Karnataka High Court
Thimmamma vs Chandrashekaraswamy on 19 April, 2024
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MFA No. 613/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 613 OF 2016 (MV-I)
BETWEEN:
THIMMAMMA W/O DASEGOWDA
AGED ABOUT 60 YEARS
R/O DASEGOWDANAKOPPALU VILLAGE
HALLIMYSORE HOBLI, HOLENARASIPURA
TALUK, HASSAN DISTRICT ... APPELLANT
(BY SMT. A. R. SHARADAMBA, ADV.)
AND:
1. CHANDRASHEKARASWAMY
S/O THAMMAIAH, MAJOR
DASEGOWDANAKOPPALU
VILLAGE, HALLIMYSORE HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT
2. MAHADEV
S/O NAGARAJ
ANEKANNAMBADI VILLAGE
Digitally signed by
HALLIMYSORE HOBLI
HARIKRISHNA V
HOLENARASIPURA TALUK
Location: HIGH COURT HASSAN DISTRICT
OF KARNATAKA
3. THE MANAGER
NATIONAL INSURANCE CO. LTD.
1ST FLOOR, MANJUNATHA COMPLEX
OLD BUS STAND ROAD
HASSAN - 573 201 ... RESPONDENTS
(BY SRI.K.N.SRINIVASA, ADV. FOR R3;
VIDE ORDER DATED 11.01.2024
APPEAL AGAINST R2 IS DISMISSED AS ABATED;
R1 SERVED)
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MFA No. 613/2016
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 05.11.2015
PASSED IN MVC NO.1037/2014 ON THE FILE OF THE SENIOR
CIVIL JUDGE, JMFC, MACT, HOLENARASIPURA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.03.2024 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the petitioner has challenged the
judgment and award dated 05.11.2015 in
M.V.C.No.1037/2014 passed by the Senior Civil Judge
and M.A.C.T., Holenarasipura ('the Tribunal' for short).
2. Appellant was the petitioner and respondents
No.1 to 3 were owner, rider and insurer of the motor
cycle. For the sake of convenience, the parties shall be
referred to as per their status before the Tribunal.
3. Brief facts of the case are, on 15.04.2014 at
about 02:00 pm, on Hallimysore - Dasagaowdana
Koppalu Road while the petitioner was walking on the left
side of the road, respondent No.2/the rider of the motor
cycle bearing Reg.No.KA-13/U-9709 dashed against the
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petitioner, consequently the petitioner fell down and
sustained the injuries. The petitioner has taken
treatment at Hemavathi Hospital, Hassan under
hospitalization for 10 days. After taking treatment, she
approached the Tribunal for grant of compensation of
Rs.4,00,000/-. Claim was opposed by the respondents.
Respondents No.1 and 2 jointly contended that the
motor cycle was insured with respondent No.3, policy is
in force and the Insurance Company has to pay the
compensation. The Insurance Company has taken the
contention that though the policy is in force, respondent
No.2 did not possess valid and effective driving licence at
the time of accident and therefore, respondents No.1 and
2 are liable to pay the compensation. The Tribunal after
holding enquiry and hearing both the parties, allowed the
claim petition and awarded compensation as follows:
Sl. No. Particulars Rs.
1 Towards loss of future income due 29,160
to disability (4,500 x 12 x 6 x 9)
2 Towards pain & sufferings 30,000
3 Towards travelling, conveyance & 5,000
attendant's charges
4 Towards medical expenses 45,180
5 Towards loss of future amenities 10,000
6 Towards loss of income during laid 5,000
up period
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7 Towards future medical expenses 10,000
Total 1,34,340
The Tribunal directed respondents No.1 and 2 to deposit
the compensation with interest at 6% p.a. Pleading
inadequacy, seeking enhancement and questioning the
attribution of liability against respondents No.1 and 2,
the petitioner has filed this appeal on various grounds.
4. Heard the arguments of
Smt. A.R. Sharadamba, learned counsel for the
petitioner and Sri. K.N. Srinivasa, learned counsel for the
Insurance Company.
