Karnataka High Court

Syed Dadapeer vs Renuka N B on 13 January, 2021

Author: H T Prasad

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF JANUARY 2021

                         BEFORE

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

                MFA No.7600 OF 2014(MV)
BETWEEN:

Syed Dadapeer,
@ Dadapeer,
S/o Syed Noor Ahmed,
Aged about 30 years,
R/o 4th Cross, Bethur Road,
Davanagere-577 003.
                                              ... Appellant

(By Sri.Hanumanthappa A., Advocate)

AND:

1.     Renuka N.B.,
       W/o Suresh Adimani,
       Aged about 39 years,
       R/o # 1809-87, 4th Main,
       3rd Cross, Vinobanagar,
       Davanagere-577 001.

2.     The Manager,
       Royal Sundaram Alliance Insurance Co. Ltd.,
       Sundaram Towers,
       45 & 46, Whites Road,
       Chennai-600 014.
                                          ... Respondents

(By Sri.O.Mahesh, Advocate for R2:
 Notice to R1 is dispensed with)
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      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:09.05.2014 passed
in MVC No. 1108/2012 on the file of the 1st Additional
Senior Civil Judge & MACT-V, Davanagere, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.

      This MFA, coming on for Orders, through video
conference, this day, this 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 09.05.2014 passed

by the Motor Accident Claims Tribunal, Davanagere in

MVC No.1108/2012.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 18.05.2012 at about 10.15

p.m. the claimant was proceeding on a motorcycle

bearing registration No.KA-17/S-2663 as a pillion rider

near ring road, SPS Nagar, Davanagere. At that time,

the driver of the car bearing registration No.KA-17/A-

8298 drove the same at a high speed and in a rash

and negligent manner, dashed against the claimant.

As a result of the same, the claimant fell on the road

and 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

28 years and by doing business of stationery was

earning Rs.10,000/- 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 No.2

filed written statement in which the averments made

in the petition were denied. It was pleaded that the

respondent No.1 was not holding a valid and effective

driving licence at the time of the accident and was not

qualified for obtaining such a driving licence and not

satisfied the requirement of Rule 3 of Central Motor

Vehicles Rules, and thereby violated the terms and

conditions of the policy. It was further pleaded that

the liability, if any, is subject to terms and conditions

of the policy. The age, avocation and income of the

claimant and the medical expenses are denied. It was

further pleaded that the accident occurred due to rash

and negligent riding of the claimant himself. 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 and Dr.Maheshwarappa as PW-2

and got exhibited 38 documents namely Ex.P1 to

Ex.P38. On behalf of the respondents, ARTO was

examined as RW-1 and got exhibited 1 document as

Ex.R1. 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.2,37,000/- along with interest at the rate of 6%

p.a. and since the driver of the offending vehicle was

holding a driving licence to drive LMV (non-transport)

and was driving the transport vehicle, directed the

owner of the offending vehicle to pay the

compensation. Being aggrieved, this appeal has been

filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, the Tribunal has erred in holding that the

insurance company is not liable to pay the

compensation on the ground that the driver of the

offending vehicle was holding driving licence to drive

LMV (non-transport) and was driving the transport

vehicle. 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, licence to drive LMV

includes licence to drive transport vehicle.

Secondly, due to the injuries the claimant has

suffered grievous injuries, he has examined the doctor

as PW-2, who in his deposition has stated that the

claimant has suffered whole body disability of 20%,

but the Tribunal is not justified in assessing the whole

body disability at 15%.

Thirdly, even though the claimant claimed that

he was earning Rs.10,000/- per month, the Tribunal is

not justified in assessing the income of the claimant

as only Rs.4,500/- per month.

Fourthly, the compensation awarded by the

Tribunal on the other heads is 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

the accident the driver of the offending vehicle was

holding a driving licence (non-transport) but driving

the transport vehicle and has violated the policy

conditions, the Tribunal has rightly dismissed the

claim petition against the insurer. Even the case of

MUKUND DEWANGAN (supra) is pending before the

Hon'ble Supreme Court.

Secondly, considering the oral and documentary

evidence, the Tribunal has granted just and

reasonable compensation and it does not call for

interference. Hence, he sought for dismissal of the

appeal.

8. Heard the learned counsel for the parties.

Perused the judgment and award passed by the

Tribunal.

9. It is not in dispute that the claimant suffered

injuries in the road traffic accident occurred due to

rash and negligent driving of the offending vehicle by

its driver.

Due to the accident the claimant has suffered

the following injuries:

      (1)     Laceration over right leg.

      (2)     Right leg fracture.

      (3) 1/3rd shaft at right tibia.

The Tribunal after considering the evidence of

the doctor and the documents has rightly assessed the

whole body disability at 15%. The claimant has not

produced any evidence with regard to his 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 2012, the notional income has to be

taken at Rs.7,000/- p.m. The claimant was aged

about 28 years at the time of the accident and

multiplier applicable to his age group is '17'. Thus, the

claimant is entitled to Rs.2,14,200/- (Rs.7,000*12*

17*15%) on account of 'loss of future income due to

disability'.

Since the income of the claimant is enhanced to

Rs.7,000/- per month, the claimant is entitled for

compensation of Rs.21,000/- (Rs.7,000*3 months)

under the head 'loss of income during laid up period'.

The compensation awarded by the Tribunal

under other heads are 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 10,800 10,800 Loss of amenities 15,000 15,000 Loss of future earnings 1,37,700 2,14,200 Loss of income during 13,500 21,000 laid up period Total 2,37,000 3,21,000

Re.liability:

11. It is not in dispute that as on the date of the

accident the driver of the offending vehicle was

holding a driving licence to drive LMV (non-transport)

but he was driving the transport vehicle. In view of

the law laid down by the Hon'ble Apex court in the

case of MUKUND DEWNGAN (supra), licence to

drive light motor vehicle includes licence to drive

transport vehicle, and therefore, the insurer is liable

to pay compensation to the claimant.

12. In view of the above, the Insurance

Company is directed to deposit the entire