IN THE HIGH COURT OF' KJXRNATAKA AT BANGALORE
DATED THIS THE 27?" DAY OF AUGUST 2010
PRESENT:
THE HONBLE MR. JUSTKCE D.V.SHYLENDRA
THE I-IONBLE MR. JUSTICE K.N.KEsHAvAN;§i§Ai?_2§,*§igi _
M.F.A. NO. 4759 OF 2004 '
BETWEEN: 5 A
Sri.1\/Iuniyappa Gowda,
S / 0 Late Giriyappa,
Age 47 years,
Occupation: Nil,
Residing at No.14, 15'"*~.._'A' Main,-. 1' V
66111 Cross Road, 5th B'1-dck ;Joc':{ji:aiii,,"~
Rajajinagar, Bangalore. _ "Vff..'.,'..Appe11ant
{By ,Ad.\i~0cate for
Sri. SuresIiM.Latur, :"s.gi}:roeate]
iii/Iastigowda,
T _ S10 Eeregowda.
, Aged ivtajbr.
V Opcuf__:ation: Business.
Residing at N0.746, 1631 Main,
" 931* Cross Road, Srinagar,
U " Bangalore-560 050.
The Regional Manager,
The Oriental Insurance Co. Ltd.,
N0.44-45, Leo Complex,
Residency Road,
Banga1ore--560 O25.
2
3. Smt. Savita W/o Raju,
Residing at Rantiachandrapura.
Ittumadu Village,
BSK 3rd Stage,
Bangalore~56O O85. Respon_dents._'
[By Sri.M.Sow2:i Raju, Advocate for»R-2; ~--.:T~ '
R-1 & R-3 service held sufficientlv/o" 'dated -:1éi»V._(3«"f_.2'(')iO]
This MFA is filed under Section 173.{_-1)"0f«.i\/lV'Act_
against the Judgment and'«--.._Award dated"
passed in MVC No.3241/1'9.9'F,on the 'file; of the 18th
Additional Judge, Motor Acc'id.en.t Claims Tribunal--4,
Court of Small cazises, r'i3ariga1oi'e {SCCH'4¥4) partly
allowing the claim ""-petiti.onl_' :,fo':~.compensation and
seeking enhancement of compensatiojn with interest at
12% per annurrig. V' '
i'or..fi;rther dictation this day,
Kesh:.gvandr?a.ygr1q, -.j.';«.de1iy'-ered the following-
' ' .' M E NT
Vp'Th1S"~ie,ppea1 53% the claimant in MVc.No.324i/97
Oni.j.llth:gs.: file ofll"the"'Motor Accidents Claims Tribunal,
Ba.nga:l0.re.l'i~is_j..for enhancement of compensation and
also to.-fasten the liability for payment of compensation
on theiinsurance Company.
2. The appellant filed the claim petition seeking
compensation for the injuries sustained by him in the
motor vehicle accident that occurred on 17.9.1997. The
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accident is not in dispute. The claim petition was
contested by the insurer of the Autorikshaw inter alia
on the ground that there was no policy in forceVl_i-ssL1_ed
by it in respect of Autorikshaw as on
accident. The Tribunal on assessment _--of'the;.oi"al' and" "
documentary evidence, quantifi'ed'_A' the ll'~oom'pelr1~sa.tioin
payable under Various hea.:;lvpls~~..yat Havingwl.
regard to contents Ex.VR;--1l:;"p_'~copy of it 'the insurance
policy, produced lthhel' Company, the
Tribunai held«-that of the accident, the
offending "vle_hi_cle -was not insured with second
respondent, Insui5an_ce.._'Company and therefore, the
insurer. is lnctiliable to indemnify the insured. In this
».q-¢v.v lithe matter, the Tribunal exonerated the
Coinpany from the liability and directed
ovy’1″2er”—-V:.ofl’ll the Autorikshaw to pay the entire
“cornpensation with interest at 8% per annum. Being
Tialggflrieved by the quantum as well as the order
Vllexonerating the Insurance Company from liability, the
claimant is in appeal before this Court.
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3. We have heard SIr1t.Sunitha, learned counsel
appearing for the appellant as Well as
learned counsel for the Insurancefi’
Respondent No.1 who is the ovfsirierofpp
has remained unrepresented in
of this appeal. V l V
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4. At this stage’;”–gs.Aw.e erite”1’tai:ne.d certain doubts
about the liability ofr”re’s*ponde’:n__t ‘.r1\/lastigowda and
in turn ro.p’ir’1’g__ l.i_1su.r_an’cefConipany as indemnifier
and as ‘of-…f.hel clairr1ant– appellant is
that should have been made
jointly satisfaction, we directed the
of the’c–la.imant / appellant before this Court,
Accordingly the appellant-claimant
appearepdllrllinilz person before the court to–day. We have
also ‘questioned him and found that he was the victim of
road accident as a result of the autorickshaw
__fbearing No. KA 05 A 1793 hitting him while he was
proceeding as a pedestrian and he has undergone great
amount of pain and suffering on account of the injuries
sustained in the said accident. Therefore, we are
convinced that the claim is genuine one and his ‘for
enhancement of compensation requires to “con_s:id.”er.e”d
on merits.
