Dismissed

Cholamandalam Ms General Insurance Co.Ltd., v. M. Ramelsh @ Ramesh S/O Late M Arjunappa

Karnataka HC6 Feb 2024MFA/100710/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the insurer's appeal against a Motor Accidents Claim Tribunal award of Rs. 2,77,110/-. The court held the appeal meritless despite challenges regarding the driver's license and compensation quantum, ordering funds to be transmitted.

What did the court decide?

Appeal dismissed; amount in deposit to be transmitted to the Tribunal for disbursement.

Cholamandalam Ms General Insurance Co.Ltd., Vs M. Ramelsh @ Ramesh S/O Late M Arjunappa — Karnataka HC (2024) — LawSathi Research

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- 1 - NC: 2024:KHC-D:2623 MFA No. 100710 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V.SRISHANANDA MISCELLANEOUS FIRST APPEAL NO.100710 OF 2017 (MV-I)

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BETWEEN:

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CHOLAMANDALAM MS GENERAL INSURANCE CO.LTD., BY ITS DIVISIONAL MANAGER BALLARI, HEREIN REPRESENTED BY CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD., UNIT NO.4, 9^TH FLOOR (LEVEL-6), "GOLDEN HEIGHTS" COMPLEX, 59^TH ‘C’ CROSS, INDUSTRIAL SUBURB, RAJAJINAGAR, 4^TH ‘M’ BLOCK, BENGALURU-560 010, REPRESENTED BY ITS AUTHORISED SIGNATORY.

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…APPELLANT

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

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AND:

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Digitally
signed by
SAMREEN
SAMREEN AYUB
AYUB DESHNUR
DESHNUR Date:
2024.02.15
13:29:32
+0530

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M. RAMELSH @ RAMESH S/O. LATE M.ARJUNAPPA, AGE: 26 YEARS, OCC: LORRY CLEANER, R/O: THUMATI VILLAGE, TQ: SANDUR, NOW R/O: NEAR OPD, BALLARI.

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RAMANJINI S/O. B.HULIKUNTAPPA, AGE: 39 YEARS, OCC: DRIVER OF THE LORRY BEARING REG.NO.KA-34/A-2164, R/O: 1^ST CROSS, JAGRUTHI NAGAR, COWL BAZAAR, BALLARI.

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V.GOPALA SWAMY S/O. V.THIPPESWAMY, AGE: 42 YEARS, OCC: OWNER OF THE LORRY BEARING REG.NO.KA-34/A-2164,

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2 - NC: 2024:KHC-D:2623 MFA No. 100710 of 2017

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R/O: OPPOSITE HEAD QUARTERS HOSPITAL, ANANTAPUR ROAD, BALLARI.

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…RESPONDENTS

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(R1-R2 SERVED; R3 DISPENSED WITH)

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THIS M.F.A. IS FILED U/SEC.173(1) OF MV ACT, 1988, AGAINST JUDGMENT AND AWARD DTD:11.05.2016, PASSED IN MVC.NO.691/2013 ON THE FILE OF THE MEMBER MACT NO.II, BALLARI, AWARDING THE COMPENSATION OF RS.2,77,110/- WITH INTEREST AT OF 6% P.A. FROM THE DATE OF PETITION TILL ITS REALISATION.

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THIS M.F.A., COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though the matter is listed for orders, by consent of parties, matter is taken up for final disposal.

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Heard Shri. R. R. Mane, learned counsel for the

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appellant.

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The present appeal is by the Insurance Company challenging the validity of judgment and award passed in MVC No.691/2013 dated 11.05.2016 on the file of Motor Accidents Claim Tribunal – II, Ballari.

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Facts in brief which are utmost necessary for disposal of the present appeal are as under:

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3 - NC: 2024:KHC-D:2623 MFA No. 100710 of 2017

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4.1. A claim petition came to be filed under Section 166 of the Motor Vehicles Act, 1988 (for short ‘M.V. Act’), contending that on 25.08.2012 when the claimant along with the driver were proceedings in a lorry bearing registration No.KA-34/A-2164 from VGM Mines towards Janaki Factory situated at Sidiginamola with iron ore load and first respondent stopped the lorry for the purpose of removing the tarpaul in order to cover the iron ore load in Janaki Factory. At that juncture claimant said to have climbed on the top of the lorry for the purpose of removing the tarpaul (covering) which was covered on the iron ore.

