Karnataka High Court
Irshadahmed vs Sateri on 21 February, 2022
Bench: S.Vishwajith Shetty
M.F.A.101208/2015
-1-
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21 S T DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.101208/2015 (MV)
BET WEEN
IRSHADAHMED S/ O. JAMALSAB TASHEWALE,
AGE 29 Y EARS, OCC: MOT OR B ODY BUILDING,
NOW NIL, R/O. DESUR, B ELAGAVI,
DISTR ICT B ELAGAVI. ..APPELLANT
(BY SRI. SHIVARAJ P. MUDHOL &
SRI. ANAND B AGEWADI, ADVOCATES)
AND
1. SRI. SATERI S/O. RAJARAM SU LEB HAVIKAR,
AGE MAJOR, OCC: B USINESS,
R/O. MAJU KAR GALLI, DESU R VILLA GE,
TALUK : B ELAGAVI,
DISTR ICT B ELAGAVI.
2. THE GENERAL MANAGER,
NEW INDIA ASSU RANCE CO., LTD.,
NO.3128, CHAMPA BUILDING,
KHADE B AZ AR, B ELAGAV I,
DIST. BELAGAVI. ...RESPONDENTS
(R1- SERVED;
SRI. RAVINDRA R. MANE, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173( 1) OF M.V.ACT, 1988, AGA INS T THE
JUDGMENT AND AWARD DATED 21.10.2014, PASSED IN MVC
NO.946/ 20 13, ON T HE F ILE OF THE PR ESIDING OFF ICER,
FAST TRACK COURT-III, B ELAGAVI, PARTLY ALLOWIN G THE
CLAIM PET IT ION FOR COMPENSAT ION AND S EEKING
ENHANCEMENT OF COMPENSATION.
2
THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:
J U D G M E N T
The claimant has preferred this appeal as
against the judgment and award dated 21.10.2014
passed by the Fast Track Court III and MACT,
Belagavi (hereinafter referred to as the 'Tribunal', for
brevity) in MVC No.946/2013, questioning the
quantum of compensation, as well the liability.
2. Though this appeal is listed for admission,
with the consent of the learned counsels appearing
for the parties, the appeal is taken up for final
disposal. The parties to this appeal are referred to by
their rankings before the Tribunal for the purpose of
convenience.
3. Brief facts of the case that would be
relevant for the purpose of disposal of this appeal
are:
On 16.03.2013, at about 9.30 p.m., the claimant
was proceeding in a motorbike bearing registration
No.KA-22/EE-3300 from Peeranwadi to Desur village.
When the said motorbike was proceeding near
Nanadihalli-Desur road, near Gajanan Shop Desur,
the rider of another motorbike bearing registration
No.KA-22/ED-8253 which was driven in a rash and
negligent manner dashed against the motorbike of
the claimant and caused the accident. In the said
accident, the claimant suffered grievous injuries and
he was admitted in a private hospital at Belagavi,
wherein, he was treated as an inpatient. Thereafter,
he was shifted to KLE Hospital, Belagavi. It is under
this background, the claimant has filed the petition
under Section 166 of the Motor Vehicles Act, claiming
compensation from the owner and Insurer of the
offending motorbike bearing registration No.KA-
22/ED-8253. The tribunal has partly allowed the
claim petition and awarded a compensation of
`4,43,000/- with interest at the rate of 9% per
annum from the date of petition, till realization.
4. The respondent No.1 who is the owner of
the offending motorbike was held liable to pay the
compensation and the Insurer of the offending
motorbike was exonerated from its liability. It is
under this circumstance, the claimant is before this
Court in this appeal.
5. Learned counsel for the claimant submits
that, the compensation awarded by the Tribunal
under all heads is on the lower side. He submits that,
the tribunal has not awarded any compensation
towards pain and suffering, incidental expenses and
loss of income during laid up period. He submits that,
the tribunal was not justified in exonerating the
liability of the insurer, as the rider of the motorbike
was possessing a valid and effective driving licence
to drive a light motor vehicle and heavy motor
vehicle.
6. Per contra, the learned counsel for the
Insurer submits that, the compensation awarded by
the tribunal is on the higher side and needs to be
reduced. He submits that, admittedly the rider of the
offending motorbike did not possess a valid and
effective driving licence to drive a two wheeler and
therefore, the tribunal was justified in saddling the
liability on the owner of the motorbike. Accordingly,
he prays to dismiss the appeal.
