Karnataka High Court
Sri.Kamal S/O Gangaram Jadhav vs Abdul Karim And Anr on 1 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 01ST DAY OF FEBRUARY-2022
PRESENT
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
MFA NO.202104/2016
C/W
MFA NO.201918/2016 (MV)
IN MFA No.202104/2016:
BETWEEN:
Sri Kamal
S/o Gangaram Jadhav,
Aged about 42 years,
Occ: KEB Fitter Temporary,
R/o KEB Tanda, Indi,
Kanakadas Badawane,
Plot No.171, Vijayapura.
... Appellant
(By Smt. Ratna N. Shivayogimath, Advocate)
AND:
1. Abdulkarim
S/o Md. Hanif Mashyalkar,
Aged about 48 years,
Occ: Owner of Auto-Rickshaw
2
No.KA-28-A-3995,
R/o A/P Indi, Tq: Indi,
Dist: Vijayapura-586 101.
2. The Branch Manager,
United Insurance Co. Ltd.,
Sangam Building, S.S. Front Road,
Vijayapura-586 101.
... Respondents
(Sri. Sanganagouda V. Biradar, Advocate for R1;
Smt. Anuradha M. Desai, Advocate for R2)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to set aside the
judgment and award dated 15.09.2016 passed by the
III Addl. District Judge & MACT No.IV, Vijayapura in MVC
No.1543/2013 and award the compensation as prayed for
in the original claim petition.
IN MFA No.201918/2016:
BETWEEN:
The Branch Manager,
United India Insurance Co. Ltd.,
Sangam Building, S.S. Front Road,
Vijayapur-586 101.
... Appellant
(By Smt. Anuradha M. Desai, Advocate)
AND:
1. Abdulkarim
S/o Md. Hanif Mashyalkar,
Age: 37 years,
Occ: Owner of Auto Rickshaw
Bearing No.KA-28-A-3995 of Vehicle
3
R/o A/P Indi, Tq: Indi,
Dist: Vijayapur-586 209.
2. Sri. Kamal
S/o Gangaram Jadhav,
Age: 39 years,
occ: KEB Fitter Temporary,
R/o KEB Tanda, Indi,
Now at Kanakadas Badawane,
Plot No.171, Vijayapur-586 209.
... Respondents
(Sri. Sanganagouda V. Biradar, Advocate for R1;
Smt. Ratna N. Shivayogimath, Advocate for R2)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to allow the
appeal and consequently discharge the liability fixed on the
appellant and modify the judgment and award dated
15.09.2016 passed by the court of the III Additional
District Judge & MACT-IV at Vijayapur in MVC
No.1543/2013.
These appeals coming on for Final Hearing this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
Both the appeals arising out of the judgment and
award dated 15.09.2016 passed in MVC No.1543/2013 by
the III Additional District Judge & MACT-IV, Vijayapur
(hereinafter referred to as 'the Tribunal' for short).
2. MFA No.202104/2016 is filed by the claimant
in MVC No.1543/2013, seeking enhancement of
compensation.
3. MFA No.201918/2016 is filed by the insurance
company, seeking to absolve the liability on the ground
that the driver of the offending vehicle bearing Reg.
No.KA-28-A-3995 did not possess valid and effective
driving licence.
4. For the sake of convenience, the parties shall
be referred to as per their ranking before the Tribunal.
5. The claimant filed a claim petition before the
Tribunal under Section 166 of the Motor Vehicles Act,
1988, seeking compensation of Rs.18,00,000/- for the
injuries sustained by him in a road traffic accident,
contending that on 11.07.2013, the claimant was traveling
in an Auto Rickshaw bearing Reg.No.KA-28-A-3995 to go
to his house at KEB Tanda, Indi and while he was traveling
in the said auto around 5.30 p.m., the driver of the Auto
Rickshaw drove the same in a rash and negligent manner
and tried to overtake the tractor which was going ahead of
the auto and during this process, the Auto Rickshaw
dashed to the Tractor and caused the accident. Due to the
accident, the claimant has sustained fracture injuries below
right knee and the right knee has been operated. Prior to
the accident, the claimant was hale and healthy and was
earning Rs.15,000/- per month by doing temporary KEB
fitter work and due to the accident, he has suffered
permanent disability.
6. Pursuant to issuance of summons by the
Tribunal, respondent Nos.1 and 2 appeared and filed their
separate written statement.
7. Respondent No.1 denied the occurrence of the
accident, the nature of injuries sustained by the claimant
and the expenses incurred by the claimant for treatment.
8. Respondent No.2-insurance company
contended that the complaint was filed by the claimant's
wife after 13 days of the alleged accident and the driver of
the offending vehicle bearing Reg.No.KA-28-A-3995 was
not holding valid and effective driving licence to drive the
said auto. He further contended that the owner of the
offending vehicle has violated the terms and conditions of
the insurance policy.
