Karnataka High Court
Sri Thimmanna S/O Erappa vs Hanumantharaya S/O Kadirappa on 1 February, 2022
Bench: P.Krishna Bhat
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO.1047 OF 2011 (MV)
CONNECTED WITH
MISCELLANEOUS FIRST APPEAL NO.7015 OF 2009 (MV)
IN M.F.A. NO.1047/2011:
BETWEEN:
SRI THIMMANNA
S/O. SRI ERAPPA,
AGED ABOUT 33 YEARS,
RESIDING AT DODDAGHATTA VILLAGE,
HIRIYUR TALUK,
CHITRADURGA DISTRICT.
... APPELLANT
(BY SRI C. M. KEMPE GOWDA, ADVOCATE)
AND:
1. HANUMANTHARAYA
S/O. KADIRAPPA,
MAJOR,
OWNER OF MAXI CAB TEMPO BEARING NO.KA-9-4305,
RESIDENT OF KADAVAGERI GATE,
SIRA TALUK, TUMKUR DISTRICT,
SINCE DEAD, BY LEGAL REPRESENTATIVES:
1(A) SMT. LAKKAMMA
W/O. LATE HANUMANTHARAY,
AGED ABOUT 53 YEARS.
1(B) SMT. LAKSHMIDEVI
W/O. CHELUVARAJU &
D/O. LATE HANUMANTHARAY,
AGED ABOUT 28 YEARS.
2
1(C) SMT. LAKKAMMA
W/O. UMESHAPPA &
D/O LATE HANUMANTHARAY,
AGED ABOUT 25 YEARS.
1(D) KUMARI SOUMYA
D/O. LATE HANUMANTHARAY,
AGED ABOUT 23 YEARS.
1(E) MASTER BHOOTHARAJU
S/O. LATE HANUMANTHARAY,
AGED ABOUT 19 YEARS.
1(F) MASTER NARASIMHA MURTHY
S/O. LATE HANUMANTHARAY,
AGED ABOUT 18 YEARS.
ALL ARE RESIDENT OF KADAVAGERI GATE
BESIDE NH-4 MYSORE CIRCLE, SIRA TALUK,
TUMKUR DISTRICT.
2. THE BRANCH MANAGER
NEW INDIA ASSURANCE COMPANY LIMITED,
BRANCH OFFICE, BEHIND TALUK OFFICE,
VASAVI CIRCLE,
CHITRADURGA.
... RESPONDENTS
[BY SMT. H.C. LOKESHWARI, ADVOCATE, FOR
SRI A. RAVISHANKAR, FOR R-2,
R-1(A-F) ARE SERVED]
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 20-8-2009 PASSED IN M.V.C. NO.16
OF 2007 ON THE FILE OF THE CIVIL JUDGE (SR. DN.), MEMBER,
AMACT, HIRIYUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
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IN M.F.A. NO.7015/2009:
BETWEEN:
THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE,
BEHIND TALUK OFFICE,
VASAVI CIRCLE,
CHITRADURGA 577 501.
DULY REPRESENTED BY
THE NEW INDIA ASSURANCE CO. LTD.,
REGIONAL OFFICE,
NO.2/B UNITY BUILDING ANNEXE,
P. KALINGA RAO ROAD, (MISSION ROAD),
BENGALURU,
REPRESENTED BY ITS MANAGER.
... APPELLANT
(BY SMT. H.C. LOKESHWARI, ADVOCATE, FOR
SRI A. RAVISHANKAR)
AND:
1. SRI THIMMANNA
AGED ABOUT 32 YEARS,
S/O. SRI ERAPPA,
COOLIE & AGRICULTURIST,
RESIDENT OF DODDAGHATTA VILLAGE,
HIRIYUR TALUK.
2. SRI HANUMANTHARAYA
S/O. KADKIRAPPA,
(OWNER OF MAXI CAB BEARING NO.KA 09/4309),
SINCE DEAD, BY LEGAL REPRESENTATIVES:
2(A) SMT. LAKKAMMA
AGED ABOUT 52 YEARS,
W/O. LATE SRI HANUMANTHARAYA.
