Karnataka High Court
Deva S/O Narasa Gouda vs Sripad S/O Raju Pujari on 5 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
-1-
NC: 2024:KHC-D:273
MFA No. 25520 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.25520 OF 2011 (MV-I)
BETWEEN:
DEVA S/O. NARASA GOUDA,
AGE: 41 YEARS, OCC: AGRICULTURIST,
R/O: ADULKOLA, KAIRGADDE, MANKI,
HONAVAR, NOW AT: VAKKALKERI,BINAGA,
KARWAR, DIST. UTTARA KANNADA.
...APPELLANT
(BY SRI. GANAPATI M.BHAT, ADVOCATE)
AND:
1. SRIPAD S/O. RAJU PUJARI,
REGISTERED OF OWNER OF TEMPO
BEARING REG. NO.KA-30/0669,
R/O: MELIN MANNIGE, HONAVAR,
DIST. UTTARA KANNADA.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
Digitally DIVISIONAL OFFICE, KAIKINI ROAD,
signed by KARWAR, DIST. UTTARA KANNADA.
BHARATHI
BHARATHI H M (RESPONDENTS BEFORE THE M.A.C.T)
HM Date:
2024.01.18 ...RESPONDENTS
12:30:04
+0530 (BY SRI. N.R. KUPPELUR, ADVOCATE FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 07.09.2010 PASSED IN MVC.NO.52/2009 ON THE
FILE OF THE MEMBER 2ND ADDL. MACT, KARWAR, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC-D:273
MFA No. 25520 of 2011
JUDGMENT
The present appeal is directed against the judgment
and award passed in MVC No.52/2009 dated 07.09.2010
on the file of II Additional Motor Accident Claims Tribunal,
Karwar (hereinafter referred to as 'Tribunal' for brevity).
2. Facts in brief which are utmost necessary for
disposal of this case are as under:
2.1 Petitioner being the rider of motorcycle bearing
No.KA-47/E-3710 while proceeding on the motorcycle on
12.11.2008 from Jinnad to Kairgadde, he met with an
accident because of rash and negligent driving of tempo
bearing No.KA-30/0669 and he suffered grievous
injuries. He was shifted to hospital and he has taken
treatment and therefore, filed a claim petition seeking
grant of compensation.
2.2 The claim petition was resisted by the
respondents by filing necessary written statements.
NC: 2024:KHC-D:273
2.3 The Tribunal after raising necessary issues and
additional issue, recorded the evidence of the claimant and
the doctor who treated the claimant and also considered
the documentary evidence placed on record by the parties
and the evidence of RW.1 and RW.2 and allowed the claim
petition in part granting compensation in a sum of
Rs.1,37,800/- and liability is fixed on to the owner taking
note of the fact that rider of the tempo did not possess
proper driving licence.
3. Being aggrieved by the same, the claimant has
preferred the present appeal.
4. Reiterating the grounds urged in the appeal
memorandum, Sri.Ganapati M Bhat, learned counsel for
the appellant vehemently contended that the quantum of
compensation adjudged by the Tribunal is on lower side
and sought for allowing the appeal.
5. He further contended that the liability is to be
fixed on the Insurance Company following the principles of
NC: 2024:KHC-D:273
law enunciated in Mukund Dewangan vs. Oriental
Insurance Company Limited reported in AIR 2017 SC
3668 and sought for allowing the appeal.
6. Per contra, Sri.N.R.Kuppelur, learned counsel
representing the Insurance Company opposed the appeal
grounds and submits that the Tribunal has rightly awarded
the quantum of compensation and sought for dismissal of
the appeal.
7. Insofar as fastening of liability is concerned, he
submits that suitable orders be passed in view of the
principles of law enunciated in Mukund Dewangan supra.
8. In view of the rival contentions, this Court
perused the material on record meticulously. On such
perusal of the material on record, it is found that the
accidental injuries sustained by the claimant are
established by placing necessary evidence on record.
9. The Tribunal has awarded compensation in a
sum of Rs.1,37,800/- under the following heads:
NC: 2024:KHC-D:273
A. Towards pain and Agony for two fractures Rs.40,000/-
injuries and 3 simple injuries
B. Towards medical charges, attendant Rs.36,000/-
charges, food and nourishment
C. Towards loss of income during the course Rs.9,000/-
of treatment
D. Towards loss of future income i.e. Rs.37,800/-
3,000 X 7% X 12 X 15
E. Towards conveyance Rs.10,000/-
F. Towards loss of future unhappiness Rs.5,000/-
Total Rs.1,37,800/-
10. The claimant has now sought for enhancement
of compensation. So far as the income that has been
taken by the Tribunal towards loss of future income is
Rs.3,000/- per month. For the accidental injury of the year
2008, notional monthly income is to be assessed at
Rs.4,250/-. Further, the claimant has sustained
comminuted fracture, as such the disability is reassessed
at 10%. Therefore, a case is made out for reassessment of
compensation under the head loss of future income. The
same is reassessed as under:
NC: 2024:KHC-D:273
Rs.4,250 (income) x 12 (months) x 15 (multiplier) x 10%
(disability) = Rs.76,500/-
11. Since the monthly income is assessed at
Rs.4,250/-, the claimant is entitled to Rs.12,750/-
(Rs.4,250 x 3 months) towards loss of income during laid
up period. The Tribunal has awarded Rs.5,000/- towards
future unhappiness. Considering the nature of injuries
sustained by the claimant, granting Rs.30,000/- under the
head of loss of amenities would meet the ends of justice.
The compensation awarded by the Tribunal under other
heads remained unaltered. Therefore, the claimant would
be entitled to Rs.2,05,250/-.
12. This would take this Court to the next question
as to who has to pay the compensation. Admittedly, the
driver of the vehicle was having licence to drive light
motor vehicle. However, there is no proper endorsement
in the licence that he can drive tempo goods vehicle.
Following the dictum in Mukund Dewangan supra, the
Insurance Company is liable to pay the compensation.
NC: 2024:KHC-D:273
13. The Tribunal has attributed 60% of contributory
negligence on the driver of the tempo and 40% on the
rider of motorcycle taking note of the spot sketch. Since
the charge sheet is filed on the driver of the tempo and no
charge sheet has been filed against the rider of the
motorcycle, taking into consideration the sketch where the
motorcycle is being shown in the sketch, it would be
appropriate to direct 25% contributory negligence to be
attributed to the rider of the motorcycle even in the
absence of filing of charge sheet upon the rider of the
motorcycle and 75% to be attributed to the driver of the
tempo.
14. Accordingly, the following order is passed:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award stands
modified to the above extent.
NC: 2024:KHC-D:273
(iii) As against compensation of Rs.1,37,800/-,
the claimant would be entitled to
Rs.2,05,250/- with interest at 6% p.a. from
the date of petition till realisaiton.
(iv) Out of the adjudged compensation, the
Insurance Company is directed to pay 75%
of compensation.
(v) Four weeks time is granted to the Insurance
Company to make the payment.
(vi) No order as to cost.
Sd/-
JUDGE
SH
