Karnataka High Court
The Branch Manager vs Eshwar S/O Yerriswamy on 13 January, 2022
Bench: S.Vishwajith Shetty
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY
MISCELLANEOUS FIRST APPEAL No.22453/2013(MV)
C/W.
MISCELLANEOUS FIRST APPEAL Nos.22452/2013, 23861/2013
and 23862/2013(MV)
IN MFA NO. 22453 OF 2013
BETWEEN:
THE BRANCH MANAGER
ICICI LOMBARD GENERAL
INSURANCE COMPANY LIMITED,
BELLARY, NOW R/BY ITS LEGAL
MANAGER, BELLAD BUILDING, 2ND FLOOR,
GOKUL ROAD, HUBLI
...APPELLANT
(BY MS. ANUSHA SANGAMI FOR SRI. S. K. KAYAKAMATH, ADVOCATE)
AND:
1. SRI.GULAPPA S/O M HULUGAPPA
AGE: 23 YEARS,
OCC: WORKING IN BANGALORE IN A FACTORY,
R/O.YETHINABUDIHAL VILLAGE,
TQ and DIST: BELLARY.
2. B. VENKATESHULU S/O B HANUMANTHAPPA
AGE: MAJOR, OCC: DRIVER OF
AUTO BEARING REGN.NO. AP-02/TA-6299,
R/O.BANDUR VILLAGE,
BOMMANAHAL MANDALAM
ANANTHAPUR DISTRICT, A.P.
2
3. BOYA CHINNA YERRITHATHA
S/O. B HANUMANTHAPPA
AGE: MAJOR, OCC: OWNER OF
AUTO BEARING REGN.NO. AP-02/TA-6299,
R/O.D.NO.1/20, BANDUR VILLAGE,
BOMMANAHAL MANDALAM
ANANTHAPUR DISTRICT, A.P.
...RESPONDENTS
(BY SRI. Y. LAKSHMIKANT REDDY, ADVOCATE FOR R1;
R2 & R3 - SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT 1988, AGAINST THE
JUDGMENT AND AWARD DATED:11-02-2013 PASSED IN MVC
NO.978/2012 ON THE FILE OF MEMBER, MACT-XII, BELLARY,
AWARDING THE COMPENSATION OF `78,800/-WITH INTEREST AT
THE RATE OF 7% P.A., FROM THE DATE OF PETITION TILL ITS
DEPOSIT.
IN MFA NO. 22452 OF 2013
BETWEEN:
THE BRANCH MANAGER
ICICI LOMBARD GENERAL
INSURANCE COMPANY LIMITED,
BELLARY, NOW REP.BY ITS LEGAL MANAGER,
BELLAD BUILDING, 2ND FLOOR,
GOKUL ROAD, HUBLI
...APPELLANT
(BY MS. ANUSHA SANGAMI FOR SRI. S. K. KAYAKAMATH, ADVOCATE)
AND:
1. SRI.ESHWAR S/O YERRISWAMY
AGE: 20 YERAS, OCC: STUDENT,
R/O.YETHINABUDIHAL VILLAGE,
TQ. and DIST: BELLARY.
2. B VENKATESHULU S/O B HANUMANTHAPPA
AGE: MAJOR, OCC: DRIVER OF
AUTO BEARING REGN.NO. AP-02/TA-6299,
R/O.BANDUR VILLAGE,
BOMMANAHAL MANDALAM
ANANTHAPUR DISTRICT, A.P.
3
3. BOYA CHINNA YERRITHATHA
S/O B HANUMANTHAPPA
AGE: MAJOR, OCC: OWNER OF
AUTO BEARING REGN.NO.AP-02/TA-6299,
R/O.D.NO.1/20, BANDUR VILLAGE,
BOMMANAHAL MANDALAM
ANANTHAPUR DISTRICT, A.P.
...RESPONDENTS
(BY SRI. Y LAKSHMIKANTREDDY, ADVOCATE FOR R1;
R2 & R3 - SERVED)
---
THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED:11-02-2013 PASSED IN MVC
NO.977/2012 ON THE FILE OF MEMBER, MACT-XII, BELLARY,
AWARDING THE COMPENSATION OF RS.1,14,671/- WITH INTEREST
AT THE RATE OF 7% P.A., FROM THE DATE OF PETITION TILL ITS
DEPOSIT.
IN MFA NO. 23861 OF 2013
BETWEEN:
ESWAR S/O YERRISWAMY,
AGED ABOUT: 20 YEARS,
OCC: STUDENT,
R/O: YETHINABUDIHAL VILLAGE,
BELLARY TALUK AND DISTRICT.
