Karnataka High Court

Shivareddy vs Nagnath And Anr on 3 June, 2024

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                                                       NC: 2024:KHC-K:3535
                                                        MFA No. 201850 of 2018




                               IN THE HIGH COURT OF KARNATAKA,

                                       KALABURAGI BENCH

                             DATED THIS THE 3RD DAY OF JUNE, 2024

                                              BEFORE
                           THE HON'BLE MR. JUSTICE UMESH M ADIGA


                       MISCL. FIRST APPEAL NO.201850 OF 2018 (MV-I)
                      BETWEEN:

                      SHIVAREDDY S/O NAGAREDDY MUDBI
                      AGE: 56 YEARS,
                      OCC: AGRICULTURE & MILK VENDING BUSINESS,
                      R/O. WANJARI TOWN HUMNAGAD,
                      TQ. HUMANABAD, DIST. BIDAR

                                                                   ...APPELLANT
                      (BY SRI BABU H. METAGUDDA, ADVOCATE)

                      AND:

                      1.   NAGNATH S/O P. NAGARAGOJA
Digitally signed by        AGE: MAJOR, OCC: OWNER OF INDICA CAR,
KHAJAAMEEN L
MALAGHAN                   R/O HARIBHAK NAGAR LATUR &,
Location: HIGH             DIST: LATUR (MS)-584101.
COURT OF
KARNATAKA
                      2.   THE DIVISIONAL MANAGER
                           NATIONAL INSURANCE CO. LTD DIVISIONAL OFFICE,
                           BILGUNDI COMPLEX NEAR MINI VIDHAN SOUDHA,
                           STATION ROAD, KALBURAGI-585101.
                                                               ...RESPONDENTS

                      (BY SRI PRAKASH MAISALAGI, ADVOCATE FOR,
                       SRI SANJAY M. JOSHI, ADVOCATE FOR R2;)
                       VIDE ORDER DATED 01.07.2021 NOTICE TO R1 IS HELD
                       SUFFICIENT.
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                                   NC: 2024:KHC-K:3535
                                    MFA No. 201850 of 2018




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO CALL FOR RECORDS IN MVC NO.547/2015 ON THE
FILE OF THE MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL
AT- HUMNABAD. B) ALLOW THIS APPEAL AND MODIFY THE
JUDGMENT AND AWARD DATED 30.06.2018 PASSED IN MVC
NO.547/2015 BY THE MOTOR VEHICLE ACCIDENT CLAIMS
TRIBUNAL    AT-   HUMNABAD.    AND   ENHANCING     THE
COMPENSATION FROM RS.5,15,480/- WITH 6% INTEREST TO
RS.12,00,000/- WITH 12%     INTEREST. C). ALLOW THIS
APPEAL AND DIRECT THE RESPONDENT NO.2 INSURANCE
COMPANY TO PAY THE COMPENSATION TO THE CLAIMANT. D).
GRANT SUCH OTHER AND FURTHER RELIEF'S AS THIS HON'BLE
COURT DEEMS FIT, IN THE CIRCUMSTANCES OF THE CASE.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This is claimant's appeal, against the judgment and

award passed in MVC No.547/2015 dated 30.06.2018 on

the file of the MACT-Humnabad (hereinafter referred to as

'the Tribunal' for short) for enhancement as well as fixing

the liability on insurer to pay the compensation.

2. Brief facts of the case are that on 12.02.2015 at

9:00 a.m. claimant while going by walk near Balaji temple

at Humnabad, he met with an accident due to rash and

negligent driving of TATA Indica car bearing Reg.No.MH-

12/CD-4262 by its driver. As a result of which he

NC: 2024:KHC-K:3535

sustained fracture of right femur and other injuries. He

had taken treatment in government hospital, Humnabad

and Umarga hospital at Bidar. He had spent more than

Rs.3,00,000/- towards medical expense. He was aged

about 53 years at the time of accident. He was

agriculturist and milk vendor and earning Rs.10,000/- per

month. Due to injuries sustained in the accident, he has

been suffering from permanent disability. With these

reasons prayed to award compensation of Rs.12,00,000/-.

3. Respondents have denied the contents the

claim petition and prayed for dismissal of claim petition.

4. From the rival contentions of the parties, the

Tribunal had framed the necessary issues.

5. The claimant to prove his contention examined

PWs.1 and 2 and got marked Exs.P.1 to P86. Respondent

No.2 examined RW.1 and got marked Ex.R1.

6. The Tribunal after hearing both the parties and

appreciating the evidence available on record, by the

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impugned judgment awarded the following amount of

compensation.

          Sl.               Heads                  Amount
          No.
           1.    Towards pain and suffering         Rs.25,000/-
           2.    Towards Attendant Charges,          Rs.2,500/-
                 Food and conveyance
          3.     Towards Medial Expenses            Rs.44,300/-
          4.     Towards Loss of Future           Rs.4,27,680/-
                 Income
          5.     Amenities and Nutrition            Rs.10,000/-
          6.     Towards Loss of Income              Rs.6,000/-
                 during the Period
                                         Total   Rs.5,15,480/-

7. The Tribunal held that driver of the offending

car had no valid and effective driving licence at the time of

accident. Therefore, fastened the liability on respondent

No.1 to pay the compensation and exonerated respondent

No.2.

8. I have heard the arguments of learned counsel

for both the parties.

