Karnataka High Court
Sri Shafilla vs National Insurance on 4 January, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 3157 of 2017
C/W MFA No. 6807 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 3157 OF 2017 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6807 OF 2017 (MV-I)
IN MFA NO.3157/2017
BETWEEN:
NATIONAL INSURANCE COMPANY LTD.,
REGISTERED OFFICE,
Digitally signed SHUBHARAM COMPLEX, 2ND FLOOR,
by JAI JYOTHI J
Location: HIGH NO.144, M.G.ROAD,
COURT OF BANGALORE - 560 001
KARNATAKA
REPRESENTED BY ITS MANAGER.
...APPELLANT
(BY SMT. RENUKA H R., ADVOCATE)
AND:
1. SHAFIULLA
S/O ABDUL KARIM SAB
AGED ABOUT 46 YEARS,
R/AT NO. 10E1,
HMT WATCH FACTORY COLONY,
BANGALORE - 560 031.
2. RUDRAIAH
S/O MAHADEVAIAH,
-2-
MFA No. 3157 of 2017
C/W MFA No. 6807 of 2017
ADULT,
R/AT SHANKARAPURA
MUTHIHALLI POST
CHANNEGIRI TALUK,
DAVANAGERE DISTRICT - 577 213.
...RESPONDENTS
(BY SRI. H B RUDRESH, ADVOCATE FOR R1, SRI. KALYAN R.,
ADVOCATE FOR R2)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:16.04.2016 PASSED IN MVC
NO.266/2011 ON THE FILE OF THE VII ADDITIONAL SENIOR
CIVIL JUDGE AND XXXII ACMM, MEMBER, MACT-3,
BENGALURU, AWARDING COMPENSATION OF RS. 1,92,000/-
WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL
THE DATE OF DEPOSIT.
IN MFA NO.6807/2017
BETWEEN:
SRI SHAFILLA
S/O ABDUL KARIM
R/AT NO.10E1,
HMT WATCH
FACTORY COLONY,
BENGALURU.
...APPELLANT
(BY SRI. H B RUDRESH., ADVOCATE)
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MFA No. 3157 of 2017
C/W MFA No. 6807 of 2017
AND:
1. NATIONAL INSURANCE
COMPANY LTD.,
(REGIONAL OFFICE),
REP. BY ITS MANAGER,
SHUBHARAM COMPLEX,
2ND FLOOR, NO.144,
M.G. ROAD, BENGLAURU 560 001.
REP. BY ITS MANAGER,
POLICY NO:603702/31/09/63000016556
VALID FROM 31-3-2010
TO 30-3-2011,
BENGALURU,
KARNATAKA-032.
2. SRI. RUDRAIAH S/O
MAHADEVAIAH,
R/AT SHANKARAPURA,
MUTHIHALLI POST,
CHANNEGIRI TALUK-577213.
DAVANAGERE DISTRICT,
KARNATAKA.
...RESPONDENTS
(BY SMT. H R RENUKA FOR R1., ADVOCATE, R2-SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:16.04.2016 PASSED IN MVC
NO.266/2011 ON THE FILE OF THE VII ADDITIONAL SCJ &
XXXII ACMM MEMBER, MACT-3 BENGALURU. PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
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MFA No. 3157 of 2017
C/W MFA No. 6807 of 2017
THESE APPEALs, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as 'MV Act' for brevity) calling in question the judgment and award dated 16.04.2016, passed in M.V.C.No.266/2011, on the file of the Motor Accident Claims Tribunal And Court of Small Causes, Bengaluru, (hereinafter referred to as 'the Tribunal' for brevity).
MFA No.3157/2017 is filed by the appellant - insurance company, questioning the liability and the quantum of compensation.
MFA No.6807/2017 is filed by the appellant-claimant, seeking enhancement of the compensation awarded by the Tribunal.