2(B) SMT. LAKSHMIDEVI
AGED ABOUT 27 YEARS,
D/O. LATE SRI HANUMANTHARAYA,
W/O. CHELUVARAJU,
AGRICULTURIST.
4
2(C) SMT. LAKKAMMA
AGED ABOUT 25 YEARS,
D/O. LATE SRI HANUMANTHARAYA,
W/O. SRI UMESHAPPA,
AGRICULTURIST.
2(D) SMT. SOUMYA
AGED ABOUT 22 YEARS,
D/O. LATE SRI HANUMANTHARAYA.
2(E) SRI BHOOTHAARAJU
AGED ABOUT 18 YEARS,
S/O. LATE SRI HANUMANTHARAYA.
2(F) MASTER NARASIMHAMURTHY
AGED ABOUT 16 YEARS,
S/O. LATE SRI HANUMANTHARAYA,
BEING MINOR, REPRESENTED BY
HIS MOTHER SMT. LAKKAMMA,
RESPONDENT NO.2(A) HEREIN.
ALL ARE RESIDENTS OF
KADAVAGERI GATE, BESIDE N. H. 4,
MYSORE CIRCLE, SIRA TALUK,
TUMKUR DISTRICT.
... RESPONDENTS
[BY SRI C.M. KEMPEGOWDA, ADVOCATE, FOR R-1, &
R-2(A-F) ARE SERVED]
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 20-8-2009 PASSED IN M.V.C.
NO.16 OF 2007 ON THE FILE OF THE CIVIL JUDGE (SR. DN.),
MEMBER, AMACT, HIRIYUR, AWARDING COMPENSATION OF
RS.43,000/- WITH INTEREST AT 6% PER ANNUM.
THESE MISCELLANEOUS FIRST APPEALS ARE COMING
ON FOR HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
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JUDGMENT
M.F.A. No.1047 of 2011 is filed at the instance of the
claimant seeking enhancement of compensation and M.F.A.
No.7015 of 2009 is filed at the instance of the Insurance
Company calling in question the correctness of the judgment
and award dated 20-8-2009 in M.V.C. No.16 of 2007 passed
by the Civil Judge (Sr. Dn.) and Additional Motor Accidents
Claim Tribunal, Hiriyur.
2. Claim petition proceeded on the allegation that on
23-4-2006 at about 3:45 p.m., the claimant was traveling in
Maxi Cab Tempo bearing Registration No.KA-09/4305 from
Nandihally to Sira and when it reached near Thavarakere, at
about 3:45 p.m., on account of rash and negligent driving of
the vehicle, it capsized and claimant suffered grievous
injuries.
3. Before the Tribunal, since the owner of the vehicle
was dead, his legal representatives were brought on record
and they have remained ex-parte and Insurance Company has
filed its detailed written statement denying the averments
made in the claim petition.
4. During trial, the claimant examined himself as P.W.1
and Exs.P.1 to P.11 were marked. One of the officials of the
Insurance Company was examined as R.W.1 and it also
examined two other witnesses as R.W.2 and R.W.3, and
Exs.R.1 to R.6 were marked.
5. Upon hearing the learned counsel on both sides and
perusing the record, the Tribunal allowed the claim petition in
part and awarded compensation of Rs.43,000/- with interest
thereon at the rate of 6% per annum from the date of petition
till its realisation with initial liability to pay compensation
fastened on the Insurance Company with liberty to recover
the same subsequently from the owner of the vehicle.
6. Learned counsel for Insurance Company in support
of his appeal advanced two fold contentions:
Firstly, the Driver of the insured vehicle was not in
possession of a valid and effective Driving License to drive the
offending vehicle and he was having non-transport LMV
Driving License. Secondly, the permit given to the insured
vehicle was to ply it as a contract carriage and at the time of
accident, it was plied as a stage carriage. Therefore, there
was violation of permit condition and for the two grounds
urged, Insurance Company is not liable to pay the
compensation and therefore, appeal deserves to be allowed.
