Karnataka High Court
Narashimaiah vs M.R.Pramod on 18 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.7619 OF 2014(MV)
BETWEEN:
NARASHIMAIAH
S/ONARASAIAH
AGED ABOUT 41 YEARS
R/O GOWDAGERE VILLAGE
MANIKANTANAHALLY POST
MELUKOTE HOBLI
PANDAVAPURA TALUK
MANDYA DISTRICT-571434.
... APPELLANT
(BY SRI. K.L.SRINVAS, ADV. FOR
SRI. V.N. MADHAN REDDY, ADV. )
AND
1. M.R. PRAMOD
S/O SUBBEGOWDA
DEAD BY HIS LR'S
1(a) MANGALAMMA
W/O LATE. SUBBEGOWDA
AGED ABOUT 65 YEARS
1(b) MAHADEVAMMA
2
W/O LATE. PRAMOD
AGED ABOUT 30 YEARS.
1(c) VINUTHGOWDA
S/O LATE. PRAMOD
AGED ABOUT 12 YEARS.
1(d) SINCHANA
D/O OF LATE PRAMOD
AGED ABOUT 10 YEARS.
R1(c) & (d) ARE MINORS
REPRESENTED BY THEIR
NATURAL GUARDIAN MOTHER
R1(b) SMT. MAHADEVAMMA.
ALL ARE RESIDING AT NO.3
DASANAHUNDI, YALANDUR TALUK
CHMARAJANAGARA DISTRICT.
2. THE MANAGER(LEGAL)
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.,
SHRI HARI COMPLEX
SEETHA VILAS ROAD
MYSORE.
... RESPONDENTS
(BY SRI.P.B.RAJU, ADV. FOR R2:
R1(a to b) SERVEED & UNREPRESENTED
R1 (C & d)MIONRS REP. BY R1(b))
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 09.09.2014 PASSED IN MVC NO.85/2011 ON
3
THE FILE OF THE SENIOR CIVIL JUDGE & JMFC,
PADAVAPURA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act',
for short) has been filed by the claimant being
aggrieved by the judgment dated 9.9.2014 passed by
the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 2.12.2010, the claimant was
proceeding infront of cloth shop at Jakkanahally circle,
at that time, goods jeep bearing registration No.KA-
10-4472 being driven by its driver at a high speed and
in a rash and negligent manner, dashed to the vehicle
of the claimant. As a result of the aforesaid accident,
the claimant sustained grievous injuries and was
hospitalized.
3. The claimant filed a petition under Section
166 of the Act seeking compensation. It was pleaded
that he also spent huge amount towards medical
expenses, conveyance, etc. It was further pleaded
that the accident occurred purely on account of the
rash and negligent driving of the offending vehicle by
its driver.
4. On service of notice, the respondent No.2
filed written statement in which the averments made
in the petition were denied. It was pleaded that the
petition itself is false and frivolous in the eye of law.
The driver of the offending vehicle did not have valid
driving licence as on the date of the accident. The
mandatory provisions of Section 158(6) are not
complied. The accident was due to rash and negligent
riding of the motorcycle by the claimant. Hence, he
sought for dismissal of the petition. The respondent
No.1 did not appear before the Tribunal inspite of
service of notice and was placed ex-parte.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimant himself was
examined as PW-1, Dr.C.Manjunatha as PW-2 and
Dr.Chandrashekar as CW-1 and got exhibited
documents namely Ex.P1 to Ex.P41 and Ex/C-1 to C5.
On behalf of the respondents, two witnesses were
examined as RWs-1 and 2 and got exhibited
documents namely Ex.R1 to Ex.R7. The Claims
Tribunal, by the impugned judgment, inter alia, held
that the accident took place on account of rash and
negligent driving of the offending vehicle by its driver,
as a result of which, the claimant sustained injuries.
The Tribunal further held that the claimant is entitled
to a compensation of Rs.2,06,750/- along with
interest at the rate of 6% p.a. and directed the owner
of the offending vehicle to deposit the compensation
amount along with interest. Being aggrieved, this
appeal has been filed.
6. The learned counsel for the claimant has
contended that contended that the Tribunal has erred
in fastening the liability on the owner of the offending
vehicle on the ground that the driver of the offending
vehicle i.e., was having LMV (non-transport) driving
licence and he was driving the transport goods vehicle
at the time of the accident. He contended that the
Apex Court in the case of MUKUND DEWANGAN vs.
ORIENTAL INSURANCE COMPANY LIMITED
reported in (2017) 14 SCC 663, has held that licence
to drive LMV (Non-transport) includes licence to drive
transport vehicle. Therefore, the Insurance Company
is liable to pay compensation.
Secondly, even though the claimant claims that
he was working as driver and earning Rs.10,000/- per
month, but the Tribunal has taken the notional income
as merely as Rs.5,000/- per month.
