Karnataka High Court
R B Suryaprakash S/O Late ... vs Tuljappa @ Ganesh S/O Nagosa ... on 13 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 13 T H DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.22179/2010(MV)
BETWEEN:
SHRI.R.B.SURYAPRAKASH ,
S/O LAT E R.S .BHA SKAR RAO,
AGE: 59 YEARS , OCC: RETIRED
ASST. MANAGER
OF INDIAN OVERS EAS BANK
R/O:NO.207/A ,14 T H CROSS,
6TH MAIN, N.S .PA LYA, BTM II STAGE,
BANGALORE-560 076,
(OWNER OF S COOTER NO CAN 7940)
... APPELLANT
(BY SRI.ARUN L. N EELOPANT & SRI .S HRIHARSH
A. NEELOPANT , AD VOCATES)
AND:
1 . TULJAPPA @ GAN ESH
S/O NAGOSA MEHARWADA,
AGE: 36 YEARS , OCC:BUSINESS ,
R/O:NEAR INDIAN BANK,
SRI RAM TEMPLE COMPOUND,
NEAR ASHOK CIRCLE,
RANEBENNUR, DIS T:HAVERI.
2 . THE ORI ENTAL INS URANCE CO.LTD,
NO.3061/A, ENKAY COM PLEX,
KESHWAPUR, HUBLI-23,
REPT.BY ITS DIVIS IONAL MANAGER,
(INSURANCE POLI CY NO.2003/ 7477)
2
3 . VINOD M.PATEL,
AGE:MAJOR, OCC: BUSINESS,
R/O:NO.4/ 4, 1ST F LOOR,
WELCOME PLAZA , P.R.LAN E,
S.P.ROAD, 3 R D CROSS,
BANGALORE-560 002,
(OWNER OF V EHICLE N O.KA- 01/R- 3137) .
4 . THE NATIONAL IN SURANCE
COMPANY LTD,
SUJATA COMPLEX, P.B.ROAD , HUBA LLI
ENKAY COMPLEX, KESHWAPUR,
HUBLI- 23, REPTD.BY ITS
DIVISIONAL MANA GER
(INSURER OF POLI CY NO.
602100/2002/ 6215884)
... RES PONDENTS
(BY SRI. SRINIVA S NADAMANI, ADV OCATE FOR
SRI.M.A .KARIGAN NAVAR, ADV OCATE FOR R1;
SRI.N.R.KUPPELLUR, ADV OCATE FOR R2;
SRI.S.K .KAYAKAMATH, ADV OCATE F OR SRI .M.Y .KATTAGI,
ADVOCATE FOR R4;
R3-NOTICE HELD SUFFICIENT.)
THIS MISC. FIRS T APPEAL IS FILED UNDER SECTI ON
173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET
ASIDE THE JUDGM ENT AND AWARD DATED 01.03.2010 IN MVC
No. 648/2003 PAS SED BY THE ADD L. CIVIL JUDGE ( SR. DN .)
AND MACT, RANEBENNUR AS A GAIN ST THE A PPELLAN T IN THE
INTEREST OF JUST ICE.
THIS APPEAL COM ING ON FOR FINA L HEARING THIS DAY,
THE COURT , D ELIV ERED THE F OLLOW ING:
3
JUDGMENT
Challenging judgment and award dated 01.03.2010
passed by Addl. Civil Judge (Sn.Dn.) & AMACT,
Ranebennur (for short, 'the Tribunal') in MVC
No.648/2003, this appeal is filed by appellant-owner.
2. Brief facts giving rise to this appeal are that on
in an accident that occurred on 20.01.2003 at about 6
p.m., claimant - Tuljappa, pillion rider on motorcycle
bearing registration No.KA-01/R-3137 sustained grievous
injuries when motorcycle met with accident with a scooter
bearing registration No.CAN 7940, due to rash and
negligent driving by it's driver. Despite taking treatment,
he could not recover fully. Claiming compensation for
same, he filed claim petition against owner and insurer.
3. On service of notice, owner entered appearance
and filed objections denying accident and also opposing
claim petition as being exorbitant. It is held that driver
was having valid driving licence. Respondent No.2-insurer
specifically stated that as on date of accident, scooter was
not insured and insurance policy was issued after accident
commencing from 22.01.2003 to 21.01.2004. Respondent
No.4 denied insuring scooter.
4. Based on pleadings, Tribunal framed following
issues:
1) Whether pe titio ner pro ves that on
20.01.2003 at about 6 p.m on B.G.Road
opposite to Jalbhavan, Bangalore accident
was occurred due to rash and negligent
riding of the scooters be aring re gistration
No.CAN 7940 and KA-01/R-3137 by
respective ride rs?
2) Whether petitio ne r furthe r pro ves that he
was a pillion rider on the scoote r bearing
No.KA-01 R- 3137 and sustaine d grie vous
injuries in the said accide nt and became
permanently disable d?
3) Whether the responde nt no .1 proves that
accident was occurred so le ly due to rash and
negligent riding of the scoo te r bearing
no.KA-01/R- 3137 by responde nt- 3?
4) Whether petitione r pro ves that the scooter
bearing No.CAN- 8940 was insured with
respondent no .2?
5) Whether respo ndent no .4 pro ves that the
respondent no .3 was not having valid and
effective driving licence as on the date of
accident?
6) Whether pe titio ner is entitled fo r
compensation? I f so, what is the quantum
and from whom.
7) What order or Award?
ADDITIONAL ISSUE:
1. Whe the r, respondent no.2 proves that the
respondent no .1 was not insured with
respondent no .2 and there is no coverage of
insurance po licy as on the date of accident.
Hence, it is not liable to pay compe nsatio n?
5. Thereafter, claimant examined himself as PW.1
and Dr.Manoj Sahukar as PW.2. Exhibits P1 to P56 were
marked. On behalf of respondent, one witness was
examined as RW1 and Exhibits R1 to R4 are marked.
6. On consideration, Tribunal answered issue
no.1,2,4 and additional issue in the affirmative. Issue
nos.3 and 5 in negative. Issue no.6 partly in affirmative
and issue no.7 by allowing claim petition in part awarding
compensation of Rs.3,02,500-00 to claimant with interest
at 6% per annum and directing respondent no.1-owner of
the scooter to liable to pay the same. Aggrieved by
award, owner of scooter is in appeal.
7. Challenge is mainly on quantum. The appellant
has also challenged the award on liability and
apportionment of contributory negligence.
8. Sri. Srinivas Nadamani, learned counsel for
respondent submits that challenge to award on liability
would be short-lived. He would elaborate said submission by
adding that accident occurred on 20.1.2003 at 6.00 p.m. Tribunal
has observed that insurance policy issued to offending vehicle
namely scooter bearing registration no.CAN/7940 was valid from
22.1.2003 to 21.1.2004. A copy of the policy produced along with
application would corroborate the same, as also the pleadings of
respondent no.2 insurer in its additional objections. Appellant has
not produced insurance policy copy valid as on the date of accident.
9. As regards contributory negligence, on perusal of Ex.P.5
- charge sheet and MVI report Ex.P.6 and spot sketch Ex.P.7,
tribunal held that accident occurred due to rash and negligent riding
of scooter and no rebuttal evidence was led by appellant.
10. Insofar as quantum of compensation, it was submitted
that claimant had sustained fracture of left tibia, fracture of condyle
of left tibia and fracture of radius, for which tribunal awarded a total
compensation of Rs.3,02,500/-. It was submitted that claimant had
examined Dr.Manoj Sawkar as PW.2, who had assessed disability of
40%. But tribunal had considered it at 20% and awarded
compensation. Therefore there was no scope for interference on
quantum.
11. Heard learned counsel for respondents and perused
impugned judgment, award and record.
12. From the above, occurrence of accident, claimant
sustaining injuries therein is not in dispute. Tribunal has held that
accident occurred due to rash and negligent riding of scooter by its
rider. It held that as on the date of accident, there was no
insurance policy issued to scooter and after determining age of
claimant at 36 years, occupation as business, monthly income as
Rs.6,000/- and loss of earning capacity at 20%, awarded
Rs.2,16,000/- after applying multiplier of '15' towards loss of future
earning capacity. Owner of scooter is in appeal challenging the
award. Therefore, points that arise for consideration in this appeal
are:
i) Whether tribunal was justified in holding entire
negligence for causing accident on rider of
scooter?
ii) Whether tribunal was justified in dismissing claim
petition against respondent no.2 insurer?
iii) Whether compensation awarded by tribunal calls
for reduction as sought for?
