Disposed

Sri. Mahesh L S v. Sri. Mauhmmed Shane Rab

Karnataka HC21 Aug 2024MFA/6888/2019

Case brief

AI extract

What is this about?

Cross-appeals by claimant and vehicle owner against MACT award of Rs.1,94,557 in a road accident case. The High Court enhanced compensation to Rs.2,34,557 under 'pain and sufferings' and remitted the driving-licence issue back to the Tribunal, directing the insurer to pay first with recovery liberty.

What did the court decide?

Compensation enhanced to Rs.2,34,557 with 6% p.a. interest (excluding future medical expenses); driving-licence issue remanded to Tribunal; insurer to deposit within six weeks with recovery liberty ag

Sri. Mahesh L S Vs Sri. Mauhmmed Shane Rab — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:33579 MFA No. 6888 of 2019 C/W MFA No. 6580 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO. 6888 OF 2019(MV)

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C/W

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MISCELLANEOUS FIRST APPEAL NO. 6580 OF 2021(MV)

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IN MFA 6888/2019 BETWEEN:

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SRI. MAHESH L S S/O. SRIRANGAIAH AGED ABOUT 42 YEARS R/AT MUNIREDDY BUILDING DODDATHOGURU, ELECTRONIC CITY BANGALORE 560 100. ALSO R.AT LAKKUIPPA VILLAGE TAVAREKERE POST, MAGADI MAIN ROAD BANGALORE SOUTH TALUK

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…APPELLANT

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Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

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(BY SRI. GOPALKRISHNA N.,ADVOCATE)

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AND:

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SRI. MAUHMMED SHANE RAB S/O. SHUKAT HUSSAIN MAJOR IN AGE, R/AT NO. 112 KAMALPUR FATEHBAD, BILARI MORADABAD, UTTARPRADESH 244001.

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NATIONAL INSURANCE COMPANY LTD REGIONAL OFFICE, NO. 144, 2ND FLOOR SUBHARAM COMPLEX, MG. ROAD BENGALURU 560001 BY ITS MANAGER.

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…RESPONDENTS

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(BY SRI.ARUN PONNAPPA AND SRI B.C.SHIVANNE GOWDA, ADVOCATES FOR R2: SRI. B. LETHIF, ADVOCATE FOR R1)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.06.2019 PASSED IN MVC NO.2887/2017 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, MEMBER, MACT-7, BENGALURU (SCCH-7), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA 6580/2021 BETWEEN:

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MAUHMMED SHANE RAB S/O. SHUKAT HUSSAIN AGED ABOUT 26 YEARS R/AT NO. 112, PO-KUNDARKI THE BILARI, MORADABAD UTTARPRADESH 244001.

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...APPELLANT

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(BY SRI. LETHIF B., ADVCOATE)

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AND:

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SRI. MAHESH L S S/O. SRIRANGAIAH AGED ABOUT 43 YEARS R/AT MUNIREDDY BUILDING NEAR PATELAMMA TEMPLE DODDATHOGURU, ELECTRONIC CITY BANGALORE 560 100. ALSO R/AT LAKKUIPPA VILLAGE TAVAREKERE POST, MAGADI MAIN ROAD BANGALORE SOUTH TALUK-560023.

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NC: 2024:KHC:33579 MFA No. 6888 of 2019 C/W MFA No. 6580 of 2021

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NATIONAL INSURANCE COMPANY LTD REGIONAL OFFICE, NO. 144, 2ND FLOOR SUBHARAM COMPLEX, MG. ROAD BENGALURU 560001 BY ITS MANAGER.

