Karnataka High Court
The Divisional Manager vs Rustum Saleem Hawaldar on 3 February, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3 R D DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. CROB.No.869/2013
C/W M.F.A.Nos.20584, 20585, 20586
AND 20587 OF 2013 AND
M.F.A. CROB.No.868/2013 (MV)
IN MFA CROB NO.869/2013
BET WEEN
SRI SADASHIV,
S/O HANAMANT H NAIK,
AGE: 23 YEARS,
OCC: AGRICU LTU RE,
R/O Y ELI HADA GA LI,
TQ: ATHANI, DIST : BELAGAVI.
...CROSS OB JECTOR
(BY SRI K.H.B AGI, ADVOCATE)
AND
1. THE DIV IS IONAL MANAGER,
DIV IS ION OFF ICE,
THE ORIENTAL INSU RANCE CO.LTD.,
CLUB ROAD, B ELAGAVI.
2. SMT.GOU RAVVA,
W/O GOU DAPPA PATIL,
AGE: 53 YEARS,
OCC: BU SINESS,
R/O MAIGU R, TQ: JAMAKHANDI,
DISTR ICT: BAGALKOT.
...RESPONDENTS
(BY SRI S.V.YAJI, ADVOCAT E FOR R1;
SRI GIRIS H Y ADAWAD, ADVOCAT E FOR R2)
2
THIS MFA CROSS-OB JECTION IN MFA NO.20587/2013
IS FILED U NDER ORDER 41 RU LE 22 OF C.P.C. R/W
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 30.07.2 012 PASS ED IN
MVC No.2071/ 2010 ON THE FIL E OF THE P RES IDING
OFFICER, FAST TRACK COURT AND MOTOR ACCIDENT
CLAIMS TRIB UNAL, AT HANI, PARTLY ALLOWING TH E CLAIM
PET IT ION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.20584/ 2013
BET WEEN
THE DIV IS IONAL MANAGER,
DIV IS IONAL OFFICE,
ORIENTAL INSU RA NCE CO.LTD.,
CLUB ROAD, B ELAGAVI,
NOW REP.B Y B ALAKRISHNA K.NAYAK,
ASSISTANT MANAGER,
ORIENTAL INSU RA NCE CO.LTD.,
REG IONAL OFFICE,
SU MANGALA COMPLEX ,
OPPOS ITE: HDMC,
LAMINGT ON ROAD, HUBB ALLI.
...APPELLANT
(BY SRI S.V.YAJI, ADVOCAT E)
AND
1. SHRI GULAB S/O ANAND KAMB LE,
AGE: 35 YEARS,
OCC: PAINTING AND AGRICU LTU RE,
R/O ADAHALLI, TQ: ATHANI,
DISTR ICT: BELAGAVI.
2. SMT.GOU RAVVA,
W/O GOU DAPPA PATIL,
AGE: 53 YEARS,
OCC: BU SINESS,
R/O MIGUR, TQ: JAMAKHANDI,
DISTR ICT: BAGALKOT.
...RESPONDENTS
(BY SRI GIRISH YADAWAD, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
3
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 30.07.2 012 PASS ED IN
MVC No.2068/ 2010 ON THE FIL E OF THE P RES IDING
OFFICER, FAST TRACK COURT AND MOTOR ACCIDENT
CLAIMS TRIB UNAL, AT HANI, AWARDING THE
COMPENSATION O F ` 2,000/- WITH INTEREST AT T HE RATE
OF 6% PER ANNUM FROM THE DATE OF PET ITION TILL ITS
REAL IZ ATION.
IN MFA NO.20585/ 2013
BET WEEN
THE DIV IS IONAL MANAGER,
DIV IS IONAL OFFICE,
ORIENTAL INSU RA NCE CO.LTD.,
CLUB ROAD, B ELAGAVI,
NOW REP.B Y B ALAKRISHNA K.NAYAK,
ASSISTANT MANAGER,
ORIENTAL INSU RA NCE CO.LTD.,
REG IONAL OFFICE,
SU MANGALA COMPLEX ,
OPPOS ITE: HDMC,
LAMINGT ON ROAD, HUBB ALLI.
...APPELLANT
(BY SRI S.V.YAJI, ADVOCAT E)
AND
1. SHRI SALEEM,
S/O KUTUBU DDIN NIDON I,
AGE: 21 YEARS,
OCC: PAINTING WORK,
R/O YELIHADAGALI, TQ: ATHANI,
DISTR ICT: BELAGAVI.
2. SMT.GOU RAVVA,
W/O GOU DAPPA PATIL,
AGE: 53 YEARS,
OCC: BU SINESS,
R/O MIGUR, TQ: JAMAKHANDI,
DISTR ICT: BAGALKOT.
