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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.2628 OF 2013(MV)
BETWEEN:
GOVINDA
S/O MAHADEVAIAH
AGE 27 YEARS
R/O HEJJIGE VILLAGE
CHIKKAYYANA CHATRA HOBLI
NANJANAGUD TALUK
MYSORE DIST.
... APPELLANT
(BY SRI.R.C.NAGARAJ, ADV.)
AND
1. AMEER O.K.,
S/O HAMAJA O.K.
AGE 32 YEARS
ODUMALAKUDIL HOUSE
ELANKUR POST, MALLAPURA
KERALA STATE.
2. ABDUL NAZAR M.P.,
S/O ABDUL RAHEEM
AGE 47 YEARS
R/O NO.13/7, 2ND MAIN ROAD
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K.P.N. LAYOUT
BANGALORE.
3. FUTURE GENERAL INSURANCE CO.
4TH FLOOR, MALABAR,
COCHIN ARCED,
M.G.ROAD, COCHIN
KERALA-682010.
... RESPONDENTS
(BY SRI.H.S.LINGARAJ, ADV. FOR R3:
R2 IS EXPARTE V/O DATED:30.05.2019
SERVICE OF NOTICE TO R1 IS HELD
SUFFICIENT V/O DATED:14.03.2014)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 07.01.2013 PASSED IN MVC NO.55/2011 ON
THE FILE OF THE MACT SENIOR CIVIL JUDGE,
NANJANGUD, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being 3 aggrieved by the judgment dated 07.01.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 27.02.2011, at about 2.45 p.m., the claimant was proceeding on his motorcycle bearing Reg.No.KA-03/EK-4314 on Nanjangud-Mysore road, in front of Yathri Bhavan, at that time, lorry bearing Reg.No.KA-02/C-6689, being driven by its driver, came from opposite direction, at a high speed and in a rash and negligent manner and dashed against the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act on the ground that he was aged about 25 years, was employed as Operator with Resendik Auto Company Private Limited and was earning 4 Rs.6,000/- per month. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
4. On service of notice, the respondent Nos.1 and 3 appeared through their counsel and respondent No.3 only filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the driver of the offending vehicle was not holding valid and effective driving licence as on the date of accident. Hence, he sought for dismissal of the petition with cost.
The respondent No.2 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
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5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1, and examined Dr. Kiran Kalaiah as PW-2 and complainant as PW.3 and got exhibited 111 documents namely Ex.P1 to Ex.P111. On behalf of the respondents, Manager (Legal) was examined as RW-1 and got exhibited 2 documents namely Exs.R1 and 2. 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.1,56,500/- along with interest at the rate of 6% p.a. and directed the respondent No.2, owner of the vehicle to deposit the compensation amount along 6 with interest. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimant has raised the following contentions.
Firstly, the Tribunal has fastened liability on the owner of the vehicle on the ground that the driver of the offending vehicle was not holding valid driving licence. In view of the law laid down by the Full Bench of this Court in the case of New India Assurance Company Limited, Bijapur -v- Yallavva and Another reported in ILR 2020 Kar. 2239, the insurance company has to pay the compensation with liberty to recover the same from the insured.
Secondly, due to the accident, the claimant has suffered grievous injuries, he was inpatient for a period of 48 days. He examined the doctor, who has assessed 60% disability. At the time of accident, he 7 was aged about 25 years and earning Rs.6,000/- per month. The Tribunal is not justified in taking monthly income of the claimant as Rs.4,500/-.
Thirdly, claimant has suffered lot of pain during the treatment and he has to suffer with the disability and unhappiness throughout his life. The compensation awarded by the Tribunal under the head of 'pain and sufferings' is on the lower side. The Tribunal has failed to grant any compensation under the head of 'loss of amenities'.
Fourthly, the compensation awarded by the Tribunal under other heads are also on the lower side. Hence, he sought for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has raised the following contentions.
Firstly, it is not in dispute that as on the date of accident the driver of offending vehicle was not 8 holding valid and effective driving licence. Since the insured has violated policy conditions, the Tribunal has rightly fastened liability on the owner of the offending vehicle.
Secondly, the overall compensation awarded by the Tribunal is just and reasonable. Hence, he sought dismissal of the appeal.
The owner of the offending vehicle served but unrepresented.
8. Heard the learned counsel for the parties and perused the judgment and award passed by the Tribunal and original records.
9. It is not in dispute that the claimant has suffered injuries in a road traffic accident occurred on 27.02.2011 due to rash and negligent driving of the offending vehicle by its driver. Due to the accident, the claimant has suffered following injuries. 9
1. Fracture of right thigh,
2. Fracture of frontal bone over right side of nasal bone.
He has examined Dr.Kiran Kalaiah as PW.2, who has deposed that the claimant has suffered disability of 60%. Taking into consideration the injuries suffered by the claimant, his age and avocation and considering the deposition of the doctor and wound certificate-Ex.P3, I am of the opinion that the whole body disability can be assessed at 10%.
At the time of accident claimant was aged about 25 years and was earning Rs.6,000/- per month. Taking into consideration the evidence of the claimant and his age and avocation, monthly income of the claimant can be assessed at Rs.6,000/-.
At the time of the accident, he was aged about 25 years, multiplier applicable to the said age group is 10
18. Accordingly, loss of income due to disability has been reassessed as follows:
Rs.6,000 x 12 x 18 x 10/100 = Rs.1,29,600/-. Since the income of the claimant is enhanced to Rs.6,000/- per month, the claimant is entitled for compensation of Rs.12,000/- (Rs.6,000*2 months) under the head 'loss of income during laid up period'.
Due to the accident, the claimant has suffered the above said injuries. He was inpatient for a period of 48 days. He has examined the doctor, who has assessed 60% disability. He has suffered lot of pain during the treatment and he has to suffer with the disability throughout his life. Taking into consideration the evidence of the doctor and wound certificate, Ex.P3, I am of the opinion that the claimant is entitled for compensation of Rs.40,000/- under the head of 'loss of amenities'. The compensation awarded under the head of 'pain and sufferings' has to be enhanced 11 from Rs.20,000/- to Rs.40,000/- and under the head of 'food and nourishment' has to be enhanced from Rs.9,000/- to Rs.20,000/-.
The compensation awarded by the Tribunal under other heads is just and reasonable.
10. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 20,000 40,000 Attendant charges 4,800 4,800 Medical expenses 15,500 15,500 Loss of income during 9,000 12,000 laid up period Loss of income due to 97,200 1,29,600 disability Loss of amenities - 40,000 Future medical expenses 10,000 10,000 Total 1,56,500 2,51,900 The claimant is entitled to a total compensation of Rs.2,51,900/-.
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The Insurance Company is directed to deposit the entire compensation amount with interest at 6% p.a. from the date of petition till the date of payment, within a period of four weeks from the date of receipt of a certified copy of this order, with liberty to recover the same from the insured.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE Mkm/-