Karnataka High Court
Gajadandayya S/O Amarayya vs Chandappa S/O Bheemappa And Anr on 24 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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MFA No. 200151 of 2017
C/W MFA No. 200159 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO.200151 OF 2017 (MV-I)
C/W
MISCL. FIRST APPEAL NO.200159 OF 2017 (MV-I)
IN MFA NO.200151 OF 2017:
BETWEEN:
GAJADANDAYYA S/O AMARAYYA,
AGE: 22 YEARS, OCC: NIL,
R/O DEVAR BHOOPUR VILLAGE,
TQ. LINGASUGUR,
NOW R/O YARAMARAS,
TQ. & DIST. RAICHUR-584 101.
Digitally signed ...APPELLANT
by LUCYGRACE
Location: HIGH (BY SRI. BASAVARAJ R. MATH, ADVOCATE)
COURT OF
KARNATAKA AND:
1. CHANDAPPA S/O BHEEMAPPA,
AGE: MAJOR, OCC: OWNER OF
VEHICLE NO.KA.25/N-2749,
R/O H.NO.10-BL-02,
GURGUNTA, TQ. LINGASUGUR,
DIST. RAICHUR-584 122.
2. THE MANAGER,
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MFA No. 200151 of 2017
C/W MFA No. 200159 of 2017
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
VIVEKANANDA CIRCLE, HUBLI-580 029.
...RESPONDENTS
(SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2;
V/O DATED 11.03.2019 NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED-28.09.2016 PASSED BY THE
I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT RAICHUR
IN MVC NO.178/2013.
IN MFA NO.200159 OF 2017:
BETWEEN:
THE MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
VIVEKANANDA CIRCLE, HUBLI,
REPRESENTED THROUGH LEGAL OFFICER,
BAJAJ ALLIANZ GEN. INSURANCE CO. LTD.,
FIRST FLOOR, KALBURGI NOOLVI MAGESTIC,
NEW COTTON MARKET, HUBLI-580 029.
...APPELLANT
(BY SRI. SUBHASH MALLAPUR, ADVOCATE)
AND:
1. GAJADANDAYYA S/O AMARAYYA,
AGE: 22 YEARS, OCC: NIL,
R/O DEVAR BHOOPUR VILLAGE,
TQ. LINGASUGUR,
NOW R/O YARAMARAS,
TQ. & DIST. RAICHUR-584 101.
2. CHANDAPPA S/O BHEEMAPPA,
AGE: MAJOR, OCC: OWNER OF VEHICLE
NO.KA-25/N-2749,
R/O.H.NO.10-BL-02, GURGUNTA,
TQ. LINGASUGUR,
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MFA No. 200151 of 2017
C/W MFA No. 200159 of 2017
DIST. RAICHUR-584 101.
...RESPONDENTS
(SRI. BASAVARAJ R. MATH, ADVOCATE FOR R1;
R2 - SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 28TH SEPTEMBER 2016 PASSED BY THE
I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT RAICHUR
IN MVC NO.178/2013.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.200151/2017 is filed by the injured claimant
and MFA No.200159/2017 is filed by the Insurance
Company aggrieved by the judgment and award dated
28.09.2016 passed in MVC No.178/2013 on the file of
I Addl. District and Sessions Judge, Raichur (for short 'the
Tribunal'), by which the Tribunal while partly allowing the
claim petition has awarded compensation of Rs.95,000/-
with interest at 6% p.a. from the date of petition till
realisation and has directed the Insurance Company to pay
the same.
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2. The accident in question that occurred on
14.03.2012 involving the Cruiser vehicle bearing Reg.
No.KA-25/N-2749 resulting in claimant sustaining grievous
injuries is not in dispute.
3. The Tribunal, upon the claim petition filed by
the claimant seeking compensation of Rs.4,50,000/-, on
appreciation of the evidence has come to the conclusion
that the claimant would be entitled for a sum of
Rs.95,000/- and has directed the Insurance Company to
pay the same. Being aggrieved by the same, the injured
claimant is before this Court, seeking enhancement of
compensation and the Insurer is before this Court
questioning the liability.
