Karnataka High Court
Sri. Manjunath S/O Laxman Gouda vs Sri. Ambrose Salvodar D Soza on 17 February, 2022
Bench: S.Vishwajith Shetty
1 M.F.A.24566/2011
c/w MFA 24286/2011
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17 T H DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No .24566/2011(MV)
C/W M.F.A.No.24286/2011
IN M.F.A. No.24566/2011
BET WEEN
SRI. MANJU NATH S/O LAX MAN GOUDA,
AGE: 28 YEARS, OCC: DRIVER-CU M- COOLIE,
R/O MATADAKERI, TQ: HONNAVAR,
DIST: U TTAR KANNADA.
... APPELLANT
(BY SRI.ANAND DESAI, ADVOCAT E FOR SRI.J.S.SHETTY,
ADVOCATE FOR SRI. DEEPAK SHETTY , AND SRI.
CHANDRASHEKAR R., ADVOCAT ES)
AND
1 . SRI. AMB ROSE SALVODAR D'S OZ A
AGE: MAJOR, OCC: BUSINESS,
R/O MATADAKERI, TALUK: HONNAVAR,
DIST: U TTAR KANNADA .
2 . THE DIV IS IONAL MANAGER,
NAT IONAL INSU RANCE COMPANY LIMIT ED,
DIV IS IONAL OFFICE, SHANKAR B U ILDING,
MOSQUE ROAD, UDU PI.
...RESP ONDENTS
(BY SMT.VEENA HEDGE, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE JU DGMENT AND AWARD DATED 19.04.2011
PASSED IN MVC No.26/2010 ON TH E FILE OF T HE MEMB ER
ADDIT IONAL MOT OR ACCIDENT CLAIMS TRIB UNAL,
2 M.F.A.24566/2011
c/w MFA 24286/2011
HONNAVAR, PART LY ALLOWIN G TH E CLAIM PET IT ION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A.No.24286/2011
BET WEEN
THE DIVIS IONAL MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
DIV IS IONAL OFFICE, SHANKAR BU ILDING,
MOUSQUE ROAD, UDU PI,
REPRES ENTED BY ITS REG IONAL OFF ICE,
SU JATA COMPLEX , 1ST FLOOR, P.B . ROAD,
HU BLI, REPRESENTED B Y IT S ADMIN OFFICER.
... APPELLANT
(BY SRI.N.R.KU PPELU R, ADVOCATE)
AND
1 . SRI. MANJUNATH S/O LAX MANGOU DA,
AGE: 28 YEARS, OCC: DRIVER/COOL IE,
R/O: MATADAKERI, KARKI VILLA GE,
TQ: HONNAVAR, DIST: KARWAR.
2 . AMB ROSE S/O SALVODAR D'S OU ZA,
AGE: MAJOR, OCC: BUSINESS,
R/O: MATADAKERI, KARKI VILLA GE,
TQ: HONNAVAR, DIST: KARWAR.
...RESP ONDENTS
(BY SRI.ANAND DESAI, ADVOCATE FOR SRI.J.S.SHETTY,
ADVOCATE FOR R1; R2 SERVED)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE JU DGMENT AND AWARD DATED 19.04.2011
PASSED IN MVC No.26/2010 ON TH E FILE OF T HE MEMB ER
ADDIT IONAL MOT OR ACCIDENT CLAIMS TRIB UNAL,
HONNAVAR, AWARDING T HE COMPENSATION OF ` 82, 400/-
WITH INTER EST AT THE RATE OF 6% P.A. FROM THE DATE
OF PET ITION TILL REALISAT ION.
THESE APPEA LS COMING ON F OR ORDERS, THIS DAY
THE COU RT DELIVERED THE FOLL OWING:
3 M.F.A.24566/2011
c/w MFA 24286/2011
J U D G M E N T
These two appeals are filed by the claimant and
the insurer of the offending vehicle challenging the
judgment and award dated 19 t h April 2011 passed by
the Additional M.A.C.T., Honavar (for brevity "the
Tribunal") in M.V.C.No.26/2010.
2. The parties to this appeal are referred to by
their rankings before the Tribunal for the sake of
convenience.
3. The undisputed facts of the case are:
The claimant, who was a driver in the TATA 407
pick-up vehicle bearing registration No.KA-47/2734,
was proceeding in the said vehicle from Gerusoppa
towards Honavar. When the said vehicle reached
Dibbangal, another vehicle which came from the
opposite side, which was driven in a rash and
negligent manner dashed against the vehicle which
was driven by the claimant and caused the accident.
