Karnataka High Court
Shri. Ashok S/O. Ramu Koravi @ Mane vs Shri. Yamanappa S/O. Shivappa ... on 21 December, 2020
Author: Ravi.V.Hosmani
Bench: Ravi.V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21 S T DAY OF DE CEMBER, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MR. JU STICE RAVI V.HOSMAN I
M.F.A.NO.102884/2018 (MV)
BETWEEN :
SHRI ASHOK S/O RAMU KORAVI @ MANE,
AGE : 42 YEARS, OCC: CRAFTSMAN
(BURUD WORK) & MASON NOW NIL,
R/O C/ O D OGAD U KORAVI,
MANGANKODI ROA D,
H.M.S PORTS , IDA GA MASJID,
NANDANI-416 001,
TAL: SHIROL, DIS T: KOLHA PUR.
... APPELLANT
(BY SRI SANTOSH B.RAWOOT, ADVOCATE)
AND :
1. SHRI YAMANAPPA
S/O SHIVANA PPA CHIGARADDI ,
AGE : 52 YEARS, OCC: BUSINESS ,
R/O LA XANATTI, T AL: MUDHOL,
DIST: BAGALK OT-597 313.
2. THE UNITED INDIA INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE 9, ROHIT CHAMBERS,
5 T H FLOOR, JANMBHOMI MARG,
FORT, MUMBAI, THROUGH ITS
BRANCH OFFICE A T KATAGI BUILDIN G,
:2:
KACHERI ROAD , J AMKHANDI,
DIST: BAGALK OT-587 301.
... RES PONDENTS
(BY SRI N .R.K UPPELUR, ADV OCATE FOR R.2 : NOTICE TO
RESPOND ENT NO.1 IS SERVED AND UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173( 1) OF THE MOTOR VEHICLES ACT , 1988 PRAYING
THIS COURT T O MODIFY THE JUD GMENT AND AWARD DATED
04.04.2018 PASS ED IN MVC.NO.54/2015 BY THE MOTOR
VEHICLE CLAIMS TRIBUNAL-XIV , MUDHOL AND A WARD OF
RS.24,52,205/- COMPENSATION IN ADDITION TO THE
COMPENSATION A WARDED BY THE TRIAL COURT BY HOLDING
THAT RESPONDEN T NO.2 IS ALSO LIABLE TO PAY THE SAME,
IN THE INTEREST OF J USTICE AND EQUITY.
THIS MFA COMING ON F OR ADMIS SION THIS DAY, RAVI
V.HOSMAN I, J., DELIVERED THE F OLLOWING:
: JUDGMENT :
Challenging the judgment and award dated 04.04.2018 passed by Motor Vehicle Accident Claims Tribunal-XIV, Mudhol ("Tribunal" for short) in MVC.No.54/2015, this appeal is filed by claimant seeking enhancement of compensation.
2. Brief facts leading to case are as under:
Claimant was proceeding from Lokapur to Bagalkot on a motorcycle bearing registration No.MH.11/AC-4453 :3: on 17.07.2014 at about 2.00 p.m. At that time, one Indica Car bearing registration No.KA.48/M-1845 came from opposite direction and dashed against motorcycle, due to which, claimant suffered following injuries i.e., segmental fracture femure right side, fracture IT right hip joint, fracture tibia right leg M/3, head injury with multiple scull bone fracture and intracranial hemorage. Despite treatment said injuries caused permanent physical disability resulting in loss of earning capacity. Claiming compensation for loss of earning capacity the claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 ("M.V.Act" for short) seeking compensation of Rs.30,00,000/- against owner and insurer of Car.
3. On notice, respondent No.1-owner of Car appeared and filed objections denying entire averments and alleging contributory negligence against rider of motor cycle.
4. Respondent No.2-Insurer filed objections admitting issuance of insurance policy with regard to Car, :4: but contending that liability was subject to terms and condition of policy and further contended that driver of Car was not possessing a valid and effective driving licence to drive Car as on the date of accident.
5. Based on above pleadings, Tribunal framed following issues:
1. Whethe r the petitio ner prove s that on 17.07.2014 at 2.00 p.m . ne ar Chulki petrol pump, J alikatti on Lokapur-Bagalkot road, when petitio ner Ashok Koravi @ Mane was coming on motorcycle No.M H-11-A C-4453 as pillio n rider from Bagalkot to Lokapur village at that time driver of I ndia Vista Car be aring No .KA-
48/M1845 came from opposite dire ction in rash and ne gligent manner and dashed to motorcycle , as a result pe titio ner sustaine d grievous injuries all ove r the bo dy, as state d in the pe tition?
2. Whethe r petitio ner pro ves his age and income?
3. Whethe r petitione r pro ves that the driver of Indica Vista Car bearing No.KA .48/M-1845 was holding a valid and e ffective D.L. and motor cycle had a valid insurance po licy coverage on the date o f accide nt?
:5:
4. Whethe r the pe titione r is entitled fo r the compensation as claimed? If so, to what extent and from whom?
5. What order or Award?
6. After answering issue No.1 in affirmative, Issue Nos.2 to 4 partly in affirmative has passed an award granting total compensation of Rs.5,47,795/- under following heads.
Sl. Amount in
Particulars
No. Rs.
