Karnataka High Court
Sri.H.M.Shailashree vs Kalleshwarappa C.H. on 12 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.4835 OF 2010(MV)
C/W
MFA No.4834 OF 2010(MV)
IN MFA 4835/2010
BETWEEN:
Smt. H.M.Shailashree,
W/o Karibasavaswamy,
Aged about 33 years,
Agriculturist and vegetable vendor
Resident of D No.489,
SPS Nagar, 2nd Stage,
'B' Block, Davanagere.
... Appellant
(By Sri.N.R.Girish., Advocate for
Sri. B.M.Siddappa, Advocate)
AND:
1. Kalleshwarappa C.H.,
S/o Channabasappa C.H.,
Age about 29 years,
Resident of Chandragolla Village,
Jagalur Taluk, Davanagere District.
2. The Manager,
Cholamandalam M.S.General,
Insurance Company Limited,
Near P.J.Hotel, P.B.Road,
2
Davanagere.
... Respondents
(By Sri.O.Mahesh, Advocate for R2 )
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 30.01.2010
passed in MVC No.879/2008 on the file of the I Additional
Civil Judge (SR.DN.) & MACT-V Davanagere, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
IN MFA No.4834/2010
BETWEEN
Karibsavaswamy H.M.,
S/o Chandrashekharaiah,
Aged about 40 years,
Agriculturist and vegetable vendor
Resident of D No.489,
SPS Nagar, 2nd Stage,
'B' Block, Davanagere.
... Appellant
(By Sri.N.R.Girish., Advocate for
Sri. B.M.Siddappa, Advocate)
AND:
1. Kalleshwarappa C.H.,
S/o Channabasappa C.H.,
Age about 29 years,
Resident of Chandragolla Village,
Jagalur Taluk, Davanagere District.
2. The Manager,
Cholamandalam M.S.General,
Insurance Company Limited,
3
Near P.J.Hotel, P.B.Road,
Davanager.
... Respondents
(By Sri.O.Mahesh, Advocate for R2:
R1 served and unrepresented )
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 30.01.2010
passed in MVC No.878/2008 on the file of the I Additional
Civil Judge (SR.DN.) & MACT-V Davanagere, partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
These MFAs, coming on for admission, through video
conference, this day, this Court, delivered the following:
JUDGMENT
These appeals under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act',
for short) have been filed by the claimants being
aggrieved by the judgment dated 30.01.2010 passed
by the Motor Accident Claims Tribunal, Davanagere in
MVC Nos.878/2008 and 879/2008.
2. Facts giving rise to the filing of the appeals
briefly stated are that on 23.07.2008 the claimants
were proceeding in Ape Goods auto bearing
registration No.KA-17/A-6483. When they reached
near Narenahalli cross on Chadaragolla road, the
driver of the said vehicle drove the same at a high
speed and in a rash and negligent manner. Due to
the impact, claimants have sustained grievous injuries
and were hospitalized.
3. The claimants filed petitions under Section
166 of the Act on the ground that they were doing
agriculture and also vegetable vending business and
each of them were earning Rs.9,000/- p.m. It was
pleaded that they have 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
even though the policy was in force, but the risk of
the claimants is not covered since they were
unauthorized passengers. It was further pleaded that
there is violation of the terms and conditions of the
policy and permit by the respondent No.1 since the
respondent No.1 was not holding a valid and effective
driving licence to drive the said vehicle as on the date
of the accident. The age, avocation and income of the
claimants and the medical expenses are denied. It
was further pleaded that the quantum of
compensation claimed by the claimants is exorbitant.
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 in MVC
No.878/2008 was examined as PW-1, claimant in MVC
No.879/2008 as PW-2, one Jambanna, neighbour of
the claimants as PW-3 and Dr.M.R.Jayaprakash as
PW-4 and got exhibited 52 documents namely Ex.P1
to Ex.P52. On behalf of the respondents, medical
officer was examined as RW-1 and an officer of the
insurance company as RW-2 and got exhibited 5
documents namely Ex.R1 to Ex.R5. 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 claimants sustained injuries.
The Tribunal further held that the claimants are
entitled to a compensation of Rs.92,000/- and
1,18,000/- respectively, along with interest at the
rate of 7% p.a. and directed the insured of the
offending vehicle to deposit the compensation amount
along with interest. Being aggrieved, these appeals
have been filed.
6. The learned counsel for the claimants
submitted that even though the claimants claim that
they were doing agricultural work and vegetable
vending business and were earning Rs.9,000/- each
per month, but the Tribunal has taken the notional
income as merely as Rs.3,000/- per month.
Secondly, PW-4, the doctor has stated in his
evidence that the claimants have suffered disability of
10% and 20%, respectively, but the Tribunal has
erred in taking the whole body disability at only 5%
and 10%, respectively.
Thirdly, due to the accident, the claimants have
sustained grievous injuries. They suffered lot of pain
during treatment and they have to suffer the disability
and unhappiness throughout their life. The
compensation awarded by the Tribunal under the
heads 'pain and suffering' and 'loss of amenities' are
on the lower side.
