Karnataka High Court

Laxmamma @ Nagalaxmi vs C S Nagaraja on 27 January, 2022

Bench: P.Krishna Bhat

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF JANUARY, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE P.KRISHNA BHAT

                  M.F.A.No.9463/2018 (MV)

BETWEEN:

Laxmamma @ Nagalaxmi
W/o. Shivanna, Age 38 years,
Occ: House Wife and agriculturist,
R/o. Magadi Village,
Jagalur Taluk,
Davanagere District - 577 528.
                                             ..Appellant
(By Sri. R. Shashidhara, Advocate)

AND:

1.     C.S. Nagaraja
       S/o. Siddappa,
       Age 26 years, owner/driver
       of TATA Ace bearing
       KA-17/C-0258
       R/o. Thuppadahalli village,
       Jagalur Taluk,
       Davanagere District - 577 528.

2.     The Legal Manager,
       The Oriental Insurance Co. Ltd.,
       Thiluvalli Complex, P.B. Road,
       Davanagere - 577 001.
                                         Respondents
(BY Sri. Ravishankar A, Advocate for R-2;
R-1 - served)
                             2



                            ***
      This MFA is filed under Section 173 (1) of the Motor
Vehicles Act, against the judgment and award dated
08-02-2018 passed in MVC No.818/2015, on the file of the
III Additional Senior civil Judge and VII MACT,
Davanagere, partly allowing the claim petition for
compensation and seeking enhancement of compensation.

     This MFA coming on for hearing through Video
Conference, this day, the Court delivered the following:

                      JUDGMENT

This is an appeal at the instance of the claimant

seeking enhancement of compensation awarded in

MVC No.818/2015, by the judgment and award dated

08-02-2018, by the Court of III Additional Senior Civil

Judge & VII Additional MACT, at Davangere.

2. The claim petition proceeds on the allegation

that on 23-10-2014 at about 1:45 p.m., the claimant

was proceeding as a pillion rider on the motor cycle

bearing registration No.KA-17/EG-9480 which was

driven by her son to go to Karibasaweshwara Temple

and when it reached near Gowdikatte cross, a Tata

Ace vehicle bearing registration No.KA-17/C-0258

being driven in a rash and negligent manner by its

driver cum owner, dashed against the motor cycle

resulting in grievous injuries to the claimant appellant.

3. In the claim proceedings before the learned

Tribunal, both the respondents entered appearance

and respondent No.1 did not file any objections and

Insurance Company respondent No.2 filed a detailed

statement of objections, denying the material

averments in the claim petition.

4. During the trial, the claimant examined

herself as PW-1 and a Doctor was examined as PW-2.

Exhibits P-1 to P-12 were marked. Respondents

examined RW-1, who is an official of the Insurance

Company and policy of insurance was marked as

Ex.R-1.

5. Learned Tribunal, upon hearing the learned

counsel on both sides and perusal of the records

allowed the claim petition in part awarding

compensation of `1,72,000/- with interest thereon at

8% p.a., but exonerated the Insurance Company from

the liability to reimburse the compensation on the

ground that the injured who was also the driver was

not in possession of a valid and effective driving

licence to drive the class of vehicle in question.

6. Learned counsel for the appellant advanced

two-fold contentions. Firstly, he contended that in

view of the law laid down by the Hon'ble Supreme

Court in Shamanna and another Vs. Divisional

Manager, Oriental Insurance Company Limited and

others reported in AIR 2018 Supreme Court 3726

and Pappu and others Vs. Vinod Kumar Lamba and

another reported in AIR 2018 Supreme Court 592,

since the claimant appellant was a third party who

suffered the injuries in the accident, the learned

Tribunal could not have totally exonerated the

Insurance Company from the liability to reimburse the

compensation but should have issued a direction to

pay and recover with liberty to the Insurance

Company to recover the amount from the owner in

question after making the payment in the first

instance.

The next contention advanced by him is that the

learned Tribunal has awarded a lower compensation

even though the appellant had suffered fracture of the

right middle femur and she had placed substantial

evidence to show that there is sufficient residual

physical incapacity leading to functional disability to

the extent of 45%. Incidentally, he contended that

the learned Tribunal was in error in taking the notional

income of the claimant at `5,000/- per month having

regard to the fact that the accident had taken place in

the year 2014 and the notional income as per the

chart prepared by the Karnataka State Legal Services

Authority is `8,500/- per month for the said year. He

therefore submitted that the appeal deserves to be

allowed and the compensation awarded is required to

be enhanced.

7. Learned counsel Sri. A. Ravishankar, per

contra, contended that the driver against whom

charge sheet has been filed and a finding of

negligence has been recorded in causing the accident

was the son of the injured herself and therefore, the

finding of the learned Tribunal is right and justifiable

and does not warrant any interference with the same

and accordingly, the appeal is liable to be dismissed.

He also contended that the quantum of compensation

determined and awarded by the learned Tribunal is

just and fair and therefore, no case has been made

out on the evidence led in to enhance the same and

the appeal being devoid of merit is required to be

dismissed.

8. I have given my anxious consideration to the

submissions made on both sides and I have carefully

perused the records.

