Dr. Vasudeva Murthy V. vs Sri.Devaraj L.C.
2021 Latest Caselaw 489 Kant

                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 8TH DAY OF JANUARY 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.7374 OF 2013(MV)

BETWEEN:

DR. VASUDEVA MURTHY V
S/O VENKATACHALA MURTHY
AGED ABOUT 57 YEARS
NO.162/32/1,
10TH B MAIN ROAD
JAYANAGARA, 1ST BLOCK
BANGALORE-560 011.

                                    ... APPELLANT

(BY SRI.BABU M., ADV. )

AND

1.    SRI. DEVARAJ L.C.,
      S/O CHIKKAPUTTE GOWDA
      NO.64, LAKSHMI SAGAR
      PANDAVAPURA TALUK
      MANDYA DISTRICT-571434.

2.    THE ORIENTAL INSURANCE CO. LTD.,
      NO.1551/6, M.H. BORIAH BUILDING
      BESIDES VIDYA GANAPATHY TEMPLE
      MANDYA,
                            2



     KARNATAKA-571401.
                                      ... RESPONDENTS

(BY SRI. S.V.HEGDE MULKHAND, ADV. FOR R2:
R1 SERVED & UNDREPRESENTED)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 18.03.2013 PASSED IN MVC NO.4595/2011
ON THE FILE OF THE II ADDITIONAL SMALL CAUSES
JUDGE, 28TH ACMM, MACT, BANGALORE, 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 18.03.2013 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 25.03.2011 at about 3.50

p.m., the claimant was proceeding on his motorcycle

bearing registration No.KA-05/EP-1994 from Christ

School towards Banneghatta road near Suryodaya

Kalyana Mantapa, Bhavaninagara, Bengaluru slowly

and cautiously, at that time, car bearing registration

No.KA-41/3032 being driven by its driver at a high

speed and in a rash and negligent manner from

behind, 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 a doctor by

profession and was earning Rs.20,000/- 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 rider.

4. On service of notice, the respondents

appeared through their respective counsel and filed

their separate written statement in which the

averments made in the petition were denied.

It was pleaded by respondent No.1 that the

accident has not occurred due to rash and negligent

driving of the offending vehicle by its driver. It was

further pleaded that the car bearing Reg.No.KA-41-

3032 is insured with respondent No.2 and the policy

was in force as on the date of accident. It was further

pleaded that the driver of the offending vehicle was

holding valid and effective driving licence as on the

date of accident. Hence, he sought for dismissal of

the petition.

It was pleaded by the Insurance Company -

respondent No.2 that the issuance of policy, if any,

subject to terms and conditions of the policy and also

subject to holding valid and effective DL by the driver

and valid documents of the vehicle. It was further

pleaded that it is clear from the charge sheet that the

driver of the car was not holding valid and effective DL

as on the date of accident. it was further pleaded that

the insured car was not having valid permit or fitness

certificate. The age, avocation and income of the

claimant as on the date of the accident are denied. It

was further pleaded that the compensation claimed by

the claimant is highly excessive and exorbitant.

Hence, he sought for dismissal of the petition.

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 got exhibited 10 documents

namely Ex.P1 to Ex.P10. On behalf of the

respondents, two witnesses were examined as RWs-1

and 2 and got exhibited 3 documents namely Ex.R1 to

Ex.R3. 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.50,000/- along with interest at the rate of 6% p.a.

and directed respondent No.1/RC owner 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, at the time of accident, the driver of the

offending vehicle was having LMV non-transport

vehicle, it is valid from 29.06.2009 till 28.06.2029, the

accident occurred on 25.03.2011. 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 was having LMV non-transport

driving licence and he was driving the transport

vehicle at the time of the accident. He further

contended that in view of the law laid down by the

Hon'ble Apex Court in the case of MUKUND

DEWANGAN vs. ORIENTAL INSURANCE

COMPANY LIMITED reported in (2017) 14 SCC

663, the licence to drive LMV includes licence to drive

transport vehicle. Therefore, the Insurance Company

is liable to pay compensation.

Secondly, in respect of quantum of

compensation is concerned, due to the accident,

claimant has suffered four injuries and he has taken

rest for a period of 3 months. Since he was a doctor

by profession, there is loss of income during the

treatment.

Thirdly, the compensation awarded by the

Tribunal under the head of 'non-pecuniary heads' of

Rs.30,000/- is on the lower side. Hence, the learned

counsel appearing for the claimant prays for allowing

the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised the following

counter-contentions:

Firstly, it is not in dispute that as on the date of

accident, the driver of the offending vehicle was not

having valid and effective driving licence. Considering

the same, the Tribunal has rightly fastened liability on

owner of the offending vehicle.

Secondly, in respect of quantum of

compensation is concerned, the injuries suffered by

the claimant are minor in nature and he has not

examined the treated doctor. Therefore, the overall

compensation awarded by the Tribunal is just and

reasonable. Hence, the learned counsel for the

Insurance Company prays for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award of the claims

Tribunal.

9. It is not in dispute that the claimant has

suffered injuries in a road traffic accident occurred on

25.03.2011 due to rash and negligent driving of the

offending vehicle by its driver. As on the date of

accident, driver of the offending vehicle was

authorized to drive LMV non-transport vehicle from

26.09.2011 till 29.06.2029. in view of the law laid

down by the Apex Court in the case of MUKUND

DEWANGAN (Supra), even the driver who is having

D.L for LMV non transport vehicle can drive the

transport vehicle. Therefore, Insurance Company is

liable to pay compensation.

10. In respect of quantum of compensation is

concerned, due to the accident the claimant has

suffered the following injuries.

1. Evidence of hemerthrosis right elbow,

2. Evidence of fractures radius head on chip of lateral condyler,

3. Hemerthrosis of right knee and

4. Multiple abrasions of right hand.

Claimant has spent a sum of Rs.20,000/-

towards medical expenses and he suffered severe pain

during treatment. Taking into consideration the

injuries suffered by the claimant and considering

wound certificate-Ex.P4, I am of the opinion that the

compensation awarded under the head of 'non-

pecuniary heads' has to be enhanced from

Rs.30,000/- to Rs.70,000/-.

Accordingly, the claimant is entitled for total

compensation of Rs.90,000/- instead of Rs.50,000/-

awarded by the Tribunal.

The Insurance Company is directed to deposit

compensation amount along with interest at 6% p.a.

from the date of petition till the date of realization,

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

Mkm