-5-MFA No. 3157 of 2017 C/W MFA No. 6807 of 2017
Brief facts:
2. On 21.10.2010 at about 8.30 p.m., when the claimant was travelling on his motor bike bearing No.KA-
18-E-5774 from Bukkamubudi, at that time, the driver of the goods auto vehicle bearing No.KA-17-A-6959 came from Ajampura with high speed and in a rash and negligent manner and lost control over his vehicle and dashed against the motor bike, as a result of which the claimant sustained grievous injuries and took treatment.
3. Hence, a claim petition was filed by the appellant- claimant under Section-166 of the M.V. Act, claiming compensation for the injuries suffered in the accident. The Tribunal on appreciating the materials on record, allowed the claim petition in part, and awarded a compensation of Rs.1,92,000/-, along with interest at 6% per annum from the date of petition till the date of realisation. The Tribunal -6- MFA No. 3157 of 2017 C/W MFA No. 6807 of 2017 held respondent Nos.1 to 2 therein, liable to pay the compensation.
4. Heard arguments of the learned counsel for the appellant-claimant and the learned counsel for respondent
- insurance company and perused the materials on record. REGARDING LIABILITY:
5. The Tribunal had fastened the liability on the respondents viz., insurance company and the owner jointly and severally, of the Goods Auto Vehicle bearing No.KA- 17-A-6959 for the reason that the offending vehicle involved in the accident in the present case is Light Motor Vehicle (Transport), (hereinafter referred to as 'LMV (T)' for brevity), the driver of the offending vehicle was holding Driving License to drive LMV (Non-Transport). Therefore, the driver who is holding Driving License to drive LMV(NT) is also competent to drive LMV(T). The issue involved in this regard is no more res-integra, in view of the judgment -7- MFA No. 3157 of 2017 C/W MFA No. 6807 of 2017 of the Hon'ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED1 (hereinafter referred to as 'Mukund Dewangan case' for brevity). Therefore, by following the ratio laid down by the Hon'ble Apex Court in the above judgment, a person who is holding Driving License to drive LMV(Non- Transport) is also competent to drive LMV(Transport), for which no such separate endorsement for transport is necessary. Therefore, fundamental infraction is not proved. Therefore, the insurance company is liable to indemnify the owner of the Goods Auto Vehicle bearing No.KA-17-A-6959 and pay compensation to the claimants. Therefore, on this ground the insurance company cannot be exonerated from indemnifying the owner of the offending vehicle. Accordingly, the appeal filed by the insurance company is liable to be dismissed. 1 (2017) 14 SCC 663 -8- MFA No. 3157 of 2017 C/W MFA No. 6807 of 2017 REGARDING QUANTUM:
6. The compensation awarded by the Tribunal is as follows:
Pain and Sufferings : Rs. 40,000/-
Loss of Amenities & Happiness : Rs. 15,000/-
Medical and Incidental Charges : Rs. 50,000/-
Loss of Earning during the period : Rs. 15,000/-
of treatment
Loss Of Future Earnings Due to : Rs. 72,000/-
Disability
TOTAL : Rs. 1,92,000/-
7. As per the Wound Certificate at Exhibit-P5 and Discharge Summary at Exhibit-P11, coupled with the evidence of PW-2, Doctor and the documentary evidence, it is proved that the claimant had suffered fracture of right orbit, fracture of frontal bone fracture, fracture of frontal sinus and fracture or right maxillary sinus, etc. The aforesaid injuries are grievous in nature. -9- MFA No. 3157 of 2017 C/W MFA No. 6807 of 2017
8. The Tribunal has awarded a sum of Rs.40,000/- towards 'Pain and Sufferings, which is on lesser side and hence a sum of Rs.60,000/- is awarded.
9. The Tribunal has awarded a sum of Rs.15,000/- towards 'Loss of Amenities And Happiness', which is on lesser side and hence a sum of Rs.30,000/- is awarded.
10. The Tribunal has not awarded compensation towards 'Food / Nourishment / Conveyance / Attendants, etc.,' and hence a sum of Rs.20,000/- is awarded.
