Karnataka High Court
Sri.Kallappa S/O Hanumanthappa ... vs Sri.Basavaraj S/O Hanumappa Karjagi on 7 October, 2020
Author: V.Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 7TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
M.F.A. NO.100071 OF 2016 (MV)
BETWEEN
SRI KALLAPPA S/O.HANUMANTHAPPA KARJAGI,
AGE : 31 YEARS, OCC : AGRICULTURIST AND
MILK VENDING, R/O.ALALAGERI VILLAGE,
TAL : BYADGI, DIST : HAVERI-581106.
.......APPELLANT
(BY SRI.HANUMANTHAREDDY SAHUKAR, ADVOCATE)
AND :
1. SRI.BASAVARAJ S/O.HANUMAPPA KARJAGI,
AGE : MAJOR, OCC : BUSINESS OWNER OF VEHICLE,
BEARING NO.KA-27/6374,
R/O.KADARAMANDALAGI, TQ : BYADGI-581106.
2. SHRIRAM GENERAL INSURANCE CO., LTD.,
E8, EPIP, RIICO INDUSTRIAL AREA
SITAPURA JAIPUR, RAJASTHAN STATE-302022.
.....RESPONDENTS
(BY SRI.S.K.KAYAKAMATH, ADVOCATE FOR R-2)
(NOTICE TO R-1 -SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V.
ACT, AND PRAYED THAT JUDGMENT AND AWARD DATED
01.09.2015 IN M.V.C.NO.25/2013 PASSED BY THE LEARNED
SENIOR CIVIL JUDGE AND AMACT, IT COURT BYADGI MAY
KINDLY BE SET ASIDE AND ALLOW THE CLAIM PETITION AS
PRAYED FOR BY ALLOWING THE ABOVE APPEAL WITH
COST, IN THE INTEREST OF JUSTICE AND EQUITY.
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THIS MFA COMING ON FOR ORDERS THIS DAY, COURT
DELIVERED THE FOLLOWING :
JUDGMENT
Though this matter is listed for orders today, with the consent of both the parties, matter is taken up for final disposal.
2. The present appeal is preferred questioning the validity of the judgment and award dated 01.09.2015 passed in MVC No.25/2013 on the file of Senior Civil Judge and Member Additional M.A.C.T, Itinerary Court at Byadgi (hereinafter referred to as "the Tribunal" for short).
3. The brief facts, which are necessary for disposal of the appeal are as under:
3.1. A claim petition came to be filed under Section 166 of Motor Vehicles Act by the injured-claimant stating that on 17.09.2012 at about 3.00 p.m. the appellant and others were traveling in Katama vehicle (three wheeler) bearing No.KA-27/6374 from Kadaramandalagi village to Geraguddabasapur village for attending the function in -3- the said village. The driver of said vehicle was driving the same in a rash and negligent manner and when the vehicle was moving on Somasagar-Byagawadi road, driver lost control over the vehicle and as such vehicle toppled down resulting in an accident. As a result, appellant sustained fatal injuries all over the body and has taken primary treatment in Government Hospital at Haveri and from there he has shifted to KIMS Hospital, Hubballi for further treatment and the appellant has spent an amount of Rs.1,00,000/- towards medical and other diet expenses.
Further, the appellant has taken treatment in S.K. Ortho Centre, Ranebennur. It is contended that due to the said accidental injuries, the appellant has become permanently disabled. As such, a claim petition was before the Tribunal seeking compensation.
4. In pursuance of the notice issued, respondent Nos.1 and 2 who are the owner and insurer of the offending vehicle respectively entered appearance through their counsels and filed their objection statements denying -4- the entire claim petition averments. However, respondent No.1 has admitted that he is the owner of Katama vehicle which was insured with respondent No.2. Respondent No.2-insurer has also admitted that Katama vehicle was insured with its company and the policy was valid as on the date of accident. Respondent No.2 contended in the written statement that the driver of offending vehicle was not having valid and effective driving licence as on the date of accident and therefore there was violation of policy conditions. It is further contended for their discharge from liability that the Katama vehicle was having seating capacity of 4 persons. But, as on the date of accident, there were totally 8 passengers traveling in the said vehicle beyond the permit limit and they are unauthorized passengers and driver was not holding valid driving licence. Therefore there is violation of policy conditions by the respondent No.1. Hence respondent No.2 contends that company is not liable to pay compensation to the appellant.
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5. Based on the rival contentions, the Tribunal raised the following issues :
"1.Whether petitioner prove that the accident in question was occurred on 17.09.2012 at about 3.00 hours on Somasagar-Byagawadi road, near Somasagar Anicross, due to the rash and negligent driving of the vehicle Katama bearing Reg.No.KA-27/6374 by its driver?
2. Whether the respondents No.2 prove his discharge from the liability for the grounds urged in his written statement?
3. Whether the petitioner is entitled to claim compensation as prayed for? If so, from whom and at what rate?
4. What order or award?"
6. In order to substantiate the claim petition averments, the claimant got examined himself as P.W.2 and in support of his case relied on documentary evidence which were exhibited and marked as Ex.P.1 to Ex.P.39. On behalf of the respondents, five witnesses got examined -6- as R.W.1 to R.W.5 and 12 documents were marked as Exs.R.1 to 12.
7. After hearing the counsels appearing for the parties and on consideration of the oral and documentary evidence on record, the Tribunal allowed the claim petition in part to the tune of Rs.2,11,156/- as under :
1 For pain and sufferings. Rs.30,000/- 2 For medical expenses Rs.46,816/- 3 For fonveyance, diet, extra Rs.4,000/-
nourishment charges food and attendant charges.
4 For loss of income during Rs.6,000/-
laid up period.
5 For loss of future earning Rs.1,19,340/-
capacity on account of
permanent physical
disability.
