Appu vs Sanjay And Anr
2021 Latest Caselaw 3458 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH
      DATED THIS THE 21ST DAY OF OCTOBER, 2021
                      BEFORE
        THE HON'BLE MR.JUSTICE M.G.S.KAMAL
              MFA.No.201881/2018 (MV)
BETWEEN:

APPU S/O SHANKAR CHAVAN
AGE: 27 YEARS OCC: COOLIE
R/O: GHONASAGI L.T. NO.1
TQ: AND DIST: VIJAYAPURA-586 101.       ... APPELLANT

(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)

AND:
01.    SANJAY S/O MARUTI CHAVAN
       AGE: MAJOR OCC: OWNER OF THE TEMPO
       R/O: KADMAWADI KARVEER
       KOLHAPUR-416003

02.    THE BRANCH MANAGER
       NEW INDIA ASSURANCE CO. LTD.,
       VIJAYAPUR-586 101.
                                       ... RESPONDENTS

(BY SRI. MALLANNA REDDY, ADVOCATE FOR R2
R1 SERVED)
     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988 PRAYING TO
ENHANCE THE COMPENSATION AMOUNT PAYABLE TO THE
APPELLANT BY SUITABLY MODIFYING THE JUDGMENT AND
AWARD DATED 27.04.2018 PASSED BY THE COURT OF IV
ADDITIONAL DISTRICT JUDGE AND MACT - XIII AT VIJAYAPUR
IN MVC.NO.749/2016 AND FASTENING THE LIABILITY TO
INSURANCE COMPANY - RESPONDENT NO.2.

     THIS APPEAL COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
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                           JUDGMENT

This appeal is filed by the claimant under Section

173 (1) of the Motor Vehicles Act, 1988 (for short 'of the

M.V. Act') against the judgment and award dated

27.04.2018 passed in MVC.No.749/2016 on the file of the

Motor Accident Claims Tribunal, Vijayapura (henceforth

referred as 'Tribunal').

02. Brief facts leading to filing of the present

appeal are that on 23.03.2016 at about 16.00 hours, the

claimant was riding his motorcycle bearing Reg.No.KA-28-

K-4517 on Tikota to Gonasagi road, at that time the driver

of Tempo bearing Reg.No.MH-11-AG-4953 (henceforth

referred as 'offending vehicle') came from the opposite

direction in a very rash and negligent manner and dashed

to motorcycle of the claimant. Due to this impact the

claimant sustained injuries. Immediately, thereafter the

claimant was shifted to Basaveshwar Hospital, Vijayapur

for treatment, where he was treated as inpatient and

expended huge amount for his treatment. Thereafter, the

claimant has filed a claim petition under Section 166 of the

M.V. Act seeking compensation in a sum of `.10,70,000/-

on the premise that he was aged about 25 years as on the

date of accident and was earning `.10,000/- per month by

doing coolie work. That due to injuries suffered in the

accident that occurred on account of rash and negligent

driving of the offending vehicle, by its driver, he is not able

to carryout his regular work as earlier. The offending

vehicle belonging to respondent No.1 was insured with

respondent No.2 as on the date of accident, as such

respondents No.1 and 2 were jointly and severally liable to

pay the compensation.

03. Upon service of notice, though respondent

No.1 appeared before the Tribunal through advocate, but

did not file statement of objections. As such, the same was

taken as not filed. The respondent No.2 appeared through

its advocate and filed statement of objections denying the

averments of the claim petition. It also denied that

accident had occurred due to rash and negligent driving by

the driver of the offending vehicle. It is further contended

that accident had occurred due to rash and negligent riding

of motorcycle by the claimant himself and that the

claimant did not possess a valid and effective driving

license to ride the motorcycle as on the date of accident. It

is further contended that Tempo has did not have permit

to ply within the State of Karnataka. It is further

contended that driver of the offending vehicle had not

having valid and effective driving license to drive the

offending vehicle as on the date of accident. As such,

respondent No.2 was not liable to pay the compensation.

Hence, sought for dismissal of the claim petition as against

respondent No.2.

04. The Tribunal based on the pleadings of the

parties, framed issues and recorded evidence. The

claimant examined himself as PW.1 and Doctor Shantappa

Nagathan examined as PW.2 and marked nine documents

as Exs.P1 to 9. No witness has been examined on behalf of

the insurance company.

05. The Tribunal based on the pleadings and

evidence on record held that the accident in question had

occurred due to rash and negligent driving of the offending

vehicle by its driver causing injuries to the claimant.

