Smt.Pratibha W/O Mahesh ... vs Shri.Anil S/O Narayann Vyahare
2021 Latest Caselaw 5990 Kant

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.100579/2017
                             C/W
                 M.F.A. No.100578/2017
IN M.F.A .No .100579/2017

BETWEEN:

SMT.PRATIBHA W/O MAHESH SHIND OLKAR ,
AGE: 27 YEARS , OCC: BUSINESS ,
R/O MARAGAL GA LLI , K AKATI, BELAGAVI .
                                           ... APPELLANT
(BY SRI. ASHOK A .NAIK, ADVOCAT E)

AND

1 .   SHRI. ANI L S/ O N ARAYAN VYAHARE,
      AGE: 52 YEARS ,
      OCC: TRANSPORT BUSINESS,
      R/O: SATAV COLONY,
      MADHA ROAD , KURDUWADI,
      TALUKA: MADHA, DIST: SOLA PUR,
      MAHARASHTRA STATE.

2 .   THE AUTHORISED SIGNATORY
      SHRI. RAM GEN ERAL INSURAN CE CO. LTD.,
      E-8, RIICO, INDUS TRIAL AREA ,
      SEETAPUR, JAIPUR,
      RAJASTHAN STATE-302022.
                                       ... RES PONDENTS
(BY Ms.ANUSHA S ANJANI, ADVOCAT E FOR
 SRI. S.K .KAYAKAMATH, ADVOCATE FOR R2;
 NOTICE TO R1 SERVED)
                              2




     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING T O CALL
FOR THE RECORD S HEAR T HE PARTI ES AND MAY KINDLY BE
MODIFIED AND SET ASIDE THE JUDGMENT AND AWARD
DATED 18.10.2016 IN MVC No.2203/2014, PASSED BY THE
VI ADDL.DISTRICT AND SESSIONS JUDGE AND ADDL.
M.A.C.T., BELAGA VI, BY ALLOWIN G THIS APPEAL WITH
COSTS, IN THE ENDS OF JUSTICE AN D EQUITY.

IN M.F.A . No.100578/ 2017

BETWEEN

SHRI MAHESH S/O GOPAL SHIND OLK AR,
AGE: 34 YEARS , OCC: BUSINESS ,
R/O. MARAGAL GA LLI,
KAKTI, BELAGAVI- 590019.
                                          ... APPELLANT
(BY SRI. ASHOK A .NAIK, ADVOCAT E)

AND

1 .   SHRI. ANI L S/ O N ARAYAN VYAHARE,
      AGE: 52 YEARS , OCC: TRANS PORT BUSINESS,
      R/O: SATAV COLONY, MADHA ROAD,
      KURDUWADI, TALUKA: MADHA,
      DIST: SOLA PUR, M AHARASHTRA STA TE.

2 .  THE AUTHORISED SIGNATORY
     SHRI. RAM GEN ERAL INSURAN CE CO.LTD .,
     E-8, RIICO, INDUS TRIAL AREA ,
     SEETAPUR, JAIPUR,
     RAJASTHAN STATE-302022.
                                       ... RES PONDENTS
(BY Ms.ANUSHA S ANJAMI, ADVOCAT E FOR
SRI. S .K.KAYAKAMATH, ADV OCATE F OR R2;
NOTICE T O R1 S ERVED)

     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING T O CALL
FOR THE RECORD S HEAR T HE PARTI ES AND MAY KINDLY BE
MODIFIED AND SET ASIDE THE JUDGMENT AND AWARD
                                  3




DATED 18.10.2016 IN MVC No.2202/2014, PASSED BY THE
VI ADDL, DISTRI CT AND SESSIONS JUDGE AND ADDL,
M.A.C.T., BELAGA VI, BY ALLOWIN G THIS APPEAL WITH
COST IN THE END S OF JUSTICE AND EQUITY.