9. Learned counsel for appellant contends that the

amount of compensation awarded by the Tribunal is not

NC: 2024:KHC-K:3535

just and reasonable. The income of the claimant is not

properly appreciated. The amount of compensation

awarded on other heads is also on the lower side.

Therefore, prayed for enhancement of compensation. It is

further submitted by the learned counsel for the appellant

that even if driver of the offending vehicle did not have

effective and valid driving licence, then Tribunal ought to

have directed the insurer to pay the compensation and

recover it from the owner of the vehicle. The claimant is a

third party and he is unaware about the violation of terms

and conditions of insurance policy. It is between

respondent Nos.1 and 2 and his right cannot be denied

because of violation of contract. Hence, prayed to allow

the appeal.

10. Learned counsel for respondent No.2 submits

that the Tribunal has considered the materials available on

record properly and awarded compensation as well as

fastened the liability on the owner of the vehicle.

NC: 2024:KHC-K:3535

Therefore, it does not call for any interference by this

Court.

11. The claimant had sustained fracture of right

femur, right scapula and fracture of neck of left scapula

along with other simple injuries. PW.2 in his evidence has

assessed disability to an extent of 54%. The Tribunal had

accepted the said evidence and held that claimant has

been suffering from disability to an extent of 54% to whole

body. The said findings are not challenged by the

respondents.

12. The age of the injured as well as multiplier

applicable is not disputed. Admittedly there is no legal

evidence to accept that injured had earnings of Rs.6,000/-

per month. On the basis of the notional income, the

Tribunal has assessed income at Rs.6,000/- per month. It

needs to be re-determined as per the chart of income

prepared by the KSLSA. Accordingly income of claimant is

considered as Rs.8,000/- per month. On the basis of the

said calculation, amount of compensation under the head

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loss of future earning capacity due to permanent disability

is to be assessed as under:

Rs.8,000/- x 12 x 11 x 54% = Rs.5,70,240/-.

13. The amount of compensation awarded under

the head pain and suffering, medical expenses, loss of

amenities, loss of income during laid up period needs to be

enhanced. Accordingly, the following amount of

compensation is awarded.

Sl.             Heads                 Amount           Amount
No.                                 awarded by       awarded by
                                    the Tribunal      this court
 1.   Pain and suffering               Rs.25,000/-      Rs.40,000/-
 2.   Attendant charges,                Rs.2,500/-      Rs.20,000/-
      conveyance and special
      diet
 3.   Medial Expenses                  Rs.44,300/-      Rs.44,300/-
 4.   Loss of future earning         Rs.4,27,680/-    Rs.5,70,240/-
      capacity due to permanent
      disability.
 5.    Loss of Amenities               Rs.10,000/-       Rs.25,000/-
 6.   Loss of income during the         Rs.6,000/-       Rs.24,000/-
      treatment period
      (Rs.8,000/- x 3)
                            Total   Rs.5,15,480/-    Rs.7,23,540/-
                  Enhancement               Rs.2,08,060/-

                                   NC: 2024:KHC-K:3535

14. The claimant is entitled for enhancement of

compensation in a sum of Rs.2,08,060/- along with

interest at the rate of 6% per annum.

15. In view of the law laid down by the Hon'ble

Apex Court as well as by this Court that any violation of

terms and conditions of policy of the insurance the insurer

shall pay the amount to third party and recover from the

owner of vehicle. In this case the driver of the offending

vehicle did not have valid and effective driving licence to

drive the vehicle at the time of accident. Both driver as

well as owner of the vehicle did not produce the driving

licence before the Tribunal to prove that he had licence to

drive the said class of vehicle. On the contrary, the driver

of the said car was charge sheeted for not holding valid

and effective driving licence.

16. The learned counsel for the appellant submits

that RW.1 in his cross-examination admits that the driver

of the car was holding valid licence to drive the said class

of vehicle. In examination-in-chief he denied that the

NC: 2024:KHC-K:3535

driver had valid and effective driving licence. Therefore,

evidence of RW.1 is in this regard is not consistent.

However, even in the prosecution papers as already stated

above, there is allegation against the driver that he was

not holding the valid driving licence. To avoid these

controversies the owner of the vehicle could have

produced the driving licence of the driver of the said

vehicle. Under these circumstances, it is violation of terms

and conditions of policy of insurance by the owner of the

vehicle.

17. The learned counsel for the appellant has relied

on judgment in the case of Gurmail Singh vs Bajaj

Allianz General Insurance Co. Ltd. and another1. In

this case the Hon'ble Apex Court held that if the driver of

the offending vehicle was not holding valid and effective

driving licence, in that event, insurer has to pay the

compensation and recover the same from the owner of the

vehicle. The principle law laid down in the above case is

2019 ACJ 713

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NC: 2024:KHC-K:3535

applicable to the facts of the present case. The insurer

shall pay the compensation and in an appropriate

proceedings he can recover the same from the owner by

proving the violation of policy condition.

18. For the reasons discussed above, I pass the

following:

ORDER

i. The appeal is allowed in part.

ii. The impugned judgment and award passed by

the MACT, Humnabad, in MVC.No.547/2015

dated 30.06.2018 is modified;

a) The claimant is entitled for total

compensation of Rs.7,23,540/- as

against Rs.5,15,480/- awarded by the

Tribunal. The claimant is entitled for

enhancement of compensation of

Rs.2,08,060/- with interest on the

enhanced amount of compensation at the