Karnataka High Court
Shri Shivanand S/O Ulavappa Inchal vs Shri Vishwas S/O Suresh Mardolkar on 4 April, 2024
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MFA No. 102550 of 2020
C/W MFA No. 102551 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 102550 OF 2020 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 102551 OF 2020
IN MFA NO. 102550 OF 2020
BETWEEN:
SHRI. SHIVANAND S/O. ULAVAPPA INCHAL,
AGE: 46 YEARS, OCC: AGRICULTURE COOLIE,
NOW NIL, R/O. INCHAL GALLI, BAILHONGAL,
PIN: 591110, TQ: BAILHONGAL, DIST: BELAGAVI.
...APPELLANT
(BY SRI. HANAMANT R. LATUR, ADVOCATE)
AND:
1. SHRI. VISHWAS S/O. SURESH MARDOLKAR,
AGE: 46 YEARS, OCC: BUSINESS,
R/O. H.NO.302, NEAR MAHALASA TEMPLE,
MARDOL GOA, DIST: GOA NORTH,
STATE: GOA, PIN: 403404.
Digitally signed
by ROHAN
HADIMANI T
Location: HIGH
2. THE DIVISIONAL MANAGER,
COURT OF NATIONAL INSURANCE COMPANY LIMITED,
KARNATAKA
PRABHU BUILDING, II FLOOR, NO.1732,
POST BOX NO-175, RAMDEV GALLI, BELAGAVI,
PIN: 590001, TQ & DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. S. K. KAYAKMATH, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 14.08.2020 PASSED
IN MVC NO.2194/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
BAILHONGAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No. 102550 of 2020
C/W MFA No. 102551 of 2020
IN MFA NO. 102551 OF 2020
BETWEEN:
SHRI. MAHANTESH
S/O. SHIVABASAPPA GODACHI,
AGE: 46 YEARS, OCC: CLEARK IN SHOP,
NOW NIL, R/O. TOTAGI GALLI,
BAILHONGAL, PIN: 591110,
TQ: BAILHONGAL, DIST: BELAGAVI.
...APPELLANT
(BY SRI. HANAMANT R. LATUR, ADVOCATE)
AND:
1. SHRI. VISHWAS
S/O. SURESH MARDOLKAR,
AGE: 46 YEARS, OCC: BUSINESS,
R/O. H.NO.302,
NEAR MAHALASA TEMPLE,
MARDOL GOA, DIST: GOA NORTH,
STATE: GOA, PIN: 403404.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
PRABHU BUILDING,
II FLOOR, NO.1732,
POST BOX NO-175, RAMDEV GALLI,
BELAGAVI, PIN: 590001,
TQ & DIST: BELAGAVI.
...RESPONDENTS
(BY SMT. ARUNA DESHPANDE, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 14.08.2020 PASSED
IN MVC NO.2195/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
BAILHONGAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 102550 of 2020
C/W MFA No. 102551 of 2020
JUDGMENT
Though these appeals are listed for admission, with
the consent of learned counsel for the parties, it is taken
up for final disposal.
2. MFA No.102550/2020 is filed by the claimant
challenging MVC No.2194/2016 and MFA No.102551/2020
is filed by the injured/claimant challenging MVC
No.2195/2016 seeking enhancement of compensation
being aggrieved by the common judgment and award
dated 14.08.2020 passed in MVC.No.2194/2016 & MVC
No.2195/2016 by the Senior Civil Judge and Addl. MACT,
Bailhongal (for short, 'Tribunal').
3. Heard Sri.Hanumant R.Latur, learned counsel
for the appellants-claimants in both the appeals and
Sri.S.K.Kayakmath, learned counsel for the respondent
No.2-Insurance Company in MFA No.102550/2020 and
Smt.Aruna Deshpande, learned counsel for the respondent
No.2-Insurance Company in MFA No.102551/2020.