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4.2. However without cautioning the petitioner, the driver of the said lorry suddenly moved the lorry and whereby the petitioner fell down and sustained injuries. He was shifted to VIMS hospital and he was treated for the injuries.

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Claim petition was resisted by denying the claim petition averments by the Insurance Company.

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The driver and the owner of the lorry though served with notice, remained absent.

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4 - NC: 2024:KHC-D:2623 MFA No. 100710 of 2017

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The Tribunal on contest allowed the claim in a sum of Rs.2,77,110/-

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Being aggrieved by the said compensation, Insurance Company is in appeal.

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Shri. R. R. Mane, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that the Tribunal has not properly considered the material evidence on record and has wrongly allowed the claim and sought for allowing the appeal.

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He further contended that genesis of the accident as propounded by the claimant has not been properly established.

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He further contended that the driver of the lorry did not possess the valid driving license. Therefore, fastening the liability on the Insurance Company of the lorry is incorrect.

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He also contended that the notices were issued both owner, driver and Investigating Officer to furnish the driving license details. But the driver and owner remained absent and Investigating Officer did not reply to the notice of the Insurance Company and therefore, adverse inference drawn that the driver of the lorry did not possess the valid driving license to

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5 - NC: 2024:KHC-D:2623 MFA No. 100710 of 2017

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drive the lorry as on the date of incident and sought for removing the liability of the Insurance Company.

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Yet another ground on which the appeal is filed assailing the impugned judgment is that the quantum of compensation awarded by the Tribunal is on the higher side especially for one fracture i.e., fracture on patella, the Tribunal has awarded sum of Rs.50,000/- on the head of pain and suffering and so also the Tribunal has failed to note that the injured was in-patient only for three days and therefore, gravity of the injury is on the lower side and sought for modification with regard to the quantum of compensation by reasonably reducing the quantum.

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The respondents though served with the notice, but they remained absent.

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This Court having heard the arguments of learned counsel for the appellant, perused the material on record meticulously.

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As could be seen from the material available on record, there is clear mention as to how accident has taken place. Admittedly the claimant was a cleaner in the lorry who had climbed the top of the lorry in order to remove the tarpaul

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6 - NC: 2024:KHC-D:2623 MFA No. 100710 of 2017

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which has been covered the iron ore load in Janaki Factory. But when the claimant was removing the tarpaul, without there being proper caution, the driver has moved the lorry in a rash and negligent manner whereby the claimant fell down and sustained injuries and he was shifted to VIMS hospital.

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Material on record would sufficiently indicate that the claimant has suffered injuries as is contended by him in the claim petition.

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The next ground on which the Insurance Company is trying to assailed the impugned judgment in exonerating the liability of the Insurance Company is that the driver of the lorry did not possess the valid driving license.

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No doubt it is the contention of the appellant that notice has been issued to the owner, driver and the Investigating Officer, for the reasons best known to the Insurance Company that there is no valid driving license.

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In this regard, it is pertinent to note that in the charge sheet itself, the Investigating Officer did not prosecute the driver of the lorry under Section 3 of the M. V. Act for not possessing the valid driving license. Therefore, it presupposes that the driver of the lorry did possess the valid driving license.

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7 - NC: 2024:KHC-D:2623 MFA No. 100710 of 2017

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Third ground on which the appeal is filed that the quantum of compensation.

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Admittedly, the injured has suffered the fracture of patella. No doubt that the Tribunal has granted a sum of Rs.50,000/- on the head of pain and suffering as compensation, which may be on the higher side. But taking into note that the accident is of the year 2012, the monthly income has not been properly taken while considering the disability factor. Therefore, instead of enhancing the monthly income and reducing the quantum of compensation on the head of pain and suffering, if the quantum of compensation is kept intact ends of justice would be met.

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23. Accordingly, the following order is passed:

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ORDER

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(i) Appeal is meritless and hereby dismissed.

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(ii) Amount in deposit is ordered to be

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transmitted to the Tribunal for disbursement in accordance with law.

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SMM/List No.: 2 Sl No.: 2

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Sd/JUDGE

Cholamandalam Ms General Insurance Co.Ltd., v. M. Ramelsh @ Ramesh S/O Late M Arjunappa

Case brief

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What did the court decide?

Cholamandalam Ms General Insurance Co.Ltd., v. M. Ramelsh @ Ramesh S/O Late M Arjunappa

Case brief

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