Karnataka High Court

Shivappa S/O Dyamappa Pujar vs Rajesab S/O Mabusab Mujavar on 15 January, 2025

Author: Hanchate Sanjeevkumar

Bench: Hanchate Sanjeevkumar

                                                   -1-
                                                                 NC: 2025:KHC-D:589
                                                            MFA No. 100693 of 2015




                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                DATED THIS THE 15TH DAY OF JANUARY, 2025

                                                 BEFORE
                            THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
                           MISCELLANEOUS FIRST APPEAL NO.100693 OF 2015 (MV)
                      BETWEEN:

                      SHIVAPPA S/O. DYAMAPPA PUJAR,
                      AGE: 43 YEARS, OCC: AGRICULTURE,
                      R/O: HADARAMAGGI,
                      TQ: AND DIST: KOPPAL.
                                                                        ...APPELLANT
                      (BY SRI M. AMARE GOUDA, ADVOCATE)

                      AND:

                      1.    RAJESAB S/O. MABUSAB MUJAVAR,
                            AGE: 48 YEARS, OCC: OWNER OF
                            THE MAXI CAB BEARING NO.KA-29/1688,
                            R/O: DEVARAJ ARAS COLONY, NANDINAGAR,
                            KOPPAL.

                      2.    THE DIVISIONAL MANAGER,
                            NEW INDIA ASSURANCE CO. LTD.,
                            S.B.I UPSTAIRS, PRIYADRASHINI
                            HOTEL BESIDES, STATION ROAD,
Digitally signed by         HOSPET.
MALLIKARJUN
RUDRAYYA                                                             ...RESPONDENTS
KALMATH
Location: HIGH
COURT OF              (BY SRI CHANDRASHEKHAR M.HOSAMANI, ADVOCATE FOR R1;
KARNATAKA
                          SRI G.N. RAICHUR, ADVOCATE FOR R2 (THROUGH V/C))

                            THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
                      SECTION 173(1) OF MV ACT 1988, PLEASED TO ENHANCE THE
                      COMPENSATION AGAINST THE JUDGMENT AND AWARD DATED
                      01.08.2014 PASSED IN MVC NO.416/2012 ON THE FILE OF THE
                      SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT
                      CLAIM TRIBUNAL, KOPPAL, IN THE INTEREST OF JUSTICE AND
                      EQUITY.

                           THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
                      ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                 -2-
                                               NC: 2025:KHC-D:589
                                        MFA No. 100693 of 2015




                         ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR)

Though this appeal is listed for admission, with consent

of learned counsel for the parties, it is taken up for final

disposal.

2. This appeal is filed by the claimant challenging

the judgment and award dated 01.08.2014, passed by the

Senior Civil Judge and Addl. MACT, Koppal, in MVC

No.416/2012 (hereinafter referred to as the 'Tribunal'),

seeking enhancement of compensation as well as liability

fastened on owner of the Maxi Cab/offending vehicle.

3. Brief facts leading to filing of this appeal are that

on 18.10.2010, the claimant was proceeding to his village in

a Maxi Cab bearing registration No.KA-29/1688 from Koppal.

When the vehicle reached on Koppal-Chikka Sindogi road,

about 2 Km from Chikka Sindhogi at about 7-00 pm, driver

of the Maxi Cab drove the vehicle in a rash and negligent

manner and lost control over the vehicle, due to which, the

NC: 2025:KHC-D:589

vehicle turned turtle, resulting in injuries to the claimant.

Hence, he filed claim petition.

4. The disputed question is whether the Insurance

Company is liable or not.

5. Learned counsel for the appellant/claimant

submitted that the driver of Maxi Cab was holding driving

licence to drive Light Motor Vehicle (non transport), but the

vehicle is a Light Motor Vehicle (transport). Therefore,

submitted that a person who is holding driving licence to

drive LMV (non transport), is also competent to drive LMV

(transport). Therefore, it is hereby held that the issue

involved in the present appeal is no more res-integra in view

of the judgment of Hon'ble Supreme Court in the case of

Mukund Dewangan vs. Oriental Insurance Company

Limited, (2017) 14 Supreme Court Cases 663,

according to which, a person who is holding driving licence to

drive the LMV (non transport) can also drive the LMV

(transport).

NC: 2025:KHC-D:589

6. Further, the learned counsel submits that the

award of compensation by the Tribunal under all heads is on

lower side and seeks to enhance the same.

7. Learned counsel for the respondent No.2-

Insurance Company submitted that the vehicle is a Maxi Cab

and permitted seating capacity is 12+1 passengers. But as

per complaint and other documents, it is proved that there

were 25 passengers travelling in the Maxi Cab. Therefore,

carrying of excess passengers in the Maxi Cab is a

fundamental factor for causing the accident in question.

