Karnataka High Court
Sri B K Harish vs Sri Nagaraj on 28 November, 2018
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
M.F.A.NO.7643/2010 (MV)
C/W
M.F.A.CROB.NO.52/2012 IN M.F.A.NO.7643/2010
AND
M.F.A.NO.6304/2012 (MV)
IN MFA NO.7643/2010
BETWEEN:
Sri B.K.Harish
S/o Sri Keshavamurthy
R/o Bidaragodu and post
Shrungeri Taluk
District: Chikmagalur ... Appellant
(By Sri Chandrakanth R Goulay, Advocate)
AND:
1. Sri Nagaraj
S/o Sri Venkappa Gowda
Aged about 54 years
Manager of Shivashankar
Bus and Kundadri Estate
Agriculturist and
Areca Nut Merchant
R/o Thirthalli Taluk
2
Presently R/at Manjunath
Soraba Road
New Sagar Saw Mill-near
Sagar Town
2. Sri Sathish H M
S/o Sri Manjappanaika
R/o Holagadde, Begar Post
Kundrikodu village
Shrungeri Taluk
3. The Manager,
Bajaj Alliance General
Insurance Co. Ltd.,
M.G.Plaza, Gopi Circle
Shimoga ... Respondents
(By Sri K.T.Gurudeva Prasad, Advocate for R1;
Sri H.S.Lingaraj, Advocate for R2; & R2 is served)
This Miscellaneous First Appeal is filed under Section
173(1) of MV Act praying to set aside the judgment and award
dated 06.02.2010 passed in MVC No.43/2008 on the file of
the Presiding Officer, Fast Track Court, Member-Additional
MACT, Sagar, awarding a compensation of Rs.52,900/- with
interest @ 6% p.a. from the date of petition till realization.
M.F.A.CROB NO.52/2012 IN M.F.A.NO.7643/2010
BETWEEN:
Sri Nagaraj
Aged about 56 years
S/o Sri Venkappa Gowda
Manager of Shivashankar
Bus and Kundadri Estate
Agriculturist and
Areca Nut Merchant
R/o Kundadri
3
Kundalabayalu Post
Thirthalli Taluk
Presently R/at Manjunath
Soraba Road
New Sagar Saw Mill-near
Sagar Town-577401 ... Cross Objector
(By Sri K.T.Gurudeva Prasad, Advocate)
AND:
1. Sathish H M
Major,
S/o Manjappanaika
R/o Holagadde, Begar Post
Kundrikodu village
Shrungeri Taluk-577139
2. B.K.Harish
Major,
S/o Keshavamurthy
R/o Bidaragodu and Post
Shrungeri Taluk-577139
3. Manager,
Bajaj Alliance General
Insurance Co. Ltd.,
M.G.Plaza, Gopi Circle
Shimoga-577201 ... Respondents
(By Sri Chandrakanth R Goulay, Advocate for R1 & R2;
Sri H.S.Lingaraj, Advocate for R3)
This MFA Crob. In MFA No.7643/2010 is filed under
Order XLI Rule 22 of CPC against the judgment and award
dated 06.02.2010 passed in MVC No.43/2008 on the file of
the Presiding Officer, Fast Track Court, Member-Additional
MACT, Sagar, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
4
M.F.A.NO.6304/2012
BETWEEN:
Sri B.O.Panduranga
@ Pande Gowda
Aged about 52 years
S/o Sri Obegowda
R/at Kundalabayalu & Post
Thirthalli Taluk
Presently at C/o Puttaswamy
Hanambi Road, 6th Cross
Aralikoppa Extn.
Jannathgalli, Sagar Town-585323 ... Appellant
(By Sri K.T.Gurudeva Prasad, Advocate)
AND:
1. Sathish H M
S/o Manjappanaika, Major
R/o Holagadde, Begar Post
Kundrikodu village
Shrungeri Taluk-577139
2. B.K.Harish
S/o Keshavamurthy, Major
R/o Bidaragodu and Post
Shrungeri Taluk-577139
3. Manager,
Bajaj Alliance General
Insurance Co. Ltd.,
M.G.Plaza, Gopi Circle
Shimoga-577201 ... Respondents
(By Sri Chandrakanth R Goulay, Advocate for R1 & R2;
Sri O.Mahesh, Advocate for R3)
5
This Miscellaneous First Appeal is filed under Section
173(1) of MV Act praying to set aside the judgment and award
dated 08.02.2010 passed in MVC No.45/2008 on the file of
the Presiding Officer, Fast Track Court, Member-Additional
MACT, Sagar, allowing the claim petition for compensation
and seeking enhancement of compensation.