9. On the basis of the pleadings, the Tribunal
framed the following:
ISSUES
1. Whether the petitioner proves that he
has sustained simple and grievous
injuries in the Motor Vehicle Accident
that occurred on 11.07.2013 at about
5.30 hours State Bank Opp. Bijapur
road, in Indi Town, on account of rash
and negligent driving of Auto Rickshaw
bearing Reg.No.KA-28-A-3995, by its
driver as alleged?
2. Whether respondent No.2 proves that,
due to violation of policy condition they
are not liable to pay compensation?
3. Whether the petitioner is entitled for
the compensation? If so, what is the
quantum and from whom?
4. What order or award?
ADDL. ISSUES
1. Whether the respondent No.1 proves
that the accident has occurred, due to
rash and negligent driving of the
Tractor bearing No.KA-28-TA-833, by
its driver?
2. Whether the respondent No.1 proves
that the petition is bad for non-joinder
of necessary parties?
10. To prove their case, claimant got examined
himself as PW.1 and one supporting witness as PW.2 and
marked documents at Exs.P1 to P23. On behalf of the
respondents, respondent No.1-the owner of the vehicle
examined himself as RW.2 and respondent No.2-insurance
company examined one witness as RW.1 and got marked
Exs.R1 to R8.
11. The Tribunal, considering the material,
pleadings and evidence on record held that the claimant
sustained simple and grievous injuries due to the rash and
negligent driving of the driver of the Auto Rickshaw
bearing Reg.No.KA-28-A-3995 and fastened the liability on
insurance company on the ground that the insurance policy
was in force as on the date of the accident and awarded a
compensation of Rs.1,69,430/- with interest at the rate of
6% per annum from the date of petition till realization
under the following heads:
1. For pain and suffering Rs.20,000/-
2. For attendant charges Rs.01,800/-
3. For extra nourishment Rs.01,800/-
charges
4. For hospital and medicine Rs.62,830/-
charges
5. For loss of future income Rs.81,000/-
6. For conveyance charges Rs.02,000/-
Total Rs.1,69,430/-
12. Aggrieved by the fastening of liability on the
insurance company, MFA No.201918/2016 is preferred by
the insurance company and seeking enhancement of
compensation, MFA No.202104/2016 is preferred by the
claimant.
13. Learned counsel for the insurance company/
appellant in MFA No.201918/2016 would contend that the
fastening of liability on the insurance company by the
Tribunal is without considering that the driver of the
offending vehicle bearing Reg.No.KA-28-A-3995 has not
produced the driving licence to prove that he possess a
valid and effective driving licence to drive the said vehicle
on the date of accident. It is contended that the Tribunal,
though held that the owner of the vehicle has not produced
the driving lience of the driver of the Auto Rickshaw
bearing Reg.No.KA-28-A-3995 has erroneously come to
the conclusion that the owner and insurance company are
jointly liable to pay the compensation, without considering
the settled proposition of law that in case of violation of
the policy, the liability has to be shifted upon the owner of
the vehicle.
14. Per contra, Smt. Ratna N. Shivayogimath,
learned counsel for the claimant/appellant in MFA
No.202104/2016 would contend that the Tribunal was
justified in fastening the liability on the insurance company
and the owner of the vehicle jointly and the same does not
call for any interference. On the other hand, it is
contended that the quantum of compensation awarded by
the Tribunal is much on the lower side and seeks to
reassess the compensation.
15. Sri Sanganagouda V. Biradar, learned counsel
appearing for respondent No.1-the owner of the vehicle
would contend that the Tribunal was justified in fastening
the liability on the insurer and the owner of the vehicle
jointly and contended that the judgment and award passed
by the Tribunal does not call for any interference.
16. Having heard the learned counsel for the
parties and perused the material on record, the following
points would arise for consideration in these appeals:
1) Whether the Tribunal was justified in
fastening the liability jointly on the owner
and the insurance company without
considering the fact that the driver of the
offending vehicle did not possess a valid
and effective driving licence on the date of
the accident?
2) Whether the quantum of compensation
awarded by the Tribunal requires
reassessment?
Point No.1:
17. The date, time and occurrence of the accident
and the injuries sustained by the claimant due to the
accident are not in dispute. The only dispute raised by the
insurance company is that, the driver of the offending
vehicle bearing Reg.No.KA-28-A-3995 did not possess
valid and effective driving licence as on the date of the
accident.
18. A perusal of the records would clearly show
that the owner of the offending vehicle has not produced
the driving licence of the driver to show that the driver of
the auto rickshaw possessed a valid and effective driving
licence, nor any efforts have been made by respondent
No.1-owner of the offending vehicle to produce the driving
licence of the driver. What can be gathered from this is,
the driver of the offending vehicle did not possess valid
and effective driving licence as on the date of the accident.
