Karnataka High Court
Namdev S/O Gundappa Metre vs Tippanna S/O Maruti Dubulgundi And Ors on 12 October, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2023:KHC-K:8202
MFA No. 200768 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO. 200768 OF 2017 (MV-I)
BETWEEN:
NAMDEV
S/O GUNDAPPA METRE,
AGE: 38 YEARS, OCC: COOLIE AND
AGRICULTURE AND BUSINESS,
R/O VILLAGE KALMANDARGI,
TQ. KALABURAGI-585 105.
...APPELLANT
(BY SHRI BASAVARAJ R. MATH, ADVOCATE)
AND:
Digitally signed
by LUCYGRACE 1. TIPPANNA
Location: HIGH S/O MARUTI DUBULGUNDI,
COURT OF
KARNATAKA AGE: 42 YEARS, OCC: DRIVER,
R/O HIRANAGAON,
TQ: BASAVAKALYAN,
DIST: BIDAR-585 401.
2. MANIKAPPA S/O GUNDAPPA,
AGE: 46 YEARS, OCC: BUSINESS AND
OWNER OF VEHICLE BEARING NO.
KA.36/M-3291, R/O HOUSE NO.11-3203,
NEW RAGHAVENDRA COLONY,
BRAHAMPUR, KALABURAGI-585 103.
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MFA No. 200768 of 2017
3. DIVL. MANAGER,
CHOLAMANDALAM M.S.GENERAL
INSURANCE COMPANY LIMITED,
2ND FLOOR, NSC BHOSE ROAD,
CHENNAI (TAMILNADU)-600 002.
4. TIPPANNA
S/O AMBARAYA POLICE BIRADAR,
AGE: 30 YEARS, OCC: DRIVER,
R/O MARUGTTI,
TQ: KALABURAGI-585 103.
5. VISHWARAJ
S/O MAHADEVAPPA KELDODDI,
AGE: 46 YEARS, OCC: BUSINESS AND
OWNER OF VEHICLE BEARING NO.
KA.32/B-1504, R/O H.NO.209/48/3A,
2ND BLOCK, OM NAGAR, SEDAM ROAD,
KALABURAGI-585 104.
...RESPONDENTS
(BY SRI.SUBHASH MALLAPUR, ADV. FOR R3;
V/O DATED 07.06.2017 NOTICE TO R1 AND R2 IS DISPENSED
WITH; R4 SERVED;
SRI. MANVENDRA REDDY, ADV. FOR R6;
V/O DATED 04.09.2023 NOTICE TO R5 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 14.11.2016 PASSED BY THE II
ADDL. SENIOR CIVIL JUDGE AND MACT, KALABURAGI IN MVC
NO.755/2011.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 25.09.2023, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
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MFA No. 200768 of 2017
JUDGMENT
Challenging judgment and award dated 14.11.2016 passed by II Addl. Senior Civil Judge and MACT, Kalaburagi (for short 'tribunal') in MVC no.775/2011, this appeal is filed.
2. Sri Basavaraj R. Math, learned counsel for appellant submitted that appeal was by claimant for enhancement of compensation and challenging dismissal of claim petition against respondent no.6. It was submitted that since neither owner nor insurer of vehicle had preferred appeal, finding of tribunal regarding occurrence of accident, involving of insured vehicle due to rash and negligent driving of same by its driver, issuance of insurance policy its coverage as on date of accident are not in dispute. It was further submitted that tribunal had held respondents no.1 and 3 liable to pay 50% compensation and respondents no.4 and 5 liable to pay remaining 50% of compensation. Even said apportionment was not challenged by respondents.
3. Insofar as exoneration of respondent no.6 from liability, it was submitted that tribunal discharged liability of -4- NC: 2023:KHC-K:8202 MFA No. 200768 of 2017 respondent no.6 on ground that driver of Jeep belonging to respondent no.5 was not having driving licence. But, as per ratio in Pappu and Ors. vs. Vinod Kumar Lamba and Anr.1, even in such case, insurer would be liable to pay compensation to third party claimants and thereafter recover same from insured.
4. For enhancement, it was submitted that as on date of accident i.e. 21.11.2010, claimant was 32 years of age and earning `10,000/- per month as coolie. But, tribunal erroneously took it at `6,000/- only. It was further submitted that as per Ex.P9 - disability certificate, claimant sustained fracture of right radius and ulna which was mal-united and assessed by PW.2 - Doctor to have caused permanent physical disability to extent of 36%. But, tribunal considered functional disability at only 10% and awarded inadequate compensation. It was submitted that even compensation granted under other heads was on lower side and tribunal failed to award any compensation towards future medical expenses. On above grounds sought for allowing appeal.
