Karnataka High Court
Smt. Annapurna W/O Ramappa Uppar vs Shri. Shivanand S/O Shrimant Hadapad on 4 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 24880 of 2011
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 04TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.24880/2011 (MV)
BETWEEN:
SMT. ANNAPURNA W/O. RAMAPPA UPPAR,
AGE: 49 YEARS, OCC: COOK, NOW-NIL,
R/O: GUDADUR, TQ: BAILHONGAL,
DIST: BELAGAVI.
...APPELLANT
(BY SRI HANAMANT R. LATUR, ADVOCATE)
AND:
1. SHRI SHIVANAND S/O. SHRIMANT HADAPAD,
AGE: 38 YEARS, OCC: BUSINESS,
R/O: KALABHAVI, TQ: BAILHONGAL,
DIST: BELAGAVI.
2. THE NEW INDIA INSURANCE COMPANY LTD.,
1426/28-C, LAXMI TOWERS, 1ST FLOOR,
KONDA LANE CHOWK, LAXMIPURI, KOLHAPUR,
Digitally
signed by MAHARASHTRA STATE, THROUGH ITS DIVISIONAL
BHARATHI MANAGER, DIVISIONAL OFFICE, SHRI BHAVANI
HM CHAMBERS, 2ND FLOOR,
RAMALING KHIND GALLI, BELAGAVI.
...RESPONDENTS
(BY SRI N.R.KUPPELLUR, ADVOCATE FOR R2;
R1 - NOTICE SERVED.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
ENHANCE THE COMPENSATION AND AWARD AS CLAIMED BY THE
APPELLANT BY MODIFYING THE JUDGMENT AND AWARD PASSED BY
THE ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
BAILHONGAL, IN MVC NO.2018/2006 DATED 16.09.2009 AND FIX
THE LIABILITY ON RESPONDENT NO.2 INSURANCE COMPANY, ETC.,
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MFA No. 24880 of 2011
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant challenging the
judgment and award dated 16.09.2009, in MVC
No.2018/2006, passed by the Addl. MACT, Bailhongal,
seeking enhancement of compensation as well as
questioning the liability fixed on the owner of the offending
vehicle (Tempo).
2. The factum of accident, injuries sustained by
the claimant in the accident are not in dispute in this case.
3. The disputed fact is that whether the insurance
company is liable to indemnify the owner and to pay
compensation.
4. Heard the arguments and perused the material
placed before the Court.
5. Admittedly, in the present case the claimant
was travelling as a passenger in a private tempo. The
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tempo is not a public transport vehicle, but a private
vehicle. Admittedly, the insurance policy is an Act
Policy/Liability only policy. Therefore it is proved that the
claimant has travelled as a gratuitous passenger in the
tempo and thus the tribunal fastened liability on the owner
of tempo to pay compensation. The issue involved is no
more res-integra in view of the judgment of this Court
(Kalaburagi Bench) in the case of Divisional Manager,
United India Insurance Company Limited and others
vs. Shamaraya and others in MFA No.31781/2010
and connected matters disposed of on 22.12.2020.
Therefore, the tribunal is correct in holding the owner is
liable to pay compensation.
6. The learned counsel for the appellant/claimant
submitted that the issue is referred to larger Bench before
the Hon'ble Supreme Court. Therefore prays to keep the
matter pending till the decision by the Hon'ble Supreme
Court comes. Mere pending the issue before Larger Bench
of the Hon'ble Supreme Court is not a ground to adjourn
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or to keep the matter pending since what would be the
prevailing law at the time of considering the appeal, that
can be followed. Therefore prayer made by the learned
counsel for the appellant to adjourn the matter till decision
is taken by the Hon'ble Supreme Court, is rejected.
7. The tribunal has awarded compensation under
various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Pain and suffering. 45,000
2. Medical expenses. 7,900
3. Nourishment charges. 1,000
4. Attendants, conveyance charges. 2,000
5. Loss of income during treatment 18,000
period.