5. It is the contention of learned counsel for the
petitioner that the accident is of the year 2014, the
petitioner was aged 60 years, she was still in the age of
earning, but the Tribunal has taken the notional income
at Rs.4,500/- inadequately, not awarded compensation
under different heads and she sought for enhancement.
Apart from this, it is further contended that the rider of
the motor cycle did possess valid driving licence at the
time of accident, the Insurance Company has taken a
defence that the rider did not possess the driving licence;
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the burden of proving the defence is upon the Insurance
Company; no evidence is let in by the Insurance
Company by examining R.T.O. Authorities to explain that
respondent No.2 did not possess valid and effective
driving licence at the time of accident; therefore, the
Tribunal committed error in directing owner and rider of
the motor cycle to pay the compensation. To buttress
her argument, she has relied upon the
judgment in Pappu and Others
-Vs.- Vinod Kumar Lamba and Another 1.
6. Per contra, learned counsel for the Insurance
Company has contended that the Insurance Company
has specifically taken a plea that the rider of the motor
cycle did not possess valid and effective driving licence at
the time of the accident; in the objection statement filed
by respondents No.1 and 2, there is no whisper that
respondent No.2 was holding valid and effective driving
licence to ride the motor cycle in question; for the reason
of respondent No.2 did not possess the driving licence,
the Investigating Officer after investigation, submitted
(2018) 3 SCC 208
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charge sheet under Ex.P6 incorporating Sections 279,
337 and 338 of I.P.C. and also Section 3 read with
Section 181 of Indian Motor Vehicles Act, 1988; Ex.P6 is
the document relied upon by the petitioner which clearly
explains that respondent No.2 being the rider of the
motor cycle, at the time of accident, did not possess valid
and effective driving licence to ride the motor cycle;
when the document relied upon by the petitioner itself
explains that the rider of the motor cycle did not possess
the driving licence, the burden of the Insurance Company
has been discharged; thereby, the Tribunal has rightly
directed the owner and rider of the motor cycle to
deposit the compensation exonerating the liability on the
part of the Insurance Company to pay the compensation
and he supported the impugned judgment.
7. I have given my anxious consideration to the
arguments addressed on both sides and also perused the
records.
8. The material on record points out that there was
an accident involving the petitioner and the motor cycle
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in question, causing the injuries to the petitioner. The
prosecution papers as well as treatment records clearly
points out that the petitioner has sustained the fracture
of collarbone and fracture of left radius and ulna. She
was under hospitalization at Hemavathi Hospital, Hassan
for a period of 10 days and a sum of Rs.45,180/- was
spent towards treatment. As referred supra, the Tribunal
has considered reimbursement of the medical expenses,
but the compensation awarded towards pain and
sufferings, loss of amenities and discomfort, loss of
income during laid-up period, non-awarding of attendant
charges, food and nourishment has to be considered.
There is no pleading that the petitioner has attributed
any negligence. Hence, being a victim of the accident,
the petitioner is entitled to just compensation.
9. The Tribunal awarded a sum of Rs.30,000/-
towards pain and agony. The petitioner suffered fracture
of 3 bones and she has to be adequately compensated.
Hence, Rs.50,000/- towards pain and sufferings has to be
assessed. The petitioner being suffered fracture of upper
left arm, she will be disabled from attending her normal
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work and she will be confined to rest. Hence, loss of
income for minimum period of 3 months has to be
awarded. The Tribunal has taken the notional income at
Rs.4,500/- and the petitioner is aged 60 years, she was
still in the earning age and having regard to the date of
accident, minimum wages and earning capacity of the
petitioner, it is proper to assess notional income at
Rs.8,500/- instead of Rs.4,500/-. She will be laid-up for
not less than 3 months. Hence, loss of income during
laid-up period comes to Rs.25,500/-. The petitioner has
suffered fracture of collarbone, left radius and ulna.
Apart from that, lacerated injuries on right forehead,
right palm and right elbow. She being a lady at the age
of 60, suffered loss of amenities and discomfort and it
has to be assessed at Rs.40,000/- instead of Rs.10,000/-
awarded by the Tribunal.
