Karnataka High Court
Monappa vs Husen Sab And Anr on 3 July, 2024
-1-
NC: 2024:KHC-K:4546
MFA No. 203382 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 3 RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCL. FIRST APPEAL NO. 203382 OF 2023 (MV-I)
BETWEEN:
MONAPPA S/O KASHIPATI PANCHAL
AGE: 49 YEARS, OCC: NIL,
R/O. THANAGUNDI, TQ. AND DIST. YADGIRI,
PRESENTLY R/AT YADGIRI
...APPELLANT
(BY SRI KRUPA SAGAR PATIL, ADVOCATE)
AND:
1. HUSEN SAB S/O MOULANA SAB
AGE: 48 YEARS, OCC: OWNER
OF AUTO BEARING NO KA.33.A.6451,
R/O. YELHERI VILLAGE,
TQ. AND DIST. YADGIRI.
2. THE MANAGER
Digitally signed by SHRIRAM GENERAL INSURANCE COMPANY LIMITED,
SHIVALEELA
DATTATRAYA UDAGI E-8 RIICO INDUSTRIAL AREA SITAPUR,
Location: HIGH JAIPUR-302022, RAJASTHAN.
COURT OF ...RESPONDENTS
KARNATAKA
(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE FOR R2;
R1 IS SERVED )
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO,
MODIFY THE JUDGMENT AND AWARD DATED 21.06.2023, PASSED
BY THE SENIOR CIVIL JUDGE AND MACT-II, YADGIRI IN FILE
BEARING MVC NO. 41/2019 BY ENHANCING THE COMPENSATION
AS PRAYED FOR AND BY DIRECTING THE RESPONDENT NO.2
(INSURANCE COMPANY) TO PAY THE COMPENSATION TO THE
APPELLANTS AND SAME MAY BE RECOVERED FROM THE OWNER OF
THE OFFENDING VEHICLE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-2-
NC: 2024:KHC-K:4546
MFA No. 203382 of 2023
JUDGMENT
This is claimant's appeal for enhancement of
compensation awarded by the Senior Civil Judge & MACT-
II, Yadgiri (hereinafter referred to as 'the Tribunal' for
short) in MVC No.41/2019 dated 21.06.2023.
2. Though this appeal is slated for admission, with
the consent of both the side, taken up for final disposal.
3. For the sake of convenience, the parties are
referred to as per their ranks before the Tribunal.
4. Brief facts of case are that on 16.01.2018 at
10:30 a.m. claimant was traveling in an auto rickshaw
bearing Reg.No.KA-33/A-6451 from Yadgiri to Gunj. The
driver of the said auto drove the said vehicle in a rash and
negligent manner. As a result of which, he dashed against
a cow and in the impact, petitioner had sustained fracture
of shaft of left femur and other injuries. He had taken
treatment in R.R.Shaha Hospital, Kalaburagi and he had
spent Rs.1,65,000/- towards treatment.
NC: 2024:KHC-K:4546
5. It is further case of the claimant that he was
aged about 45 years and he was earning Rs.10,000/- per
month by agriculture as well as coolie work. Due to the
injuries sustained in the accident, he has been suffering
from permanent disability. With these reasons, the
claimant prayed to award compensation of Rs.8,95,000/-.
6. Respondent/insurer denied contents of the
claim petition and prayed for dismissal of the claim
petition.
7. From the rival contentions of both the parties,
the Tribunal had framed the necessary issues for its
determination.
8. The claimant to prove his case examined PWs.1
and 2 and got marked Exs.P1 to 13 and closed his
evidence. Respondent No.2 examined RW.1 and got
marked Exs.R1 to 4.
9. After hearing both the parties and appreciating
the evidence available on record, the Tribunal by its
NC: 2024:KHC-K:4546
impugned judgment, awarded the following amount of
compensation.
Sl.no. Heads Amount
1. Pain, Shock and sufferings Rs.30,000/-
2. Food and nourishment Rs.20,000/-
3. Attendant Charges Rs.10,000/-
4. Travelling Expenses Rs.10,000/-
5. Medical expenses Rs.71,753/-
6. Loss of income during laid Rs.18,000/-
period
7. Loss of future income Rs.1,27,400/-
8. Future medical expenses Rs.20,000/-
Total Rs.3,07,153/-
The Tribunal directed the owner to pay amount of
compensation since he had no valid and effective driving
licence to drove the said class of vehicle.
10. Heard arguments of learned counsel for the
appellant and respondent No.2.
11. The contentions of the claimants that the
Tribunal had not considered the income as well as
disability properly and amount of compensation awarded
on all heads are meager and moreover it is not in dispute
that offending vehicle was insured and having policy. In
NC: 2024:KHC-K:4546
view of the same, he relies on the judgment of the Hon'ble
Apex Court in the case of Pappu and others vs. Vinod
kumar lamba and another1 and another judgment of
this Court in the case of Priyanka @ Pramila vs. Sanwar
Khan and Ors2, holding that in such event the insurer has
to pay compensation and recover the same from the
owner of the vehicle. With these reasons, prayed to allow
the appeal by enhancing the compensation amount.
