Karnataka High Court

Sri Vinay Kumar @ Vinay vs Chikkahanumaiah on 3 December, 2021

Bench: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 3RD DAY OF DECEMBER 2021

                     BEFORE

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

           MFA No.1083 OF 2018 C/W
           MFA NO.1082 OF 2018 (MV)

IN MFA NO.1083 OF 2018
BETWEEN:

SMT. LATHA
W/O PRAKASHA
AGED 39 YEARS
R/O H. NAGENAHALLI VILLAGE
NITTUR HOBLI, GUBBI TALUK
NOW R/AT PURALAGUNTE VILLAGE
BELLAVI HOBLI
TUMKUR TALUK - 572 101           ...APPELLANT

(BY SRI. SATHISHA J., ADV.)

AND

1.    CHIKKAHANUMAIAH
      S/O BHEEMAIAH
      AGED 48 YEARS
      R/AT AGALAGUNTE VILLAGE
      BUGUDANAHALLI POST
      BELLAVI HOBLI
      TUMKUR TALUK & DISTRICT-572 101

2.    NATIONAL INSURANCE COMPANY LTD.
                        2



    BRANCH OFFICE, KASTURI MANSION
    ABOVE CORPOIRATION BANK
    BEHIND KRISHNA TALKIS
    M.G.ROAD, TUMKUR TOWN
    THE REGIONAL MANAGER
    NATIONAL INSURANCE CO. LTD.
    NO.144, 2ND FLOOR, SHUBHARAM COMPLEX
    M.G.ROAD, BANGALORE - 560 001

                                  ...RESPONDENTS

(SRI. K. KISHORE KUMAR REDDY, ADV. FOR R2;
      R1 SERVED)

    THIS MFA IS FILED U/S 173(1) OF MV ACT,
AGAINST    THE   JUDGMENT   AND   AWARD    DATED
22.11.2017 PASSED IN MVC NO. 716/2015 ON THE
FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE &
MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM
PETITION   FOR    COMPENSATION    AND     SEEKING
ENHANCEMENT OF COMPENSATION.


IN MFA No.1082 OF 2018

BETWEEN:

SRI. VINAY KUMAR @ VINAY
S/O NANJAPPA
AGED 26 YEARS
R/AT PURALAGUNTE VILLAGE
BELLAVI HOBLI
TUMKUR TALUK - 572 101            ...APPELLANT
                         3




(BY SRI. SATHISHA J., ADV.)

AND

1.    CHIKKAHANUMAIAH
      S/O BHEEMAIAH
      AGED 48 YEARS
      R/AT AGALAGUNTE VILLAGE
      BUGUDANAHALLI POST
      BELLAVI HOBLI
      TUMKUR TALUK & DISTRICT-572 101

2.    NATIONAL INSURANCE COMPANY LTD.
      BRANCH OFFICE, KASTURI MANSION
      ABOVE CORPOIRATION BANK
      BEHIND KRISHNA TALKIS
      M.G.ROAD, TUMKUR TOWN
      THE REGIONAL MANAGER
      NATIONAL INSURANCE CO. LTD.
      NO.144, 2ND FLOOR, SHUBHARAM COMPLEX
      M.G.ROAD, BANGALORE - 560 001

                                    ...RESPONDENTS

(SRI. K. KISHORE KUMAR REDDY, ADV. FOR R2;
      R1 SERVED)


      THIS MFA IS FILED U/S 173(1) OF MV ACT,
AGAINST   THE   JUDGMENT      AND   AWARD   DATED
22.11.2017 PASSED IN MVC NO. 715/2015 ON THE
FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE &
MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM
                            4



PETITION    FOR     COMPENSATION        AND    SEEKING
ENHANCEMENT OF COMPENSATION.


     THESE APPEALS COMING ON FOR ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

These appeals under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) have been filed by the claimants being

aggrieved by the judgment dated 22.11.2017 passed

by the Motor Accident Claims Tribunal, Tumkur in MVC

716/2015 and 715/2015 respectively.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 26.12.2013, the claimants

were proceeding on motorcycle bearing registration

No.KA15-H-5127 towards Halsina Nagenhalli ridden by

claimant-Vinay Kumar near Kodiyala Gate, at that

time, Bajaj Pulsar motorcycle bearing registration

No.KA-06-EP-4291 being ridden by its rider at a high

speed and in a rash and negligent manner, dashed to

the vehicle of the claimants. As a result of the

aforesaid accident, the claimants sustained grievous

injuries and were hospitalized.

