Karnataka High Court
Sri Venkatesha K N vs Sri Thipregowda on 13 August, 2020
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE H.T. NARENDRA PRASAD
M.F.A. NO.5371/2016
C/W
M.F.A. NO.5378/2016 (MV)
M.F.A. NO.5371/2016
BETWEEN:
SRI. VENKATESHA K N
S/O NINGE GOWDA
AGED ABOUT 31 YEARS
RESIDING AT DIMBADAHALLI VILLAGE
ALANATHA POST, KANAKAPURA TALUK
RAMANAGARA DISTRICT-562117
ALSO AT
NO.59, SAHARA LAYOUT
GUBBALALA, BANGALORE-560 061.
... APPELLANT
(BY SRI. B.J. VEERENDRA KUMAR, ADV.,)
AND:
1. SRI. THIPREGOWDA
SON OF DALEGOWDA, MAJOR
RESIDING AT IRALPODU VILLAGE
ALANATHA POST, KANAKAPURA TALUK
KANAKAPURA TALUK
RAMANAGARA DISTRICT
(R.C.OWNER OF TRACTOR
2
BEARING REG NO.-KA-05-T-4788)
(SINCE DIED HIS LEGAL HEIRS
BROUGHT ON RECORD).
1(a) SMT. MUNIMARAMMA
W/O LATE THIPREGOWDA
MAJOR
1(b) SRI. SUDESHA
S/O LATE THIPREGOWDA
MAJOR.
1(c) SRI.RAJANNA
S/O LATE THIPREGOWDA
MAJOR.
1(d) SRI. JAYANNA
S/O LATE THIPREGOWDA
MAJOR.
1(e) SRI. KUMARA
S/O LATE THIPREGOWDA
MAJOR.
1(f) SRI. KALASAYYA
S/O LATE THIPREGOWDA
MAJOR.
ALL ARE R/AT IRALPODU VILLAGE
ALANATHA POST, KODIHALLI HOBLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT-562119.
2. THE NEW INDIA ASSURANCE CO. LTD.,
CHANNAPATNA BRANCH
NO.2241/4
GIRIAMMA SHAMBUGOWDA COMPLEX
CHURCH ROAD, CHANNAPATNA
KARNATAKA-574501.
3. SRI. BASAVEGOWDA
S/O BASAVEGOWDA
AGED ABOUT 37 YEARS
BANNIMOKODLU VILLAGE
KODIHALLI HOBLI
3
KANAKAPURA TALUK-562119
RAMANAGARA DISTRICT
(DRIVER OF THE TRACTOR).
... RESPONDENTS
(BY SRI. S.V. HEGDE MULKHAND, ADV., FOR R2
R1(b) SERVED
V/O DTD:30-11-2017 NOTICE TO R1 (A & C TO F
AND R3 ARE DISPENSED WITH)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 5.4.2016 PASSED
IN MVC NO.4771/2014 ON THE FILE OF THE 21ST ADDITIONAL
SMALL CAUSE JUDGE & 19TH ACMM, MEMBER, MACT, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A. NO.5378/2016
BETWEEN:
THE NEW INDIA ASSURANCE CO TLD
CHANNAPATNA BRANCH NO 2241/4
GIRIAMMA SHAMBUGOWDA COMPLEX
CHURCH ROAD, CHANNAPATNA, KARNATAKA-571501
THROUGH ITS BENGALURU REGIONAL OFFICE NO 9/2
MAHALAKSMI CHAMBERS 2ND FLOOR
M.G. ROAD, BENGALURU
REP. BY ITS MANAGER.
... APPELLANT
(BY SRI. S.V. HEGDE MULKHAND, ADV.,)
AND:
1. SRI. VENKATESHA K N
S/O NINGE GOWDA
AGED ABOUT 31 YEARS
R/O DIMBADAHALLI VILLAGE
ALANATHA POST, KANAKAPURA TALUK
RAMANAGARA DISTRICT
ALSO AT NO.59, SAHARA LAYOUT
GUBBALALA, BENGALURU-560061.
4
2. SRI. THIPREGOWDA
S/O DALEGOWDA
MAJOR IN AGE
R/O IRALPODU VILLAGE
ALANATHAPURA POST
KANAKAPURA TALUK
RAMANAGARA DISTRICT-571511
SINCE DECEASED BY LEGAL REPRESENTATIVES.
2(a) MUNIMARAMMA
W/O LATE TIPREGOWDA
MAJOR IN AGE.
2(b) SRI. SUDESHA
S/O LATE TIPREGOWDA
MAJOR IN AGE.
2(c) SRI. RAJANNA
S/O LATE TIPREGOWDA
MAJOR IN AGE.
2(d) SRI. JAYANNA
S/O LATE TIPREGOWDA
MAJOR IN AGE.
2(e) SRI. KUMARA
S/O LATE TIPREGOWDA
MAJOR IN AGE.
2(f) SRI. KALASAYYA
S/O LATE TIPREGOWDA
MAJOR IN AGE.
