Partly allowed

Bhautish S/O. Andru Lobo v. the Divisional Manager

Karnataka HC21 Oct 2019MFA.CROB/864/2011

Case brief

AI extract

What is this about?

The High Court modified the award under Section 163-A of the Motor Vehicles Act by increasing compensation to Rs.92,800 based on a recalculation of disability percentage (14%). Liability between two insurers was apportioned at 75% and 25% respectively. The court rejected the insurance company's defense regarding lack of driving licence as the burden of proof was not discharged.

What did the court decide?

Compensation enhanced to Rs.92,800/-; liability apportioned between insurers at 75% and 25%; appeals disposed.

Bhautish S/O. Andru Lobo Vs the Divisional Manager — Motor Accident Claims | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 21^ST DAY OF OCTOBER, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD

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MFA.CROB.NO.864/2011 (MV) C/W. M.F.A.NO.21847/2011 (MV)

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IN MFA.CROB.NO.864/2011 (MV)

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BETWEEN :

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SRI BHAUTISH S/O ANDRU LOBO, AGE : 47 YEARS, OCC: COOK NOW NIL, R/O KAKATI, TQ: BELGAUM, DIST: BELGAUM.

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… APPELLANT

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(BY SRI K.H.BAGI, ADVOCATE)

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AND :

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., 1732, PRABHU BUILDING, RAMADEV GALLI, BELGAUM, NOW REP. BY ITS ADMINISTRATIVE OFFICER, NATIONAL INSURANCE CO.LTD., DIVISIONAL OFFICE, BELGAUM.

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SRI RAVI CHANNAPPA KALLAPPANAVAR, AGE : MAJOR, OCC: BUSINESS, R/O PLOT-47, OM NAGAR, OLD P.B.ROAD, BELGAUM.

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SRI F.R.JOE D’SOUZA, AGE : MAJOR, OCC: PRIEST, R/O BISHOP’S HOUSE, B.C.NO.69, CAMP, BELGAUM.

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THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD., CLUB ROAD, BELGAUM.

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… RESPONDENTS

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(BY SRI M.K.SOUDAGAR, ADVOCATE FOR R.1; BY SMT. GEETA K.M.@ PAWAR ADVOCATE FOR R.2; BY SRI M.A.HIREKODI, ADVOCATE FOR R.3; BY SRI RAVINDRA R.MANE, ADVOCATE FOR R.4)

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THIS CROSS OBJECTION IS FILED UNDER ORDER 41 RULE 22 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND AWARD DATED 25.01.2011 PASSED IN MVC.NO.1539/2009 BY THE PRESIDING OFFICER, FTC-IV & ADDITIONAL SESSIONS JUDGE, BELGAUM AT BELGAUM.

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IN M.F.A.NO.21847/2011 (MV)

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BETWEEN :

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., 1732, PRABHU BUILDING RAMADEV GALLI, BELGAUM

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NOW REP. BY ITS ADMINISTRATIVE OFFICER, NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE BELGAUM.

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… APPELLANT

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(BY M.K.SOUDAGAR, ADVOCATE)

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AND :

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SRI BHAUTISH S/O ANDRU LOBO, AGE : 47 YEARS, OCC: COOK NOW NIL, R/O KAKATI, TQ: BELGAUM, DIST: BELGAUM.

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SRI RAVI CHANNAPPA KALLAPPANAVAR, AGE : MAJOR, OCC: BUSINESS, R/O PLOT-47, OM NAGAR, OLD P.B.ROAD, BELGAUM.

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SRI F.R.JOE D’SOUZA, AGE : MAJOR, OCC: PRIEST, R/O BISHOP’S HOUSE, B.C.NO.69, CAMP, BELGAUM.

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THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD., CLUB ROAD, BELGAUM.

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… RESPONDENTS

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(BY SRI K.H.BAGI, ADVOCATE FOR R.1; BY SMT.GEETHA K.M. @ PAWAR, ADV. FOR R.2; BY MOHAN HIREKODI, ADVOCATE, ADV. FOR R.3; BY RAVINDRA R.MANE, ADVOCATE FOR R.4)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 25.01.2011 PASSED IN MVC.NO.1539/2009 BY THE PRESIDING OFFICER, FTC-IV & ADDITIONAL SESSIONS JUDGE, BELGAUM AT BELGAUM.