9. There is no dispute about the fact that the

injured appellant was a third party insofar as the

offending vehicle is concerned. Learned Tribunal has

recorded a finding that the owner of the insured

vehicle who was also driving the offending vehicle

was not in possession of a valid and effective driving

licence to drive the said vehicle. On the said finding,

the learned Tribunal has exonerated the Insurance

Company from the liability to pay the compensation

amount altogether. However, as rightly submitted by

the learned counsel for the appellant, in view of the

law laid down by the Hon'ble Supreme Court in

Shamanna's case (supra) and Pappu's case (supra),

since the injured appellant is a third party, the correct

and appropriate order to be passed in these class of

cases is 'pay and recover'. In view of the above

decisions of the Hon'ble Supreme Court, the learned

Tribunal was in error in totally exonerating the

Insurance Company from the liability to pay the

compensation and therefore the said direction is

required to be reversed by issuing a direction that the

Insurance Company shall in the first instance pay the

compensation awarded and thereafter recover the

same from the owner in the same proceedings.

10. Indisputably, the records produced before

the learned Tribunal show that the appellant had

suffered a fracture of Trochantric and the right middle

femur fracture. It is her evidence before the learned

Tribunal that on account of the same, she has suffered

a functional disability. PW-2 the medical witness

examined has deposed in detail about the restricted

movements of the right lower limb and he has

quantified the functional disability at 45%. I have

carefully perused the evidence of PW-2 and also the

disability certificate at Ex.P-9. Upon such

consideration, I am of the view that proper functional

disability to be fixed in the facts and circumstances of

this case is 20%.

11. Learned Tribunal has held that the appellant

was aged 35 years at the time of accident. The

evidence of PW-1 shows that at the time of accident

she was the pillion rider and her son was the rider of

the motor cycle which was hit by the offending Tata

Ace vehicle and obviously in order for the rider son to

be holding a valid and effective driving licence, which

according to PW-1, he was, he should have been at

least 18 years of age. Since no birth certificate or

other documentary evidence to establish the age of

the appellant in a definitive manner has been

produced, the legal age for the marriage of a woman

has to be taken into consideration. By taking into

consideration the said aspect, she would have been 19

years when she gave birth to her son and adding

another 18 years to the same, it is reasonable to hold

that she was 37 years at the time of the accident.

Now, the appropriate multiplier for 37 years is '15'.

12. The learned Tribunal has come to the

conclusion that the income of the appellant is `5,000/-

per month. That appears to be unreasonable for the

simple reason that for the year 2014, the chart

prepared by the State Legal Services Authority fixes

the notional income at `8,500/- per month.

13. As per the decision of the Hon'ble Supreme

Court in Jagdish Vs. Mohan and others reported in

(2018) 4 Supreme Court Cases 571, Erudhaya Priya

Vs. State Express Transport Corporation Limited

reported in (2020 SCC ONLINE SC 601) and Sandeep

Khanuja Vs. Atul Dande reported in (2017) 3 SCC 351,

the component of loss of future prospects is also

required to be factored in. Therefore, for the age of

37 years, as per the decision of the Constitution Bench

of the Hon'ble Supreme Court in National Insurance

Company Ltd. Vs. Pranay Sethi and others reported in

AIR 2017 Supreme Court 5157, 40% of the

established income is required to be added to the

established income. Accordingly, the loss of income

suffered by the appellant is required to be recomputed

as follows:

`8,500/-+40%x12x'15'x20% =`4,28,400/-

14. Under the head of pain and suffering, a sum

of `50,000/- is required to be awarded. Towards

medical expenses, a sum of `20,083/- is awarded

based on the documentary evidence placed.

15. Exhibit P-5 - wound certificate shows that

she was admitted to C.G. Hospital, Davanagere on

23-10-2014 and was discharged from the same on

03-12-2014. Therefore, she was in-patient for 41

days. A sum of `6,150/- (`150x41) is awarded

towards attendant's charges. Towards nourishing

food and conveyance charges, a sum of `15,000/- is

awarded. Towards loss of amenities, a token amount

of `20,000/- is awarded as the loss of income is

assessed based on multiplier method and even future

loss of prospects is also included therein [Raj Kumar

Vs. Ajay Kumar & Another reported in

(2011) 1 SCC 343]. She would have been unable to

work at least for a period of four months on account of

the injuries suffered by her and therefore, towards

loss of income during laid up period, a sum of

`34,000/- (`8,500/- x 4 months) is awarded.

16. Thus, the claimant - appellant is entitled for

total compensation of `5,73,633/- which is as under;

As awarded As awarded by the Heads by this Court Tribunal (in Rs.) (in Rs.) Pain and suffering 20,000.00 50,000.00 Medical expenses 20,083.00 20,083.00 Loss of Income 20,000.00 4,28,400.00 Attendant's charges - 6,150.00 Conveyance charges - 15,000.00 Loss of amenities 20,000.00 20,000.00 Future loss of income 91,800.00 34,000.00 Total (rounded off to 1,71,883.00 5,73,633.00 Rs.1,72,000/-)

The Tribunal has awarded a sum of `1,72,000/-.

The enhanced compensation is `4,01,633/-. On the

said enhanced compensation, the claimant is entitled

to be awarded interest @ 6% p.a. from the date of

petition till the date of payment.

*Insurance Company shall deposit the entire

compensation awarded with interest thereon by this

judgment with eight weeks from the date of the

receipt of a certified copy of this judgment and

thereafter, it shall recover the same from the owner of

the insured vehicle in the same proceedings.

Transmit the records to the learned Tribunal

forthwith.