Karnataka High Court
Kailash S/O Bhagawat Hambirao vs Amol S/O Navanth Kajale And Anr on 30 March, 2022
Bench: Ashok S. Kinagi
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
MFA No.32496/2013 (MV)
C/W
MFA NO.32494/2013, MFA NO.32495/2013,
MFA NO.32497/2013
In MFA No.32496/2013
Between:
Vaishnavi D/o Kailash Hambirao,
Aged about 8 years,
Since minor represented by her father
Kailash Bhagawat Hambirao,
R/o K.C.Nagar, Solapur road,
Bijapur-586 101.
... Appellant
(By Sri.S.S.Mamadapur, Advocate)
And:
1. Amol S/o Navanath Kajale,
Aged about 43 years, Occ: Business,
R/o Ganesh Nagar, Vairag,
Tq. Barshi, Dist: Solapur.
2. The Branch Manager,
The National Insurance Company Limited,
Solapur. Through, The Branch Manager,
National Insurance Company limited,
S.S.Road, Bijapur-586 101.
... Respondents
(By Sri. Sharanabasappa M.Patil, Advocate for R2;
Notice to R1 is held sufficient)
2
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act, praying to modify the judgment and
award passed in MVC No.126/2010 dated 03.06.2013 on the
file of the II Addl. District & Sessions Judge and Member
Motor Accident Claims Tribunal No.3 Bijapur At Bijapur, by
enhancing the compensation and shifting the liability on the
insurance company.
In MFA No.32494/2013
Between:
Kailash S/o Bhagawat Hambirao,
Aged about 38 years,
Occ: Private Service,
R/o K.C.Nagar, Solapur Road,
Bijapur-586 101.
... Appellant
(By Sri.S.S.Mamadapur, Advocate)
And:
1. Amol S/o Navanath Kajale,
Aged about 43 years, Occ: Business,
R/o Ganesh Nagar, Vairag,
Tq. Barshi, Dist: Solapur-416 416.
2. The Branch Manager,
The National Insurance Company Limited,
Solapur-416 416.
Through, The Branch Manager,
National Insurance Company limited,
S.S.Road, Bijapur-586 101.
... Respondents
(Notice to R1 is held sufficient;
By Sri. Sharanabasappa M.Patil, Advocate for R2)
3
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act, praying to modify the judgment and
award passed in MVC No.124/2010 dated 03.06.2013 on the
file of the II Addl. District & Sessions Judge and Member
Motor Accident Claims Tribunal No.3 Bijapur At Bijapur, by
enhancing the compensation and shifting the liability on the
insurance company.
In MFA No.32495/2013
Between:
Smt. Sheetal W/o Kailash Hambirao,
Aged about 30 years,
Occ: Household work,
R/o K.C. Nagar, Solapur Road,
Bijapur-586 101.
... Appellant
(By Sri.S.S.Mamadapur, Advocate)
And:
1. Amol S/o Navanath Kajale,
Aged about 43 years, Occ: Business,
R/o Ganesh Nagar, Vairag,
Tq. Barshi, Dist: Solapur-416 416.
2. The Branch Manager,
The National Insurance Company Limited,
Solapur-416 416.
Through, The Branch Manager,
National Insurance Company limited,
S.S.Road, Bijapur-586 101.
... Respondents
(Notice to R1 is held sufficient;
By Sri. Sharanabasappa M.Patil, Advocate for R2)
4
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act, praying to modify the judgment and
award passed in MVC No.125/2010 dated 03.06.2013 on the
file of the II Addl. District & Sessions Judge and Member
Motor Accident Claims Tribunal No.3 Bijapur At Bijapur, by
enhancing the compensation and shifting the liability on the
insurance company.
In MFA No.32497/2013.
Between:
Sourabh S/o Kailash Hambirao,
Aged about 10 years,
Since minor represented by his father
Kailash Bhagawat Hambirao,
R/o K.C.Nagar, Solapur Road,
Bijapur-586 101.
... Appellant
(By Sri.S.S.Mamadapur, Advocate)
And:
1. Amol S/o Navanath Kajale,
Aged about 43 years, Occ: Business,
R/o Ganesh Nagar, Vairag,
Tq. Barshi, Dist: Solapur-416 416.
2. The Branch Manager,
The National Insurance Company Limited,
Solapur-416 416.
Through, The Branch Manager,
National Insurance Company limited,
S.S.Road, Bijapur-586 101.