4. Sri Basavaraj R. Math, learned counsel
appearing for the appellant in MFA No.200151/2017 -
claimant submits that the Tribunal has grossly erred in not
taking into consideration Ex.P6 - Disability Certificate
issued by the Medical Board of RIMS Hospital, Raichur,
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wherein after taking into consideration the nature of
injuries sustained by the claimant, the Medical Board has
assessed the disability at 5%. He submits that the Tribunal
has grossly erred in ignoring the said piece of evidence,
merely because the author of the said document was not
examined. He further submits that since the Disability
Certificate at Ex.P6 has been issued by the Medical Board,
the Tribunal ought to have given credence and taken the
same into consideration. He submits that the grant of
compensation on other heads is also on the lower side
requiring enhancement.
5. Sri Subhash Mallapur, learned counsel
appearing for the appellant - Insurance company in MFA
No.200159/2017 justifying the judgment passed by the
Tribunal to the extent of awarding compensation, submits
that non-examination of author of Ex.P6 is the reason for
the Tribunal not to taken the same into consideration and
the same cannot be found fault with. He submits that the
injuries are not of serious nature resulting in disability.
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Thus, he seeks dismissal of the appeal filed by the
claimant. As regards the appeal filed by the Insurance
Company, learned counsel submits that the driver of the
offending vehicle did not possess valid and effective
driving licence and despite issuance of notice to
respondent No.1 calling upon him to produce the driving
licence, the same has not been complied with. Therefore,
he submits that the Tribunal ought to have drawn adverse
inference exonerating the appellant - Insurance Company
from paying compensation. Hence, seeks for allowing of
the appeal.
6. Heard the learned counsel for the parties and
perused the records.
7. The twin points that requires consideration are,
1) Whether the injured claimant is entitled for
enhancement of compensation?
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2) Whether the Tribunal was justified in fastening
the liability on the Insurance Company to pay
the compensation?
8. As per the Wound Certificate at Ex.P3, the
appellant sustained the following injuries:
" 1. Swelling and tenderness noted on right
knee sign of fracture noted.
2. Abrasion noted on right medical aspect
of maloy measuring 3cm x 2cm.
3. Abrasion noted on left elbow measuring
2cm x 2cm."
9. The same is also referred at Ex.P6 - Disability
Certificate. The Medical Board, on clinical examination has
found that there is 5% permanent disability to the whole
body. Since the said disability certificate is issued by the
Medical Board of RIMS Hospital, Raichur consisting of
Orthopedic Surgeon, Physician and Ophthalmologist and
the said certificate has been issued and attested by the
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Chairman of the Medical Superintendent, RIMS Hospital,
Raichur, it cannot be said that the said document does not
carry the evidentiary value. Even otherwise merely
because the author of the document has not been
examined, the same does not mean that the injured
claimant has not suffered any disability. In that view of
the matter, this Court is of the considered view that the
disability of 5% assessed by the Medical Board, Raichur
can be taken into consideration for the purpose of
assessing the compensation payable to the claimant.
10. Though the claimant claims to have been
earning Rs.300/- per day by running his pan shop, no
documentary evidence is produced. This Court, in the
absence of any documentary evidence regarding income
takes into consideration the guidelines issued by the
Karnataka State Legal Services Authority, wherein the
notional income of the victims of the road traffic accident
for the year 2012 is determined at Rs.6,500/- per month.
The same is taken in this case as well. Considering the
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age of the claimant as 19 years, multiplier of 18 is applied.
Calculated as above, the claimant is entitled for a sum of
Rs.70,200/- (Rs.6,500 x 12 x 5% x 18) towards loss of
future earning.
11. The Tribunal has awarded a sum of Rs.30,000/-
towards pain and suffering and a sum of Rs.50,000/-
towards medical expenses, the same are maintained as it
is. The compensation awarded at Rs.5,000/- towards
attendant charges is enhanced to Rs.20,000/- by adding
Rs.15,000/- and the compensation of Rs.5,000/- awarded
towards conveyance and other miscellaneous expenses is
enhanced to Rs.15,000/- by adding another Rs.10,000/-.
