Manohar Narayan Mahindrakar vs Subhas Ramanna Shinge
2022 Latest Caselaw 926 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 20 T H DAY OF JANUARY, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

              M.F.A. No.23399/2012 (MV)

BET WEEN

MANOHAR NARAYAN MAHINDRAKAR,
AGED AB OUT 56 YEARS,
OCC: TAILORIN G AND MIL BUSINES S,
PRESENT LY NIL, R/O SECTOR NO.35,
HOU SE NO.345, ASHRAY A COLONY,
NAVANAGAR, B AGALKOT.
                                          ...APPELLANT
(BY SRI MANOJ B IKKANAVAR, ADVOCATE FOR
 SRI ANAND R.KOLLI, ADVOCATE)

AND

1.    SUB HAS RAMANNA SHINGE,
      AGE: MAJOR,
      OCC: OWNER OF THE A/R CAB ,
      B EARING NO.KA-29/6234,
      R/O NAVANAGAR, SHEDD,
      TQ. & DIST: B AGALKOT.

2.    THE DIV IS IONAL MANAGER,
      ORIENTAL INSU RA NCE COMPANY LIMITED,
      B ELAGAVI.
                                        ...RESPONDENTS

(BY MISS ANU SHA SANGAMI, ADVOCATE FOR
 SRI S.K.KAYAKAMATH, ADVOCATE FOR R2;
 NOTICE TO R1 DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 22.06.2 012 PASS ED IN
MVC No.170/ 2009 ON THE FILE OF THE MEMB ER, MOTOR
                                  2




ACCIDENT  CLAIMS  TRIB U NAL-IV,  B AGALKOT, PARTLY
ALLOWING THE CLAIM PET IT ION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:

                            JUDGMENT

The claimant being not satisfied with the amount

of comp ensation award ed by M.A.C.T-IV, Bagalkot

(hereinafter referred to as the 'Tribunal', for brevity)

in MVC No.170/2009 has filed this appeal seeking

enhancement of compensation.

2. Though this appeal is listed for admission,

with the consent of the learned counsels appearing

for the parties, the appeal is taken up for final

disposal. The parties to this appeal 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 this appeal

are:

On 28.06.2006 when the claimant was traveling

from Navanagar to Bagalkot in an autorickshaw

bearing registration No.KA-29/6234, the said

autorickshaw which was driven in a rash and

negligent manner by its driver dashed against a JCB

vehicle and as a result, the autorickshaw turtled

down near Mahesh Nagar cross at about 9.45 a.m.

and caused the accident. In the said accident, the

claimant had suffered multiple injuries and he was

shifted to HSK Hospital, Bagalkot wherein he was

treated for his injuries and also operated. The

claimant had suffered as many as seven injuries in

the said accident and out of the same, the fracture of

shaft of the left humorous upper 3 r d was considered

as grievous injury and other six injuries were

considered as simple injuries. The claimant had filed

a claim petition under Section 166 of the Motor

Vehicles Act, 1988 (for short, the 'Act') claiming

compensation in respect of the injuries suffered by

him in the road traffic accident from owner and

insurer of the offending autorickshaw. The Tribunal

vide the impugned judgment and award partly

allowed the claim petition awarding compensation of

`41,450/- with interest at 6% per annum from the

date of petition till realization and saddled the

liability to pay compensation amount on the owner of

the autorickshaw on the ground that he did not

possess valid and effective driving licence as on the

date of accident. Being aggrieved by the same, the

claimant is before this Court.

4. Learned counsel for the claimant submits

that the compensation awarded by the Tribunal on all

heads to the claimant, compared to the injury

suffered by him and treatment undergone, is meager.

He submits that the disability has not been properly

appreciated by the Tribunal which has resulted in

awarding meager compensation. He submits that no

compensation is awarded towards loss of amenities

and also towards loss of earning during laid up

period. He further submits that the Tribunal had

erred in saddling the liability on the owner of the

offending autorickshaw though the driver of the

offending autorickshaw had a valid and effective

driving licence at the time of accident. He therefore

prays to allow the appeal.

