Karnataka High Court

Jayadeep S/O Kasaningh Nayak vs Rajakumar Sharama S/O Dayaram ... on 21 December, 2021

Bench: M.G.S.Kamal

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         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 21ST DAY OF DECEMBER, 2021

                       BEFORE

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

              MFA No.200084/2016 (MV)

BETWEEN

JAYADEEP S/O KASANINGH NAYAK
AGE:39 YE4ARS, OCC:BUSINESS &
PRIVATE SERVICE, R/O AINAPUR L.T.
TQ:& DIST:VIJAYAPUR-586101
                                        ...APPELLANT

(BY SRI BABU H. METAGUDDA, ADVOCATE)

AND

1.     RAJAKUMAR SHARAMA
       S/O DAYARAM SHARAMA
       AGE:44 YEARS, OCC:BUSINESS
       R/O B-376, GALLI NO.4, 3RD FLOOR,
       MAJLIS PARK, DELHI, NORTH WEST DELHI
       DELHI-110033

2.     THE MANAGER LEGAL
       L & T GENERAL INSURANCE CO.LTD.,
       L & T HOUSE, N.M.MARG, BALLARD
       ESTATE, MUMBAI-400001
                                      ...RESPONDENTS

(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
R1 SERVED)
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    THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING
THAT THIS HON BLE COURT MAY BE PLEASED TO CALL
FOR THE RECORDS IN MVC NO.1773/2012 ON THE FILE
OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.VII AT
VIJAYAPUR, ALLOW THIS APPEAL AND MODIFY THE
JUDGMENT AND AWARD DATED 24.03.2015 PASSED IN
MVC NO.1773/2012 BY MOTOR ACCIDENT CLAIMS
TRIBUNAL NO.VII AT VIJAYAPUR AND ENHANCING THE
COMPENSATION FROM `90,000/- WITH 6% INTEREST TO
`14,99,000/- WITH 12% INTEREST.

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

                          JUDGMENT

This appeal is filed under Section 173(1) of the Motor

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

against the judgment and award dated 24.03.2015 passed

in MVC No.1773/2012 on the file of the Motor Accident

Claims Tribunal No.VII, Vijayapur at Vijayapur (for short

'Tribunal').

2. Brief facts leading up to filing of the present

appeal are that, on 06.08.2012, the appellant/claimant

was riding a motorcycle bearing registration No.KA-28/Q-

9600 from Ainapur LT to Vijayapur. When he reached near

Sindagi bypass road at about 2.30 p.m., the driver of the

lorry bearing registration No.HR-55/L-7152 came in a rash

and negligent manner and dashed against the motorcycle

of the claimant. Due to the impact, the claimant sustained

fractures and undergone treatment by spending more than

`2,50,000/-.

3. Thereupon, the appellant/claimant filed a claim

petition under Section 166 of the M. V. Act claiming

compensation of `16,00,000/- on the premise that he is

carrying on business and a private service. Out of which,

he was earning `15,000/- per month. That due to the

accident, he suffered grievous injuries. That the said

accident was caused on account of rash and negligent

driving of the offending lorry by its driver. That he is

unable to carry out his regular work as he was doing

earlier. That respondent No.1 being the owner of the

offending lorry and respondent No.2 being the insurer of

the offending lorry, are jointly and severally liable to pay

the compensation.

4. Upon service of notice, respondent No.1 did

not appear and was placed exparte. Respondent No.2 -

insurance company filed its statement of objections

denying the petition averments and also mode and manner

of the accident. It was contended that the

appellant/claimant himself was not holding valid and

effective driving licence, therefore, respondent No.2 was

not liable to pay the compensation. If at all the Tribunal

comes to the conclusion that there was an accident on

account of negligent driving of the driver of the offending

lorry, the same has to be attributed on the rider of the

motorcycle. Hence, sought for dismissal of the claim

petition.

5. Based on the pleadings, the Tribunal framed

issues and recorded evidence. The claimant examined

himself as PW.1 and one Dr.Shantappa has been examined

as PW.2 and exhibited 13 documents as Exs.P1 to P13. On

behalf of the respondents, one Rajesh B. has been

examined as RW.1 and two documents have been marked

as Exs.R1 and R2.

6. On evaluation of the evidence, the Tribunal

held that the accident in question had occurred due to the

negligent act on the part of the driver of the offending

lorry resulting in injuries to the appellant/claimant and

consequently, held that the appellant/claimant is entitled

for total compensation of `90,000/- together with interest

at 6% per annum from the date of petition till its

realization. Further, the Tribunal while dealing with the

aspect of the liability held that since the driver of the

offending lorry was not holding valid and effective driving

lience and also in view of Ex.R2, a letter issued by the RTO

of Kampur (Metro), Betkuchi, Guwahati to the effect that

they have not issued such licence, came to the conclusion

that the driver of the offending lorry was not possessing

valid licence and thereby respondent No.1 had committed

breach of terms and conditions of the policy and hence,

directed respondent No.1 - owner of the lorry to pay the

compensation and exonerated the insurance company from

payment of compensation. Aggrieved by the same, the

appellant/claimant is before this Court.

