Karnataka High Court
Sri. Shivanna @ Shivappa vs Mr. Dadapeer on 17 June, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.2581/2018 C/W
M.F.A.NO.7565/2018 (MV-I)
IN MFA NO.2581/2018
BETWEEN:
THE RELIANCE GENERAL
INSURANCE COMPANY LTD.,
1ST FLOOR, MAGANUR,
COMMERCIAL COMPLEX,
OPP. KSRTC BUS STAND,
B.D.ROAD, CHITRADURGA.
ALSO AT THE RELIANCE GENERAL
INSURANCE COMPANY LIMITED,
EAST WING, 5TH FLOOR, NO.28,
CENTENARY BUILDING, M.G. ROAD,
BENGALURU-560001.
NOW REPRESENTED BY
MANAGER LEGAL
... APPELLANT
(BY SRI. ASHOK N.PATIL, ADVOCATE)
AND:
1. SHIVANNA @ SHIVAPPA,
S/O DASAPPA,
AGED ABOUT 59 YEARS,
AGRICULTURIST,
R/O SODRANALA VILLAGE,
HOSADURGA TALUK,
CHITRADURGA DISTRICT.
2
2. DADAPEER,
S/O LATE. HAJI RASHEED,
MAJOR, PROP. MUBARAK TRANSPORT,
RMC YARD ROAD,
CHITRADURGA.
3. THE DIVISIONAL MANAGER,
IFFCO-TOKIO GENERAL INSURANCE
COMPANY LIMITED,
CUSTOMER SERVICE CENTER,
5TH FLOOR, 3RD MAIN ROAD,
141 EAST OF NGEF LAYOUT,
KASTURI NAGARA,
BENGALURU-560043.
... RESPONDENTS
(BY SRI. R. LAKSHMANA, ADVOCATE FOR R1,
SRI. D. VIJAYAKUMAR, ADVOCATE FOR R3)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:24.01.2018 PASSED IN MVC NO.216/2015 ON THE
FILE OF THE SENIOR CIVIL JUDGE & JMFC, MACT,
HOSADURGA, AWARDING COMPENSATION OF
RS.9,62,000/- WITH INTEREST AT 6% P.A. FROM THE
DATE OF PETITION TILL DEPOSIT AND ETC.,
IN MFA NO.7565/2018
BETWEEN:
SRI. SHIVANNA @ SHIVAPPA,
S/O DASAPPA,
AGED ABOUT 60 YEARS,
AGRICULTURIST,
RESIDING AT:
SODARANALA VILLAGE,
HOSADURGA TALUK,
CHITRADURGA DISTRICT-577527.
...APPELLANT
(BY SRI. CHANDRASHEKHARAIAH, ADVOCATE)
3
AND:
1. MR. DADAPEER,
S/O LATE HAJI RASHEED,
MAJOR,
PROPRITER,
MUBARAK TRANSPORT,
RMC YARD,
CHITRADURGA TOWN & DIST.
PIN-577501.
2. THE DIVISIONAL MANAGER
IFFCO-TOKIO GENERAL,
INSURANCE COMPANY LTD.,
CUSTOMER SERVICE CENTER,
5TH FLOOR, 3RD MAIN,
141 EAST OF NGEF LAYOUT,
KASTURI NAGAR,
BENGALURU-560001.
(PETITION AGAINST RESPONDENT
NO.2 DISMISSED NOT PRESSED & DELETED
AS PER ORDER DT.6/12/2016)
3. THE GENERAL MANAGER,
RELIANCE GENERAL
INSURANCE COMPANY LTD.,
1ST FLOOR,
MANGANUR COMERCIAL COMPLEX,
OPP:KSRTC BUS STAND,
CHITRADURGA-577501.
