Karnataka High Court
Sri Hanamanth S/O Ramanna Dandin vs Sri Mutteppa S/O Vittal Nari on 10 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
M.F.A.NO.25306/2010 (MV)
C/W.
M.F.A.NO.25342/2010 (MV)
IN MFA NO. 25306/2010
BETWEEN:
HANAMANTH S/O RAMANNA DANDIN
AGE: 48 YEARS, OCC: NOW NIL,
R/O: GONDI (MUNAVALLI),
TQ: SAUNDATTI, DIST: BELAGAVI.
...APPELLANT.
(BY SHRI H M DHARIGOND, ADVOCATE.)
AND:
1. MUTTEPPA S/O VITTAL NARI,
AGE: MAJOR, OCC: BUSINESS,
R/O: MABANUR POST MADLUR,
TQ: SAUNDATTI, DIST: BELAGAVI.
2. THE ORIENTAL INSURANCE
COMPANY LTD.,
DIVISIONAL OFFICE, 5TH FLOOR,
SHANBHAG CHAMBERS,
KIRLOSKAR ROAD, BELAGAVI,
DIST: BELAGAVI.
...RESPONDENTS.
(BY SHRI B.M.PATIL, ADVOCATE, SMT. SHARMILA M PATIL,
ADVOCATE, FOR R.2;
R.1 - NOTICE SERVED.)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 28.08.2010, PASSED IN
MVC NO.744/2007, ON THE FILE OF THE FAST TRACK COURT &
ADDITIONAL MACT, SAUNDATTI, AND TO AWARD COMPENSATION AS
PRAYED FOR, ETC.,.
IN MFA NO.25342/2010
BETWEEN:
SRI HANAMANTH S/O RAMANNA DANDIN.
AGE: 48 YEARS, OCC: NOW NIL
R/O. GONDI (MUNAVALI),
TQ: SAUNDATTI, DIST: BELAGAVI
...APPELLANT.
(BY SHRI H M DHARIGOND, ADVOCATE.)
AND:
1. MUTTEPPA S/O VITTAL NARI
AGE: MAJOR, OCC: BUSINESS,
R/O.MABANUR, POST: MADLUR,
TQ: SAUNDATTI, DIST: BELAGAVI
2. THE ORIENTAL INSURANCE CO.LTD.,
DIVISIONAL OFFICE, 5TH FLOOR
SHANBHAG CHAMBERS,
KIRLOSKAR ROAD, BELAGAVI,
DIST: BELAGAVI
...RESPONDENTS.
(BY SHRI B.M.PATIL, ADVOCATE, SMT. SHARMILA M PATIL,
ADVOCATE, FOR R.2;
R.1 - NOTICE SERVED.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 28.8.2010, PASSED IN
MVC NO.743/2007 ON THE FILE OF THE FAST TRACK COURT &
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, SAUNDATTI, AND
TO AWARD COMPENSATION AS PRAYED FOR, ETC.,.
3
THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and award dated 28.8.2010, passed
by Fast Track Court and Addl. MACT, Saundatti, in MVC
Nos.744/2007 and 743/2007, respectively, these appeals are
filed.
2. Shri H.M.Dharigond, learned counsel for claimants/
appellants submitted that in an accident that occurred on
12.11.2006 when claimant Hanamant Ramanna Dandin was
riding his Bajaj M80 motorcycle and a splendor plus motorcycle
bearing registration no.KA-24/J-37 due to rash and negligent
riding by its rider, Hanamant sustained grievous injuries. His
vehicle was also damaged. Claiming compensation for the same,
he filed two separate claim petitions against owner, insurer of
splendor plus motorcycle.
3. On contest, tribunal held that accident occurred due
to rash and negligent riding of splendor plus motorcycle. On
consideration of evidence led by claimant, it assessed
compensation of Rs.82,660/- in respect of injuries sustained by
claimant and Rs.7,900/- towards damages to his vehicle.
However tribunal discharged liability of insurer on the ground
that as per Ex.P.16 charge sheet, rider of offending vehicle was
one Mallappa Vadakannavar, whereas driving licence produced
by claimants as Ex.P.11 and respondent insurer as per Ex.R.2
stood in the name of Balappa S/o.Balappa Vadakannavar and
therefore rider of insured vehicle was not having driving licence
on date of accident. Challenging said award, claimants are in
appeal.
4. The appeal ground of challenge is by relying upon
decision of Full Bench of this Court in New India India
Assurance Co. Ltd., Bijapur vs. Yallavva w/o.
Yamanappa Dharanakeri, reported in 2020 (2) AKR 484.
It was submitted that claimant was admittedly a third party and
this Court held that even if insurer is able to establish
fundamental breach of conditions under Section 149 of the Act,
insurer would still be liable to pay compensation to third parties
and thereafter to recover the same from insured after paying
compensation to claimants.
5. On quantum, it was submitted that though accident
occurred on 12.11.2006, tribunal considered notional monthly
income of claimant at Rs.6,000/-. Claimant was an agriculturist
who sustained fracture of lower end of right radius.
