Karnataka High Court

Srimantharao vs Mohd. Saleem And Anr on 7 December, 2021

Bench: M.G.S.Kamal

                          1




         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

      DATED THIS THE 07TH DAY OF DECEMBER, 2021

                      BEFORE

         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

             MFA No.200268/2019 (MV)
                       C/W
             MFA No.201848/2018 (MV)

MFA NO.200268/2019

BETWEEN

SRIMANTHARAO
S/O SHIVASHARNAPPA UDNOOR
AGE:58 YRS, OCC:ADATH BUSINESS
(NOW NIL) R/O BANK COLONY,
KALABURAGI.

                                        ...APPELLANT

(BY SMT. SHARADA PATIL KULGERI, ADVOCATE)



AND


1 . MOHD. SALEEM
    S/O KHAJABAI MALIPATIL
    AGE:48 YRS, OCC:OWNER OF VEHICLE,
    R/O H.NO.5-3-32,
    W.NO.RESHMI GALLI
    NEAR AKKAMAHADEVI TEMPLE,
    CHITTAPUR,
                          2




   DIST.KALABURAGI - 585 211

2 . THE DIVISIONAL MANAGER
     NATIONAL INSURANCE CO. LTD.,
     BILGUNDI COMPLEX,
     STATION ROAD,
     KALABURAGI - 585 101

                                      ....RESPONDENTS
(BY SRI SANJEEV PATIL, ADVOCATE FOR
SRI B ALI MOHAMMED, ADVOCATE FOR R1;
BY SRIPRAKASH M., ADVOCATE FOR
SRI SANJAY M. JOSHI, ADVOCATE FOR R2)

   MFA FILED U/S 173(1) OF MV ACT, TO MODIFY THE
JUDGMENT AND AWARD AND FIX THE LIABILITY ON THE
RESPONDENT NO.2 PASSED BY THE I ADDL. SENIOR CIVIL
JUDGE AND MACT, KALABURAGI IN MVC NO.246/2016
DATED 18.07.2018 AND ALLOW THE APPEAL.

MFA NO.201848/2018

BETWEEN

MOHD. SALEEM
S/O KHAJABAI MALIPATIL
AGE:47 YRS, OCC:OWNER OF VEHICLE
R/O H.NO.5-3-32,
W.NO. RESHMI GALLI,
NEAR AKKAMAHADEVI TEMPLE,
CHITTAPUR
DIST.KALABURAGI.

                                         ...APPELLANT
(BY SRI SANJEEV PATIL, ADVOCATE FOR
SRI B ALI MOHAMMED, ADVOCATE)
                             3




AND


1 . SRIMANTHRAO
    S/O SHIVASHARANAPPA UDNOOR,
    AGE:57 YRS, OCC:ADATH BUSINESS
    (NOW NIL) R/O BANK COLONY,
     KALABURAGI 585 102

2 . THE DIVISIONAL MANAGER,
    THE NATIONAL INSURANCE
    COMPANY LIMITED,
    DIVISIONAL OFFICE,
    BILGUNDI COMPLEX STATION ROAD,
    KALABURAGI - 585 101

                                       ....RESPONDENTS


(BY SMT. SHARADA PATIL KULGERI, ADVOCATE FOR R1;
SRI PRAKASH M., ADVOCATE FOR
SRI SANJAY M. JOSHI, ADVOCATE FOR R2)

    MFA FILED U/S. 173(1) OF MV ACT, TO CALL FOR THE
RECORDS IN MVC NO.246/2016 ON THE FILE OF THE I
ADDL.SENIOR CIVIL JUDGE AND MACT AT KALABURAGI
AND MODIFY THE IMPUGNED JUDGMENT AND AWARD
DATED 18.07.2018 PASSED IN MVC NO.246/2016 ON THE
FILE OF THE I ADDL.SENIOR CIVIL JUDGE, AND MACT
KALABURAGI.

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

                      JUDGMENT

The appeal in MFA.200268/2019 is filed by the

claimant and the appeal in MFA No.201848/2018 is filed by

the owner of the offending vehicle under Section 173(1) of

the Motor Vehicles Act, 1988 ('the M.V.Act' for short)

against the judgment and award dated 18.07.2018 passed

in MVC No.246/2016 on the file of the I Additional Senior

Civil Judge & MACT at Kalaguragi ('the Tribunal' for short).

2. The parties shall be referred to as per their

rankings before the Tribunal.

