Karnataka High Court
Hanumant S/O Pakeerappa ... vs Abdul Najirsab Sarvarsab on 21 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
M.F.A.NO.100035/2017 (MV)
BETWEEN:
HANUMANT S/O PAKEERAPPA NIDASHESHI
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O: CHIKKAMANNAPUR, TQ: KUSHTAGI,
DIST: KOPPAL.
...APPELLANT.
(BY SHRI S C HIREMATH, ADVOCATE.)
AND:
1. ABDUL NAJIRSAB SARVARSAB
AGE: 25 YEARS, R/O: MATALADINNI,
TQ: YELBURGA, DIST: KOPPAL.
2. SHARANAPPA
S/O VEERABHADRAPPA SABARAD
AGE: 39 YEARS,
R/O: BB NAGAR KUSHTAGI,
(OWNER OF LORRY BEARING
NO.KA-36/1711)
3. THE MANAGER
SRI RAM GENERAL INSURANCE CO.LTD.,
KOPPAL BRANCH, KOPPAL.
...RESPONDENTS.
(BY SHRI NAGARAJ C. KOLLOORI, ADVOCATE, FOR R.3;
R.1 AND R.2 - NOTICE SERVED.)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 28.11.2016 PASSED IN
MVC NO.49/2015 (OLD NO.557/2015) ON THE FILE OF THE SENIOR
CIVIL JUDGE AND MACT, KUSHTAGI, BY ENHANCING
COMPENSATION, ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by claimant challenging judgment and
award dated 28.11.2016, passed by Senior Civil Judge and
MACT, Kushtagi, in MVC No.49/2015 (Old no.557/2015),
seeking enhancement of compensation.
2. Brief facts as stated are that, in an accident that
occurred on 23.6.2009 claimant while walking by the side of
Kandakur-Kushtagi road, sustained grievous injuries when a
lorry bearing registration no.KA-36/1711 driven by its driver in
a rash and negligent manner dashed against him. Despite taking
treatment, he sustained physical disability. Claiming
compensation for the same, he filed claim petition under Section
166 of the Motor Vehicles Act, 1988, against owner and insurer
of the lorry. In the claim petition it was stated that at the time
of accident, he was 40 years of age, agriculturist earning
Rs.5,000/- per month from agriculture.
3. Claim petition was contested. After trial, tribunal
held that claimant had sustained injuries in the accident caused
due to rash and negligent driving by offending lorry. On
consideration of medical evidence placed on record by claimant,
tribunal assessed functional disability. It determined age of the
deceased as 40 years, occupation as agriculturist, monthly
income at Rs.4,000/- and disability at 14%, awarded
Rs.35,000/- towards future loss of income, and Rs.15,000/-
towards pain and suffering. In all a total compensation of
Rs.1,08,188/- with interest at 8% p.a. While passing impugned
award, tribunal exonerated insurer from liability on the ground
that despite respondent no.1 owner did not place driving licence
of driver on record. Challenging the said finding, claimant is in
appeal.
4. Shri S.C.Hiremath, learned counsel for appellant
submitted that insurer had not led any evidence to establish
that driver of offending lorry did not have driving licence. He
further submitted that driver of lorry Abdulnajirsab was holding
driving licence produced along with I.A.No.2/2021 for additional
evidence, which shows that as on date of accident he was
having valid and effective driving licence. It was further
submitted that claimant was earning Rs.6,000/- per month as
on date of accident, but tribunal considered his monthly income
at a meager sum of Rs.4,000/- and though Dr.H.Ramakrishna,
Orthopedic Surgeon examined as PW.2 assessed limb disability
at 40% and 20% to whole body, tribunal took it at 14% which
was meager. Learned counsel further submitted that even
compensation awarded under various heads was inadequate and
sought enhancement.
5. On the other hand, learned counsel for respondent
insurer supported the award and opposed claimant's appeal.
6. From above submissions, occurrence of accident and
claimant sustaining injuries therein due to rash and negligent
driving of lorry by its driver is not in dispute. Issuance of
insurance policy and its validity as on the date of accident is
also not in dispute. Tribunal absolved liability of insurer on the
ground that owner of vehicle did not establish that driver was
having valid licence. Claimant is seeking enhancement of
compensation. Therefore points that arise for consideration in
this appeal are:
i) Whether finding of tribunal regarding
discharging liability of insurer is justified?
ii) Whether claimant is entitled for enhancement
of compensation as sought for?
