SRI RAGHUNATHA REDDY v. SRI SRINIVAS P B

(BY SRI N.S MALLIKARJUNA, ADVOCATE FOR SRI S.S HAVERI, ADVOCATE FOR R-1; SRI L SREEKANTA RAO, ADVOCATE FOR R-2) …RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.06.2015 PASSED IN MVC NO.3886/2013 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM, MACT, BENGALURU, AWARDING COMPENSATION OF Rs.2,87,070/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN COURT. IN MFA NO. 3341/2016 BETWEEN: SRI SRINIVAS P B, AGED ABOUT 22 YEARS, S/O PRAKASH.B, R/AT NO.314, 3RD CROSS NEAR MUNESHWARA TEMPLE, NAGASHETTIHALLI, BENGALURU-560 094. PERMANENT ADDRESS: LAKKUR VILLAGE, MALUR TALUK, KOLAR DIST.-563 101. (BY SRI HAVERI S S.,ADVOCATE) AND:

1. THE UNITED INDIA INS. CO. LTD., 4 AND 5TH FLOOR, ...APPELLANT - 3 - NC: 2026:KHC:1526 MFA No. 1730 of 2016 C/W MFA No. 3341 of 2016 HC-KAR KRUSHI BHAVANA, KUDSON CIRCLE, BENGALURU-560 001.

2. MR. RAGHUNATH REDDY, S/O CHIKKAVENKATASWAMY, AGRAHARA, CHINTAMANI TALUK, CHIKKABALLAPUR DISTRICT, KOLAR-563 101. (BY SRI L SREEKANTA RAO, ADVOCATE FOR R-1; SRI MAHESH KUMAR K.M, ADVOCATE FOR SRI VEERANNA G TIGADI, ADVOCATE FOR R-2) ...RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.06.2015 PASSED IN MVC NO.3886/2013 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE, & XXVIII ACMM, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION SEEKING COMPENSATION ENHANCEMENT OF COMPENSATION. AND FOR THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C M JOSHI ORAL JUDGMENT Heard learned counsel appearing for the appellants and respondents.

2. Being aggrieved judgment MVC.No.3886/2013 dated 22.06.2015 by learned II Additional Small Causes Judge and MACT, Bengaluru - 4 - NC: 2026:KHC:1526 MFA No. 1730 of 2016 C/W MFA No. 3341 of 2016 HC-KAR (SCCH-13), the petitioner as well as respondent No.2 therein have approached this Court in these appeals.

3. It is a case of the petitioner that on 12.03.2013 at about 08.40 pm, while he was a pillion rider on motorcycle bearing No.KA-04-HL-6189, it met with an accident by collision with a tempo bearing No.CNP-3457, resulting in the petitioner sustaining injuries, which are as below: "Fracture of pelvis, fracture of superior and inferior pubic rami on both sides, and diastasis of pubic symphysis and left S-1 joint, Garden's type 4 displaced intracapsular fracture of neck of right femur and extensive contusion - abrasions over lower back and both gluteal areas." He was immediately shifted to M.S.Ramaiah Hospital and thereafter, he was taken to R.M.V. Hospital, where he took treatment. The petitioner contended that he is entitled for compensation from the owner and the insurer of the offending vehicle i.e., Tempo-407. - 5 - NC: 2026:KHC:1526 MFA No. 1730 of 2016 C/W MFA No. 3341 of 2016 HC-KAR

4. On issuance of notice, respondent Nos.1 and 2 appeared and contended that the compensation claimed is highly exorbitant and imaginary. They also disputed the liability on the ground that the negligence was on the part of the rider of the motorcycle. Respondent No.1-Insurance Company contended that the terms and conditions of the policy were violated and the driver was not having a valid driving licence at the time of the accident and as such, its liability be absolved.

5. The Tribunal recorded the evidence of the petitioner as PW.1 and two witnesses as PWs.2 and 3 and Exs.P1 to 17 were marked. The official of the respondent No.1 was examined as RW.1 and Exs.R1 to 4 were marked. No evidence was led by respondent No.2-owner of the vehicle.

6. After hearing the arguments, the Tribunal by fastening liability on respondent No.2 has awarded a sum of Rs.2,87,070/- as compensation under following heads: - 6 - NC: 2026:KHC:1526 MFA No. 1730 of 2016 C/W MFA No. 3341 of 2016 HC-KAR SL. NO. 1 2 PARTICULARS Injury pain and sufferings Loss of earning during laid up period 3 Medical expenses 4 5 Loss of future earnings Loss of amenities Conveyance, food and attendant charges 6 nourishment, AMOUNT (IN RS.) 50,000/- 12,000/- 1,26,950/- 69,120/- 20,000/- 9,000/- TOTAL 2,87,070/-

7. Being aggrieved, the petitioner is before this Court in MFA.No.3341/2016 and respondent No.2 is in appeal before this Court in MFA.No.1730/2016.

8. Learned counsel appearing for the petitioner in MFA.No.3341/2016 submit that the compensation awarded is on the lower side and the Income of the petitioner has not been properly appreciated by the Tribunal. He submit that notional income should have been considered by the Tribunal and therefore, the compensation has to be reassessed.

9. Learned counsel appearing for the appellant in MFA.No.1730/2016 submit that the Tribunal erred in - 7 - NC: 2026:KHC:1526 MFA No. 1730 of 2016 C/W MFA No. 3341 of 2016 HC-KAR fastening the liability upon the appellant, who was respondent No.2 before the Tribunal. He contends that the appellant had a driving licence of LMV and the vehicle which was involved is a light motor vehicle having unladen weight of less than 7,500 kgs. and therefore, the fastening of liability upon the appellant is unsustainable. In this regard, he places reliance on the judgment of the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited1 as well as its later reiteration in the case of Bajaj Alliance General Insurance Co. Ltd. Vs. Rambha Devi and others2. Hence, he seeks to fasten the liability upon the respondent-Insurance Company.

10. Per contra, learned counsel appearing respondent-Insurance Company submit that the quantum of the compensation assessed by the Tribunal is proper and correct and no indulgence is required. He submits that the claim petition itself mentioned the income of the ORDER (i) MFA.No.1730/2016 is allowed. (ii) MFA.No.3341/2016 is allowed in part. (iii) The impugned judgment and award passed by the Tribunal is modified by awarding a sum of Rs.40,280/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its deposit. (iv) The respondent-Insurance Company is liable to pay entire compensation to the petitioner and it shall deposit amount as provided under Section 168(3) of the Motor Vehicles Act, 1988. - 12 - NC: 2026:KHC:1526 MFA No. 1730 of 2016 C/W MFA No. 3341 of 2016 HC-KAR (v) The amount, if any, in deposit before this Court is ordered to be refunded the appellant MFA No. 1730/2016. Sd/- (C M JOSHI) JUDGE NR/- List No.: 1 Sl No.: 12