7. I have carefully appreciated the arguments
addressed on both sides and also perused the
material available on record.
8. The undisputed facts of the case are, in the
road traffic accident that has occurred on 16.03.2013
in which the offending motorbike bearing registration
No.KA-22/ED-8253 was involved, the claimant had
sustained grievous injuries and he was admitted in a
private hospital as inpatient for treatment. It is not
in dispute that the offending motor cycle bearing
registration No.KA-22/ED-8253 was duly insured by
the second respondent/Insurance Company and the
insurance policy was valid as on the date of accident.
9. The claimant had suffered two fracture
injuries in addition to other injuries on his body.
Ex.P8 and Ex.P9 are the wound certificates of the
claimant while Ex.P12 is the disability certificate
issued by the Doctor who had treated him. As could
be seen from Ex.P9, the claimant had suffered
fracture of distal tibia, fracture of talus cabord and
case of 5 t h meta tarsal on right side. The Doctor,
who was examined as PW-3, has spoken to the
injuries and also the treatment undergone by the
claimant and he has assessed the physical disability
to the particular limbs at 75%. The Tribunal has
considered the whole body disability at 20%, which
according to me, is just and proper. Though the
claimant had contended that he was drawing a salary
of `10,000/- per month and he was working in
Bhaskar Engineering Firm at Tilakwadi, Belgaum, he
had failed to prove his income as well as his
avocation. The Tribunal has considered the monthly
income of the claimant at `7,500/-. Since the
claimant had not proved his income, the notional
income of the claimant ought to have been taken at
`7,000/- per month, having regard to the year of
accident and in view of the income chart maintained
by the Karnataka Legal Services Authority for
disposal of the motor vehicle accident cases before
the Lok Adalat. The proper multiplier applicable
having regard to the age of the claimant would be
'17'. In the said event, the claimant would be
entitled for a sum of `2,85,600/- towards of loss of
future income due to disability. The claimant is also
entitled for a sum of `50,000/- towards pain and
suffering; `30,000/- towards loss of amenities in
future life and `21,000/- towards loss of income
during laid-up period. In addition to the same,
towards medical and other incidental expenses, the
claimant is entitled for a total sum of `97,000/-. In
the said event, the claimant would be entitled for a
total compensation of ` 4,83,600/- as against
`4,43,000/- awarded by the Tribunal.
10. The enhanced amount of compensation shall
carry interest @ 6% per annum from the date of
petition till realization.
11. The Tribunal had exonerated the liability of
the insurer of the offending motor cycle and directed
the owner of the offending motor cycle to pay the
compensation amount on the ground that the rider of
the offending motor cycle did not have a valid and
effective driving licence to drive the motor cycle as
on the date of accident. However, it is not in dispute
that the rider of the motor cycle was possessing a
valid and effective light motor vehicle and heavy
motor vehicle driving licence as on the date of
accident. Under the circumstances, having regard to
the judgment of the Hon'ble Supreme Court in the
case of Oriental Insurance Co.Ltd. -vs-
Zaharulnisha and others 1, the liability of the
insurer of the offending vehicle to pay compensation
cannot be completely exonerated. The claimant
AIR 2008 SC 2218
herein is admittedly a third party and therefore, the
insurer of the offending motor cycle is required to be
saddled with the liability to pay the compensation
amount to the claimant and thereafter recover the
same from the owner of the offending motor cycle in
the same proceedings.
Accordingly, the following order:
The Miscellaneous First Appeal is partly allowed.
The claimant is held to be entitled for a total
compensation of `4,83,600/- as against `4,43,000/-
awarded by the Tribunal with interest @ 6% per
annum from the date of petition till realization.
The insurer of the offending motor cycle bearing
registration No.KA-22/EE-3300 is directed to pay the
compensation to the claimant and recover the same
from the owner of the offending motor cycle.
The insurer of the offending motor cycle shall
deposit the compensation amount with interest before
the Tribunal within a period of eight weeks from the
date of receipt of certified copy of this order.
The order passed by the Tribunal insofar as it
relates to reimbursement, deposit, etc., remains
unaltered and shall be applicable even to the
enhanced amount of compensation.
Sd/-
JUDGE
*Svh/KNM/-