These MFA's and MFA Cross Objection coming on for
final hearing this day, the Court delivered the following:-
JUDGMENT
The Miscellaneous First Appeal No.7643/2010 is filed by the owner challenging the liability fastened against the owner in MVC No.43/2008. The claimant has filed Cross Objection in MFA CROB:52/2012 in respect of MVC No.43/2008 questioning the liability fixed on the owner and also questioning the quantum of compensation awarded in the said case. The Miscellaneous First Appeal No.6304/2012 is filed by the claimant questioning the quantum of compensation awarded by the Tribunal in MVC No.45/2008 on the file of the Fast Track Court at Sagar.
2. I have heard the arguments of learned counsel for the owner, learned counsel for the Insurance Company as well as learned counsel for the claimant.
6
3. The appellant in MFA No.7643/2010 contended that the second respondent is the driver of the vehicle bearing Reg.No.KA-18/A-411 TATA Mobile 207 and the Tribunal while answering the issues relating to liability, relied upon the Judgments passed by the Hon'ble Supreme Court in Civil Appeal No.3496/2008 and Civil Appeal No.6081/1997, even though these judgments having no relevance, relied upon the said judgments and erroneously fixed the liability on the owner. It is further contended that, admittedly the driver was holding the LMV license covering the light passenger and light goods carriage vehicle and he cannot be said that the he was not possessed the effective driving license to drive light goods carriage permit matador and the laden weight is upto 7500 Kg and the person holding driving license of LMV could be authorized to drive light goods carriage vehicle also and hence, the very fastening the liability on the owner is not sustainable in the eye of law. The owner counsel also relied upon the recent judgment reported in AIR 2017 SC 3668 in the case of Mukund Dewangan vs. Oriental Insurance Company Ltd., and argued that the insurer is liable to pay the compensation. 7
4. The claimant counsel in the cross examination has contended that the tribunal has failed to award any compensation towards the loss of income during laid up period and also loss of future income and also not considered the gravity of the injuries and awarded compensation on all other heads a meager compensation and the same is to be modified by enhancing the compensation.
5. The appellant in MFA No.6304/2012 also questioned the quantum of compensation awarded by the tribunal under all the heads as a meager compensation was awarded and in this case also the tribunal has not awarded any compensation towards loss of income during laid up period and also for the future loss of income and the doctor who has been examined before the tribunal in both the cases has categorically deposed regarding permanent disability and inspite of the evidence of the doctor, the tribunal has failed to award any compensation and hence, the impugned judgment and award of compensation also to be modified. 8
6. Per contra, learned counsel appearing for respondent No.3 in MFA No.7643/2010 i.e., for the insurance company has contended that the judgment of Mukund Dewangan is pending before the larger Bench for reconsideration and hence, the principles laid down in the said judgment cannot be accepted for the present. The counsel appearing for respondent No.3 in MFA No.6304/2012 also adopts the arguments of the counsel who represents on behalf of respondent No.3 in MFA No.7643/2010.
7. After hearing the arguments of the appellant's counsel i.e., owner counsel and claimant's counsel and also the insurance company, this court has to examine regarding consideration about fastening of liability on the owner.
8. The Apex Court in the recent judgment reported in AIR 2017 SC 3668 in the case of Mukund Dewangan vs. Oriental Insurance Company Ltd., has held that if the driver is having LMV, there was no need to take endorsement to drive Light Goods Vehicle and fastened the liability on the insurance company.
9
9. The counsel appearing for the insurance company vehemently contended that the matter is referred to the larger Bench for reconsideration and the same may not detor this court following the law laid down in the case of Ashok Sadarangani and Another v. Union of India & Others reported in (2012) 11 SCC 321 at para 29 was considered by this Court and another judgment was also referred in the case of Manager, National Insurance Company Ltd., v. Saju P. Paul & Another reported in (2013) 2 SCC 41 at Paragraphs 25 and 26 of the judgment in MFA No.6840/2009 c/w MFA No.6945/2009 were extracted and categorically held that the judgments of the Apex Court are complete answer to the question raised by the counsel appearing for the insurer and hence the contention of the insurance company cannot be accepted.