3. The claimants filed petitions under Section

166 of the Act seeking compensation. It was pleaded

that they 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.

4. On service of notice, the respondents

appeared through counsel and filed written statement

in which the averments made in the petitions were

denied.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimants themselves

were examined as PWs-1 and 2 and Dr.Chandan was

examined as PW-3 and got exhibited documents

namely Ex.P1 to Ex.P17. On behalf of the

respondents, two witnesses were examined as RWs-1

and 2 and got exhibited documents namely Ex.R1 to

Ex.R3. 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 in MVC 715/2015 is entitled to

a compensation of Rs.122,200/- and claimant in MVC

716/2015 is entitled for compensation of Rs.20,000/-

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, these appeals have been filed.

6. The learned counsel for the claimants 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 and hence

fastened the liability on the owner of the offending

vehicle. 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 claimants 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 claimants

with liberty to recover the same from the owner of the

offending vehicle.

Re: Quantum of compensation:

IN MVC 715/2015 (claimant - Vinay Kumar)

Firstly, even though the claimant claims that he

was working as School Bus Driver and earning

Rs.13,000/- per month and produced letter issued by

Vivekananda Public School at Ex.P-9, but the Tribunal

has taken the notional income as merely as

Rs.6,000/- per month.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

30% to lower limb and 10% to whole body. But the

Tribunal has erred in taking the whole body disability

at only 5%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 6 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.

IN MVC 716/2015 (claimant - Smt.Latha)

The claimant has sustained swelling of right

shoulder joint tenderness and movement restricted.

She has spent Rs.50,000/- toward 'medical expenses'.

Even after discharge from the hospital, she was not in

a position to discharge her regular work. She has

suffered lot of pain during treatment. Considering the

same, the global compensation of Rs.20,000/- granted

by the Tribunal is on the lower side.

Hence, he sought for allowing the appeals filed

by the claimants.

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

IN MVC 715/2015

Firstly, even though the claimant claims that he

was earning Rs.13,000/- per month and produced

letter issued by the school, but he has not examined

his employer to prove the income. Therefore, the

Tribunal has rightly assessed the income of the

claimant notionally.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

30% to lower limb and 10% to whole body. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 5%.

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.

IN MVC 716/2015

The claimant has sustained simple injuries and

she has not examined the doctor regarding disability

and injuries suffered by her. There is no loss of

income due to the disability. Considering the same,

the Tribunal has granted just and reasonable

compensation and it does not call for interference.

Hence, he sought for dismissal of the appeals.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the claimants have

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 pay the compensation to the claimants

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:

IN MFA 1082/2018 (MVC 715/2015)

11. The claimant claims that he was earning

Rs.13,000/- per month and produced letter issued by

the school, but he has not examined his employer to

prove the 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 2013, the notional income has to be taken at

Rs.8,000/- p.m.

As per wound certificate, the claimant has

sustained fracture of right scapula. PW-3, the doctor

has stated in his evidence that the claimant has

suffered disability of 30% to lower limb and 10%

to whole body. Therefore, taking into consideration

the deposition of the doctor, PW-3 and injuries

mentioned in the wound certificate, the whole body

disability has to be taken at 10%. The claimant is

aged about 26 years at the time of the accident

and multiplier applicable to his age group is '17'.

Thus, the claimant is entitled for compensation of

Rs.163,200/- (Rs.8,000*12*17*10%) 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 2 months. Therefore, the claimant is entitled for

compensation of Rs.16,000/- (Rs.8,000*2 months)

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

The claimant was treated as inpatient for more

than 6 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.15,000/- to Rs.20,000/-.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

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 25,000 25,000 Medical expenses 10,000 10,000 Food, nourishment, 5,000 5,000 conveyance and attendant charges Loss of income during 6,000 16,000 laid up period Loss of amenities 15,000 20,000 Loss of future income 61,200 163,200 Total 122,200 239,200

IN MFA 1083/2018 (MVC 716/2015)

12. As per wound certificate, the claimant has

sustained swelling of right shoulder joint tenderness

and movement restricted. She claims that she has

spent Rs.50,000/- towards 'medical expenses'. But the

claimant has not produced any medical bills to prove

the same. She has not examined the doctor regarding

disability suffered by him. Therefore, considering the

evidence of the claimant and nature of injuries

mentioned in the wound certificate and considering

the age and avocation of the claimant, I am inclined to

award compensation of Rs.20,000/- in addition to