6. Loss of future income. 26,000
7. Loss of amenities and 30,000
unhappiness.
Total: 1,29,900
8. The claimant has suffered wedge compression
fracture of L3 vertebra and other injuries. The claimant
was a coolie by profession. Therefore a compensation of
Rs.55,000/- is awarded towards injuries pain and
suffering. The compensation of Rs.7,900/- awarded by the
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tribunal towards medical expenses is as per the actual bills
and receipts produced; therefore, the same is kept intact.
Further, a compensation of Rs.10,000/- is awarded
towards incidental charges like food, nourishment,
attendant charges, conveyance, etc.,.
9. Accident is caused on 22.05.2006. Therefore,
notional income would be Rs.3,750/- per month. The
doctor assessed functional disability at 20% to the whole
body. The same is taken as 20% towards functional
disability since the claimant is a coolie by profession and
suffered fracture of L3 vertebra affecting his earning
capacity for doing the work of coolie. Accordingly as per
the age group mentioned in National Insurance
Company Limited vs. Pranay Sethi and others,
reported in (2017) 16 Supreme Court Cases 680, and
as per the Division Bench judgment of this Court in New
India Assurance Company Vs. Abdul S/o Mehaboob
Tahasildar in MFA No.103807/2016 C/w. MFA
Nos.103835/2016 & 103807/2018 and as per the
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judgment of the Hon'ble Supreme Court in the case of
Sidram vs. Divisional Manager, United India
Insurance Company Limited and another reported in
(2023) 3 SCC 439, even in the case of injuries, certain
income is to be added towards loss of future prospects in
life.
10. The claimant was aged 45 years old at the time
of accident. Accordingly 25% of the income is to be added
towards loss of future prospects in life. Considering the
age of the claimant, appropriate applicable multiplier is 14.
Therefore, the compensation towards loss of future
earning capacity due to disability is reassessed and
quantified as Rs.1,57,500/- ( Rs.3,750 + 25% x 20% x 12
x 14).
11. Further, a sum of Rs.11,250/- is awarded
towards loss of income during laid up period for a period of
three months. Considering the injuries suffered by the
claimant, the compensation of Rs.30,000/- awarded by the
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tribunal towards loss of amenities is found to be correct.
Hence the same is kept intact.
12. Thus, the claimant is entitled for total
compensation under various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Towards injuries, pain and suffering. 55,000
2. Towards medical expenses. 7,900
3. Towards loss of amenities. 30,000
4. Towards loss of income during laid 11,250
up and medical treatment period.
5. Towards incidental charges like 10,000
attendant charges, food,
nourishment, conveyance, etc.,.
6. Towards loss of future earning 1,57,500
capacity.
(Rs.3,750 + 25% x 20% x 12 x 14).
Total: 2,71,650
13. Therefore, the claimant is entitled for total
compensation of Rs.2,71,650/-, along with interest at the
rate of 6% p.a. from the date of filing of the petition till
realization, as against Rs.1,29,900/- awarded by the
Tribunal. The owner of the offending vehicle is directed to
deposit the compensation within eight weeks from the
date of receipt of a certified copy of this judgment.
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14. The tribunal awarded compensation along with
interest at the rate of 9% p.a. The same is scaled down to
6% p.a. from the date of petition till realization.
15. In the result, I proceed to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and award dated
16.09.2009, in MVC No.2018/2006, passed by
the Addl. MACT, Bailhongal, stands modified.
iii) The claimant is entitled for total
compensation of Rs.2,71,650/- along with
interest at the rate of 6% p.a. from the date of
petition till its realization, as against
Rs.1,29,900/- awarded by the tribunal.
iv) The claimant is not entitled for
interest for the delayed period of 665 days in
filing the appeal.
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v) The owner of offending vehicle shall
deposit the compensation amount within a
period of eight weeks from the date of receipt of
a copy of this judgment.
vi) No order as to costs.
vii) Draw award accordingly.
SD/-
JUDGE
MRK
CT-ASC