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4. Learned counsel for the appellants-claimants
submits that the Tribunal has committed grave in saddling
the liability on the owner of the vehicle on the ground that
the driver of the vehicle was not having valid and effective
driving licence to drive the hazardous vehicle as he was
having the driving licence to drive heavy goods vehicle. He
seeks to confirm the saddling of liability on the owner of
the vehicle, however, he submits to direct the respondent-
insurance company to pay the compensation and recover
the same from the owner of the vehicle. Insofar as
quantum of compensation is concerned, he submits that
the Tribunal has assessed the income of the appellants-
claimants on the lower side and seeks to re-assess the
same.
5. Insofar as MVC No.2194/2016 is concerned,
learned counsel for the appellant-claimant submits that
the Tribunal has awarded meager compensation towards
food & nourishment, loss of amenities and loss of income
during laid-up period. Insofar as MVC No.2195/2016 is
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concerned, he submits that the Tribunal has committed
grave error in assessing the disability of the injured at
23%, which is contrary to the evidence of the treated
doctor PW-3. Hence, seeks to re-assess the same at
higher side. Similarly, he seeks to re-assess the income of
the injured appropriately. He further submits that the
award of compensation on other heads is on the lower side
and hence, seeks to enhance the same appropriately by
allowing the appeals filed by the injured-claimants.
6. Per contra, Sri.S.K.Kayakmath, learned counsel
for the respondent-Insurance Company in MFA
No.102550/2020 and Smt.Aruna Deshpande, learned
counsel for the respondent-Insurance Company in MFA
No.102551/2020 jointly submits that the Tribunal is
justified in saddling of liability on the owner of the vehicle
on the ground that the driver of the vehicle was not having
valid and effective driving licence to drive the hazardous
vehicle, the driver was possessing only the driving licence
to drive Heavy Goods Vehicle, which is a clear violation of
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the policy conditions, hence, seek to dismiss the appeals
insofar as saddling of liability is concerned. Insofar as
award of compensation is concerned, they submit that the
Tribunal, taking note of the evidence available on record,
awarded just and proper compensation by assessing the
disability by taking note of the injuries suffered by the
claimants. Hence, they seek to dismiss the appeals.
7. I have heard the learned counsel for the
appellants-claimants in respect of both the appeals and
learned counsel for the respondent-insurance company in
both the appeals and perused the material available on
record.
8. It is not in dispute that both the appellants-
claimants met with an accident on 29.05.2016 and
sustained injuries and fractures.
9. In MFA No.102550/2020 [MVC No.2194/2016],
the Tribunal has awarded total compensation of
Rs.2,87,824/-. On re-appreciation of evidence available on
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record and taking note of the injuries suffered by the
appellant i.e., mal-united fracture of right fibula & other
injuries, this Court is of the considered view that the
Tribunal has rightly assessed the disability at 10%. Since
the age of the appellant is 42 years as on the date of
accident, the appropriate multiplier would be 14, which
has been rightly considered by the Tribunal. This Court re-
assesses the income of the injured at Rs.8,750/- p.m.
placing reliance on the notional income chart prepared by
the KSLSA. Hence, the appellant would be entitled to loss
of future earning capacity due to disability as under :
Rs.8,750 X 12 X 14 X 10% = Rs.1,47,000/-.
10. The appellant-claimant in MFA No.102550/2020
is entitled to additional compensation of Rs.8,500/-
towards diet food, nourishment, attendant & conveyance
charges, additional compensation of Rs.14,000/- towards
loss of amenities & enjoyment in life. The appellant is
entitled to Rs.26,250/- (Rs.8750 X 3) towards loss of
income during laid-up period. The compensation awarded
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by the Tribunal towards pain & suffering, medical
expenses, future medical expenses is unaltered. Thus, in
all, the appellant in MFA.No.102550/2020 would be
entitled to modified compensation as under:
HEADS AMOUNT
(in Rs.)
