Karnataka High Court
Sri Pranet Hardshavardhan vs Sri Ramesh N on 4 August, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.5634/2018
C/W
MISCELLANEOUS FIRST APPEAL NO.4848/2018
IN MFA NO.5634/2018
BETWEEN:
SRI PRANET HARDSHAVARDHAN
REDDY V.L. @ HARSHAVARDAN
S/O LATE LAKSHMAN REDDY V
AGED ABOUT 35 YEARS
R/AT:DHANAMETANAHALLI
KANAPPALLI POST
AMBUJI DURGA HOBLI
CHINTAMANI TALUK
CHIKKABALLAPUR DISTRICT.
... APPELLANT
(BY SRI. VISHWANATHA K. ADV.,)
AND:
1. SRI RAMESH N
S/O NATARAJ
R/AT NO.1487, 13TH CROSS
R.K.HEGDE NAGAR
NAGAVARA, BENGALURU
2. RELIANCE GENERAL INSURANCE
CO. LTD., CENTENARY BUILDING,
M.G.ROAD, BENGALURU.
... RESPONDENTS
(BY SRI ASHOK N. PATIL, ADV. FOR R2,
R1 SERVED)
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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 11.04.2018
PASSED IN MVC NO.520/2016, ON THE FILE OF THE XXI
ADDITIONAL SMALL CAUSES JUDGE AND XIX ACMM., MEMBER,
MACT (SCCH-23), BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN MFA NO.4848/2018
BETWEEN:
THE RELIANCE GENERAL
INSURANCE COMPANY LTD.,
EAST WING, 5TH FLOOR, NO.28,
CENTENARY BUILDING, M.G.ROAD
BENGALURU-560 001
NOW REPRESENTED BY
MANAGER LEGAL.
...APPELLANT
(BY SRI ASHOK N. PATIL, ADV.,)
AND:
1. PRANET HARSHAVARDHAN
REDDY V.L. @ HARSHAVARDHAN
S/O LATE LAKSHMAN REDDY V.
AGED ABOUT 34 YEARS
R/AT DHANAMETANAHALLI
KANAPPALLI POST,
AMBAJI DURGA HOBLI
CHINTHAMANI TALUK
CHIKKABALLAPURA DISTRICT.
2. RAMESH N S/O NATARAJ
R/AT NO.1487, 13TH CROSS
R.K.HEGDE NAGAR
NAGAVARA, BENGALURU.
...RESPONDENTS
(RESPONDENTS-1 AND 2 SERVED)
3
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 11.04.2018
PASSED IN MVC NO.520/2016 ON THE FILE OF THE XXI
ADDITIONAL SMALL CAUSES JUDGE AND XIX ACMM, MEMBER,
MACT, BENGALURU (SCCH-23), AWARDING COMPENSATION OF
RS.2,42,688/- WITH INTEREST AT THE RATE OF 6% P.A. FROM
THE DATE OF PETITION TILL THE DEPOSIT OF THE AMOUNT.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Both the appeals are filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment and award dated 11.04.2018 passed in MVC No.520/2016 by the XXI Additional Small Causes Judge and the Motor Accident Claims Tribunal (SCCH-23) at Bengaluru (hereinafter referred to as 'the Tribunal' for brevity). MFA No.5634/2018 is filed by the claimant/appellant seeking enhancement of compensation and MFA No.4848/2018 is filed by the Insurance company questioning the liability fastened on it. 4
2. Though the matter is listed today for admission, with the consent of learned counsel from both side, the matter is taken up for final disposal.
3. The brief facts of the case are that on 07.12.2015 at about 4.30 p.m., while the claimant/appellant was near adur bus station, Byrathi road, Bidarahali Hobli, Bengaluru East Taluk, in his two wheeler bearing No.KA-05-HJ-6560, the driver of Tata Ace vehicle bearing No.KA-53-A-5906 driven the vehicle in a rash and negligent and dashed against the claimant/appellant causing him grievous injuries. Immediately after the accident, the claimant/appellant was shifted to MVJ Hospital, Hoskote, where he has undergone surgery for multiple fracture injuries.
4. Hence, a claim petition was filed by the claimant/appellant under Section-166 of the M.V. Act, claiming compensation for the injuries sustained by him in the accident. The Tribunal, on appreciating the materials on record, allowed the petition in part with cost and awarded a compensation of Rs.2,42,688/- with interest at 5 6% per annum from the date of petition till the date of deposit holding that respondent No. 2-Insurance Company is liable to pay compensation.
5. Regarding liability, the learned counsel for the Insurance Company submitted that the driver of the offending vehicle Tata Ace was holding only the licence of Light Motor Vehicle (Non-Transport) but he was driving TATA Ace vehicle bearing Reg.No.KA-53-A-5906, which is LMV Transport vehicle. Therefore, there is violation of terms and conditions of the policy. Hence, the Insurance Company is not liable to pay the compensation. He placed reliance upon Ex.R4-Driving License extract wherein the driver is having licence of LMV (Non-Transport). He also submitted that the quantum of compensation awarded by the Tribunal is correct and no enhancement is required. Therefore, prays for dismissal of the appeal.
6. On the other hand, learned counsel for the claimant/petitioner submitted that the driver of the offending vehicle was holding licence to drive LMV. He submitted that there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is 6 holding licence to drive LMV, he can drive LMV-transport vehicle also. Therefore, the driver of the offending vehicle was holding valid driving LMV licence as on the date of the accident. In support of his contention, he placed reliance upon the judgment of the Hon'ble Apex Court in the case of Mukund Dewangan v. Oriental Insurance Company Ltd., reported in AIR 2017 SC 3668. Hence, the Tribunal has rightly fastened liability on the Insurance Company. Therefore, prays for dismissal of the appeal filed by the Insurance company. The learned counsel for the appellant/claimant submitted that the quantum of compensation awarded under various heads is on lesser side. Therefore, seeks for enhancement of the compensation.