... Respondents
(Notice to R1 is held sufficient;
By Sri. Sharanabasappa M.Patil, Advocate for R2)
5
This Miscellaneous First Appeal is filed under Section
173(1) of the M.V. Act, praying to modify the judgment and
award passed in MVC No.127/2010 dated 03.06.2013 on the
file of the II Addl. District & Sessions Judge and Member
Motor Accident Claims Tribunal No.3 Bijapur At Bijapur, by
enhancing the compensation and shifting the liability on the
insurance company.
These appeals coming on for admission, this day, the
Court delivered the following:-
JUDGMENT
Since all these appeals arise out of the common
judgment and award, they are heard together and
disposed of by this common judgment.
2. These appeals are filed under Section
173(1) of the Motor Vehicles Act (for short 'the Act')
challenging the common judgment and award dated
03.06.2013 passed in MVC Nos.124/2010, 125/2010
and 126/2010 and 127/2010 by the Motor Accident
Claims Tribunal-III, Bijapur, (for short hereinafter
referred to as 'the Tribunal').
3. Parties are referred to as per their ranking
before the Tribunal. Appellants are petitioners,
respondents are respondents before the tribunal.
4. Facts giving rise to filing of these appeals
are as under:
4.1. That on 21.06.2007, the petitioners were
travelling on a motorcycle bearing registration No.MH-
13/H-9640 from Solapur towards Kamati. The
motorcycle was being driven slowly and cautiously in
the extreme left portion of the road. When they were
one kilometer away from Kamati village, the offended
jeep bearing registration No.MH-13/9532 came from
opposite direction from Kamati village being driven by
its driver in a very high speed and negligently, came
on wrong side and dashed against the motorcycle and
caused accident and thereby petitioners fell down on
the ground and sustained injuries. Due to the impact,
the petitioners sustained grievous injuries and spent
huge expenses for their medical treatment. The
petitioners filed the claim petitions under Section 166
of M.V.Act, seeking for compensation.
4.2. The respondent No.1 appeared did not file
written statement. Respondent No.2 filed written
statement denying the averments made in the petition
and further denied the age, involvement of the
offending vehicle in the accident. Hence, sought for
dismissal of the claim petitions.
4.3. The said claim petitions were clubbed
together. On the basis of the pleadings of the parties,
the Tribunal framed the issues and thereafter
recorded common evidence. In order to prove the
case, petitioner No.1 in MVC No.124/2010 examined
himself and also on behalf of petitioner in MVC
Nos.126/2010 and 127/2010 as PW-1 and petitioner
in MVC No.126/2010 examined as PW.2 and also
examined doctors as PWs.3 and 4 and got exhibited
documents namely Ex.P1 to Ex.P26. The official of the
respondent No.2, is examined as RW-1 and got
marked documents as Exs.R1 and R2. The Tribunal,
by the impugned judgment, inter alia, held that the
petitioners have proved that the accident was
occurred due to rash and negligent driving of the
driver of the offending vehicle and further held that
the petitioners are entitled for compensation and
accordingly partly allowed the claim petitions by
awarding compensation of Rs.1,43,800/- with interest
at the rate of 6% p.a. from the date of petition till
realization in MVC No.124/2010 and awarded
compensation of Rs.54,000/- with interest @ 6% p.a.
in MVC No.125/2010, and awarded compensation of
Rs.30,000/- with interest @ 6% p.a. in MVC
No.126/2010 and Rs.50,000/- with interest @ 6% p.a.
in MVC No.127/2010 and directed the respondent
No.1 to deposit the compensation amount along with
interest. Being dissatisfied with the compensation
awarded by the Tribunal, the petitioners filed these
appeals seeking for enhancement of compensation.
5. Heard the learned counsel for petitioners
and learned counsel for No.2-Insurance Company.
Though notice was issued to respondent No.1, inspite
of service of notice, none appears for respondent
No.1.
6. The learned counsel for petitioners submits
that the compensation awarded by the Tribunal is on
the lower side. He submits that the tribunal has
committed an error in not awarding compensation
under the head loss of future income in MVC
Nos.125/2010, 126/2010 and 127/2010. He further
submits that the compensation awarded under the
other heads is on the lower side. He further submits
that the offending vehicle was insured with
respondent No.2. He submits that if Court comes to
conclusion that there is violation of terms of policy,
the Court may direct the respondent No.2 to pay the
compensation amount to the petitioners at the first
instance and thereafter recover the same from
respondent No.1. Hence, on these grounds prays to
allow the appeals.
