Devindra S/O Rajaram Vaddar vs Khasim Patel S/O Suleman Patel And ...
2021 Latest Caselaw 3502 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH
      DATED THIS THE 25TH DAY OF OCTOBER, 2021
                      BEFORE
        THE HON'BLE MR.JUSTICE M.G.S.KAMAL
              MFA No.200386/2017 (MV)
BETWEEN:
DEVINDRA S/O RAJARAM VADDAR
AGE: 24 YEARS OCC: NOW NIL
R/O: H.NO.28, AMBEDKAR COLONY
JEWARGI DIST: KALABURAGI - 585 102.
                                      ... APPELLANT
(BY SRI. SANJEEV PATIL, ADVOCATE)
AND:
01.    KHASIM PATEL S/O SULEMAN PATEL
       AGE: MAJOR OCC: BUSINESS
       R/O: CHIGARALLI VILLAGE
       TQ: JEWARGI DIST: KALABURAGI - 585 108.
02.    THE DIVISIONAL MANAGER
       IFFCO TOKIO GENERAL INSURANCE CO. LTD.,
       ASIAN ARCADE, OPP: SYNDICATE BANK,
       NEAR ANAND HOTEL, S. B. TEMPLE ROAD,
       KALABURAGI - 585 102.
                                   ... RESPONDENTS
(BY SRI. BABU H. METAGUDDA, ADVOCATE FOR R1
BY SRI. S. S. ASPALLI, ADVOCATE FOR R2)
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT,
PRAYING TO MODIFY THE JUDGMENT AND AWARD
PASSED BY THE III ADDL. SENIOR CIVIL JUDGE AND
MACT,   KALABURAGI     IN MVC.NO.107/2012  DATED
02.12.2016 AND ALLOW THE APPEAL.
     THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
                               2




                        JUDGMENT

This appeal is filed by the claimant under Section

173 (1) of the Motor Vehicles Act, 1988 (henceforth

referred as 'of the M.V. Act') against the judgment and

award dated 02.12.2016 passed in MVC.No.107/2012 on

the file of the III Additional Senior Civil Judge, at

Kalaburagi (henceforth referred as 'Tribunal').

02. Brief facts leading to filing of the present

appeal are that on 24.01.2009 at about 07.00 p.m. the

appellant - claimant was proceeding as a pillion rider on

motorcycle bearing Reg.No.KA-32/Q-7146 ridden by one

Basavaraj towards Ashraya Colony, Shahapur. When they

came near Government Ware House on Shahapur -

Jewargi, Highway, at that time one Tractor bearing

Reg.No.KA-32-T-4758/CNT-6577 (henceforth referred as

'offending vehicle) came from opposite direction in a high

speed and in a rash and negligent manner and dashed to

the above said motorcycle. Due to this impact the rider

and pillion rider fell down and sustained injuries to all over

the body.

03. The claimant has filed the claim petition under

Section 166 of the M.V. Act claiming compensation of

`.13,30,000/- on the premise that he was aged about 19

years and was hale and healthy earning `.7,500/- per

month by doing masson work. That on account of injuries

suffered which was caused due to rash and negligent

driving by the driver of the offending vehicle, he is unable

to carryout the work as earlier and that there is shortening

of legs. The claimant had suffered 28% disability on

account of accident occurred. As such he sought for

compensation.

04. Similarly, the rider of motorcycle Reg.No.KA-

32/Q-7146 has filed the claim petition in MVC.No.47/2012.

05. Upon service of notice, the respondent No.1

did not appear and placed ex-parte. The respondent No.2 -

insurance company appeared through its advocate and

filed statement of objections denying age, occupation and

income of the claimant. It also contended that the accident

occurred due to rash and negligent riding by the rider of

motorcycle. It is further contended that there is a head-on

collusion between the vehicles and alleged accident

occurred due to contributory negligence. It is further

contended that the driver of Tractor did not possess valid

and effective driving license as on the date of accident.

Hence, sought for dismissal of the claim petition.

