Karnataka High Court
Monappa vs Husen Sab And Anr on 3 July, 2024
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NC: 2024:KHC-K:4546
MFA No. 203382 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3 RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 203382 OF 2023 (MV-I)
BETWEEN:
MONAPPA S/O KASHIPATI PANCHAL
AGE: 49 YEARS, OCC: NIL,
R/O. THANAGUNDI, TQ. AND DIST. YADGIRI,
PRESENTLY R/AT YADGIRI
...APPELLANT
(BY SRI KRUPA SAGAR PATIL, ADVOCATE)
AND:
1. HUSEN SAB S/O MOULANA SAB
AGE: 48 YEARS, OCC: OWNER
OF AUTO BEARING NO KA.33.A.6451,
R/O. YELHERI VILLAGE,
TQ. AND DIST. YADGIRI.
2. THE MANAGER
Digitally signed by SHRIRAM GENERAL INSURANCE COMPANY LIMITED,
SHIVALEELA
DATTATRAYA UDAGI E-8 RIICO INDUSTRIAL AREA SITAPUR,
Location: HIGH JAIPUR-302022, RAJASTHAN.
COURT OF ...RESPONDENTS
KARNATAKA
(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE FOR R2;
R1 IS SERVED )
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO,
MODIFY THE JUDGMENT AND AWARD DATED 21.06.2023, PASSED
BY THE SENIOR CIVIL JUDGE AND MACT-II, YADGIRI IN FILE
BEARING MVC NO. 41/2019 BY ENHANCING THE COMPENSATION
AS PRAYED FOR AND BY DIRECTING THE RESPONDENT NO.2
(INSURANCE COMPANY) TO PAY THE COMPENSATION TO THE
APPELLANTS AND SAME MAY BE RECOVERED FROM THE OWNER OF
THE OFFENDING VEHICLE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 203382 of 2023
JUDGMENT
This is claimant's appeal for enhancement of compensation awarded by the Senior Civil Judge & MACT- II, Yadgiri (hereinafter referred to as 'the Tribunal' for short) in MVC No.41/2019 dated 21.06.2023.
2. Though this appeal is slated for admission, with the consent of both the side, taken up for final disposal.
3. For the sake of convenience, the parties are referred to as per their ranks before the Tribunal.
4. Brief facts of case are that on 16.01.2018 at 10:30 a.m. claimant was traveling in an auto rickshaw bearing Reg.No.KA-33/A-6451 from Yadgiri to Gunj. The driver of the said auto drove the said vehicle in a rash and negligent manner. As a result of which, he dashed against a cow and in the impact, petitioner had sustained fracture of shaft of left femur and other injuries. He had taken treatment in R.R.Shaha Hospital, Kalaburagi and he had spent Rs.1,65,000/- towards treatment. -3-
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5. It is further case of the claimant that he was aged about 45 years and he was earning Rs.10,000/- per month by agriculture as well as coolie work. Due to the injuries sustained in the accident, he has been suffering from permanent disability. With these reasons, the claimant prayed to award compensation of Rs.8,95,000/-.
6. Respondent/insurer denied contents of the claim petition and prayed for dismissal of the claim petition.
7. From the rival contentions of both the parties, the Tribunal had framed the necessary issues for its determination.
8. The claimant to prove his case examined PWs.1 and 2 and got marked Exs.P1 to 13 and closed his evidence. Respondent No.2 examined RW.1 and got marked Exs.R1 to 4.
9. After hearing both the parties and appreciating the evidence available on record, the Tribunal by its -4- NC: 2024:KHC-K:4546 MFA No. 203382 of 2023 impugned judgment, awarded the following amount of compensation.
Sl.no. Heads Amount
1. Pain, Shock and sufferings Rs.30,000/-
2. Food and nourishment Rs.20,000/-
3. Attendant Charges Rs.10,000/-
4. Travelling Expenses Rs.10,000/-
5. Medical expenses Rs.71,753/-
6. Loss of income during laid Rs.18,000/-
period
7. Loss of future income Rs.1,27,400/-
8. Future medical expenses Rs.20,000/-
Total Rs.3,07,153/-
The Tribunal directed the owner to pay amount of compensation since he had no valid and effective driving licence to drove the said class of vehicle.
10. Heard arguments of learned counsel for the appellant and respondent No.2.
11. The contentions of the claimants that the Tribunal had not considered the income as well as disability properly and amount of compensation awarded on all heads are meager and moreover it is not in dispute that offending vehicle was insured and having policy. In -5- NC: 2024:KHC-K:4546 MFA No. 203382 of 2023 view of the same, he relies on the judgment of the Hon'ble Apex Court in the case of Pappu and others vs. Vinod kumar lamba and another1 and another judgment of this Court in the case of Priyanka @ Pramila vs. Sanwar Khan and Ors2, holding that in such event the insurer has to pay compensation and recover the same from the owner of the vehicle. With these reasons, prayed to allow the appeal by enhancing the compensation amount.
