Karnataka High Court
Rangappa S/O Vaggappa Rathod vs Mayur S/O Basavaraj Sajjan on 31 August, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31ST DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
M.F.A.No.24489/2012(MV)
C/w.
MFA No.22114/2012 (MV)
IN MFA No.24489/2012
BETWEEN:
RANGAPPA S/O VAGGAPPA RATHOD
AGE: 46 YEARS, OCC: COOLIE & AGRICULTURE
R/O.BANNIGOLE THANDA
TQ: YELBURGA, DT: KOPPAL
... APPELLANT
(BY SRI. P G MOGALI, ADV.)
AND
1. MAYUR S/O BASAVARAJ SAJJAN
AGE: 30 YEARS
OWNER & DRIVER OF VEHICLE BEARING NO.
KA-25/N-8366, R/O.DOOR NO.61
RAJEEVNAGAR, VIDYANAGAR, HUBLI-31
TQ: HUBLI, DT: DHARWAD
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED
2
DIVISIONAL MANAGER, SUJATHA COMPLEX
PB ROAD, HUBLI-29
TQ: HUBLI, DIST: DHARWAD
... RESPONDENTS
(BY SRI.G.N.RAICHUR, ADV.FOR R2)
(V/O.DTD.06.06.2013, NOTICE TO R1
IS DISPENSED WITH)
THIS MFA FILED UNDER SECTION 173(1) OF MV ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED:18-02-
2012 PASSED IN MVC NO.91/2011 ON THE FILE OF THE
MEMBER, ADDL. MACT AND PRESIDING OFFICER, FAST TRACK
COURT-I, KOPPAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.22114/2012
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE, SUJATA COMPLEX,
P B ROAD, HUBLI - 29, REP. BY ITS
ADMINISTRATIVE OFFICER, REGIONAL OFFICE
(CELL), SUJATA COMPLEX, P B ROAD,
HUBLI - 580 029.
... APPELLANT
(BY SRI.G N RAICHUR, ADV.)
AND
1. RANGAPPA S/O VAGGAPPA RATHOD
3
AGE: 46 YEARS, OCC: COOLIE/AGRICULTURE,
R/O: CHIKKABANNIGOL THANDA,
TQ: YELBURGA, DIST: KOPPAL.
2. MAYUR S/O BASAVARAJ SAJJAN
AGE: 36 YEARS, OCC: OWNER & DRIVER
OF THE VEHICLE NO.KA-25/N-8366,
R/O: H.NO. 61, RAJIV NAGAR, VIDHYANAGAR,
HUBLI-31, DIST: DHARWAD.
... RESPONDENTS
(BY SRI. P G MOGALI, ADV. FOR R1)
(R2-SERVED)
THIS MFA FILED U/SEC.173(1) OF MV ACT, AGAINST
JUDGMENT AND AWARD DTD:18-02-2012, PASSED IN
MVC.NO.91/2011 ON THE FILE OF THE MEMBER, ADDL. MACT
AND PRESIDING OFFICER, FAST TRACK COURT-I, KOPPAL,
AWARDING THE COMPENSATION OF RS.1,20,052/- WITH
INTEREST AT THE RATE OF 6% P.A., FROM THE DAET OF
PETITION TILL ITS REALISATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals, though listed for admission, are taken up for final disposal with the consent of the learned counsel appearing for the parties.
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2. These appeals under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short). The appeal in MFA No.24489/2012 has been filed by the claimant and the appeal in MFA No.22114/2012 has been filed by Insurance Company, being aggrieved by the judgment dated 18.02.2012 passed by the Additional MACT and Fast Track Court-I, Koppal, in M.V.C.No.91/2011.
3. Parties will be referred to as per their ranking before the Claims Tribunal.
4. In terms of the averments in the claim petition, it transpires that on 20.10.2009, at about 4.30 p.m, when the claimant was doing work in the land, a JCB bearing No.KA25/N-8366 driven by the 1st respondent dashed against the claimant. As the result of aforesaid accident, the claimant sustained grievous injuries and fractures of his legs. He was immediately taken to Government Hospital 5 Yalburga for treatment and thereafter to KIMS Hospital for further treatment.
5. It also transpires that claimant was an inpatient for 40 days in KIMS Hospital and claiming to have spent huge sums of money for treatment due to the injuries sustained in the accident. The claimant filed the Claim Petition under Section 166 of the Act, claiming compensation of Rs.15,00,000/- for the injury sustained by him in the accident.
6. On service of notice, the 1st respondent - driver and owner of the vehicle and 2nd respondent - Insurance Company have filed their separate statement of objections. The 1st respondent denied all plaint averments and 2nd respondent denied that the driver of the vehicle namely JCB involved in the accident was special kind of vehicle and driver of the JCB was not holding a valid and effective driving licence at the time of accident and there was 6 violation of policy conditions which would absolve the Insurance Company for payment of any compensation. It was also denied that the driver had driven the JCB in a rash and negligent manner. It was further contended that the compensation sought was highly excessive and exorbitant.
7. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence.
8. The Claimant in order to prove his case examined himself as PW1 and another witness PW.2 - the doctor, who issued the disability certificate and got exhibited 17 documents as Ex.P1 to Ex.P.17. On the other hand, the Insurance Company examined one witness as RW1 and got marked 5 documents as R1 to R5.
9. The Claims tribunal, by the impugned judgment, inter alia held that the accident took place on account of rash and negligent riding of the JCB vehicle by its rider, as 7 a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.1,20,052/. Being aggrieved, the claimant has filed MFA No. 24489/2012 seeking enhancement of compensation.
10. The 2nd respondent-Insurance Company preferred MFA No.22114/2012 against order of the Tribunal on the ground that they are not liable to pay any compensation as there was violation of policy condition, as driver of the JCB, did not have a licence to drive the special kind of vehicle but was holding only a Light Motor Vehicle licence at the time of accident.
11. I have heard Shri.P.G.Mogali, learned counsel for the claimant and Shr.G.N.Raichur, learned counsel for the Insurance Company.
12. Learned counsel for the Insurance Company submitted that the Tribunal has ignored the fact that the 8 Insurance Company is not liable to pay any compensation as there was violation of policy condition, as the offending vehicle JCB was driven by its driver without holding a valid licence to drive that particular class of vehicle. Further, insofar as quantum of compensation is concerned, it is contended that the disability taken by the Tribunal is on the higher side. There is no evidence of the doctor placed before the Tribunal in its true sense, to assess the disability at 50% as stated by the doctor and no basis for the Tribunal to take at 20% to the whole body.
13. On the other hand, the counsel for the claimant submitted that the issue with regard to licence of driver of JCB, is holding licence to drive a Light Motor Vehicle and driving the JCB is covered by the judgment of the Apex Court in the case of 'Mukund Dewangan Vs. Oriental Insurance Company Limited and others' reported in 2017 AIR(SC) 3668.
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14. I have considered the submissions made by the learned counsel for the parties and have perused the record.
15. The issue with regard to fastening liability upon the owner of the vehicle and absolving the Insurance Company for payment of compensation determined is no longer res integra, as the unladen weight of the vehicle involved in the accident is admittedly less than 7500 kgs. The Hon'ble Apex Court in the case of 'MUKUND DEWANGAN' (supra) has held that a driver who possesses a Light Motor Vehicle licence can drive a commercial / transport vehicle whose unladen weight is less than 7500 kgs. In the case on hand, the gross weight of the vehicle which was involved in the accident - JCB is admittedly less than 7,500 kgs, which is 7460 kgs as per Ex.13. In the light of the 'MUKUND DEWANGAN' case (supra), the liability to pay compensation is on the Insurance Company and not on the owner. Hence the order 10 of the Tribunal fastening the liability upon the owner of the vehicle for payment of compensation to the claimant is set aside and the Insurance Company is held liable to make good the entire compensation.
16. In so far as quantum of compensation is concerned, admittedly, the claimant has not produced any evidence to show that the income of the injured was at Rs.120/- per day. The claimant has claimed income at Rs.4,500/- per month and working as coolie, Therefore, the notional income has to be fixed as per the guidelines issued by the High Court Legal Services Committee. Since the accident has taken place in the year 2009, the notional income has to be taken as Rs.5,000/- per month for the purpose of determination of loss of future income.
17. With regard to the disability, the Tribunal has taken 20% disability without any basis. Doctor has issued disability certificate on examination and is not a treated 11 doctor. Hence disability will have to be reduced to 1/3 which would come to 17%. As on date of the accident the age of the injured was 50 years, the applicable multiplier will be 13. Hence, loss of future income of the injured is assessed at Rs.1,32,600/- (Rs.5,000 x 12 x 13 x 17% ).
18. Further, under the head of loss of income during laid-up period, admittedly the claimant was an inpatient for about 43 days. The Tribunal has assessed at Rs.4,000/- which is on the lower side, I deem it appropriate to award compensation for 60 days and enhance the amount to Rs.10,000/- towards loss of income during the laid-up period. Tribunal has awarded Rs.2,000/- towards food and nourishment but has not awarded any compensation towards attendant charges. Hence, all put together, under the head food, nourishment and other incidental charges, I deem it appropriate to enhance to Rs.10,000/-. The rest of the findings of the Claims Tribunal on all other heads are 12 sustained. Thus, the claimant is entitled to a compensation of Rs.1,62,972/- in the following manner.
Sl.No. Heads Amount
(Rs)
1 Loss of future earning 1,32,600
2 Medical expenses 10,372
3 Loss of earning during laid-up 10,000
period.
4 Conveyance, attendant 10,000
charges, nutrition and other
incidental charges
Total 1,62,972
Less: Compensation awarded by the 1,20,052
Tribunal
Enhanced compensation 42,920
19. Hence the claimant is entitled to a compensation of Rs.1,62,972/-. It is needles to state that the aforesaid amount of compensation shall carry an interest at the rate of 6% p.a. from the date of filing of the petition till its satisfaction by the Insurance Company. To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, these appeals are allowed in part. 13
The amount in deposit, if any, shall be transferred to the Tribunal forthwith.
Sd/-
JUDGE lad