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...RESPONDENTS

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(BY SRI. B.C.SHIVANNE GOWDA, ADVOATE FOR R2: SRI. GOPALKRISHNA N, ADVOCATE FOR R1)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.06.2019 PASSED IN MVC NO.2887/2017 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, MEMBER, MACT-7, BENGALURU (SCCH-7), AWARDING COMPENSATION OF RS.1,94,557/WITH FUTURE INTEREST AT 6% P.A (EXCLUDING ON FUTURE MEDICAL EXPENSES OF RS. 20,000/) FROM THE DATE OF PETITION TILL REALIZATION OF ENTIRE AMOUNT.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.T. NARENDRA PRASAD

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ORAL JUDGMENT

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MFA No.6888/2019 is filed by the claimant and MFA No.6580/2021 is filed by the owner of the offending vehicle under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) being aggrieved by the judgment dated 27.06.2019 passed by the IX Additional Small Causes and Additional MACT, Bangalore

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(SCCH-7) (hereinafter referred to as ‘the Tribunal’) in MVC No.2887/2017.

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Facts giving rise to the filing of the appeal briefly stated are that on 28.04.2017 at about 6.00 p.m., when the claimant was proceeding on motorcycle bearing registration No.KA-51/Y-9823 from Hosur road, towards Electronic city on NH7, when he reached near Electronic City bus stop, at that time, a lorry bearing registration No.UP-21/BN-1626 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. 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 he spent significant amount towards medical expenses, conveyance charges and other related costs. It was further pleaded that the accident occurred solely on account of

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

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Upon service of notice, the respondent Nos.1 and 2 appeared through counsel and filed separate written statements denying the averments made in the claim petition.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter, recorded the evidence. The claimant, in order to prove the case, examined himself as PW-1, and other three witnesses as PWs. 2 to 4, and got exhibited documents namely Ex.P1 to Ex.P33. On behalf of the respondents, two witnesses were examined as RW-1 and RW-2 and got exhibited documents namely Ex.R1 to Ex.R9. 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 claimant is entitled to a compensation of Rs.1,94,557/-

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along with interest at the rate of 6% p.a. and directed the

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owner of the offending vehicle to deposit the compensation amount along with interest. Being aggrieved, the present appeals have been filed.

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The learned counsel for the owner of the offending vehicle raised the following contentions:

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(i) Firstly, the owner was not aware that the driving licence produced by the driver of the offending vehicle was

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a fake one. He believed that the driving licence held by the driver of the offending vehicle is a valid driving licence. Therefore, he allowed the driver to drive the vehicle.

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(ii) Secondly, the Insurance Company has not proved that the driver has only fake driving licence and he was allowed to drive the offending vehicle. Therefore, the Tribunal has erred in exonerating the Insurance Company. In support of his contentions, he relied on the judgment of the Apex Court in the case of IFFCO TOKIO GENERAL INSURANCE CO. LTD. Vs. GEETA DEVI AND OTHERS

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reported in 2023 SCC Online SC 1398.

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(iii) Thirdly, considering the injuries suffered by the claimant and the evidence of the doctor and medical records, the overall compensation awarded by the Tribunal is on the higher side. Hence, he sought to allow the appeal filed by the owner of the offending vehicle and for dismissal of the appeal filed by the claimant.

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On the other hand, the learned counsel appearing for the Insurance Company has raised the following contentions:

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(i) Firstly, the Insurance Company has filed the written statement and has taken a specific contention that the driver of the offending vehicle was not having a valid driving licence, the owner of the offending vehicle was aware that the driver was not having driving licence and he has been allowed to drive the vehicle. Since the insured has violated the policy condition, the Insurance Company is not liable to pay the compensation.

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(ii) Secondly, the Tribunal has not framed any issue regarding fake driving liecence to prove that the owner of

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the offending vehicle has believed that the driving licence

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produced by the driver of the offending vehicle is a valid driving licence.

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(iii) Thirdly, considering the evidence of the doctor

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and injuries suffered by the claimant, the overall compensation awarded by the Tribunal is just and reasonable. Hence, he sought for dismissal of both the appeals.