11. A sum of Rs.44,855/- is awarded under the head 'Medical Expenses' which is as per actual bills and receipts.
12. The claimant was aged 40 years and the accident has occurred during the year 2010. The Tribunal
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MFA No. 3157 of 2017C/W MFA No. 6807 of 2017 has held the income of the claimant at Rs.5,000/- per month, which is on lesser side. Therefore, as per Chart of notional income recognized by the Karnataka State Legal Services Authority, a sum of Rs.5,500/- is to be taken as notional monthly income of the claimant. The doctor had stated that the claimant had suffered 13% functional disability to the whole-body. But the Tribunal had taken 8% disability to the whole-body. The criteria for calculating functional disability is elaborately discussed by the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another2 Therefore, considering the principles laid down by the Hon'ble Supreme Court stated supra, and the injuries suffered by the appellant and the avocation of the appellant-claimant, certainly the disability will affect his earning capacity. Accordingly, 13% functional disability is taken to the whole-body as assessed by the Doctor. The appropriate multiplier applicable as per the judgment of the Hon'ble Supreme Court, in the case of 2 (2011) 1 SCC 343
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MFA No. 3157 of 2017C/W MFA No. 6807 of 2017 Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another3 is '15'. Therefore, the compensation under the head 'Loss of Earning Capacity Due to Disability' is recalculated and quantified as follows:
Rs.5,500/- x 715 (13% of 5,500) x 15 x 12 = Rs.1,28,700/-
13. In view of the accidental injuries, the claimant would have taken rest atleast for a period of three months. Therefore, by taking income at Rs.5,500/- per month and calculating the laid up period for Three months, the claimant is entitled for a sum of Rs.16,500/- (Rs.5,500 x 3 months), under the head 'Loss Of Earning During Laid Up Period'.
14. Therefore, in modification of the award of the Tribunal, the appellant-claimant is entitled to the following compensation:
3
AIR 2009 SC 3104
- 12 -MFA No. 3157 of 2017
C/W MFA No. 6807 of 2017
Pain and Sufferings : Rs. 60,000/-
Loss of Amenities & Happiness : Rs. 30,000/-
Medical Expenses : Rs. 44,855/-
Loss of Earning during the period : Rs. 16,500/-
of treatment (Rs.5,500 x 3)
Food/Nourishment/Conveyance : Rs. 20,000/-
and Attendant Charges
Loss Of Future Earnings Due to : Rs. 1,28,700/-
Disability
(Rs.5,500 x 13% x 15 x 12)
TOTAL : Rs. 3,00,055/-
15. Therefore, the appellant-claimant is entitled for compensation of Rs.3,00,055/- as against Rs.1,92,000/-.
The appellant - claimant is entitled for an additional compensation of Rs.1,08,055/- (Rs.3,00,055 - Rs.1,92,000) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. The Insurance Company is directed to deposit the amount of total
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MFA No. 3157 of 2017C/W MFA No. 6807 of 2017 compensation within Eight Weeks from the date of receipt of the certified copy of this judgment.
16. Accordingly, I pass the following:
ORDER i. MFA No. 3157/2017 filed by the appellant -
insurance company, questioning the liability and the quantum of compensation is Dismissed.
ii. MFA No.6807/2017 filed by the appellant-
claimant, seeking enhancement of the compensation awarded by the Tribunal is Allowed In part.
iii. The impugned judgment and award dated 16.04.2016, passed in M.V.C.No.266/2011, on the file of the Motor Accident Claims Tribunal
- 14 -MFA No. 3157 of 2017
C/W MFA No. 6807 of 2017
And Court of Small Causes, Bengaluru, is modified to the aforesaid extent.
iv. The appellant - claimant is entitled for an additional compensation of Rs.1,08,055/- (Rs.3,00,055 - Rs.1,92,000) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. However, the appellant-claimant is not entitled for interest for the delayed period of 389 days, in filing the appeal.
v. Insurance company shall pay the compensation to the appellant/claimant.
vi. The amount in deposit shall be transferred to the Tribunal forthwith.
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MFA No. 3157 of 2017C/W MFA No. 6807 of 2017 vii. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
viii. Draw award accordingly.
ix. No order as to costs.
Sd/-
JUDGE
JJ
List No.: 1 Sl No.: 40