     THESE APPEA LS COMING ON FOR ADMISSION THIS
DAY, THE COURT , DELIVERED THE F OLLOWING:

                             JUDGMENT

Challenging the judgment and award dated

18.10.2016 passed by VI Addl.District and Sessions

Judge and Addl.M.A.C.T., Belagavi (for short,

'tribunal') in MVC Nos.2202/2014 and 2203/2014,

these appeals are filed challenging finding of tribunal

regarding apportionment of negligence, discharging

liability of insurer and also seeking enhancement of

compensation.

2. Though these appeals listed for admission,

with consent of learned counsel for parties, they are

taken up for final disposal.

3. Sri Ashok A.Naik, learned counsel for

appellants-claimants submitted that tribunal firstly

erred in discharging liability of insurer on the ground

that vehicle in question was not having permit to

operate within geographical limits of Karnataka and as

accident occurred within Karnataka, insurer was not

liable. Relying upon decision of the Hon'ble Supreme

Court in Rani and others V/s National Insurance

Company Limited and others reported in (2018)

SCCR 858, learned counsel submitted that the Hon'ble

Supreme Court in said case under similar

circumstances directed insurer to pay compensation to

claimants with liberty to recover same from insured

and sought for similar orders. Insofar as contributory

negligence, learned counsel submitted that on the date

of accident along with claimants, their two year old

child was also traveling. Therefore, there was no

serious violation of seating capacity of vehicle. It was

further submitted that there was no evidence to

establish that due to carrying third passenger on two

wheeler, the accident had occurred. Therefore, learned

counsel sought for discharging apportionment of

liability of 25% on rider. Insofar as enhancement, it

was submitted that claimant was a 35 year old

supervisor in sweet mart run by his father, and was

earning Rs.2,00,000/- p.a. from sweet mart business

and Rs.25,000/- per month from milk vending. It was

further submitted that tribunal considered his monthly

income at Rs.10,000/- per month, but tribunal did not

award any compensation towards future loss of income.

4. On the other hand, Ms.Anusha, advocate

appearing for Sri S.K.Kayakamath, learned counsel for

respondent-insurer supported the award and opposed

claimants' appeals. It was submitted that insurer had

infact filed I.A.No.5 before tribunal seeking for

direction to first respondent-owner to produce permit

issued to the vehicle, but despite passing of orders on

the said application, respondent no.1-owner did not

produce permit. Therefore, tribunal was justified in

discharging liability of insurer by referring to decision

of Hon'ble Supreme Court in National Insurance

Company Limited V/s Challa Bharathamma and

others reported in 2004 ACJ 2094. Learned counsel

further submitted that as carrying capacity of two

wheeler only 1+1, but admittedly three persons were

traveling on two wheeler, but there was violation of

provisions of Motor Vehicles Act and therefore on said

ground, tribunal was justified in apportioning

contributory negligence against claimants. On quantum

of compensation, learned counsel submitted that

tribunal had without adequate evidence awarded

Rs.30,000/- towards future medical expenses and also

a sum of Rs.1,82,000/- towards medical expenses

though medical bills for a sum of Rs.1,49,015/- only

were filed. Therefore, learned counsel submitted that

scope for enhancement, if any, would be offset by

reduction under these heads. On the said grounds,

learned counsel sought for dismissal of appeals.

5. From above submission, occurrence of

accident due to rash and negligent driving of insured

vehicle and claiming sustaining injuries therein is not

in dispute. Tribunal determined age of claimant-Mahesh

at 35 years and his occupation as supervisor in sweet

mart. It also considered his monthly income as

Rs.10,000/- which are not in dispute in these appeals.

Claimants are in appeals seeking enhancement of

compensation. Therefore, points that arise for

consideration in these appeals are:

1. Whether tribunal was justified in discharging the insurer from its liability?

     2.         Whether       tribunal     was       justified     in
                apportioning            25%          contributory
                negligence against claimant?

     3.         Whether       claimants        are   entitled     for
                enhancement         of     compensation            as
                sought for?

