Sri K N Ganganna vs Sri Om Prakash Ramprasad Sharma
2022 Latest Caselaw 793 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF JANUARY, 2022

                       BEFORE

          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

 MISCELLANEOUS FIRST APPEAL NO.2567/2014 (MV)

BETWEEN:

SRI.K.N.GANGANNA
S/O NARAHARAIAH
NOW AGED ABOUT 45 YEARS
R/AT KAREKATHIGANURU VILLAGE
BELLANAKOTE POST, SOMPURA HOBLI
NELAMANGALA TALUK - 562 111
BANGALORE RURAL DISTRICT
                                         ... APPELLANT
(BY SRI. JWALA KUMAR , ADVOCATE)

AND:

1.     SRI.OM PRAKASH RAMPRASAD SHARMA
       FATHER'S NAME NOT KNOWN
       AGED MAJOR
       NO.44, RAVIKUNJ SHASTHRINAGAR
       NEAR BHOYANAGAR
       NANDED - 431 602
       MAHARASTRA STATE.

2.   ICICI LOMBARD GENERAL
     INSURANCE COMPANY LIMITED,
     NO.7, SRI.LAKSHMINARASIMHA COMPLEX,
     2ND FLOOR, 15TH CROSS
     100 FEET RING ROAD
     BANGALORE - 560 076.
                                    ... RESPONDENTS
(BY SRI B.C.SHIVANNEGOWDA, ADVOCATE FOR R-2)
R-1 SERVED
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     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:20.06.2013 PASSED IN
MVC NO.2448/2011 ON THE FILE OF THE MEMBER, PRL.
MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY THROUGH VIDEO CONFERENCE, THE COURT
DELIVERED THE FOLLOWING:-

                       JUDGMENT

The present appeal is filed by the claimant under

Section 173(1) of the Motor Vehicle Act, 1988 against the

Judgment and award dated 20.06.2013 passed in MVC

No.2448/2011 on the file of Member, Principal Motor

Accident Claims Tribunal and Chief Judge, Court of Small

Causes (herein after referred to as 'MACT').

2. Brief facts of the case is that on 29.03.2011, at

about 2 p.m., when the claimant was proceeding on his

motorcycle bearing Registration No.KA-02-H-4708 from

Nelamangala to Kerekathiganuru via Tumkur road, while

he was taking 'U' turn near Doddere, an Innova car

bearing Registration No.MH-26-V-7990 driven by its driver

in rash and negligent manner came from behind and

dashed the motorcycle of the claimant resulting in the

accident. Consequently, the claimant sustained grievous

injuries all over the body. Claimant was admitted to

hospital as an inpatient from 29.03.2011 to 09.04.2011

and was administered treatment.

3. Thereupon, the claimant filed the said petition

seeking compensation of `10,00,000/- (Rupees Ten lakhs

only) on the premise that he was working as Milk Dairy

Secretary at his village and was earning `15,000/- (Rupees

Fifteen thousand only) per month. Prior to the accident he

was hale and healthy and due to the accident which was

caused on account of rash and negligent driving of the

offending vehicle driven by its driver, claimant sustained

injuries and the claimant is not in a position to carry out

and discharge his duties as earlier. Since the offending

vehicle was insured with respondent No.2, Insurance

Company, compensation was sought against respondent

Nos.1 and 2.

4. Upon service of notice, respondent No.1,

owner of the car had filed the statement of objections

admitting the accident, however, denying that the accident

had occurred due to rash and negligent driving by the

driver of the car. It is contended that the accident had

occurred on account of rash and negligent riding of the

motorcycle by the claimant himself. Respondent No.2-

Insurance Company filed separate statement of objections

denying the petition averments. It is contended that the

driver of the Innova car was not having valid driving

license to drive the said vehicle. It is also denied that the

appellant had incurred huge medical expenses. It is also

contended that the accident had occurred due to rash and

negligent driving of the motor cycle by the claimant

himself. Hence, sought for dismissal of the petition.

5. Based on the pleadings, Tribunal framed issues

and recorded evidence. Claimant examined himself as

P.W.1 and exhibited 11 documents, marked as P-1 to

P-11. No evidence has been recorded on behalf of the

respondent.

6. The Tribunal on appreciation of the evidence,

held that the accident in question had occurred on account

of rash and negligent driving of the offending vehicle,

resulting in injuries sustained by the claimant and

consequently, held that the claimant is entitled for total

compensation amount of `2,67,933/- (Rupees Two lakhs

sixty seven thousand nine hundred thirty three only).

