ANANTHARAMU B S v. PRAKASH

(BY SRI. SYED ABDUL SABOOR, ADVOCATE FOR R-1 AND R-2; SRI. C.R.RAVISHANKAR, ADVOCATE FOR R-3) …RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MV ACT, PRAYING TO SETTING ASIDE THE JUDGMENT AND AWARD DATED 23.01.2018 PASSED BY THE LEARNED PRL. JUDGE COURT OF SMALL CAUSES, AND SR. CIVIL JUDGE AND MACT, AT MYSURU, IN M.V.C.NO.47/2014 AND DIRECTING THE THIRD RESPONDENT INSURANCE COMPANY TO PAY THE COMPENSATION BY ENHANCING THE COMPENSATION, IN THE INTEREST OF JUSTICE. IN MFA NO. 10197/2018 BETWEEN:

#1. PRAKASH S/O NAGEGOWDA AGED ABOUT 28 YEARS, KADANAHALLI VILLAGE JAYAPURA HOBLI MYSURU TALUK AND DISTRICT-571 314.

#2. SHIVAKUMAR B S/O BORALINGEGOWDA MAJOR 189, 5TH STREET GUJJEGOWDANAPURA VILLAGE AND POST, JAYAPURA HOBLI-571 314 MYSURU TALUK AND DISTRICT. (BY SRI. S A SABOOR, ADVOCATE) AND:

#1. ANANTHARAMU B S S/O LATE SUBBARAO AGED ABOUT 64 YEARS ...APPELLANTS - 3 - MFA No. 5718 of 2022 C/W MFA No. 10197 of 2018 NO.87, 4TH CROSS, 2ND STAGE, J P NAGAR MYSURU-570 003.

#2. THE MANAGER ROYAL SUNDARAM ALLIANZ INSURANCE CO LTD 133, 3RD FLOOR, SHIKHA TOWERS RAMVILAS ROAD MYSURU-570 003. ...RESPONDENTS (BY SRI. SHANTHARAJ K, ADVOCATE FOR R-1; SRI K.SURYANARAYANA RAO, ADVOCATE FOR R-2) FIRST APPEAL THIS MISCELLANEOUS FILED U/S.173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC NO.47/2014 ON THE FILE OF THE PRL. JUDGE, SMALL CAUSES AND MACT AT MYSURU WHICH WAS DISPOSED OFF ON 23.01.2018 AND SET ASIDE THE LIABILITY FASTENED ON TO THE APPELLANTS AWARD PASSED BY THE TRIAL COURT IN THE INTEREST OF JUSTICE. IS THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.10.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO CAV JUDGMENT

#1. The MFA No.5718/2022 is filed by the claimant therein to set aside the judgment and award dated

23.01.2018 in MVC No.47/2014, passed by the Principal Judge, Court of Small Causes and Senior Civil Judge, at Mysuru (herein after referred to as ‘the Tribunal’ for short) - 4 - MFA No. 5718 of 2022 C/W MFA No. 10197 of 2018 directing respondent No.3-Insurance Company to pay the compensation by enhancing the compensation.

#2. The MFA No.10197/2018 is filed by the respondent Nos.1 and 2 therein - driver and owner of the vehicle respectively to set aside the liability fastened by the Tribunal in MVC No.47/2014.

#3. The appellant in MFA No.5718/2022 is the claimant before the Tribunal and the respondents herein are the respondents before the Tribunal.

#4. The appellants in MFA No.10197/2018 are the respondents before the Tribunal and the respondent herein is the claimant before the Tribunal.

#5. The brief facts of the case are that:- On 15.10.2013 at about 3.00 p.m., near Rajarajeswari Temple, J.P. Nagar Link Road, Mysuru, the claimant, while riding his bicycle carefully and observing the traffic Rules, was hit by a Mahindra Bolero goods vehicle bearing registration No.KA-09-B-7978, which was driven at high speed in a rash and negligent manner. Due - 5 - MFA No. 5718 of 2022 C/W MFA No. 10197 of 2018 to the said accident, the claimant sustained grievous injuries and was immediately taken to Panacea Hospital and subsequently shifted to Kamakshi Hospital, Mysuru, where he remained as an inpatient for about 26 days, incurring substantial medical expenses.

#6. Prior to the accident, the petitioner was hale and healthy and was earning Rs.10,000/- per month as a Purohith, but due to the accidental injuries, he became incapable of performing his occupation, thereby suffering physical, mental, and financial hardship. The claimant contended that the accident occurred solely due to the rash and negligent driving of the Bolero vehicle, for which the respondents are jointly and severally liable to pay compensation.

#7. Per contra, despite service of notice, respondent No.1 - the driver and respondent No.2 - owner of the vehicle remained ex-parte. The respondent No.3 - the Insurance Company filed the objections and denied the claimant’s age, occupation, income, nature of injuries and expenditure on medical treatment. It was further - 6 - MFA No. 5718 of 2022 C/W MFA No. 10197 of 2018 contended that respondent No.1 had no valid and effective driving license as on the date of accident and that the accident occurred due to the claimant’s own negligence.

#8. The learned Tribunal, after appreciation of the material evidence, awarded a global compensation of Rs.4,00,000/- with 9% interest per annum.

#9. Aggrieved thereby, the claimant has preferred MFA No.5718/2022 seeking enhancement, whereas the driver, insurer and owner of the offending vehicle have preferred MFA No.10197/2018 challenging fastening of liability and quantum.

#10. The learned counsel appearing claimant/appellant herein in MFA No.5718/2022 would contend that the Tribunal has erred in exonerating the insurance company from liability contrary to the settled principles of “pay and recovery” laid down by the Hon’ble Apex Court; further, the award of compensation was grossly inadequate considering the claimant’s/appellant’s age, permanent disability, medical expenses and loss of - 7 - MFA No. 5718 of 2022 C/W MFA No. 10197 of 2018 income, with failure to grant compensation under the heads of pain and suffering, loss of amenities and future medical expenses, as well as awarding an unduly low rate of interest at 6% instead of 12%.

#11. The learned counsel for the appellants in MFA No.10197/2018 would contend that the Tribunal erred in awarding only Rs.4,00,000/- with 9% interest jointly against the appellants. No prior notice was served to them regarding the proceedings. The appellants came to know of the award only upon filing of Execution Petition No.54/2018 by respondent No.1 / claimant.

#12. Heard learned counsel appearing for the parties.

#13. Having considered the submissions of the learned counsel for the parties, this Court proceed to pass the following; ORDER (a) The impugned award dated 23.01.2018 passed in MVC No.47/2014 by the Principal Judge, Court of Small Causes and MACT., Mysuru - 8 - MFA No. 5718 of 2022 C/W MFA No. 10197 of 2018 is set aside and the matter is remanded back to the Tribunal for fresh consideration. (b) 50% of the compensation amount that has already been deposited before this Court vide order dated 19.12.2018 in MFA No.10197/2018, compliance with passed I.A.No.3/2018, shall be transferred Tribunal and kept in Fixed Deposit in a Nationalized Bank, until final disposal of the claim petition. (c) By giving opportunities to both the parties, the Tribunal has to dispose of the case as expeditiously as possible ie., within the period of six months from the date of re-opening of the case. (d) Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith. (e) Amount in deposit along with accrued interest if any, shall be transmitted to the Tribunal. - 9 - MFA No. 5718 of 2022 C/W MFA No. 10197 of 2018 (f) With the above observations, both the appeals are disposed of. Sd/- (DR.K.MANMADHA RAO) JUDGE GH