Karnataka High Court
Praveen Manjunath Naik vs Yuvaraj A Adimani on 29 November, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:13992
MFA No. 24175 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.24175/2013(MV)
BETWEEN:
SHRI PRAVEEN MANJUNATH NAIK,
AGE: 30 YEARS,
OCC: PRIVATE SERVICE AND AGRIL,
R/O. ANGOL - BELAGAVI,
TQ AND DIST: BELAGAVI.
...APPELLANT
(BY SRI B. M. PATIL, ADVOCATE)
AND:
1. SHRI YUVARAJ A. ADIMANI,
AGE: MAJOR, MAHAVEER NAGAR,
ANGOL, BELAGAVI.
2. BAJAJ ALLIANZ GENERAL
INSURANCE CO. LTD.,
Digitally VIVEKANANDA CORNER, DESAI CROSS,
signed by
SUJATA CLUB ROAD, HUBBALLI - 580 029.
SUBHASH ...RESPONDENTS
PAMMAR (BY SRI S. K. KAYAKAMATH, ADVOCATE FOR R2;
R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION
BY MODIFYING THE JUDGMENT AND AWARD IN MVC NO.762/2007
DATED 25.05.2011 PASSED BY THE COURT I ADDITIONAL SENIOR
CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI
AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:13992
MFA No. 24175 of 2013
JUDGMENT
The appeal is filed by the claimant for seeking
enhancement of compensation as well as questioning
liability fastened on the owner of the motorcycle.
2. The factum of accident and injury sustained are
not in dispute. The only disputed fact is that whether
insurance company is liable to indemnify the owner and to
pay compensation on the ground of non-production of
driving licence.
3. Heard arguments from both sides and perused
the material placed on record.
4. In the present case, the tribunal while
determining compensation has fastened liability on the
owner of the motorcycle on the ground that the owner and
driver have not produced driving licence. Respondent
No.2-insurance company has issued three legal notices
under Section 134 of the Motor Vehicles Act, 1988 (for
short hereinafter referred to as 'the M.V. Act') calling upon
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the owner and driver of the motorcycle to produce the
driving licence and other particulars. The said copy of
notices and acknowledgement cards are marked at Ex.R.2
to R.7. Ex.P.9 is the Court summons that respondent
No.2-insurance company has got taken summons through
Court against the owner/respondent No.1 to produce
driving licence. But the owner and driver have not
produced driving licence. Section 134 of M.V. Act,
stipulates certain duties on the driver and owner. Amongst
one of the duty is to produce driving licence and other
particulars. The same is not produced by either driver or
owner of the offending vehicle to the tribunal. Even though
the insurance company has reminded the duties cast on
the driver and owner, under Section 134 of the Act, by
issuing legal notice, but owner or driver of the offending
vehicle have not produced driving licence to the tribunal.
Therefore, the insurance company made its efforts to
secure the particulars. The insurance company cannot lead
negative evidence. If a driver has a driving licence, it is his
duty to produce driving licence to the tribunal through the
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respondent No.1-owner of the motorcycle. Therefore, an
adverse inference has to be drawn under Section 114 of
the M.V. Act that the driver did not hold driving licence as
on the date and time of the accident. When this being the
fact, the tribunal is correct by exonerating the insurance
company from its liability. However, as per Sub-section
(2) of Section 149 of Motor Vehicle Act, when the
Insurance Company established the fact that driver was
not holding driving licence, then as per Sub-sections (1),
(5), (7) of Section 149 of Motor Vehicle Act, the Insurance
Company as if the judgment debtor shall satisfy the claim
in respect of third parties at the first instance and then
recover the same from owner of the offending Motorcycle
bearing registration No.KA-22/W-9204. Accordingly, order
of pay and recovery is made as per the principle of law laid
down by the Hon'ble Supreme Court in the cases of Pappu
and Others vs. Vinod Kumar Lamba and Another1;
National Insurance Company Limited vs.
(2018) 3 SCC 208
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Swaran Singh and Others 2 and also as per the full
bench decision of this Court in the case of New India
Assurance Company Limited vs. Yellavva and
Another3. Thus, an order of pay and recovery is made. To
this extent, the judgment and award passed by the
Tribunal is modified.
5. From the medical evidence on record, it is
proved that the claimant has sustained compound fracture
of right femur and other injuries. Considering the nature of
injuries sustained, a compensation of Rs.40,000/- is
awarded towards pain and suffering. Further, a
compensation of Rs.25,000/- is awarded towards loss of
amenities.
6. The doctor has stated that the claimant had
suffered 30% of physical disability towards whole body.
Even though the doctor is not a treated doctor, but as a
qualified medical practitioner he can assess the percentage
(2004) 3 SCC 297
2020 ACJ 2560
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of disability. Therefore, considering the evidence of the
doctor, 15% functional disability is taken into
consideration as the claimant had suffered fracture of right
lower limb. The accident is caused in the year 2007.
Therefore, notional income of Rs.4,000 /- per month is
taken into consideration, which is recognized by the
Karnataka State Legal Service Authority. The claimant was
aged 25 years at the time of accident. Therefore,
appropriate applicable multiplier is 18. Hence, loss of
future income due to disability is hereby reassessed and
quantified as Rs.1,29,600/- (Rs.4,000 x 15% x 12 x 18).
7. The compensation awarded towards medical
expenses and hospital charges of Rs.2,000/- 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 expenses like food,
nourishment, traveling, attendant charges, etc.,. Further,
a compensation of Rs.16,000/- is awarded under the head
loss of income during laid up period for a period of four
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months. Thus, the claimant is entitled for total
compensation under various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Towards injuries, pain and 40,000
suffering.
2. Towards medical expenses. 2,000
3. Towards loss of amenities. 25,000
4. Towards loss of income during 16,000
laid up period and medical
treatment period.
5. Towards incidental charges like 10,000
attendant charges, food,
nourishment, conveyance, etc.,.
6. Towards loss of future earning 1,29,600
capacity.
Total: 2,22,600
Less: Compensation awarded by 1,04,200
tribunal:
Enhanced compensation: 1,18,400
8. Therefore, the claimant is entitled for total
compensation of Rs.2,22,600/- as against what has been
awarded by the tribunal along with interest at the rate of
6% p.a. from the date of filing of the petition till
realization. The Insurance Company is directed to deposit
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the enhanced compensation within eight weeks from the
date of receipt of a certified copy of this judgment.
9. In the result, I proceed to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and award passed in MVC
No.762/2007, dated 25.05.2011, by the
learned I Additional Senior Civil Judge and
MACT, Belagavi, stands modified to the
aforesaid extent.
iii) The claimant is entitled for additional
compensation of Rs.2,22,600/- as against
what has been awarded by the tribunal
along with interest at 6% p.a. from the
date of filing of the petition till realization.
iv) The claimant is not entitled for interest for
the delayed period of 777 days in filing the
appeal.
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v) The insurance company is exonerated from
payment of compensation. However, the
appellant insurance company shall pay
compensation at the first instance to the
claimant and then recover it from the
owner of the motorcycle bearing
registration No.KA-22/W-9204.
vi) The amount in deposit shall be transmitted
to the tribunal.
vii) The insurance company shall deposit the
compensation within eight weeks from the
date of receipt of a copy of this judgment.
viii) No order as to costs.
ix) Draw award accordingly.
SD/-
JUDGE
SSP
CT-asc
