Karnataka High Court

Lokesh. T. P vs Mari on 16 June, 2022

Bench: H T Prasad

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 16TH DAY OF JUNE 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                 MFA No.861 OF 2019(MV)

BETWEEN:

Lokesh T.P.,
S/o Puttaswamy Gowda,
Age 45 years, Supervisor,
Bhadra Packads,
Barandu, R/o U2B 18,
Upstairs Building, New Colony,
Bhadravathi Taluk-577 301.                   ... Appellant

(By Sri.Mruthyunjaya S Mathapathi, Advocate for
Sri. R Shashidhara, Advocate)

AND:

1.     Mari,
       S/o Doreswamy,
       Age 42 years, Driver,
       R/o Mandaravalli, Halasuru Post,
       Lakkavalli, Tarikere Taluk-577 228,
       Chikkamagaluru District.

2.     Murugesh R,
       S/o Late Ramaswamy,
       Age 37 years,
       R/o Hosagangur,
       Kallahattipura Post,
       Tarikere Taluk-577 228,
       Chikkamagaluru District.
                              2



3.   The New India Insurance Co. Ltd.,
     Chikkamagaluru District-577101.       ... Respondents

(By Sri.Kiran Kumar P.K., Advocate for R1 & R2:
Sri. Ravishankar A., Advocate for R3)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:01.03.2018 passed
in MVC No.682/2015 on the file of the Principal Senior Civil
Judge and JMFC., and Additional MACT-II, Bhadravathi,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.

      This MFA, coming on for admission, this day, this
Court, delivered the following:

                     JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment and decree dated 01.03.2018 passed

by the MACT, Bhadravathi in MVC No.682/2015.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 09.08.2014 at about 4.40

p.m., the claimant was proceeding on Scooty bearing

registration No.KA-14/U-3434 in front of Bhadra Petrol

Bunk near Balabharathi Cross. At that time, the rider

of the motorcycle bearing registration No.KA-18/Y-

5883 being ridden by its rider at a high speed and in a

rash and negligent manner, dashed to the vehicle of

the claimant. As a result of the aforesaid accident,

the claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.3

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The age, avocation and income of the

claimant and the medical expenses are denied. It was

pleaded that the petition itself is false and frivolous in

the eye of law. It was further pleaded that the

accident was due to the rash and negligent riding of

the vehicle by the claimant himself. It was further

pleaded that the rider of the offending vehicle did not

have valid driving licence as on the date of the

accident. It was further pleaded that the liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, he

sought for dismissal of the petition.

The respondent Nos.1 and 2 did not appear

before the Tribunal inspite of service of notice and

were placed ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and got exhibited documents

namely Ex.P1 to Ex.P15. On behalf of the

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R1 to Ex.R3. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash

and negligent riding of the offending vehicle by its

rider, as a result of which, the claimant sustained

injuries. The Tribunal further held that the claimant is

entitled to a compensation of Rs.2,06,000/- along with

interest at the rate of 9% p.a. and since the rider of

the offending vehicle did not possess valid and

effective driving licence, directed the rider and owner

of the offending vehicle to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was doing supervising work and earning Rs.15,000/-

per month, including salary of Rs.8,788/-, but the

Tribunal has taken the notional income as only

Rs.5,671/- per month. The Tribunal has erred in

considering the net income instead of considering the

gross salary of the claimant.

Secondly, due to the accident the claimant has

suffered grievous injuries. He was inpatient for a

period of 13 days. He has examined the doctor. The

doctor has assessed the disability at 26%. The

Tribunal has assessed the whole body disability as

8.6% which is on the lower side.

Thirdly, the claimant has suffered lot of pain

during treatment and he has to suffer the disability

and unhappiness throughout his life. Considering the

same, the compensation granted by the Tribunal

under the heads of 'pain and sufferings' and other

incidental heads are on the lower side and the

Tribunal has failed to award any compensation for

'loss of amenities'.

Fourthly, even though the driver of the offending

vehicle was not having valid and effective driving

licence and the insured has violated the policy

condition, but in respect of third party is concerned,

the Insurance Company has to pay the compensation

amount with liberty to recover the same from the

owner of the offending vehicle. In support of his

contention, he relied upon the Hon'ble Apex Court in

the case of 'PAPPU AND OTHERS vs. VINOD

KUMAR LAMBA AND ANOTHER' AIR 2018 SC 592

and a Full Bench judgment of this Court in 'NEW

INDIA ASSURANCE CO. LTD. BIJAPUR vs.

YALLAVVA AND ANOTHER' ILR 2020 Kar.2239.

Hence, he sought for allowing the appeal.

7. On the other hand, Sri A.RAvishankar, the

learned counsel for the Insurance Company has raised

following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.15,000/- per month and produced

salary certificate showing the gross income as

Rs.8,788/- and the net income Rs.5,671/-. The

Tribunal has rightly considered the monthly income of

the claimant as Rs.5,671/-.

Secondly, even though the doctor has opined

that there is disability of 26% he has not deposed

regarding whole body disability. The Tribunal has

considered 1/3rd of limb disability and rightly assessed

the whole body disability as 8.6%.

Thirdly, considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal is just and reasonable compensation.

      Fourthly,    in view of the law laid down by a

Division   Bench    of   this       Court   in   the   case    of

MS.JOYEETA          BOSE            AND      OTHERS           vs.

VENKATESHAN.V AND OTHERS (MFA 5896/2018

and connected matters disposed of on

24.8.2020), the rate of interest awarded by the

Tribunal at 9% p.a. is on the higher side. Hence, he

sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

The claimant claims that he was earning

Rs.15,000/- per month and produced the salary

certificate wherein his gross income is shown as

Rs.8,788/-. Even as per the guidelines issued by the

Karnataka State Legal Services Authority for the

accident occurred in the year 2014, the notional

income has to be taken at Rs.8,500/- p.m. As per

wound certificate, the claimant has sustained first

lumber vertebra burst fracture. PW-2, the doctor has

stated in his evidence that the claimant has suffered

disability of 26% to particular limb. The whole body

disability can be assessed at 9%. The claimant was

aged about 41 years at the time of the accident and

multiplier applicable to his age group is '14'. Thus,

the claimant is entitled for compensation of

Rs.1,28,520/- (Rs.8,500*12*14*9%) on account of

'loss of future income'.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He has

suffered lot of pain during treatment and he has to

suffer with the disability and unhappiness throughout

his life. Considering the same, I am of the opinion that

the claimant is entitled to compensation of

Rs.51,000/- (Rs.8,500*6) under the head 'loss of

income during laid-up period' and Rs.20,000/- under

the head 'loss of amenities'.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

10. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 50,000 50,000 Food, nourishment, 20,000 20,000 conveyance and

attendant charges Loss of income during 34,026 51,000 laid up period Loss of amenities 0 20,000 Loss of future income 81,934 1,28,520 Future medical expenses 20,000 20,000 Total 2,05,960 2,89,520 Rounded off to 2,06,000

Re.liability:

11. The Tribunal has given a finding that the

driver of the offending vehicle was not having a valid

and effective driving licence as on the date of the

accident. Since the insured has violated the policy

condition, Insurance Company is not liable to pay the

compensation. But in view of the law laid down by the

Hon'ble Apex Court in the case of PAPPU (supra)

and a Full Bench judgment of this Court in the case of

YELLAVVA (supra), Insurance Company has to pay

the compensation with liberty to recover the same

from the insured, i.e., the owner of the offending