06. The Tribunal based on the pleadings of the

parties, framed issues and recorded evidence. The

claimant examined himself as PW.1 and Dr. Sachin Shah

s/o Avinash Shah examined as PW.2. The rider of the

motorcycle examined himself as PW.3. The claimant

marked fourteen documents as Exs.P1 to 14. No witness

has been examined on behalf of the insurance company.

07. The Tribunal based on the pleadings and

evidence on record held that the accident in question

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 `.2,69,000/- along with

interest at the rate of 6% p.a. from the date of petition till

payment under the following heads:-

 Sl.                 Heads                     Amount
 No.
01.      Towards pain and suffering        `.0,30,000/-
02.      Towards loss of future income     `.1,29,000/-
03.      Towards Medical Expenses          `.0,54,067/-
04.      Towards attendant's charges,      `.0,27,000/-
         food and conveyance
05.      Towards loss of amenities         `.0,10,000/-
         nutrition and food
06.      Towards     loss   of   income    `.0,18,000/-
         during     the     period    of
         treatment
07.      Total                             `.2,68,067/-
         Rounded off                       `.2,69,000/-

08. The Tribunal while fixing the liability held that

as on the date of accident the Tractor was being driven

along with Trolley bearing Reg.No.CNT-6577 and since the

owner of the said trolley is not made as a party, fixed the

liability at the rate of 50% on the insurance company of

the Tractor and directed to pay 50% of the compensation.

09. Being aggrieved by the aforesaid judgment and

award, the claimant is before this Court seeking

enhancement of compensation.

10. The learned counsel for the appellant -

claimant reiterating the grounds urged in the appeal

memorandum submitted that the Tribunal erred in

assessing the notional income of the claimant at `.6,000/-

per month, even while he was earning `.7,500/- per month

from doing masson work. He further submits that due to

accident the claimant had suffered 28% disability to entire

body, but the Tribunal assessed the disability at 10% to

entire body. He further submits that the Tribunal erred in

fixing the liability at 50% exonerating the insurance

company for payment at 50%, only on the ground that the

owner of the Trolley has not been made as a party to the

proceedings. Hence, sought for allowing of the appeal.

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

respondent No.2 - insurance company in justification of the

judgment and award passed by the Tribunal submits that

in a case where the Tractor and Trolley are involved in the

Road Traffic Accident, invariably liability shifts upon the

owner of Tractor and Trolley. He relied upon the judgment

of the Coordinate Bench of this Court in the case of

Divisional Manager, National Insurance Co. Ltd., vs.

Chandramma and others, reported in 2017 ACJ 1455

and the judgment of the Hon'ble Supreme Court in the

case of Natwar Parikh and Co. Ltd., vs. State of

Karnataka and others, reported in 2006 ACJ 1. Hence,

sought for dismissal of the appeal.

12. Heard the learned counsel for the parties and

perused the records.

13. The points that arise for consideration are:

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

ii) Whether the Tribunal has justified in fixing the liability at 50% on the respondent No.2 -Insurance Company?

14. The accident in question involving motorcycle

and Tractor is not in dispute. The injuries referred above

sustained by the claimant is also not in dispute. As seen

from the impugned judgment referring to the statement of

objections, which the Tribunal has recorded, even

according to the insurance company the accident is head-

on collusion, which invariably suggested as accident had

occurred between the Tractor and motorcycle.

15. Though it is claimed on behalf of the claimant

that he was earning `.7,500/- per month by doing masson

work. No acceptable evidence has been produced in this

regard. The Tribunal, however considering the facts and

circumstances of the case had assessed the notional

income of the claimant at `.6,000/- per month. In the facts

and circumstances of the matter, assessment of income by

the Tribunal is held as just and proper warranting no

interference in this regard. The disability certificate at

Ex.P.6 issued by PW.2 reveals that he had assessed

disability of the claimant at 28% to the entire body; with

details such as a) pain in right leg while running, b) limb

while walking, c) there is 1cm shortening of right leg

present, d) the girth of right leg is 1cm less then left, e)