10. The medical evidence spoken to by PW-2 did
point out that the petitioner requires future medical
treatment, the Tribunal has considered Rs.10,000/-
towards it and the same is kept intact. The petitioner is
attended by an attendant during the period of
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hospitalization and even after discharge, she requires to
be assisted by an attendant for few more days. Hence,
Rs.5,000/- towards attendant charges, Rs.5,000/-
towards food and nourishment and Rs.5,000/- towards
conveyance expenses is assessed. The medical evidence
of PW-2 explains whole body disability at 6% and the
same is kept intact. Then, loss of future earnings will be
Rs.8,500/- x 12 x '9' multiplier x 6% = Rs.55,080/-.
Thus, in all the petitioner is entitled to compensation as
follows:
Sl. No. Particulars Rs.
1 Pain and sufferings 50,000
2 Medical expenses 45,180
3 Loss of income during laid-up period 25,500
4 Loss of amenities and discomfort 40,000
5 Loss of future earnings 55,080
6 Future medical expenses 10,000
7 Attendant charges 5,000
8 Food and nourishment 5,000
9 Conveyance expenses 5,000
Total 2,40,760
(-) Award of the Tribunal 1,34,340
Enhanced compensation 1,06,420
This is the just compensation that the petitioner is
entitled to in the facts and circumstances of the case.
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11. As regarding liability is concerned, the Tribunal
recorded its finding based on the prosecution papers that
at the time of accident, respondent No.2 being the rider
of the motor cycle did not possess valid and effective
driving licence. Hence, the defence is available to the
Insurance Company under Section 149 (1) and (2) of
Motor Vehicles Act, 1988 ('M.V. Act' for short) and
directed the owner and rider of the motor cycle to
deposit the compensation. As discussed above, the
prosecution papers relied upon by the petitioner itself
point out that the rider of the motor cycle was charge
sheeted for the offence punishable under Section 3 read
with Section 181 of M.V. Act for not holding driving
licence to ride the motor cycle.
12. In Pappu's case (supra), the Hon'ble Apex
Court while dealing with an accident of this nature and
also considering the defence available to the Insurance
Company under Section 149 (2) of the M.V. Act, laid
down that when the Insurance Company has taken a
contention that the rider of the motor cycle did not
possess valid and effective driving licence, it is for the
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Insurance Company to prove and establish that the rider
of the motor cycle did not have a valid driving licence. If
the defence is established, the Tribunal is right in
absolving the Insurance Company from any liability for
just reasons.
referring to the judgment in National Insurance Co.
Ltd. -Vs.- Swaran Singh 2, specifically held 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 driver of the vehicle.
However, the Hon'ble Apex Court held that even if the
insurer succeeds in establishing its defence, the Tribunal
or the Court shall 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. In view of the
law being laid-down by the Hon'ble Apex Court, here in
this case, the argument of the petitioner is not
persuasive in nature that the Insurance Company has not
established that the driver of the motor cycle did not
(2004) 3 SCC 297
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possess the driving licence. The material on record did
explain that the rider of the motor cycle did not possess
the driving licence and the Insurance Company can avoid
its liability to pay the compensation. In view of the
position of law as such and dictum of the Hon'ble Apex
Court, it is proper to direct the Insurance Company to
deposit the compensation with liberty to recover the
same from the owner of the motor cycle in the same
proceedings. Hence, the appeal merits consideration, in
the result, the following:
ORDER
i) The appeal is allowed-in-part;
ii) Impugned judgment and award is
modified;
iii) The petitioner is entitled to enhanced
compensation of Rs.1,06,420/- with 6%
interest p.a. from the date of petition till
the date of deposit;
iv) The Insurance Company is directed to
deposit the total compensation within
eight weeks from the date of receipt of
certified copy of this judgment and
entitled to recover the same from the
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owner of the motor cycle in the same
proceedings;
v) Amount in deposit, if any, shall be
transmitted to the Tribunal along with
records forthwith.
Sd/-
JUDGE
PA
CT:HS