The Tribunal has awarded Rs.5,000/- towards loss of
income during laid up period and has not awarded any
compensation towards loss of amenities. Considering the
nature of injuries and treatment undergone, claimant is
entitled to Rs.25,000/- towards loss of amenities and
towards loss of income he is entitled for at least three
months salary at (Rs.6,500/- x 3) = Rs.19,500/-.
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Thus, the claimant is entitled for total compensation
of Rs.2,14,700/- instead of Rs.95,000/- awarded by the
Tribunal as under:
Sl. Heads By By
No. Tribunal this Court
1 Loss of future -- Rs.70,200/-
earning
2 Pain and suffering Rs.30,000/- Rs.30,000/-
3 Medical Expenses Rs.50,000/- Rs.50,000/-
4 Attendant charges Rs.5,000/- Rs.20,000/-
5 Conveyance and Rs.5,000/- Rs.15,000/-
other misc.
expenses
6 Loss of income Rs.5,000/- Rs.19,500/-
during laid up
period
7 Loss of amenities -- Rs.25,000/-
TOTAL Rs.95,000/- Rs.2,29,700/-
12. As regards liability is concerned, the owner of
the offending vehicle has remained absent and placed ex-
parte before the Tribunal. As such, there has been no
evidence with regard to driver of the vehicle possessing
valid driving license. It is also seen that the appellant-
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Insurance Company has issued notice to respondent No.1
owner of the offending vehicle calling upon him to produce
driving license, the same has not been complied by him.
13. The Hon'ble Apex Court in the case of PAPPU
AND OTHERS VS. VINOD KUMAR LAMBA AND
ANOTHER reported in (2018) 3 SCC 208 at paragraphs
12 and 17 has held as under:
"12. This Court in the case of National
Insurance Co. Ltd. (supra), has noticed the
defences available to the Insurance Company
under Section 149(2)(a)(ii) of the Motor
Vehicles Act, 1988. The Insurance Company is
entitled to take a defence that the offending
vehicle was driven by an unauthorised person
or the person driving the vehicle did not have a
valid driving licence. The onus would shift on
the Insurance Company only after the owner of
the offending vehicle pleads and proves the
basic facts within his knowledge that the driver
of the offending vehicle was authorised by him
to drive the vehicle and was having a valid
driving licence at the relevant time.
17. This issue has been answered in the case
of National Insurance Company Ltd. (supra). In
that case, it was contended by the insurance
company that once the defence taken by the
insurer is accepted by the Tribunal, it is bound
to discharge the insurer and fix the liability only
on the owner and/or the driver of the vehicle.
However, this Court held that even if the
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insurer succeeds in establishing its defence, the
Tribunal or the Court can direct the insurance
company to pay the award amount to the
claimant(s) and, in turn, recover the same
from the owner of the vehicle. The three-Judge
Bench, after analysing the earlier decisions on
the point, held that there was no reason to
deviate from the said well-settled principle".
14. In view of principle of law laid down by the
Hon'ble Apex Court in the above decision and considering
the fact that the age of the appellant-claimant was 19
years, the appellant-Insurance Company is directed to pay
the entire compensation at the first instance and recover
the same from the owner of the offending vehicle.
15. For the foregoing reasons, following:
ORDER
a) The appeals are partly allowed.
b) The impugned judgment and award passed
by the Tribunal is modified.
c) The claimant is entitled to Rs. 2,29,700/-
with interest at 6% per annum from the
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date of claim petition till realization, instead
of Rs.95,000/- awarded by the Tribunal.
There will be enhancement of Rs.1,34,700/-.
d) The Insurance Company shall pay the
aforesaid compensation amount with
interest, within a period of 6 [six] weeks
from the date of receipt of a certified copy
of this judgment and recover the same from
the owner of the offending vehicle.
Sd/-
JUDGE
LG,SBS