12. The learned counsel for respondent No.2
submits that the claimant has stated that he was earning
Rs.10,000/- per month by doing coolie work. On the basis
of the notional income Chart prepared by the KSLSA,
notional income cannot be assessed as Rs.11,750/-, which
is more than the fact stated by the claimant. The disability
stated by the doctor is 22% towards limb. 1/3rd of same
has to be taken when disability has to be calculated to
whole body, then disability of the claimant is less than 7%.
However, the Tribunal has taken 9%, which needs to be
(2018) 3 SCC 208
MFA 201982/2019 and connected matters DD 25.04.2024
NC: 2024:KHC-K:4546
corrected. With these reasons prayed to dismiss the
appeal.
13. The following question arises for determination.
"Whether the claimant is entitled for
the enhancement of compensation?
14. The fact of accident and claimant had sustained
injuries in the said vehicle accident are not in dispute. The
offending vehicle having a package policy and driver of the
said vehicle had no valid and effective driving licence at
the time of accident is also not seriously disputed.
Therefore, there is no need to interfere with the said
findings.
15. Though the learned counsel for the respondent
seriously disputed regarding disability taken by the
Tribunal but respondent has not filed appeal challenging
impugned judgment. The learned counsel for the insurer
submits that since petition against respondent
NC: 2024:KHC-K:4546
No.2/insurer was dismissed by the Tribunal, it has not filed
appeal.
16. The Tribunal has taken age of the claimant as
45 years, applied multiplier is '13' and taken income as
Rs.9,000/- per month. As per the case of the claimant, he
was earning Rs.10,000/- per month. As the chart prepared
by the KSLSA, income of an victim of the accident of the
year 2019 is Rs.11,750/- since the claimant himself has
stated that he was earning Rs.10,000/- per month, it shall
be considered as Rs.10,000/- per month.
17. PW.2 in his evidence has mentioned in detail
about difficulties of the claimant and assessed disability to
the lower limb as 22%, when it is compared to the whole
body it is around 1/3rd of the total disability to the body.
Accordingly, the disability affecting his earning capacity is
taken as 10%. On the basis of the above said figures, the
loss of future earning capacity due to permanent disability
is assessed. The income of the claimant is taken as
Rs.10,000/- per month, consequently the loss of income
NC: 2024:KHC-K:4546
during laid up period is also to be enhanced looking to the
injuries sustained in the accident, at least for a period of
two to three months he might not be in a position to work,
which needs to be considered.
18. The learned counsel for the appellant submits
that no amount of compensation is awarded towards loss
of amenities, which needs to be considered.
19. For the aforesaid reasons, the claimant is
entitled for enhancement of compensation as under:
Sl. Heads Amount
No. awarded by this
Court
1. Pain and sufferings Rs.30,000/-
2. Food and nourishment Rs.20,000/-
3. Attendant Charges Rs.10,000/-
4. Travelling Expenses Rs.10,000/-
5. Medical expenses Rs.71,753/-
6. Loss of income during laid period Rs.30,000/-
7. Loss of future earning capacity Rs.1,40,400/-
due to permanent disability
(10,000x12x13x9%)
8. Future medical expenses Rs.30,000/-
9. Loss of amenities Rs.30,000/-
Total Rs.3,72,153/-
Amount awarded by the Tribunal Rs.3,07,153/-
Enhancement Rs.65,000/-
NC: 2024:KHC-K:4546
20. The claimant is entitled for enhancement of
compensation of Rs.65,000/- along with interest at the
rate of 6% per annum from the date of petition till its
realization.
21. It is the case of respondents that respondent
No.1 was driving the auto at the time of accident and he
had no valid and effective driving licence. In the case of
Pappu vs. Vinod Kumar Lamba (supra) and Priyanka
@ Pramila vs Sanwar Khan (supra) held that if policy of
insurance is in force, the driver of the offending vehicle
had no valid and effective driving licence, then insurer
shall pay the compensation to the third party and recover
the same from the insured. The principle of law could be
made applicable to the facts of the present case.
22. For the aforesaid discussion, I answered the
above question partly in the affirmative and pass
following:
- 10 -
NC: 2024:KHC-K:4546
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and award passed by
the Senior Civil Judge & MACT-II, Yadgiri in
MVC No.41/2019 dated 21.06.2023 is
modified;
(a) An amount of Rs.65,000/- is enhanced
in addition to compensation awarded by
the Tribunal with interest at the rate of
6% p.a. on the enhanced amount of
compensation from the date of petition
till realization of said amount.
iii. Respondent No.2 - insurance company shall
deposit the said amount with interest before
the Tribunal within a period of eight weeks
from the date of receipt of a copy of this order
and at liberty to recover the same from the
- 11 -
NC: 2024:KHC-K:4546
owner of the vehicle in appropriate
proceedings.
iv. The orders passed by the Tribunal regarding
deposit and release are not disturbed.
v. The registry is directed to send back the Trial
Court records along with copy of this
judgment.
Sd/-
JUDGE
SDU
CT:PK
