Dashgirsab S/O Hussainsab ... vs Goudappa S/O Balanagouda Patil
2021 Latest Caselaw 6159 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 15 T H DAY OF DECEMBER, 2021

                         BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


               M.F.A.No.25401/2012 (MV)

BETWEEN:

SRI. DASHGIRSAB,
S/O HUSSAINSAB DEVALLI ,
AGE: 38 YEARS , OCC: (N OW NIL) ,
R/O. KAMKAR ONI , SANGOLLI ,
TAL: BAILHONGA L-591102,
DIST: BELA GAVI.
                                          ... APPELLANT

(BY SRI. MADANMOHAN M.K HANNUR, ADV OCATE)

AND

1.    SRI. GOUDAPPA S/ O BA LANAGOUDA PATIL,
      AGE: MAJOR (CORRECT A GE N OT KN OWN),
      OCC: BUSINESS , R/O CHENNAMMA UPA-NAGAR,
      (OWNER OF TATA ACE V EHICLE BEA RING
      REGISTRATION N O.KA-24/5752)

2.    THE BRANCH MAN AGER,
      THE ORI ENTAL INS URANCE CO.LTD.,
      BRANCH OFFICE, BAILHONGA L
      MERCHANTS' CO-OP. BANK,
      SANGOLLI RAYANN A CIRCLE
      BAILHON GAL-591102,
      DISTRICT: BELA GAVI.
                                      ... RES PONDENTS
(BY Ms.ANUSHA , A DVOCATE FOR
 SRI. S.K .KAYAKAMATH, ADVOCATE FOR R2;
 NOTICE TO R1 DI SPENSED WITH)
                                2




     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 29.08.2012 PA SSED IN MVC
NO.199/ 2012 ON THE FILE OF THE PRESIDING OFFI CER,
FAST   TRACT   COURT   AND   MEMBER,   ADDL.    MACT,
BAILHON GAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND    SEEKING    ENHANCEMEN T    OF
COMPENSATION .

     THIS APPEAL COMING ON FOR ADMI SSION THIS DAY,
THE COURT , D ELIV ERED THE F OLLOW ING:

                            JUDGMENT

Challenging the judgment and award dated

29.08.2012 passed by Presiding Officer, Fast Track

Court and Addl.M.A.C.T., Bailhongal (for short,

'tribunal') in MVC No.199/2012, this appeal is filed by

the claimant seeking enhancement of compensation.

2. Though this appeal is listed for admission,

with consent of learned counsel for parties, it is taken

up for final disposal.

3. Brief facts as stated are that in an accident

that occurred on 22.05.2011, claimant-Dashgirsab

sustained injuries when a Tata ACE vehicle bearing

registration no.KA-24/5752 driven by its driver in a

rash and negligent manner dashed to bicycle on which

claimant was riding, resulting in fracture of medial

mallelus at right ankle and other injuries. Despite

taking treatment, claimant did not recover fully.

Claiming compensation for the same, he filed claim

petition under Section 166 of Motor Vehicles Act, 1988

(for short, 'M.V.Act') against owner and insurer of Tata

ACE vehicle.

4. On contest, tribunal held that accident

occurred due to rash and negligent driving of vehicle

by its driver and after determining age of claimant as

30 years, functional disability at 6% and monthly

income at Rs.3,000/- awarded a total compensation of

Rs.54,720/-. At the time of passing award, tribunal

discharged liability of insurer on the ground that

vehicle was carrying excess passengers and fastened

liability upon owner. Not satisfied with the quantum of

compensation and challenging finding on liability,

claimant is in appeal.

5. Sri Madanmohan M.Khannur, learned counsel

for appellant-claimant submitted that the insured

vehicle was a maxicab. He further submitted that

though claimant was a bicycle rider and not an inmate

of insured vehicle and was therefore a third party,

tribunal was not justified in exonerating insurer. On

quantum of compensation, learned counsel submitted

that accident took place in the year 2011. Though

claimant was an ice-cream seller aged 30 years and

earning monthly income of Rs.6,000/-, tribunal

considered his monthly income at Rs.3,000/- on

notional basis. It was further submitted that claimant

sustained fracture of medial mallelus which was mal-

united. As per Ex.P10 issued by Dr.R.S.Hittalamani,

claimant had sustained 20% disability to right lower

limb, but tribunal considered loss of earning capacity

at only 6% which was on lower side. Learned counsel

further submitted that compensation awarded towards

loss of amenities was also on lower side.