7. Heard the learned counsel for the

appellant/claimant Sri Babu H. Metagudda and the learned

counsel for the respondent No.2 - insurance company

Smt. Preeti Patil Melkundi.

8. The learned counsel for the appellant/claimant

reiterating the grounds urged in the appeal memorandum

submits that the Tribunal has not taken into consideration

of the fact that the injured/claimant was carrying on

business and private service and earning `15,000/- per

month and in view of injuries sustained by him, he is

unable to carry out his regular activities, thereby, he has

suffered loss of income. He submits that the disability as

per Ex.P11 issued by PW.2 would establish that the

claimant/appellant has suffered 30% disability to the

whole body, which has not been taken into consideration

by the Tribunal. He further submits that the compensation

awarded under other heads is on the lower side and same

require enhancement.

9. On the other hand, the learned counsel for the

respondent No.2 - insurance company justifying the

judgment and order of the Tribunal submits that the

disability certificate issued by PW.2 cannot be taken into

consideration as the nature of injuries as reflected in the

wound certificate are not grievous in nature resulting in

any reduction of the ability to earn. Regarding the liability

is concerned, she submits that Ex.P2 has been accepted by

the Tribunal as proved and held that the driver of the

offending lorry did not have valid licence. Therefore, she

sought for dismissal of the appeal on these grounds.

10. On consideration of the submissions made by

the learned counsel for the parties, the only point that

arises for consideration is:

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

11. The accident in question and injuries suffered

by the claimant are not in dispute. As per Ex.P5-wound

certificate, the claimant has suffered the following injuries:

i. Abrasion over right side face. ii. Swelling tenderness right collar bone- crepitus present.

iii. Swelling tenderness over root of left thumb.

12. The disability certificate at Ex.P4 suggests that

PW.2 has assessed the disability at 30% to the whole body

taking into consideration the nature of injuries suffered by

the appellant/claimant. Looking to the nature of injuries

and the assessment of disability made at Ex.P4, the same

does not evince credibility with regard to the said injuries

effecting earning ability of the appellant/claimant. Though

it s contended that the appellant/claimant was carrying on

business and also private service activities and was

earning `15,000/- per month thereon, neither any

evidence with regard to the qualification of the claimant

nor the nature of business and private service being

carried on by him are placed on record. This was also

required to assess the nature of injuries relating to the

nature of business activities being carried on by the

appellant/claimant resulting, if any, in disability or

reduction of his earning capacity. In the absence of the

same and in the absence of any material evidence

produced by the appellant/claimant, the disability cannot

be taken into consideration while awarding the

compensation in the instant case. However, what needs to

be seen is the amount of compensation awarded by the

Tribunal under the other heads.

13. The Tribunal has awarded `20,000/- under the

heads of pain and suffering. Considering the nature of

injuries and age of the appellant/claimant, an additional

sum of `30,000/- is awarded by making it `50,000/-.

14. The Tribunal has awarded `5,000/- towards

attendant charges, extra diet and conveyance charges and

the same is held as just and proper.

15. The Tribunal has awarded `10,000/- during the

laid up period. Considering the nature of injuries, which

required healing period, an additional sum of `10,000/- is

awarded under the said head by making it `20,000/-.

16. The Tribunal has awarded `10,000/-under the

head of loss of amenities and an additional sum `20,000/-

is awarded under the said head by making it `30,000/-.

17. The Tribunal has awarded `45,000/- towards

medical expenses based on the medical bills produced by

the appellant/claimant. The same is maintained as just

and proper. Therefore, the compensation awarded by the

Tribunal deserves to be re-determined and re-calculated as

follows:

 Heads                By Tribunal      By this Court
Pain and suffering    `20,000/-        `50,000/-
Loss of earning       `10,000/-        `20,000/-
during   laid    up
period
Loss of amenities     `10,000/-        `30,000/-
Towards               `5000/-          `5,000/-
attendant,     diet
and    conveyance
charges
Towards Medical       `45,000/-        `45,000/-
bills
Total                 `90,000/-        `1,50,000/-

18. Thus, the claimant is entitled for enhanced

compensation of `1,50,000/- instead of `90,000/- awarded

by the Tribunal together with interest at 6% per annum

from the date of petition till its realization.

19. In view of the finding of the Tribunal with

regard to the driver of the offending lorry not having valid

and effective driving licence, in the light of the law laid

down by the Apex Court in the case of Pappu and others

vs. Vinod Kumar Lamba and another, reported in

(2018) 3 SCC 208, the insurance company is directed to

pay the aforesaid compensation of `1,50,000/- together

with interest at 6% per annum in the first instance and