10. Now the question before this Court is with regard to quantum of compensation in MFA CROB No.52/2012 in MFA No.7643/2010 in respect of judgment and award passed in MVC No.43/2008, the tribunal has awarded compensation of 10 Rs.52,900/- taking into all the heads. On perusal of the judgment and award passed in MVC No.43/2008, the tribunal has awarded compensation of Rs.52,900/- under all the heads and on perusal of the head pain and suffering, an amount of Rs.25,000/- is awarded and the claimant has suffered injuries which are noted in Ex.P.5 that, (1) irregular lacerated wound exposing bones, tenderness, muscles of right hand towards ulnor side with finger separated with skin toes from rest of hand (2) small abrasion over forehead and face (3) abrasion 5 x 3 cm over 12 elbow dorsum, (4) lacerated wound 4 x 2 x 0.5 cm dorsum of right foot (5) pain and tenderness both hip joint area treated as inpatient at KMC hospital and there was a fracture of 4th metacarpal and IVth proximal phalanx (right) and these injuries are grievous in nature and he was an inpatient for a period of 9 days at the first instance and 6 days at the second instance and he was an inpatient for a period of 5 days at J.C.Hospital. The claimant also in support of his case examined the doctor as CW-1 through the commissioner, who categorically deposed that he was having disability of 51% to particular limb and 13% to the whole body by taking 1/4th. On 11 perusal of the compensation awarded by the Tribunal and taking into nature of the injuries suffered by the petitioner, the compensation awarded on the head pain and sufferings Rs.20,000/- is too meager and the same is to be enhanced to Rs.40,000/-. I do not find any grounds to interfere with regard to the compensation awarded under the head medical expenses, and the same is based on the documentary proof. However the tribunal has awarded an amount of Rs.2,100/- on the head food and attendant charges and Rs.1,800/- on the head extra nourishment and Rs.1,500/- towards conveyance charges and in all amounting to Rs.5,400/-. The same is to be interfered by taking into note that the claimant was inpatient for a period of 20 days on three occasions and the same has to be enhanced to Rs.30,000/- as against Rs.5,400/-. The tribunal has failed to award compensation on the head loss of income during the laid up period and not having taken note of the nature of the injuries that too fractures and it requires minimum 4 months for uniting of the fractures and no compensation is awarded. The claim of the claimant is that he was managing the office and manager in the Estate and in 12 support of his claim, he has not produced any documentary proof with regard to his avocation and this accident is of the year 2007, a notional income can be taken into consideration an amount of Rs.4,000/-. For having taken Rs.4,000/- for a period of 4 months, it comes to Rs.16,000/-. Hence, the claimant is entitled for compensation of Rs.16,000/- under the head loss of income during laid up period.
11. Now with regard to future loss of income is concerned, the doctor who is examined through commissioner has categorically deposed that the claimant has suffered disability of 51% to the particular limb and by deducting 1/4th has assessed the permanent disability of 13% to the whole body. The counsel appearing for the insurance company contended that the avocation of the claimant that he was working as manager in the Estate and hence, the question of taking the disability does not arise and the said contention of the insurance company advocate cannot be accepted for the reason that this court is not taking disability of 100%, the only disability in respect of particular limb and hence, it is 13 appropriate to take the income as Rs.4,000/- x 12 x 11 x 13%=Rs.68,640/-.
12. The compensation awarded by the tribunal under the head loss of amenities also on the lesser side and taking into note of the accident is of the year 2007, it can be enhanced to RS.20,000/- as against Rs.5,000/-.
13. For having discussed above in detail, the cross objector in MFA Crob.No.52/2012 in MFA No.7643/2010 is entitled for compensation of Rs.1,97,140/- as against Rs.52,900/-.
14. In MFA No.6304/2012, the Tribunal while considering the case of the claimant regard award of compensation is concerned, even though the doctor has been examined, in para 18 of the judgment has wrongly proceeded that the doctor has not been examined. However, an observation is made that there is no reason to disbelieve or discard the documentary evidence and inspite of said observation has been made in the judgment, no compensation 14 is awarded under the head loss of income during laid up period and also future loss of income.
15. The counsel appearing for the appellant has vehemently contended that the disability has to be taken at 100% and the doctor who has been deposed before the Tribunal through commissioner has deposed that he has suffered 50% disability to the particular limb and not assessed the disability to the whole body. However, he is having restriction of movement upto 150 as against 1200 degree and there is also shortening of 3 cm and the doctor in his evidence says that he is not in a position to discharge the duties as agriculturist.