Point No.1:
7. Only reason assigned by tribunal for discharging
liability of insurer is that despite summons, respondent no.1
owner did not appear and produce documents. Insurer also did
not lead any evidence. Claimant produced charge sheet marked
as Ex.P.6. The same does not disclose that driver of offending
vehicle was charge sheeted for driving the vehicle without
driving licence. In the absence of any effort by insurer, tribunal
would not be justified in discharging liability of insurer,
especially on the ground of lack of driving licence. In any case
claimant has obtained certified copy of extract of driving licence
of driver and produced the same along with I.A.No.2/2021. On
perusal of the same, it is seen that driver was possessing
driving licence of LMV (NT) and HGV + HPV (Tr) w.e.f. 1.9.2008
up to 31.8.2011. The date of accident is 23.6.2009. Therefore,
as on the date of accident driver was having valid and effective
driving licence. Therefore insurer cannot escape liability. Finding
of tribunal is unsustainable. Accordingly point no.1 is answered
in the negative. It is held that insurer would be liable to pay
compensation.
Point no.2:
8. Though claimant has stated that he was 40 years of
age and agriculturist earning Rs.5,000/- per month, he has not
placed any specific evidence on record. In the absence of
specific evidence, tribunal would be justified in assessing
monthly income notionally. Notional income for the year 2009 is
Rs.5,000/-. Hence tribunal would not be justified in taking
notional income at Rs.4,000/-.
9. In order to establish disability, claimant has
produced wound certificate and disability card and disability
certificate marked as Exs.P.5, P.12 and P.13 respectively. In
addition, claimant has also examined Dr.H.Ramakrishna,
Orthopedic Surgeon. PW.2 deposed that claimant had sustained
fracture of right femur which was malunited and there were
implants. He deposed, claimant was having pain in his right
thigh. Based on the same he has assessed 40% disability to the
right thigh. In the cross-examination he admits that limb
disability is 30%. There are no specific measurement on
amenities lost such as fluction, loss of muscles, etc.,. Taking
note of the same, tribunal has rightly assessed functional
disability at 14%. There is no justification for interference with
the same. Multiplier applicable to the age of claimant would be
'15'. Thus future loss of income would be Rs.1,26,000/-.
10. Tribunal has awarded a sum of Rs.15,000/- towards
pain and suffering. As fracture is a major fracture, it would be
appropriate to award a sum of Rs.30,000/- towards pain and
suffering. Claimant has taken inpatient treatment for a period of
about 43 days. Tribunal has awarded Rs.9,000/- towards
attendant expenses, Rs.3,000/- towards conveyance,
Rs.6,000/- towards loss of income during laid up period. The
same would be grossly inadequate. Considering duration of
inpatient treatment, claimant is awarded Rs.25,000/- towards
food, nourishment and conveyance, attendant and other
incidental charges. Claimant would have lost income during
period of treatment and also recuperation. If the same is taken
for three months, it would be Rs.15,000/-.
11. Considering extent of disability assessed by PW.2, it
would be appropriate to award a sum of Rs.20,000/- towards
loss of amenities and a further sum of Rs.20,000/- for removal
of implants. Thus, claimant is held entitled for a total
compensation of Rs.2,36,000/-. Point no.2 is answered partly in
the affirmative as above.
12. In the result, I pass the following:
ORDER
i) Appeal is allowed in part.
ii) Judgment and award dated 28.11.2016,
passed by Senior Civil Judge and MACT,
Kushtagi, in MVC No.49/2015 (Old
no.557/2015), is modified.
iii) Claimant is held entitled for a compensation
of Rs.2,36,000/- with interest at the rate of
6% p.a. from the date of petition till the date
of deposit as against Rs.1,08,188/- awarded
by the tribunal.
iv) Respondent no.3 insurer is held liable to pay
compensation to claimant. It is directed to
deposit the same within a period of six weeks
from the date of receipt of a certified copy of
this judgment.
Sd/-
JUDGE
Mrk/-
