Pampapati S/O Rudrappa Gudadur vs Eshappa S/O Hucheerappa Konad
2021 Latest Caselaw 3678 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 9TH DAY OF NOVEMBER, 2021

                           BEFORE

            THE HON'BLE MR.JUSTICE RAVI V. HOSMANI


                  M.F.A.NO.102984/2014 (MV)

BETWEEN:

PAMPAPATI S/O RUDRAPPA GUDADUR
AGED ABOUT: 35 YEARS,
OCC: WORKER IN ICE FACTORY
AT SHARABASAVESHWARA CAMP,
AND AGRICULTIRIST,
R/O. AARAL,
TQ: GANGAVATHI, DIST: KOPPAL

                                                  ...APPELLANT.

(BY SHRI B SHARANABASAWA, ADVOCATE.)


AND:

1.     ESHAPPA S/O HUCHEERAPPA KONAD
       AGED ABOUT: 37 YEARS,
       OCC: DRIVER OF CRUSHER VEHICLE
       BEARING NO:KA-06/A-4469,
       R/O. ADHIKARI STREET,
       YELBURGA,
       TQ: YELBURGA, DIST: KOPPAL

2.     TIPPANNA S/O SHIVABASAPPA HADAGALI
       AGED ABOUT: 33 YEARS, OCC: OWNER OF
       CRUSHER VEHICLE BEARING NO:KA-06/A-4469,
       R/O. HOSAHALLI,
       TQ: YELBURGA, DIST: KOPPAL
                                2




3.   THE MANAGER
     IFFCO-TOKIO GENERAL INSURANCE
     CO.LTD.,
     127/A, BHAVANI ARCADES, 3RD FLOOR,
     NEAR OLD BUS STAND,
     OPP: BASAVAVAN NEW COTTON
     MARKET, HUBBALLI,
     TQ: HUBBALLI, DIST: DHARWAD.

                                               ...RESPONDENTS.

(BY SMT.ANUSHA, ADVOCATE, FOR SHRI S.K.KAYAKAMATH,
ADVOCATE, FOR R.3;
R.1 AND R.2 - NOTICE SERVED.)


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY JUDGMENT AND AWARD DATED 13.10.2010, PASSED IN MVC
NO.220/2009, ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT,
GANGAVATHI, BY ENHANCING THE COMPENSATION, ETC.,.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

This appeal is filed by the claimant in MVC No.220/2009,

challenging the judgment and award dated 13.10.2010, passed

by the Senior Civil Judge and MACT, Gangavathi, seeking

fastening liability on insurer and enhancement of compensation.

2. Brief facts of case are that, in an accident that

occurred on 14.6.2009, claimant who was riding motorcycle

bearing registration No.KA-37/3743, sustained injuries in an

accident that was caused due to rash and negligent driving of

Cruiser vehicle bearing registration No.KA-06/A-4469. Though

claimant took treatment at Government Hospital, Yalaburga and

other hospitals, he could not recover fully and sustained

physical disability and consequent reduction in earning capacity.

Claiming compensation for the same, he filed claim petition

under Section 166 of Motor Vehicles Act, against driver, owner

and insurer of offending Cruiser vehicle.

3. During pendency of claim petition, claimant realized

that offending vehicle was sold in favour of Tippanna

S/o.Shivabasappa Hadagali. An application for impleading said

person was filed. Though it was allowed, claim petition was not

amended. Due to the same, at the time of disposal of claim

petition, tribunal discharged liability of insurer and passed

award against driver and earlier owner namely Huchesh S/o.

Channaveerayya Ghanti. Thereafter claimant filed review

petition. On consideration, tribunal deleted name of earlier

owner namely Huchesh S/o.Channaveerayya Ghanti and

replaced the same with name of Tippanna S/o.Shivabasappa

Hadagali. But in all other aspects judgment and award remained

unaltered. Aggrieved by the same, claimant is in appeal.

4. Heard the learned counsel appearing for respective

parties.

5. Shri B.Sharanabasawa, learned counsel for

claimant/appellant submitted that impugned judgment and

award passed by tribunal was contrary to facts of case and

evidence on record. It was submitted that only reason assigned

by tribunal for absolving liability of insurer was that vehicle in

question was a passenger vehicle and driver who was driving

the same at the time of accident was holding licence to drive

light motor vehicle (LMV) without transport endorsement. In

view of decision of Hon'ble Supreme Court in Mukund

Dewangan vs. Oriental Insurance Company Limited,

(2017) 14 Supreme Court Cases 663, said reasoning would

be unsustainable and insurer would be liable to pay

compensation.