7. Per contra, learned counsel for the
respondent No.2 supports the impugned judgment
and award passed by the tribunal. Hence, prays to
dismiss the appeals filed by the petitioners.
8. Perused the records and considered the
submissions made by the learned counsel for the
parties.
9. The point that arise for consideration is
with regard to quantum of compensation.
10. It is not in dispute with regard to manner
of accident and also that petitioners met with an
accident that occurred on 21.06.2007 and accident
was occurred due to rash and negligent driving of the
driver of offending vehicle came from opposite
direction and dashed to the motorcycle of petitioner
No.1. In order to prove the negligence on the part of
the driver of the offending vehicle, the petitioners
have produced copy of charge sheet which is marked
as Ex.P3. Ex.P3, discloses that the accident was
occurred due to rash and negligent driving of the
driver of the offending vehicle.
11. Insofar as quantum of compensation is
concerned in MVC No.124/2010, it is the case of the
petitioner that he has suffered injuries and suffered
permanent disability. In order to prove the disability
the doctor is examined as PW.4, who has issued
certificate at Ex.P26 and the tribunal has assessed the
disability at 10% and awarded compensation of
Rs.30,000/- under the head pain and agony,
Rs.10,000/- towards medical expenses, Rs.30,000/-
and Rs.76,800/- towards loss of future earning, loss of
amenities and future unhappiness. Thus, awarded
total compensation of Rs.1,43,800/-. The tribunal was
justified in awarding compensation of Rs.1,43,800/-.
The petitioner has not made out any grounds for
enhancement in the said appeal.
12. Insofar as MVC No.125/2010, it is the case
of the petitioner that he has suffered permanent
disability. In order to prove the disability examined
the doctor as PW.4, who issued the disability
certificate as per Ex.P20. PW.4 has deposed that he
has examined the petitioner No.2 and on examination
he has issued disability certificate stating that
movement of left elbow joint is restricted and he has
issued disability certificate to an extent of 23-28% to
the left upper limb. The tribunal has not assessed any
permanent disability suffered by the petitioner in MVC
No.125/2010. The tribunal has committed an error in
not assessing the permanent disability. Considering
the evidence of PW.4 and Ex.P20, this Court assess
the disability @ 8%.
13. The petitioner has not produced any
evidence with regard to his income. Therefore, the
notional income has to be assessed as per the
guidelines issued by the Karnataka State Legal
Services Authority. Since the accident has taken
place in the year 2007, the notional income has to be
taken at Rs.4,000/- p.m. The petitioner is aged about
27 years at the time of the accident and multiplier
applicable to his age group is '17'. The whole body
disability is taken at 8%. Thus, the petitioner is
entitled for compensation of Rs.65,280/- (Rs.4,000/- x
12 x 17 x 8%) on account of 'loss of future income'.
14. Considering the evidence of PW.4 and
disability certificate at Ex.P10, this Court re-assess the
compensation in the following manner;
Sl.No. Heads By Tribunal By this Court
1. Pain & agony Rs.25,000/- Rs.25,000/-
2. Medical expenses Rs.10,000/- Rs.10,000/-
3. Loss of amenities Rs.10,000/- Rs.25,000/-
4. Loss of earnings during Rs.9,000/- Rs.12,000/-
laid up period
5. Loss of future income -- Rs.65,280/-
Total Rs.54,000/- Rs.1,42,280/-
15. Thus, the petitioner is entitled for the total
compensation of Rs.1,42,280/- as against Rs.54,000/-
awarded by the tribunal. The petitioner is entitled for
enhanced compensation of Rs.88,280/- with interest
at the rate of 6% p.a. from the date of petition till
realization.
16. Insofar as MVC No.126/2010: The
petitioner is a minor. In order to prove the disability
the petitioner has examined the doctor as PW.3, who
has deposed in his evidence that he has examined the
petitioner and on examination the petitioner looks dull
and there is loss of memory and paralysis of right
upper limb and he has assessed the disability to an
extent of 30-33% to whole body on account of
intellectual disability and monoplagia to right upper
limb. PW.3 is an expert doctor in the medical field.
The tribunal has committed an error in not assessing
the disability solely on the ground that PW.3 is not a
Neuro Surgeon and tribunal has failed to consider that
he is an expert in the medical field.