Loss of future earning capacity due to 1,47,000
disability
Pain & suffering 40,000
Medical expenses 54,924
Future medical expenses 20,000
Diet food, nourishment, attendant & 15,000
conveyance charges
Loss of income during laid-up period 26,250
Loss of amenities & enjoyment in life 30,000
Total 3,33,174
Thus, the claimant in MFA.No.102550/2020 shall
be entitled to total compensation of Rs.3,33,174/- as
against Rs.2,87,824/- awarded by the Tribunal.
11. Insofar as MFA No.102551/2020 [MVC
No.2195/2016] is concerned, this Court re-assesses the
income of the injured-claimant at Rs.8,750/- p.m.
placing reliance on the notional income chart prepared by
the KSLSA. The appellant has suffered injuries viz., mal-
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united fracture of shaft of right humerus, mal-united
fracture of right lower end of tibia and mal-united fracture
of right upper 3rd fibula. The treated doctor has assessed
the disability at 70%. Taking note of the oral testimony of
the treated doctor and the injuries suffered by the
appellant, this Court re-assesses the disability at 30%.
Since the age of the appellant is 42 years as on the date
of accident, the appropriate multiplier would be 14, which
has been rightly considered by the Tribunal. Hence, the
appellant would be entitled to loss of future earning
capacity due to disability as under :
Rs.8,750 X 12 X 14 X 30% = Rs.4,41,000/-.
12. The appellant-claimant is entitled to
compensation towards diet food, nourishment, attendant &
conveyance charges of Rs.15,000/- as against Rs.6,750/-
awarded by the Tribunal and is entitled to compensation
towards loss of amenities & enjoyment in life of
Rs.30,000/- as against Rs.24,000/- awarded by the
Tribunal. The appellant is entitled to Rs.26,250/-
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(Rs.8750 X 3) towards loss of income during laid-up
period. The compensation awarded by the Tribunal
towards pain & suffering, medical expenses, future
medical expenses is unaltered. Thus, in all, the appellant
in MFA.No.102551/2020 would be entitled to modified
compensation as under:
HEADS AMOUNT
(in Rs.)
Loss of future earning capacity due to 4,41,000
disability
Pain & suffering 50,000
Medical expenses 76,342
Future medical expenses 30,000
Diet food, nourishment, attendant & 15,000
conveyance charges
Loss of income during laid-up period 26,250
Loss of amenities & enjoyment in life 30,000
Total 6,68,592
Thus, the claimant in MFA.No.102551/2020 shall
be entitled to total compensation of Rs.6,68,592/- as
against Rs.5,20,212/- awarded by the Tribunal.
13. This Court, on re-appreciation of the entire
evidence available on record, upholds the finding of the
Tribunal insofar as saddling of liability on respondent No.1-
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the owner of the offending vehicle. However, keeping in
mind the law laid down by the Hon'ble Supreme Court in
the case of Shamanna Vs. Oriental Insurance Company
Limited1, this Court directs the respondent-insurance
company to pay the entire compensation along with
interest and recover the same from respondent No.1-the
owner of the vehicle.
14. In the result, this Court proceeds to pass the
following:
ORDER
a) Both the appeals are allowed in part.
b) The impugned judgment and award of the
Tribunal in MVC No.2194/2016 is
modified to an extent that the claimant
would be entitled to total compensation of
Rs.3,33,174/- as against Rs.2,87,824/-
awarded by the Tribunal and in MVC
No.2195/2016, the claimant would be
entitled to total compensation of
Rs.6,68,592/- as against Rs.5,20,212/-
awarded by the Tribunal.
(2018) 9 SCC 650
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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 respondent-insurance company shall
deposit the entire 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 enhanced
compensation amount shall be released in
favour of the appellants-claimants, on
proper identification.
f) The respondent-insurance company is at
liberty to recover the amount deposited by
it from respondent No.1 in accordance
with law.
g) Draw modified award accordingly.
Sd/-
JUDGE
BSR
Ct-an