3. Brief facts leading up to filing of the present

appeals are that on 15/10/2015 at about 10.40 p.m., the

claimant/appellant, after completion of work, was

proceeding on his motorcycle towards his house, when he

reached near Nagareshwar School Cross Road, a Mini Lorry

bearing Reg.No.KA-32/3115 belonging to respondent

Np.1/appellant in MFA.No.201848/2018, being driven by

its driver in a high speed, rash and negligent manner

dashed against the claimant resulting in the accident. Due

to the said impact, the claimant/appellant sustained

fracture of right pubic bone and also fracture of tibia and

fibula. He was admitted to Basaveshwar Hospital, where

he undergone operation and implants and rod were

inserted, for which he has incurred huge amount of

money.

4. Thereupon, the claimant filed a claim petition

under Section 166 of M. V. Act claiming compensation of

Rs.95,00,000/- with interest on the premise that he was

aged about 54 years, hale and healthy, was carrying on

the business of Adath and real estate and other allied

business and was earning Rs.5,00,000/- per annum and

that due to the injuries sustained by him in the accident

which was caused on account of rash and negligent driving

by the driver of the said Lorry, he is unable to carry on his

work as usual. That since the accident had occurred due

to rash and negligent driving of the Lorry by its driver

belonging to respondent No.1 which was insured with

respondent No.2, the respondent No.1 and respondent

No.2 were liable to pay compensation to the claimant.

5. Upon service of notice, respondent Nos.1 and 2

appeared and filed their separate statement of objections.

Respondent No.1, denying the petition averments

contended that the accident had occurred due to negligent

riding of the motorcycle by the claimant himself. That the

Lorry in question was insured with respondent No.2 and

the driver was holding a valid and effective driving licence

as on the date of accident and liability, if any, would be

fixed on the respondent No.2. Hence, sought for

dismissal of the claim petition.

Respondent No.2-insurance company, in its objection

denying mode and manner of accident, further contended

that the respondent No.1 had not intimated about

involvement of mini lorry in the accident immediately to

the respondent No.2 thereby violated terms and conditions

of policy. That the accident in question had occurred due

to rash and negligent riding of the motorcycle by the

claimant himself. That the lorry driver was not holding

valid and effective driving licence as on the date of

accident to the said class of vehicle and that the

respondent thereby committed breach of policy by

entrusting the vehicle to a person who had no driving

licence to drive the same. Hence, sought for dismissal of

the claim petition.

6. The Tribunal based on the pleadings of the

parties, framed issues and recorded evidence. The

claimant examined himself as PW.1 and one Dr.Ravi

Shivaraya, Orthopaedic Surgeon has been examined as

PW.2 and exhibited 20 documents as Exs.P1 to P20. On

the other hand, respondent No.1 has been examined as

RW.1 and exhibited insurance policy as Ex.R1 on behalf of

respondent No.2.

7. Based on the materials placed on record, the

Tribunal held that the accident in question had occurred on

account of rash and negligent driving by the driver of the

said lorry resulting in the accident and the claimant

sustaining injuries thereon. Consequently, held that the

claimant is entitled for total compensation of Rs.7,24,000/-

together with interest at 6% per annum from the date of

petition till the date of payment and since the driver of the

offending vehicle did not have valid driving licence as on

the date of accident, directed the respondent No.1-owner

of the offending lorry to pay the compensation within one

month from the date of the award and exonerated

insurance company from payment of compensation.

Aggrieved by the same, the claimant is before this Court in

MFA No.200268/2019 seeking enhancement of the

compensation and the appellant/owner of the offending

vehicle is before this Court in MFA No.201848/2018

questioning the liability to pay the compensation.

8. The learned counsel for the appellant/claimant

reiterating the grounds urged in the appeal memorandum

submitted that the Tribunal has erred in assessing the

notional income of the injured/clamant at Rs.4,00,000/-

per annum. That though the Doctor has assessed the

disability of the claimant at 29%, the Tribunal has erred in

taking the same at 10% thereby causing injustice to the

claimant. As regards compensation granted under other

heads he submits that same are on lower side. Hence,

sought for enhancement of compensation.

9. The learned counsel for the appellant/owner of

the vehicle submits that the Tribunal has erred in fixing the

liability on the premise that driver of the offending vehicle

was not holding valid driving licence as on the date of

accident. In view of the judgment of the Apex Court in the

case of Mukund Dewangan Vs. Oriental Insurance

Company Limited, reported in AIR 2017 SC 3668, a

driver holding a licence to drive 'light motor vehicle', is

competent to drive a 'transport vehicle' of that category

without specific endorsement to drive the transport

vehicle. Therefore, he submits that issue involved in this

matter has been covered in the above said decision.

