Allowed

Sri.Chetan K L v. Raju

Karnataka HC13 Feb 2023MFA/1295/2017

Case brief

AI extract

What is this about?

Two appeals challenging a Motor Accident Claims Tribunal award were heard. The High Court found the Tribunal failed to verify the claimant's defense regarding income and disability percentage adequately and that the insurer failed to prove the driver lacked a valid license. The appeals were allowed, and the matter remanded for a fresh consideration of liability and quantum.

What did the court decide?

The appeals are allowed; the impugned judgment is set aside and the matter is remanded to the Tribunal to consider the issue of liability and quantum afresh after a fresh hearing.

Sri.Chetan K L Vs Raju — Insurance | Karnataka HC (2023)

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MFA No. 3549 of 2016 C/W MFA No. 1295 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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MISCELLANEOUS FIRST APPEAL NO.3549 OF 2016(MV-I) C/W. MISCELLANEOUS FIRST APPEAL NO.1295 OF 2017(MV-I)

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IN MFA NO.3549 OF 2016:

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BETWEEN:

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THE CLAIM MANAGER ROYAL SUNDRAM ALLIANCE INSURANCE COMPANY LIMITED, RAGHAVENDRA COMPLEX, OPP: HINDUSTAN AND GRANITES, WILSON GARDEN, BANGALORE-560 027.

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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ROYAL SUNDARAM ALLIANCE COMPANY LTD., SUBRAMANIAM BUILDING, II FLOOR NO.1, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600 002. BY ITS MANAGER.

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…APPELLANT

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(BY SRI. O MAHESH., ADVOCATE [THROUGH VC])

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AND:

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CHETAN K.L. AGED ABOUT 23 YEARS, S/O LEELAKRISNA K.S., R/AT NO.26, 8^TH CROSS,

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MFA No. 3549 of 2016 C/W MFA No. 1295 of 2017

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MOOKAMBIKA NAGAR, HOSKEREHALLI BANASHANKARI 3^RD STAGE, BANGALORE-560 085.

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RAJU, MAJOR, S/O KUNNE GOWDA, NO.299-1, MALLASANDRA, HESARAGHATTA MAIN ROAD, T.DASARAHALLI, BANGALORE-560 057.

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…RESPONDENTS

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(BY SRI. D.S.SRIDHAR., ADVOCATE FOR R1; NOTICE TO R2 IS DISPENSED WITH VIDE ORDER DATED 19.10.2022)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.02.2016 PASSED IN MVC NO.3117/14 ON THE FILE OF THE 19^TH ADDITIONAL SMALL CAUSE JUDGE & MACT, BENGALURU, AWARDING COMPENSATION OF RS.11,74,400/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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IN MFA NO.1295 OF 2017:

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BETWEEN:

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1 . SRI.CHETAN K.L., S/O LEELAKRISHNA K.S. AGED BOUT 23 YEARS NO.26, 8^TH CROSS MOOKAMBIKA NAGAR HOSKEREHALLI BANASHANASRI 3^RD STAGE BANGALURU-560 085.

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…APPELLANT

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(BY SRI. D.S.SRIDHAR, ADVOCATE)

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3 - MFA No. 3549 of 2016 C/W MFA No. 1295 of 2017

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AND:

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1 . RAJU S/O KUNNE GOWDA NO.299-1, MALLSANDRA HESARAGHATTA MAIN ROAD T. DASARAHALLI BANGALURU-560 057.

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2 . ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., RAGHAVENDRA COMPLEX OPP. HINDUSTAN AND GRANITES WILSON GARDEN BANGALURU-560 027 REP. BY ITS MANAGER.

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…RESPONDENTS

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(BY SRI. O.MAHESH, ADVOCATE FOR R2 [THROUGH VC]; NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 23.11.2017)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.02.2016 PASSED IN MVC NO.3117/14 ON THE FILE OF THE 19^TH ADDITIONAL SMALL CAUSE JUDGE & MACT, BENGLAURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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MFA No. 3549 of 2016 C/W MFA No. 1295 of 2017

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JUDGMENT

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Heard the learned counsel for the appellants and learned counsel for the respondents.

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These two appeals are filed by the Insurance Company as well as the claimant challenging the judgment and award dated 25.02.2016 passed in M.V.C.No.3117/2014 on the file of the Motor Accident Claims Tribunal, Bengaluru (‘the Tribunal’ for short) questioning the liability and quantum of compensation.

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case of the claimant before the Tribunal is that, on 03.03.2014 at about 9.00 a.m., when he was proceeding on his motorcycle, the offending i.e., the driver of the tipper lorry came with high speed in a rash and negligent manner and dashed against him. As a result, he fell down and sustained injuries. Immediately, he was shifted to Lakshmi Multi Speciality Hospital, wherein he took treatment as inpatient from 03.03.2014 to 06.03.2014 and thereafter, he was shifted to Victoria Hospital, wherein he took treatment as

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MFA No. 3549 of 2016 C/W MFA No. 1295 of 2017

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inpatient from 07.03.2014 to 17.03.2014. Later, he was shifted to plastic surgery department, Victoria Hospital, wherein he took treatment as an inpatient from 17.03.2014 to 18.06.2014. He was also admitted to Sadguna Hospital, wherein he took treatment as an inpatient from 09.08.2014 to 27.10.2014, in all for a period of 147 days.

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The claimant, in order to substantiate his claim, examined himself as P.W.1, the Doctors as P.Ws.2 and 5, the Medical Record Keeper of Lakshmi Multi Speciality Hospital as P.W.3 and the Superintendent of RTO office, Nelamangala as P.W.4 and got marked the documents as Exs.P1 to P33. On the other hand, the Insurance Company examined one witness as R.W.1 and got marked the documents as Exs.R1 and R2.

