United India Insurance Company Ltd., Vs Sri Sunil @ Sunil Kumar

UNITED INDIA INSURANCE COMPANY LTD., 2^ND FLOOR, VENKATESWARA BUILDING B.M.ROAD, HASSAN REPRESENTED BY ITS REGIONAL OFFICE KRUSHI BHAVAN, 5^TH AND 6^TH FLOOR NRUPATHUNGA ROAD BENGALURU-560 001 BY ITS MANAGER

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…APPELLANT

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(BY SRI JWALA KUMAR, ADVOCATE)

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AND:

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SRI SUNIL @ SUNIL KUMAR Digitally signed by S/O. KALAIAH ANNAPURNA G AGED ABOUT 24 YEARS Location: HIGH R/AT ANANDA JYOTHI COLONY COURT OF KOLLEGALA TOWN AND TALUK KARNATAKA CHAMARAJANAGAR TALUK

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SRI SHARANRAJ S/O. MUDDANKA AGED ABOUT 28 YEARS R/AT NO.5, BDO QUARTERS

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IN FRONT OF THE MAHADESWARA COLLEGE KOLLEGAL TOWN AND TALUK CHAMARAJANAGAR DISTRICT

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HC-KAR

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SRI VINCENT B. S/O. BABU AGED ABOUT 33 YEARS R/AT NO.1442, KURUBA STREET HANUR VILLAGE AND POST KOLLEGAL TOWN AND CHAMARAJANAGAR DISTRICT ALSO AT R/AT NO.66, SANTHEPETE BEEDI HANUR VILLAGE AND POST KOLLEGAL TOWN CHAMARAJANAGAR DISTRICT.

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…RESPONDENTS

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(R-1, R-2 AND R-3 ARE SERVED AND UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED. 16.07.2020, PASSED IN MVC NO.105/2017, ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AND MACT, KOLLEGALA, AWARDING COMPENSATION OF RS.3,00,000/- WITH INTEREST AT THE RATE OF 6 PERCENT P.A., FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the insurer being aggrieved by the judgment and award dated 16.07.2020 passed by the Senior Civil Judge and JMFC and MACT, Kollegala (for short `Tribunal'), in MVC No.105/2017.

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HC-KAR

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For the sake of convenience, the parties are

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referred to as per their ranking before the Tribunal.

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The brief facts of the case are that, on 02.10.2016, at about 8:15 p.m., the petitioner met with an accident caused by the rash and negligent riding of a motorcycle bearing registration No. KA-03-EP-0745. As a result, the claimant sustained injuries and suffered permanent disability, leading to a loss of earning capacity. With these reasons, the claimant has prayed for awarding of compensation of Rs.13,00,000/-.

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The respondent No.2 was the owner and respondent No.3 was the insurer of the offending motorcycle. Respondent Nos.1 to 3 have filed their written statement denying the contentions of the claim petitioner and have also denied their liability to pay the compensation due to breach of terms and conditions of the policy of insurance. With these reasons, it prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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HC-KAR

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The claimant to prove his case, examined himself as PW-1 and marked 15 documents, as per Exs.P-1 to P- 15(1) to(13). One witness was examined as CW-1 through the Court Commissioner and marked 9 documents as per Exs.C1 to C9.

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The Tribunal after hearing both parties and appreciating the evidence on record, held that accident occurred due to negligence of the driver of the vehicle bearing registration No.KA-03-EP-0745 and Tribunal assessed the income of the claimant as Rs.8,000/- per month and disability as 10% to the whole body, applied multiplier as '18' and in all awarded the following amount of

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compensation:

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Particulars	Amount in Rs.
Medical expenses	63,900
Painand sufferings	5,000
Loss of income during laid up period	24,000
Nourishment charges, attendant	29,000
charges, conveyance
Loss of future income	1,72,800
Loss ofamenities	5,000
Total	2,99,700

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HC-KAR

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8. Heard the arguments of the learned counsel

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appearing for the appellant-insurer.

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9. Inspite of service of notice, there is no

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representation on behalf of respondent No.1 to 3. Perused the trial Court records.

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10. U ndisputedly, a charge sheet was filed against the rider of the offending motorcycle. From the mahazar, it is evident that the rider of the offending motorcycle went to the other side of the road, i.e., the wrong side, and collided with the claimant’s motorcycle. In the cross-examination of PW-1, nothing was elicited to show that the accident occurred due to the negligence of PW-1. Though respondent Nos. 1 and 2 appeared before the Tribunal and filed their written statements, they did not enter the witness box to contend that the accident occurred due to the negligence of the claimant.

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11. T he learned counsel for the appellant–insurer contended that the claimant did not possess a valid and

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HC-KAR

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effective driving licence, as he was holding only a Learner’s Licence (LLR) and was riding the vehicle alone without the assistance of a person having a valid licence. Therefore, it is argued that this circumstance indicates negligence on the part of the claimant. However, PW-1, in his evidence, stated that pillion rider was possessing a valid licence and he was holding an LLR. If that were true then there was a violation of driving license. It is true that licence of both rider and pillion rider were not produced on record to substantiate this claim. Further, neither the Investigating Officer nor the cross-examination of PW-1 by insurer it was revealed that PW-1 was negligent in riding the vehicle. Therefore, merely not holding a valid driving licence while riding the motorcycle or violation of condition of LLR license cannot, by itself, not a ground to disentitle the claimant from claiming compensation.

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The Hon'ble Apex Court in the case of Sudhir Kumar Rana vs. Surinder Singh and others¹ held that:

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1 (2008) 12 SCC 436

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HC-KAR

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“9.If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence."

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12. T herefore, the mere fact that the rider of the motorcycle was not holding a valid licence cannot be a ground to reject the claim petition. Hence, the said contention is not tenable.

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13. T he Tribunal has assigned valid reasons and has awarded a just and reasonable compensation of Rs.3,00,000/to the claimant. On re-examining the compensation awarded under various heads, it appears that the amounts are not adequate. Since the claimant has not filed any appeal, there is no need to reconsider the same. The Tribunal has given proper reasons while calculating the

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