...APPELLANT
(BY SRI. Y. LAKSHMIKANT REDDY, ADVOCATE)
AND:
1. BOYA CHINNA YERRITHATHA,
S/O B HANUMANTHAPPA,
AGED MAJOR,
OCC: OWNER OF THE AUTO BEARING
REG. NO. AP-02/TA-6299,
R/O: D.NO. 1/20, BANDUR VILLAGE,
BOMMANAHAL MANDALAM,
ANANTHAPUR DISTRICT,
ANDHRA PRADESH.
2. THE BRANCH MANAGER,
ICICI LOMBARD GENERAL
INSURANCE CO.,LTD., BELLARY.
...RESPONDENTS
(MS. ANUSHA SANGAMI FOR SRI. S. K. KAYAKMATH, ADVOCATE FOR
R2; R1 - SERVED)
---
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DTD:11.02.2013 PASSED IN MVC
NO.977/2012 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS
TRIBUNAL-XII, AT BELLARY, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.23862 OF 2013
BETWEEN:
M.GULAPPA S/O. M HULUGAPPA
AGE: 23 YEARS,
WORKING IN BANGALORE FACTORY
R/O. YETHINABUDIHAL VILLAGE
BELLARY TALUK AND DISTRICT.
...APPELLANT
(BY SRI. Y. LAKSHMIKANT REDDY, ADVOCATE)
AND:
1. BOYA CHINNA YERRITHATHA
S/O. B. HANUMATHAPPA
AGE: MAJOR,
OWNER OF THE AUTO BEARING
REG. NO. AP-02/TA 6299
R/O. D NO. 1/20, BANDUR VILLAGE,
BOMMANAHAL MANDALAM
ANANTHAPUR DISTRICT, ANDHRA PRADESH
2. THE BRANCH MANAGER
ICICI LOMBARD GENERAL INSURANCE CO. LTD
BELLARY.
...RESPONDENTS
(MS. ANUSHA SANGAMI FOR SRI. S. K. KAYAKMATH, ADVOCATE FOR
R2; R1 - SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DTD:11.02.2013 PASSED IN MVC
NO.978/2012 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS
TRIBUNAL-XII, AT BELLARY, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
These appeals arise out of the judgment and
award dated 11.02.2013 passed by the MACT-XII,
Bellary, in MVC Nos.977 and 978 of 2012 and
therefore all the appeals are heard together and
disposed of by a common judgment.
2. Though the appeals are listed for
admission, with the consent of learned counsel
appearing on both sides, the same is taken up for
final disposal.
3. The parties to these appeals are referred to
by their rankings assigned to them before the
Tribunal for the sake of convenience.
4. The facts of the case that would be relevant
for the purpose of disposal of this case are;
On 04.04.2012 at about 12.30 pm, when the
claimants were traveling in an Auto Rickshaw bearing
registration No.AP-02/TA-4513, the offending Auto
Rickshaw bearing registration No.AP-02/TA-6299,
which was driven in a rash and negligent manner by
its driver dashed against the Auto, in which the
claimants were traveling and caused the accident. As
a result, the claimants suffered grievous injuries in
the accident and they were immediately admitted to
a private hospital, wherein they were treated as
inpatient and underwent prolonged treatment. The
claimants, who were injured in the accident,
thereafter had filed claim petitions under Section 166
of the Motor Vehicles Act, 1988, claiming
compensation of `10,00,000/- and `8,00,000/-
respectively from the respondents.
The Tribunal vide the impugned judgment and
award partly allowed the claim petitions and awarded
a compensation of `1,14,671/- with interest at 7%
p.a. to the claimant in MVC No.977/2012 and
awarded compensation of `78,800/- with interest at
7% p.a. to the claimant in MVC No.978/2012. The
liability to pay the compensation amount was saddled
on the Insurer since the offending vehicle was duly
insured by the Insurer at the time of accident. Being
aggrieved by the same, the Insurer of the offending
vehicle has filed MFA No.22453/2013 and
22452/2013, while the claimants have filed MFA
Nos.23861/2013 and 23862/2013, seeking
enhancement of compensation amount.
5. Learned counsel appearing on behalf of the
Insurer submits that the Tribunal had erred in
saddling the liability on the Insurer as the driver of
the offending vehicle did not hold a valid driving
license, at the time of accident. She submits that
the driver was possessing only a license to drive the
light motor vehicle, whereas he was found driving an
Auto Rickshaw and therefore, the Tribunal had erred
in saddling the liability on the Insurer to pay
compensation amount. She also submits that the
quantum of compensation awarded by the Tribunal in
both the cases is on the higher side.
6. Per contra, learned counsel appearing for
the claimants submits that the driver of the offending
Auto Rickshaw was holding a license to drive Light
Motor Vehicle and the Auto Rickshaw is also a light
motor vehicle and therefore, it cannot be said that
the driver had no valid license at the time of
accident. He has relied upon the judgment of the
Hon'ble Apex Court in the case of Mukund
Dewangan vs. Oriental Insurance Co. Ltd reported
in (2016) 4 SCC 298, in support of his case and
submits that the Tribunal has rightly saddled the
liability on the Insurer of the offending Auto
Rickshaw. He also submits that the compensation
awarded to the claimants in both the cases is on the
lower side and seeks enhancement of the same.