5. As noticed suprajthpe rriain corn;p1a1n.tVVV0_f the”
appellant – claimant in t1’ii_sl:’a;ppeal Jvcférily with
regard to inadequacyfiof. but also with
regard to exoneratiorrilllgf lCompany from
the liability’. ~ 1′ M V
respondent No.2 — insurance
Company; had». policy of insurance as per
in oflthe autorickshaw in question. Of
the policy Ex.R1, the claim of the insured is
as””Mastigowda with reference to the vehicle
inn” qu’est’1on which is undisputedly involved in the
1′ iaccident and has caused injuries to the claimant —
Ahappellant. The said policy was in force from 27.12.1997
‘to 26.12.1998. The accident occurred on 17.9.1997.
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7. The Tribunal having regard to the period for
which the policy is issued, has come to the conclusion
that as on the date of the accident there was not
However, learned counsel for the
brought to our notice that :while
Ex.R.l, the company has A’
towards ‘no claim’ “p:olicy.”
This indicates that there was issued~*’i§n respect
of this very vehicle of one year
prior to 27.§l2:..1Vp(};397.::__ acoiden,t_.__hfas occurred within
the pderiodx to 27.12.1997. Before the
Tribunlabit wascontention of the Insurance
Cognpatny no claim bonus was allowed on the basis
by some other Insurance Company.
bonus’ is allowed only when there
a’-Vipoiiscy and no claim had been made during that
” periodsduring which the policy was in force. But what is
“”§rr1’ore important is the policy is issued with reference to
be 6*’?
the motor vehicle and if a policy hadiissued by the
Insurance Company with reference to the very vehicle
for the previous period of twelve months, it is obvious
/f
Mastigowda was not the owner of the vehicle involyed in
the accident.
8. One another argument of Sri Sowrirajuplearned-.,V
counsel for the respondent —
the Insurance Company had no
all to put forth its case in as one
person by name Sayitgfltzas. irnpleaded at a
belated stage_:before'”the:1 without even
giving Company the
said as a respondent and
and therefore the matter
should rema_nfcleld’…ll~*to the Tribunal for giving an
0pp’ortuI;i,_ty Insurance Company to effectively
“also has no substance for the simple
reason. thatflthe Insurance Company has not raised its
plittle’.Vfi311ger till today to come up with a possible
A’ “explanation as to how the ‘no claim bonus’ endorsement
glhad occurred in the policy issued by them and marked
by the insurance Company itself as Ex.R1 before the
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Tribunal.
9. The Motor Vehicles Act, 1939 came to be
amended by irnpleading Section 94 p1’OViifltl1’_:.(sg%p:’.V:f€JA’1′
compulsory coverage of motor Vehicles ori.’.’roai.rl”ewl1.iVl”‘e
being used on road and the pufrpiose.of..sLtch”legislatiVe
provision was to ensure that third vic_ti’r’r1s’~ oVi7_road~.u
accidents involving motor Ve’h:i’cles are and’
dry, particularly, eitherthe owner
of the Vehicle becomes
conspicuousbfihis the arms of law
but also eivten if the owner is
availa_l3tle_Vhe’ condition and will not be able
to meetiptthet the compensation
payable. to tithe: Victirn of a road accident. it is in this
VA state of affairs, law was made to make the insurance
all the insurance companies at least
againstpthe; third party risks and the Motor Vehicles Act,
2 198.8 contains the corresponding provisions in section
and the enabling provisions in terms of sections
it “M7, 149, 168–A and 166 of the Motor Vehicles Act,
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1988.
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10. When the legislature has taken so much of
care, effort and concern for the victims
accidents, it is the duty of the courts white”
such provisions to effectuate the’ Motor
Vehicles Act, 1988 and not to
provisions in any claiin”
which is nothing sh.o’:1t._A_of purpose of
legislation. In the dispute that
the appellant”:iAs:p1′ a vehicle accident
involving No.KA 05 A
l793,jlA which had caused
injuries a pedestrian on the road by
dashing against lhirr: and consequential injuries. In an
e ‘accident_:of._ this nature resulting in injuries to the
._c’i’airn’an’t..v__itl.l’Vivs”‘inevitable that the owner of the vehicle is
bound: ltodcompensate the victim for all consequence.
” T he Insurance Company comes into picture because of
statutory provisions of making the insurance
“compulsory and issuing a policy covering third party
claims indemnifying the owner of the vehicie to take
care of his liability as against the third party claims.
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11. In fact, such legislative changes were the
wake of the Insurance Company
nationalized to ensure that the business ‘
was not left in private hands’ v4.§:ve’11’lV
otherwise was defeating the
giver}. by the Insurance Corn’pa11y to. risks’
of the owners of the motor velhicles.”
