Karnataka High Court
Alwin D Souza vs Vijaya Prakash D Souza on 5 January, 2024
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MFA No. 1361 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 1361 OF 2014 (MV-I)
BETWEEN:
ALWIN D'SOUZA
S/O BENGAMIN D'SOUZA
AGED ABOUT 32 YEARS
R/AT H.NO.3-110
KUNTHALAN NAGAR, MANIPUR
UDUPI TALUK AND DISTRICT - 576 114 ... APPELLANT
(BY SRI. S.V.PRAKASH, ADV.)
AND:
1. VIJAYA PRAKASH D'SOUZA
S/O EDWARD D'SOUZA
AGED ABOUT 36 YEARS
R/AT KUNTHALANAGAR
MANIPUR, UDUPI TALUK & DIST - 576 114
2. UNITED INDIA INSURANCE CO. LTD.
KRISHNA BUILDING, UDUPI CITY
UDUPI DISTRICT - 576 114
REP. BY ITS DIVISIONAL MANAGER ... RESPONDENTS
Digitally signed by
MALA K N (BY SRI.B.C.SEETHARAMA RAO, ADV. FOR R2;
Location: HIGH COURT VIDE ORDER DATED 10.08.2016
OF KARNATAKA NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 23.11.2013
PASSED IN MVC NO.264/2012 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE, AND ADDITIONAL MACT,
UDUPI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHACEMENT OF
COMPENSATION.
THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.12.2023 AND COMING ON FOR
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MFA No. 1361 of 2014
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal, the petitioner has challenged the
judgment and award dated 23.11.2013 in
M.V.C.No.264/2012 passed by the Principal Senior
Civil Judge and Addl. M.A.C.T., Udupi ('the Tribunal'
for short).
2. 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 03.10.2011 at
about 09:30 pm, the petitioner has met with an
accident near Alevoor Manchi slope curve road while
travelling as a passenger in the auto-rickshaw
bearing Reg.No.KA-20/B-7828, sustaining the
injuries. After taking treatment at K.M.C. Hospital,
Manipal, he approached the Tribunal for grant of
compensation of Rs.5,92,000/-. Claim was opposed
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by the Insurance Company. The Tribunal after
taking the evidence, awarded the compensation of
Rs.1,37,200/- with 8% interest p.a. directing the
owner of the auto-rickshaw to pay the
compensation. Aggrieved by the same, the
petitioner has filed this appeal on various grounds.
4. Heard the arguments of Sri. S.V. Prakash,
learned counsel for the petitioner and
Sri. B.C. Seetharama Rao, learned counsel for the
Insurance Company.
5. It is the contention of learned counsel for the
petitioner that the petitioner has sustained Type-III
open fracture lateral malleolus left leg, he was under
hospitalization for twice, in total 28 days, spent huge
money towards treatment, the treated Doctor has
been examined as PW-2 who assessed 16%
disability, whereas the Tribunal has taken it at only
5%; compensation assessed under different heads is
on the lower side and he sought for enhancement.
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It is further contended that the Tribunal has fixed
the liability against the owner, though the driver of
the auto-rickshaw was holding valid driving licence
and he sought for a direction to the Insurance
Company to deposit the compensation.
6. Per contra, learned counsel for the Insurance
Company has contended that on the date of
accident, the driver of the auto-rickshaw did not
possess valid driving licence, hence there is a clear
violation of the terms and conditions of the policy
and for this reason, the Insurance Company has
been exonerated from its liability to indemnify the
insured; the compensation assessed is proportionate
to the injuries sustained by the petitioner, there is
no need for enhancement and he supported the
impugned judgment.
7. I have given my anxious consideration to the
arguments addressed on both sides and also perused
the materials on record.
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8. The material on record did point out that on
03.10.2011 at about 09:30 pm the auto-rickshaw in
which the petitioner was inmate had turtled, injuring
him. He was admitted to K.M.C. Hospital, Manipal
from 03.10.2011 to 24.10.2011, again from
21.11.2011 to 26.11.2011, for 28 days.
Ex.P5/wound certificate points out that the petitioner
has suffered type-III open fracture lateral malleolus
left leg. PW-2 Dr. Kiran K.V. Acharya, the treated
Doctor has assessed the disability at 16%, whereas
the Tribunal has taken it at 5%. Having regard to
the nature of injuries and the petitioner being the
auto-rickshaw driver by profession, the disability at
5% is on the lower side. Having regard to the
opinion of PW-2 and avocation of the petitioner, the
whole body disability has to be taken at 7%.
9. The Tribunal has assessed the compensation
as follows:
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Sl. No. Particulars Rs.