12. The learned counsel for respondent No.2 submits that the claimant has stated that he was earning Rs.10,000/- per month by doing coolie work. On the basis of the notional income Chart prepared by the KSLSA, notional income cannot be assessed as Rs.11,750/-, which is more than the fact stated by the claimant. The disability stated by the doctor is 22% towards limb. 1/3rd of same has to be taken when disability has to be calculated to whole body, then disability of the claimant is less than 7%. However, the Tribunal has taken 9%, which needs to be 1 (2018) 3 SCC 208 2 MFA 201982/2019 and connected matters DD 25.04.2024 -6- NC: 2024:KHC-K:4546 MFA No. 203382 of 2023 corrected. With these reasons prayed to dismiss the appeal.
13. The following question arises for determination.
"Whether the claimant is entitled for the enhancement of compensation?
14. The fact of accident and claimant had sustained injuries in the said vehicle accident are not in dispute. The offending vehicle having a package policy and driver of the said vehicle had no valid and effective driving licence at the time of accident is also not seriously disputed. Therefore, there is no need to interfere with the said findings.
15. Though the learned counsel for the respondent seriously disputed regarding disability taken by the Tribunal but respondent has not filed appeal challenging impugned judgment. The learned counsel for the insurer submits that since petition against respondent -7- NC: 2024:KHC-K:4546 MFA No. 203382 of 2023 No.2/insurer was dismissed by the Tribunal, it has not filed appeal.
16. The Tribunal has taken age of the claimant as 45 years, applied multiplier is '13' and taken income as Rs.9,000/- per month. As per the case of the claimant, he was earning Rs.10,000/- per month. As the chart prepared by the KSLSA, income of an victim of the accident of the year 2019 is Rs.11,750/- since the claimant himself has stated that he was earning Rs.10,000/- per month, it shall be considered as Rs.10,000/- per month.
17. PW.2 in his evidence has mentioned in detail about difficulties of the claimant and assessed disability to the lower limb as 22%, when it is compared to the whole body it is around 1/3rd of the total disability to the body. Accordingly, the disability affecting his earning capacity is taken as 10%. On the basis of the above said figures, the loss of future earning capacity due to permanent disability is assessed. The income of the claimant is taken as Rs.10,000/- per month, consequently the loss of income -8- NC: 2024:KHC-K:4546 MFA No. 203382 of 2023 during laid up period is also to be enhanced looking to the injuries sustained in the accident, at least for a period of two to three months he might not be in a position to work, which needs to be considered.
18. The learned counsel for the appellant submits that no amount of compensation is awarded towards loss of amenities, which needs to be considered.
19. For the aforesaid reasons, the claimant is entitled for enhancement of compensation as under:
Sl. Heads Amount
No. awarded by this
Court
1. Pain and sufferings Rs.30,000/-
2. Food and nourishment Rs.20,000/-
3. Attendant Charges Rs.10,000/-
4. Travelling Expenses Rs.10,000/-
5. Medical expenses Rs.71,753/-
6. Loss of income during laid period Rs.30,000/-
7. Loss of future earning capacity Rs.1,40,400/-
due to permanent disability
(10,000x12x13x9%)
8. Future medical expenses Rs.30,000/-
9. Loss of amenities Rs.30,000/-
Total Rs.3,72,153/-
Amount awarded by the Tribunal Rs.3,07,153/-
Enhancement Rs.65,000/-
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MFA No. 203382 of 2023
20. The claimant is entitled for enhancement of compensation of Rs.65,000/- along with interest at the rate of 6% per annum from the date of petition till its realization.
21. It is the case of respondents that respondent No.1 was driving the auto at the time of accident and he had no valid and effective driving licence. In the case of Pappu vs. Vinod Kumar Lamba (supra) and Priyanka @ Pramila vs Sanwar Khan (supra) held that if policy of insurance is in force, the driver of the offending vehicle had no valid and effective driving licence, then insurer shall pay the compensation to the third party and recover the same from the insured. The principle of law could be made applicable to the facts of the present case.
22. For the aforesaid discussion, I answered the above question partly in the affirmative and pass following:
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MFA No. 203382 of 2023
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award passed by
the Senior Civil Judge & MACT-II, Yadgiri in MVC No.41/2019 dated 21.06.2023 is modified;
(a) An amount of Rs.65,000/- is enhanced in addition to compensation awarded by the Tribunal with interest at the rate of 6% p.a. on the enhanced amount of compensation from the date of petition till realization of said amount.
iii. Respondent No.2 - insurance company shall deposit the said amount with interest before the Tribunal within a period of eight weeks from the date of receipt of a copy of this order and at liberty to recover the same from the
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NC: 2024:KHC-K:4546 MFA No. 203382 of 2023 owner of the vehicle in appropriate proceedings.
iv. The orders passed by the Tribunal regarding deposit and release are not disturbed. v. The registry is directed to send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE SDU LIST NO.: 1 SL NO.: 25 CT:PK