16. On perusal of the judgment and award, the tribunal by referring Ex.P.5 taken note of the injuries i.e., (1) irregular lacerated wound multiple abrasion around right knee with upper part of tibia (2) part out of skin with surrounding swelling and contusion and he has been diagnosed for (1) inter trochantic fracture right femur supra condylar fracture right fibula upper 1/3rd and lower 2/3 junction and referred these 15 injuries are grievous in nature and he was in patient for a period of 82 days in total. The doctor also in his evidence says about the restriction of movement and shortening of 3 cm and inspite of that, the tribunal has discussed in detail regarding the nature of injuries and lost sight on the evidence of doctor, who has been examined through commissioner and the disability is not been considered and no compensation is awarded under the head loss of future income and also loss of income during laid up period.
17. Now coming to the head under pain and sufferings, wherein the tribunal has awarded an amount of Rs.30,000/-, taking note of the nature of injuries sustained by the claimant, it appears to be lesser side and the same has to be enhanced to Rs.50,000/- under the head pain and sufferings as against Rs.30,000/-.
18. I do not find any reasons to interfere with the compensation awarded under the head medical expenses, and the same is based on the documentary proof. However the tribunal has awarded an amount of Rs.150/- under the head 16 food and attendant charges and Rs.1,800/- towards extra nourishment and Rs.3,000/- towards conveyance charges and in all amounting to Rs.4,950/-. The same is to be interfered with by taking note that the claimant was inpatient for a period of 82 days in different hospitals i.e., in one hospital for a period of 57 days and in another hospital for a period of 25 days and the attendants have spent more amount for food and nourishment for both injured and for attendant and this head has to be modified, wherein the tribunal awarded in all Rs.4,950/- and there is no basis to award an amount of Rs.150/- for food and attendant charges and having taken note of the period of treatment of 82 days if has to be enhanced to Rs.30,000/- as against Rs.4,950/-.
19. The tribunal has also awarded compensation of Rs.10,000/- under the head loss of amenities which is also on the lesser side and taking note of the accident is of the year 2007, it can be enhanced to Rs.40,000/- as against Rs.10,000/-.
17
20. It has been noted that the doctor who has been examined through the commissioner has categorically says that the disability is 50% to particular limb and nature of injuries i.e., there are 4 fractures inter trochantic fracture right femur supra condylar fracture right fibula upper 1/3rd and lower 2/3 junction the tribunal ought to have taken the same into consideration and not awarded any compensation on the head loss of future income by taking into disability in respect of particular limb it comes to 25% and the same is lesser side, when the tribunal has taken 25% disability, the arguments of the appellant's counsel that the tribunal ought to have taken 100% disability cannot be accepted. Since the claimant is having shortening of 3 cm and also restriction of movements, which is just and reasonable.
21. In order to arrive for taking of notional income is concerned, this is an accident of the year 2007 and the appropriate notional income would be Rs.4,000/-. For having taken note of the nature of the injuries and the claimant was unable to do any work during the laid up period is concerned, 18 it is appropriate to take 6 months and hence, I award an amount of Rs.4000/- x 6 months = Rs.24,000/- under the head loss of income during laid up period. Taking note of the injuries and disability at 25% suffered by the claimant, the loss of future income can be worked out it comes to Rs.4000x12x13 x 25% = Rs.1,56,000/-.
22. The tribunal has not awarded any compensation under the head future medical expenses and the evidence of the doctor clearly shows that the implants is in situ, and hence, the appellant is in need of another Rs.20,000/- for future medical expenses.
23. In view of the discussion made above, in all the claimant is entitled for compensation of Rs.3,40,000/- as against Rs.64,950/-.
24. The counsel appearing for the insurance company brought to my notice that there was delay of 871 days in filing the appeal in MFA No.6304/2012 and the appellant also filed an application for condonation of delay which is numbered as IA No.1/2012 and for having taken note of the reasons 19 mentioned in the affidavit, the appellant is not entitled for the interest for the delayed period of 871 days in filing the appeal.
In view of the discussion made above, I proceed to pass the following:
ORDER
(i) The appeal in MFA No.7643/2010 is allowed.
The judgment and award passed in MVC Nos.43/2008 and 45/2008 are modified.
(ii) MFA Crob.No.52/2012 in MFA No.7643/2010 and MFA No.6304/2012 are partly allowed.
The compensation awarded in MVC No.43/2008 is modified and enhanced to Rs.1,97,140/- as against Rs.52,900/-. The compensation awarded in MVC No.45/2008 is modified and enhanced to Rs.3,40,000/-
as against Rs.64,950/-.
(iii) The insurance company is directed to pay the compensation with 6% interest within 20 six weeks from the date of receipt of the copy of this Order.
(iv) Office is directed to refund the amount in deposit to the insured/owner and send back the LCR to the tribunal forthwith.
Sd/-
JUDGE Kmv/-