Narasappa S/O Huligappa vs Babu S/O Thimmayya And Ors
2022 Latest Caselaw 3545 Kant

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          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

       DATED THIS THE 3RD DAY OF MARCH, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

               MFA No. 30692/2013 (MV)

Between:

Narsappa S/o Huligappa,
Age: 31 years, Occ: Laundry Business,
R/o Arnalli village, Tq. Manvi,
Now at Rampur Road, Kulsumbi Colony,
Raichur-584 101.
                                             ... Appellant
(By Sri Basavaraj R.Math, Advocate)
And:
1.     Babu S/o Thimmayya,
       Age: 26 years, Occ: Driver of Goods Autorikshaw
       No.KA.36/2571, R/o Raladoddi Village,
       Tq. and Dist. Raichur-584 101.
2.     Devappa S/o Lakshmayya,
       Age: 26 years, Occ: Business and owner of
       Goods Autorikshaw No.KA.36/2571,
       R/o Raladoddi Village,
       Tq. and Dist. Raichur-584 101.
3.     The Manager,
       Reliance General Insurance Company Ltd.,
       Office at No.40, 1st Floor, SLY towers,
       Parvathi Nagar, Main Road, Bellary-583 101.
                                     ... Respondents
(By Smt. Preeti Patil Melkundi, Advocate for R3;
Notice to R1 & R2 are served v/o dated 12.06.2014)
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      This Miscellaneous First Appeal is filed under Section
173(1) of the MV Act praying to modify the impugned
judgment and award dated 27.12.2012 passed by the
Principal District Judge, Raichur in MVC No.26/2012.

      This appeal coming on for hearing, this day, the
Court delivered the following:-
                          JUDGMENT

This appeal is filed under Section 173(1) of the

Motor Vehicles Act, 1988 (hereinafter referred to as

'the Act', for short) by the claimant aggrieved by the

judgment dated 27.12.2012 passed in MVC No.

26/2012 by the District and Sessions Judge, Raichur,

seeking for enhancement of compensation.

2. For the sake of convenience, parties are

referred to as per their ranking before the Claims

Tribunal. Appellant is the petitioner and respondents

are the respondents.

3. The brief facts giving rise to the filing of the

appeal are that on 14.06.2011 at about 1.30 p.m., the

petitioner was proceeding as a pillion on the motor

cycle No. KA-36/W-1344 driven by his relative

Veeresh S/o Narasappa on Raichur-Chandrabanda

road and near Kadagamadoddi Cross, the autorikshaw

No. KA-36/2571 came in opposite direction and

dashed to the motor cycle driven by the petitioner's

relative and as a result, the petitioner fell down and

sustained injuries in the right lower limb and also

other fractures. The petitioner has spent huge amount

for medical treatment and he has suffered permanent

disability.

3.1. The petitioner filed a claim petition under

Section 166 of Motor Vehicles Act seeking for

compensation on account of injuries sustained in the

road traffic accident.

3.2. Respondent No.1-driver of the autorikshaw,

did not appear before the Tribunal inspite of service of

notice, was placed ex-parte.

3.3. The respondent No.3 filed the written

statement denying the averments made in the claim

petition. It is contended that sole negligence was on

the part of rider of the motorcycle and the said rider

has no valid driving licence to drive the motorcycle.

The respondent No.1 driver of autorikshaw also did

not possess the valid driving licence and therefore,

there is breach of policy condition. The respondent

No.3 is not liable to pay compensation. Hence, he

prayed to dismiss the claim petition.

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

the Claims Tribunal framed the issues and thereafter

recorded evidence. The petitioner in order to prove

his case, examined himself as P.W.1 and in order to

prove the disability, examined the doctor as P.W.2

and got exhibited documents namely Ex.P1 to Ex.P89.