...RESPONDENTS
(BY SRI. ASHOK N. PATIL, ADVOCATE FOR R2,
NOTICE TO R1 IS HELD SUFFICIENT)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:24.01.2018 PASSED IN MVC NO.216/2015 ON THE
FILE OF THE SENIOR CIVIL JUDGE, JMFC, MACT,
HOSADURGA, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.,
4
THESE M.F.As. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.2581/2018 is filed under Section-173(1)
of the Motor Vehicles Act, 1988, (hereinafter referred
to as 'MV Act' for brevity) by the appellant-insurance
company, challenging the judgment and award dated
24.01.2018, passed in MVC No.216/2015, on the file
of the Senior Civil Judge and MACT at Hosadurga,
(hereinafter referred to as 'the Tribunal' for brevity)
questioning the quantum and liability.
2. MFA No.7565/2018 is filed under Section-
173(1) of MV Act by the appellant - claimant,
challenging the aforesaid judgment and award, for
seeking enhancement of compensation.
Brief facts:
3. On 25.12.2014, at about 2.00 p.m., while
the claimant was traveling on motor cycle bearing
registration No.KA-16-Y-6110 as Pillion Rider from
T.B. Circle to Hosadurga bus stand; near Karnataka
Bank at main road in Hosadurga town a bus bearing
registration No.KA-09-A-7700, being driven by its
driver in a rash and negligent manner, dashed against
motor cycle. As a result, he sustained grievous
injuries. Immediately he was shifted to Government
Hospital, Hosadurga and thereafter he was shifted to
SSIM Hospital, Davanagere and later he was treated
in BGS Global Hospital, Bengaluru, as in-patient and
underwent surgery.
4. Hence, a claim petition was filed by the
claimant under Section-166 of the M.V. Act, claiming
compensation for the injuries sustained in the
accident. The Tribunal on appreciating the materials
on record, allowed the petition in part, and awarded a
compensation in a sum of Rs.9,62,000/- along with
interest at 6% per annum, from the date of petition
till the date of deposit. The Tribunal held respondent
Nos.1 and 3 therein jointly and severally liable to pay
the compensation.
5. The learned counsel for the appellant -
insurance company in MFA No.2581/2018, vehemently
submitted that in the present case, as on the date of
the accident, there was no permit to ply the bus.
Admittedly, the permit of the bus was expired on
12.03.2011. On 08.06.2011, an application for
renewal of the permit was made and subsequently on
25.12.2014, the accident has occurred. Therefore,
there was no valid and effective permit as on the date
of the accident as the permit has expired much before
the accident and permit was not renewed. Therefore,
the insurance company is not liable to pay the
compensation and that the Tribunal has committed an
error in holding that there is an deemed permit, which
is not correct.
6. Further, submitted that even though
subsequently, there was a resolution passed by the
Road Transport Authorities for renewing permission
i.e, within 60 days from the date of renewal before the
transport authority such permission was not obtained
by the owner of the bus. Therefore, there was no valid
permit. Hence, the insurance company is not liable to
pay the compensation.
7. On the other hand, the learned counsel for
the appellant-claimant in MFA No.7565/2018
submitted that as per Exhibit-R16, the permit was
renewed by placing resolution by transport
department and as per Section-88(1) of the MV Act,
the permit has been renewed with effect from the date
of expiry. Therefore, it is deemed permit from the
date of expiry i.e., from 12.03.2011. Therefore,
submitted that as on the date of the accident the
offending bus was having deemed permission. But not
only deemed permission, the transport authority has
passed resolution renewing the permit. Therefore,
submitted that the owner of the bus had permit to ply
the bus. Therefore, submitted that the appeal filed by
the insurance company is liable to be dismissed.
8. Further, the learned counsel for the
claimant submitted that the amount of compensation
awarded under various heads are not sufficient.
Therefore, prays for enhancement of the same.
Further, submitted that the claimant had suffered
amputation of left hand till shoulder level. The clamant
was an agriculturist and was doing fair price shop.
Hence, lost income at 100% of earning capacity, but
the Tribunal has only considered 50% of disability.
Therefore, submitted to consider that the claimant had
suffered 100% functional disability and accordingly
award compensation.