1 Loss of future income 1,12,320/-
2 Towards Medical Expenses 3,75,075/-
3 Towards Pain and 20,000/-
sufferings
4 Loss of income during 24,000/-
period of treatment and
rest.
5 Towards attendant charges 6,400/-
6 Towards loss of amenities. 10,000/-
TOTAL 5,47,795/-
7. Insofar as liability, Tribunal by taking into consideration, violation of terms and conditions of :6: policy, absolved insurance company and held the owner of Car is liable to pay compensation. Challenging the same, claimant is in appeal.
8. Learned counsel Sri Santosh B.Rawoot appearing for claimants-appellant submitted that Tribunal has committed an error in fastening liability on owner instead of passing an award of pay and recover against Insurer, as the claimant was pillion rider of motor cycle and was a third party.
9. It was submitted that, Tribunal also committed error in taking meager percentage of disability and even income considered at Rs.6,000/- per month was on lower side. He also sought enhancement of compensation awarded under other heads.
10. Respondent No.1-owner of vehicle though served with notice has remained unrepresented. :7: Learned counsel for respondent No.2 supported the award of the Tribunal.
11. From the above, it is seen that owner has not challenged the award. Therefore occurrence of accident, involvement of insured vehicle in the said accident and claimant sustaining injuries in the accident are not in dispute. Only the percentage of permanent physical disability, income of claimant and the quantum of compensation are in dispute.
12. From Ex.P.1-FIR and Ex.P.6-Charge Sheet, it is seen that driver of Car is charge sheeted under Sections 3 and 181 of Motor Vehicles Act, 1988. In the absence of any evidence by claimants to show that, driver of Car was having a valid and effective driving licence to drive the vehicle on the date of accident, the finding of Tribunal absolving liability of Insurer to pay compensation cannot be interfered with, as non- possession of any licence to drive vehicle would be a :8: fundamental breach. Therefore the instant case would not attract principle of pay and recover.
13. The accident occurred on 17.07.2014. Injured-claimant was aged about 46 years on date of accident. The appropriate multiplier would be "13". Though the claimant has stated his income was at Rs.20,000/- per month, there is no evidence led to substantiate the same. In the absence of any evidence, it has to be assessed notionally. As per norms adopted for settlement of cases before Lok-Adalath, notional income for year 2014 is Rs.7,500/-. The same is taken as income of claimant.
14. Dr.Hanamant R.Katti, orthopedic doctor assessed permanent disability of claimant to an extent of 50% to right lower limb and issued disability certificate at Ex.P.10. Dr.Amresh Shashidhar Deginal, a Neuro Surgeon, assessed mental disability of 10% and issued certificate Ex.P.163. However, while :9: assessing loss of earning capacity consequent to functional disability, we feel that it would be appropriate to consider it at 15%. Thus future loss of income of claimant would be Rs.7,500 X 15 X 12 X 13 = Rs.1,75,500/-. The same is awarded to the claimant.
15. Tribunal has examined medical bills produced and awarded Rs.3,75,075/- towards medical expenses. As there is reimbursement of entire medical expenses, there is no scope for any enhancement under this head.
16. Claimant suffered several fractures as noted above. However, Tribunal awarded Rs.20,000/- towards pain and sufferings, which is meager. In view of claimant suffering three fractures, we deem it fit to enhance it to Rs.80,000/-.
17. Since income of claimant is re-assessed at Rs.7,500/- per month, proportionate enhancement : 10 : towards loss of income during laid-up period would be Rs.30,000/-. The same is awarded to claimant.
18. Tribunal awarded Rs.6,400/- towards attendant charges. We enhance and award Rs.10,000/- towards the same.
19. Considering nature of injuries and disability suffered, compensation of Rs.10,000/- awarded by Tribunal towards loss of amenities also appears to be on the lower side. Thus, we deem it fit to enhance it to Rs.25,000/-.
20. The Tribunal has awarded interest at the rate of 9% per annum. This Court has been consistently awarding interest at the rate of 6% per annum. In the absence of any appeal by the owner of vehicle, we feel it if to award interest at the rate of 6% per annum on the enhanced compensation.
: 11 :
21. Thus, in all claimant would be entitled to total re-assessed compensation of Rs.6,95,575/- under the following heads.
Sl. Amount in
Particulars
No. Rs.
1 Loss of future income 1,75,500/-
2 Towards Medical Expenses 3,75,075/-
3 Towards Pain and sufferings 80,000/-
4 Loss of income during 30,000/-
period of treatment and
rest.
5 Towards attendant charges 10,000/-
6 Loss of amenities 25,000/-
TOTAL 6,95,575/-
Less: Compensation awarded by 5,47,795/-
the Tribunal.
Total Enhanced amount. 1,47,780/-
22. Hence, this Court passes the following : ORDER :
a. The appeal is allowed in part.
b. The claimant-appellant is entitled to compensation of Rs.6,95,575/- as against Rs.5,47,795/- awarded by the Tribunal.: 12 :
For the sake of clarification, the additional compensation awarded in this appeal is Rs.1,47,780/- with interest at the rate of 6% per annum from the date of claim petition till deposit.
c. Judgment and award dated 04.04.2018 passed by the Tribunal in MVC.No.54/2015 is modified as indicated above.
d. The award passed by the Tribunal regarding deposit and disbursal is maintained.
e. Registry is directed to draw award accordingly.
SD/-
JUDGE SD/-
JUDGE EM