ALL ARE R/O IRALPODU VILLAGE
ALANATHA POST, KODIHALLI HOBLI
KANAKAPURA TALUK
RAMANAGAR DISTRICT-562119.
3. SRI. BASAVEGOWDA
S/O SRI BASAVEGOWDA
AGED ABOUT 37 YEARS
BANNIMOKODLU VILLAGE
KODIHALLI VILLAGE, KANAKAPURA TALUK
RAMANAGARA DISTRICT-562119.
... RESPONDENTS
5
(BY SRI. B.J. VEERENDRA KUMAR, ADV., FOR R1
R2(b) AND R3 ARE SERVED)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 5.4.2016 PASSED
IN MVC NO.4771/2014 ON THE FILE OF THE XXI ADDITIONAL
SMALL CAUSE JUDGE & XIX ACMM, MEMBER, MACT, BANGALORE,
AWARDING COMPENSATION OF RS.7,79,000/- WITH INTEREST @
6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN
TRIBUNAL.
THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
M.F.A.No.5371/2016 has been filed by the claimants, whereas, M.F.A.No.5378/2016 has been filed by the insurance company against judgment dated 05.04.2016 passed by the Motor Accident Claims Tribunal. Since, both the appeals arise out of the same accident, they were heard analogously and are being decided by this common judgment.
2. Facts leading to filing of these appeals briefly stated are that on 13.05.2013 at about 7.00 p.m., the claimant Venkatesha K.N. was traveling as a pillion rider in motor cycle bearing registration No.KA-02-HC-8252 6 from Dimabadahalli to Kodihalli via Iralpod. When the claimant reached near Sunanada Farm, Kempalanatha Gate, a Tractor bearing registration No. KA-05-T-4788, which was being driven in a rash and negligent manner by its driver came from the opposite direction and dashed against the motor cycle of the claimant. As a result of the aforesaid accident, the deceased fell down and sustained grievous injuries. Thereafter, he was shifted to KIMS Hospital for further treatment.
3. The claimant thereupon filed a petition under Section 166 of the Act inter alia on the ground that the accident took place on account of rash and negligent driving of the driver of the tractor. It was further pleaded that the claimant is a practicing Advocate and used to earn Rs.45,000/- p.m. It was also pleaded that on account of injuries sustained by him, the claimant was referred to KIMS hospital where he was admitted as in patient and on 17.05.2013 a surgery was conducted and rod was installed on the left leg and left hand and 7 the claimant was discharged on 05.06.2013. The claimant was again admitted in hospital as in patient on 01.07.2013 and second surgery was conducted on 03.07.2013 and the claimant was discharged on 11.07.2013. Again the claimant was admitted on 13.06.2015 and third surgery was conducted on 15.06.2015 and the claimant was discharged on 20.06.2015. The claimant claimed compensation to the tune of Rs.25,00,000/-.
4. The respondent No.1 and 3 did not enter appearance and were proceeded exparte. The respondent No.2 however, filed the written statement in which averments made in the petition were denied. It was further pleaded that claimant in collusion with the police authorities have lodged a false complaint against the tractor in question after a period of one month. However, issuance of policy in respect of tractor in question was admitted. It was also pleaded that the 8 driver of the tractor had no valid and effective licence to drive the vehicle.
5. The Claims Tribunal on the basis of the pleadings of the parties, framed the issues and recorded the evidence. The claimant examined himself as PW1 and Dr.R.Yathish as PW2 and exhibited as many as 21 documents. The respondent No.2 examined one witness viz., Rajshekar S and exhibited 7 documents. The Claims Tribunal vide impugned judgment dated 05.04.2016 inter alia held that accident took place on account of rash and negligent driving of the driver of the tractor. It was further held that the claimant in the aforesaid accident, suffered whole body disability to the extent of 10% and is entitled to a compensation to the tune of Rs.7,79,000/- along with interest at the rate of 6% per annum from the date of petition till its realization. Being aggrieved, these appeals have been filed. 9
6. Learned counsel for the insurance company submitted that the amount awarded to the claimant under the head of loss of future income is on the higher side and the driver of the tractor had no valid driving license and the insurance company could not have been held liable to indemnify the insured. It is further submitted that the tribunal ought to have appreciated that First Information Report was lodged after a delay of 33 days and therefore, it was evident that the tractor in question was falsely implicated in the accident. On the other hand, learned counsel for the claimant while inviting the attention of this court to the driving licence Ex.R5 submitted that the same was valid for a period from 31.03.2003 to 31.03.2023 and while referring to Ex.R6 it was pointed out that unladen weight of the tractor was 1945 Kg and therefore, the same was a light motor vehicle (LMV) and since, the driver held the LMV licence, he was competent to drive all vehicles of class including transport vehicles. It is further submitted that 10 since, the claimant was hospitalized and has undergone three surgeries and had an old mother who lived in a village, the claimant with great difficulty after discharge from the hospital got the First Information Report lodged and mere delay in lodging the First Information Report cannot be a ground to doubt claimant's case in genuine cases. It is further submitted that the tribunal ought to have awarded compensation on account of loss of income during the period for which the claimant was under treatment and ought to have appreciated that the claimant remained immobile for a period of nine months and therefore, amount awarded under the head of pain and suffering and food and nourishment expenses is on the lower side. It is further submitted that the tribunal has rightly awarded the sum to the claimant under the head of loss of future income as the claimant has suffered permanent disability.
