Karnataka High Court

Girish vs The Branch Manager on 1 December, 2021

Bench: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 1ST DAY OF DECEMBER 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.43 OF 2019(MV)

BETWEEN:

GIRISH
S/O KARIAIAH
AGED ABOUT 28 YEARS
R/O HAVALLI VILLAGE
ALDUR POST
CHIKKAMAGALURU TALUK
AND DISTRICT-577101.
                                     ...APPELLANT

(BY SRI.GIRISH B BALADARE, ADV. )

AND

1.    THE BRANCH MANAGER
      ORIENTAL INSURANCE CO. LTD.,
      BRANCH OFFFICE
      BASAVANAHALLI MAIN ROAD
      CHIKKAMAGALURU CITY-577 101.

2.    SMT AMUL MOTHI
      W/O PARVEEZ
      AGED ABOUT 43 YEARS
      R/O B H ROAD
                            2



      ALDUR AT AND POST
      CHIKKAMAGALURU TALUK
      AND DISTRICT-577 101
                                       ...RESPONDENTS

(BY SRI.A N KRISHNA SWAMY, ADV. FOR R1:
R2 SERVED)

      THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST    THE    JUDGMENT       AND   AWARD     DATED
01/08/2018, PASSED IN MVC NO.24/2015, ON THE
FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE
AND AMACT, CHIKKAMAGALURU, PARTLY ALLOWING
THE   CLAIM   PETITION     FOR   COMPENSATION       AND
SEEKING ENHANCEMENT OF COMPENSATION.


      THIS MFA COMING ON FOR ADMISSION, 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 1.8.2018 passed by

the Motor Accident Claims Tribunal, Chikkamagaluru

in MVC 24/2015.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 16.4.2014, the claimant was

proceeding by walk along with his brother near Sundar

Hotel on BH Road, Aldur, at that time, Hero Honda

motorcycle bearing registration No.KA-17-&-9469

being driven by its driver at a high speed and in a

rash and negligent manner, dashed to 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 seeking compensation. It was pleaded

that he 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 respondents

appeared through counsel and filed written statements

in which the averments made in the petition were

denied.

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 Dr.Ullas Shetty was examined

as PW-2 and got exhibited documents namely Ex.P1

to Ex.P15. On behalf of the respondents, two

witnesses were examined as RWs-1 and 2 and got

exhibited documents namely Ex.R1. 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.149,096/- along with interest

at the rate of 6% p.a. and directed the owner of the

offending vehicle 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:

Re: Liability:

The Tribunal has given a clear finding that the

rider of the offending vehicle was not having valid

driving licence as on the date of accident. However, in

view of the decision of the Hon'ble Supreme Court in

the case of PAPPU AND ORS. V. VINOD KUMAR

LAMBA AND ANR. [AIR 2018 SC 592] and in the

case of NATIONAL INSURANCE CO. LTD. VS.

SWARAN SINGH (2004) 3 SCC 297, the Insurance

Company is liable to pay compensation to the claimant

with liberty to recover the same from the owner of the

offending vehicle. Hence, the Insurance Company may

be directed to pay the compensation to the claimant

with liberty to recover the same from the owner of the

offending vehicle.

Re: Quantum of compensation:

Firstly, even though the claimant claims that he

was doing coolie work and earning Rs.10,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.6,000/- per month.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

10% to lower limb. But the Tribunal has erred in

taking the whole body disability at only 3.33%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 9 days. Even after discharge

from the hospital, he was not in a position to

discharge his regular work. He has suffered lot of pain

during treatment. Considering the same, the

compensation granted by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other heads are 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 following counter

contentions:

Re: Liability

It is not in dispute that the rider of the offending

vehicle was not having valid driving licence as on the

date of the accident and the insured has violated the

terms and conditions of the policy. Hence, the Tribunal

has rightly exonerated the Insurance Company from

liability and fastened the liability on the owner of the

offending vehicle.

Re: Quantum of compensation

Firstly, even though the claimant claims that he

was earning Rs.10,000/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

10% to lower limb. The Tribunal considering the

injuries sustained by the claimant, has rightly

assessed the whole body disability at 3.3%.

Thirdly, considering the oral and documentary

evidence and considering the age and avocation of the

claimant, the Tribunal has granted just and reasonable

compensation and it does not call for interference.

Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

RE: LIABILITY

10. The Tribunal after considering the materials

available on record has given a clear finding that the

rider of the offending vehicle was not having valid and

effective driving licence as on the date of the accident

and insured has violated the policy conditions and

therefore, the Insurance Company is not liable to

indemnify the insured and it has rightly exonerated

the Insurance Company from liability. The owner or

the rider of the offending vehicle have not challenged

the said finding of the Tribunal. However, as per the

law laid down by the Hon'ble Supreme Court in the

case of Pappu and others (supra) and in the case

of Swaran Singh (supra), since the offending vehicle

was covered with valid insurance policy and since third

party risk is involved, the Insurance Company is

directed to deposit the compensation amount with

liberty to recover the same from the owner of the

offending vehicle. Hence, the finding of the Tribunal in

respect of liability is concerned, the same is modified.

RE: QUANTUM OF COMPENSATION:

11. The claimant claims that he was earning

Rs.10,000/- per month. But he has not produced any

documents to prove his income. In the absence of

proof of income, the notional income has to be

assessed. As per the guidelines issued by the

Karnataka State Legal Services Authority, for the

accident taken place in the year 2014, the notional

income has to be taken at Rs.8,500/- p.m.

As per wound certificate, the claimant has

sustained fracture of left temporal parietal bone,

speck of left temporal contusion, left temporo parietal

thin extradural haematoma, post tramatic vertigo.

PW-2, the doctor has stated in his evidence that the

claimant has suffered disability of 10% to lower limb.

Therefore, taking into consideration the deposition of

the doctor, PW-2 and injuries mentioned in the

wound certificate, the Tribunal has rightly assessed

the whole body disability at 3.33%. The claimant is

aged about 23 years at the time of the accident

and multiplier applicable to his age group is '18'.

Thus, the claimant is entitled for compensation of

Rs.61,138/- (Rs.8,500*12*18*3.33%) on account of

'loss of future income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 3 months. Therefore, the claimant is entitled for

compensation of Rs.25,500/- (Rs.8,500*3 months)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 9 days in the hospital and thereafter, has

received further treatment. Due to the accident, the

claimant has suffered grievous injuries and also

undergone surgery. He has suffered lot of pain during

treatment and he has to suffer with the disability

stated by the doctor throughout his life. Considering

the same, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'loss of

amenities' from Rs.25,000/- to Rs.35,000/-.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

12. 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 50,000 50,000

Medical expenses 8,950 8,950 Food, nourishment, 10,000 10,000 conveyance and attendant charges Loss of income during 12,000 25,500 laid up period Loss of amenities 25,000 35,000 Loss of future income 43,146 61,138 Total 149,096 190,588

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.190,588/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from

the date of receipt of copy of this judgment with

liberty to recover the same from the owner of the

offending vehicle.

The Tribunal is directed to release the