5. Per contra, learned counsel appearing for

the insurer submits that the compensation awarded

by the Tribunal is just and proper and there is no

scope for enhancement of compensation on any

ground. However she does not dispute the fact that

since the driver of the autorickshaw was holding LMV

(non-transport) driving licence and therefore having

regard to the judgment of the Hon'ble Apex Court in

the case of Mukund Dewangan V/s Oriental

Insurance Company Limited reported in (2017) 14

SCC 663, the liability of the insurer cannot be

avoided.

6. I have carefully appreciated the arguments

addressed on both sides and also perused the

material available on record.

7. The undisputed facts of the case are that

the claimant had met with an accident on 28.06.2006

in which the offending autorickshaw bearing

registration No.KA-29/6234 was involved. It is also

not in dispute that the claimant had suffered injuries

in the said accident and he was treated for the same.

The driver of the offending autorickshaw was

admittedly holding a valid and effective LMV (non-

transport) driving licence as on the date of accident.

The offending autorickshaw was duly insured by the

insurer and the said insurance policy was valid as on

the date of accident. The Tribunal had saddled the

liability to pay compensation on the owner of the

offending vehicle on the ground that the driver of the

autorickshaw did not possess driving licence to drive

LMV (transport). In view of the judgment of the

Hon'ble Supreme Court in the case of Mukund

Dewangan even a person holding LMV (non-

transport), if found driving LMV (non-transport)

vehicle, it cannot be said that the same would

amount to violation of policy condition and therefore

the Tribunal is not justified in saddling the liability to

pay the compensation amount on the owner of the

autorickshaw when undisputedly said vehicle was

duly insured by the insurer which was valid as on the

date of accident. Therefore, I hold that the 2nd

respondent-insurer is liable to pay the compensation

amount to the claimant.

8. Insofar as compensation amount for which

the claimant would be entitled is concerned, the

claimant was aged about 54 years as on the date of

accident and he claimed to be a tailor by profession.

The Tribunal had taken notional income of the

claimant at `3,000/- per month and as per the

income chart maintained by the Karnataka Legal

Services Authority for the purpose of disposal of

motor accident cases in the Lok Adalath, the notional

income of the claimant ought to have been taken at

`3,750/- per month. The doctor has stated that the

disability suffered by the claimant because of the

injury would be 40% to the particular limb.

Therefore, the Tribunal ought to have considered the

whole body disability at 13% as against 5% which it

has considered. In the said event if the proper

multiplier applicable is taken into consideration, the

claimant would be entitled for a sum of `64,350/-

towards loss of earning capacity due to disability as

against `19,800/- awarded by the Tribunal. Having

regard to the nature of injuries and the treatment

undergone by the claimant for the same, I am of the

view that the claimant is entitled for another sum of

`20,000/- towards pain and suffering which would be

in addition to a sum of `15,000/- awarded by the

Tribunal. Towards incidental expenses, the claimant

would be entitled for a sum of `5,000/- in all as

against `500/- awarded by the Tribunal. Towards loss

of future amenities in life, the claimant would be

entitled for a sum of `25,000/- as against `2,000/-

awarded by the Tribunal. The claimant would also be

entitled for a sum of `7,500/- towards loss of income

during laid up period. Therefore in all, the claimant

would be entitled for a sum of `1,41,000/- as against

`41,450/- awarded by the Tribunal which would be as

follows:

1 Loss of earning capacity `64,350/-

    2      Pain and suffering                        `35,000/-
    3      Medical expenses                           `4,150/-
    4      Incidental expenses                        `5,000/-
    5      Loss of amenities                         `25,000/-
    6      Loss of income during laid                 `7,500/-
           up period
           Total                                  `1,41,000/-

     9.     Accordingly, the following:

                             ORDER

            The    Miscellaneous        First   Appeal       is
     allowed in part.

            The    claimant        is    entitled     for    a

compensation of `1,41,000/- as against the amount of `41,450/- awarded by the Tribunal. The enhanced compensation amount shall also carry interest at 6% per annum.

Since the insurer is held liable to pay the compensation amount, the 2nd respondent-insurer is directed to deposit the entire compensation amount before the Tribunal with interest within a period of six weeks from the date of receipt of certified copy of this order.

The order passed by the Tribunal with regard to disbursement and deposit etc., shall remain unaltered and the same would also be applicable to the enhanced compensation amount.

SD/-

JUDGE

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