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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.7374 OF 2013(MV)
BETWEEN:
DR. VASUDEVA MURTHY V
S/O VENKATACHALA MURTHY
AGED ABOUT 57 YEARS
NO.162/32/1,
10TH B MAIN ROAD
JAYANAGARA, 1ST BLOCK
BANGALORE-560 011.
... APPELLANT
(BY SRI.BABU M., ADV. )
AND
1. SRI. DEVARAJ L.C.,
S/O CHIKKAPUTTE GOWDA
NO.64, LAKSHMI SAGAR
PANDAVAPURA TALUK
MANDYA DISTRICT-571434.
2. THE ORIENTAL INSURANCE CO. LTD.,
NO.1551/6, M.H. BORIAH BUILDING
BESIDES VIDYA GANAPATHY TEMPLE
MANDYA,
2
KARNATAKA-571401.
... RESPONDENTS
(BY SRI. S.V.HEGDE MULKHAND, ADV. FOR R2:
R1 SERVED & UNDREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 18.03.2013 PASSED IN MVC NO.4595/2011
ON THE FILE OF THE II ADDITIONAL SMALL CAUSES
JUDGE, 28TH ACMM, MACT, BANGALORE, 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 aggrieved by the judgment dated 18.03.2013 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 25.03.2011 at about 3.50 p.m., the claimant was proceeding on his motorcycle 3 bearing registration No.KA-05/EP-1994 from Christ School towards Banneghatta road near Suryodaya Kalyana Mantapa, Bhavaninagara, Bengaluru slowly and cautiously, at that time, car bearing registration No.KA-41/3032 being driven by its driver at a high speed and in a rash and negligent manner from behind, 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 a doctor by profession and was earning Rs.20,000/- 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 rider.
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4. On service of notice, the respondents appeared through their respective counsel and filed their separate written statement in which the averments made in the petition were denied.
It was pleaded by respondent No.1 that the accident has not occurred due to rash and negligent driving of the offending vehicle by its driver. It was further pleaded that the car bearing Reg.No.KA-41- 3032 is insured with respondent No.2 and the policy was in force as on the date of accident. It was further pleaded that the driver of the offending vehicle was holding valid and effective driving licence as on the date of accident. Hence, he sought for dismissal of the petition.
It was pleaded by the Insurance Company - respondent No.2 that the issuance of policy, if any, subject to terms and conditions of the policy and also subject to holding valid and effective DL by the driver 5 and valid documents of the vehicle. It was further pleaded that it is clear from the charge sheet that the driver of the car was not holding valid and effective DL as on the date of accident. it was further pleaded that the insured car was not having valid permit or fitness certificate. The age, avocation and income of the claimant as on the date of the accident are denied. It was further pleaded that the compensation claimed by the claimant is highly excessive and exorbitant. Hence, he sought for dismissal of the petition.
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 got exhibited 10 documents namely Ex.P1 to Ex.P10. On behalf of the respondents, two witnesses were examined as RWs-1 and 2 and got exhibited 3 documents namely Ex.R1 to Ex.R3. The Claims Tribunal, by the impugned 6 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.50,000/- along with interest at the rate of 6% p.a. and directed respondent No.1/RC owner to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.
6. The learned counsel for the claimant has raised the following contentions.
Firstly, at the time of accident, the driver of the offending vehicle was having LMV non-transport vehicle, it is valid from 29.06.2009 till 28.06.2029, the accident occurred on 25.03.2011. The Tribunal has erred in fastening the liability on the owner of the offending vehicle on the ground that the driver of the offending vehicle was having LMV non-transport 7 driving licence and he was driving the transport vehicle at the time of the accident. He further contended that in view of the law laid down by the Hon'ble Apex Court in the case of MUKUND DEWANGAN vs. ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663, the licence to drive LMV includes licence to drive transport vehicle. Therefore, the Insurance Company is liable to pay compensation.
Secondly, in respect of quantum of compensation is concerned, due to the accident, claimant has suffered four injuries and he has taken rest for a period of 3 months. Since he was a doctor by profession, there is loss of income during the treatment.
Thirdly, the compensation awarded by the Tribunal under the head of 'non-pecuniary heads' of Rs.30,000/- is on the lower side. Hence, the learned 8 counsel appearing for the claimant prays for allowing the appeal.
7. On the other hand, the learned counsel for the Insurance Company has raised the following counter-contentions:
Firstly, it is not in dispute that as on the date of accident, the driver of the offending vehicle was not having valid and effective driving licence. Considering the same, the Tribunal has rightly fastened liability on owner of the offending vehicle.
Secondly, in respect of quantum of compensation is concerned, the injuries suffered by the claimant are minor in nature and he has not examined the treated doctor. Therefore, the overall compensation awarded by the Tribunal is just and reasonable. Hence, the learned counsel for the Insurance Company prays for dismissal of the appeal. 9
8. Heard the learned counsel for the parties and perused the judgment and award of the claims Tribunal.
9. It is not in dispute that the claimant has suffered injuries in a road traffic accident occurred on 25.03.2011 due to rash and negligent driving of the offending vehicle by its driver. As on the date of accident, driver of the offending vehicle was authorized to drive LMV non-transport vehicle from 26.09.2011 till 29.06.2029. in view of the law laid down by the Apex Court in the case of MUKUND DEWANGAN (Supra), even the driver who is having D.L for LMV non transport vehicle can drive the transport vehicle. Therefore, Insurance Company is liable to pay compensation.
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10. In respect of quantum of compensation is concerned, due to the accident the claimant has suffered the following injuries.
1. Evidence of hemerthrosis right elbow,
2. Evidence of fractures radius head on chip of lateral condyler,
3. Hemerthrosis of right knee and
4. Multiple abrasions of right hand. Claimant has spent a sum of Rs.20,000/- towards medical expenses and he suffered severe pain during treatment. Taking into consideration the injuries suffered by the claimant and considering wound certificate-Ex.P4, I am of the opinion that the compensation awarded under the head of 'non- pecuniary heads' has to be enhanced from Rs.30,000/- to Rs.70,000/-.
Accordingly, the claimant is entitled for total compensation of Rs.90,000/- instead of Rs.50,000/- awarded by the Tribunal.
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The Insurance Company is directed to deposit compensation amount along with interest at 6% p.a. from the date of petition till the date of realization, within a period of four weeks from the date of receipt of copy of this judgment.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE Mkm