Since the Tribunal found that the driver of the offending

vehicle did not have a valid driving license, exonerated the

Insurance Company from payment of compensation and

fixed the liability on first respondent-Owner of the Innova

car for payment of compensation.

7. Aggrieved by the aforesaid Judgment and

award, the claimant is before this Court.

8. Learned counsel for the appellant/claimant

reiterating the grounds urged in the appeal memo

submitted that the Tribunal erred in awarding meager

amount of compensation despite taking note of the nature

of injuries sustained by the claimant. He submitted that

the nature of injuries sustained by the claimant is found in

wound certificate at exhibit P-4 which reads as under:

1. Head injury

2. FNOE #rd

3. Lefort III Right

4. Fracture Mandible

5. Report II left

6. Right upper limb abrasions 3x3cm over right shoulder

7. Multiple abrasion right hand

8. Left upper limb multiple abrasions

9. Left lower limb CLW in left heel

9. He submits that on perusal of the wound

certificate and the nature of the injuries, the Tribunal has

erred in not awarding compensation under the head of loss

of amenities. Further, he submits that though the tribunal

has found that the driver of the offending vehicle did not

have a valid driving license, in view of the law laid down by

the Apex Court in the case of MUKUND DEWANGAN vs.

ORIENTAL INSURANCE COMPANY LIMITED reported in

(2017) 14 SCC 663, he submits that the Tribunal ought

not to have exonerated the Insurance Company from

payment of compensation amount. Hence, seeks to allow

the appeal.

10. On the other hand, learned counsel for the

respondent-Insurance Company justified the orders passed

by the Sessions Court that the compensation awarded is

just and proper. Considering the fact that the claimant has

not examined the Doctor who could have deposed with

regard to the percentage of disability in the absence of any

such material, he submits that there cannot be any ground

for enhancement of compensation. Hence, seeks for

dismissal of the appeal.

11. Heard learned counsel for the parties.

12. The only point that arises for consideration is

with regard to quantum of compensation awarded for the

accident in question involving the motorcycle and the

offending car belonging to respondent No.1 is not in

dispute. The injuries sustained by the claimant as reflected

in wound certificate as per Ex.P-4 is also not in dispute.

However, as rightly contended by the learned counsel for

the Insurance Company, the claimant has neither

examined the Doctor, who treated him nor has he

produced any material evidence with regard to the

disability suffered by him on account of the injuries

sustained in the accident. In the absence of any material

evidence, the amount awarded by the Tribunal as

compensation cannot be found fault with. However, it is

vehemently submitted by the learned counsel for the

appellant/claimant that the Tribunal even while awarding

the compensation as detailed in paragraph 19, has not

considered the compensation awardable under the head

loss of amenities. Be that as it may, considering the facts

and circumstances of the matter and the nature of the

injuries referred herein above, this Court is of the opinion

that global compensation of `50,000/- (Rupees Fifty

thousand only) be awarded in addition to the

compensation of `2,67,933/- (Rupees Two lakhs sixty

seven thousand nine hundred thirty three only) awarded

by the Tribunal. Thus, claimant would be entitled for total

compensation of `3,17,933/- (Rupees Three lakhs

seventeen thousand nine hundred thirty three only).

Enhanced compensation shall carry interest @ 6% per

annum from the date of petition.

13. Since the Tribunal has exonerated respondent

No.2-Insurance Company from payment of compensation

on the premise that the driver of the offending vehicle was

not having valid driving license and in the absence of any

evidence to the contracts, in view of settled law in the case

of Shamanna & another V/s Divisional Manager,

Oriental Insurance Co. Ltd. and others reported in

(2018) 9 SCC 650, the Insurance Company shall in the

first instance pay the compensation and thereafter recover

the same from the first respondent-Owner in accordance

with law. Hence the following:

ORDER

1. The appeal is partly allowed.

2. The Judgment and award dated 20.06.2013 passed

by the Member, Principal Motor Accident Claims

Tribunal and Chief Judge, Court of Small Causes in

MVC No.2448/2011 is modified.

3. The appellant/claimant is entitled for compensation

of `3,17,933/- (Rupees Three lakhs seventeen

thousand nine hundred thirty three only) as against

`2,67,933/- (Rupees Two lakhs sixty seven thousand

nine hundred thirty three only) awarded by the

Tribunal. The enhanced amount shall carry interest

@ 6% per annum from the date of petition till the

date of payment.

4. Respondent No.2-Insurance Company shall pay the

compensation amount to the appellant/claimant and

then recover from the first respondent-Owner.

Sd/-

JUDGE GVP