Karnataka High Court
Sri Shivagangaiah vs Sri K R Ramesh on 4 March, 2024
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NC: 2024:KHC:9039
MFA No. 6139 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
MISCELLANEOUS FIRST APPEAL NO. 6139 OF 2017
(MV-I)
BETWEEN:
SRI SHIVAGANGAIAH
S/O GANGAIAH
R/O SASALU AT POST
GULUR HOBLI, TUMKUR TALUK
TUMKUR DISTRICT - 572101
...APPELLANT
(BY SRI. RAMESH K R.,ADVOCATE)
AND:
1. SRI K R RAMESH
S/O RAMASWAMY
R/A KALKERE VILLAGE
DASARAHALLI POST
Digitally
KORATAGERE TALUK
signed by
SUVARNA T TUMKUR DISTRICT - 572101
Location:
HIGH 2. THE NEW INDIA ASSURANCE CO LTD
COURT OF OPP.RAMA MANDIRA
KARNATAKA GENERAL KARYAPPA ROAD
(BAR LINE ROAD)
K R EXTENSION, TUMKUR-572101
REP BY ITS BRANCH MANAGER
...RESPONDENTS
(BY SRI. R JAI PRAKASH.,ADVOCATE FOR R2;
R-1 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED13.12.2016 PASSED IN MVC
NO.173/2016 ON THE FILE OF THE II ADDITIONAL DISTRICT
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MFA No. 6139 of 2017
JUDGE, MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the award passed in MVC.No.173/2016
dated 13.12.2016, the claimant is before this court
seeking enhancement of the compensation as well as
questioning the liability fixed on the owner of the vehicle.
2. The case of the claimant is that on 08.12.2015 at
about 8.00 a.m. he along with his relative returning to his
house, at that time a motorcycle driven by its driver came
in a rash and negligent manner came from back side and
dashed him and caused the accident. As a result, he had
sustained two fracture injuries i.e., grievous fracture of (L)
Ulna and grievous fracture of (L) tibia. The claim petition
was filed seeking compensation of an amount of
Rs.6,00,000/-. According to the Doctor PW-2, the
claimant had sustained 30% disability to the limb and
10% to the whole body. The court below had taken 5% as
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the disability. Then coming to the income, according to
the claimant he was working as a carpenter and earning
an amount of Rs.15,000/-. The court below had taken
Rs.6,000/- as income and granted the compensation as
per the table given below:
Heads Compensation
Awarded
1. Pain and Sufferings : Rs. 40,000/-
2. Medical Expenses : Rs. 38,333/-
3. Food and Nourishment : Rs. 5,000/-
4. Transportation charges : Rs. 5,000/-
5. Loss of amenities : Rs. 30,000/-
6. Loss of Future Income : Rs. 50,400/-
7. Attendant charges : Rs. 1,200/-
Loss of income during :
8. Rs. 18,000/-
the laid up period
TOTAL : Rs. 1,87,933/-
3. When it comes to the liability, the court below has
observed that the driver of the offending vehicle was not
having valid and effective driving license as on the date of
the accident. The insurance company is absolved from the
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liability and the respondent no.1 is held liable to pay the
compensation.
4. Learned counsel appearing for the appellant
submits that the driver of the offending vehicle was having
a license to drive a vehicle without gear and also LMV. It
is submitted that in the light of law laid down in the case
of National Insurance Company Ltd., -Vs- Swaran
Singh & others1 still the insurance company is liable to
pay the compensation as the appellant is the third party to
the insurance policy and liable to recover the same from
the owner of the vehicle. It is submitted that the court
below holding the owner of the vehicle liable and absolving
the insurance company is contrary to the settled law.
5. When it comes to the compensation, the learned
counsel submits that it is the case of the claimant that he
is earning an amount of Rs.15,000/-, the court below
ought not to have taken an amount of Rs.6,000/-. Further
( 200 4) 3 SC C 297
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when the doctor had given the evidence that he had
sustained 10% disability to the whole body, the court
below without any discussion & without any reason had
taken 5% as disability. He submits that under the head of
pain and suffering, loss of income during the laid up
period, the amounts that were granted by the court below
were not reasonable.