Thirdly, claimant claims that as on the date of
the accident, he was aged about 38 years. As per
Ex.P-39 driving licence, the date of birth of the
claimant is 5.4.1972. But the Tribunal is not justified
in taking the age of the claimant as 45 years.
Fourthly, CW-1, the doctor has stated in his
evidence that the claimant has suffered disability of
15% to 20% to whole body. But the Tribunal has
erred in taking the whole body disability at only 10%.
Fifthly, due to the accident, the claimant has
sustained grievous injuries. He was treated as
inpatient for a period of 20 days. Even after discharge
from the hospital, he was not in a position to
discharge his regular work. He has suffered lot of pain
during treatment. Considering the same, the
compensation granted by the Tribunal under the
heads of 'loss of amenities', 'pain and sufferings' and
other heads are on the lower side. Hence, he sought
for allowing the appeal.
7. On the other hand, the learned counsel for
the Insurance Company has contended that the driver
of the offending vehicle was not having valid driving
licence as on the date of the accident. The insured has
violated the terms and conditions of the policy. Hence,
the Tribunal has rightly fastened the liability on the
owner of the offending vehicle.
Secondly, even though the claimant claims that
he was earning Rs.10,000/- per month, he has not
produced any documents to establish his income.
Therefore, the Tribunal has rightly assessed the
income of the claimant notionally.
Thirdly, as per the medical records, the age of
the claimant has been taken as 45 years.
Fourthly, CW-1, the doctor has stated in his
evidence that the claimant has suffered disability of
15% to 20% to whole body. The Tribunal considering
the injuries sustained by the claimant, has rightly
assessed the whole body disability at 10%.
Fifthly, considering the oral and documentary
evidence, the Tribunal has granted just and
reasonable compensation and it does not call for
interference. Hence, he sought dismissal of the
appeal.
8. Heard the learned counsel for the parties
and perused the records.
9. It is not in dispute that the accident has
occurred due to rash and negligent driving of the
offending vehicle by its driver.
Regarding liability is concerned, as per Ex.P-39,
driving licence, it is seen that the driver of the
offending vehicle was having driving licence to drive
LMV non-transport vehicle. However, the Apex Court
in the case of MUKUND DEWANGAN (supra), has
held that a person having driving licence to drive LMV
(non-transport) can also drive transport vehicle. In
view of the said decision, I am of the opinion that the
driver of the offending vehicle was having valid driving
licence as on the date of accident. Accordingly, the
finding of the Tribunal in respect of liability is
concerned, the same is modified and it is held that
Insurance Company is directed to pay compensation
to the claimant.
The claimant has not produced any evidence
with regard to his income. Therefore, considering the
age and avocation of the claimant, the notional
income can be taken at Rs.6,000/- p.m.
As per wound certificate, the claimant has
sustained bleeding from left ear present, a diffuse
swelling of the occipital region of head present,
multiple abrasions present over the posterior aspect of
left leg and injuries are fresh in nature. CW-1, the
doctor has stated that the claimant has suffered whole
body disability at 15% to 20%. Therefore, taking into
consideration the deposition of the doctor, CW-1 and
injuries mentioned in the wound certificate, the whole
body disability is taken at 15%. As per Ex.P-39,
driving licecne, the date of birth of the claimant is
mentioned as 5.4.1972. As on the date of accident,
the age of the claimant is 38 years and multiplier
applicable to his age group is '15'. Thus, the claimant
is entitled for compensation of Rs.1,62,000/-
(Rs.6,000*12*15*15%) on account of 'loss of future
income'.
Since the income of the claimant is enhanced to
Rs.6,000/- per month, the claimant is entitled for
compensation of Rs.18,000/- (Rs.6,000*3 months)
under the head 'loss of income during laid up period'.
Due to the accident, the claimant has suffered
grievous injuries and also undergone surgery. He has
suffered lot of pain during treatment and he has to
suffer with the disability stated by the doctor
throughout his life. Considering the same, I am
inclined to enhance the compensation awarded by the
Tribunal under the head of 'loss of amenities' from
Rs.30,000/- to Rs.50,000/-.
The compensation awarded by the Tribunal
under other heads is just and reasonable.
10. Thus, the claimant is entitled to the
following compensation:
As awarded As awarded
Compensation under by the by this
different Heads Tribunal Court
(Rs.) (Rs.)
Pain and sufferings 60,000 60,000
Medical expenses 2,750 2,750
Food, nourishment, 15,000 15,000
conveyance and
attendant charges
Loss of income during 15,000 18,000
laid up period
Loss of amenities 30,000 50,000
Loss of future income 84,000 162,000
Total 206,750 307,750
The claimant is entitled to a total compensation
of Rs.307,750/-.
The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
p.a. within a period of four weeks from the date of
receipt of copy of this judgment.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE
DM