12. In tile dlevellopments, the
legislature” Motor Accidents
ClaimVy.Tribunal;;’1–1a to provide for speedy
and “victims of the motor vehicle
plying roa_:d7:;1nd:_’–..’in a situation of present nature
gi.*_{Ipi’ngE__pany interpretation or even to understand the
V wpreseiitsituation in any manner and particularly as is
he contended by Sri Sowriraju, learned
counsei; for the respondent — Insurance Company is
Vnothing short of a disaster for Victims of road accidents
_ “arid a blatant violation of the legislative intent.
13. We are not inclined to accept the arguments of
Sri.Sowriraju, learned counsel for the respondent –
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Insurance Company and to give an interpretationto the
provisions of the Motor Vehicles Act, 1988 as
to the fact situation in this case in any ma:-irier..sos.’asi:’i’o
defeat the claim of the appellant’¥’c*laim’ant.x,” V
for the purpose of ensuring that the’–an1oun_t.awarCi–ed_by_
the Tribunal is made realistic”-ito the ¢iai1maf;st;:nd not
illusory or paper decree which a situation if the
Insurance Company is not joint liability.
14. 1.. Tribunal is not
justifiedin’geXo’ii1Ae»ratirsVgV’the.–..I,nsurance Company from
the liability; inevitable to allow fasten the
liability on .Vthe Vl11_su.ran.’c’e Company.
“Raving heard the learned counsel on both
perused the Judgment under appeal.
are .o’i”‘the opinion that, the judgment under’ appeal
“regarding determination of compensation under
ludiffierent heads calls for correction as the compensation
H determined by the Tribunal is found to be not proper or
commensurate determination in terms of the principles
&/
governing such determination.
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18. The Tribunal has awarded compensation
under different heads, as under:
1. Pain and sufferings — Rs. 4_
2. Medical Expenses, Conveyance… ; – _
Nourishing food —
3. Loss of amenities _
4. Loss of earning during 1
treatment and laid up period’ _V _
Rs.v30′;V000g-
19. discharge card
issued lEx.P.5, case sheet as
per the claimant had
sustained’fractureof’ilrochanter of left femur. He was
tre’ated__as irippatientlfrom 17.9.1997 to 17.10.1997, and
under gone surgery for reduction of fracture.
from the hospital he has taken follow up
trea.tmen”c”as out patient. PW.2–Dr. Ramesh Krishna.K.
“i1a;.,_ his evidence has reiterated the above facts.
lllnaccording to the evidence of PW.2, when he last
examined the claimant on 16.4.2001, he noticed the
following:
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1. Aritaligie gait.
Wasting of muscles of left lower limb.
Tenderness and deformity of Trochantericx
region of left side. ” ‘
4. Tenderness of left hip joint line.
5. Shortening of 2″ of left low’er”Vli’rnb. T
6. Restriction of movements:4’of1″l_eft
last 30 degrees and”1e’ftz knee by last
degrees.
20. According’to’=-thisfdoctorqifthe clairnant suffers
from Permanent disabili’ty_of_V¥i$%”~.o’fA~lIeft.’~~lower limb and
23% ‘of Though this witness is cross
examined; there to discredit this evidence.
Ha§Qfing.regard ._tothe nature of injuries sustained by the
. ‘c.l.aiin_ant,._the duration as well as nature of treatment
‘~f;;.”r’.esultant permanent disability, the
céfiipefisatfion awarded by the Tribunal under different
if the-adsvflfis on the lower side. T he Tribunal ought to have
Tyayvfarded loss of future earning on the basis of functional
T disability at 23% as spoken to by PW.2. Therefore, we
re-determine the compensation payable under different
heads as under:
1.5
1 Pain and suffering Rs. 25,000/~
2 Medical Expenses, attendant
charges, Conveyance, Nourishing Rs. 10,000/–
Food. ,
3 Loss of amenities Rs. 25;fO”OQ/-
4
Loss of earnings during treatment Rs. “E;_VO,~O_”0O’,{4-
and laid up period [2,500×4] L” ‘ i~
[2500 X 12 X 13 X 23/100]
Total Q Réy;ipi§v,a7W3,5co/if
Accordingly, the appeal.._is ailoyycd
comperlsation to Rs. , =».:_as__vagai’1’istt v._RsL80,000/ —
awarded by the Tribtinal… No.2 are jointly
and severaily pliable; ‘ “to ‘ it I cornpeiisation with
inteiest at from the date of petition to
the date
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the».secor1d'””respo1″1Cle1’1t — Insurance Company
pay the entire compensation of
with interest, within six weeks from
today.v.V__AA:’ Upon such deposit, from out of the total
uh,cornpensation, a sum of Rs.1,25,000/– with
…_.prop0rtionate interest shall be kept in a fixed deposit in
any nationalized Bank in the name of the appellant for 5
years, with liberty for him to Withdraw the periodical
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5 Loss of future earnings
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interest quarterly and balance amount with
proportionate interest shall be released in favo’1jr’T:the
appellant.
Office to draw award accor*ding}y;’ A
> Sd/=3
Judge
Pages 3. to 3 – *’
Pages 4 to 16 – AN] _