Karnataka High Court
Ramzansab S/O Adamsab Nadaf vs Kakappa S/O Shivaji Mane on 7 July, 2022
Bench: Krishna S.Dixitpresided Byksdj
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MFA No.21700 of 2011
C/W MFA No.21695 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
M.F.A. NO.21700 OF 2011 (MV)
C/W M.F.A. NO.21695 OF 2011 (MV)
IN M.F.A. NO.21700/2011
BETWEEN:
KAKAPPA S/O SHIVAJI MANE
AGED ABOUT 25 YEARS, OCC: NOW NIL
(BEFORE ACCIDENT - AGRICULTURE)
R/O: INAMHONGAL, TQ: SAUNDATTI
DIST: BELGAUM
...APPELLANT
(BY SRI. SRIDHAR HIREMATH, ADVOCATE FOR
SRI. G.I. GACHCHINAMATH, ADVOCATE)
AND:
1. RAMZANSABS/O ADAMSAB NADAF
AGE: MAJOR, OCC: BUSINESS
R/O: INAMAHONGAL, TQ: SAUNDATTI
DIST: BELGAUM
(OWNER OF BAJAJ PICK UP VAN
THREE WHEELER NO KA-24/3063)
2. THE DIVISIONAL MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
REG: OFFICE GE PLAZA, AIRPORT ROAD
YERWADA, PUNE,
THROUGH THE REGIONAL MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
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MFA No.21700 of 2011
C/W MFA No.21695 of 2011
DESAI CROSS, CLUB ROAD, HUBLI
DIST: DHARWAD
(INSURER OF BAJAJ PICK UP VAN (3W)
NO.KA-24/3063 POLICY VALID FROM
13.05.2005 TO 12.05.2006)
...RESPONDENTS
(BY SRI. M K SOUDAGAR, ADVOCATE FOR R2;
R1 - SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD
DATED 04.12.2010 PASSED IN M.V.C. NO.900/2006 ON THE FILE
OF THE MEMBER, AMACT, SAUNDATTI, PARTLY ALLOWING THE
CLAIM EPTITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO. 21695 OF 2011
BETWEEN:
RAMZANSAB S/O ADAMSAB NADAF
AGED MAJOR, OCC: BUSINESS
R/O INAMHONGAL, TQ: SAUNDATTI
DIST: BELGAUM
(OWNER OF THE BAJAJ PICK UP VAN THREE
WHEELER BEARING NO. KA-24/3063
...APPELLANT
(BY SRI. A. SHIVA SHIRUR, & SRI. A P KAMOJI, ADVOCATES)
AND:
1. KAKAPPA S/O SHIVAJI MANE
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MFA No.21700 of 2011
C/W MFA No.21695 of 2011
AGED ABOUT 25 YEARS, OCC: NOW NIL
(BEFORE ACCIDENT - AGRICULTURE)
R/O INAMAHONGAL, TQ: SAUNDATTI,
DIST: BELGAUM.
2. THE DIVISIONAL MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
REG: OFFICE GE PLAZA, AIRPORT ROAD
YERWADA, PUNE
THROUGH THE REGIONAL MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.
DESAI CROSS, CLUB ROAD
HUBLI, DIST: DHARWAD
(INSURER OF BAJAJ PICK UP (3W)
NO.KA-24/3063 POLICY VALID FROM
13-5-2005 TO 12-5-2006)
...RESPONDENTS
(BY SRI. G I GACHCHINAMATH, ADVOCATE FOR R1
SRI. M.K.SOUDAGAR, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD
DATED 04.12.2010 PASSED IN M.V.C. NO.900/2006 ON THE FILE
OF THE MEMBER, AMACT, SAUNDATTI, AWARDING THE
COMPENSATION OF RS.3,23,500/- WITH INTEEST AT THE RATE
OF 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
THESE MFAs COMING ON FOR HEARING THIS DAY. THE
COURT DELIVERED THE FOLLOWING:
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MFA No.21700 of 2011
C/W MFA No.21695 of 2011
JUDGMENT
The appeal in M.F.A. No.21695/2011 by the Insured
and the companion appeal in M.F.A. No.21700/2011 by
the claimant seek to call in question the Judgment &
Award dated 04.12.2010 whereby the Additional MACT,
Saundatti, having favoured the claim petition in M.V.C.
No.900/2006, has awarded a compensation of
Rs.3,23,500/- with interest at the rate of 6% p.a. subject
to the usual condition of Bank Deposit of a portion thereof
for a period of five years.
2. The owner of the insured vehicle contends that
liability ought to have been fastened on the insurer, regard
being had to the question of nature of driving licence being
irrelevant in the light of Apex Court decision in Mukund
Dewangan vs. Oriental Insurance Company Limited,
(2017) 14 Supreme Court Cases 663. The claimant
contends that the award is too much on the meager side,
MFA No.21700 of 2011
C/W MFA No.21695 of 2011
the income factor having been taken too low disregarding
the one specified in the Lok Adalat Notional Income Chart.