Therefore, the order of the Tribunal is not sustainable.

10. Learned counsel for the insurance company

submits that the Tribunal, considering the materials

available on record has rightly fastened liability on the

driver of the offending and further submits that the

compensation awarded by the Tribunal is just and

reasonable and same does not warrant any interference.

Hence, sought for dismissal of the appeals.

11. Heard the learned counsel for the parties.

12. On thoughtful consideration of the rival

submissions made by the learned counsel for the parties,

the following points arise for consideration are:

"1. Whether the claimant has made out a case for enhancement of compensation?

2. Whether the owner of the offending vehicle has made out a case for interference"?

13. The accident in question involving motorcycle

and the offending Lorry resulting in injuries sustained by

the claimant is not in dispute. The claimant has claimed

that he was earning Rs.5,00,000/- per annum from

business of Adath, real estate and other allied business

and has produced Ex.P19, income tax returns for the years

2012-2013, 2013-14 and 2014-15. As per the income tax

returns for the year 2012-13 the annual income of the

claimant is shown as Rs.2,83,706/-, for the year 2013-14

it is shown as Rs.3,18,436/- and for the year 2014-15 it is

shown as Rs.4,22.050/-. As per the Disability Certificate

at Ex.P14, PW.2/the Doctor has assessed the disability of

the claimant at 29%. The details of the disability are as

under:

"1. Restriction of right knee movements :10%

2. Difficulty to walk, climb stairs : 10%

3. Difficulty to squat and sit cross legs : 10%

4. Paint (mild) : 03% X-ray PBH-Evidence of ld fracture of inferior remus of right public bone.

X-ray left leg AP/Lat -

Evidence of old fracture of middle third shat of left tibia with internal fixation rod and screws seen in situ.

Total disability by combining formula is 29%".

The Tribunal, taking into consideration the aforesaid

material evidence more particularly income tax returns has

averred at an annual income of the injured at

Rs.4,00,000/-. In the circumstances of the matter and

also in view of the income tax returns produced at Ex.P19,

Rs.4,00,000/- annual income taken by the Tribunal is

maintained and the same does not warrant any

interference. As per Wound Certificate-Ex.P6, the claimant

has sustained the following injuries:

1. Fracture of inferior ramus of right pubic bone;

2. fracture of middle third shaft of left tibia.

14. The Tribunal, considering the nature of injuries

sustained by the claimant, has rightly taken the disability

of claimant at 10%. Considering the nature of business

being carried out by the claimant and the income which is

already been assessed by the Tribunal, this Court is of the

considered view that the same does not warrant any

interference and same is maintained.

15. However, with regard to the compensation

awarded under the heads of pain and sufferings, food and

extra nourishment and medical attendant, conveyance and

future amenities, a global compensation of Rs.70,000/- is

awarded. Thus, in addition to Rs.7,24,000/- awarded by

the Tribunal, the claimant is held entitled for an additional

amount of Rs.70,000/- as a global compensation with

interest at 6% p.a. Hence, point no.1 raised is answered

accordingly.

16. As regards to the liability, the Tribunal has

exonerated the insurance company from payment of

compensation on the premise that the driver of the

offending vehicle did not have valid and effective driving

licence and was holding 'light motor vehicle', it was not

sufficient to drive vehicle of this category. However, in

light of the judgment of the Apex Court in the case of

MUKUND DEWANGAN (supra), issue of not holding a

valid driving licence may not survive for consideration. The

relevant paragraph-60.4 of the said judgment is extracted

hereunder:

"60.4. The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain

driving licence for transport vehicle of class of "light motor vehicle" continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."

17. In view of the aforesaid settled position of law,

there is no requirement of obtaining separate endorsement

on the licence. Thus, the contention that the driver of the

offending vehicle in question not having valid driving

licence cannot be countenanced. Hence, point No.2

raised is answered accordingly and following order is

passed:

ORDER

i. The appeal filed by the claimant/appellant in MFA No.200268/2019 and the appeal filed by the owner/appellant in MFA No.201848/2018 are allowed-in-part.

ii. The judgment and award passed by the Tribunal in MVC No.246/2016 is modified.

iii. The claimant/appellant is held entitled for a global compensation of Rs.70,000/- in addition to what has been awarded by the Tribunal.

iv. The insurance company is directed to deposit the compensation amount within a period eight weeks from the date of receipt of certified copy of this judgment.