Karnataka High Court
Santarama Venkappa Nandiwale, vs Ramesh Laxman Nandiwale, on 16 July, 2018
IN THE HIGH COU RT OF KARNAT AKA
DHARWAD B ENCH
DATED T HIS THE 16 T H DAY OF JULY 2018
B EFORE
T HE HON'B LE MRS .JUSTICE K.S.MU DAGAL
M.F.A. NO.24349 OF 2010 [MV]
BETWEEN:
SANTARAMA VENKAPPA NANDIWALE,
AGE: 40 YEARS, OCC:MILK VENDING,
R/O.SANKONATTI, TQ:ATHANI,
DIST:BELGAUM
... APPELLANT
(BY SRI SANJAY S KATAGERI, ADVOCATE
AND :
1. RAMESH LAXMAN NANDIWALE,
AGE:52 YEARS, OCC:AGRICULTURE,
R/O.SANKONATTI TQ:ATHANI, DIST:BELGAUM
2. THE DIVISIONAL MANAGER, BRANCH OFFICE,
THROUGH ITS DIVISIONAL OFFICE
RAMDEV GALLI, BELGAUM
3. SURESH ANNAPPA SAVADI,
AGE: ABOUT 23 YEARS, OCC:AGRICULTURE,
R/O.SANKONATT, TQ:ATHANI DIST:BELGAUM
... RESPONDENTS
(BY SRI A. G. JADHAV, ADV. FOR R2;
SRI ABHISHEK PATIL FOR SRI M.G. NAGANURI, ADV. FOR R3;
R1 - SERVED)
THIS MFA IS FILED U/SEC. 173(A) OF M.V. ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 20.01.2010
PASSED IN M.V.C. NO.300/2007 ON THE FILE OF THE FAST
TRACK COURT, ATHANI (PRESIDING OFFICER, FAST TRACK
:2: M.F.A. No.24349/2010
COURT, ATHANI) PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal of the claimant arises out of the judgment and award dated 20.01.2010 passed by the Fast Track Court, Athani, in M.V.C. No.300/2007.
2. The appellant is the claimant before the Tribunal. Respondent Nos.1 to 3 are owners and insurer of the vehicles.
3. For the sake of convenience, the parties are referred to as per their ranks before the Tribunal.
4. The claimant filed M.V.C. No.300/2007 under Section 163A of the Motor Vehicles Act, 1988 (for short, 'the Act') before the Tribunal claiming compensation of Rs.5,00,000/- from the respondents. Respondent No.1 is the owner of TVS Victor motor cycle bearing No.KA-23/R- :3: M.F.A. No.24349/2010 2254. Respondent No.3 is the owner of motor cycle bearing No.KA-23/L-7599.
5. On 02.09.2006 at about 8.30 a.m. when claimant was proceeding on motor cycle bearing No.KA- 23/R-2254 near Sankonatti village on Sankonatti - Haliyal road the accident took place between the motor cycle driven by the claimant and the motor cycle bearing No.KA-23/L- 7599 driven by one Annappa Savadi. In that regard Athani police registered Crime No.220/2006 against the riders of both the vehicles for the offences punishable under Sections 279 and 338 of I.P.C. and ultimately chargesheeted the claimant himself.
6. Claimant suffered injuries in the said accident and he filed the aforesaid petition before the Tribunal against the owner of the vehicle which he was riding as well as against the owner and insurer of the other vehicle. Respondent No.2 contested the petition denying the accident, injuries suffered by the claimant and its liability. :4: M.F.A. No.24349/2010 Respondent No.2 imputed rashness and negligence to the claimant himself.
7. To substantiate his claim the claimant got examined himself as P.W.1 and got the Doctor examined as P.W.2 and got marked Exs.P-1 to P-32. On behalf of the respondents, no oral evidence was adduced. The copy of the insurance policy was marked at Ex.R-1.
8. The Tribunal by the impugned judgment and award held that claimant has suffered fracture of left radius ulna and has suffered 10% disability to the whole body. Tribunal further held that in the absence of proof of income of the claimant, his income has to be computed notionally at Rs.3,000/- p.m. Tribunal further held that since the claimant himself was at fault, he cannot claim compensation against the owner and insurer of the other vehicle. Tribunal has applied the multiplier of '11' holding the age of the victim as 40 years.
:5: M.F.A. No.24349/2010
9. Thus, Tribunal awarded compensation of Rs.60,000/- under the following heads :
Pain and suffering Rs. 5,000/-
Towards Medical expenses Rs. 15,000/-
Towards future income Rs. 40,000/-
Total Rs. 60,000/-
10. The claimant challenges the said award on the ground of adequacy and exoneration of respondent No.2, the insurer.
11. Sri Sanjay S. Katageri, learned counsel for the appellant seeks to assail the award on the following grounds:
(i) In a claim under Section 163A of the Act, the defence of rashness and negligence on the part of the claimant is not available to the insurer;
(ii) Having regard to the medical evidence on record, the Tribunal was at error in assessing the disability at 10% to the whole body;:6: M.F.A. No.24349/2010
(iii) The medical expenses awarded is on lower side.