Dr.C.D.Kulkarni, Orthopedic Surgeon examined by claimant as
PW.2 assessed physical disability at 15% to right upper limb
which was assessed by tribunal at 5% towards functional
disability and awarded meager compensation. It was further
submitted that award of Rs.20,000/- towards pain and suffering,
Rs.10,000/- towards loss of amenities and Rs.3,000/- towards
loss of income during laid up period was also meager and
sought for enhancement.
6. On the other hand, learned counsel for insurer,
supported the award and opposed enhancement. It was
submitted that as per Ex.P.6 charge sheet, name of rider of
offending motorcycle was Mallappa Vadakannavar, whereas
driving licence produced by claimants as per Ex.P.24 stood in
the name of Balappa Balappa Vadakannavar. Therefore, tribunal
had rightly discharged liability of insurer.
7. From above submission, occurrence of accident due
to rash and negligent riding of insured vehicle by its rider and
claimant sustaining injuries therein and also damages to his
vehicle is not in dispute. Tribunal assessed compensation and
awarded the same but discharged liability of insurer. Claimant is
in appeal seeking for enhancement of compensation and also for
modification in respect of liability. Therefore, points that arise
for consideration in this appeal are:
i) Whether tribunal was justified in discharging
liability of insurer?
ii) Whether claimant is entitled to enhancement
of compensation as sought for?
Point no.1:
8. As per admitted facts, claimant is a third party to
contract of insurance. Accident occurred on account of rash and
negligent riding by rider of Splendour mtotrcycle As per Full
Bench decision of this Court in Yallavva's case (supra),
insurer cannot escape liability in case of third party claimants
unless it is a case of fraud or collusion between claimant and
insured. No such defence was taken by insurer. Therefore,
insurer would be liable to pay compensation to claimant with
liberty to recover the same from insured. To said extent finding
of tribunal requires interference. Point no.1 is answered partly in
the affirmative as above.
Point no.2:
In MFA No.25306/2010
9. Admittedly claimant is an agriculturist, aged 45
years. Though he has stated that his monthly income was
Rs.6,000/-, no evidence is led to establish the same. In the
absence of evidence, tribunal would be justified in taking it
notionally. But Notional income for the year 2006 as per norms
adopted by Karnataka State Legal Services Authority for
settlement of cases before Lok Adalath is Rs.3,750/-. Therefore,
tribunal would not be justified in taking it as Rs.3,000/-.
Claimant has sustained fracture of lower end of right radius
which is assessed by PW.2 doctor at 15% for the limb. Tribunal
has taken the same as 5% towards functional disability.
Considering the extent of disability assessed, loss of earning
capacity considered by tribunal is just and proper and does not
call for interference. The tribunal determined age of claimant as
48 years. Multiplier applicable would be '14'. Tribunal erred in
applying multiplier of '13'. Therefore, future loss of income
would be Rs.31,500/- (Rs. 3,750 x 5% x 12 x 14)
10. Tribunal has awarded a sum of Rs.20,000/- towards
pain and suffering which is inadequate. It would be just and
proper to award a sum of Rs.30,000/- towards pain and
suffering. PW.2 doctor has stated that there is malunion of
fracture. Therefore, award of Rs.10,000/- towards loss of
amenities would be inadequate. It would be just and proper to
award a sum of Rs.20,000/- towards the same.
11. Tribunal awarded Rs.3,000/- towards loss of income
during laid up period and Rs.3,000/- towards attendant and
other incidental charges apart from Rs.23,260/- towards
medical expenses which appear just and proper and no
enhancement is called for. In the result, claimant would be
entitled for total compensation of Rs.1,10,760/- as against
Rs.82,660/- awarded by tribunal.
In MFA No.25342/2010
12. This is a claim filed seeking compensation towards
damages to claimant's vehicle. In order to establish extent of
damages to vehicle, claimant has examined PW.3 mechanic who
repaired claimant's vehicle. PW.3 admitted receipt of Rs.1,735/-
towards repair charges. However tribunal has noted damages
mentioned in Motor Vehicle Inspector's report and awarded a
sum of Rs.7,900/-. As the award is by referring to available
material on record, unless the same is shown to be perverse,
there cannot be any interference. No such material is
forthcoming. Hence award towards damages is confirmed. Point
no.2 is answered partly in the affirmative as above.
13. In the result, I pass the following:
ORDER
i) Appeals in MFA No.25306/2010 and MFA
No.25342/2010 are allowed in part holding
respondent no.2 insurer liable to pay
compensation to claimant and with liberty to
recover the same from insured without
recourse to separate proceedings.
ii) In MVC No.744/2007 is modified enhancing
compensation to Rs.1,10,760/- as against
Rs.82,660/- awarded by tribunal.
iii) Judgment and award dated 28.8.2010 passed
by Fast Track Court and Addl. MACT,
Saundatti, in MVC No.743/2007 is confirmed.
iv) Insurer is directed to deposit the award
amount with interest within six weeks from
the date of receipt of a copy of this
judgment.
v) Claimants would be entitled for interest at the
rate of 6% p.a. on enhanced compensation
from the date of petition till its deposit.
vi) Since the enhancement is not substantial,
entire award amount is ordered to be
released.
vii) Transmit the records immediately after
drawing of the decree.
Sd/-
JUDGE
Mrk/-
