Karnataka High Court

Bhimanna vs Prakash And Anr on 9 January, 2023

Bench: J.M.Khazi

                          1          MFA No.201394/2018




         IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 9TH DAY OF JANUARY, 2023

                       BEFORE

         THE HON'BLE MS. JUSTICE J.M.KHAZI

             MFA No.201394/2018 (MV)

BETWEEN

BHIMANNA
S/O MAHADEVAPPA GADDADAVAR
AGE: 29 YEARS OCC: AGRICULTURE
LABOUR NOW NIL R/O VILLAGE SHETTAKERA
TQ: SHAHAPUR NOW R/AT VILLAGE KUSNOOR
TQ & DIST: KALBURAGI
                                         ...APPELLANT
(BY SRI. SANJEEV PATIL, ADVOCATE)

AND

1.    PRAKASH S/O DHARMANNA PAWAR
      AGE: MAJOR OCC: BUSINESS &
      OWNER OF TIPPER NO.KA-33/7502
      R/O VOLLAGE YALAGI, TQ: SHORAPUR
      DIST: YADGIR

2.    THE RELIANCE GENERAL INSURANCE CO. LTD,
      DIVISIONAL OFFICE ASIAN PLAZA
      NEAR TIMMAPURI CIRCLE
      KALABURAGI-585102
      REPRESENTED BY
      ITS AUTHORIZED OFFICER
                                      ...RESPONDENTS

(BY SRI.SUBHASH MALLAPUR, ADVOCATE FOR R2;
R1 SERVED)
                               2             MFA No.201394/2018




     THIS MFA FILED U/S 173(1) OF MV ACT, PRAYING TO
MODIFY    THE   JUDGMENT     AND    AWARD   PASSED    BY   THE
II-ADDL.SENIOR CIVIL JUDGE AND MACT, KALABURAGI, IN
MVC NO.665/2014, DATED 04.06.2018, BY ENHANCING THE
COMPENSATION.


     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

Not being satisfied with the quantum of

compensation and also fixing the liability on the owner

and thereby exonerating the insurance company from

payment of compensation, appellant who is petitioner

before the Trial Court has come up with this appeal.

2. For the sake of convenience, the parties

are referred to by their rank before the Tribunal.

3. It is the case of the petitioner that on

30.07.2013 at about 9:30 p.m. petitioner was

proceeding on Shettakera road, near Budbudkyan hill.

At that time a tipper bearing Reg.No.KA-33-7502

driven by its driver in a rash or negligent manner and

dashed against the petitioner. In the said accident,

petitioner sustained grievous injuries resulting in

permanent partial disability affecting his earning

capacity. As owner and insurer respondents are liable

to pay the compensation.

4. Before the Tribunal respondent No.1

remained ex parte.

5. Respondent No.2 appeared and filed

written statement, contending that though the

offending vehicle was covered by a valid policy, since

the driver was not holding a valid licence, it is not

liable to indemnify the owner. It has denied the age,

occupation, nature of injuries sustained and that it has

resulted in permanent partial disability and sought for

dismissal of the appeal.

6. Based on the pleadings, the Tribunal has

framed necessary issues.

7. Petitioner has got examined himself as

PW.1, one witness as PW.2 and relied upon Exs.P1 to

11.

8. On behalf of respondent No.2 RW.1 is

examined.

9. Vide the impugned judgment and award,

the Tribunal partly allowed the petition granting

compensation in a sum of Rs.1,88,200/- with interest

@ 6% pa and directed respondent No.1 to pay the

same on the ground that at the time of accident, the

driver was not holding a valid driving licence. The

details of the compensation granted are as under:

Sl.No.           Heads                    Amount
   1   Pain and suffering           Rs. 5,000/-
  2.   Attendant charges, food      Rs. 4,000/-
       and conveyance charges





  3.     Loss of future income         Rs. 1,16,600/-
  4.     Medical expenditure           Rs. 56,000/-
  5.     Loss of income during         Rs. 1,600/-
         treatment
  6.     Loss of amenities and         Rs. 5,000/-
         nutrition food
                               Total   Rs. 1,88,200/-

10. Aggrieved by the same, petitioner is before

this Court, contending that the Tribunal failed to

appreciate that the disability of 27% suffered by the

petitioner is with regard to whole body and 9%

considered by it is on the lower side. Since the

accident is of the year 2013, the income ought to

have been taken at Rs.7,000/- per month. The

compensation granted under all the heads is on the

lower side.

11. On the other hand, learned counsel for

respondent No.2 supported the impugned judgment

and award and sought for dismissal of the appeal.

12. Heard arguments and perused the records.

13. Having regard to the specific grounds urged

in the appeal, it is necessary to examine whether the

compensation granted by the Tribunal is just and

reasonable or it calls for interference by this Court

under the following various heads.