6 For loss of amenities and Rs.5,000/-
enjoyment of life.
Total Rs.2,11,156/-
8. It is that judgment which is under challenge in this appeal.
9. The learned counsel for the appellant vehemently contended that the claimant is having 50% -7- disability, but the Tribunal has taken only 13% disability. Considering the nature of injuries sustained by the claimant, it ought to have awarded more compensation. Further, it is contended that the Tribunal ought to have awarded some compensation towards loss of discomfort of life and ought to have taken the income of the appellant at Rs.15,000/- per month instead of Rs.4,500/- per month as the appellant was an agriculturist and doing milk vending business. He further contended that the compensation awarded by the Tribunal towards loss of amenities is meager one as it has awarded only Rs.5,000/- and not awarded any compensation on all the heads as claimed by the appellant. Tribunal has wrongly held that there is violation of permit conditions of vehicle and prayed for allowing the appeal.
10. Per contra, the learned counsel for the respondent No.2 Sri.S.K.Kayakamath vehemently contended that the Tribunal has properly taken into consideration the relevant materials on record and has -8- allowed the just compensation and therefore, it does not require any further indulgence from this Court and prayed for dismissal of the appeal.
11. After hearing the learned counsels for the parties and on perusal of the records, the following points would arise for consideration:
1. Whether the appellant-claimant is entitled for enhancement of compensation?
2. Whether the Tribunal has erred in fastening the liability on the owner of the vehicle?
12. This Court answers the above points No.1 and 2 in affirmative for the following:
REASONS
13. In the present case, the liability is fastened on the owner of the vehicle on the ground that the auto rickshaw involved in the accident was plied outside the Byadgi Taluka limits and therefore, the Insurance Company is not liable to pay the compensation. There is -9- violation of policy conditions as more number of passengers were traveling in the auto rickshaw than the permit limit and the driver of the auto rickshaw was not holding a valid driving licence as on the date of accident.
14. Insofar as first contention is concerned, the learned counsel for the appellant submits that in view of the Division Bench ruling in the case of United India Insurance Co. Ltd, by its Divisional Manager vs. Sandhya in MFA.No.102428 of 2017 decided on 07.06.2019, wherein the Division Bench of this Court has clearly held that violation in respect of the policy terms and fastening the liability on the owner of the vehicle exonerating the Insurance Company is not tenable. On close scrutiny of the judgment of the Division Bench, there is sufficient force in the argument made on behalf of appellant and hence on that core the Insurance Company cannot be exonerated. Relevant portion of the said judgment is culled out hereunder:-10-
"18. Therefore, the sole distinction on which the authorities relied on by the learned counsel for the appellant can be distinguished is on the ground that whether there was any violation of the purpose for which the vehicle was to be used and whether the violation of exceeding the territorial jurisdiction granted on the ground to ply the vehicle would amount to violation of purpose for which the vehicle was to be used. If that distinction is understood and kept in mind, we find that whether the Insurance Company can absolve its liability on the ground that the vehicle in question has plied for the vehicle can be decided. Further, the Insurance Company cannot contend that its liability is absolves on the ground that the purpose for which the vehicle was to be used, is violated. Because in this case the sole ground taken is violation of permit condition."
s
15. Insofar as violation of permit condition on account of more number of passengers is concerned, admittedly there are only three claim petitions filed in respect of the accident. Since the offending vehicle is an Auto Rickshaw, it had permit of three passengers and a driver. Therefore, the reasoning assigned by the Tribunal to exonerate the Insurance Company on the ground of -11- excess passengers cannot be countenanced and needs interference.
16. The contention in regard to the driver of offending vehicle not possessing valid driving licence is now covered by the principles of law enunciated in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, reported in AIR 2017 SC 3668. Thus, on the ground of non possessing valid driving licence exonerating the Insurance Company needs to be interfered with. Therefore, the adjudged compensation needs to be paid by the Insurance Company and accordingly, the points are answered.
17. Accident is not in dispute. The Tribunal has taken the income of the injured at the Rs.4,500/- per month, which is on the lower side. Since the accident is of the year 2012, this Court and Lok-Adalath in the absence of cogent material to ascertain the exact income, would consistently consider the notional income for the -12- accidental claim of the year 2012 at Rs.6,500/- per month.
18. The claimant was aged 29 years at the time of accident. The multiplier applied by the Tribunal is correct. The Doctor has assessed the total disability to whole body at 50%. The Tribunal after consideration of the material on record has taken the disability at 13%, which is correct and does not require and interference. Therefore, the appellant is entitled for enhanced compensation under the head loss of future earning which comes to Rs.1,72,380/- (Rs.6,500/- X 12 X 17 X 13%). Further, the appellant is entitled for an amount of Rs.10,000/- towards pain and suffering. The appellant is entitled for Rs.10,000/- towards food and attendant charges, Rs.18,000/- towards loss of income during laid up period and Rs.25,000/- for loss of amenities to total. The compensation awarded by the Tribunal under the head of medical expenses holds goods. Accordingly, the appellant is entitled for the following total compensation:
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1 For Pain and sufferings. Rs.40,000/- 2 For medical expenses. Rs.46,816/- 3 For food and attendant Rs.10,000/-
charges.
4 For loss of income during Rs.18,000/-
laid up period.
5 For loss of amenities. Rs.25,000/- 6 For loss of future earnings. Rs.1,72,380/-
Total Rs.3,12,196/-
19. In view of the foregoing, the following order is passed:
ORDER The appeal is allowed in part.
The appellant is entitled for total compensation of Rs.3,12,196/- as against the compensation awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realization.
Respondent No.2-Insurer shall deposit the entire compensation amount within six weeks' from the date of receipt of a certified copy of this judgment.
Sd/-
JUDGE ckk