Karnataka High Court
Govinda vs Ameer O.K on 7 January, 2021
Author: H T Byhtnpj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.2628 OF 2013(MV)
BETWEEN:
GOVINDA
S/O MAHADEVAIAH
AGE 27 YEARS
R/O HEJJIGE VILLAGE
CHIKKAYYANA CHATRA HOBLI
NANJANAGUD TALUK
MYSORE DIST.
... APPELLANT
(BY SRI.R.C.NAGARAJ, ADV.)
AND
1. AMEER O.K.,
S/O HAMAJA O.K.
AGE 32 YEARS
ODUMALAKUDIL HOUSE
ELANKUR POST, MALLAPURA
KERALA STATE.
2. ABDUL NAZAR M.P.,
S/O ABDUL RAHEEM
AGE 47 YEARS
R/O NO.13/7, 2ND MAIN ROAD
2
K.P.N. LAYOUT
BANGALORE.
3. FUTURE GENERAL INSURANCE CO.
4TH FLOOR, MALABAR,
COCHIN ARCED,
M.G.ROAD, COCHIN
KERALA-682010.
... RESPONDENTS
(BY SRI.H.S.LINGARAJ, ADV. FOR R3:
R2 IS EXPARTE V/O DATED:30.05.2019
SERVICE OF NOTICE TO R1 IS HELD
SUFFICIENT V/O DATED:14.03.2014)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 07.01.2013 PASSED IN MVC NO.55/2011 ON
THE FILE OF THE MACT SENIOR CIVIL JUDGE,
NANJANGUD, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, 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 07.01.2013 passed
by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 27.02.2011, at about 2.45
p.m., the claimant was proceeding on his motorcycle
bearing Reg.No.KA-03/EK-4314 on Nanjangud-Mysore
road, in front of Yathri Bhavan, at that time, lorry
bearing Reg.No.KA-02/C-6689, being driven by its
driver, came from opposite direction, at a high speed
and in a rash and negligent manner and dashed
against 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 on the ground that he was aged about
25 years, was employed as Operator with Resendik
Auto Company Private Limited and was earning
Rs.6,000/- per month. 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 Nos.1
and 3 appeared through their counsel and respondent
No.3 only 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. It was further pleaded that the driver
of the offending vehicle was not holding valid and
effective driving licence as on the date of accident.
Hence, he sought for dismissal of the petition with
cost.
The respondent No.2 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, and examined Dr. Kiran Kalaiah as
PW-2 and complainant as PW.3 and got exhibited 111
documents namely Ex.P1 to Ex.P111. On behalf of
the respondents, Manager (Legal) was examined as
RW-1 and got exhibited 2 documents namely Exs.R1
and 2. 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.1,56,500/- along with interest at the rate of 6%
p.a. and directed the respondent No.2, owner of the
vehicle to deposit the compensation amount along
with interest. Being aggrieved, this appeal has been
filed.
6. The learned counsel for the claimant has
raised the following contentions.
Firstly, the Tribunal has fastened liability on the
owner of the vehicle on the ground that the driver of
the offending vehicle was not holding valid driving
licence. In view of the law laid down by the Full
Bench of this Court in the case of New India
Assurance Company Limited, Bijapur -v-
Yallavva and Another reported in ILR 2020 Kar.
2239, the insurance company has to pay the
compensation with liberty to recover the same from
the insured.
Secondly, due to the accident, the claimant has
suffered grievous injuries, he was inpatient for a
period of 48 days. He examined the doctor, who has
assessed 60% disability. At the time of accident, he
was aged about 25 years and earning Rs.6,000/- per
month. The Tribunal is not justified in taking monthly
income of the claimant as Rs.4,500/-.
Thirdly, claimant has suffered lot of pain during
the treatment and he has to suffer with the disability
and unhappiness throughout his life. The
compensation awarded by the Tribunal under the head
of 'pain and sufferings' is on the lower side. The
Tribunal has failed to grant any compensation under
the head of 'loss of amenities'.
Fourthly, the compensation awarded by the
Tribunal under other heads are also on the lower side.
Hence, he sought for allowing the appeal.
7. On the other hand, the learned counsel for
the Insurance Company has raised the following
contentions.
Firstly, it is not in dispute that as on the date of
accident the driver of offending vehicle was not
holding valid and effective driving licence. Since the
insured has violated policy conditions, the Tribunal has
rightly fastened liability on the owner of the offending
vehicle.
Secondly, the overall compensation awarded by
the Tribunal is just and reasonable. Hence, he sought
dismissal of the appeal.
The owner of the offending vehicle served but
unrepresented.
8. Heard the learned counsel for the parties
and perused the judgment and award passed by the
Tribunal and original records.
9. It is not in dispute that the claimant has
suffered injuries in a road traffic accident occurred on
27.02.2011 due to rash and negligent driving of the
offending vehicle by its driver. Due to the accident,
the claimant has suffered following injuries.
1. Fracture of right thigh,
2. Fracture of frontal bone over right
side of nasal bone.
He has examined Dr.Kiran Kalaiah as PW.2, who
has deposed that the claimant has suffered disability
of 60%. Taking into consideration the injuries suffered
by the claimant, his age and avocation and
considering the deposition of the doctor and wound
certificate-Ex.P3, I am of the opinion that the whole
body disability can be assessed at 10%.
At the time of accident claimant was aged about
25 years and was earning Rs.6,000/- per month.
Taking into consideration the evidence of the claimant
and his age and avocation, monthly income of the
claimant can be assessed at Rs.6,000/-.
At the time of the accident, he was aged about
25 years, multiplier applicable to the said age group is
18. Accordingly, loss of income due to disability has
been reassessed as follows:
Rs.6,000 x 12 x 18 x 10/100 = Rs.1,29,600/-.
Since the income of the claimant is enhanced to
Rs.6,000/- per month, the claimant is entitled for
compensation of Rs.12,000/- (Rs.6,000*2 months)
under the head 'loss of income during laid up period'.
Due to the accident, the claimant has suffered
the above said injuries. He was inpatient for a period
of 48 days. He has examined the doctor, who has
assessed 60% disability. He has suffered lot of pain
during the treatment and he has to suffer with the
disability throughout his life. Taking into consideration
the evidence of the doctor and wound certificate,
Ex.P3, I am of the opinion that the claimant is entitled
for compensation of Rs.40,000/- under the head of
'loss of amenities'. The compensation awarded under
the head of 'pain and sufferings' has to be enhanced
from Rs.20,000/- to Rs.40,000/- and under the head
of 'food and nourishment' has to be enhanced from
Rs.9,000/- to Rs.20,000/-.
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 20,000 40,000
Attendant charges 4,800 4,800
Medical expenses 15,500 15,500
Loss of income during 9,000 12,000
laid up period
Loss of income due to 97,200 1,29,600
disability
Loss of amenities - 40,000
Future medical expenses 10,000 10,000
Total 1,56,500 2,51,900
The claimant is entitled to a total compensation
of Rs.2,51,900/-.
The Insurance Company is directed to deposit
the entire compensation amount with interest at 6%
p.a. from the date of petition till the date of payment,
within a period of four weeks from the date of receipt
of a certified copy of this order, with liberty to recover
the same from the insured.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE
Mkm/-