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

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

respondent no.2-insurer supported the award and

opposed enhancement.

7. From above submission, occurrence of

accident, claimant sustaining injuries therein, issuance

of insurance policy to offending vehicle and its validity

as on date of accident are not in dispute. Tribunal

assessed compensation and passed award. However, it

discharged liability of insurer. Claimant is in appeal

challenging said finding and seeking enhancement of

compensation. Therefore, points that arise for

consideration in this appeal are:

1. Whether tribunal was justified in discharging liability of insurer?

     2.      Whether      claimant             is   entitled     for
             enhancement            of     compensation           as
             sought for?

     8.   Point   no.1:       The       only    reason      assigned    by

tribunal for discharging liability of insurer is that the

insured vehicle was carrying excess passengers beyond

permitted seating capacity. However, it is not in

dispute that claimant was not passenger of vehicle, but

was riding bicycle to which the insured vehicle dashed.

As claimant is a third party, insurer cannot escape

liability. Hence, finding of tribunal discharging liability

of insurer would be contrary to law. It is set-aside.

Point no.1 answered in favour of appellant.

9. Point no.2: In order to establish his

occupation and income, claimant stated that he was

working as ice cream seller and earning Rs.6,000/- per

month. But no evidence was led to substantiate the

income. In the absence of specific evidence, tribunal

would be justified in taking notional income. But

accident occurred during the year 2011. Notional

income for the said period is Rs.6,000/-. Therefore,

tribunal would not be justified in taking it at

Rs.3,000/-. As per Ex.P10, PW2 assessed limb

disability to the extent of 20%. PW2 deposed about

physical disability sustained by claimant due to mal-

union of fracture. However, PW2 has not assessed

whole body disability or loss of earning capacity.

Considering nature of injuries and occupation, tribunal

assessed functional disability at 6% which appears just

and proper. No reason to interfere. Claimant was aged

30 years; multiplier applicable would be '17'. Thus,

future loss of income would be Rs.6,000 x 6% x 12 x

17 = Rs.73,440/-.

10. Tribunal has awarded a sum of Rs.10,000/-

towards pain and suffering. As claimant sustained

fracture, award would be inadequate. It would be

appropriate to award a sum of Rs.25,000/- towards

pain and suffering instead. As per evidence of PW2,

there is mal-union of fractured bone. Therefore award

of Rs.5,000/- towards loss of amenities would be

inadequate. It would be appropriate to award

Rs.20,000/- instead. Claimant has taken inpatient

treatment. Tribunal awarded a sum of Rs.3,000/-

towards food, nourishment, attendant and other

incidental charges. Considering the fact that claimant

has taken treatment in government hospital, same

does not call for any interference. Claimant has

sustained fracture, which normally take about 2 to 2 ½

months to heal. As claimant would have lost income for

said period, he is awarded a sum of Rs.15,000/-

towards loss of income during period of treatment.

Thus, claimant is held entitled to a total compensation

Rs.1,36,440/- as against Rs.54,720/- awarded by

tribunal. Thus, point no.2 is answered partly in the

affirmative.

11. In the result, I pass the following:

ORDER

i. Appeal is allowed in part. The compensation of Rs.1,36,440/- is enhanced as against Rs.54,720/-

                  awarded            by       the       Tribunal.       The
                  enhanced           compensation             shall    carry
                  interest at the rate of 6% per annum
                  from date of petition till deposit.





      ii.    The    insurer    is    directed        to   deposit
             enhanced       compensation             within    six
             weeks    from     the       date   of   receipt    of
             certified copy of this order.

iii. Entire enhanced amount to be released in favour of claimant on proper identification.

Sd/-

JUDGE

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