14. Pain and suffering & loss of amenities

of life: As per the evidence of petitioner who is

examined as PW.1 and PW.2-Dr.Sachin Shaha, in the

accident the petitioner sustained fracture of shaft of

left femur and it has resulted in permanent partial

disability. Having regard to the same the

compensation granted in a sum of Rs.5,000/- each

under these heads is on the lower side. It would be

appropriate to increase/enhance the same to

Rs.30,000/- and Rs.25,000/- respectively.

15. Attendant charges: Looking to the nature

of injuries suffered and period of treatment Rs.4,000/-

granted under this head is on the lower side and the

same is enhanced to Rs.10,000/-.

16. Medical expenses: Based on the medical

bills the compensation granted in a sum of

Rs.56,000/- is appropriate and it does not call for any

interference.

17. Compensation for laid up period: the

Tribunal has granted compensation in a sum of

Rs.1,600/- under this head. Though petitioner claim

that he was earning Rs.15,000/- per month, he has

failed to produce any evidence and therefore the

Tribunal is justified in considering his income on

notional basis. Since the accident is of the year 2013,

the notional income ought to have taken at Rs.7,000/-

instead of Rs.6,000/-. Having regard to the nature of

injuries sustained it would be expected that petitioner

was under treatment atleast for a period of three

months. At the rate of Rs.7,000/- per month he is

entitled for a sum of Rs.21,000/-.

18. Loss of future income due to disability:

PW.2-Dr.Sachin Shaha is not a treating doctor. He has

ascertained the disability at 27% to the whole body.

For the reason that he is not the treating doctor the

Tribunal has considered 1/3rd of it as the whole body

disability at 9%. Despite the fact that PW.2 is not a

treating doctor, his entire evidence cannot be

rejected. Having regard to the facts and

circumstances of the case, it would be appropriate to

consider the whole body disability at 15%. At the time

of accident, the petitioner was aged about 25 years.

Therefore, multiplier '18' taken by the Tribunal is

correct. With the income at Rs.7,000/- per month,

disability at 15% and multiplier '18' the compensation

under this head would be Rs.7,000 x 12 x 18 x 15%

= Rs.2,26,800/- as against Rs.1,16,600/- granted

by the Tribunal.

19. Future Medical Expenses: Since the

petitioner has undergone surgery and implants were

inserted, he requires future medical expenses for

removal of implants. The same is quantified at

Rs.30,000/-.

20. Thus, in all petitioner is entitled for total

compensation in a sum of Rs.3,98,800/- as against

Rs.1,88,200/- granted by the Tribunal as detailed

below:

Sl.         Heads            Amount           Amount
No.                        awarded by       awarded by
                           the Tribunal      this Court
 1.   Pain and suffering       Rs.5,000/-     Rs.30,000/-
 2.   Loss of amenities        Rs.5,000/-     Rs.25,000/-
 3.   Attendant charges        Rs.4,000/-     Rs.10,000/-
 4.   Medical expenses       Rs.56,000/-      Rs.56,000/-
 5.   Loss of income           Rs.1,600/-     Rs.21,000/-
      during laid up
      period
 6.   Loss of future        Rs.1,16,600/-    Rs,2,26,800/-
      income





    7.   Future medical                   ----      Rs.30,000/-
         expenses
                     Total    Rs.1,88,200/-      Rs.3,98,800/-

21. Now coming to the question of liability. It is

an undisputed fact that as on the date of accident, the

offending vehicle was covered by a valid policy issued

by respondent No.2. However, the Tribunal has

exonerated respondent No.2 from the liability on the

ground that at the time of accident driver of the

offending vehicle was not holding a valid driving

licence. However, as per the decision of the Hon'ble

Supreme Court in Pappu & Ors vs. Vinod Kumar

Lamba & Anr.1, wherein it was held that when the

offending vehicle is insured, in the absence of the

driver of offending vehicle possessing a valid driving

licence, the insurance company is liable to pay the

compensation and recover the same from the owner.

Therefore, in this case also it is necessary to direct

(2018) 3 SCC 208

respondent No.2/insurance company to pay the

compensation with interest and recover the same from

respondent No.1-owner.

22. To this extent, the appeal deserves to be

allowed and accordingly, I proceed to pass the

following:

ORDER

(i) Appeal is allowed in part.

     (ii)    Appellant/petitioner         is   entitled    for

             compensation           in     a     sum        of

Rs.3,98,800/- together with interest

at 6% per annum as against

Rs.1,88,200/- granted by the

Tribunal.

(iii) Respondent No.2 is directed to pay

the compensation together with

interest within a period of six weeks

from the date of this order and

recover the same from respondent

No.1.