Point no.1:
13. In order to substantiate claimant's case that accident
was caused due to rash and negligent riding of scooter, claimant
produced FIR, complaint, spot mahazar, charge sheet, MVI report,
hand sketch of accident spot marked as Exs.P.1 to P.3, P.5 to P.7
respectively. On perusal of Ex.P.1 and P.2, it is seen that complaint
is registered against rider of scooter. Police after independent
investigation filed charge sheet against rider of scooter. Even
location of accident spot in hand sketch at Ex.P.7, negligence of
rider of scooter would be justified. Therefore there is no scope for
interference. Hence point no.1 is answered in the affirmative.
Point no.2:
14. Second respondent - insurer of scooter has very clearly
stated in its objection that as on date of accident i.e., 20.1.2003,
no insurance policy was issued to offending vehicle and that
insurance policy issued commenced from 22.1.2003 to 21.1.2004.
Neither claimant nor appellant herein have produced copy of
insurance policy valid as on date of accident. In view of the same,
tribunal would be fully justified in discharging liability of insurer and
fastening it upon owner. Point no.2 is answered against the
appellant.
Point no.3:
15. Insofar a quantum of compensation, in order to
establish injuries, disability and loss of earning capacity, claimant
has produced wound certificate, consulting slip, disability certificate,
x-ray films, medical bills, prescriptions, photographs, etc., marked
as Exs.P.4, 8 to 57 respectively. From Ex.P.4, it is seen that
claimant has sustained fracture of left tibia and fracture of condyle
of left tibia and fracture of radius. Ex.P.9 disability certificate issued
by Dr.Manoj Sawkar corroborates the same. On examination of
claimant, PW.2 Dr.Manoj Sawkar has assessed disability of 40% to
left lower limb. In his deposition he has detailed the disability i.e.,
loss of flexion and extension and loss of muscle power in the limb.
Shortening of left lower limb by 0.5 cms is also noted. Claimant has
stated that he was a 'partner' in a partnership firm. Nature of
business of partnership firm and how disability sustained would
affect claimant in his occupation has not been detailed. In the
absence of such assessment, determination of loss of earning by
tribunal at 20% would be on higher side. It would be just and
proper to consider loss of earning capacity at 15%.
16. Tribunal has determined income of claimant from
partnership business at Rs.6,000/-. Accident occurred during the
year 2003. As per norms adopted by Karnataka State Legal
Services Authority for settlement of cases before Lok Adalath,
notional monthly income for an ordinary coolie for the said period is
Rs.3,250/-. Therefore determination of monthly income by the
tribunal would not call for interference. Claimant was aged about 36
years, multiplier applicable would be '15'. Thus, future loss of
income would be Rs.1,62,000/- as against Rs.2,16,000/- awarded
by tribunal. There is reduction of Rs.54,000/-.
17. Tribunal has awarded a sum of Rs.45,000/- towards
pain and suffering. As claimant has sustained 3 fractures, the award
under this head would be justified. Tribunal has also awarded a sum
of Rs.5,000/- towards attendant and other incidental charges which
cannot be stated to be excessive. Claimant has produced medical
bills for Rs.9,513/-. Tribunal has awarded Rs.10,000/- towards
medical expenses which is just and proper and there is no scope for
reduction herein.
18. Considering inpatient treatment period of ten days,
tribunal awarded Rs.1,500/- towards loss of income during laid up
period which cannot be said to be excessive or unjustified. PW.2
stated that claimant had sustained disability of 40% to left lower
limb. PW.2 has also narrated the loss of fluction and extention and
also loss of muscle power to the limb. Therefore, award of
Rs.25,000/- towards loss of amenities would be just and proper.
19. Thus, claimant would be entitled to total compensation
of Rs.2,48,500/- as against Rs.3,02,500/- awarded by tribunal.
Point no.3 is answered partly in affirmative.
20. In the result, I pass following:
ORDER
i) Appeal is allowed in part.
ii) Impugned judgment and award is modified
reducing compensation from Rs.3,02,500/- to
Rs.2,48,500/-.
iii) Amount in deposit is ordered to be transmitted to
tribunal for payment.
iv) Appellant to deposit balance compensation
before tribunal within three months from the
date of receipt of a copy of this order.
Sd/-
JUDGE
H MB-
Mrk/.
