Karnataka High Court
Shantawwa W/O Mahagundappa ... vs Vittal S/O Tukaram Sapare 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.21920/2012(MV)
C/W
MFA NO.21660/2012
M.F.A. No.21920/2012(MV)
BET WEEN
VITTAL S/O TU KARAM SAPARE,
AGE: 52 YEARS, OCC: OWNER OF CAR
BEARING NO.KA-29/M-3136
R/O 3 R D CROSS, BESIDE NEW CIRCU IT HOUSE,
VIDYAGIR I, B AGALKOT.
..APPEL LANT
(BY SRI. SRIN IVA S NADAMANI, ADVOCATE FOR
SRI. JAGADISH PA TIL, ADVOCATE)
AND
1. SMT. SHANTAWWA W/O MAHAGUNDAPPA T AMAB AKAD
AGE: 62 YEARS, OCC: AGRICULTU RE COOLIE,
PERSENTLY N IL,
R/O R.C. TAL AND DIST : B AGALKOT.
2. THE DIV IS IONAL MANAGER,
U NIT ED INDIA INSU RANCE COMPANY LTD,
B ELGAUM.
...RESPONDENTS
(BY SRI.D.V. PATTAR, ADVOCAT E FOR SRI. ANAND R. KOLL I
ADVOCATE FOR R1)
(BY SMT. PREETI S HASHANK, ADVOCAE FOR R2)
2
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 09.03.2 012 PASS ED IN
MVC No. 296/ 2010 ON T HE F ILE OF THE MEMB ER
ADDIT IONAL MACT NO.III BAGALKOT, AWARDING THE
COMPENSATION OF ` 1,50,000/- WITH INTER EST AT THE
AT E 6% P.A. FROM THE DAT E OF PET IT ION T IL L
REAL ISATION.
IN MFA NO.21660/2012
BET WEEN
SMT . SHANT AWWA W/O MAHAGU NDAPPA TAMAB AKAD
AGED AB OUT 62 YEARS,
OCC: AGRICU LTU RE CU LTURE COOLIE,
R/O MALLAPU R R.C.
TAL AND DIST: BAGALKOT.
...APPELLANT
(BY SRI.D.V.PAT TAR, ADVOCATE FOR SRI.ANAND R.
KOLL OI, ADVOCATE
AND
1. VIT TAL S/O TUKARAM SAPARE,
AGED AB OU T 45 YEARS,
OCC: OWNER OF CAR
B EARING NO.KA-29/M-3136
R/O 3 R D CROSS, BESIDE NEW CIRCUIT
HOUSE, VIDYAG IR I, B AGALKOT.
DIST: B AGALKOT.
2. THE DIV IS IONAL MANAGER,
U NIT ED INDIA INSU RANCE COMPANY LTD,
B ELGAUM, DIST:BELGAU M.
...RESPONDENTS
(BY SRI.SHIVARAJ C. BELLAKKI, ADVOCATE FOR R1)
(BY SMT. PREETI S HASHANK, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 09.03.2012 PASS ED IN
3
MVC No. 296/ 20 10 ON THE FILE OF THE MEMB ER MACT
NO.III B AGALKOT , PARTLY ALLOWING THE CLAIM PET ITION
FOR COMPENSAT ION AND SEEKING ENHANCEMENT OF
COMPENSATION .
THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:
JUDGMENT
These two appeals arise out of the judgment and
award dated 09.03.2012, passed by the Additional
MACT No.III Bag alkot, in MVC No.296/2010. MFA
No.22199/2011 has been filed by the owner of the
offending lorry bearing reg istration No.KA-29/M-3136,
challenging the liab ility and quantum of compensation
while MFA No.21660/2012 has been filed by the
claimant seeking enhancement of the comp ensation.
2. For the sake of convenience, the parties are
referred to as per their ranking given to them b efore
tribunal.
3. Brief facts of the case that would be relevant
for the purpose of disposal of these app eals are:
On 20.07.2009 at about 5.30 p.m. the claimant
along with her son had gone to the market at Bagalkot
and while she was returning to her villag e, the
offending car b earing reg istration No.KA-29/M-3136
driven by its driver in a rash and neglig ent manner,
dashed ag ainst claimant. As result, she had sustained
the following injuries:
1) Type II fracture of left femur.
2) Type III C compound fracture tibia and
fibula of right leg .
3) Comminuted fracture tib ia and condyle
of left knee joint.