9. On the other hand, the learned counsel for
the appellant-insurance company submitted regarding
quantum of compensation submitted that the Tribunal
has held 50% disability is correct. Even though the
claimant had suffered amputation of left hand, he can
do other work and also runs fair price shop business
can be continued even with one hand and there would
not be any need for future income. Hence, the
Tribunal held 50% disability, which is correct.
Therefore, prays for dismissing the appeal filed by the
claimant.
10. The Tribunal has awarded compensation
under various heads as follows:
Medical expenses and hospital : Rs. 3,33,000/-
charges
Pain and Suffering : Rs. 80,000/-
Loss of amenities And Happiness and : Rs. 1,20,000/-
Frustration of life
Loss of earning during laid up period : Rs. 18,000/-
Loss of future earnings : Rs. 3,96,000/-
Conveyance, attendant, food, : Rs. 15,000/-
nourishment charges
TOTAL COMPENSATION : Rs. 9,62,000/-
11. Regarding the liability aspect, on the
permit as submissions canvassed by the respective
learned counsels, it true that the permit expired on
12.03.2011, the owner of the bus had filed application
for renewal on 08.06.2011. The accident occurred on
25.12.2014. The learned counsel for the claimant
submitted that the Exhibit-R16 is the resolution
passed by the transport authorities that the permit in
respect of the offending vehicle was renewed and as
per sub-section-(5) of Section-81 of MV Act, the
permit due to have been in force on the date of
accident. Exhibit-R16 is the document of transport
authority renewing the permit, but that is subject to
obtaining approval on the permit within 60 days from
the State Transport Authority. Therefore, it cannot be
said that the bus had permit as on date of accident
was fortified by the evidence RW-2, who is official of
the RTO, Chitradurga. That the during the course of
examination, it is revealed from his evidence that
respondent No.1 owner did not obtain approval as per
Exhibit-R17 resolution. Therefore, for this reason of
non-obtaining of approval of endorsement within 60
days from the State Transport Authorities, hence it
cannot be said that the permit was in force. Further,
RW-2 had stated that after passing the resolution as
per Exhibit-R17, respondent No.1 - owner had not
submitted any application. Therefore, it is proved that
first respondent - owner had not submitted any
application for obtaining endorsement.
12. Further in the cross-examination, it is
admitted by the RW-2-RTO official that even though
the permit is deemed to have been in force because of
the fact endorsement / approval was not obtained
from the state transport authorities it is deemed on
there is no permit at all. Under these facts and
circumstances, it cannot be said that the permit is
deemed to have been in force. The Tribunal has not
discussed anything on the aspect by appreciating
evidence of RW-2 and Exhibit-R-16 and R17. The
Tribunal has only swayed with the finding that the
application was only pending. Therefore, the permit is
said to have been in force. But this finding of the
Tribunal is perverse for the reason that the Tribunal
has lost sight of the contention mentioned in Exhibit-
R17 and also evidence of RW-2 that non-obtaining
approval / endorsement within 60 days from the date
of resolution from the State Transport Authorities
then, the permit was not in force. Therefore, the
finding in this regard by the Tribunal is perverse and
is contrary to the evidence on record.
13. Just because the authorities have passed
the resolution on renewing the permit as per Exhibit-
P17, but it was subject to the condition that the
permit order was obtained subject to endorsement /
approval of the state transport authority within 60
days from the date of passing the resolution and till
then permit could not be said that it is in force.
14. RW-2 in the course of cross-examination of
both the learned counsel coupled with condition
mentioned in Exhibit-R16, the findings and reasonings
given by the Tribunal is not correct. Hence, the
appellant - insurance company is right in its
contention that as on the date of the accident, there
was no valid and effective permit in respect of bus
registration No.KA-16-Y-6110. Hence, on this ground
the appellant - insurance company primarily and
absolutely is not liable to indemnify the first
respondent - owner of bus.
REGARDING QUANTUM OF COMPENSATION:
15. In the present case, from Exhibit-P6 wound
certificate, Exhibit-P9 discharge summary, it is
revealed that the claimant had suffered the following
injuries:
"i. Abrasion over upper part of occipital 3 x 3 cms. in
size,
ii. degloving wound of left forearm, hand and wrist
with rear total amputation of left little finger,
iii. fracture of proximal phalanx of little finger,
iv. proximal migration of distal segment carpal
bones.
