Karnataka High Court
The Manager Royal Sundaram Alliance ... vs Mahantesh Vithal Keskar on 10 April, 2024
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NC: 2024:KHC-D:6361
MFA No. 101821 of 2017
C/W MFA No. 103177 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 101821 OF 2017 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 103177 OF 2017
IN MFA NO. 101821 OF 2017
BETWEEN:
THE MANAGER,
ROYAL SUNDARAM ALLIANCE INSURANCE
COMPANY LTD, DIVISIONAL OFFICE AT: DB PLAZA,
3RD FLOOR, 47 WHITES ROAD, CHENNAI-600014 (T.N)
NOW REPRESENTED BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY SMT. ANUSHA SANGAMI, ADV. FOR
SRI. S. K. KAYAKAMATH, ADVOCATES)
AND:
1. SHRI. MAHANTESH VITHAL KESKAR,
AGE: 26 YEARS, OCC: MECHANIC & AGRICULTURE,
(NOW NIL), R/O. SAVALAGI, TALUK: JAMKAHNDI,
NOW RESIDING AT SUTTATTI, TALUK: ATHANI,
DIST: BELAGAVI-591304.
Digitally signed
by JAGADISH T R
2. THE HEAD MASTER,
Location: HIGH
COURT OF SHRI. APPAYYA SWAMI, PRE. PRIMARY SCHOOL,
KARNATAKA SUTATTI, TALUK: ATHANI, DIST: BELAGAVI,
PIN -591304.
...RESPONDENTS
(BY SRI. PRANAV S. KATAGERI FOR
SRI. SANJAY S. KATAGERI, ADVOCATES FOR R1;
NOTICE TO R2 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO CALL FOR THE RECORDS HEAR THE PARTIES,
AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 28.02.2017 PASSED BY
THE PRL. SENIOR CIVIL JUDGE AND ADDL. M.A.C.T, ATHANI, IN MVC
NO.1768/2013, WITH COST IN THE INTEREST OF JUSTICE AND
EQUITY.
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NC: 2024:KHC-D:6361
MFA No. 101821 of 2017
C/W MFA No. 103177 of 2017
IN MFA NO. 103177 OF 2017
BETWEEN:
SHRI. MAHANTESH VITHAL KESKAR,
AGE: 25 YEARS, OCC: MECHANIC &
AGRICULTURE, (NOW NIL),
R/O. SAVALAGI, TAL: JAMKHANDI,
NOW RESIDING AT SUTTATTI,
TAL: ATHANI, DIST: BELAGAVI, PIN-591230.
...APPELLANT
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1. THE HEAD MASTER,
SHRI. APPAYYA SWAMI PRE. PRIMARY SCHOOL,
SUTTATTI, TQ: ATHANI, DIST: BELAGAVI,
PINCODE-591230.
2. THE MANAGER,
ROYAL SUNDARAM GENERAL
INSURANCE CO. LTD, DIVISIONAL OFFICE
AT: DB PLAZA, 3RD FLOOR,
47 WHITES ROAD, CHENNAI-60014 (T.N.).
...RESPONDENTS
(BY SMT. ANUSHA SANGAMI, ADV. FOR
SRI. S. K. KAYAKMATH, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO THE JUDGMENT AND AWARD DATED 28-02-2017
PASSED IN MVC NO.1768/2013 BY THE LEARNED PRL. SENIOR CIVIL
JUDGE AND ADDL. MACT, ATHANI, IN AWARDING COMPENSATION
OF RS. 2,39,440/- WITH 6% INTEREST P.A. BE KINDLY MODIFIED BY
ENHANCING TO RS. 12,00,000/- WITH INTEREST @ 12% PER
ANNUM FROM THE DATE OF PETITION, TILL THE DATE OF PAYMENT,
BY HOLDING RESPONDENTS NO.1 & 2 HEREIN JOINTLY AND
SEVERALLY LIABLE TO PAY THE COMPENSATION, BY ALLOWING THIS
APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
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NC: 2024:KHC-D:6361
MFA No. 101821 of 2017
C/W MFA No. 103177 of 2017
JUDGMENT
1. MFA.No.103177/2017 is filed by the claimant
seeking for enhancement of compensation. MFA.No.
101821/2017 is filed by the Insurer challenging the quantum of
compensation awarded by the Tribunal as well as the liability
saddled on the appellant/Corporation.