The Tribunal, though held that the driver of the offending
vehicle did not possess valid licence has failed to hold that
there was breach of the policy conditions i.e., non-
possessing of the driving licence. This position is squarely
covered by the judgment of the Hon'ble Apex Court in the
case of Amrit Paul Singh and Anr. v. TATA AIG
General Insurance Co. Ltd. and Ors. reported in AIR
2018 SC 2662 and the subsequent judgment in New
India Assurance Co. Ltd., Bijapur v. Yallavva and
Another, reported in 2020 (2) KCCR 1405 (FB),
wherein the Hon'ble Apex Court directed the insurance
company to pay the claim amount awarded by the Tribunal
in the first instance with a liberty to recover the same from
the owner of the vehicle in accordance with law, if the
terms of the policy had been violated.
19. In view of the reasons stated supra, point No.1
is answered in the negative holding that the insurance
company is directed to pay the compensation awarded by
the Tribunal in the first instance and recover the same
from respondent No.1-owner of the offending vehicle.
Point No.2:
20. Insofar as the quantum of compensation is
concerned, the Tribunal has awarded a sum of
Rs.1,69,430/- with interest at 6% per annum from the
date of petition till the realization under various heads.
21. A perusal of the impugned award clearly
indicates that the quantum of compensation awarded
requires to be reassessed.
22. The claimant examined Dr. Omprakash
Pattanshetty, Professor & HOD Orthopedic, BLDE Medical
College, Vijayapur and Consultant Orthopedic and Spine
Surgeon, who has issued the Disability Certificate-Ex.P19
as PW.2. In his evidence, PW.2 has categorically stated
that there is permanent disability to the extent of 40 to
45% to the whole body and the Disability Certificate
produce by the claimant would clearly show the injury and
the permanent disability suffered by the claimant. The
un-impeached and un-controverted evidence of the doctor
would clearly establish that there is permanent disability to
the entire body and therefore, the permanent disability to
the whole body is to be taken at 15% as against 10% as
considered by the Tribunal.
23. The Tribunal has taken the income of the
claimant at Rs.4,500/- per month, but as per the Lok-
Adalat guidelines, for the accidents of the year 2013, the
notional income is to be taken at Rs.7,000/- per month.
Hence, taking the monthly income of the claimant at
Rs.7,000/- per month, the disability at 15% and applying
the multiplier of 15 considering the age of the claimant,
the loss of future income would come to Rs.1,89,000/-
(Rs.7,000 x 12 x 15 x 15%).
24. Further, the compensation awarded by the
Tribunal under the other heads appears to be much on the
lower side.
25. Thereby, the compensation payable to the
claimant is reassessed as under:
1. Loss of future income Rs.1,89,000/-
(7000 x 12 x 15 x 15%)
2. Pain and suffering Rs.50,000/-
3. Attendant and conveyance Rs.25,000/-
charges
4. Extra nourishment charges Rs.25,000/-
5 Loss of amenities Rs.25,000/-
6 Loss of income during laid Rs.21,000/-
up period (7000 x 3)
7 Hospital and medical Rs.62,830/-
charges
Total Rs.3,97,830/-
The Tribunal has already awarded a compensation of
Rs.1,69,430/-. Hence, after deducting the same, the
claimant is entitled for the enhanced compensation of
Rs.2,28,400/- (Rs.3,97,830/- less Rs.1,69,430/-) along
with interest at 6% p.a.
26. In view of the above, point No.2 is answered in
the affirmative.
27. In the result, we pass the following:
ORDER
i) Both MFA No.202104/2016 and MFA
No.201918/2016 are partly allowed.
ii) The impugned judgment and award dated
15.09.2016 passed by the Tribunal in MVC
No.1543/2013 is hereby modified.
iii) The claimant/ appellant in MFA
No.202104/2016 is entitled for the enhanced
compensation of Rs.2,28,400/- together with
interest at 6% per annum from the date of
petition till realization.
iv) The insurance company/appellant in MFA
No.201918/2016 is directed to pay the
compensation awarded by the Tribunal
together with interest as well as the enhanced
compensation awarded by this Court together
with interest by depositing/paying the same
within a period of eight weeks from the date of
receipt of a certified copy of this judgment.
v) Liberty is reserved in favour of the insurance
company to pay the said amount at the first
instance and recover the same from
respondent No.1-owner of the offending
vehicle bearing Regn.No.KA-28-A-3995.
vi) The amount in deposit before this Court is
directed to be transmitted to the Tribunal for
disbursement.
vii) Registry is directed to transmit the Trial Court
records to the Tribunal.
viii) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
SMP/LG