16. It is stated that the petitioner has taken
treatment in BGS global hospital Bengaluru from
25.12.2014 to 17.01.2014 (24 days). The Tribunal has
awarded compensation of Rs.80,000/- towards
'Injuries Pain And Suffering'. Therefore, considering
the fracture that the claimant suffered amputation of
left hand, a sum of Rs.1,00,000/- is awarded
towards 'Injuries Pain And Suffering'. The Tribunal
has awarded a sum of Rs.3,33,000/- towards
'Medical Expenses And Hospitalization Charges',
which is as per record produced by the claimant
himself before the Tribunal and there is no need to
make any interference.
17. It is stated that the claimant was
agriculturist and was doing business of fair price shop
by obtaining licence from the Government. The
claimant had suffered amputation of the left hand till
shoulder. The Tribunal had considered 50% of
disability. Considering the fact that the claimant had
suffered amputation of left hand till the shoulder level,
certainly the appellant will not be able to do
agriculture work and also fair price shop with one
hand. It is difficult to the claimant to do agriculture
work as well as business. Therefore, the learned
counsel for the claimant is right in contending that the
claimant has lost his income to an extent of 90%.
Therefore, I place reliance on the judgment of the
Hon'ble Apex Court in the case of Syed Sadiq and
Others Vs. Divisional Manager, United India
Insurance Company Limited reported in (2014) 2
SCC 735. In Syed Sadiq's case, the facts are that the
claimant who is a vegetable vendor had sustained
85% of functional disability and the occupation of the
vegetable vending is not confined to selling vegetables
from a particular location, rather it involves procuring
vegetables from the wholesale market or the farmers
and then selling it off in the retail market. This often
involves selling vegetables in the cart, which requires
100% mobility. Therefore, assessed the functional
disability at 85% and also granted 50% of increment
in future loss of income. The said principles of law laid
down in Syed Sadiq's case are squarely applicable to
the present case also.
18. The contention of the learned counsel for
the insurance company submitted that as per
Schedule-IV of the Employees Compensation Act for
amputation of either of hand, the permanent disability
would be 70%. Therefore requested to take 70% of
disability. But while determining the 'loss of earning
due to disability', the functional disability is to be
taken into consideration. Considering the percentage
of permanent disability coupled with the avocation and
also following the principles laid down by this court in
the case of Raj Kumar Vs. Ajay Kumar and
Another reported in (2011) 1 SCC, the
functional disability assessed at 70% is on
lesser side and cannot be accepted.
19. The Tribunal by holding the age of the
claimant as between 50-55 applying multiplier '11' but
as per the avocation identity card and the disability
certificate produced as per Exhibit-P39, the accident
occurred on 25.12.2014. Therefore as on the date of
the accident, the claimant was found to be morethan
56 years old, also the claimant in cause-title while
filing the appeal considering the age mentioned at 56
years the appropriate multiplier would be '9' as per
the judgment of Hon'ble Apex Court in the case of
Sarla Verma and Others -Vs- Delhi Transport
Corporation and Another reported in AIR 2009
SCC 3104. The Tribunal has taken notional income of
Rs.6,000/- per month. But is proved that the claimant
was agriculturist and was doing fair price shop
business in the village and even though the claimant
has not produced exact proof of income, but
considering his avocation as discussed above, as per
the notional income chart recognized by the Karnataka
State Legal Service Authority the monthly notional
income is taken at Rs.8,500/- per month. Considering
the factors that the claimant had suffered amputation
of left hand the disability is taken at 95%. Therefore,
the compensation under the head 'Loss Of Future Earning
Capacity' is recalculated and quantified as follows:
Rs.8,500 x 95/100 x 9 x 12 = Rs.8,72,100/-
20. Further the Tribunal has awarded
compensation of Rs.15,000/- towards 'Conveyance
Attendant Food Nourishment Charges Etc.' the same is
on the lower side. Hence, a sum of Rs.50,000/-, is
awarded under the head 'Conveyance, Attendant,
Food, Nourishment Charges'.