6. On quantum, it was submitted that claimant aged

30 years working in Ice Factory was earning more than

Rs.10,000/- per month. Tribunal considered his income at

Rs.3,600/- per month and awarded meager compensation which

requires enhancement. It was also submitted that though

claimant sustained fracture of right femur, tribunal awarded

meager sum of Rs.22,000/- towards pain and suffering. It was

also submitted that award towards loss of amenities and

incidental charges was also on lower side and required

enhancement.

7. On the other hand, Ms.Anusha, advocate, appearing

for Shri S.K.Kayakamath, learned counsel for respondent insurer

supported the award passed by tribunal. It was submitted that

considering nature of injuries sustained and evidence on record,

tribunal had assessed just compensation and awarded the same

to claimant and no interference was called for.

8. From the above submission, occurrence of accident

due to rash and negligent driving of Cruiser vehicle by its driver

resulting in injuries to claimant is not in dispute. Issuance of

insurance policy and its validity as on date of accident is also

not in dispute. Tribunal absolved liability of insurer and awarded

compensation. Only claimant is in appeal both on liability as well

as quantum. Therefore, points that arise for my consideration

are as under:

i) Whether tribunal was justified in holding that insurer was not liable to pay compensation?

ii) Whether claimants are entitled for compensation as sought for?

9. Insofar as liability, from impugned judgment and

award it is seen that driver of Cruiser possessed licence to drive

LMV. Though he did not have a transport endorsement on his

driving licence, admittedly gross weight of Cruiser vehicle is less

than 7,500 kgs. In view of ratio of decision in Mukund

Devangan's case (supra), mere non possession of transport

endorsement would not result in violation of policy conditions

and insurer would be liable to pay compensation. Therefore,

finding of tribunal on liability is unsustainable. It is accordingly

set aside. Point No.1 is answered in negative. It is held that

respondents No.1 to 3 are jointly and severally liable to pay

compensation to claimant.

10. Insofar as quantum of compensation is concerned,

admittedly claimant sustained fracture of right femur. Tribunal

has awarded a sum of Rs.22,000/- towards pain and suffering.

As fracture is grievous in nature, award towards same would be

inadequate. It would be appropriate to award a sum of

Rs.32,000/- towards the same.

11. Tribunal has awarded a sum of Rs.29,500/- towards

medical expenses in complete reimbursement of amount for

which medical bills were produced. As there is complete

reimbursement, there is no scope for enhancement under this

head.

12. As regards monthly income, claimant has stated

that he was earning Rs.10,000/- per month. But no specific

evidence is led to substantiate the same. Therefore, tribunal

would be justified in assessing it on notional basis. Accident

occurred on 14.6.2009. As per norms adopted by Karnataka

State Legal Services Authority for settlement of cases before

Lok Adalat, notional income for the year 2009 is Rs.5,000/-.

Therefore tribunal is not justified in taking monthly income at

Rs.3,600/-. It has to be considered at Rs.5,000/-. Based on

evidence of PW.2 and Ex.P.9, tribunal assessed loss of earning

capacity at 20%. Claimant was aged 30 years. Multiplier

applicable would be '17'. Therefore future loss of income would

be Rs.5,000/- x 20% x 12 x 17 =Rs.2,04,000/-.

13. The fracture sustained would have taken at least 2

to 3 months to heal. Tribunal has awarded Rs.9,000/- towards

loss of income during treatment which would be inadequate. It

would be appropriate to award a sum of Rs.15,000/- (5,000 x 3)

towards the same. Though enhancement is sought towards loss

of amenities and incidental expenses, on going through

evidence of PW.2 and Ex.P.9, there is no specific assessment of

disability are mentioned. Tribunal by some guess work awarded

Rs.10,000/- towards loss of amenities and Rs.5,000/- towards

food, nourishment and other incidental charges. The same

appears to be just and proper.

14. In the result, claimant would be entitled to a total

compensation of Rs.2,95,500/- as against Rs.2,22,380/-

awarded by tribunal. Point No.2 is answered partly in the

affirmative as above.

15. In the result, I pass the following:

ORDER

i) Appeal is allowed in part with costs.

ii) Judgment and award dated 13.10.2010,

passed by the Senior Civil Judge and MACT,

Gangavathi, in MVC No.220/2009 is modified.

iii) Claimant is entitled for compensation of

Rs.2,95,500/- with interest at 6% p.a. from

the date of petition till deposit, excluding

interest for delayed period of 1406 days in

filing appeal, as per order dated 26.10.2017.

iv) Respondent No.3 insurer is held liable to pay

the award amount. It is directed to deposit

award amount with interest within six weeks

from the date of receipt of a copy of this

judgment.

Sd/-

JUDGE

Mrk/-