1 2018 (3) SCC 308 -5- NC: 2023:KHC-K:8202 MFA No. 200768 of 2017
5. Sri Manvendra Reddy, learned counsel for respondent no.6 sought to support impugned award. It was submitted that under similar circumstances, in case of non- possession of driving licence by driver of insured vehicle, Division Bench of this Court case in Smt.H.Kumari and another vs. B.C.Sridhar and others (MFA no.2482/2015 disposed of on 16.06.2020), had affirmed dismissal of claim petition against insurer and therefore no interference was warranted. Relying on decision of Hon'ble Supreme Court in Balu Krishna Chavan Vs. The Reliance General Insurance Company Ltd., & Ors. in SLP no© no.33638/2017 disposed of on 03.11.2022, it was contended that no order directing insurer to pay and thereafter recover compensation from insured could be passed. It was further submitted that without pleading specific ground in memorandum of appeal, appellant could not assail same by oral contentions. Even on quantum, it was submitted that award by tribunal did not warrant interference.
6. Sri Subhash Mallapur, learned counsel for respondent no.3 sought to support award. -6-
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7. Heard learned counsel, perused impugned judgment and award, and record.
8. From above submission, following points arise for consideration:
ii) Whether dismissal of claim petition against respondent no.6 warrants interference?
iii) Whether claimant is entitled for enhancement of compensation?
Point no.1:
9. Though, contention questioning finding on liability of respondent no.6 was urged it is seen that same is not supported by specific ground in memorandum of appeal.
10. Insofar as contentions urged without specific pleading, Hon'ble Supreme Court in case of Chinta Lingam v. Govt. of India2 held that unless factual foundation has been laid in the pleadings no argument is permissible to be raised on that particular point. It is settled law that pleadings are in nature of notice to other party about stand taken and calling upon other 2 (1970) 3 SCC 768 -7- NC: 2023:KHC-K:8202 MFA No. 200768 of 2017 party to meet it. Therefore, appellant cannot urge any contention without taking specific ground in memorandum of appeal. Admittedly, insurer had taken specific contention regarding liability on ground of lack of driving licence by driver of insured vehicle in its objections filed before tribunal. In fact, there is specific finding by tribunal based on such contention. Therefore, appellant cannot be stated to be unaware of same. Having chosen not to take such contention, appellant cannot be permitted to raise same in arguments. Therefore, on ground of lack of specific pleading in appeal alone, there cannot be any interference with finding of tribunal on liability of respondent no.6. Point no.1 is answered in negative.
Point no.2:
11. Though claimant had stated that he was working as coolie and earning `10,000/- per month, he did not substantiate same by specific evidence. In absence, tribunal assessed it notionally. Though notional income for year 2010 is `5,500/-, tribunal has taken it at `6,000/-. Therefore, there cannot be any enhancement.
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12. Claimant sustained fractures of base of 2nd and 3rd metacarpal bones and head of 2nd and 4th metacarpal bones of right hand, apart from fracture of both bones in right forearm. Ex.P.5 - wound certificate records fracture of lower 1/3rd of right radius and ulna apart from fracture of metacarpal bones. Same are referred to in disability certificate and in deposition of PW.2. Mal-union of fractures is noted. But disability is assessed as under:
"Disability:
i) restriction of right elbow movements - 10%.
ii) restriction of right wrist movements - 10%
iii) deformity - 3%
iv) difficulty in lifting over head objects
remove and placing at the same place - 9%
v) Pain (mild) - 3%
vi) Dominant extremity - 4%"
13. Since, disability insofar as right wrist is at 10%, consideration of functional disability at 10% by tribunal would not call for interference.
14. Though, claimant sustained fracture of right radius and ulna and also 2nd, 3rd and 4th metacarpals of right hand, -9- NC: 2023:KHC-K:8202 MFA No. 200768 of 2017 tribunal awarded only Rs.30,200/- towards pain and suffering, which would be inadequate. It would be appropriate it to enhance to Rs.50,000/-. Award of Rs.2,840/- towards medical expenses against bills produced and Rs.4,000/- towards incidental expenses would not call for interference. Even award of Rs.24,000/- towards loss of income during laid up period would also admit no enhancement. But, award of Rs.10,000/-
towards loss of amenities in light of restriction of movement of right hand sustained would be inadequate. It is enhanced to Rs.25,000/-.
15. Since, there is reference to implants in situ in deposition of PW.2, claimant is awarded Rs.25,000/- towards future medical expenses. Thus, Point no.(ii) is answered partly in affirmative and claimant is entitled for total compensation as follows:
Sl.no Heads of compensation Amount in `
1. Pain and suffering 50,000/-
2. Medical expenses 2,840/-
3. Future loss of income 1,15,200/-
4. Loss of amenities 25,000/-
5. Attendance and other incidental charges 4,000/-
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6. Loss of income during laid-up period 24,000/-
7. Future medical expenses 25,000/-
Total 2,31,040/-
16. Consequently, following:
ORDER
Appeal is allowed in part. Claimant is held entitled for total compensation of Rs.2,31,040/- as against Rs.1,86,040/- with interest at 6% per annum from date of petition till deposit.
Dismissal of claim petition against respondent no.6 is upheld. Therefore, finding of tribunal insofar as apportionment of liability and directions issued regarding deposit and release shall apply to enhanced compensation also.
Insurer and respondents no.4 & 5 shall deposit balance compensation within six weeks from date of receipt of certified copy of this order.
Sd/-
JUDGE PSG List No.: 1 Sl No.: 22