Karnataka High Court
[email protected] vs Mallikarjun And Ors on 7 March, 2022
Bench: K.Somashekar, Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF MARCH 2022
PRESENT
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MISCELLANEOUS FIRST APPEAL NO.201339/2017 (MV)
BETWEEN:
SRI. SHARANAGOUDA @ SHARANREDDY S/O
BHEEMREDDY
AGE: 34 YEARS OCC: GOVT. EMPLOYEE
WORKING AT TAHASIL OFFICE SEDAM
R/O: KODLA, TQ: SEDAM
DIST: KALABURAGI.
... APPELLANT
(BY SRI. G. G. CHAGASHETTI, ADVOCATE)
AND:
01. MALLIKARJUN S/O RUDRAPPA BASANNANOOR
AGE: 29 YEARS OCC: DRIVER OF CRUSHER
VEHICLE NO.KA-32-A-2254
R/O: BENAKANA HALLI
TQ: SEDAM DIST: KALABURAGI-585 102.
02. THE NATIONAL INSURANCE COMPANY LTD.,
REPRESENTED BY ITS
DIVISIONAL MANAGER, HAVING ITS BRANCH
OFFICE AT: BILAGUNDI COMPLEX,
OPP: MINI VIDHAN SOUDHA,
STATION ROAD,
KALABURAGI - 585 102.
2
03. SMT. SHIVAMMA W/O RUDRAPPA
KUNTABASANOOR
AGE: MAJOR OCC: HOUSEHOLD
R/O: BENKANAHALLI
TQ: SEDAM DIST: KALABURAGI - 585 102.
04. SMT. LAXMIBAI W/O DODDAPPA
AGE: 34 YEARS OCC: HOUSEHOLD
C/O: SHARANAPPA S/O BASAREDDY,
TANGUDI ALLUR BAGYAVATI NILAYA
BEHIND BUS STAND CHITTAPUR
TQ: CHITTAPUR DIST: KALABURAGI - 585 101.
... RESPONDENTS
(BY SRI. VARUN PATIL, FOR SRI. SHIVANAND PATIL,
ADVOCATES FOR R2
R1 AND R3 SERVED
VIDE ORDER DATED 16.07.2021 APPEAL AS AGAINST
R4 STANDS DISMISSED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173 (1) OF THE KARNATAKA MOTOR
VEHICLES ACT, 1988 PRAYING TO CALL FOR THE
RECORDS, ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND AWARD DATED 09.05.2017 PASSED BY
THE SENIOR CIVIL JUDGE AND MACT AT SEDAM IN
MVC.NO.8/2011 BY ENHANCING THE COMPENSATION AS
CLAIMED BY THE APPELLANT AND FIX THE LIABILITY ON
THE RESPONDENT NO.2 I.E., NATIONAL INSURANCE
COMPANY AND ETC.,
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, ANANT RAMANATH HEGDE J., DELIVERED THE
FOLLOWING:
3
JUDGMENT
The claimant has filed the claim petition in
MVC.No.8/2011 on the file of the Senior Civil Judge and
MACT, at Sedam, seeking compensation of `20,00,000/- and
who is in appeal before this Court seeking enhancement of
compensation, as the Tribunal has allowed the petition in
part and awarded the compensation of only `97,398/- along
with interest at the rate of 6% p.a. from the date of petition
till its realization.
02. It is the case of the claimant that accident has
taken place on 14.08.2009 when he was proceeding on
motorcycle bearing Reg.No.KA-32-E-5429. It is stated that he
was proceeding on a motorcycle carefully observing all
precautions, however a vehicle bearing Reg.No.KA-32-A-2254
came from opposite direction in a high speed and in a rash
and negligent manner and dashed against a motorcycle of
the claimant.
03. The claimant further claimed that he sustained
grievous injuries on his head and hands and shifted to
Government Hospital at Sedam. Later a case was registered
in Sedam Police Station in Crime.No.180/2009 relating to
the accident. It is further averred that the charge-sheet has
been filed against the driver of the Lorry.
04. The claimant contended that he was aged 26
years at the time of accident and working as Second Division
Assistant in the revenue department. It is further case of the
claimant that he was drawing salary of `9,777/- per month.
He further claimed that due to injuries, he has suffered loss
of income. It is also alleged that he has undergone treatment
for fracture and he was inpatient for 13 days and incurred
expenditure of `3,50,000/- for his treatment.
05. Before the Tribunal the driver of the Lorry is
arraigned as respondent No.1, the owner of the Lorry is
made as respondent No.2 and insurer is arraigned as
respondent No.3. During the pendency of the petition the
owner died and respondents No.4 and 5 are brought on
record as legal representatives of the owner of the Lorry.
