Karnataka High Court
Mallamma W/O Late Shivraj Kamthana vs Shamuel @ Shamsundar And Anr on 30 January, 2025
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MFA No. 201158 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.201158 OF 2019 (MV-I)
BETWEEN:
MALLAMMA W/O LATE SHIVRAJ KAMTHANA,
AGE: 53 YEARS, OCC: HOUSEHOLD AND LABOUR,
R/O CHITTAWADI, TQ. & DIST. BIDAR-585 412.
...APPELLANT
(BY SRI. JAIRAJ K. BUKKA, ADVOCATE)
AND:
1. SHAMUEL @ SHAMSUNDAR S/O SHIROMANI,
AGE: MAJOR, OCC: BUSINESS,
R/O # 32, KHANAPUR, TQ. AURAD-B,
DIST. BIDAR-585 406,
(OWNER OF VEHICLE BEARING
Digitally
signed by
LUCYGRACE REGN. NO.KA.38.4046).
LUCYGRACE Date:
2025.02.03
10:58:37 -
0800
2. BRANCH MANAGER OF NATIONAL
INSURANCE COMPANY LIMITED,
ADDRESS: D.NO.8/10/135, 1&1A,
VEERBHADRESHWAR CHAMBERS,
OPP. NEHARU STADIUM, BIDAR,
KARNATAKA-585 401.
...RESPONDENTS
(BY SMT. SANGEETA BHADRASHETTY, ADV. FOR R2;
V/O DTD. 31.01.2023, NOTICE TO R1 IS DISPENSED WITH)
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MFA No. 201158 of 2019
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
AWARD COMPENSATION OF RS.13,30,000/- (EXCLUDING THE
AMOUNT AWARDED BY THE TRIBUNAL) ALONG WITH
INTEREST @ 12% P.A. BY MODIFYING THE JUDGMENT AND
AWARD PASSED BY LEARNED PRINCIPAL DISTRICT AND
SESSIONS JUDGE AND PRL. M.A.C.T. AT BIDR DATED
05.03.2019 IN M.V.C. NO.430/2016, BY FIXING THE ENTIRE
LIABILITY OF PAYING COMPENSATION ON RESPONDENT NO.2,
INSTEAD OF FIXING IT ON RESPONDENT NO.1.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Though the appeal is listed for admission, by the
consent of learned counsel appearing for both the parties,
the matter is taken up for final disposal.
This appeal is directed against the judgment and
award dated 05.03.2019 in MVC No.430/2016 passed by
learned Principal District and Sessions Judge and Principal
MACT, Bidar (hereinafter referred to as 'the Tribunal' for
short).
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2. By the impugned judgment and award, the
Tribunal has allowed the claim petition in part and
awarded a sum of Rs.70,000/- as compensation and
directed the owner of the auto rickshaw to deposit the
same.
3. The factual matrix of the case is not much in
dispute. The petitioner, a lady aged about 50 years, a
housewife and labourer by profession was earning
Rs.8,000/- per month and she met with an accident on
01.09.2015, while she was travelling in auto rickshaw
bearing No.KA-38-4046 near Sidharth College, Bidar. Due
to the negligent driving of the driver, the auto rickshaw
turned turtle, where she suffered injuries and was shifted
to District Hospital and then to Guru Nanak Hospital,
Bidar. The petitioner was treated conservatively and had
to take treatment for prolonged time and therefore, she
claimed a compensation of Rs.14,00,000/- from the owner
and insurer of the auto rickshaw.
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4. The petition was opposed by the respondents,
contending that the compensation claimed is highly
exorbitant and imaginary and they denied the age,
occupation and income of the petitioner. Respondent No.1
contended that the vehicle was insured with respondent
No.2 and as such, the liability to pay the compensation is
to be fastened upon respondent No.2. On the other hand,
respondent No.2 contended that there is violation of
Sections 3, 4 and 180 of the Motor Vehicles Act, 1988 and
the driver had no valid driving licence to drive a transport
vehicle as on date of the accident and therefore, the
liability to pay the compensation has to be fastened upon
respondent No.1 only.
5. The Tribunal framed appropriate issues and also
framed an additional issue and allowed the parties to
adduce the evidence. The petitioner was examined as
PW.1 and Exs.P1 to 13 where marked. Respondent No.2
examined two witnesses as RWs.1 and 2 and Exs.R1 to R9
were marked.
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6. After hearing the arguments by both sides, the
Tribunal awarded the compensation of Rs.70,000/- to the
petitioners and directed respondent No.1 to deposit the
compensation amount under different heads as below:
Mental agony, pain & suffering Rs.30,000/-
Hospital expenses and Rs.20,000/-
medical expenses
Attendant, transportation charges Rs. 2,000/-
and other miscellaneous expenses
Loss of earning and her service to Rs.18,000/-
the family members during the
period of rest
Total Rs.70,000/-
Further, the Tribunal dismissed the petition as
against respondent No.2 and directed respondent No.1-
owner to pay the compensation.
7. Being aggrieved by the same, the petitioner is
before this Court, seeking enhancement of compensation
awarded by the Tribunal as well as questioning the liability
fastened on respondent No.1.
8. Heard the learned counsel for the appellant and
learned counsel for respondent No.2-Insurance Company.
