Karnataka High Court
Sri. Rajashekharayya Dundayya ... vs Shri. Ningayya Gangayya ... on 7 July, 2022
Bench: Krishna S.Dixitpresided Byksdj
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MFA No.24640 of 2011
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 07TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S.DIXIT
MFA NO.24640 OF 2011 (MV)
BETWEEN:
SHRI RAJASHEKHARAYYA DUNDAYYA MUNAVALLIMATH,
AGE 43 YEARS, OCC: NOW NIL,
R/O: KAKAKOL, TQ: RAMDURG, DIST: BELGAUM.
... APPELLANT
(BY SHRI RAJASHEKHAR S.ARANI, ADVOCATE)
AND:
1. SHRI NINGAYYA GANGAYYA HANCHINMATH,
AGE MAJOR, OCC: BUSINESS,
R/O: KAKAKOL, TQ: RAMDURG, DIST: BELGAUM.
2. THE MANAGER,
IFFCO TOKIO GENERAL INSURANCE,
NO.127-A, BHAVANI ARCADE, III FLOOR,
NEAR OLD BUS STAND, NEW COTTON MARKET,
HUBLI, DIST: DHARWAD.
... RESPONDENTS
(BY SHRI M.B. KANAVI, ADVOCATE FOR R1;
SHRI RAVINDRA R. MANE, ADVOCATE FOR R2)
Digitally
signed by
ROHAN
HADIMANI THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT,
ROHAN T
HADIMANI Location:
T DHARWAD
1988, AGAINST THE JUDGMENT & AWARD DATED 07.04.2011,
Date:
2022.07.11
10:27:34
PASSED IN MVC NO.1829/2008 ON THE FILE OF THE II-ADDL.
+0530
DISTRICT & SESSIONS JUDGE & MEMBER, ADDL. MACT,
BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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MFA No.24640 of 2011
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the claimant seeks to lay a challenge
to the Judgment & Award dated 07.04.2011 entered by the
Additional MACT at Belagavi, whereby the claim in MVC
No.1829/2008 having been favoured a compensation of
Rs.1,03,200/- with interest at the rate of 6% p.a. has been
awarded, however, absolving the Insurer. The claimant
grieves that the award is too much on the frugal side and
insists that the award liability ought to have been levied on
the Insurer.
2. After service of notice, the respondent-Insurer
having entered appearance through his Panel Counsel
opposes the appeal making submission in justification of
the award and the reasons given by the MACT therefor.
The Panel Counsel contends that the MACT being an expert
body having considered all aspects of the matter has made
the award and therefore there is no scope for indulgence of
the Appellate Court. So contending, he seeks dismissal of
the appeal.
MFA No.24640 of 2011
3. FOUNDATIONAL FACTS IN BRIEF:
(a) The accident in question happened on 08.12.2007;
the offending Auto-rickshaw bears Registration
No.KA-25/A-4484; the accident happened due to rash &
negligent driving when the vehicle was moving on the
Kaktol-Yaragatti Road in the morning; the cause of
accident is the 'turtling' of the offending vehicle resulting
into grievous injuries to the claimant. The claim petition
was stoutly opposed by the Insurer by filing the Written
Statement inter alia contending that no liability can be
fastened on the Insurer for want of valid & effective driving
licence for plying offending vehicle of the kind.
(b) To prove the claim, the claimant himself was
examined as PW1; two Doctors who had treated him
namely Dr. S.R. Angadi & Dr. R.B. Patagundi have been
examined as PW2 & PW3. In their deposition of claimant
side as many as 17 documents came to be produced and
marked as Exhibits P1 to P17, which inter alia comprise of
Police Papers, IMV report, Medical Records, etc. From the
side of Insurer, its Legal Officer Mr. Sagar Kiran Hajare
was examined as RW1 and in his deposition four
MFA No.24640 of 2011
documents came to be produced and marked as Exhibits
R1 to R4, which comprise of Driving Licence, Registration
Certificate, Insurance Policy & Authorisation Letter. The
MACT after adverting to the pleadings of parties and after
weighing the evidentiary material on record has entered
the award that is now put in challenge.
4. Having heard the learned counsel for the
parties and having perused the appeal papers, this Court is
inclined to grant a limited indulgence in the matter as
under and for the following reasons:
(i) The vehement contention of learned counsel for the
claimant that firstly the award liability ought to have been
fastened on the Insurer has got force; the nature of
Driving Licence for the vehicle in question now pales into
insignificance, in the light of Apex Court decision in
MUKUND DEVANGAN VS. ORIENTAL INSURANCE CO. LTD.,
(AIR 2017 SC 3668). Therefore, the liability could not have
been levied on the shoulder of the owner of the offending
vehicle; there being admittedly the Insurance Coverage.
MFA No.24640 of 2011
(ii) The vehement submission of the learned counsel for
the claimant that the MACT is not justified in taking only
Rs.3,000/- as monthly income of the claimant when the
Lok Adalath Income Chart for the accident year in question
prescribes Rs.4,000/- per month. It has been the settled
position of law that ordinarily when there is no cogent
material on record evidencing the income of victims, the
Lok Adalath Income Chart values are operated. Therefore,
the income of the claimant is taken at Rs.4,000/- per
month.
(iii) Learned counsel for the claimant is also justified in
the contending that the percentage of disability ought to
have been taken at 12% qua as taken by the MACT 10%
going by simple arithmetics generally applied in a matters
of the kind i.e., ordinarily the earning disability is taken at
1/3rd of the medical disability, which is 35% herein.
Therefore, the disability needs to be taken at 12%. With
the altered values, the compensation towards loss of future
income has been recomputed with the aid of memo of
calculation submitted at the Bar, which is as under:
MFA No.24640 of 2011
"Rs.4,000/- x 12 x 15 x 12% = Rs.86,400/-."
(iv) Learned counsel for the claimant also points out that
no compensation has been paid for the "loss of income
during laid up period", which is 24 days. It is not that a
person after being discharged from the hospital, straight
away would go to work. Regard being had to nature of
injuries and treatment, he would need some more time for
recoupement which is taken at three months; that works
out to Rs.12,000/- (Rs.4,000/- x 3) as the income payable
under this head. Similarly, a sum of Rs.15,000/- ought to
have been awarded towards food, nourishment &
transport. All other terms & conditions are kept intact.
In the above circumstances, this appeal succeeds;
the impugned Judgment & Award having been modified;
the compensation awarded by the MACT has been
enhanced to Rs.1,73,400/- (Rupees one lakh seventry
three thousand & four hundred) only from Rs.1,03,200/-
awarded by the MACT and the award liability is fastened on
the Insurer.
MFA No.24640 of 2011
The compensation be made good by the Insurer
within a period of eight weeks.
Costs made easy.
Sd/-
JUDGE
VNP