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The Tribunal, after considering both oral and documentary evidence placed on record, allowed the claim petition and granted compensation of Rs.11,74,400/- with interest at 6% per annum. Being aggrieved by the judgment and award, the Insurance Company in the appeal in M.F.A.No.3549/2016 would contend that, as on the date of the accident, the driver was not having valid driving license to drive the tipper lorry and the Tribunal committed an error in coming

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to the conclusion that fee was paid for renewal of the license prior to the expiry of driving license i.e., on 26.02.2014 and merely because the RTO authorities not issued renewed license,

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it does not mean that he was not having driving license. Hence, fastened the liability on the Insurance Company. It is also contended that the compensation awarded is on the higher side and exorbitant compensation is awarded and committed an error in coming to the conclusion that it is only a benevolent piece of legislation and the very approach of the Tribunal is erroneous.

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Learned counsel appearing for the respondentclaimant in the appeal in M.F.A.No.1295/2017 would vehemently contend that compensation awarded on all the heads is very meager and the claimant was inpatient for a period of 147 days. It is also contended that the compensation awarded on the head of pain and suffering and other heads are meager and though the Doctor assessed the disability at 60%, the Tribunal has taken only 20% disability. It is further contended that the income was taken only at Rs.6,000/- per month and notional income would be Rs.8,500/- per month. Hence, it requires interference.

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MFA No. 3549 of 2016 C/W MFA No. 1295 of 2017

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Having heard the respective counsel and also on

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perusal of the material available on record, the points that would arise for consideration of this Court are:

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(1) Whether the Tribunal committed an error in fastening the liability on the Insurance Company, even though there was no valid and effective driving license?

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(2) Whether the Tribunal committed an error in not awarding just and reasonable compensation?

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(3) What order?

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Point Nos.(1) and (2)

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Having heard the respective counsel and also on perusal of the material available on record, there is no dispute with regard to the date of the accident. But, the only contention of the Insurance Company is that, accident occurred on 03.03.2014 and license was renewed on 05.03.2014. The claimant also examined Superintendent of the RTO as P.W.4, who comes and deposes that the transport license was valid from 03.10.1975 to 25.02.2017 in terms of Ex.P29. On perusal of the document at Ex.P29 which is renumbered as Ex.P30, he says that driver paid the renewal of license on 26.02.2014 and

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he renewed the transport license but, he cannot say on which

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date, they have issued the renewal of transport license. However, he says that, normally, it is issued from the date of the fees paid. But, in the cross-examination, he admits that RDL was issued on 05.03.2014 and also admits that, driving license extract was issued on 18.09.2014 to Insurance Company. But, the Insurance Company also not produced the driving license extract which was issued in favour of the Insurance Company on 18.09.2014. The Insurance Company also took the specific defence that no valid and effective driving license as on the date of the accident and also not summoned the RTO and concerned RTO register for having issued the driving license in favour of the driver and driver is also not examined before the Tribunal. The document at Ex.P30 is also not clear with regard to on what date, the transport driving license was issued and its validity. The vehicle involved in the accident is a HGV and with regard to the license in respect of HGV also, no material is placed before the Court. Though the Insurance Company took the defence that the driver was not having valid driving license, the Insurance Company has not proved the same by examining the transport authority and also

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not summoned the driving license in respect of the HGV vehicle

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which was involved in the accident.

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When such being the material on record, the main contention of the Insurance Company that fastening the liability on them is erroneous cannot be accepted, unless the same is proved. This Court cannot fasten the liability either on the owner or on the Insurance Company, in the absence of any material. Hence, the matter requires to be remanded to the Tribunal and an opportunity is given to the Insurance Company to prove the defence which they have taken that no driving license to the driver of the tipper lorry as on the date of the accident. Learned counsel appearing for the Insurance Company also contend that compensation awarded is on the higher side and unless the issue with regard to fastening the liability is decided and liability is fastened either on the owner or on the Insurance Company, the same cannot be considered and the matter has to be considered afresh by the Tribunal both in respect of liability and quantum. It is the contention of the claimant also that, income taken by the Tribunal and the percentage of disability is on the lesser side. Hence, it is appropriate to direct the parties to appear before the Tribunal

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and lead further evidence and the Tribunal is directed to give

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an opportunity to both the claimant as well as the Insurance Company to substantiate their contention regarding liability and quantum and consider the matter afresh. Hence, I answer point Nos.(1) and (2) accordingly.

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Point No.(3)

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeals filed by both the claimant as well as the Insurance Company are allowed.

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(ii) The impugned judgment and award dated 25.02.2016 passed in M.V.C.No.3117/2014 of the Tribunal is set aside and the matter is remanded to the Tribunal to consider the matter afresh, in view of the observations made by this Court and give an opportunity to the respective parties to substantiate their contention.

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(iii) The parties are directed to appear before the Tribunal on 20.03.2023 .

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(iv) The parties shall appear before the Tribunal without expecting any notice from the Tribunal.

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(v) The Registry is directed to send the records to the concerned Tribunal, forthwith to enable the Tribunal to take up the matter on 20.03.2023 .

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(vi) The Tribunal is also directed to dispose of the matter within six months and the respective counsel are directed to assist the Tribunal in disposal of the case within six months from 20.03.2023.

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(vii) The amount in deposit is ordered to be transmitted to the Tribunal.

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Sd/JUDGE

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List No.: 1 Sl No.: 42

Sri.Chetan K L v. Raju

Case brief

What is this about?

What did the court decide?

Sri.Chetan K L v. Raju

Case brief

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