Karnataka High Court
National Insurance Company ... vs Prakash Madukar Savant on 10 January, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10 T H DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
M.F.A. No.22316/2013
C/W M.F.A. No.24855/2013 (MV)
IN MFA No.223 16/ 2013
BET WEEN
NATIONAL INSURANCE COMPANY LT D.,
RAMDEV GALLI, B ELAGAVI NOW R/B Y
ITS DY.MANAGER, REG IONAL OFFICE,
HU BB ALLI.
...APPELLANT
(BY SRI RAJASHEKHAR S.ARANI, ADVOCATE)
AND
1. SHRI PRAKAS H MADUKAR SAVANT,
AGE: 23 YEARS,
OCC: CONTRACTOR SUPERVISOR
NOW NIL, R/O AT POST B ADAS,
TAL: DIST: B ELAGAVI.
2. SHRI LAXMAN ATMARAM KOLMEKAR,
AT POST: MADKHOL (DHAWADAKI)
TAL: SAVANTAWADI,
DIST: SING HADU RG,
(OWNER OF MOT ORCYCLE).
...RESPONDENTS
(BY SRI K.ANANDKU MAR, ADVOCATE FOR R1;
NOTICE TO R2 SERVED)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 09.01.2 013 PASS ED IN
MVC No.301/20 11 ON THE FILE O F T HE II ADDIT IONAL
2
SENIOR CIVIL JU DGE AND MEMB ER, ADDITIONA L MOTOR
ACCIDENT CLAIMS TRIBU NAL, B ELAGAVI, AWARDING T HE
COMPENSATION OF ` 1,10,040/- WIT H INT EREST AT THE
RATE OF 9% P.A. FROM THE DAT E OF PETIT ION TIL L ITS
REAL IZ ATION.
IN MFA No.248 55/ 2013
BET WEEN
SHRI PRAKAS H MADU KAR SAVANT,
AGED AB OUT 24 YEARS,
OCC: CONTRACTOR SU PERVISOR (NOW NIL),
R/O B ADAS, T AL: DIST: B ELAGAVI
...APPELLANT
(BY SRI K.ANANDKU MAR, ADVOCATE)
AND
1. SHRI LAXMAN ATMARAM KOLMEKAR,
AT POST: MADKHOL (DHAWADAKI)
TAL: SAVANTAWADI,
DIST: SING HADU RG,
STATE: MAHARASHT RA.
2. NAT IONAL INSU RANCE COMPANY LTD.,
B Y ITS DIV ISIONA L MANAGER,
RAMDEV GALL I, B ELAGAV I.
...RESPONDENTS
(BY SRI RAJASHEKHAR S.ARANI, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 09.01.2 013 PASS ED IN
MVC No.301/20 11 ON THE FILE O F T HE II ADDIT IONAL
SENIOR CIVIL J UDGE AND MEMB ER, ADDITIONA L MOTOR
ACCIDENT CLAIMS TRIBU NAL, B ELAGAVI, AWARDING T HE
COMPENSATION OF ` 1,10,040/- WIT H INT EREST AT THE
RATE OF 9% P.A. FROM THE DAT E OF PETIT ION TIL L ITS
REAL IZ ATION.
THESE A PPEA LS COMING ON FOR ADMISS ION, T HIS
DAY THE COU RT DELIVERED THE FOLLOW ING:
3
JUDGMENT
These two appeals arise out of the judgment and
award dated 09.01.2013 passed by the Court of II
Additional Senior Civil Judge and Member, Addl.
M.A.C.T., Belagavi (hereinafter referred to as the
'Tribunal' for brevity) in MVC No.301/2011.
2. Though these appeals are listed for
admission with the consent of the learned counsels
appearing for the parties, the appeals are taken up
for final disposal. The parties to these appeals 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 these appeals
are:
The claimant had filed a claim petition under
Section 166 of the Motor Vehicles Act, 1988 (for
short, the 'Act') claiming compensation of
`5,00,000/- with interest on account of the injuries
sustained by him in a road traffic accident that had
taken place on 14.02.2006. It is the case of the
claimant that on 14.02.2006 when he was traveling in
a motorcycle bearing registration No.MH-07/J-4652
as a pillion rider from Chaukul to Savantawadi, the
rider of the motor vehicle who was riding the
motorcycle in a rash and negligent manner dashed
against a pick up van bearing registration No.KA-
25/B-3291 and as a result, the claimant had
sustained grievous injuries and was admitted in the
hospital where he was treated as an inpatient. The
claimant suffered disability having regard to the
injuries in the accident in question. After service of
notice in the claim petition, respondent No.2-insurer
had entered appearance and filed statement of
objections. Respondent No.1 was placed ex-parte.
The Tribunal vide the impugned judgment and award
had granted compensation of `1,10,040/- with
interest at 9% per annum from the date of petition
till realization and respondent No.2 was directed to
deposit the compensation amount. Being aggrieved
by the same, respondent No.2-insurer has filed MFA
No.22316/2013 while the claimant has filed MFA
No.24855/2013 seeking enhancement of the
compensation.