Fourthly, even though the Tribunal has held that
the claimants were traveling as unauthorized
passengers in the goods vehicle and insurance
company is not liable to pay the compensation, but in
view of the law laid down by the Hon'ble Apex court in
the case of 'PAPPU AND OTHERS vs. VINOD
KUMAR LAMBA AND ANOTHER' AIR 2018 SC 592
and a Full Bench judgment of this Court in 'NEW
INDIA ASSURANCE CO. LTD. BIJAPUR vs.
YALLAVVA AND ANOTHER' ILR 2020 Kar.2239,
insurance company has to pay the compensation
amount with liberty to recover the same from the
insured.
7. Per contra, the learned counsel for the
Insurance Company has raised the following
contentions:
Firstly, it is not in dispute that the claimants
were traveling in the goods vehicle as gratuitous
passengers which is prohibited under the Motor
Vehicles Act. Since the insured has violated the policy
conditions, the Tribunal has rightly exonerated the
insurance company from the payment of
compensation.
Secondly, since the owner has not filed any
appeal against the judgment and award passed by the
Tribunal and even in the appeals filed by the claimants
they have not taken any contention regarding liability
and they have also not stated that the owner has not
satisfied the award, the appeals are not maintainable.
Thirdly, the overall compensation granted by the
Tribunal is just and reasonable. Hence, he sought for
dismissal of the appeals.
8. Heard the learned counsel for the parties.
Perused the judgment and award and the original
documents.
9. It is not in dispute that the claimants have
suffered injuries in the accident occurred due to rash
and negligent driving of the offending vehicle by its
driver.
Due to the accident the claimants have suffered
the following injuries:
MVC No.878/2008:
(1) Tenderness present over the pubic bone on
left side.
(2) Tenderness present in the left hip.
(3) Abrasions present over the left side of the
forehead, measuring 6 x 6 cms.
MVC No.879/2008:
(1) Tenderness present in the left shoulder.
(2) Tenderness present over the mid clavicular
region and over lateral 1/3 left clavicle.
(3) Swelling present over left mid clavicular
region.
(4) Tenderness present in the left side of the
pelvis and low back.
Even though the doctor has assessed the
disability of whole body at 10% and 20% respectively
but the Tribunal has erred in assessing the whole body
disability at 5% and 10%, respectively.
In respect of income is concerned, the claimants
have not produced any evidence with regard to their
income. Therefore, the notional income has to be
assessed as per the guidelines issued by the
Karnataka State Legal Services Authority. Since the
accident has taken place in the year 2008, the
notional income has to be taken at Rs.4,500/- p.m. in
both the cases.
MVC No.878/2008:
10. The claimant is aged about 39 years at the
time of the accident and multiplier applicable to his
age group is '15'. Thus, the claimant is entitled to
Rs.40,500/- (Rs.4,500*12*15*5%) on account of 'loss
of future income due to disability'.
Since the income of the claimant is enhanced to
Rs.4,500/- per month, the claimant is entitled for
compensation of Rs.9,000/- (Rs.4,500*2 months)
under the head 'loss of income during laid up period'.
The claimant 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.10,000/- to Rs.30,000/-.
The compensation awarded by the Tribunal
under other heads remains unaltered.
11. 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 & 50,000 50,000
medical expenses
Loss of income during 6,000 9,000
laid up period
Loss of amenities 10,000 30,000
Loss of future income 25,200 40,500
Total 91,200 1,29,500
The claimant is entitled to a total compensation
of Rs.1,29,500/-.
MVC No.879/2008:
12. The claimant is aged about 32 years at the
time of the accident and multiplier applicable to her
age group is '16'. Thus, the claimant is entitled to
Rs.86,400/- (Rs.4,500*12*16*10%) on account of
'loss of future income due to disability'.
Since the income of the claimant is enhanced to
Rs.4,500/- per month, the claimant is entitled for
compensation of Rs.9,000/- (Rs.4,500*2 months)
under the head 'loss of income during laid up period'.
The claimant 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.10,000/- to Rs.30,000/-.
The compensation awarded by the Tribunal
under other heads remains unaltered.
13. 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 & 45,000 45,000
medical expenses
Loss of income during 5,000 9,000
laid up period
Loss of amenities 10,000 30,000
Loss of future income 57,600 86,400
Total 1,18,000 1,70,400
The claimant is entitled to a total compensation
of Rs.1,70,400/-.
14. In view of the law laid down by the Hon'ble
Apex Court in the case of PAPPU (supra) and a Full
Bench judgment of this Court in YALLAVVA (supra),
the Insurance Company is directed to deposit the
compensation amount along with interest at 7% p.a.
within a period of four weeks from the date of receipt
of copy of this judgment with liberty to recover the
same from the insured.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeals are allowed in part.
Sd/-
JUDGE
Cm/-