4) Segmental wound with diglowing skin
right ankle present leg and foot and
injuries all over body.
4. The claimant was thereafterwards
shifted to a private hospital wherein she was
operated and treated for her injuries. Claimant
had filed a claim petition in MVC No.296/2010
und er Section 166 of Motor Vehicles Act, 1988,
claiming total compensation of ` 10,00,000/- with
interest. The Tribunal by its jud gment and award
dated 09.03.2012 had partly allowed the claim
petition granting compensation of ` 1,50,000/-to
the claimant with interest at 6% per annum from
the d ate of claim petition till realization and
saddled the liability on the owner of the offend ing
car. Being aggrieved by the same, the owner of
the offending car and the claimant are b efore this
Court in these two appeals.
5. Learned counsel for the owner submits that
the tribunal erred in sadd ling the liab ility to p ay the
comp ensation on the owner of the offending car. He
submits that ad mittedly the driver of the offend ing car
was holding heavy motor vehicle driving license as on
the d ate of accident and therefore tribunal had erred in
hold ing that d river of the offending vehicle did not have
a valid and effective driving license as on the d ate of
accid ent. He submits that the person holding heavy
motor vehicle license in d eemed to have a licence to
drive a light motor vehicle, in view of section 7(1) of
the Act, 1988. In support of his arguments, he has
relied upon the judgment of this Court reported in
2014 (2) AKR 456 in the case of N ew India
assurance Co. Ltd., Vs. B. M. Subramanya &
Another.
6. Learned counsel for the claimant submits that
the injured was ag ed about 60 years as on the date of
accid ent. The Tribunal was not justified in taking the
notional income of the injured at ` 3,000/- per month
which is not in conformity with the chart maintained by
Karnataka State Leg al Service Authority for the purpose
of disposal of motor vehicle accident case in the
Lokad alath. According to him as per the chart p repared
by the Karnataka State Leg al Service Authority the
notional income of the injured for the year 2009 would
be `5,000 per month. He further submits that the
comp ensation award ed by the tribunal under the other
heads is also on the lower sid e. Hence, learned counsel
for the claimant seeks for enhancement of
comp ensation.
7. Learned counsel appearing for the insurer
submits that the driver of the offending vehicle did not
have any valid and effective driving license and
therefore tribunal was justified in absolving the liability
on insurer. She submits that since the driver was not
hold ing a effective req uisite d riving license as on the
date of accid ent, it amounts to breach of policy
cond itions and therefore the tribunal is rightly held that
the owner has liab le to p ay compensation. She submits
that at the most, the insurer can b e sadd led with
liability to pay and recover the compensation. She
further submits that the claimant had claimed that her
income is only `3,500/- per month and therefore
maximum amount that could b e taken as income of
claimant would be at `3,500 per month. She also
submits that the comp ensation award ed to the claimant
on all other heads is just and prop er and needs no
interference. She relies upon the judgment of the Apex
Court in the case of Oriental Insurance Company
Limited Vs. Zaharulnisha and other reported in
(2008) 12 SCC 385 and contends that the d river of
the offending car had no valid and effective license and
therefore insurance comp any cannot be held liable.
Accordingly, she prays to dismiss both the app eals.
8. I have carefully consid ered the arg uments
advanced by the learned counsels app earing for the
parties and also perused the materials available on
records.
9. The undisputed facts of this case are that the
accid ent had taken place on 20.07.2009 and in the said
accid ent the claimant had sustained grievous injuries
and the vehicle bearing registration No. KA-29/M-3136
which belongs to the app ellant in MFA No.21660/2012
was involved in the accident. It is also not in d ispute
that the driver of the offending vehicle had a valid
heavy motor vehicle driving license as on d ate of
accid ent. The Tribunal has saddled the liab ility to pay
comp ensation on the owner of the offending vehicle for
the reason that the driver of the offending vehicle did
not have valid and effective driving license to drive
light motor vehicle which was involved in the accident.
The Co-ordinate Bench of this Court in the jud gment
reported in 2014 (2) AKR 456 in the case of New
India Assurance Co. Ltd., Vs. B. M. Subramanya
and Another, in almost identical circumstance, in
paragrap hs 12 to 14 has held as follows:
12. In t his reg ard, it is to be seen t hat the
Section 7(1) of the Motor vehic le Act sta tes that
no person sha ll be granted a learner's lice nse to
dri ver a trans port vehicle unless a light motor
vehic le for at leas t one years.