4. Learned counsel for the appellant-insurer
submitted before this Court that the rider of the
motorcycle in which the claimant was traveling had
no licence and therefore the Tribunal was not
justified in saddling the liability on the insurer. He
submits that there was a fundamental breach to the
policy conditions and therefore the Tribunal ought not
to have saddled the liability to pay compensation on
the insurer. He also submits that the rate of interest
awarded by the Tribunal is on the higher side. The
Tribunal has granted interest at 9% per annum
whereas this Court has been consistently granting
interest at 6% per annum.
5. Per contra, learned counsel appearing for
the claimant submits that in the charge sheet filed
against the rider of the motorcycle, Section 3 of the
Act has not been invoked and therefore it cannot be
said that he did not have a driving licence at the time
of accident. He submits that the claimant was
working as a supervisor with the contractor and
therefore the income taken by the Tribunal is on the
lower side. He also submits that the compensation
awarded by the Tribunal on all other heads is on the
lower side and seeks enhancement of the same.
6. I have carefully considered the rival
arguments addressed by the learned counsels
appearing for the parties in these appeals and also
perused the material evidence available on record.
7. The undisputed facts of the case are that
on 14.02.2006, the motorcycle in which the claimant
was traveling as a pillion rider had met with an
accident and in the said accident, the claimant had
suffered injuries. It is also undisputed that the
motorcycle in which the claimant was traveling was
having effective valid insurance policy issued by the
insurer herein. The claimant had suffered the fracture
of right patella and also fracture of lateral wall of the
right orbit and cicatricial entropion with trichiasis
right. In addition to the same, the claimant had also
suffered other simple injuries. It is also not in
dispute that the police after investigation had filed a
charge sheet against the rider of the motorcycle in
question and in the said charge sheet admittedly
Section 3 of the Act was not invoked. As rightly
contended by the learned counsel for the claimant
since the police after investigation have not invoked
Section 3 of the Act against the accused who was the
rider of the motorcycle in question, it has to be
necessarily presumed that the police have not booked
a case against the accused rider for not possessing
valid driving licence as on the date of the accident.
Though learned counsel for the insurer has submitted
that the Insurance Company had issued notice to the
owner of the motorcycle requesting him to produce
the driving licence of the rider of the motorcycle, it
cannot be held for that reason, that the rider of the
motorcycle did not have valid driving licence as on
the date of accident.
8. Further admittedly the insurer of the
motorcycle has not made any attempt before the
Tribunal to summon the owner of the motorcycle or
the rider of the motorcycle and examine them. No
application is filed before the Tribunal as against the
owner or the driver to produce the licence or
particulars nor any particulars was obtained from the
concerned transport authority to prove that the
driver was not holding valid licence. In the case of
Branch Manager, National Insurance Co.Ltd., V/s
Basavaraj and another, 2015 ACJ 1018, the
co-ordinate bench of this Court has held that in the
absence of any material on record to draw any
inference that the driver did not hold licence, it is
improper to hold that the insurer has been able to
establish the breach of conditions of the policy and
therefore the Tribunal was justified in imposing
liability on the insurer. Therefore, I find no error in
the order of the Tribunal insofar as it relates to
saddling the liability to pay compensation on the
insurer of the offending motorcycle.
9. Insofar as the quantum of compensation is
concerned, the accident had taken place in the year
2006 and as per the chart maintained by the
Karnataka Legal Services Authority for the purpose of
disposal of motor accident cases in Lok Adalath, the
notional income of the claimant should have been
taken at `3,750/- per month where as the Tribunal
has taken it at `3,500/-. If the income is taken at
`3,750/- per month, the compensation towards loss
of earnings due to disability would be `72,900/- as
against `68,040/- awarded by the Tribunal. Having
regard to the number of fracture injuries and also
considering the nature and period of treatment
undergone by the claimant, I am of the opinion that
towards pain and suffering, the claimant is entitled
for a sum of `30,000/- as compensation in place of
`20,000/-. Under the head of medical and other
incidental expenses, the claimant is entitled for a
sum of `10,000/- instead of `2,000/-. Towards loss of
amenities and future unhappiness and towards loss of
partial vision of right eye, the claimant is together
entitled for a sum of `35,000/- as against `20,000/-
awarded by the Tribunal. The claimant is also entitled
for a sum of `7,500/- towards loss of earning during
laid up period. Therefore, the claimant is totally
entitled for a sum of `1,55,400/- towards
compensation as against `1,10,040/- granted by the
Tribunal.
10. However the Tribunal has erred in awarding
interest at the rate of 9% per annum and the same is
reduced to 6% per annum having regard to the fact
that consistently this Court has been granting
interest at 6% per annum. In view of the order dated
23.06.2018 passed by this Court while condoning the
delay caused in filing the appeal, claimant will not be
entitled for interest for the delayed period of 245
days on the enhanced amount. Accordingly, the
following:
ORDER
i. Both the Miscellaneous First Appeals
are partly allowed.
ii. The insurer shall deposit the balance
compensation amount awarded with
interest within a period of six weeks
from the date of receipt of certified
copy of this order.
iii. The amount in deposit shall be
transferred to the Tribunal for
disbursement.
iv. The terms of disbursement and deposit
etc., as passed by the Tribunal shall
remain unaltered.
SD/-
JUDGE
CLK