Consequently, the Tribunal held that the claimant is

entitled for a total compensation of `.1,09,000/- with

interest at the rate of 9% p.a. from the date of petition till

depositing of the award amount in the Court and directed

respondent No.1 - owner of the offending vehicle to pay

the compensation exonerating respondent No.2 - insurance

company from the liability of payment of compensation.

06. Being aggrieved by the aforesaid judgment and

award the claimant is before this Court seeking

enhancement of compensation and also questioning the

order of exoneration of respondent No.2 - insurance

company from payment of compensation.

07. The learned counsel for the appellant -

claimant reiterating the grounds urged in the appeal

memorandum submitted that the Tribunal erred in

awarding a meager compensation of `.1,09,000/- without

taking into consideration the disability suffered by the

claimant. Referring to the deposition of PW.2 - Doctor, he

submits that as per Ex.P.8 - disability certificate the

claimant has suffered disability to the extent of 25% to

30% to the right lower limb, which has not taken into

consideration by the Tribunal. He further submits that the

order of the Tribunal exonerating the insurance company

from the liability of payment of compensation is incorrect

and unjustified. Hence, sought for allowing the appeal.

08. On the other hand, the learned counsel for the

respondent No.2 - insurance company submits that the

offending vehicle did not have valid permit to ply within

the State of Karnataka, as it was restricted only to the

State of Maharastra. He further submits that the permit

was granted to ply the offending vehicle within the State of

Karnataka after occurrence of accident. Thus as on the

date of accident there was no permit and therefore, there

was breach of the terms and conditions of the insurance

policy. Therefore, exoneration of the insurance company

from payment of compensation is justified. As regards the

compensation, he submits that claimant has not furnished

the sufficient evidence with regard to disability. Though

the Dr. Shantappa has been examined as PW.2, the

Tribunal has rightly taken into consideration the fact that

the disability certificate given by the Doctor cannot be

taken into consideration. He further submits that no

grounds were made out for enhancement of compensation.

On these grounds, sought for dismissal of the appeal.

09. Heard the learned counsel for the parties and

perused the records.

10. The points that arise for consideration are:

i) Whether the Tribunal has justified in exonerating respondent No.2 - insurance company from payment of compensation?.

ii) Whether the claimant has made out a case for enhancement of compensation? .

11. The accident in question is not in dispute.

Ex.P1 to P4 are the FIR, complaint, spot panchanama and

M.V.report and the same evidence the occurrence of the

accident and same has not been disputed. As per Ex.P5-

injury certificate issued by Sri.Basaveshwar Hospital,

Vijaypur, the claimant has suffered deformity, swelling and

shortening involving right thigh, right femur

anteroposterior and lateral view shows fracture shaft of

right femur. All the injuries are grievous in nature. The

claimant has been treated as inpatient at Basaveshwar

Hospital. Though the claimant has examined

Dr.Shantappan as P.W.2 who has issued disability

certificate at Ex.P8 in terms of which he has assessed

disability of the claimant at 25% to 30%, it is noted that

the fracture is united and there is no mal-union. This part

of the finding has not been disputed. There is also no

other material placed on record as to the effect of the

injuries on the functional ability of the claimant. However,

considering the nature of injuries referred to above, this

Court is of the considered view that a global compensation

of `.1,00,000/- be awarded in addition to `.1,09,000/-

awarded by the Tribunal. Thus, the claimant is held

entitled for compensation of `.2,09,000/- instead of

`.1,09,000/-. The claimant is also entitled for interest at

the rate of 6% p.a., from the date of petition till payment.

12. Adverting to the issue with regard to the

liability, the offending vehicle in question admittedly did

not have permit on the date of accident to ply the vehicle

within the State of Karnataka. The Insurance Company has

itself established the fact of breach of terms of the policy.

The Tribunal though has exonerated Respondent No.2-

Insurance Company from payment of compensation, in

view of the law laid down by the Apex Court in the case of

PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS

(2020 SCC ONLINE SC 752) and also the full Bench of this

Court in the case of NEW INDIA ASSURANCE CO.LTD.,

BIJAPUR vs. YELLAVVA AND ANOTHER (2020(2) KCCR

1405 (FB), the Insurance Company needs to be directed to

pay the compensation in the first instance and to later

recover the same in accordance with law.

13. In the result, I pass the following:

ORDER

The Appeal is allowed in part, granting compensation

of `.2,09,000/- with interest at the rate of 6% p.a., from

the date of petition till realization. The order dated 27 th

April 2018 passed in MVC No.749/2016 on the file of the

MACT, Vijayapura is modified to the extent stated above.

Respondent No.2-Insurance Company shall deposit

the enhanced compensation amount along with interest

within a period of six weeks from the date of receipt of a

copy of this Judgment and recover the same in accordance

with law.

Sd/-

JUDGE

KJJ/bnv