3. Learned Senior Panel Counsel appearing for the
Insurer vehemently opposes both the appeals making
submissions in justification of the impugned Award and the
reasons on which it has been structured. He contends that
the MACT being a statutory expert body has got
accumulated wisdom in the trade and therefore, the
Appellate Court should be slow in granting indulgence in
appeals of the kind. So submitting, he seeks dismissal of
both the appeals.
4. FOUNDATIONAL FACTS:
(a) The vehicular accident in question happened on
14.01.2006; the offending vehicle happens to be Bajaj
Pick Up Van (three wheeler) bearing Registration
No.KA-24/3063; the same having been driven rashly
& negligently, the claimant, who was walking on the
left side of road, was knocked down and sustained
MFA No.21700 of 2011
C/W MFA No.21695 of 2011
grievous injuries. The claim petition was resisted both
by the owner of the insured vehicle and by the Insurer
by filing the Written Statements.
(b) To prove the claim, the claimant entered witness box
as P.W.1 and deposed; he had also examined the
treated doctor Dr.Mohan Babu as P.W.2; in their
depositions, as many as 73 documents came to be
produced & marked as Exs.P.1 to P.73; these
documents comprised of Police Papers, M.V.I. Report,
Medical Records, Land Records, School Records, etc.
To prove their objections, one Mr. Shivakumar
Nijaguni Bendigeri, the Law Officer of the Insurer was
examined as R.W.1; another person namely
Maheshwar Yallappa Shalger, an official from the
R.T.O. was examined as R.W.2; in their depositions,
six documents came to be produced & marked as
Exs.R.1 to R.6 and these documents inter alia
MFA No.21700 of 2011
C/W MFA No.21695 of 2011
comprised of Insurance Policy, Driving Licence, postal
acknowledgment etc.
(c) The MACT having considered the pleadings of the
parties and having weighed the evidentiary material
borne out on record has entered the subject Award
that is put in challenge by the claimant on the ground
of quantum, and by the owner of the insured vehicle
on the ground that the liability ought to have been
laid on the shoulders of the Insurer.
5. Having heard the learned counsel for the parties
and having perused the original Trial Court Records, this
Court is inclined to grant indulgence in these appeals as
under and for the following reasons:
(a) The vehement contention of the learned counsel
appearing for the claimant that the compensation has
been awarded in a frugal way is substantiated
inasmuch as the MACT has taken Rs.3,000/- as
monthly income of the claimant when the Lok Adalat
MFA No.21700 of 2011
C/W MFA No.21695 of 2011
Chart specifies Rs.3,750/- for the accident year in
question; this Court in a catena of decisions has held
that in the absence of proof of income, it is safe to
act upon the Chart Values subject to all just
exceptions and no case is made out either by the
Insurer or the insured to fit into the said exceptions.
Therefore, the Notional Income Value needs to be
altered at Rs.3,750/- in lieu of Rs.3,000/-.
(b) There is no force in the submission of learned counsel
for the claimant that in view of march of Law in
National Insurance Company Limited Vs. Pranay
Sethi, (2017)16 SCC 680, the claimant needs to be
awarded Rs.40,000/-, and therefore what is awarded
in a sum of Rs.20,000/- towards 'loss of amenities',
cannot be faltered. The claimant took treatment in
the hospital as an inpatient only for 15 days and
therefore, what has been awarded by the MACT as
compensation for loss of income during the laid up
MFA No.21700 of 2011
C/W MFA No.21695 of 2011
period and for the pain & suffering, and other heads
is absolutely correct.
6. With the altered figures and with the Memo of
Calculation furnished at the Bar, the compensation under
the head 'loss of earning due to disability' has been
reworked as under:
Rs.3,750/- x 12 x 18 x 35 = Rs.2,83,500/-.
The compensation awarded by the MACT under various
other heads are kept intact. Thus, the total compensation
when reworked comes to Rs.3,80,200/- (Rupees Three
Lakh Eighty Thousand & Two Hundred) only.
7. There is a lot of force in the vehement
contention of the owner of the insured offending vehicle
that regardless of the nature of the driving licence, the
liability ought to have been fastened on the Insurer in
view of the law declared by the Apex Court in Mukund
Dewangan (supra). Despite the vehement contention, the
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MFA No.21700 of 2011
C/W MFA No.21695 of 2011
learned Senior Panel Counsel for the Insurer could not
convince the Court to the contra, law being as clear as
Gangetic Waters.
In the above circumstances, these appeals succeed in
part. The impugned Judgment & Award having been
modified, the compensation is enhanced from
Rs.3,23,500/- to Rs.3,80,200/- (Rupees Three Lakh Eighty
Thousand & Two Hundred) only, and further the award
liability is fastened on the respondent-insurer who shall
make good the compensation within four weeks. All other
terms & conditions of the award have been left intact.
The amount deposited by the appellant-owner of the
insured offending vehicle shall be refunded to him
forthwith.
No costs.
Sd/-
JUDGE
KMS