21. The Tribunal has awarded a sum of
Rs.18,000/- towards 'Loss Of Earning During Laid Up
Period' by taking income Rs.6,000/- per month and
calculating the laid up period for three months.
Considering the monthly income at Rs.8,500/- per
month, the appellant is entitled for a sum of
Rs.25,500/- (Rs.8,500 x 3 months), under the
head 'Loss Of Earning During Laid Up Period'.
22. Further, just because the Doctor is not
examined for 'Future Medical Expenses' it does not
mean that the claimant is not required to get any
future medical treatment or medical expenses. The
appellant may be required for fixing artificial limb.
Hence, a compensation of Rs.25,000/- towards
'Future Medical Expenses'.
23. The Tribunal has awarded a sum of
Rs.1,20,000/- towards 'Loss of Amenities' which is
appropriate and hence kept in tact.
24. As it is held above as on the date of accident,
the offending bus was not having valid effective
permit. Therefore, the appellant-insurance company is
absolutely not liable to pay the compensation. But as
per Section-149(2) of M.V. Act, the insurance
company has taken defence and successfully
established. Therefore, in view of that the insurance
company has to pay the compensation at the first
instance and to satisfy the compensation amount to
the claimant at first instance and then recover the
same from the owner of the bus as per the principle
laid down by the Hon'ble Apex Court in the case of
PAPPU AND OTHERS -V- VINOD KUMAR LAMBA
AND ANOTHER reported in (2018) 3 SCC 208 and
in view of full bench judgment of this court in the
cases of NEW INDIA ASSURANCE COMPANY
LIMITED VS. YELLAVVA AND ANOTHER
reported in 2020 ACJ 2560 (HCK) and
NATIONAL INSURANCE CO. LTD. V.
CHELLABHARATAMMA reported in AIR 2004 SCC
4882.
25. Hence, the appellant is entitled for a total
enhanced compensation, under various heads as
follows:
Medical expenses and hospital : Rs. 3,33,000/- Kept in tact
charges
Pain and Suffering : Rs. 1,00,000/-
Loss of amenities And Happiness : Rs. 1,20,000/- Kept in tact
and Frustration of life
Loss of earning during laid up : Rs. 25,500/-
period
Loss of future earnings : Rs. 8,72,100/-
(Rs.8,500 x 95/100x 9 x 12)
Future Medical Expenses : Rs. 25,000/-
Conveyance, attendant, food, : Rs. 50,000/-
nourishment charges
TOTAL COMPENSATION : Rs. 15,25,600/-
26. Therefore, the appellant is awarded a total
compensation of Rs.15,25,600/- as against the
compensation awarded by the Tribunal at
Rs.9,62,000/-. Hence, the appellant is entitled for an
additional compensation of Rs.5,63,600/-
(Rs.15,25,600 - Rs.9,62,000), along with interest at
6% per annum from the date of filing of the petition
till deposit.
27. Accordingly, I pass the following:
ORDER
i. MFA No.2581/2018 filed by the appellant-
insurance appeal is allowed in part.
ii. MFA No.7565/2018 filed by the appellant -
claimant, is allowed in part.
iii. judgment and award dated 24.01.2018, passed
in MVC No.216/2015, on the file of the Senior
Civil Judge and MACT at Hosadurga is
modified.
iv. The appellant is entitled for an additional
compensation of Rs.5,63,600/-
(Rs.15,25,600 - Rs.9,62,000), along with
interest at 6% per annum from the date of
filing of the petition till deposit.
v. The insurance company shall satisfy the
compensation amount to the claimant at
the first instance and then recover the
same from the owner of the offending bus
bearing registration No. KA-09-A-7700.
vi. The amount in deposit shall be transferred
to the Tribunal forthwith.
vii. Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court
forthwith without any delay.
viii. Draw award accordingly.
Sd/-
JUDGE
JJ