6. Point no.1 in both cases: The insured vehicle

was a goods lorry. Insurance policy does not specify

territorial limit. Even if for the sake of argument, it be

accepted that vehicle was not having a permit to

operate within the limits of Karnataka State, as held by

the Hon'ble Supreme Court in Rani and others

(supra), the insurer would be first required to pay

compensation to the claimants with liberty to recover

same from insured. In view of law laid down by the

Hon'ble Supreme Court, finding of tribunal discharging

liability of insurer would not be justified. Point no.1 is

answered partly in the affirmative.

7. Point no.2 in both cases: It is admitted that

on the date of accident, claimants namely Mahesh and

his wife-Pratibha were accompanied by their two year

old son and there is nothing in the evidence to indicate

or establish that accident occurred due to presence of

third person on two wheeler. The same might had best

be an offence attracting fine and not discharge of

liability of insurer. Therefore, tribunal would not be

justified in apportioning 25% contributory negligence

against rider of two wheeler. Insofar as quantum of

compensation, claimant-Mahesh sustained fracture of

right leg, post wall and roof of right aceta-bulum and

communited fracture of femur with posterior

dislocation of femoral head. Claimant took inpatient

treatment for a period of 9+3 days i.e. 12 days.

Tribunal awarded compensation as follows:

       1    Pain and suffering                           Rs.1,00,000/-

       2    Loss of future            happiness          Rs.1,50,000/-
            and amenities

       3    Incidental expenses                           Rs.28,000/-

       4    Medical expenses                             Rs.1,82,000/-

       5    Future medical expenses                       Rs.30,000/-

            Total                                        Rs.4,90,000/-

8. On perusal of same, award of Rs.1,00,000/-

towards pain and suffering would be more than

sufficient. Likewise in the case of award of

Rs.1,50,000/- towards loss of amenities, Rs.28,000/-

towards food, diet and other incidental charges, though

claimant took inpatient treatment for a period of 12

days only. Tribunal further awarded a sum of

Rs.1,82,000/- towards medical bills despite claimant

producing for Rs.1,49,015/-. Apart from above,

tribunal awarded a sum of Rs.30,000/- towards future

medical expenses. Though this case is fit for award of

compensation towards loss of income during laid up

period, but excess award under other heads would

clearly offset the same. Further tribunal has taken note

of fact that sweet mart shop licence was renewed from

time to time and that claimant had not lost business

income and therefore it did not award compensation

towards loss of earning capacity. On an overall

consideration for fracture of right femur, total

compensation of Rs.4,90,000/- appears just and proper

and cannot be stated to be either meager or grossly

inadequate. Thus, there is no scope for enhancement

on quantum.

9. Point no.3: Claimant-Smt.Pratibha sustained

fracture of wall of right maxillary sinus and fracture of

nasal bone. As on date of accident, she was 25 years

of age. She took inpatient treatment for a period of

two days as per Ex.P17-medical bills, claimant

produced medical bills for a sum of Rs.10,891/-.

Tribunal has awarded lump sum compensation of

Rs.20,000/-, which would be grossly inadequate. As

claimant has sustained two fractures, it would be

appropriate to award a sum of Rs.30,000/- towards

pain and suffering, Rs.15,000/- towards medical and

other incidental expenses and nominal sum of

Rs.15,000/- towards disfigurement and loss of

amenities. In all, claimant would be entitled to a total

compensation of Rs.60,000/-. Point no.3 answered

partly in the affirmative.

10. In the result, I pass the following:

ORDER

i. MFA No.100579/2017 is allowed in part. The compensation of Rs.4,90,000/- assessed by tribunal is sustained. The insurer is liable to pay same with interest at 6% per annum from the date of petition till deposit.

ii. MFA No.100578/2017 is allowed in part. Compensation enhanced from Rs.15,000/- to Rs.60,000/- with interest at the rate of 6% per annum

from the date of petition till deposit.

iii. After paying compensation to claimants, insurer would be at liberty to recover same from insured.

      iv.    Entire     enhanced            amount          in        MFA
             No.100578/2017            is    ordered             to    be
             released    in   favour         of        claimant        on
             proper identification.

      v.     Insurer     is      directed              to    deposit
             enhanced      compensation                 within         six

weeks from date of receipt of certified copy of this order.

Sd/-

JUDGE

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