Karnataka High Court
Shantawwa W/O Gurayya Hukkerimath, vs Ajitsingh S/O Premsingh Take, on 5 January, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
M.F.A.NO.25585/2010 (M.V)
BETWEEN:
SHANTAWWA W/O GURAYYA HUKKERIMATH,
AGE: 38 YEARS,
OCC: AGRICULTURE COOLIE (NOW NIL),
R/O: K.C.NAGAR, 2ND CROSS,
BAILHONGAL-591102, DISTRICT: BELGAUM.
... APPELLANT
(BY SRI. MADANMOHAN M KHANNUR, ADVOCATE)
AND
1. AJITSINGH S/O PREMSINGH TAKE,
AGE: 34 YEARS, OCC: BUSINESS,
R/O NEAR RAIT BHAVAN,
BAILHONGAL-591102,
BELGAUM -500016.
2. THE BRANCH MANAGER,
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.,
LAMINGTON ROAD,
OPP: CORPORATION BUILDING, HUBLI-580020,
(INSURER OF VEHICLE NO.KA-22/T-3055/3056)
(POL.NO.GO8999618020184945
VALID FROM 22/8/07 TO 21/8/08).
... RESPONDENTS
(BY SRI. P. G. CHIKKANARAGUND, ADVOCATE FOR R1;
SRI. R.R. MANE, ADAVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 24.05.2010 PASSED IN MVC NO.711/2008 ON
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THE FILE OF THE SENIOR CIVIL JUDGE, ASST. SESSIONS
JUDGE, AND MEMBER, ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, BAILHONGAL, PARTLY ALLOWING THE
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the appellant-claimant assailing the judgment and award passed by the Senior Civil Judge, Asst. Sessions Judge and Additional M.A.C.T, in MVC No. 711/2008 dated 24.05.2010.
2. Heard the learned counsel appearing for the parties and with their consent, appeal is taken up for final disposal.
3. For the sake of convenience, parties are referred to as per their rankings before the Tribunal.
4. Brief facts of the case as averred in the claim petition are that on 17.01.2008 at about 12.00 p.m., the petitioner, Smt. Shantawwa, was proceeding by the side of Bailhongal-Yaragatti road and when she came near I.B. Murgod village, a motorcycle bearing registration No.KA- 3 22/H-9960 came rashly and negligently and dashed to the petitioner. As a result, she fell down and sustained injuries. Immediately, she was taken to PHC Murgod and thereafter she was shifted to Dr. Hanamantgad hospital, Bailhongal and got treated there by Dr. C.D. Kulakarni for the injuries sustained by her in the accident. A criminal case was also registered in Crime No.17/2008. For having suffered the injuries and permanent disability, she filed a claim petition under section 166 of M.V. Act, claiming compensation.
5. In response to the notice, respondents appeared before the Tribunal and filed their written statement. Respondent No.2 has denied the contents of the claim petition and further contended that the rider of the motorcycle was not holding valid and effective driving licence and has violated the driver clause of the policy and as such he is not liable to pay any compensation. On these grounds he prayed for dismissal of the claim petition.
6. On the basis of the above pleadings, the Tribunal framed the following issues:-
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1. Whether the petitioner proves that on 17/1/2008 at about 12.00 hours on Bailhongal-Yaragatti road, near Murgod I.B. at Murgod village, within the limits of Murgod Police Station, in view of negligent use of a Bajaj Vehicle No.KA-22/H-9960 an accident took place resulting in the injuries to petitioner?
2. Whether the petitioner is entitle for compensation? If so, at what extent and from whom?
3. What order?
7. In order to prove the case of the petitioner, she got examined herself as P.W.1 and got examined the doctor as P.W.2 and got marked documents as per Ex.P1 to P29. On behalf of the respondent No.2, he got examined R.W.1 and got marked a document as per Ex.R.1.
8. After hearing the parties to the lis, the impugned judgment and award came to be passed by the Tribunal. For having not satisfied with the compensation awarded by the Tribunal, the appellant-claimant is before this Court.
9. The main grounds urged by the learned counsel for the appellant-claimant are that though the doctor, who 5 came to be examined as P.W.2, has deposed that the claimant suffered 30% disability to the left lower limb and she got difficulties in squatting, sitting cross leg and standing for longtime, the Tribunal by taking the disability to the extent of 8% has awarded the compensation on the lower side. He further contended that the compensation awarded under other heads is also on the lower side. He further contended that the rider of the motorcycle was holding valid and effective Learner's Licence and if a person who is holding licence is considered to be a duly licensed person to drive the vehicle and then under such circumstances, the Tribunal ought to have fastened the liability on the respondent No.2- insurer instead of respondent No.1-owner. He has relied upon the decision in the case of Smt. Renuka W/o. Laxman Katnalli v. Rajashekhar S/o. Yacharappa Kurabar in MFA No.25279/2011 dated 01.07.2015 passed by the Division Bench of this Court and prayed for fastening the liability on the respondent No.2-insurer. On these grounds he prayed for allowing the appeal by setting aside the impugned judgment and award passed by the Tribunal. 6
10. Per contra, the learned counsel appearing for the respondent No.1-owner of the offending vehicle vehemently argued by justifying the arguments made by the learned counsel appearing for the appellant-claimant that the rider of the motorcycle was holding the Learner's Licence at the time of the accident and under such circumstances, the Tribunal ought to have fixed the liability on the respondent No.2-insurer. On these grounds he prayed for modification of the impugned judgment and award passed by the Tribunal.
11. Per contra, the learned counsel appearing for the respondent No.2-insurer has vehemently argued and contended that the rider of the motorcycle was not holding valid and effective driving licence to drive the motorcycle. He was having only Learner's Licence to ride the motorcycle with gear. When the said motorcycle was driven by him, no other experienced person was accompanied with him as per Section 3 of the Motor Vehicles Act. In that light, the Tribunal has rightly fastened the liability on the respondent No.1-owner of the motorcycle by exonerating respondent 7 No.2-insurer. On these grounds he prayed for dismissal of the appeal.
12. The accident in question, so also the involvement of the offending vehicle in the accident, insured with respondent No.2-insurer, is not in dispute.
13. As could be seen from the judgment and award passed by the Tribunal, the appellant-claimant has sustained fracture of L/4th left tibia/fibula with and she got treated by Dr. C.D. Kulakarni at Dr.Hanamantgad Hospital, Bailhongal. She has produced the wound certificate as per Ex.P4. In order to substantiate the fact that she also suffered disability, she got produced the disability certificate as per Ex.P.23 and got examined Dr. C.D. Kulakarni, as P.W.2. In his evidence, he has deposed that he treated the appellant- claimant for the injuries suffered by her in the accident and on examination he found that the appellant-claimant suffered mal-united fracture and was having difficulty in squatting, sitting cross leg and in standing for longtime and as such, he assessed the permanent physical disability to the extent of 30% to the left lower limb. Though the doctor 8 has deposed that the appellant-claimant has suffered physical disability to the extent of 30% to the left lower limb and has not stated the disability to the whole body, the Tribunal ought to have taken the disability to the extent of 1/3rd of 30% while assessing the compensation towards loss of future income. Even as could be seen from the judgment and award, the accident is of the year 2008 and the Tribunal has taken the notional income @ Rs.3,000/- per month in the absence of the documentary evidence. It is well settled principles of law that in the absence of documentary evidence with regard to the income, the Tribunal, while taking the notional income, has to take into consideration the income prevailing during the period of accident. Admittedly, the accident is of the year 2008 and during that particular time, the notional income of Rs.4,250/- is the yardstick which even used to be adopted in settlement of cases before the Lok Adalath. By taking the income of Rs.4250/- per month, by taking permanent disability to the extent of 10% i.e. 1/3rd of 30% and by applying multiplier 15, if the compensation is re-assessed, then under such 9 circumstances, the appellant-claimant is entitled to the compensation of Rs.76,500/- (4250 x 12 x 8% x 15) towards loss of future income. The appellant-claimant is entitled to Rs.45,000/- towards pain and sufferings, Rs.27,700/- towards medical expenses, Rs.10,000/- towards attendant charges, transport, diet and other incidental charges, Rs.12,750/- towards loss of income during the laid off period, and Rs.30,000/- is awarded towards loss of amenities and discomfort. In all the appellant-claimant is entitled to total compensation of Rs.2,01,950/-. Since the Tribunal has already awarded the compensation to the extent of Rs.1,67,900/-, after deducting the same, the appellant-claimant is entitled to additional compensation of Rs.34,050/- with interest @ 6% per annum.