On behalf of the respondent No.3, insurance company

official was examined as DW.1 and got marked Ex.D1

to D3. The Tribunal, after recording the evidence on

record and considering the material on record, by the

impugned judgment, held that the petitioner has

proved that he has sustained injuries in the road

traffic accident on 14.06.2011 and the accident

occurred on account of rash and negligent driving of

the driver of the autorikshaw. The Tribunal further

held respondent No.3 has failed to prove that the

driver of the offending vehicle was not holding a valid

and effective driving licence as on the date of the

accident and thereby there is violation of policy

conditions by the owner and held that the petitioner is

entitled for compensation and consequently allowed

the claim petition in part and awarded compensation

of `60,000/- along with interest at the rate of 6% p.a.

and further held that respondent Nos.1 and 2 are

liable to pay compensation to the petitioner and

consequently, dismissed the claim petition against

respondent No.3. Being aggrieved by the judgment

and award passed by the Tribunal the petitioner has

filed this appeal seeking for enhancement of

compensation amount and liability.

5. Heard the learned counsel for the petitioner

and the learned counsel for the respondent No.3.

6. The learned counsel for the appellant

submits that the driver of the offending vehicle was

possessing a light motor vehicle licence and he further

submits that in view of the law laid down by the

Hon'ble Apex Court in the case of Mukund

Dewangan Vs. Oriental Insurance Company

Limited and Others, reported in (2017) 14 SCC, If

the person is holding a driving licence to drive a class

of Light Motor Vehicle is competent to drive the

transport vehicle. He further submits that the Tribunal

has committed an error in answering issue No.3 in

affirmative. He further submits that the petitioner has

suffered permanent disability in order to demonstrate

that he has suffered permanent disability, the

petitioner examined doctor as P.W.2 and trial Court

has not considered the evidence of P.W.2 and

awarded meager compensation amount. Hence, on

these grounds, he prays to allow this appeal.

7. Per contra, learned counsel for respondent

No.3, Insurance Company submits that respondent

No.1 was not possessing a valid driving licence as on

the date of accident he was possessing light motor

vehicle licence he was not allowed to drive the

transport vehicle. She further submits that the

compensation awarded by the Tribunal is just and

proper and does not call for interference. Hence,

sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records. The points that arise for

consideration are with regard to quantum of

compensation and liability.

9. The date, time, place of accident and

manner of accident is not in dispute. In order to prove

the negligence on the part of the driver of the

offending vehicle, the petitioner has produced copy of

FIR, complaint, charge sheet and they are marked as

Ex.P1 to P6 which disclose that the accident occurred

due to rash and negligent driving of the driver of the

offending vehicle. The Tribunal was justified in

recording a finding that the accident occurred due to

rash and negligent driving of the driver of the

offending vehicle.

10. Insofar as liability is concerned, though

respondent No.3 has taken a specific defence in the

written statement that respondent No.1 was not

possessing a valid driving licence as on the date of

accident and Insurance Company examined its official

as DW.1 and he has produced the extract of driving

licence of respondent No.1 and it is marked as Ex.D1,

which discloses that respondent No.1 was holding a

valid light motor vehicle licence. The Hon'ble Apex

Court in the case of Mukund Dewangan supra held

that the holder of a driving licence to drive class of

"light motor vehicle" is competent to drive a transport

vehicle or omnibus, the gross vehicle weight of which

does not exceed 7500 kg. or a motor car or tractor or

road-roller, the "unladen weight" of which does not

exceed 7500 kg. In view of the law laid down by the

Hon'ble Apex Court, admittedly, the respondent No.1

was holding a light motor vehicle licence and is

competent to drive transport vehicle. The Tribunal has

committed an error in recording a finding that

respondent No.1 was driving the vehicle without any

valid driving licence. The Tribunal has recorded a

finding that though owner and Insurance Company are

essential parties, the petitioner has intentionally

omitted the same. The Tribunal has recorded a finding

that accident has occurred due to negligence of both

the vehicles and fixed liability at 50% each. The

chargesheet which is marked as Ex.P.6, discloses that

chargesheet is filed against respondent No.1 and there

is no negligence on the part of the rider of the

motorcycle. The finding recorded by the Tribunal that

the accident occurred due to negligence of both the

driver and rider and fixed the liability at 50% each is

contrary to the documents produced by the petitioner.

