Jahangir Sab S/O. Rasul Sab vs Parsshuramappa S/O Manjappa
2021 Latest Caselaw 3768 Kant

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 10 T H DAY OF NOVEMBER, 2021

                           BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                 M.F.A.No.23424/2013 (MV)

BETWEEN:

JAHANGIR SAB S/ O RAS UL SA B,
AGE:59 Y EARS, OCC:COOLIE WORK ,
R/O. BHAN UVALLI ,
NOW R/O GOWRIS HANKARA NAGAR
RANEBENNUR DIS T:HAVERI.
                                                ...APPELLAN T
(BY G.N.NARASAM MANAVAR, ADVOCATE)

AND

1 .   PARASHURAMA PPA S/O MANJAPPA ,
      AGE:41 Y EARS, R/ O YADEHA LLI ,
      TQ:HARAPANAHA LLI.

2 .   M.RUDRAPPA S/O VEERABHADRA PPA
      AGE:49 Y EARS,R/ O TELIGI VI LLAGE,
      TQ:HARAPANAHA LLI.

3 .   RELIANCE GEN ERA L INSURAN CE CO.LTD.
      1ST FLOOR MAGAN UR COMMERCIAL COMPLEX,
      NEAR K.S .R.T.C. BUS STAND CHITRA DURGA .

                                            ...RESPONDENTS

(BY SRI. G.N.RAI CHUR, ADVOCATE F OR R3;
 NOTICE TO R1 SERVED;
 APPEAL AGAINST R2 STANDS DISMISSED)
                                       2




     THIS MFA IS FILED UNDER SECTION 173(1) OF MOT OR
VEHICLES A CT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 11.07.2013 PASS ED IN MVC NO.209/ 2012 ON THE FILE
OF   ADDITIONAL          SENIOR      CIVIL   JUDGE    AND     MEMBER,
ADDITIONAL       MACT,      RANEBENNUR,      PARTLY   ALLOWI NG      THE
CLAIM       PETITION        FOR      COMPETITION      AND     SEEKING
ENHANCEMENT OF COMPENSATION .


     THIS APPEAL COMI NG ON F OR ADMISSION THIS DAY, T HE
COURT , D ELIVERED THE F OLLOWING:


                               JUDGMENT

Challenging the judgment and award dated

11.07.2013 passed by the Additional Senior Civil Judge

and Member, Additional MACT, Ranebennur (for short,

'Tribunal') in MVC No.209/2012, this appeal is filed.

2. For the sake of convenience, parties will be

referred to as per their respective ranks before the

tribunal.

3. Brief facts as stated are that on 14.02.2011 at

6.00 p.m. claimant was riding his bicycle near Grama

Panchayat Office road, Bhanuvallai. At that time a goods

auto bearing registration No.KA-17/A-4082 came in rash

and negligent manner dashed against him. As a result he

sustained grievous injuries and was admitted to

Government Hospital, Harihara. He also took treatment at

private hospital at Davanagere but did not recover fully.

Claiming compensation for the same, he filed claim

petition under Section 166 of Motor Vehicles Act, 1988

(M.V.Act for short) against driver, owner and insurer of

goods auto.

4. Though all the respondents were represented

only respondent no.3 - insurer filed objections. Insurer

opposed claim petition on all counts. It was specifically

contended that there was severe discrepancy as regards

nature of accident, as reflected from police records. It

was also contended that driver of insured vehicle did not

have valid and effective driving license to driver vehicle

on the date of accident. Therefore, insurer would not be

liable. Petition was also opposed as being excessive.

5. Based on pleadings, tribunal framed following

issues:

1. Whether the petitioner proves that he sustained injuries in the accident occurred on 14.12.2011 as stated in the petition?

2. Whether R.2 proves that the driver had no valid and effective D.L. at the time of the accident?

3. Whether the petitioner is entitle for compensation? If so, what is the amount of compensation and from whom?

4. What order or award?

6. To establish his case, claimant examined

himself as PW-1. He also examined another witness as

PW-2. Exs.P.1 to P.11 were marked. Respondent no.3

examined two witnesses and marked Exs.R.1 to R.6.

7. On consideration, tribunal answered issues no.1

and 2 in the affirmative, issue no.3 partly in affirmative

and issue no.4 by assessing compensation at Rs.82,500/-

with interest at 7% per annum and directing respondents

no.1 and 2 to pay the same. The claim petition against

respondent no.3-insurer was dismissed. Not satisfied with

quantum of compensation and seeking for modification of

judgment on liability, claimant is in appeal.

8. Sri. G. N. Narasammanavar, learned counsel for

claimant/appellant submitted that claimant was admittedly

a third party as he was riding a bicycle when accident was

caused by driver of goods auto. Though respondents

sought to establish that driver of auto did not had driving

licence on the date of accident, claimant being a third

party, insurer cannot escape liability of third party.

Learned counsel relied upon Full Bench decision of this

Court in NEW INDIA ASSURANCE CO., LTD., BIJAPUR

VS. YALLAVVA AND ANOTHER reported in 2020 (2)

KCCR 1405.

9. On quantum of compensation it was submitted

that claimant was a 58 years old agricultural coolie. He

sustained fracture of lateral malleoulus of left ankle. PW-2

Dr. Umakanth R. Ullal after examining claimant assessed

disability of 30%. However, tribunal considered loss of

earning capacity of 8% only. It was also submitted that

though claimant had stated that he was earning more than

Rs.6,000/- per month, tribunal assessed his income at

Rs.4,000/- per month which was inadequate. Therefore on

ground of monthly income and extent of loss of disability,

claimant is seeking enhancement.

