Karnataka High Court
Oriental Insurance Co.Ltd vs Narayan S/O. Mallappa Churi on 8 April, 2024
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NC: 2024:KHC-D:6236
MFA No. 102292 of 2020
C/W MFA No. 101123 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 102292 OF 2020 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 101123 OF 2020
IN MFA NO. 102292/2020
BETWEEN:
NARAYAN S/O. MALLAPPA CHURI,
AGE: 60 YEARS, OCC: ASI POLICE,
R/O. GADAG-BETAGERI,
TAL & DIST: GADAG, PINCODE-582101.
...APPELLANT
(BY SMT. ANURADHA DESHPANDE, ADVOCATE)
AND:
1. VIJAYKUMAR VEERABHADRAPPA MUNAVALLI,
AGE: MAJOR, OCC: BUSINES,
R/O. KALASAPUR ROAD, GADAG,
DIST: GADAG, PINCODE-582101.
Digitally signed
by ROHAN
HADIMANI T 2. THE DIVISIONAL MANAGER,
Location: HIGH ORIENTAL INSURANCE COMPANY LIMITED,
COURT OF
KARNATAKA
1ST FLOOR, ONKAR COMPLEX,
DHARWAD, PINCODE-580001.
...RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R2;
NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
PRAYING TO ALLOW THE APPEAL AND MODIFY THE JUDGMENT AND
AWARD IN M.V.C NO.198/2016 DATED 19.06.2019 PASSED BY THE
LEARNED THE ADDL SENIOR CIVIL JUDGE AND MEMBER MACT,
GADAG UNDER ALL PERMISSIBLE HEADS.
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NC: 2024:KHC-D:6236
MFA No. 102292 of 2020
C/W MFA No. 101123 of 2020
IN MFA NO. 101123/2020
BETWEEN:
ORIENTAL INSURANCE CO. LTD,
THE DIVISIONAL MANAGER, I FLOOR,
OMKAR COMPLEX, DHARWAD,
REPRESENTED BY ITS
REGIONAL MANAGER.
...APPELLANT
(BY SMT. PREETI SHASHANK, ADVOCATE)
AND:
1. NARAYAN S/O. MALLAPPA CHURI,
AGE: 58 YEARS, OCC: ASI POLICE,
R/O. GADAG, BETAGERI,
GADAG DISTRICT, PINCODE: 582102.
2. VIJAYAKUMAR VEERABHADRAPPA MUNAVALLI,
AGE: MAJOR, OCC: BUSINESS,
R/O. KALASAPUR ROAD, GADAG,
DIST: GADAG, PINCODE: 582103.
...RESPONDENTS
(BY SMT. ANURADHA DESHPANDE, ADV. FOR R1;
SMT. KAVYA C, ADV. FOR R2)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO CALL FOR THE RECORDS CONNECTED WITH MVC
NO.198/2016 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS
TRIBUNAL AT GADAG, EXAMINE THE SAME AND SET ASIDE THE
AWARD DATED 19-06-2019 AS AGAINST THE APPELLANT IN THE
INTEREST OF JUSTICE.
THESE APPEALS, COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
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NC: 2024:KHC-D:6236
MFA No. 102292 of 2020
C/W MFA No. 101123 of 2020
JUDGMENT
1. MFA.No.102292/2020 is filed by the claimant
seeking enhancement of compensation. MFA.No.101123/2020
is filed by the Insurer challenging the liability saddled on it.
2. Both the appeals are arising out of the judgment
and award dated 19.6.2016, passed in MVC No.198/2016 on
the file of Addl. Senior Civil Judge and MACT, Gadag (for short,
'Tribunal').
3. Smt. Anuradha Deshpande, learned counsel for the
claimant submits that the Tribunal has committed grave error
in not awarding the compensation under the head of loss of
income during the laid up period. She further submits that the
accident in question occurred on 4.1.2016 and he was in
continuous treatment till 31.7.2017 and during the aforesaid
period, he could not attend his work. Hence, his employer has
adjusted all his leave benefits and paid the salary. She submits
that there is a loss of casual leave to the claimant. Hence,
claimant is entitled to compensation for the same period. It is
further submitted that claimant has lost promotional avenues
due to accidental disability. Hence, appropriate compensation
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should be awarded under the head of loss of future
prospects/income of the claimant by allowing the appeal.
