost 5 months studies. Therefore, the compensation awarded by the Tribunal for ‘loss of education for 5 months’ at Rs.25,000/- has to be enhanced to Rs.40,000/-.

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Due to the accident the claimant has suffered grievous injuries. She was inpatient for a period of 3 days. She has suffered lot of pain during treatment and she has to suffer the disability and unhappiness throughout her life. Considering the evidence of the doctor and considering the injuries suffered by the claimant, I am of the opinion that the compensation awarded by the Tribunal for 'pain and sufferings' has to be enhanced from Rs.25,000/- to Rs.40,000/-, attendant charges from Rs.10,000/- to Rs.20,000 and the claimant is entitled to compensation of Rs.40,000/- under the head 'loss of amenities'.

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Considering the nature of injuries, the

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compensation awarded by the Tribunal under other

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heads is just and reasonable.

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Thus, the claimant is entitled to the

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following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	25,000	40,000
Medical expenses	78,295	78,295
Food, nourishment, conveyance and attendant charges	10,000	20,000
Loss of amenities	0	40,000
Loss of education career	25,000	40,000
Total	1,38,295	2,18,295

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In the result, the appeals are disposed of.

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The judgment of the Claims Tribunal is modified.

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The claimant is entitled to a total compensation of Rs.2,18,295/- as against Rs.1,38,295/- awarded by the Tribunal.

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In view of the law laid down by a Division Bench of this Court in the case of JOYEETA BOSE (supra), the rate of interest awarded by the Tribunal is reduced from 9% p.a. to 6% p.a.

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Re. liability:

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There is no pleading in the written statement

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filed by the Insurance Company before the Tribunal regarding the fact that the offending vehicle was not registered. The only contention taken is that the temporary registration of the offending vehicle is expired and there is no permanent registration of the vehicle. The said contention has not been proved. Even assuming that the offending vehicle was not registered, but such a defence is not available to the insurer under Section 149(2) of the Motor Vehicles Act. This point has been already considered by this Court in MFA No.4711/2017 disposed of on 25.02.2021. Therefore, the contention of the

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Insurance Company that the Insurance Company is not liable to pay the compensation is untenable.

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Even the judgment relied upon by the learned counsel for the Insurance Company in Civil appeal No.5887/2021 is not applicable to the facts of this case. Hence, 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.

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The amount in deposit is ordered to be

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transferred to the Tribunal forthwith.

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Sd/JUDGE

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Cm/-

A.v.Shobha v. Ganjeppagari Ampanna

Case brief

What is this about?

What did the court decide?

A.v.Shobha v. Ganjeppagari Ampanna

Case brief

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What did the court decide?

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