To support his contention, he relies upon the judgment of the Hon'ble Supreme Court in United India Insurance Co. Ltd. v. Sunil Kumar and another AIR 2017 SC 5710.
12. Sri A.G. Jadhav, learned counsel for respondent No.2 - insurer seeks to support the judgment and award on the following grounds :
i. The claimant himself was chargesheeted.
Therefore, Tribunal has rightly exonerated the owner and insurer of other vehicle.
ii. Section 163A of the Act applies only to the case where the victim has suffered death or permanent disablement.
iii. The compensation awarded is adequate having regard to the medical evidence.:7: M.F.A. No.24349/2010
13. It is no doubt true that the claimant himself was chargesheeted on the allegations of rash and negligent driving of the vehicle in the public place. There is no dispute with regard to the occurrence of the incident. The only question is, whether the defence of rashness and negligence is available to the insurer in a petition under Section 163A of the Act.
14. On this point, on reference, the Larger Bench of the Hon'ble Supreme Court in Sunil Kumar's case referred to supra has answered the reference as follows :
"9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163A of the Act it is not open for the insurer to raise any defence of negligence on the part of the victim."
15. Therefore, there is no merit in the contention that the claimant was not entitled to seek any compensation against respondent Nos.2 and 3 as he himself was rash and negligent. Therefore, the finding of Tribunal in that regard is unsustainable.
:8: M.F.A. No.24349/2010
16. Regarding the quantum of compensation, though claimant claims to be 37 years, he did not produce any concrete proof for the same. His own wound certificate states that he was 40 years old. Therefore, Tribunal has rightly accepted the same.
17. So far as the injuries, P.W.2 the Doctor deposed that the claimant has suffered 35% of disability. He is not the Doctor who treated the victim soon after the accident. He says that he saw the victim on the date of accident which occurred on 02.09.2006. He vaguely says in his cross- examination that he has given treatment. He has not produced any Discharge Summary or Case Sheet of his hospital. PW.2 himself says that the claimant was first treated in Athani Government hospital. No records of the said hospital are produced.
18. PW.2 deposed to the injury based on Ex.P-6 issued by him. The wound certificate discloses that claimant had suffered fracture of left radius. Regarding the alleged :9: M.F.A. No.24349/2010 injury only x-ray films were produced without reports relating to such X-ray films. Tribunal accepted the contention that the victim has suffered fracture on his left hand based on Ex.P-6. Therefore, though Doctor stated that the disability is 35%, the Tribunal assessed the same at 10% to the whole body.
19. Learned counsel for respondent No.2 contends that Section 163A of the Act is applicable only to the case where the accident has caused the death or permanent disability. Explanation under Section 163A of the Act states that permanent disability for the purpose of section shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (for short, 'W.C. Act'). While explaining the scope of said Explanation, in the judgment in P.P. Babu v. Jacob K. Thomas LAWS (KER) 2011 11 2, Kerala High Court held as follows :
"7. The Tribunal was evidently under a totally erroneous impression that only the total permanent disability can attract a claim under S. 163A. Such a view is impermissible in the light of the explanation to 163A (as understood by us earlier) as also the stipulations in clause 5 of the : 10 : M.F.A. No.24349/2010 Second Schedule to the M.V. Act. Clause 5(a) refers to computation of compensation in cases of permanent total disablement, whereas clause 5(b) refers to the computation of compensation in case of permanent partial disablement. In these circumstances, there is absolutely no room for any confusion of thought on this aspect. We make it clear that under S. 163A, a claim for compensation is perfectly maintainable, where either permanent total disablement or permanent partial disablement has resulted.
8. Though the Tribunal has not said so in so many words, reading of the impugned award conveys that the Tribunal entertained a further confusion of thought as to whether the injuries not scheduled in Schedule I of the Workmen's Compensation Act can be taken into reckoning for the purpose of awarding compensation under S. 163A. The note under clause 5 extracted above only makes it clear that deemed permanent total disablement or permanent partial disablement shall be as specified in Schedule I of the Workmen's Compensation Act. That does not militate against the stipulations in S. 2(g). Non scheduled injuries can also result in permanent partial or total disablement. That confusion has to be disabused straightaway."
(Emphasis supplied) : 11 : M.F.A. No.24349/2010
20. This Court is persuaded to accept the said interpretation and Explanation to Section 163A of the Act. Therefore, this Court is not inclined to accept the interpretation to Section 163A of the Act that the same applies only in case of death or permanent disability as contemplated in Schedule-I of the W.C. Act.
21. Having regard to Schedule-I to Section 163A of the Act, quantum of compensation awarded to claimant is just and reasonable. But the Tribunal committed error in exonerating respondent Nos.2 and 3. Therefore, appeal is partly allowed. The impugned judgment and award is modified as follows :
i. Appeal is partly allowed with costs.
ii. Respondent Nos.1 to 3 are jointly and severally liable to pay Rs.60,000/- to the claimant along with interest at the rate of 6% p.a. from the date of petition till its realization.: 12 : M.F.A. No.24349/2010
iii. Respondent No.2 shall deposit the said compensation before the Tribunal within one month from the date of receipt of a copy of this order.
Sd/-
JUDGE hnm