7. We have considered the submissions made on both the sides and have perused the record. From 11 perusal of Ex.R5 i.e., the driving licence, it is evident that the driving licence was valid for a period from 31.03.2003 till 30.03.2023. Under the aforesaid licence, the driver was authorized to drive a LMV, transport motor vehicle and public service vehicle including a bus. From perusal of Section 2(21) of the Motor Vehicles Act, 1988, it is evident that Light Motor Vehicle means a transport vehicle or omni bus, the gross vehicle weight of either of which or a motor car or tractor or road roller the unladen weight of any of which, does not exceed 7,500 kilograms. From perusal of RTO extract Ex.R6, it is evident that unladen weight of the tractor was 1945 Kilograms. Therefore, the driver of the tractor who was driving the LMV had a valid driving licence, which is evident from Ex.R5. In any case, the Supreme Court in case of 'MUKUND DEWANGAN VS. ORIENTAL INSURANCE COMPANY LIMITED', AIR 2017 SC 3668 has held that the driving holding LMV licence can drive all vehicles of class including transport vehicle. 12 Therefore, the contention raised on behalf of the insurance company that the driver of the tractor did not have a valid effective driving licence need not detain us and the contention that the driver of the tractor did not have an effective driving licence on the date of accident is repelled. Thus, we hold that the driver of the tractor had a valid driving licence.
8. The Supreme Court in 'RAVI VS.
BADRINARAYAN AND OTHERS', (2011) 4 SCC 693 has held that delay in lodging the First Information Report cannot be a ground to doubt the claimants case in genuine cases. It has further been held that in Indian conditions it is not expected that a person who would rush to police station after the accident and the treatment of the victim is given priority over lodging of the First Information Report. In the instant case, it is pertinent to note that claimant's mother resides in a village. The claimant after the accident on 13.05.2013 was hospitalized and was admitted in hospital and a 13 surgery was performed on 17.05.2013 and he was discharged from the hospital on 05.06.2013. Thereafter again on 01.07.2013 he was admitted and second surgery was performed on 03.07.2013. It is pertinent to mention here that claimant has been examined as PW1 and nothing could be elicited from him in his cross examination with regard to the manner of the accident. Therefore, we do not find any reason to disbelieve the testimony of the claimant with regard to the manner in which the accident has taken place and therefore, we hold that merely because there was a delay of 33 days in lodging the First Information Report, it cannot be said that the claim of the claimant is not genuine.
9. Now we may deal with the question of quantum of compensation. It is pertinent to note that PW1 viz., the claimant in para 7 of his evidence has stated that on account of injuries sustained by him in the accident he is not able to walk property. Dr.R.Yathish (PW2) in his evidence has stated that the 14 claimant cannot stand for long duration and has difficulty in climbing stairs and cannot sit crossed leg. He has assessed the permanent disability sustained by the claimant to the extent of 13% of the whole body and 40% of the upper left and lower left limb. Thus, undoubtedly, the claimant has lost his earning capacity as an Advocate and therefore, the tribunal has rightly assessed the permanent disability to the extent of 10% and taking monthly income of the claimant at Rs.30,000/- has awarded a sum of Rs.6,12,000/- on account of loss of future income. The aforesaid amount does not call for any interference in this appeal. It is noteworthy that claimant in para 8 of his evidence has stated that he has remained bed ridden for nine months and had undergone three surgeries. However, the tribunal has not awarded any amount to him on account of compensation for the period of treatment. Therefore, the claimant is awarded a sum of Rs.2,70,000/- as compensation for the period of treatment taking his 15 income to be Rs.30,000/- per month, as has been found by the tribunal. In the facts of the case, the amount awarded under the head of pain and suffering is on the lower side and taking into account the fact that the claimant has undergone three surgeries, we enhance the same to Rs.75,000/- instead of Rs.25,000/-. Similarly, taking in to account the period of hospitalization and laid up period, which was for nine months, the amount of Rs.10,000-/- awarded under the head of food, nourishment and conveyance is on the lower side and the same is enhanced to Rs.50,000/-. Thus, the claimant is held entitled to an additional sum of Rs.3,60,000/- as compensation. The aforesaid amount of compensation shall carry interest at the rate of 6% per annum from the date of filing of the petition till its realization. To the aforesaid extent, the award passed by the Claims Tribunal is modified. The amount in deposit shall be transmitted to the Claims Tribunal for disbursement to the claimant.
16
In view of preceding analysis, M.F.A.No.5371/2016 is partly allowed, whereas M.F.A.No.5378/2016 is dismissed.
Sd/-
JUDGE Sd/-
JUDGE ss