the last 5' of right knee not possible, f) the last 5' of

plantarflexion and dorsiflexion of right ankle are restricted,

g) Inv & Eversion of Right Ankle are restricted by 5' and

there is difficulty in squatting. Considering the facts and

circumstances of the case, particularly limb, the Tribunal

had assessed the same at 10%. Though, the claimant had

suffered fracture to his both legs, there seems to have

been union of fracture. There is no evidence on record as

to the extent of reduction of the functional disability of the

claimant. As such, the disability assessed by the Tribunal is

held and maintained at 10%. However, the grant of

compensation under the heads of pain and suffering and

loss of amenities, are on the lower side. In view of the

injuries sustained by the claimant and also length of

treatment, which he has undergone in the facts and

circumstances of this case, this Court is of the considered

opinion that a global compensation at `.51,000/- be

awarded in addition to `.2,69,000/- awarded by the

Tribunal. Thus, the claimant is held entitled for a sum of

`.51,000/-. Hence, the claimant is held entitled to a total

compensation `.3,20,000/-. The enhanced compensation

shall carry interest at 6% p.a. from the date of petition till

payment.

16. Adverting to the issue with regard to liability,

the learned counsel for the insurance company relied upon

the judgment of the Coordinate Bench of this Court, in the

case of Divisional Manager, National Insurance Co.

Ltd., vs. Chandramma and others, reported in 2017

ACJ 1455, in which, while dealing with issue with regard

to the requirement separate insurance in respect of the

Tractor and Trolley held that the Tractor and Trailer both

require to be separately insured and if usage of Tractor

and Trailer have resulted in the accident and Tractor alone

is insured, the insurance company held not liable to pay

compensation. The facts and circumstances of the said

case are different and distinct from the facts and

circumstances of the instant case. In the said case it was

considered under the provisions of Workmen's

Compensation Act, 1923 and the workman was travelling

in the Tractor. In the instant case, the claimant was

travelling as pillion rider on motorcycle which was

admittedly hit by the Tractor head-on. Therefore, reliance

placed by the learned counsel for the insurance company

on the said judgment may not be way of avail.

17. The Hon'ble Supreme Court in the case of

Natwar Parikh and Co. Ltd., vs. State of Karnataka

and others, reported in 2006 ACJ 1, while dealing with

the provisions of Karnataka Motor Vehicles Taxation Act,

1957, held that Tractor and Trailer when combined would

constitute a 'goods carriage' and necessitate a permit its

use on roads. Even, the facts and circumstances of the

said case and principles laid down therein are not

applicable to the instant case, as the Hon'ble Supreme

Court was dealing with issue of permit of tax in respect of

'goods carriage' which is not the facts and circumstances

of the case.

18. There is no dispute that the accident in

question occurred on account of the Tractor, which was

insured by the insurance company, hitting motorcycle. The

question of involvement of a Trailer does not arise.

Further, reason for fixing the 50% liability on respondent

No.2 is not that Trailer was not insured, but for the reason

that owner of the Trolley was not made as a party to the

proceedings. This reasoning of the Tribunal appears to be

incorrect and unjustified. Since, the accident in question

had occurred by use of the Tractor which is insured,

respondents No.1 and 2 would be jointly and severally

liable to pay compensation. Since, the Tractor is insured, it

is just and proper that entire compensation awarded by

the Tribunal and enhanced by this Court be paid by the

respondent No.2 - insurance company in the facts and

circumstances of the case.

19. In the result, the following;

ORDER

(i) The MFA.No.200386/2017 filed by the

appellant - claimant is partly allowed.

(ii) The judgment and award of the Tribunal

in MVC.No.107/2012 dated 02.12.2016 is

modified.

      (iii)   The   claimant     is    held       entitled     for

              enhancement of `.3,20,000/- together

              interest at the rate of 6% p.a. from the

              date of claim petition till payment.

      (iv)    The   respondent        No.2        -    insurance

              company     is   directed      to       pay   entire

              compensation within a period of three

              months from the date of this order.


      (v)     The deposit made if any be transmitted

              to the Tribunal.



                                       Sd/-
                                      JUDGE
KJJ