Karnataka High Court
Shri. Mallappa Mallappa Rajagatti vs Shri Vijay Somappa Kadabi on 30 May, 2024
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NC: 2024:KHC-D:7208
MFA No. 103529 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 103529 OF 2022 (MV-I)
BETWEEN:
SHRI. MALLAPPA MALLAPPA RAJAGATTI
AGE: 41 YEARS, OCC: MANSORY AND GROCERY
BUSINESS, (NOW NIL), R/O. GAJAMANAL,
TQ. BAILHONGAL, DIST. BELAGAVI-591121.
...APPELLANT
(BY SRI. VIJAYKUMAR KOTIN, ADVOCATE)
AND:
1. SHRI. VIJAY SOMAPPA KADABI,
AGE: 40 YEARS, OCC: BUSINESS,
R/O. HANABARATTI, TQ: BAILHONGAL,
DIST. BELAGAVI-591121.
2. THE DIVISIONAL MANAGER,
Digitally THE NATIONAL INSURANCE COMPANY LTD,
signed by
MANJANNA E 1732, RAMDEV GALLI, KELKAR BAGH.
Location: RAVIWAR PETH. BELAGAVI-590002.
HIGH COURT KARNATAKA.
OF
KARNATAKA ...RESPONDENTS
(BY SMT. ARUNA DESHPANDE, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
01.10.2022 PASSED IN MVC NO.144/2021 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, BAILHONGAL, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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MFA No. 103529 of 2022
JUDGMENT
This appeal is filed by the claimant seeking
enhancement of compensation awarded by the Tribunal.
2. For the sake of convenience, the parties are
referred to as per their rank referred to in the claim
petition before the Tribunal.
3. Heard the learned counsel appearing for the
claimant and learned counsel for respondent No.1-owner
and respondent No.2- Insurance Company. Perused the
judgment and award of the Tribunal.
4. This claim petition was filed under Section 166
of the Motor Vehicles Act, (for short, 'the M.V.Act') seeking
enhancement of compensation on account of injuries
sustained by the injured in road traffic accident that took
place on 26.01.2020 at about 6.30 a.m. when the claimant
was proceeding towards Nesargi on his motorcycle bearing
registration No.KA-22/HC-1957 in a moderate speed, on
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the extreme left side of the road observing all the traffic
rules and regulations, at that time, another motorcycle
bearing registered No.KA-22/R-1844 came from opposite
direction i.e, from Hanabaratti cross in a high speed, rash
and negligent manner and dashed to the motorcycle of the
claimant. Thus, the claimant sustained grievous injuries in
the accident. Hence, the claimant was shift to BIMS
District Hospital, Belagavi, wherein the doctor treated him
and he underwent operation for his right leg and inserted
steel rod with screws.
5. Considering the oral and documentary
evidence, Exs.P.1 to P.13, oral evidence of PWs.1 and 2
and Exs.R1 to R4, the Tribunal has awarded a sum of
Rs.2,51,100/- as compensation to the claimant. Aggrieved
by the award of the Tribunal, the claimant preferred this
appeal.
6. As there is no dispute with regard to the
injuries sustained in road traffic accident that occurred on
26.01.2020 and two offending vehicles were involved in
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the accident. The points that arise for Court consideration
in the appeal are:
"i) Whether the quantum of compensation
awarded by the Tribunal is just and
reasonable or does it call for any
interference?"
ii) Who is liable to pay compensation, the injury
sustained by the claimant?"
7. The Respondent No.2/Insurance Company has
taken contention that the rider of offending vehicle did not
possess valid and effective driving license as on the date
of accident. Thus, the owner of vehicle bearing registration
No.KA-22/R-1844 knowingly permitted the driver to take
the vehicle on road and hence, committed breach of policy
condition. Thus, the insurer is not liable to pay
compensation to the claimant. In order to substantiate this
contention, the insurer produced Exs.R.1 to 4 and also got
examined the authorized officer Sri.Mahendrakumar S/o
Mukund Kamble as RW.1. The Insurance Company is relied
on Ex.R.4-Insurance Policy. From perusal of Ex.R.4-
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Insurance Policy, the insurance was valid as on the date of
accident and offending vehicle stands in the name of 1st
respondent. Therefore, as per Ex.P.1-Complaint, Ex.P.2-
FIR, Ex.P.3- spot panchanama, Ex.P.4 Vehicle Seizure
Panchanama, Ex.P.5 IMV report, etc., it clearly establishes
that offending vehicle bearing registration No.KA-22/R-
1844 involved in the accident and rider was not possessed
any driving license. Therefore, the Tribunal held that
insurer is not liable to pay compensation. On the contrary,
the Tribunal held that the claimant is also contributed 50%
negligence. Hence, he has not entitled for 50% of the
compensation to be awarded by the Tribunal in the case
and the owner of the offending vehicle is liable to pay
compensation to an extent of 50%.
