Karnataka High Court
H K Shivaramu vs H S Shivaramum on 4 December, 2020
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.8334 OF 2016(MV)
BETWEEN:
H.K.Shivaramu,
S/o Late. Kariyappa
@ Doddachannegowda,
Aged about 58 years,
H.Hosur Village,
Maddur Taluk,
Mandya District
Pin-501401. .... Appellant
(By Sri.Kemparaju, Adv.)
AND
1. H.S.Shivaramum,
S/o Shivu @ Janaka,
Aged about 31 years,
Honnnayakanahalli Village,
Maddur Taluk,
Mandya District Pin-571 401.
2
2. H.S.Sathish,
S/o Shivanna,
Aged about 34 years,
Honnanayakanahalli Village,
Maddur Taluk,
Mandya District Pin-571 401.
3. The Manager,
United India Insurance Co. Ltd.,
Mandya Branch,
Mandya Pin-571 401. ...Respondents
(By Sri.Lakshminarasappa, Adv. for
Sri. B.C.Seetha Rama Rao, Adv. for R3:
R1 & R2 are served and unrepresented)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated: 26.11.2015
passed in MVC No.720/2014 on the file of the Senior
Civil Judge, MACT, Maddur, partly allowing the claim
petition for compensation and seeking enhancement
of compensation.
This MFA Coming on for admission, this day,
H.T. Narendra Prasad J., delivered the following:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being 3 aggrieved by the judgment dated 26.11.2015 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal briefly stated are that on 06.03.2013, the claimant was proceeding on his CT 100 motorcycle bearing registration No.KA-11/R-4780 from Thorebommanahalli Village, on Thorebommanahalli - Puttegowdanadoddi road. When he reached in front of Milk diary near Manteswamy Temple at Honnanayakanahalli village, at that time, one Hero Honda Passion Plus motorcycle bearing registration No.KA-03/EZ-8443 being driven by its rider at a high speed and in a rash and negligent manner, came from the same direction and suddenly took his vehicle on the right side without giving any signal and dashed against the vehicle of the claimant. As a result of the aforesaid accident, 4 the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act on the ground that he was an agriculturist, earning Rs.5,00,000/- per annum and in addition to that he was also rearing cows and was earning Rs.20,000/- per month. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent riding of the offending vehicle by its rider.
4. On service of notice, the respondent Nos.1 and 3 appeared through counsel and respondent No.3 filed written statement in which the averments made in the petition were denied. It was pleaded that the liability of the insurance company is subject to the 5 terms and conditions of the policy and provisions of the Motor Vehicles Act. It was further pleaded that the accident has occurred due to the negligence on the part of the claimant. It was further pleaded that at the time of the accident the rider of the offending vehicle was not holding a valid and effective driving licence to drive the said vehicle. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. The respondent No.2 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and got exhibited 17 documents 6 namely Ex.P1 to Ex.P17. On behalf of the respondents, neither any witness was examined nor got marked any documents. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its rider, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.96,500/- along with interest at the rate of 7% p.a. and directed the rider and owner of the offending vehicle to jointly and severally deposit the compensation amount along with interest. Being aggrieved, the claimant has filed this appeal.
6. The learned counsel for the claimant has raised the following contentions:
Firstly, the Tribunal is not justified in fastening the liability on the rider and the owner of the 7 offending vehicle on the ground that the rider of the offending vehicle was only having a Learners Licence, therefore, the insurance company is liable to pay the compensation.
Secondly, even if there is violation of any policy conditions, the insurance company has to pay the compensation amount with liberty to recover the same from the rider and owner of the offending vehicle. In support of his contentions, he has relied on the Full Bench decision of this Court in the case of 'NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA AND ANOTHER' ILR 2020 Kar.2239.
Thirdly, in respect of quantum of compensation is concerned, at the time of the accident claimant was aged about 55 years, he was doing agricultural work and was earning Rs.5,00,000/- per annum and was also rearing cows and was earning Rs.20,000/- per 8 month. Due to the accident claimant was unable to do his work, but the Tribunal has failed to award any compensation under the head 'loss of future earnings'.
Fourthly, the compensation awarded under the other heads are on the lower side. Hence, he sought for allowing the appeal and seeking enhancement of the compensation.
7. On the other hand, the learned counsel for the Insurance Company has raised the following counter-contentions:
Firstly, it is not in dispute that at the time of the accident the rider of the offending vehicle was not holding a valid and effective driving licence to drive the said vehicle. The same is evident from Ex.P2 - charge sheet. Since the insured has violated the policy conditions, the Tribunal has rightly fastened the 9 liability on the rider and the owner of the offending vehicle.
Secondly, in respect of quantum of compensation is concerned, the injuries suffered by the claimant are minor in nature. He has not examined the doctor to assess the disability. The Tribunal on the basis of the materials available on record has rightly granted the global compensation of Rs.96,500/-. Hence, he sought for dismissal of the appeal.
8. We have considered the submissions made by the learned counsel for the parties and have perused the records.
9. It is not in dispute that the accident has occurred due to rash and negligent driving of the offending vehicle by its rider.
10
10. On the basis of the evidence of the parties and the materials available on record, i.e., Ex.P2 - charge sheet the Tribunal has rightly held that the rider of the offending vehicle was not holding a valid and effective driving licence and fastened the liability on the respondent Nos. 1 and 2 - the rider and the owner of the offending vehicle jointly and severally. In view of the law laid down by a Full Bench of this Court in the case of YELLAVVA (supra), even though there is violation of policy conditions, when it is not in dispute that as on the date of the accident the offending vehicle was covered by the insurance policy, the insurance company has to pay the compensation with liberty to recover the same.
11. In respect of quantum of compensation is concerned, the claimant has suffered the following injuries:
11
"1. Lacerated wound over the Right Tempo parietal area
2. Abrasion over left knee joint 1cm*1cm bleeding.
3. bleeding from the left ear.
4. Lacerated wound over left tempo-parietal area
5. Swelling and tenderness over the left middle 1/3rd of clavicle".
But he has not examined the doctor and he has also not produced any disability certificate. Therefore, the Tribunal is justified in not awarding any compensation under the head 'loss of future earnings'.
Due to the accident the claimant has suffered grievous injuries and he has suffered lot of pain during the period of treatment. Taking into consideration the wound certificate - Ex.P8, medical bill - Ex.P11 and deposition of PW-1, we are inclined to enhance the 12 compensation granted by the Tribunal under the head 'pain and suffering' from Rs.60,000/- to Rs.1,00,000/- and 'loss of amenities' from Rs.30,000/- to Rs.50,000/-. The compensation awarded by the Tribunal under the head 'medical expenses, conveyance etc.' remains unaltered.
12. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 60,000 1,00,000 Medical expenses, food, 6,500 6,500 nourishment, conveyance and attendant charges Loss of amenities 30,000 50,000 Total 96,500 1,56,500 The claimant is entitled to a total compensation of Rs.1,56,500/-. The insurance Company is directed to deposit the compensation amount along with 13 interest at 7% p.a. within a period of four weeks from the date of receipt of copy of this judgment, with liberty to recover the same from the rider and the owner of the offending vehicle.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE Sd/-
JUDGE Cm/-