10. On the other hand, Sri. G. N. Raichur, learned

counsel for respondent no.3 - insurer supported the

award and opposed the appeal.

11. It was contended that respondent no.3 - insurer

led evidence to establish that as on date of accident i.e.,

14.02.2011 driver of insured vehicle - goods auto

rickshaw did not had driving licence. As per Ex.R.4 -

extract of driving licence, he obtained licence to drive

three wheeler other than light motor vehicle non transport

from 01.10.2011 which would be subsequent to the date

of accident.

12. In view of the same, as driver did not have

driving licence to drive the vehicle, on date of accident

the breach would be a fundamental breach of conditions

enumerated in Section 149 of the Act. Therefore, liability

could not be shifted on to the insurer.

13. On quantum of compensation, it was submitted

that considering disability sustained by claimant, award

passed by tribunal on overall consideration was just and

proper and did not call for any interference.

14. From above submission, the points that arise

for consideration are that:

(1) Whether Tribunal was justified in dismissing claim petition against respondent no.3 - insurer?

(2) Whether claimant is entitled for enhancement of compensation as sought for?

Point no.1.

15. From Exs.P.1, P.2 and P.3 i.e., FIR, complaint

and charge-sheet, the manner of occurrence of accident is

established. While riding his bicycle claimant was hit by

goods autorickshaw driven by its driver in rash and

negligent manner. As per the same, claimant would be a

third party. The Full Bench of this Court in Yallavva's

case (supra) at para 146 (1) and (2) has held as under:

"146. Necessity for insurance against third party risk . -

(1) No person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter.

Provided that in the case of a vehicle carrying, or meant to carry, dangerous or hazardous goods, there shall also be a policy of insurance under the Public Liability Insurance Act, 1991 (6 of 1991).

Explanation. - A person driving a motor vehicle merely as a paid employee, while there is in force in relation to the use of the vehicle no such policy as is required by this sub-section, shall not be deemed to act in contravention of the sub-section unless he knows or has reason to believe that there is no such policy in force.

(2) Sub-section (1) shall not apply to any vehicle owned by the Central Government

or a State Government and used for Government purposes unconnected with any commercial enterprise."

16. In view of the law laid down by the Full Bench

of this Court, insurer cannot escape liability insofar as

third parties are concerned. The only relief available to

insurer would be to pay compensation to claimants with

liberty to recover the same from insurer.

17. Hence, point no.1 has to be answered in

negative. It is held that respondent no.3 - insurer would

also be jointly and severally liable to pay compensation to

claimants.

18. On quantum of compensation though claimant

has stated that his monthly income was Rs.6,000/- he has

not produced any documents to substantiate the same. In

absence of substantial evidence, tribunal is justified in

taking notional income. But accident occurred on

14.02.2011. As per norms adopted by Karnataka State

Legal Services Authority for settling cases before Lok

Adalath, notional income for the year 2011, would be

Rs.6,000/- per month. Therefore, tribunal would not be

justified in taking it at Rs.4,000/- per month. It has to be

considered at Rs.6,000/- per month instead.

19. Insofar as loss of earning capacity, claimant

examined Dr. Umakanth R. Ullal as PW-2. PW-2 on

examination of claimant issued disability certificate as per

Ex.P.10. He also produced x-ray film - Ex.P.11. PW-2 in

his deposition has stated that claimant had sustained

injuries such as fracture of lateral malleoulus bone,

tenderness over ankle joint-line. He had examined

claimant and he clinically examined. In Ex.P.10 - he

opined that restriction of dorsiflexion is upto 50 and

plantar flexion is upto 10 0 and both are painful and

moderately restricted movement of right leg. As claimant

is an agricultural coolie and as restriction is marginal, it

would not affect his loss of earning capacity by much.

Tribunal assessed loss of earning capacity at 8% which

appears just and proper. There are no good grounds to

interfere with the same. Claimant is aged 58 years.

Multiplier applicable would be '9'. Thus future loss of

income would be:

Rs.6,000 x 8% x 12 x 9 = Rs.51,840/- as against

Rs.34,500/- awarded by tribunal.

20. Apart from above, tribunal awarded a sum of

Rs.8,000/- towards nourishment and other incidental

expenses, Rs.10,000/- towards loss and earning during

laid-up period and Rs.10,000/- towards loss of amenities

and Rs.20,000/- towards pain and suffering. As the

monthly income of claimant is reassessed as Rs.6,000/-

loss of income during laid-up period has to be

proportionately scaled up. A sum of Rs.15,000/- is

awarded towards same. Thus, the total compensation

would be as follows:

             Future loss of income                       Rs.51,840
             Nourishment and other                        Rs.8,000
             incidental charges
             Loss during laid up                         Rs.15,000
             period
             Loss of amenities                        Rs.10,000
             Pain and suffering                       Rs.20,000
                      Total                        Rs.1,04,840

21. In the result, I pass the following order:

ORDER

1. Appeal is allowed in part.

             2.   Judgment     and         award   passed        in   MVC
                  No.209/2012             dated    11.07.2013          by

Additional Senior Civil Judge and Member, Additional MACT, Ranebennur is modified.

3. Claimant is held entitled for compensation of Rs.1,40,840/- with interest at the rate of 6% from the date of filing of claim petition till the deposit as against Rs.82,500/- awarded by the tribunal.

4. Entire amount is directed to be released.

SD/-

JUDGE

BV K