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The learned counsel appearing for the claimant

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has submitted that due to the accident the claimant has suffered grievous injuries, he was inpatient for a period of 10 days. He has been advised to take rest for a period of 5 months. The compensation awarded by the Tribunal for 'pain and sufferings', 'loss of amenities' and other incidental expenses is on the lower side. Hence, he sought to allow the appeal filed by the claimant and dismissal of the appeal filed by the owner of the offending vehicle.

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Heard the learned counsel for the parties and perused the judgment and award of the Tribunal and the original records.

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The case of the owner of the offending vehicle is that he has believed that the driving licence produced by the driver of the offending vehicle is a valid driving licence. After taking all care, he was allowed to drive the vehicle. The Insurance Company filed a written statement and produced all the documents to show that the driving licence produced by the driver of the offending vehicle is a fake one. He was not holding a valid driving licence as on the date of the accident. The Apex Court in the case of

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GEETHA DEVI (supra) has held as follows:

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“15. As already pointed out supra, once a seemingly valid driving licence is produced by a person employed to drive a vehicle, unless such licence is demonstrably fake on the face of it, warranting any sensible employer to make inquiries as to its genuineness, or when the period of the licence has already expired, or there is some other reason to entertain a genuine doubt as to its

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validity, the burden is upon the insurance company to prove that there was a failure on the part of the vehicle owner in carrying out due diligence apropos such driving licence before employing that person to drive the vehicle. Presently, no evidence has been placed on record whereby an inference could be drawn that the deceased vehicle owner ought to have gotten verified Ujay Pal’s driving licence. Therefore, it was for the petitioner-insurance company to prove willful breach on the part of the said vehicle owner. As no such exercise was undertaken, the petitioner-insurance company would have no right to recover the compensation amount from the present owners of the vehicle. The impugned order passed by the Delhi High Court holding to that effect, therefore, does not brook interference either on facts or in law.”

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In view of the above judgment, the burden is upon the Insurance Company to prove that there was violation on the part of the owner of the offending vehicle in carrying out due diligence before employing a person. Since there was no issue framed in respect of these aspects, the matter requires to be remitted back to the Tribunal to frame an issue in respect of the above and

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decide the same after giving opportunity to both the parties.

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In respect of the claimant is concerned, in view of the judgment of the Apex Corut in the case of PAPPU AND OTHERS vs. VINOD KUMAR LAMBA AND ANOTHER reported in AIR 2018 SC 592, the Insurance Company has to pay the compensation at the first instance with liberty to recover the same from the owner of the offending vehicle, subject to the Tribunal deciding on the said issue.

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In respect of quantum of compensation is concerned, due to the accident the claimant suffered grievous injuries, he was inpatient for a period of 10 days. He has also produced Ex.P18 – photographs to show that he has suffered lot of pain during treatment. Considering the evidence of the doctor and the injuries suffered by the claimant, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.60,000/- to Rs.1,00,000. Considering

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the nature of injuries, the compensation awarded by the

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Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the 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	60,000	1,00,000
Medical expenses	4,557	4,557
Food, nourishment, conveyance and attendant charges	10,000	10,000
Loss of amenities	1,00,000	1,00,000
Future medical expenses	20,000	20,000
Total	1,94,557	2,34,557

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In the result, the following order is passed:

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ORDER

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(i) The appeals are disposed of.

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(ii) The judgment of the Claims Tribunal is modified.

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(iii) The claimant is entitled to a total compensation of Rs.2,34,557/- as against Rs.1,94,557/- awarded by the Tribunal.

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(iii) The matter is remitted back to the Tribunal to frame an issue regarding driving licence and to consider the same.

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(iv) The 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 a copy of this judgment, with liberty to recover the same from the owner of the offending vehicle, subject to the decision of the Tribunal in the remanded matter in respect of the issue of driving licence. However, interest shall not be applicable to the compensation awarded under the head of 'future medical expenses'.

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(v) The amount in deposit before this Court is transferred to the Tribunal.

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