6. Learned counsel for the insurance company
submits that the court below had rightly considered the
evidence and granted the compensation. When the case
of the claimant is that he is earning an amount of
Rs.15,000/- per month there is no evidence in that regard,
the court had rightly taken Rs.6,000/- as income. Learned
counsel submits that no grounds are made for
enhancement of the compensation.
7. Having heard the learned counsel on either side,
perused the entire material on record. In this case, the
first issue that draws attention of this court is about the
liability. There is no dispute about the fact that driver of
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the offending vehicle was having a driving license to drive
a vehicle without gear, but he was driving a vehicle with
gear. If there is any violation of the terms and conditions
of the policy and the person who is driving the vehicle is
not having the driving license, in those cases, as per the
law laid down in Swaran Singh's case referred supra
insurance company is liable to pay and recover the same
from the owner of the vehicle. In view of the above
discussion this court holds that insurance company is
liable to pay the compensation and recover the same from
the owner of the vehicle.
8. Then coming to the compensation, there is no
evidence with regard to the income of the claimant.
According to the claimant, he was doing carpenter job and
earning an amount of Rs.15,000/-. Considering the chart
prepared by the Karnataka State Legal Services Authority
on national income, this court is taking the income at
Rs.9,000/-, as the accident is of the year 2015. Then
coming to the disability, the court below without any basis
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had taken 5% as disability. When the doctor had given
the evidence and also categorically mentioned how he
arrived at 10% disability, the court below without any
reason shouldn't have taken 5%. Hence this court is
taking 10% as disability. Under the head of loss of future
income an amount of Rs.1,51,200/- (Rs.9,000/- x 12 x
14 x 10/100) is granted. Then towards pain and
suffering, as he had sustained two fractures, this court is
granting an amount of Rs.60,000/-. Towards medical
expenses, food and attendant charges, transport, loss of
amenities, the court below had reasonably granted the
amounts and no interference is called for. When it comes
to loss of income during the laid up period, considering the
income at Rs.9,000/-, for three months he was under
rest, this court is granting an amount of Rs.27,000/-.
9. In the light of the law laid down by the Hon'ble
Supreme Court in the case of V.MEKALA vs. M.
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MALATHI AND ANOTHER2, the claimant is entitled for an
amount of Rs.10,000/- towards Legal Expenses.
10. The claimant is therefore, entitled to the
compensation under the following heads:
Heads Compensation Compensation
Awarded by Awarded by
Tribunal this Court
1. Pain and Sufferings : Rs. 40,000/- 60,000/-
2. Medical Expenses : Rs. 38,333/- 38,333/-
Food and
3. : Rs. 5,000/- 5,000/-
Nourishment
Transportation :
4. Rs. 5,000/- 5,000/-
charges
5. Loss of amenities : Rs. 30,000/- 30,000/-
6. Loss of Future Income : Rs. 50,400/- 1,51,200/-
7. Attendant charges : Rs. 1,200/- 1,200/-
Loss of income during :
8. Rs. 18,000/- 27,000/-
the laid up period
9. Legal Expenses : Rs. 00/- 10,000/-
TOTAL : Rs. 1,87,933/- 3,27,733/-
Enhancement : Rs. 1,39,800/-
11. Accordingly, the appeal filed by the claimant is
partly allowed, enhancing the compensation amount
(2014) 11 SCC 178
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from Rs.1,87,933/- to Rs.3,27,333/-. The Insurance
company is liable to pay the compensation and recover the
same from the owner of the vehicle.
ORDER
i) The Appeal is partly allowed enhancing the
compensation amount from Rs.1,87,933/- to
Rs.3,27,733/-. The enhanced amount is
Rs.1,39,800/-.
ii) The Insurance company is liable to pay the
compensation and recover the same from the
owner of the vehicle.
iii) The enhanced amount shall carry interest at
6% per annum from the date of petition till the
date of realization.
iv) The respondent - insurance company shall
deposit the amount within a period of eight
weeks from the date of receipt of copy of the
judgment. On such deposit, the claimant is
entitled to withdraw the entire amount without
furnishing any security.
v) Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
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copy of the order passed by this Court forthwith
without any delay.
vi) No costs.
Pending miscellaneous petitions, if any, shall stand
closed.
SD/-
JUDGE
TS