7. I have carefully considered the rival
arguments and also perused the material on record.
8. Insofar as the question of liability is
concerned, as rightly contended by the learned
counsel for the claimants, the materials on record
would go to show that the driver of the offending
Auto Rickshaw was holding a Light Motor Vehicle
driving license as on the date of the accident. The
Hon'ble Supreme Court in the case of Mukund
Dewangan(supra), has considered the question as to
whether the holder of the Light Motor Vehicle driving
license can drive other vehicles, which are also
classified as light motor vehicles. In the present
case, the driver of the offending Auto Rickshaw
admittedly held a Light Motor Vehicle driving license
and the Auto Rickshaw being a light motor vehicle, it
cannot be said that the driver of the offending Auto
Rickshaw did not have a valid and effective driving
license as on the date of accident. The judgment of
the Hon'ble Apex Court in the case of Mukund
Dewangan (supra) is squarely applicable to the
present case and therefore, I hold that the Tribunal
was justified in saddling the liability to pay the
compensation amount on the Insurer of the offending
vehicle.
9. Insofar as the quantum of compensation
awarded by the Tribunal is concerned, the claimant in
MVC No.977/2012 was a student at the time of
accident and he had suffered fracture of upper 1/3 r d
of femur. Though the doctor, who had treated and
examined the claimant, had stated that the caliamnt
has suffered disability of 20% to the limb, the fact
remains that the same would not have affected his
income as he was a student at the relevant point of
time. Considering the nature of injuries and the
treatment undergone by the claimant, the Tribunal
has awarded a compensation to him under various
heads as follows:
1. Towards injuries pain and `43,200.00
sufferings
2. Towards medical expenditure `20,470.00
3. Towards other expenses `1,800.00
4. For the loss of notional `6,000.00
earnings during the period of
hospitalization.
5. For the loss of future `43,200.00
amenities of life or for
disability
Total `1,14,671.00
In my considered view, the compensation
awarded by the Tribunal to the claimant in MVC
No.977/2012 is just and proper and needs no
interference.
10. Insofar as the claimant in MVC
No.978/2012 is concerned, the claimant was aged
about 22 years at the time of accident and he was an
employee of Kirloskar Toyoda Textile Machinery
Private Limited at Bengaluru. He had suffered
fracture of right mid clavicle bone and in addition to
the same, he had suffered some other injuries which
were simple in nature. In support of his case, he had
examined two doctors as PW2 and PW3. The Tribunal
on appreciation of the oral and documentary evidence
had awarded a total compensation of `78,800/- on
various heads as follows:
1. Towards injuries pain and `32,400.00
sufferings
2. Towards ME and OE `5,000.00
3. For the loss of notional `9,000.00
earnings during the period of
hospitalization.
4. For the loss of future `32,400.00
amenities of life or for
disability
Total ` 78,800 .00
The claimant had examined two doctors who
have treated him in respect of the injuries suffered
by him. PW3 - the doctor had stated that the
claimant had suffered 50% disability due to the
injuries suffered by him. Though the material on
record does not disclose that the said disability
caused to the claimant has resulted in loss of income,
this Court cannot loose sight of the fact that, because
of the said fracture injury, which according to PW3 is
mal-united, definitely the claimant would be facing
inconvenience and hardship through out his life.
Towards future amenities and disability, the Tribunal
had awarded compensation of `43,200/- to the
claimant in MVC No.977/2000. Therefore, even in
the present case, the Tribunal ought to have awarded
the very same compensation to the claimant herein.
Therefore, an additional sum of ` 10,000/- under the
head of 'loss of future amenities in life or for
disability'.
Towards the medical expenses and other
expenses, the Tribunal has awarded only a meager
sum of `5,000/- to the claimant and in my considered
view, if an additional sum of ` 5,000/- is awarded to
the claimant under this head, it would serve the ends
of justice.
The Tribunal has awarded interest at 7% p.a. on
the compensation amount and the same remains
undisturbed. Accordingly, the following:
ORDER
MFA Nos.22452/2013 and 22453/2013 filed by
the Insurance Company and MFA No.23861/2013
(MVC No.977/2012) filed by the claimant are
dismissed.
MFA No.23862/2013 (MVC No.978/2012) filed by
the claimant is allowed in part. The claimant is
entitled for an enhanced compensation of `15,000/-
in addition to the compensation of `78,800/- awarded
by the Tribunal. The Insurer is directed to deposit
the balance compensation amount 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 the appeals filed by
the Insurer is directed to be transferred to the
Tribunal for the purpose of disbursement.
The order passed by the Tribunal insofar as
disbursement, deposit, etc., stands undisturbed.
Sd/-
JUDGE
gab