7. In the present case, the offending vehicle is Tata Ace bearing registration No.KA-53-A-5906 dashed against the two wheeler of the claimant/appellant bearing registration No.KA-05-HJ-6560. Undisputedly, the Tata Ace vehicle is a LMV (Transport). Ex.R4 is the driving licence extract produced by the Insurance Company to contend that the driver of the Tata Ace vehicle was not 7 having driving licence to drive the LMV-transport vehicle and he was having driving licence of LMV (Non-transport) and it is not liable to pay compensation. In view of the judgment of the Hon'ble Apex Court in the case of Mukund Dewangan (supra), wherein it has held that if a driver is holding licence to drive LMV (Non-transport), he can drive LMV-transport vehicle of such class without any endorsement to that effect. The present case is squarely covered by the judgment of the Hon'ble Supreme Court in Mukund Dewangan case (supra). Hence, I am of the opinion that the Insurance company is liable to pay compensation by indemnifying the owner of the Tata Ace vehicle.
8. Regarding Quantum, the Tribunal has awarded compensation under various heads which are as under:
1 Towards Pain and Rs. 40,000/- Sufferings 2 Towards loss of future Rs. 1,22,880/- earnings 3 Towards medical expenses Rs. 54,788/- 4 Towards Conveyance, Rs. 25,000/-
nourishment and nutritious food Total Rs. 2,42,688/-
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9. The appellant/claimant was a driver by profession and contended that he was earning Rs.20,000/- and due to the accident he has sustained fracture of right femur lower 1/3rd and had undergone surgery for uniting fracture injuries and another for removal of implants. The Tribunal considering the gravity, nature of injury, period of inpatient and nature of surgery, has rightly awarded compensation of Rs.40,000/- towards 'pain and sufferings' and the same found to be correct and proper.
10. Further, the compensation awarded by the Tribunal towards Medical expenses, conveyance, nourishment and nutritious food are found to be correct and proper.
11. The Tribunal has awarded compensation of Rs.1,22,880/- towards 'loss of future earnings' considering the disability at 8% by taking the income of the claimant at Rs.8,000/-, which is on the lower side.
12. In the present case, the accident has occurred on 07.12.2015 and the claimant/appellant was a driver by 9 profession. As per the chart of Karnataka State Legal Services Authorities, the notional income of the claimant/appellant is taken at Rs.9,000/- per month. The Tribunal has taken permanent disability only to an extent of 8% though the doctor-PW2, in his evidence, has stated that the claimant has suffered permanent disability to the extent of 41% to his right lower limb and 20.5% to his whole body and awarded compensation of Rs.1,22,800/-. The criteria for calculating functional disability is discussed by the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another, reported in (2011) 1 SCC 343. Considering the nature of injurie s sustained by the claimant/appellant, age and profession by driver, 13% of disabili ty is taken into consideration as functional disability affecting the earning capacity of the claimant. The Tribunal has taken the multiplier as '16' considering the age of the claimant as 33 years as on the date of accident is found to be correct. There fo re, the 'loss of future earnings' is calculated by taking 10 the income of the claimant at Rs.9000 x 13/100 x 16 x 12 = 2,24,640/-.
13. The Tribunal has no t awarded any compensation under the head 'loss of income during the laid up period' for the fracture caused to his right lower limb. The claimant/appellant must have undergone treatment for a period of three months. Hence, compensation of Rs.27,000/- is awarded towards 'loss of income during the laid up period.'
14. Further, the Tribunal has not awarded any compensation to wards 'loss of ame nities'. Due to the facture of right leg femur, he might have found difficulty in walking, squatting, climbing upstairs etc. Hence, compe nsation of Rs.30,000/- is awarde d towards 'loss of amenities'.
15. Hence, the claimant/appellant is entitled for a total enhanced compensation, under various heads as follows:
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Pain and sufferings : Rs. 40,000/-
Loss of future earning capacity : Rs. 2,24,640/-
(Rs.9,000 x 13/100 x 16 x 12)
Medical Expenses : Rs. 54,788/-
Loss of earnings during laid of period : Rs. 27,000/-
(Rs.9,000 x 3 months)
Loss of Amenities In Future Life : Rs. 30,000/-
Conveyance, nourishment and RS. 25,000/-
nutritious food
TOTAL : Rs. 4,01,428/-
16. Therefore, the appellant is awarded a total compensation of Rs.4,01,428/- as against the compensation awarded by the Tribunal at Rs.2,42,668/-. Hence, the appellant is entitled for an additional compensation of Rs.1,58,760/- (Rs.4,01,428, - Rs.2,42,668), along with interest at 6% per annum from the date of filing of the petition till deposit.
17. Accordingly, I pass the following:
ORDER i. The appeal filed by the appellant/claimant is allowed in part.12
ii. The appeal filed by the Insurance Company is dismissed.
iii. The impugned judgment and award dated 11.04.2018, passed in MVC No.520/2016, on the file of the XXI Additional Small Causes Judge and the Motor Accident Claims Tribunal, (SCCH-23),Bengaluru, is modified to an extent that the appellant - claimant is entitled for an additional compensation of Rs.1,58,760/- (Rupees one lakh fifty eight thousand seven hundred sixty only), along with interest at 6% per annum from the date of filing of the petition till deposit in addition to what has been awarded by the Tribunal.
iv. The amount in deposit shall be transferred to the Tribunal forthwith.
v. 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.
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vi. No costs.
vii. Draw award accordingly.
Sd/-
JUDGE
TL