4. Per contra, Smt.Preethi Shashank, learned counsel
for the Insurance Company submits that the Tribunal has
committed grave error in saddling the liability on the Insurance
Company. She further submits that as on the date of the
accident, the driver of the offending TATA ACE was not having
valid and effective driving license i.e. he was having license to
drive LMV (Non-Transport) Vehicle, but he was not having the
transport endorsement on the said driving license. Hence, she
seeks to saddle the liability on the owner of the offending
vehicle. She further submits that the claimant has not lost the
employment due to accident nor there is reduction in rank and
there is no deduction in the salary of the claimant. Hence, she
seeks to dismiss the appeal filed by the claimant.
5. I have heard the learned counsel for the claimant
and the learned counsel for the respondent and perused the
material available on record.
6. It is not in dispute that on 4.1.2016, the claimant
met with an accident, sustained fractural injuries and took
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treatment in the hospital. Considering the evidence available on
record, the Tribunal has awarded total compensation of
Rs.3,80,500/- along with interest at the rate of 6% p.a.
7. This Court, on re-appreciation of entire evidence
available on record, more particularly the certificate dated
11.10.2023 produced along with application for production of
document, is of the considered view that the claimant's leave
benefits has been adjusted towards the pay and denying the
benefits. Considering the said aspect, this Court is of the
considered view that the claimant is entitled to Rs.40,528/- as
compensation towards the loss of causal leave and two
restricted holidays.
8. Insofar as the contention that the claimant has lost
promotional avenue, there is no evidence whatsoever available
on record to substantiate the said contention. It is claimant's
own say/self serving statement, which cannot be accepted and
come to conclusion that the claimant has lost promotional
avenues. Hence, appellant/claimant would not be entitled to
compensation under the head of loss of future prospects or loss
of future income due to accident.
NC: 2024:KHC-D:6236
9. The appellant/claimant is entitled to additional sum
of Rs.10,000/- under the head of pain and suffering and
additional sum of Rs.10,000/- under the head of loss of
amenities. The compensation awarded on other heads by the
Tribunal remains unaltered.
10. Insofar as contention of the learned counsel for the
Insurance Company that the driver of the offending vehicle was
not having valid and effective driving license. The said issue is
no more res-integra, in view of decision of the Hon'ble Apex
Court in Mukund Dewangan Vs. Oriental Insurance
Company Limited1, wherein it has held that when the driver
of the vehicle possesses the driving license to drive any non-
transport vehicle can very well drive the transport vehicle of
the same category. In view of the enunciation of law laid down
by the Hon'ble Apex Court in Mukund Dewangan referred
supra, the appeal filed by the Insurance Company is rejected.
11. Thus, the claimant would be entitled to modified
compensation under the following heads:
AIR 2017 SCC 3668
NC: 2024:KHC-D:6236
SL. HEADS AMOUNT
NO.
1 Loss of casual leave Rs.40,528/-
2 Medical expenses Rs. 2,10,500/-
3 Pain and suffering Rs. 60,000/-
4 Food, nourishment & attendant charges Rs. 20,000/-
5 Loss of amenities Rs. 50,000/-
6 Future Medical expenses 10,000/-
Total Rs. 3,91,028/-
12. Thus, the appellant/claimant would be entitled to
total compensation of Rs.3,91,028/- as against Rs.3,80,500/-
awarded by the Tribunal.
13. In the result, I proceed to pass the following:
ORDER
a) MFA.No.102292/2020 is allowed in part and
MFA.No.101123/2020 is dismissed.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
appellant/claimant would be entitled to total
compensation of Rs.3,91,028/- as against
Rs.3,80,500/- awarded by the Tribunal.
c) The enhanced compensation amount shall carry
interest at the rate of 6% per annum from the
date of petition till the date of payment.
d) The Insurance Company shall deposit the
enhanced compensation amount with accrued
interest before the Tribunal within a period of
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six weeks from the date of receipt of certified
copy of this judgment.
e) On such deposit, the amount shall be released
in favour of the claimant.
f) The amount in deposit, if any made by the
Insurance Company be transmitted to the
Tribunal.
g) Draw modified award accordingly.
Sd/-
JUDGE
VB
Ct-an