The entire liability is to be saddled on the respondent

No.3. the Tribunal has committed an error in fastening

the liability at 50% ratio. The owner and insurer are

jointly and severally liable to pay compensation.

11. Insofar as quantum of compensation is

concerned, it is contended that the petitioner was

doing laundry business and earning `10,000/- per

month. In order to substantiate the same, he has not

produced any evidence with regard to his monthly

income. Therefore, in the absence of proof of income,

this Court assesses the notional income as per the

guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken

place in the year 2011, the notional income has to be

taken at `6,000/- per month. The petitioner is aged

about 30 years at the time of the accident and

multiplier applicable to his age group is '17'. The

petitioner in order to prove disability examined doctor

as P.W.2. The Tribunal without considering the

evidence of P.W.2 has passed the impugned judgment

and award wherein P.W.2 has deposed that he is a

Consulting Orthopedic and Trauma Surgeon and he

has examined the petitioner on 23.03.2012 and found

following injuries: Deep laceration right lower limb.

Thigh and leg bleeding. He had comminuted fracture

of tibia and fracture of femur. He was treated with

closed interlocking nailing of femur and conservative

treatment for tibia.

12. P.W.2, doctor is of the opinion that

petitioner has suffered permanent disability of 30% to

the whole body nothing has been elicited in the course

of cross-examination of P.W.2. This Court has

assessed the permanent disability at 15% and

assessed the notional income at `6,000/- per month.

The petitioner is entitled for a sum of `1,83,600/-

(6000x12x17x15%) towards loss of future earnings.

Further, considering the nature of injuries suffered by

the petitioner, the petitioner is entitled for pain and

suffering, loss of amenities of life, `60,000/-, medical

expenses at `60,063/- the petitioner has produced the

medical records to show that he spent `60,063/-,the

Tribunal was justified in awarded medical expenses

and the same is retained. The Tribunal has awarded

attendant's charges at `10,000/- which is on the lower

side. This Court reassess the attendant's charges at

`20,000/-. The Tribunal has failed to award towards

laid up period, considering the nature of injuries, the

petitioner may be under rest for more than three

months, hence, the petitioner is entitled to

`1,80,000/- towards laid up period.

13. Considering the nature of injuries sustained

by the petitioner and also the evidence of PW-2, this

Court reassess the compensation awarded under the

following heads:

Heads of income Awarded by Awarded by the Tribunal this Court (amount in `) (amount in `) Loss of future .................. 1,83,600/- income Towards fracture 50,000/- 60,000/- and loss of amenities of life Medical Expenses 60,063/- 60,063/-

       (maintained)
       Food & extra                     10,000/-         20,000/-
       nourishment &
       medical attendant
       Loss of income                      .........           18,000/-
       during laid up
       period
       Total:                     `1,20,063/-        `3,41,663/-

       Enhanced compensation :                       `2,21,600/-

     Thus,     the   petitioner    is    entitled   to   a     total

compensation of `3,41,663/- as against `1,20,063/-.

14. In view of the above discussion, I proceed

to pass the following:

ORDER

The appeal is allowed in part.

The judgment and award passed by the Tribunal in MVC No.26/2012 dated 27.12.2012, is modified. The petitioner is entitled to an enhanced compensation of `2,21,600/- along with interest at the rate of 6% p.a. from the date of filing of the claim petition till the date of realization.

            Respondent        No.3,       Insurance
      Company     is   directed   to   deposit     the
      enhanced    compensation      amount       along

with interest, within a period of eight weeks from the date of receipt of copy of this judgment.

Sd/-

JUDGE

VNR