2. Both the appeals are arising out of the judgment
and award dated 28.02.217, passed in MVC No.1768/2013 on
the file of Prl. Senior Civil Judge & Addl. MACT, Athani (for
short, 'Tribunal').
3. Smt.Anusha Sangami, learned counsel representing
Sri.S.K.Kayakmath, learned counsel for the appellant/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 submits that the
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rider of the motorcycle was negligent and hence, the Tribunal
ought to have fastened 50% of the liability on the rider of
motorcycle while allowing the claim petition. Hence, she seeks
to allow the appeal filed by the Insurance Company.
4. Per contra, Sri.Pranav S Katageri, learned counsel
representing Sri.Sanjay S Katageri, learned counsel for the
claimant submits that the issue with regard to holding of LMV
(NT) is covered by the decision of Hon'ble Apex Court in the
case of Mukund Dewangan Vs. Oriental Insurance
Company Limited1, and hence, he seeks to dismiss the appeal
filed by the Insurance Company. He further submits that the
Tribunal has committed grave error in assessing the income of
the injured/claimant and also awarded meager compensation
on all other heads. Therefore, he seeks to enhance the
compensation.
5. I have heard the arguments of learned counsel for
the claimant and learned counsel for the Insurance Company
and perused the material available on record.
AIR 2017 SCC 3668
NC: 2024:KHC-D:6361
6. It is not in dispute that on 9.5.2013, the claimant
met with an accident while he was proceeding as a pillion rider
along with rider.
7. Admittedly, the driver of the offending vehicle i.e.
TATA ACE bearing Registration No.KA-23/A-5413 was not
having license to drive LMV (Transport Vehicle). The contention
of the Insurance Company that driver was not having valid and
effective license to drive as on the date of the accident is no
more res-integra, as the same is covered by decision of Hon'ble
Apex Court in Mukund Dewangan referred supra. Keeping in
mind the enunciation of law laid down by the Hon'ble Apex
Court in Mukund Dewangan referred supra, the contention of
the Insurance Company is liable to rejected.
8. Insofar as contributory negligence is concerned, the
claimant is a pillion rider and admittedly, police have filed
charge sheet against the driver of the offending vehicle i.e.
TATA ACE bearing Registration No.KA-23/A-5413. Hence, the
question of considering the contributory negligence of the
claimant/injured would not arise as there is no evidence
whatsoever available on record to consider the contributory
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negligence of the pillion rider/claimant herein. Accordingly, the
said contention of the Insurance Company is rejected.
9. Insofar as quantum of compensation is concerned,
this Court re-assesses the income of the claimant at Rs.7,000/-
per month placing reliance on the notional chart prepared by
KSLSA as claimant has not placed any evidence with regard to
his income. Hence, the claimant would be entitled to the
compensation under the head of loss of future income due to
disability as under:
7000 x 12 x 18 x 6% = Rs.90,720/-
10. This Court, taking note of the injuries sustained by
the claimant awards additional sum of Rs.10,000/- under the
head of pain and sufferings and Rs.15,000/- under the head
of loss of amenities. The compensation awarded by the Tribunal
on other heads remains unaltered.
11. The claimant is entitled to modified compensation
under the following heads:
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HEADS AMOUNT
(in Rs.)
Towards pain and suffering 30,000/-
Towards Medical expenses 79,200/-
Food, conveyance, diet and attendant 15,000/-
Loss of future earnings due to disability 90,720/-
Loss of amenities 30,000/-
Loss of income during laid-up period 26,000/-
Total 2,70,920/-
12. Thus, the claimant shall be entitled to total
compensation of Rs.2,70,920/- as against Rs.2,39,440/-
awarded by the learned Tribunal.
13. In the result, this Court passes the following:
ORDER
a) MFA.No.103177/2017 stands allowed in part
and MFA.No.101821/2017 stands dismissed.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimant would be entitled to total
compensation of Rs.2,70,920/- as against
Rs.2,39,440/- 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.
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d) The Insurance Company shall deposit the
enhanced compensation amount with accrued
interest before the Tribunal within a period of
six weeks from the date of receipt of certified
copy of this judgment.
e) On such deposit, the same shall be released
in favour of the appellant/claimant.
f) The amount in deposit made by the appellant/
Insurance Company be transmitted to the
Tribunal along with TCR forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
VB