In the said accident, the claimant was grievously
injured and was admitted in a private hospital at
4 M.F.A.24566/2011
c/w MFA 24286/2011
Honavar and subsequently at Manipal wherein he was
treated as an inpatient for a period of nearly one
month. It is under these circumstances, the claimant
had filed a claim petition under Section 163-A of the
Motor Vehicles Act claiming compensation from the
owner and insurer of the vehicle, which he was
driving. The said petition was partly allowed by the
Tribunal awarding compensation of `82,400/- with
interest @ 6% per annum from the date of petition
till realization and the liability to pay compensation
was saddled on the insurer of the vehicle. Being
aggrieved by the same, the insurer had preferred
M.F.A.No.24286/2011 while the claimant has
preferred M.F.A.No.24566/2011 seeking enhancement
of compensation.
4. Learned counsel for the insurer submits that
the claimant was a driver of the vehicle which was
insured and therefore, he cannot maintain a claim
petition as against the owner and insurer of the
vehicle which he was driving. He submits that he
5 M.F.A.24566/2011
c/w MFA 24286/2011
himself is a tortfeasor and therefore, the claim
petition ought to have been dismissed.
5. Per contra, learned counsel appearing for the
claimant submits that the accident was caused by
another vehicle which had dashed against the vehicle
which was driven by the claimant and therefore in
view of the judgment of the Apex Court in the case of
United India Insurance Co.Ltd. -vs- Sunil Kumar
and Another 1, the claim petition filed by the
claimant is maintainable, as the question of
negligence cannot be gone into, in a claim petition
filed under Section 163-A of the M.V.Act. He submits
that the compensation awarded by the Tribunal is on
the lower side and accordingly seeks to enhance the
same.
6. I have given my careful consideration to the
rival arguments advanced on both sides and also
perused the material available on record.
2018 ACJ 1
6 M.F.A.24566/2011
c/w MFA 24286/2011
7. It is not in dispute that the accident was
caused when the oncoming vehicle dashed against
the pick-up vehicle bearing registration No.KA-
47/2734 in which the claimant was a driver.
Therefore, as rightly contended by the learned
counsel for the claimant having regard to the
judgment of the Apex Court in the case of Sunil
Kumar (supra), the claim petition filed by the driver
of the pick-up vehicle bearing registration No.KA-
47/2734 was very much maintainable for the simple
reason that in a petition under Section 163A of the
M.V.Act, the question of negligence cannot be gone
into by the Tribunal. Therefore, I find no merit in the
appeal filed on behalf of the insurer of the said
vehicle to the extent it relates to challenging the
judgment and award passed by the Tribunal saddling
liability to pay the compensation to the claimant.
8. Insofar as the appeal filed by the claimant
seeking enhancement of compensation is concerned,
the claim petition is one under Section 163A of the
7 M.F.A.24566/2011
c/w MFA 24286/2011
M.V.Act and therefore, the compensation is required
to be granted as provided under II Schedule of the
Motor Vehicles Act. Following the same, the Tribunal
has awarded compensation of `5,000/- towards pain
and suffering and the actual medical expenses of
`12,600/- has also been awarded. Towards loss of
future earning capacity due to permanent disability,
the Tribunal has awarded a total compensation of
`64,800/- taking into consideration the annual
income of the claimant at `36,000/-. The maximum
income that can be taken as per the Schedule would
be `40,000/- and in the said event, the claimant
would be entitled for a sum of `72,000/- towards loss
of future earning capacity due to permanent
disability. Therefore, the claimant is awarded
compensation as follows:
1 Pain and suffering `5,000/-
2 Medical expenses and `12,600/-
incidental expenses
3 Loss of future earning `72,000/-
capacity due to permanent
disability
Total `89,600/-
8 M.F.A.24566/2011
c/w MFA 24286/2011
The enhanced amount of compensation shall
carry interest @ 6% per annum from the date of
petition till realization.
Since the insurer of the pick-up vehicle bearing
registration No.KA-47/2734 is held liable to pay the
entire amount of compensation, the said insurer shall
deposit the balance amount of compensation before
the Tribunal within a period of six weeks from the
date of receipt of certified copy of this order.
The amount in deposit in M.F.A.No.24286/2011
is directed to be transmitted to the Tribunal for the
purpose of disbursement.
Accordingly, M.F.A.No.24566/2011 filed by the
claimant is partly allowed and M.F.A.No.24286/2011
filed by the insurer is dismissed.
Sd/-
JUDGE
KNM/-