Therefore, the Tribunal is justified in exonerating the

Insurance Company by fastening liability on the owner of the

Maxi Cab.

8. The vehicle i.e., Maxi Cab having seating capacity

of 12+1 passengers, but as per Police documentary

evidence, it is proved that there were 25 passengers

travelling in the Maxi Cab. Whether carrying of excess

passengers is a fundamental breach to exonerate the

Insurance Company is the question to be considered. Just

because there were 25 passengers travelled in a Maxi Cab, it

NC: 2025:KHC-D:589

cannot always be made ground to say, that was the cause

for the accident. Therefore, this is not a ground to exonerate

the Insurance Company. Hence, the Tribunal is not justified

in exonerating the Insurance Company on the reason that

there were excess passengers travelled in the Maxi Cab.

Though it may be violation of condition of policy and also for

taking action against the owner of the Maxi Cab, but carrying

of excess passengers in the Maxi Cab is not a fundamental

factor for causing accident. Taking any action permitting to

carry excess passenger is different, than what is the

fundamental factor for causing accident.

9. Therefore, on this ground exonerating the

Insurance Company from paying compensation is not correct

and also issue involved is squarely covered by the judgment

of the Hon'ble Supreme Court in the case of Mukund

Dewangan (referred supra), insofar as driver was holding

driving licence to drive LMV (non transport), but the

vehicle is LMV (transport). Hence, the liability is modified

holding that the Insurance Company is liable to pay

compensation.

NC: 2025:KHC-D:589

10. In the present case, from the medical evidence

on record it is proved that the claimant had suffered the

following injuries.

"Fracture of T12, L2 and L4 Vertebral bodies and Tenderness of left rib cage, Deformity over the back."

11. The Tribunal has awarded compensation under

various heads as under:

    Sl.               Heads.                         Amount in
    No.                                                (Rs.)
    1. Pain and suffering.                            10,000/-
    2. Loss of future income                          25,200/-
    3. Loss of amenities, nutrition, diet                600/-
        and attendant charges
                                   Total:            35,800/-

12. The claimant was working as an agriculturist and

earning Rs.5,500/- per month (notional income) as per the

chart prepared by the Karnataka State Legal Service

Authority, as on the date of accident. Considering the fact

that the claimant was inpatient for a period of 2 days in the

hospital, the compensation awarded by the Tribunal under

the aforesaid heads is on lower side.

NC: 2025:KHC-D:589

13. Considering the injuries sustained, a

compensation of Rs.25,000/- towards pain and suffering,

Rs.5,000/- towards medical expenses, Rs.5,000/- towards

loss of amenities, Rs.8,000/- towards Incidental expenses

i.e., nutrition, diet and attendant charges and Rs.11,000/-

(5,500 X 2) towards loss of income during laid up period for

a period of two months since the claimant had suffered

grievous injuries.

14. The doctor has stated that the claimant had

suffered 30-35% physical disability to the whole body.

Therefore, considering the evidence of the doctor, 12%

functional disability is taken into consideration as the

claimant had suffered Fracture of T12, L2 and L4 Vertebral

bodies and Tenderness of left rib cage, Deformity over the

back.

15. The accident is caused in the year 2010.

Therefore, notional income of Rs.5,500/- per month is taken

into consideration, which is recognized by the Karnataka

State Legal Service Authority. The claimant was aged 40

years at the time of accident. Therefore appropriate

NC: 2025:KHC-D:589

applicable multiplier is 15. Hence, loss of future income due

to disability is hereby reassessed as Rs.1,18,800/-

(Rs.5,500/- x 12% x 15 x 12).

16. Thus, the claimant is entitled for total

compensation under various heads as under:

      Sl.              Heads.                 Amount in
      No.                                       (Rs.)
      1. Loss of future income due to        1,18,800/-
          disability
      2. Pain and sufferings.                   25,000/-
      3. Medical expenses.                       5,000/-
      4. Loss of amenities.                      5,000/-
      5. Loss of income during laid up          11,000/-
          period.
      6. Incidental charges like attendant       8,000/-
          charges, food, nourishment,
          conveyance, etc.,
                                      Total: 1,72,800/-


      17.    Therefore,       the   claimant     is    entitled     for    total

compensation of Rs.1,72,800/- along with interest at the

rate of 6% p.a. from the date of filing of the petition till

realization, as against Rs.35,800/- awarded by the Tribunal.

The Insurance Company is directed to deposit the

compensation within eight weeks from the date of receipt of

a certified copy of this judgment.

18. In the result, I proceed to pass the following: