Karnataka High Court
The Divisional Manager, vs Sri. Appasab @ Appanna S/O Ramanna @ Ramu on 24 August, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF AUGUST 2020
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
MFA No.24370/2011 (MV) C/W
MFA No.24371/2011, MFA No.21933/2012 AND
MFA No.21932/2012
IN MFA No.24370/2011
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
DO, RAMDEV GALLI, BELGAUM,
REP. THROUGH ITS REGIONAL OFFICE,
NATIONAL INSURANCE CO. LTD.,
SUJATHA COMPLEX, P B ROAD,
HUBLI REP. BY ITS DEPUTY MANAGER,
.. APPELLANT
(BY SRI.N.R.KUPPELUR AND SRI.S.S.KOLIWAD, ADVS.)
AND:
1. MANJUNATH S/O ANNAPPA INGALGAON,
AGE: 16 YEARS, OCC: STUDENT,
MINOR, REP. BY HIS FATHER
SRI. ANNAPPA S/O RAMAPPA INGALGAON,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O AVARKHOD, TQ. ATHANI, DIST. BELGAUM
2. PANDIT S/O ANNAPPA KAMBLE,
AGE: MAJOR, OCC: BUSINESS,
R/O AVARKHOD, TQ. ATHANI,
DIST. BELGAUM,
(OWNER OF THE HERO HONDA MOTOR CYCLE
BEARING NO.KA-23/S-7450)
2
.. RESPONDENTS
(BY SRI.K.ANANDKUMAR, ADV. FOR R1,
R2 SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER U/SEC.173(1) OF MV ACT, 1988,
SEEKING TO SET ASIDE THE JUDGMENT AND AWARD DTD:26-05-
2011 PASSED IN MVC NO.1461/2006 ON THE FILE OF THE I-ADDL.
SENIOR CIVIL JUDGE AND MEMBER, MACT, BELGAUM.
IN MFA No.24371/2011
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
DO, RAMDEV GALLI, BELGAUM,
REP. THROUGH ITS REGIONAL OFFICE,
NATIONAL INSURANCE CO. LTD.,
SUJATHA COMPLEX, P B ROAD,
HUBLI REP. BY ITS DEPUTY MANAGER,
.. APPELLANT
(BY SRI.N.R.KUPPELUR AND SRI.S.S.KOLIWAD, ADVS.)
AND:
1. SRI.APPASAB @ APPANNA
S/O RAMANNA @ RAMU INGALGAON,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O AVARKHOD, TQ. ATHANI, DIST. BELGAUM
2. PANDIT S/O ANNAPPA KAMBLE,
AGE: MAJOR, OCC: BUSINESS,
R/O AVARKHOD, TQ. ATHANI,
DIST. BELGAUM,
(OWNER OF THE HERO HONDA MOTOR CYCLE
BEARING NO.KA-23/S-7450)
.. RESPONDENTS
(BY SRI.K.ANANDKUMAR, ADV. FOR R1,
R2 SERVED AND UNREPRESENTED)
3
THIS APPEAL IS FILED UNDER U/SEC.173(1) OF MV ACT, 1988,
SEEKING TO SET ASIDE THE JUDGMENT AND AWARD DTD:26-05-
2011 PASSED IN MVC NO.1462/2006 ON THE FILE OF THE I-ADDL.
SENIOR CIVIL JUDGE AND MEMBER, MACT, BELGAUM.
IN MFA No.21933/2012
BETWEEN:
MANJUNATH ANNAPPA INGALGAON,
AGE: 17 YRS, OCC: STUDENT,
MINOR REPTD BY M/G NATURAL FATHER
ANNAPPA RAMAPPA INGALGOAN,
AGE: 52 YRS, OCC: AGRIL., R/O AVARKHOD,
TQ: ATHANI, DIST: BELGAUM
.. APPELLANT
(BY SRI.K.ANANDKUMAR, ADV.)
AND:
1. PANDIT ANNAPPA KAMBLE
AGE: MAJOR, OCC: BUSINESS,
R/O AVARKHOD, TQ: ATHANI,
DIST: BELGAUM
2. THE DIVISIONAL MANAGER, NATIONAL INSURENCE CO. LTD
D.O.RAMDEV GALLI, BELGAUM, BELGAUM
.. RESPONDENTS
(BY SRI.N.R.KUPPELUR, ADV. FOR R2,
R1 SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF M.V.ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 26.05.2011
IN MVC NO.1461/2006 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE
& MACT, BELGAUM BY ENHANCING THE COMPENSAITON
REASONABLY AND ADEQUATELY.
4
IN MFA No.21932/2012
BETWEEN:
APPASAB @ APPANNA S/O RAMANNA @ RAMU INGALGAON,
AGE: 52 YRS, OCC: AGRIL.,
R/O AVARKHOD, TQ: ATHANI, DIST: BELGAUM
.. APPELLANT
(BY SRI.K.ANANDKUMAR, ADV.)
AND:
1. PANDIT ANNAPPA KAMBLE
AGE: MAJOR, OCC: BUSINESS,
R/O AVARKHOD, TQ: ATHANI,
DIST: BELGAUM
2. THE DIVISIONAL MANAGER, NATIONAL INSURENCE CO. LTD
D.O.RAMDEV GALLI, BELGAUM, BELGAUM
.. RESPONDENTS
(BY SRI.N.R.KUPPELUR, ADV. FOR R2,
R1 SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF M.V.ACT
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 26.05.2011
IN MVC NO.1462/2006 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE
& MACT, BELGAUM BY ENHANCING THE COMPENSAITON
REASONABLY AND ADEQUATELY.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
5
JUDGMENT
These appeals, though listed for admission, are taken up for final disposal with the consent of the learned counsel appearing for the parties.
2. These appeals under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants and Insurance Company being aggrieved by the judgment dated 26.05.2011 passed by the I Additional Senior Civil Judge and Motor Accident Claims Tribunal, Belgaum in M.V.C.Nos.1461 and 1462 of 2006.
3. Parties will be referred to as per their ranking before the Tribunal.
4. Facts giving rise to the filing of the appeals briefly stated are that on 21.05.2006, the claimants were proceeding on a motorcycle bearing Reg.No.KA-23/S-8576 for Averkhod to Radderatti. It is claimed that the rider of 6 the motorcycle namely, the claimant, was riding it in a moderate speed and had two pillion riders. When the said motorcycle came near Averkhod on Halyal Radderatti road, the rider of the motorcycle bearing Reg.No.KA-23/S-7450 coming from opposite direction riding it in a rash and negligent manner dashed into the motorcycle of the claimants. As a result of which, the claimants fell down and sustained grievous injuries. It transpires that claimants were immediately shifted to the hospital, where they took treatment by spending huge sums of money. Claimant in MVC No.1461/2006 was a minor aged about 11 years and was a student. In MVC No.1462/2006 was another claimant and they claimed compensation of Rs.5,00,000/- and Rs.8,00,000/- respectively along with interest.
5. On service of notice, respondent No.1 did not appear and was placed ex-parte. Respondent No.2- Insurance Company appeared and filed statement of objections. Insurance Company denied the age, occupation 7 and income of the petitioners. It is also denied that in the accident the claimants had sustained any injuries and had spent huge amount for medical treatment. It is also contended that the compensation claimed was exorbitant, as the claimants were equally responsible in riding the motorcycle and also having two pillion riders traveling at the time of the accident, which was the cause for loosing balance and then dashing into the offending vehicle.
6. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence.
7. The guardian of the claimant in MVC No.1461/2006 examined as P.W.1 and claimant in MVC No.1462/2006 examined as P.W.2. A doctor by name Sri.S.R.Angadi was examined as P.W.3 and got exhibited documents namely Exs.P1 to P22. On behalf of the respondent, the Insurance Company examined one witness as R.W.1 and marked documents as Exs.R1 to R4. 8
8. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the offending motorcycle, as a result of which, the claimants sustained injuries. The Tribunal further held that the claimant in MVC No.1461/2006 is entitled to a compensation of Rs.63,300/- and the claimant in MVC No.1462/2006 is entitled to a compensation of Rs.2,37,200/- along with interest at the rate of 9% p.a. Being aggrieved, the Insurance company has preferred MFA Nos.24370 24371 of 2011 on the ground that the claimant who was rider of the motorcycle was riding with two pillion riders at the time of the accident, which was cause of the accident and the claimant has lost balance and the Tribunal ought to have determined contributory negligence to some extent on the claimants for having violated the rules and having two pillion riders at the time of the accident. The claimants have also preferred MFA Nos.21933 and 21932 of 2012 seeking enhancement of compensation so determined in both the cases. 9
9. I have heard Sri.N.R.Kuppelur, learned counsel for the appellant-Insurance Company through video conference and Sri.K.Anandkumar, learned counsel for the appellant-claimants.
10. Learned counsel for the Insurance Company would contend that the Tribunal grossly ignored the evidence and has barely recorded the finding with regard to contributory negligence, as the claimant in MVC No.1462/2006 was riding with two pillion riders at the time of the accident which was the cause of the accident. Hence, certain percentage of contributory negligence ought to have been fixed upon the claimants and the Tribunal has committed an error in law. It is also contended that the rider of the motorcycle did not have any valid driving licence at the time of the accident and hence, the Insurance Company is not liable to pay any compensation and the order of the Tribunal directing the Insurance Company to make good the compensation is contrary to 10 law. At best, the Tribunal could have ordered for payment of compensation with liberty to the Insurance Company to recover the same from the owner of the offending motorcycle.
11. On the other hand, learned counsel for the claimants in answer to the contention of the Insurance Company would contend that the charge sheet is filed against the rider of the motorcycle and charge sheet is not with regard to rider of the motorcycle not possessing a valid driving licence, but for rash and negligent riding. Insofar as contributory negligence is concerned, learned counsel for the claimant would contend that, there is no complaint or charge sheet filed against the claimant who was riding the motorcycle, but the charge sheet is filed against the rider of the offending motorcycle. Under these circumstances, there is no contributory negligence attributable to the claimants.
11
12. With the regard to quantum of compensation, the learned counsel for the claimants would contend that, in the light of the judgment of the Hon'ble Apex Court in the case of Master Mallikarjun Vs Divisional Manager, The National Insurance Company Limited & Another reported in AIR 2014 Supreme Court 736, wherein the Hon'ble Apex Court awarded Rs.3,00,000/- between 10% to 30%. Insofar as contributory negligence is concerned, the learned counsel would place reliance upon the Division Bench judgment of this Court in the case of Pooja Devi (Smt.) and Others Vs Anjinayya and Another reported in HCR 2018 Kant.121 to contend that, notwithstanding the fact that there were two pillion riders, contributory negligence cannot be attributed and the Insurance Company cannot be absolved of its liability to pay compensation in its entirety.
12
13. I have given anxious consideration to the submission made by the learned counsel for the parties and perused the material on record.
14. Insofar as it pertains to contributory negligence is concerned, the claimant has placed on record Ex.P1-FIR, Ex.P2-complaint, Ex.P3-Spot Panchanama, Ex.P4- M.V.report, Ex.P5-Wound certificate and is also tendered evidence that a complaint is lodged against the rider of the offending motorcycle and not the claimant. Thus, in terms of the documents produced and the oral testimony of the claimant, it cannot but be held that the rider of the offending motorcycle was responsible for the accident that had occurred and there was no contributory negligence on the part of the claimant. Merely because the claimant was riding with two pillion riders cannot be a ground to attribute contributory negligence and to hold that the claimant should be saddled with some contributory negligence in the compensation so determined by the 13 Tribunal. Thus, the contention of the Insurance Company that the Tribunal is in error insofar as it does not record contributory negligence on the part of the claimants is rejected.
15. It is also germane to notice that the Tribunal in the course of its judgment has considered the fact with regard to the owner of the motorcycle not possessing a valid driving licence. It is also seen that the Insurance Company had issued notice to him for production of driving licence, which he did not do so before the Tribunal. On this ground alone, it cannot be held that the Insurance Company is absolved of its liability of payment of compensation. Thus, the submission of the Insurance Company that the Insurance Company should be given liberty to recover from the owner of the motorcycle is also not acceptable.
16. The quantum of compensation awarded by the Tribunal insofar as it pertains to MFA No.21933/2012 14 where the claimant is a minor aged about 11 years is concerned, the issue with regard to compensation payable to the minor child is no more res integra in the light of the law laid down by the Apex Court in the case Master Mallikarjun (supra) wherein the Hon'ble Apex Court in paragraph 12 held as follows:
"Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents."
Emphasis supplied 15
17. In terms of the above, if the disability is between 10% to 30%, the claimant who is a minor child shall be entitled to compensation of Rs.3,00,000/-. In the case on hand, disability assessed by the doctor is at 13%. If it is taken at 13%, the claimant will have to be entitled to a compensation of Rs.3,00,000/- under the head loss of future income. The compensation awarded by the Tribunal under other heads remains undisturbed. Thus, the claimant in MFA No.21933/2012 is entitled to total compensation of Rs.3,36,000/- as against Rs.63,300/- awarded by the Tribunal. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till its satisfaction by the Insurance Company.
18. Insofar as MFA No.21932/2012 is concerned, admittedly, the claimant has not produced any evidence with regard to his income. Therefore, the notional income has to be fixed as per the guidelines issued by the High 16 Court Legal Services Committee. Since the accident has taken place in the year 2006, the notional income has to be taken at Rs.3,750/- p.m. The disability of the claimant in terms of the assessment made by the doctor is 75% and 1/3rd of it would be 25%. Taking the disability at 25% and monthly income at Rs.3,750/-, the claimant is entitled to compensation under the head loss of future income would be Rs.1,46,250/- (Rs.3,750/- x 12 x 13 x 25/100) as against Rs.70,200/- awarded by the Tribunal. Under the head pain and suffering the claimant is entitled to Rs.20,000/- as against Rs.30,000/- awarded by the Tribunal, which takes it to Rs.50,000/-. The compensation awarded under the heads medical bills and loss of earning during treatment will remain undisturbed. The compensation awarded towards conveyance, attendant charges, nutrition and other incidental charges is enhanced by Rs.5,000/-, which takes it to Rs.15,000/- as against Rs.10,000/- awarded by the Tribunal. The compensation towards loss of amenities is assessed at Rs.30,000/- as 17 against Rs.15,000/- awarded by the Tribunal. Thus, the claimant is entitled enhanced compensation in the following manner:
Sl.No. Heads Amount
(Rs)
1 Pain and suffering 50,000
2 Medical expenses 1,00,000
3 Conveyance, attendant charges, 15,000
nutrition and other incidental
charges
4 Loss of amenities 30,000
5 Loss of earning during treatment 12,000
6 Loss of future income due to 1,46,250
disability
Total 3,53,250
Less: compensation awarded by 2,37,200
the Tribunal
Enhancement of compensation 1,16,050
Rounded off 1,16,000
19. Thus, the claimant in MFA No.21932/2012 is entitled to enhanced compensation of Rs.1,16,000/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. Hence, I pass the following:
18
ORDER
i) MFA Nos.24370 and 24371 of 2011 filed by the Insurance Company are dismissed.
ii) MFA No.21933/2012 is allowed in part. The claimant is entitled to total compensation of Rs.3,36,000/- as against Rs.63,300/- awarded by the Tribunal. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till its satisfaction by the Insurance Company.
iii) MFA No.21932/2012 is allowed in part. The claimant in is entitled to enhanced compensation of Rs.1,16,000/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made.
iv) To the aforesaid extent, the judgment of the Tribunal is modified
v) The amount in deposit, if any, in MFA Nos.24370 and 24371 of 2011 shall be transferred to the Tribunal forthwith Sd/-
JUDGE MBS/-