06. Before the Tribunal the matter was contested by
the Insurance Company. The insurance company has filed
the objections denying the claim of the claimant. It is also
contended that the driver of the Lorry was not possessing a
valid and effective driving license as on the date of accident.
07. The claimant has led the evidence before the
Tribunal as PW.1 and Dr. Vijaya Rathod has been examined
as PW.2 to prove the disability claimed by the claimant and
got marked Exs.P.1 to 17 documents.
08. The Insurance Company got examined one
witness as RW.1 and got exhibited insurance policy, the
notice issued to the driver of the Lorry and also the postal
acknowledgment having served the notice to the driver of the
Lorry as Exs.R.1 to 3.
09. The Tribunal after considering the evidence led
by the parties had concluded that the claimant is entitled for
compensation of `97,398/- under the following heads:-
Sl. Heads Amount
No.
1. Towards pain and suffering `25,000/-
2. Towards medical expenditure `55,898/-
3. Towards attendant charges, food
and conveyance. `06,500/-
4. Loss of amenities in nutrition
food `10,000/-
Total `97,398/-
10. The Tribunal has also concluded that the driver
of the Lorry was not possessing a driving license as on the
date of accident. Accordingly, dismissed the petition against
the insurance company and allowed the petition against the
legal representatives of the owner of the Lorry.
11. Being aggrieved by the judgment and award
passed by the Tribunal, the claimant is in appeal seeking
enhancement of compensation and also seeking liability to
be fastened on the insurance company.
12. The learned counsel for the appellant in support
of his contention that the insurer has to pay the
compensation and recover the same from the owner of the
Lorry would place reliance on the judgment of the Hon'ble
Supreme Court in the case of Pappu and Others vs. Vinod
Kumar Lamba and another reported in (2018) 3 SCC 208.
13. From the materials placed on record, it is
apparent that the insurance company which has taken
contention that the driver of the Lorry was not possessing a
valid and effective driving license as on the date of accident,
is bound to prove the said contention. If not has to pay the
compensation to the claimant and is entitled to recover the
same from the owner of the Lorry. The insurer apart from
taking the said contention has not led evidence to establish
the fact that owner allowed the person without driving
license to drive the vehicle.
14. Applying the said ratio, this Court is of the
opinion that the contention of the appellant that insurance
company is liable to pay the compensation and recover the
same by the owner of the Lorry, is accepted.
15. As far as quantum of compensation, this Court
perused the evidence on record. It is noticed that the
claimant has undergone one surgery and was inpatient for
13 days in the Hospital. Under these circumstances, looking
to the nature of injuries suffered by the claimant and also
the kind of treatment, the compensation of `25,000/-
awarded by the Tribunal towards pain and suffering is on
lower side and the same is enhanced to `40,000/-. The
Tribunal has awarded the compensation towards medical
expenses at `55,898/- which is based on evidence and the
same is maintained. As far as compensation towards
attendant charges, food and conveyance the Tribunal has
awarded compensation of `6,500/- and the same is
enhanced to `10,000/-. The compensation towards loss of
amenities the Tribunal has awarded compensation of
`10,000/-. Looking to the nature of injuries and percentage
of disability at 30% to the whole body assessed by the
Doctor, the same is enhanced to `25,000/-. Therefore, the
compensation awarded by the Tribunal deserves to be re-
determined and re-calculated as under:-
Awarded by Enhanced by
Sl. Heads
the Tribunal this Court
No.
1. Towards pain and `25,000/- `0,40,000/-
suffering
2. Towards medical `55,898/- `0,55,898/-
expenditure
3. Towards attendant `06,500/- `0,10,000/-
charges, food and
conveyance.
4. Loss of amenities in `10,000/- `0,25,000/-
nutrition food
Total `97,398/- `1,30,898/-
Rounded up to `1,31,000/-
16. In the result, the following.
ORDER
(i) The appeal filed by the appellant - claimant is partly
allowed.
(ii) The judgment and award dated 09.05.2017 passed in
MVC.No.8/2011 by the Senior Civil Judge and MACT,
at Sedam, is modified.
(iii) The claimant is held entitled for a total compensation
of `1,31,000/- along with interest at the rate of 6%
p.a. from the date of claim petition till its realization.
(iv) The respondent No.2 - insurance company is directed
to pay compensation with interest at the rate of 6%
p.a. from the date of claim petition till the date of
realization, within a period of two months from the
date of receipt of certified copy of this judgment and
thereafter recover the same from the owner of the
Lorry in accordance with law.
SD/-
JUDGE
SD/-
JUDGE
KJJ