17. In view of the law laid down by the Hon'ble
Apex Court in the case of Mallikarjun Vs. Divisional
Manager, The National Insurance Company
Limited and Others, reported in AIR 2014 SC 736,
this Court assess the disability at 11%. wherein it is
held that:
"Though it is difficult to have an
accurate assessment of the compensation
in the case of children suffering disability
on account of a motor vehicle accident,
having regard to the relevant factors,
precedents and the approach of various
High Courts, we are of the view that the
appropriate compensation on all other
heads in addition to the actual expenditure
for treatment, attendant, etc., should be, if
the disability is above 10% and upto 30%
to the whole body, Rs.3 lakhs; upto 60%,
Rs.4 lakhs; upto 90%, Rs.5 lakhs and
above 90%, it should be Rs.6 lakhs. For
permanent disability upto 10%, it should
be Re.1 lakh.
18. In the instant case, this Court assessed the
disability at 11%. In view of the law laid down by the
Hon'ble Apex Court in Mallikarjun's case (supra), the
petitioner is entitled for compensation of
Rs.1,00,000/- towards pain and suffering already
undergone and to be suffered in future, mental and
physical shock, hardship, inconvenience and
discomforts etc., and loss of amenities in life on
account of permanent disability.
19. Further, a sum of Rs.25,000/- is awarded
under the head medical expenses, and Rs.5,000/- is
awarded under the head loss of earning during laid up
period and future unhappiness.
20. Thus, the petitioner is entitled for the total
compensation of Rs.1,30,000/- as against Rs.30,000/-
awarded by the tribunal. The petitioner is entitled for
enhanced compensation of Rs.1,00,000/- with interest
at the rate of 6% p.a. from the date of petition till
realization.
21. Insofar as MVC No.127/2010: In order to
prove the disability, the petitioner has examined the
doctor as PW.4, who has deposed that he has
examined the petitioner on 16.10.2012, he found
swelling over left leg tibia with moderate pain and
there is difficulty in squatting, kneeling and cross leg
sitting on left lower limb. Thus he has assessed the
disability to an extent of 20-25% to the left lower
limb. The tribunal declined to assess the disability only
on the ground that PW.4 is not a treated doctor. The
tribunal has committed an error in declining the
evidence of PW.4 solely on the ground that he is not a
treated doctor.
22. Considering the evidence of PW.4 and
disability certificate and considering the wound
certificate as per Ex.P12, this Court re-assess the
disability at 10% in view of law laid down by the
Hon'ble Apex Court in Mallikarjun's case (supra), the
petitioner is entitled for the compensation of
Rs.1,00,000/- towards pain and suffering already
undergone and to be suffered in future, mental and
physical shock, hardship, inconvenience and
discomforts etc., and on account of permanent
disability and Rs.25,000/- towards medical expenses.
23. Thus, the petitioner is entitled for the total
compensation of Rs.1,25,000/- as against Rs.50,000/-
awarded by the tribunal. Hence, the petitioner is
entitled for enhanced compensation of Rs.75,000/-
with interest at the rate of 6% p.a. from the date of
petition till realization.
24. The offending vehicle was insured with
respondent No.2. Though there is violation of policy
conditions, the respondent No.2 is liable to pay
indemnify the respondent No.1, in view of decision of
Full Bench judgment of this Court in the case of NEW
INDIA ASSURANCE CO., LTD., VS YALLAVVA & ANR., passed
in MFA No.30131/2010, disposed on 12.05.2020,
the respondent No.2- Insurance Company is liable to
pay compensation at the first instance and recover the
same from respondent No.1 in accordance with law.
25. In view of the above discussion, I proceed
to pass the following:
ORDER
(a) The appeal filed by the petitioners in MFA
Nos.32496, 32495 and 32497 of 2013 are
allowed in part.
(b) The appeal filed by the petitioner in MFA
No.32494 of 2013 is dismissed.
(c) The impugned judgment and award passed by
the Tribunal is modified.
(d) The petitioner in MFA No.32495/2013 is
entitled for enhanced compensation of
Rs.88,280/- with interest at the rate of 6%
p.a. from the date of petition till realization.
The petitioner in MFA No.32496/2013 is
entitled for enhanced compensation of
Rs.1,00,000/- with interest at the rate of 6%
p.a. from the date of petition till realization.
The petitioner in MFA No.32497/2013 is
entitled for enhanced compensation of
Rs.75,000/- with interest at the rate of 6%
p.a. from the date of petition till realization.
(e) As the vehicle was insured with respondent
No.2, respondent No.2 is directed to deposit
the compensation amount within a period of
eight weeks from the date of receipt of copy
of this order and recover the same from
respondent No.1. Liberty is reserved to
respondent No.2 to recover the compensation
amount from respondent No.1, in accordance
with law.
Sd/-
JUDGE
msr
