Sri Dashrath vs Sri Gopal Laxmi
2021 Latest Caselaw 887 Kant

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 15TH DAY OF JANUARY 2021

                      BEFORE

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

             MFA No.6845/2013 (MV)

BETWEEN:

SRI DASHRATH
S/O SRI SIDDAPPA PARAPPANAVAR
AGED: 29 YEARS, OCC: NIL
R/O DAMBALA VILLAGE,
DAMBALA POST, MUNDARAGI TALUK
GADAG DISTRICT 582 113
                                     ...APPELLANT

(BY SRI. SURESH M LATUR, ADV.)

AND

1.    SRI GOPAL LAXMI
      S/O SANGAPPA
      BIDINAL THANDA MUNDARGI TALUK
      GADAG DISTRICT 582 101

2.    THE MANAGER
      RELIANCE GENERAL INSURANCE CO LTD.,
      NO 28/5, CENTENARY BUILDING,
      EAST WING, M G ROAD
      BANGALORE 560 001
                                 ...RESPONDENTS
                            2



(BY SRI. H N KESHAVA PRASHANTH, ADV. FOR R2
    R1 - SERVED, UNREPRESENTED)


     THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
08.05.2013 PASSED IN MVC NO.2486/2011 ON THE
FILE OF THE XVI ADDITIONAL JUDGE, MACT, CSC,
BANGALORE,    PARTLY    ALLOWING   THE  CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSTION.

     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 8.5.2013 passed by

the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 21.2.2011, the claimant was

proceeding on his motorcycle bearing registration

No.KA-18-R-3650 on Dambala-Gagad Road, near

Kadampur, at that time, car bearing registration

No.KA-26-4602 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 on the ground that he was working as

lorry driver and was earning Rs.10,000/- p.m. 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 respondents

appeared and filed written statements in which the

averments made in the petition were denied.

Respondent No.1 has pleaded that the petition itself is

false and frivolous in the eye of law. It was further

pleaded that the accident was due to the rash and

negligent riding of the vehicle by the claimant himself.

The policy was in force as on the date of accident and

the driver was having valid driving licence. The age,

avocation and income of the claimant and the medical

expenses are denied. It was further pleaded that the

quantum of compensation claimed by the claimant is

exorbitant. Hence, he sought for dismissal of the

petition.

Respondent No.2 has pleaded that the petition

itself is false and frivolous in the eye of law. It was

further pleaded that the accident was not due to the

rash and negligent driving of the offending vehicle by

the driver. The rider of the motorcycle was not having

valid driving licence as on the date of the accident.

The liability 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 quantum of compensation claimed by

the claimant is 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, another witness as PW-2 and

Dr.Gavisiddappa Palled as PW-3 and got exhibited

documents namely Ex.P1 to Ex.P18. On behalf of the

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R1 and Ex.R2.

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.1,73,000/- along with

interest at the rate of 6% p.a. and directed the owner

of the goods 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 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 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 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 lorry driver and earning

Rs.10,000/- per month, but the Tribunal has taken the

notional income as merely as Rs.4,000/- per month.

Thirdly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

40% to right lower limb. But the Tribunal has erred in

taking the whole body disability at only 13%.

Fourthly, due to the accident, the claimant has

sustained grievous injuries. 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. The Tribunal has failed to grant any

compensation under the head of 'loss of income

during laid-up period' and 'loss of amenities'. Further,

considering the nature of injuries, the compensation

granted by the Tribunal under the heads of 'pain and

sufferings' and other heads are on the lower side.

Fifthly, due to the disability, the claimant is

unable to do his regular work. He is entitled for future

prospects. In support of his contention, he has relied

upon the decision of the Apex Court in the case of

Syed Sadiq and others -v- Divisional Manager, United

India Insurance Co. Ltd. reported in 2014 ACJ 627

Sixthly, the claimant has undergone surgery for

removal of implants, but the Tribunal has not granted

any compensation under the head of 'future medical

expenses'. 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 Tribunal

considering the materials available on record 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.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

40% to right lower limb. The Tribunal considering the

injuries sustained by the claimant, has rightly

assessed the whole body disability at 13%.

Thirdly, 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.

As per Ex.P-13, 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 claimants and the owner of the

offending vehicle is exonerated from paying

compensation to the claimant.

9. The claimant in order to prove his income

has produced driving licence to show that he was a

driver at the time of the accident and earning

Rs.10,000/- p.m. Therefore, considering the age and

avocation of the claimant, the notional income has to

be taken at Rs.8,000/- p.m.

As per wound certificate, the claimant has

sustained open fracture of both bones of right leg.

PW-3, the doctor has stated that the claimant has

suffered 40% disability to right lower limb. The

claimant has produced driving licence to show that he

was a driver and due to the disability, the same has

affected his income. Therefore, taking into

consideration the deposition of the doctor, PW-3 and

injuries mentioned in the wound certificate, the whole

body disability is taken at 25%. The claimant is aged

about 31 years at the time of the accident and

multiplier applicable to his age group is '16'. Thus, the

claimant is entitled for compensation of Rs.3,84,000/-

(Rs.8,000*12*16*25%) on account of 'loss of future

income'.

The nature of injuries suggest that the claimant

must have been under rest and treatment for a period

of 3 months. Therefore, the claimant is entitled for

compensation of Rs.24,000/- (Rs.8,000*3 months)

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

The claimant was treated as inpatient for more

than 50 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the sum awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.8,500/- to Rs.15,000/-.

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 award a sum of Rs.30,000/- under the

head of 'loss of amenities'.

The claimant has examined the doctor PW-3,

who in his testimony stated that the claimant has to

undergo one more surgery for removal of implants.

Considering the same, I am inclined to award a sum of

Rs.25,000/- under the head of 'future medical

expenses'.

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 35,000 35,000 Medical expenses 29,349 29,349 Food, nourishment, 8,500 15,000 conveyance and attendant charges

Loss of income during 0 24,000 laid up period Loss of amenities 0 30,000 Loss of future income 99,840 384,000 Future medical expenses 0 25,000 Total 172,689 542,349 Rounded off 173,000 542,400

The claimant is entitled to a total compensation

of Rs.542,400/-.

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