8. In view of the ratio laid down in the case of
Mukund Dewangan vs. Oriental Insurance Company
Limited and others1, the insurer is liable to pay
compensation on account of the negligence caused by the
(2016) 4 SCC 298
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driver of the offending vehicle, in view of pay and recovery
principles as held by Hon'ble Apex Court in the case of
National Insurance Company Limited vs. Swaran
Singh and others2 and also in the case of Rani vs.
National Insurance Company Limited3. In view of the
ratios laid down in the aforesaid decisions and the facts
and circumstances of the present case, respondent No.1-
Owner of offending Vehicle and respondent No.2-
Insurance Company are held liable to pay 75%
compensation, to the claimant. Further, respondent No.2-
Insurance Company to first pay the compensation amount
to the claimant, with liberty to recover the same from
respondent No.1-Owner of the offending vehicle. Since the
accident in question was head on collusion, the claimant
also contributes 25% negligence, thus, he is not entitled
for such amount of compensation from the respondents.
(2004) 3 SCC 297
(2018) 8 SCC 492
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9. After hearing the learned counsel appearing for
the parties and perusal of the judgment and award of the
Tribunal, I am of the view that the compensation awarded
by the Tribunal is not just and reasonable, it is on lower
side and hence, it is required to be enhanced.
10. The Tribunal considering the simple and
grievous injuries sustained by claimant awarded
compensation a sum of Rs.50,000/- towards 'pain and
suffering' which is not reasonable. Hence, an additional
sum of Rs.5,000/- is awarded under this head.
11. The Tribunal has awarded a sum of Rs.3,200/-
towards 'medical expenses' which is reasonable and no
interference is called for in that regard by this Court.
12. The Tribunal has awarded a sum of
Rs.11,000/- towards 'diet, food, nourishment and
attendant and conveyance charges' etc., which is not
reasonable. Hence, an additional sum of Rs.9,000/- is
awarded under this head.
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13. Towards 'loss of future earning capacity' due to
permanent disability, the Tribunal awarded a sum of
Rs.3,78,000/- which is reasonable and no interference is
called for in that regard by this Court.
14. The Tribunal has awarded a sum of
Rs.30,000/- towards 'loss of income during laid up
period' considering the income at Rs.10,000/- per
month. The accident is of the year 2020 and the notional
income is taken at Rs.13,750/-. A sum of Rs.41,250/-
(Rs.13,750/- x 3) is awarded under this head. Considering
the notional income at Rs.13,750 for a period of three
month which would meet ends of justice.
15. The Tribunal has awarded a sum of
Rs.30,000/- under the head 'loss of amenities, which is
reasonable. Hence, no interference is called for in that
regard by this Court.
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16. The Tribunal has not awarded any
compensation under the head of 'removal of implant'.
Hence, a sum of Rs.10,000/- is awarded under this head.
1. Thus, the claimant is entitled for compensation
on the following heads;
Compensation awarded
Sl.
Description By the By this
No.
Tribunal Court
1 Pain and suffering 50,000/- 55,000/-
2 Medical Expenses 3,200/- 3,200/-
3 Towards diet food nourishment,
attendant and conveyance charges 11,000/- 20,000/-
4 Towards loss of future earning
capacity due to permanent
disability 3,78,000/- 3,78,000/-
5 Loss of income during laid up
period 30,000/- 41250/-
6 Towards loss of amenities and
enjoyment in life 30,000/- 30,000/-
7 Removal of implant - 10,000/-
Total 5,02,200/- 5,37,450/-
Less: compensation awarded by the
Tribunal 5,02,200/-
Enhanced by this Court 35.250/-
Therefore, the claimant is entitled to receive total
compensation of Rs.5,37,450/- as against the
compensation of Rs.5,02,200/- awarded by the Tribunal.
Accordingly, I pass the following;
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ORDER
i) Misc. first appeal is allowed in part.
ii) The judgment and award dated 01.10.2022
passed in MVC.No.144/2021 by the Senior Civil
Judge and Additional MACT, Bailhonal, is hereby
modified to the extent stated herein above.
iii) The claimant is entitled for compensation at
75% out of Rs.5,37,450/- (Rs.5,37,450/- x
75% = Rs.4,03,087.5/-) as against the
compensation of Rs.5,02,200/- awarded by
the Tribunal with interest at the rate of 6% per
annum on the enhanced compensation from the
date of the claim petition, till the date of its
realization.
iv) The claimant is responsible for contributory
negligence at 25% and hence, he is entitled for
75% of the total compensation, from
respondent No.2.
v) Respondent No.2-Insurance Company is
directed to deposit Rs.4,03,087/- (75% of the
compensation amount) with interest at the rate
of 6% per annum within a period of eight weeks
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from the date of receipt of copy of this
judgment.
vi) Respondent No.2/Insurance Company first pay
the compensation amount to the claimant, with
liberty to recover the same from respondent
No.1/Owner of the offending vehicle.
vii) On deposit of the entire amount the same shall
be paid to the claimant on proper identification.
No order as to costs.
Sd/-
JUDGE
AC/ct-an