7. The grounds urged on behalf of the claimant in
support of the case for enhancement of compensation is that
the amount determined under the heads of pain and
suffering, medical expenses and loss of income during laid up
period is on the lower side and therefore, appeal is required to
be allowed and the compensation requires to be enhanced.
8. I have given my anxious consideration to the
submissions made by the learned counsel on both sides and I
have carefully perused the record.
9. Exs.R.2 and R.6 are the Driving License extracts.
They show that at the time of accident, Driver of insured
vehicle was in possession of non-transport LMV Driving
License. The insured vehicle was obviously a transport LMV.
In view of the decision of the Hon'ble Supreme Court in
MUKUND DEWANGAN v. ORIENTAL INSURANCE COMPANY
LIMITED reported in AIR 2017 SC 3668, such a Driving
License will have to be construed as valid and effective
Driving License since the class of vehicle for which the Driver
was having the Driving License was the same as the insured
vehicle which was also LMV one. In that view of the matter, I
am constrained to reject the contention of the learned counsel
for the Insurance Company.
10. The next ground urged is with regard to permit
violation inasmuch as the permit granted to the insured
vehicle was to ply as contract carriage and at the time of
accident, it was plied as stage carriage. It is now settled that
in cases of violation of the permit condition, proper direction
to be issued is for the Insurance Company to pay and recover,
namely a direction to make payment of compensation in the
first instance and thereafter, recover the same from the owner
of the vehicle in the same proceedings later. As a matter of
fact, the Tribunal has issued the same direction and
therefore, there is no error or illegality in the direction issued
in the impugned award. Accordingly, I also reject the second
contention advanced by the learned counsel for the Insurance
Company.
11. Insofar as enhancement of the compensation is
concerned, Exs.P.5 and P.7 show that the claimant had
suffered fracture of both bones of leg. He was treated
conservatively and therefore, it is evident that he was not in-
patient in the Hospital. He has also not produced any case-
sheet to demonstrate that he was treated as in-patient, or for
that matter, he had undergone any surgery. He has not
examined any medical witness in order to prove the disability,
if any, suffered by him due to the accident. Under such
circumstances, there is no ground to enhance the
compensation of Rs.33,000/- under the heads of pain and
sufferings. Since the claimant has not produced the bills
towards medical expenses, the Tribunal has awarded a sum
of Rs.5,000/- as a reasonable expense and therefore, it is
maintained. However, since he has suffered fracture of both
bones of leg (right lower limb), he would not have been in a
position to work at least for a period of four months. Since
the claimant has not proved his actual income, his notional
income is fixed at 3,500/- per month for the year 2006.
Accordingly, Rs.14,000/- (Rs.3,500 x 4 months) is awarded
towards 'loss of income during laid up period'. Thus, in all,
the claimant is entitled for compensation of Rs.52,000/-. The
Tribunal has awarded Rs.43,000/- and thus, he is entitled for
enhanced compensation of Rs.9,000/- (52,000 - 43,000) and
it shall carry interest at the rate of 6% per annum from the
date of petition till the date of payment. Accordingly, I pass
the following
ORDER
i. M.F.A. No.1047 of 2011 filed by the claimant is
partly-allowed;
ii. M.F.A. No.7015 of 2009 filed by the Insurance
Company is dismissed;
iii. The claimant is entitled to enhanced compensation of
Rs.9,000/- (Rupees nine thousand only) with interest
at the rate of 6% per annum from the date of petition
till the date of payment. Further, in view of the order
already passed in M.F.A. No.1047 of 2011 on
17-7-2015, interest for a period of 427 days on
enhanced compensation is denied;
iv. The enhanced compensation shall be deposited within
six weeks' from the date of receipt of a certified copy
of this judgment; and
v. The amount in deposit shall be transmitted to the
Tribunal, forthwith.
Sd/-
JUDGE
kvk