14. The next contention taken up by the learned counsel for the appellant-claimant is that the rider of the motorcycle was holding the Learner's Licence and in that light the Tribunal ought to have fixed the liability on the respondent No.2-insurer. Though the learned counsel for the respondent No.2-insurer contends that the rider of the 10 motorcycle though possessed the Learner's Licence to drive the motorcycle, but as per Section 3 of the M.V. Act, if a person, who is holding learner's licence, wants to ride a motorcycle, he must be accompanied with a person, who is having a licence to ride the motorcycle as a pillion rider. In other words, it is the contention of the learned counsel for the respondent No.2-insurer that whenever a person driving vehicle by possessing a Learner's Licence, he/she shall be accompanied by an instructor or holder of effective driving licence to drive the vehicle and such instructor must sit in such a position to control or stop the vehicle. There is no evidence to show that such a person was accompanied with the rider of the motorcycle. I have gone through the decision quoted by the learned counsel appearing on behalf of appellant-claimant, therein the Hon'ble Court by referring to the decision of the Division Bench of this Court in the case of Oriental Insurance Company Limited v. Felix Correa reported in ILR 1989 KAR 441 has observed that the insurer is liable to satisfy the award. For better understanding, I quote paragraph No.15 of the judgment in 11 the case of Oriental Insurance Company Limited v. Felix Correa reported in ILR 1989 KAR 441, which reads as under:
"15. The condition that a person duly licenced to drive the vehicle should be by the side of such learner to be able to readily control or stop the vehicle is perhaps not made compulsory in case of a person holding Learner's Licence in respect of a motor-cycle perhaps for the reason that no such person could be accommodated on a two wheeler anywhere else than on its pillion if it has one. Therefore the person sitting on the pillion could not be equated to the driver of a vehicle other than a two wheeler. Thus even where a person possesses a Learner's Licence in case of a motor- cycle as in this case he becomes solely responsible for effectively driving or riding the vehicle, he is in sole control of it and therefore if a person driving a motor-cycle under Learner's Licence can be said to be a person "duly licensed"
or holding a valid licence would be the next point for consideration."
15. In the said paragraph, it has been observed that if a person driving motorcycle under the Learner's Licence can be said "duly licensed" or holding a valid licence. In that light, the observation made by the Tribunal to the effect that the respondent No.1-owner of the offending vehicle and the respondent No.2-insurer have not placed any evidence to show that during the accident, a person, who was having an 12 effective licence to ride motorcycle, was not sitting on the pillion of the motorcycle and instructing the rider to ride the motorcycle and there was a violation of Rule 3 of the M.V. Act, does not stand to any reason. In that light, the observation made by the Tribunal is not sustainable in law and the same is liable to be set aside. Accordingly, appeal is allowed in part and the judgment and award dated 24.05.2010 passed in MVC No.711/2008 by the Tribunal is set aside to the extent of fastening of the liability on respondent No.1-owner of the motorcycle. Respondent No.2- insurer is directed to satisfy the award amount.
16. Respondent No.2-insurer is directed to pay the compensation awarded by the Tribunal as well as additional compensation awarded by this Court with up to date interest within a period of six weeks from the date of receipt of certified copy of this order.
Sd/-
JUDGE yan