13. For the sake of convenience, Section
7(1) of the Motor Vehic le Act is excerp ted
hereunder.
"[(1) No person s hall be granted a learner 's
license to drive a transport vehic le unless he has
held a driving license to drive a light motor
vehic le for at leas t one year.]"
14. Thus, license so is sued to drive heavy
motor vehic le including tra nsport vehicle is
inclusive of the license to drive light motor
vehic le/car. Thus, it cannot be s aid t hat the
dri ver d id not possess the req uired d riving
license to drive the vehicle inv olved in the
accident. In t he circumstance, the contention of
learned coun sel for the ins urer that the ins ured
violated t he term s and conditio ns of the policy
by permitting the person who did not pos sess the
require d license is not well founded and is not
proper and accordingly, the impugned judgm ent
and award so far as it relates to fixing of the
liability on the insurer, the same does no t c all
for interference.
The said judgment is squarely applicable to the
facts and circumstances of the present case. The
judgment relied upon by the learned counsel for the
insurer would not b e applicab le to the facts of the
present case for the simple reason that in the said case
driver who was holding license for heavy motor vehicle,
was found rid ing a scooter. Section 7(1) of the motor
vehicle Act, would therefore not be applicab le in the
said case.
10. Under the circumstance, it cannot be said
that the d river of the offending vehicle did not have a
valid license for d riving the light motor vehicle.
Therefore the tribunal has erred in saddling the liab ility
to p ay compensation on the owner of the offending
vehicle. Admitted ly as on date of accid ent the insurance
policy issued in respect of offending car bearing
registration No.KA-29/M-3136, was valid. i.e with effect
from 26.09.2008 to 25.09.2009. Und er the
circumstance I hold that the insurer of the offending
vehicle bearing registration No.KA-29/M-3136 is liable
to p ay comp ensation amount to the claimant.
11. Insofar as quantum of compensation award ed
the tribunal is concerned, the claimant was aged about
60 years at the time of accident and in the claim
petition it is stated that she was earning income of `
3,500/- per month. Therefore the trib unal cannot take
into consideration the chart maintained by Karnataka
State Leg al Service Authority which p rovides for
notional income of `5,000/- per month in respect of
road traffic accid ents that have taken in the year 2009.
In the case on hand the income has to b e taken at
`3,500/- per month and the applicab le multiplier in the
case on hand would be '9'. The Doctor who was
examined as PW.2 has assessed the d isab ility to a
particular limb at 75% and therefore for the p urpose of
granting comp ensation the disab ility to the whole body
was req uired to be assessed at 25% instead of 10%.
The tribunal has not granted any comp ensation towards
loss of earning during laid-up p eriod.
12. Having reg ard to the nature of injuries and
treatment taken by the claimant, she is entitled for
comp ensation towards loss of income during laid-up
period atleast for the p eriod of three months. Further
the claimant would be also entitled for comp ensation
towards incidental expenses and also toward s loss of
amenities in life.
13. In my consid ered view, claimant would b e
entitled for compensation of ` 10,000/- towards
incidental exp enses and a sum of ` 15,000/- towards
loss of amenities in the life. The tribunal has g ranted
comp ensation of ` 40,000/- towards loss of 'pain and
suffering'. Having regard to the nature of injuries and
number of fractures suffered by claimant I am of the
consid ered view, that the claimant is entitled for total
comp ensation of ` 60,000/- towards pain and suffering .
Accordingly, claimant would be entitled for total
comp ensation as follows:
Loss of income due to disab ility ` 94,500/-
towards loss of income during laid-up period `10,500/-,
pain and suffering `60,000/- and incidental charges `
10,000/-, loss of amenities 15,000/-, ,medical exp enses
` 68,700 is 2,58,700/-. Accordingly, the claimant is
therefore entitled for comp ensation of ` 2,58,700/- as
against the `1,50,000/- awarded by the tribunal. The
rate of interest, g ranted by the tribunal remains
unaltered.
14. Respondent No.1 - insurer is directed to
deposit the compensation amount with interest before
the tribunal within a p eriod of six weeks from the d ate
of receipt of certified copy of this ord er.
The terms of disb ursement and deposit of
comp ensation amount etc would be as per the orders
passed by the tribunal and the same remains unaltered.
MFA No 21920/2012 and MFA No.21660/2012
are accord ing ly allowed in p art.
Appellant in MFA No.21290/2012 is
permitted to withdraw the amount in d eposit.
Sd/-
JUDGE
AC