1 Pain and agony 30,000
2 Medical expenses 16,000
3 Nourishment 1,000
4 Conveyance 2,000
5 Attendant 1,000
6 Loss of income during 10,000
treatment period
7 Loss of earning capacity 67,200
8 Loss of amenities 10,000
Total 1,37,200
10. Having regard to the nature of injury, pain
and agony suffered, money spent towards treatment
and incidental expenses, the compensation assessed
by the Tribunal towards pain and agony, medical
expenses has to be retained as it is. Rs.5,000/-
towards food and nourishment, Rs.3,000/- towards
conveyance, Rs.6,000/- towards attendant charges
has to be assessed. The petitioner was laid-up for a
period of 4 months; taking the income at Rs.6,500/-
per month, he has to be compensated at
Rs.26,000/- as against Rs.10,000/- assessed by the
Tribunal, Rs.20,000 has to be assessed towards loss
of amenities and discomfort. As regarding loss of
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future earnings is concerned, the income of the
petitioner shall be taken at Rs.6,500/- and '16' is the
multiplier applicable to the age of the petitioner (31
years). Then, loss of future earnings will be
Rs.6,500/- x 12 x 16 x 7% = Rs.87,360/-. If all
these are summed up, it comes to:
Sl. No. Particulars Rs.
1 Pain and agony 30,000
2 Medical expenses 16,000
3 Food and nourishment 5,000
4 Conveyance 3,000
5 Attendant charges 6,000
6 Loss of income during laid-up 26,000
for 4 months
7 Loss of future earnings 87,360
8 Loss of amenities and 20,000
discomfort
Total 1,93,360
10.1. Thereby enhancement comes to
Rs.56,160/-. This is the just compensation that the
petitioner is entitled to in the facts and
circumstances of the case.
11. The Tribunal has fastened the liability
against the owner of the auto-rickshaw on the
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ground that the driver of the auto-rickshaw did not
possess valid driving licence. Ex.P7/Police intimation
which refers that the driver did possess driving
licence in FDL/811/V25/P44 9516, valid upto
10.07.2015 issued by the R.T.O., Udupi. On behalf
of the Insurance Company, the driving licence
particulars have been produced as per Ex.R1 which
points out that the driver of the auto-rickshaw Vijaya
Prakash D'Souza is holding driving licence to drive
the light motor vehicle (non-transport) and he was
authorized to drive auto-rickshaw with effect from
25.11.2002. The driving licence was expired on
24.11.2008, whereas the accident took place on
03.10.2011. On the date of accident, the driving
licence was expired and not renewed. But later in
RDL:5474/11-12, the driving licence was renewed
from 15.10.2011 to 14.10.2014.
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12. The Hon'ble Apex Court in Mukund
Dewangan -Vs.- Oriental Insurance Co. Ltd.1
held that a person holding driving licence to drive
light motor vehicle (non-transport) is also entitled to
drive similar vehicle without any specific
endorsement. Thus, the petitioner is entitled to
drive the auto-rickshaw. As indicated in Ex.R1, the
driver was authorized to drive auto-rickshaw till
24.11.2008. On 03.10.2011, he did not possess
driving licence, but within 12 days he got renewed
his driving licence from R.T.O., Udupi and it is valid
up to 14.10.2014 from 15.10.2011. The Insurance
Company itself admits that the driver did hold the
driving licence, but it was expired. Hence, on the
date of accident, though the driver did not possess
valid driving licence, he had a vast experience of
driving an auto-rickshaw and in view of the law laid
down in Mukund Dewangan's case (supra), the
Insurance Company can avoid its liability, but at the
(2017) 14 SCC 663
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same time, the petitioner cannot be forced to go
against the owner of the auto-rickshaw as the
principles of pay and recovery is applicable to the
case on hand. Hence, the finding recorded by the
Tribunal ignoring these aspects is erroneous and
Insurance Company has to pay the compensation
and to recover it from the owner.
13. As regarding rate of interest is concerned,
the Tribunal has awarded the interest at 8% p.a.
Since the petitioner is challenging the liability aspect
that the Insurance Company has to pay, the rate of
interest at 8% is on the higher side. No banks will
offer 8% interest in the year 2011 and even today.
In this regard, the Division Bench of this Court in
Ms. Joyeeta Bose and Ors. -Vs- Venkateshan. V
and Ors.2 with reference to Section 149(1) of Motor
Vehicles Act, 1988, Rule 253 of Karnataka Motor
Vehicles Rules, 1989 and Section 34 of Civil
M.F.A.No.5896/2018 c/w M.F.As.No.4444/2018 and 4659/2018
(MV), decided on 24.08.2020
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Procedure Code, at Para 52 has laid down principles
regarding award of interest, it reads thus:
"52.Thus, under Section 34 of CPC being
squarely applicable to the interest awarded by the
tribunal and Section 34 empowering the tribunal to
award pendente lite interest and discretion being
vested with the Court/tribunal to award interest
from the date of suit or petition is to the maximum
extent of 6% p.a. or in other words, not exceeding
6% p.a., the contention raised by the learned
Advocates appearing for the Insurance Company
deserves to be accepted and accordingly, it is
accepted. . . . . . . . . . . ."
13.1. In view of the settled principles, it is
reasonable to award interest at 6% p.a. on the total
compensation in the facts and circumstances of the
case. 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 petitioners are entitled to total
compensation of Rs.1,93,360/-.
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iv) The Insurance Company is directed to
deposit the compensation with 6%
interest p.a. from the date of petition
till the date of deposit.
v) The Insurance Company is directed to
deposit the compensation within eight
weeks from the date of receipt of
certified copy of this judgment and
entitled to recover the same from the
owner of the vehicle in the same
proceedings.
vi) Amount in deposit, if any, shall be
transmitted to the Tribunal along with
records forthwith.
Sd/-
JUDGE
PA
CT:HS