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9. Learned counsel appearing for the appellant
would submit that the fastening of the liability on
respondent No.1 is not proper and correct, since the case
is covered by the principles laid down by the Apex Court in
the case of Mukund Dewangan v/s Oriental Insurance
Company Limited1. He submits that the driver of the
auto rickshaw had a valid driving licence for LMV and there
was no necessity for him to obtain a license to drive a
transport vehicle and therefore, fastening of the liability on
respondent No.1 alone is not justifiable. His second
contention is that, the quantum of compensation awarded
by the Tribunal is on the lower side and the nature of the
injuries sustained are not properly appreciated by the
Tribunal. The Tribunal failed to compensate the petitioner
under the head of loss of amenities in life, since she had
suffered fracture of pubic ramus.
10. Per contra, learned counsel appearing for
respondent No.2 fairly concede that the principles laid
2017 (14) SCC 663
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down in the case of Mukund Dewangan supra are
applicable. She also submit that in view of the violation of
the permit conditions, the principles laid down in the case
of Amrut Paul Singh and another vs. Tata AIG
General Insurance Co. Ltd. and others2 are applicable
and as such, an order of pay and recovery has to be
made. Regarding quantum, it is submitted that the
Tribunal is justified in awarding a sum of Rs.70,000/- to
the petitioner.
11. A perusal of the driving licence of respondent
No.1, who also happens to be the owner of the vehicle,
produced at Exs.R7 and R8 and also the original driving
licence at Ex.P13 would show that respondent No.1 was
authorised to drive a non-transport vehicle from
16.12.1998 to 15.12.2018. However, the validity to drive
the transport vehicle i.e., a cab was only from 23.01.2001
to 22.01.2004. The accident having happened on
01.09.2015, respondent No.1 was not having a licence to
(2018) 7 SCC 558
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drive a transport vehicle on that day. Evidently, the
category of the vehicle is an auto rickshaw, the unladen
weight of which is less than 7500 kgs. Therefore, in view
of the principles laid down by the Apex Court in the case of
Mukund Dewangan supra, it has to be held that there
was no such violation of the terms and conditions of the
policy. Respondent No.1 was authorised to drive the auto
rickshaw and therefore, the liability has to be fastened
upon respondent No.2-Insurance Company.
12. The second aspect which affects the question of
liability is regarding the violation of the permit conditions.
The Tribunal has rightly relied upon the judgment of the
Apex Court in the case of Amrut Paul Singh supra,
wherein it is held that if there is violation of the permit
conditions, the insurer is liable to pay the compensation
and then is at liberty to recover the same from the
insured. Therefore, respondent No.2 is liable to pay the
compensation to the petitioner and then recover the same
from respondent No.1-owner of the vehicle.
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13. Coming to the quantum of compensation, the
Tribunal has deducted certain amount, even though the
receipts for medical expenses were produced. On a careful
examination of the receipts produced, it cannot be said
that they are the fake receipts. Though the petitioner was
admitted to Guru Nanak Hospital, she might have taken
the medicines from various other pharmacies. Therefore,
the observation of the Tribunal that certain bills are not
permissible cannot be accepted. It is pertinent note that
the total medical bills produced by the petitioner accrued
for about Rs.35,000/-. Therefore, the same has to be
awarded to the petitioner under the head of medical
expenses.
14. The petitioner had suffered cut lacerated wound
on the forehead and fracture of right superior pubic
ramus. Though the petitioner had contended that she had
undergone surgery, the nature of the treatment was
conservative and there were no surgeries. This aspect is
also observed by the Tribunal in detail. Therefore, when
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there are two injuries i.e., one simple and another
grievous, the award of Rs.30,000/- towards pain and
suffering appears to be on the lower side and the same is
enhanced to Rs.40,000/-.
15. The petitioner is aged 50 years, a housewife
and the Tribunal has awarded a sum of Rs.18,000/-
towards loss of earning and her service to the family
members. The notional income considered by the Tribunal
appears to be on the lower side than the wages fixed
under the Minimum Wages Act. Therefore, the same is
considered at Rs.8,000 x 3 = Rs.24,000/-.
16. The Tribunal has awarded a sum of Rs.2,000/-
only towards attendant, transportation charges and other
miscellaneous expenses, even though the petitioner was
inpatient for about five days. It appears that the Tribunal
has considered the inpatient treatment at Guru Nanak
Hospital only. Therefore, it would be appropriate to award
a sum of Rs.5,000 under this head.
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17. The Tribunal has not awarded any
compensation under the head of loss of amenities in life.
Obviously, the petitioner has not claimed any disability.
Therefore, she has to be compensated adequately under
the head of loss of amenities in life, keeping in view that
she is going to suffer the injury for the rest of her life and
she being aged about 50 years. Hence, a sum of
Rs.30,000/- is awarded under this head.
18. Therefore, the appellant is entitled for the
modified compensation under different heads as below:
Mental agony, pain and suffering Rs. 40,000/-
Hospital expenses and medical Rs. 35,000/-
expenses
Attendant, transportation charges Rs. 5,000/-
and other miscellaneous expenses
Loss of earning and her service to Rs. 24,000/-
the family members during the
period of rest
Loss of amenities Rs. 30,000/-
Total Rs.1,34,000/-
Less: awarded by Tribunal Rs. 70,000/-
Enhancement Rs. 64,000/-
Thus, the appellant is entitled for enhanced
compensation of Rs.64,000/- with interest and therefore,
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the appeal deserves to be allowed in part. Hence, the
following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award passed by
the Tribunal is modified by awarding a sum of
Rs.64,000/- in addition to what has been awarded by the
Tribunal together with interest at 6% p.a. from the date of
petition till its realization.
(iii) Respondent No.2 - Insurance Company is
directed to deposit the entire compensation amount within
a period of six weeks from the date of this order and then
recover the same from respondent No.1.
(iv) Rest of the order passed by the Tribunal remains
unaltered.
Sd/-
(C M JOSHI)
JUDGE
LG