...RESPONDENTS
(BY SRI K.H.B AGI, ADVOCATE FOR R1;
SRI GIRIS H Y ADAWAD, ADVOCAT E FOR R2)
4
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 30.07.2 012 PASS ED IN
MVC No.2069/ 2010 ON THE FIL E OF THE P RES IDING
OFFICER, FAST TRACK COURT AND MOTOR ACCIDENT
CLAIMS TRIB UNAL, AT HANI, AWARDING THE
COMPENSATION OF ` 2,32,000/- WIT H INT EREST AT THE
RATE OF 6% PER ANNU M FROM THE DATE OF PETIT ION T IL L
ITS REAL IZ ATION.
IN MFA NO.20586/ 2013
BET WEEN
THE DIV IS IONAL MANAGER,
DIV IS IONAL OFFICE,
ORIENTAL INSU RA NCE CO.LTD.,
CLUB ROAD, B ELAGAVI,
NOW REP.B Y B ALAKRISHNA K.NAYAK,
ASSISTANT MANAGER,
ORIENTAL INSU RA NCE CO.LTD.,
REG IONAL OFFICE,
SU MANGALA COMPLEX ,
OPPOS ITE: HDMC,
LAMINGT ON ROAD, HUBB ALLI.
...APPELLANT
(BY SRI S.V.YAJI, ADVOCAT E)
AND
1. SHRI RUST UM SALEEM HAWALDAR,
AGE: 21 YEARS,
OCC: PAINTING,
R/O YELIHADAGALI, TQ: ATHANI,
DISTR ICT: BELAGAVI.
2. SMT.GOU RAVVA,
W/O GOU DAPPA PATIL,
AGE: 53 YEARS,
OCC: BU SINESS,
R/O MIGUR, TQ: JAMKHANDI,
DISTR ICT: BAGALKOT.
...RESPONDENTS
(BY SRI K.H.B AGI, ADVOCATE FOR R1;
SRI GIRIS H Y ADAWAD, ADVOCAT E FOR R2)
5
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 30.07.2 012 PASS ED IN
MVC No.2070/ 2010 ON THE FIL E OF THE P RES IDING
OFFICER, FAST TRACK COURT AND MOTOR ACCIDENT
CLAIMS TRIB UNAL, AT HANI, AWARDING THE
COMPENSATION OF ` 25,000/- WITH INTEREST AT THE RATE
OF 6% PER ANNUM FROM THE DATE OF PET ITION TILL ITS
REAL IZ ATION.
IN MFA NO.20587/ 2013
BET WEEN
THE DIV IS IONAL MANAGER,
DIV IS IONAL OFFICE,
ORIENTAL INSU RA NCE CO.LTD.,
CLUB ROAD, B ELAGAVI,
NOW REP.B Y B ALAKRISHNA K.NAYAK,
ASSISTANT MANAGER,
ORIENTAL INSU RA NCE CO.LTD.,
REG IONAL OFFICE,
SU MANGALA COMPLEX ,
OPPOS ITE: HDMC,
LAMINGT ON ROAD, HUBB ALLI.
...APPELLANT
(BY SRI S.V.YAJI, ADVOCAT E)
AND
1. SHRI SADASHIV,
S/O HANAMANTH NAIK,
AGE: 53 YEARS,
OCC: AGRICULTU RE,
R/O YELIHADAGALI, TQ: ATHANI,
DISTR ICT: BELAGAVI.
2. SMT.GOU RAVVA,
W/O GOU DAPPA PATIL,
AGE: 53 YEARS,
OCC: BU SINESS,
R/O MIGUR, TQ: JAMKHANDI,
DISTR ICT: BAGALKOT.
...RESPONDENTS
(BY SRI K.H.B AGI, ADVOCATE FOR R1;
SRI GIRIS H Y ADAWAD, ADVOCAT E FOR R2)
6
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 30.07.2 012 PASS ED IN
MVC No.2071/ 2010 ON THE FIL E OF THE P RES IDING
OFFICER, FAST TRACK COURT AND MOTOR ACCIDENT
CLAIMS TRIB UNAL, AT HANI, AWARDING THE
COMPENSATION OF ` 30,000/- WITH INTEREST AT THE RATE
OF 6% PER ANNUM FROM THE DATE OF PET ITION TILL ITS
REAL IZ ATION.
IN MFA CROB NO.868/2013
BET WEEN
SRI SALEEM S/O KUT UBU DDIN NIDONI,
AGE: 20 YEARS, OCC: PAINTING WO RK,
R/O Y ELI HADA GA LI,
TQ: ATHANI, DIST : BELAGAVI.
...CROSS OB JECTOR
(BY SRI K.H.B AGI, ADVOCATE)
AND
1. THE DIV IS IONAL MANAGER,
DIV IS ION OFF ICE,
THE ORIENTAL INSU RANCE CO.LTD.,
CLUB ROAD, B ELAGAVI.
2. SMT.GOU RAVVA,
W/O GOU DAPPA PATIL,
AGE: 53 YEARS, OCC: BU SINESS,
R/O MAIGU R, TQ: JAMAKHANDI,
DISTR ICT: BAGALKOT.
...RESPONDENTS
(BY SRI S.V.YAJI, ADVOCAT E FOR R1;
SRI GIRIS H Y ADAWAD, ADVOCAT E FOR R2)
THIS MFA CROSS-OB JECTION IN MFA NO.20585/2013
IS FILED U NDER ORDER 41 RU LE 22 OF C.P.C. R/W
SECT ION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 30.07.2 012 PASS ED IN
MVC No.2069/ 2010 ON THE FIL E OF THE P RES IDING
OFFICER, FAST TRACK COURT AND MOTOR ACCIDENT
CLAIMS TRIB UNAL, AT HANI, PARTLY ALLOWING TH E CLAIM
PET IT ION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
7
THESE CROSS OB JECTIONS AND APPEALS COMING ON
FOR ORD ERS, T HIS DAY THE C OU RT DEL IVERED THE
FOLLOWING:
JUDGMENT
These appeals and the cross-objections arise out
of a common judgment passed by the Presid ing Officer,
Fast Track Court and Motor Accident Claims Trib unal,
Athani (hereinafter referred to as the 'Tribunal', for
brevity) in MVC Nos.2068, 2069, 2070 and 2071 of
2010 dated 30.07.2012 and therefore all the appeals
and the cross-objections are heard together and
disposed off by this common judgment.
2. Though these appeals and cross-objections
are listed for orders, with the consent of the learned
counsels appearing on both sides, the same are taken
up for final disposal. The parties to these cases are
referred to by their rankings assigned to them before
the Tribunal for the sake of convenience.
3. Brief facts of the case that would be
relevant for the purpose of disposal of these appeals
and cross-objections are:
On 09.04.2010 at about 4.00 p.m. the claimants
before the Tribunal were proceeding in a private jeep
bearing registration No.MH-10/C-2454 from Athani
towards their village and when the said jeep reached
near Chamakeri Circle, the offending tractor bearing
registration No.KA-48/T-350 with the trailer, which
was driven in a rash and negligent manner by its
driver came from Chamakeri side towards Badachi
and dashed against the jeep in which the claimants
were traveling and thereby caused the accident. In
the said accident, the claimants suffered grievous
injuries and they were all shifted to Civil Hospital,
Athani initially and thereafterwards to a private
hospital for better treatment. It is in this
background, the claimants had filed claim petitions
under Section 166 of the Motor Vehicles Act, 1988
(for short, the 'Act') against the owner and insurer of
the offending tractor trailer claiming compensation in
respect of the injuries sustained by them in the road
traffic accident that had taken place on 09.04.2010.
The Tribunal has partly allowed the claim petitions
and saddled the liability to pay the compensation
amount on the insurer of the offending tractor and
trailer with liberty to recover the same from the
owner of the offending tractor. Being aggrieved by
the liability saddled on it, the insurer has preferred
the appeals while the claimants in MVC Nos.2069 and
2071 of 2010 have filed cross-objections seeking
enhancement of the compensation.
4. Learned counsel for the insurer submits
that admittedly the driver of the offending tractor did
not have a valid and effective driving licence to drive
a tractor attached with trailer as on the date of
accident and therefore the Tribunal ought not to have
saddled the liability to indemnify the owner of the
tractor. He submits that the insured vehicle was used
in violations of the terms and conditions of the policy
and therefore the Tribunal ought to have exonerated
the insurer.
5. Per contra, learned counsel appearing for
the claimants submits that the claimants are third
parties and therefore the Tribunal has rightly held
that the insurer has to pay and recover the
compensation amount from the owner of the
offending tractor. He submits that in view of the
judgment of the full bench of this Court in the case of
New India Assurance Company Limited V/s
Yallavva and another reported in 2020(2) KCCR
1405 (FB), the Tribunal was justified in ordering pay
and recovery. He also submits that the compensation
awarded to the claimants in MVC Nos.2069 and 2071
of 2010 is on the lower side. He submits that the
notional income of the claimants therein has been
taken on lower side and even towards pain and
suffering and towards loss of amenities, the
compensation awarded is on the lower side.
Accordingly, he prays to enhance the compensation.
6. I have carefully considered the arguments
addressed on both sides and also perused the
material available on record.
7. The undisputed facts of the case are that
the claimants who were traveling in a private jeep
had met with an accident on 09.04.2010 as a result
of the rash and negligent driving of the driver of the
offending tractor and trailer bearing registration
No.KA-48/T-350 which was duly insured by the
insurer herein and the said policy was valid as on the
date of accident. It is not in dispute that the
claimants have all suffered grievous injuries in the
said accident and they were treated in a private
hospital for the same. As rightly contended by the
learned counsel for the claimants, the claimants are
third parties to the insurance policy issued by the
insurer in respect of the offending vehicle is
concerned. Therefore, even if the said vehicle was
used in violations of the terms and conditions of the
policy having regard to the judgment of the full
bench of this Court in Yallavva's case, the insurer of
the offending vehicle was rightly saddled with the
liability to pay and recover the compensation amount
from the owner of the offending vehicle. Therefore, I
find no merit in the appeals filed by the insurer
challenging the judgment passed by the Tribunal
insofar as it relates to saddling the liability to pay
the compensation and thereafterwards recover it
from the owner.
8. The claimant in MVC No.2069/2010 was
aged about 18 years as on the date of accident. He
had suffered fracture of tibia and fracture of fibula in
the accident in question and he was admitted in the
hospital for a period of 27 days and he had
undergone treatment for the injuries suffered by him
in the accident. The doctor-PW5 has deposed before
the tribunal that having regard to the injuries
suffered by the claimant, he had sustained disability
to the tune of 35% to the limb. The Tribunal has
taken into consideration the whole body disability at
7%. In my considered view the Tribunal ought to
have taken the disability at 12% to the whole body.
Having regard to the year of accident, in view of the
income chart maintained by the Karnataka State
Legal Services Authority for the purpose of disposal
of motor accident claims cases before the Lok
Adalath, the notional income of the claimant ought to
have been taken at `5,500/- as against `3,500/-
considered by the Tribunal. Having regard to the age
of the claimant, the proper multiplier applicable
would be '18'. In the said event, the claimant would
be entitled for a sum of `1,42,560/- towards loss of
future income due to disability. Towards pain and
suffering, the claimant is entitled for a sum of
`50,000/- as compensation as against `25,000/-
awarded by the Tribunal. The medical bills produced
by the claimant totally amounts to `1,22,975/- and
therefore towards medical expenses, the claimant is
entitled for a sum of `1,23,000/-. Towards loss of
income during laid up period, the claimant is entitled
for a sum of `16,500/- and towards loss of amenities
in future life, he is entitled for a compensation of
`30,000/-. In addition to the same, the claimant is
entitled for a sum of `10,000/- towards incidental
expenses. Therefore in all, the claimant is entitled for
a total compensation of `3,72,060/- as against
`2,32,000/- awarded by the Tribunal. The enhanced
amount of compensation shall also carry interest at
6% per annum from the date of petition till
realization.
9. The claimant in MVC No.2071/2010 was
aged about 20 years as on the date of accident. He
had suffered the fracture of left ankle and two other
simple injuries in the accident in question. He was
admitted in the hospital as an inpatient for a period
of four days and was treated conservatively. The
Tribunal had awarded global compensation of
`30,000/- with interest to the claimant. In my
considered view towards pain and suffering, the
claimant is entitled for a sum of `25,000/- as
compensation. He is also entitled for a sum of
`5,000/- towards medical expenses and another sum
of `5,000/- towards incidental expenses. The
claimant is also entitled for a sum of `25,000/-
towards loss of amenities in future life and sum of
`11,000/- towards loss of income during laid up
period. Therefore in all, the claimant is entitled for a
compensation of `71,000/- as against `30,000/-
awarded by the Tribunal. The enhanced amount of
compensation shall also carry interest at 6% per
annum from the date of petition till realization.
10. Since the Insurer of the offending Tractor is
held liable to pay and recover the compensation
amount from the owner of the offending vehicle, the
enhanced amount of compensation with interest shall
also be deposited by the Insurer before the Tribunal
within a period of six weeks from the date of receipt
of certified copy of this order.
11. The amount in deposit in the appeals filed
by the Insurer is directed to be transferred to the
Tribunal for the purpose of disbursement. The order
passed by the Tribunal insofar as it relates to
disbursement and deposit etc remains unaltered.
12. The Miscellaneous First Appeals filed by the
Insurer are accordingly dismissed and the Cross-
objections filed by the Claimants are partly allowed.
Sd/-
JUDGE
CLK /ga b