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THE MFA.CROSS OBJECTION AND THE APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal in MFA No.21847/2011 is filed by the National Insurance Company Limited and MFA.CROB.No.864/2011 is filed by the claimant challenging the judgment and award dated 25.01.2011 passed in MVC.No.1539/2009 by the

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Presiding Officer, Fast Track Court-IV &

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Additional Sessions Judge, Belgaum at Belgaum, (for short “the Court below”), whereby the Court below has granted a compensation of Rs.67,000/- with interest at the rate of 9% per annum.

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Brief facts of the case are that on 28.04.2009 at about 15.00 hours, the claimant was proceeding from Belagavi towards Chandgad

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on a motorcycle bearing registration No.KA.22/S-3396 as a pillion rider when they came on Belagavi-Vengurla road, near Hindalga village, opposite to Leprosy Hospital, another motorcycle bearing registration No.KA.22/Y6062 came from opposite side and dashed to each other due to rash and negligent riding of riders of both the motorcycles. Due to the said accident, the claimant fell down and sustained grievous injuries. He was shifted to District Hospital, Belagavi and thereafter he was shifted

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to the Vijaya Hospital, Belagavi and took treatment as inpatient. After recovering from the injuries, he has filed a claim petition in MVC.No.1539/2009 before the Court below under Section 163-A of the Motor Vehicles Act, 1988 claiming compensation of Rs.5,00,000/-.

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In order to establish his case, claimant has examined himself as PW.1 and another witness Dr.S.D.Patil as PW.2 and got marked 16 documents as Exs.P.1 to P.16. On the other hand, the insurance company did not examine any witness but got marked two documents as Exs.R1 & R2. On appreciation of the oral and documentary evidence on record, the Court below has awarded compensation of Rs.67,000/with interest at the rate of 9% per annum and fastened the liability on the owner and insurer of the motorcycle bearing registration No.KA.22/Y-6062. Being aggrieved by the same, the insurer of the motorcycle bearing

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registration No.KA.22/Y-6062 has filed MFA.No.21847/2011 and the claimant has filed MFA.CROB No.864/2011 for enhancement of compensation.

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Learned counsel appearing for the appellant in MFA.No.21847/2011 has contended that the Court below has wrongly fastened the liability on the appellant insurance company which is contrary to the material available on record. Secondly, he has contended that the rider of the motorcycle bearing registration No.KA.22/S-3396 was not holding valid driving licence and thirdly he has contended that the Court below has not framed any issue regarding negligence on the part of the vehicle bearing registration No.KA.22/S-3396. Hence he sought for allowing the appeal.

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Per contra, learned counsel appearing for the cross objector in MFA.CROB.No.864/2011 has contended that as per the Schedule-II of

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Section 163-A of the M.V.Act, the annual income of the claimant should be Rs.40,000/-, if his age

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is 45 years and more at the time of accident. But the Court below has taken annual income of the claimant at Rs.36,000/-. He further contended that, the claimant has examined one Dr.S.D.Patil as PW.2. The doctor, in his evidence has specifically stated that the claimant has got permanent physical disability to an extent of 42% to the right lower limb. But the Court below has taken whole body disability at 10% only, which is on the lower side. Hence he sought for enhancement of compensation.

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In reply with regard to disability, Sri R.R.Mane appearing for respondent No.4-New India Assurance Company limited contended that, even though the doctor has assessed permanent physical disability of the claimant at 42% to his right lower limb, 1/3^rd of the same

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should be taken to calculate the whole body disability.

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Learned counsel appearing for

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respondent No.2-National Insurance Company limited has contended that under section 163-A of the M.V.Act, the owner of the vehicle having proved the negligence and insurance company cannot take a defence of negligence. But there is no power for the Court below to decide the quantum of the negligence of the vehicle involved in the accident. Secondly, he has contended that, the burden is on the insurance company that the rider of the vehicle was not having valid driving licence and he further contended that the Court below has given clear finding that the accident has occurred due to rash and negligent driving by the rider of the motorcycle bearing registration No.KA.22/Y6062. Hence he sought for dismissal of the appeal.

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8. Heard the learned counsel for the

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parties and perused the records.

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It is not in dispute that the claimant

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has suffered injuries in the accident occurred on 28.04.2009 due to collision of two motorcycles bearing registration No.KA.22/S-3396 and KA.No.22/Y-6062. At the time of accident he was aged about 45 years, and he was doing coolie work. As per the second schedule of Section 163-A of the M.V.Act, it is very clear that if the claimant is aged about 45 years, his annual income has to be taken at Rs.40,000/-. Therefore the annual income of the claimant is enhanced from Rs.36,000/- to Rs.40,000/-.

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In respect of the second contention raised by the claimant, he has examined the Doctor as PW2. In his deposition, he has categorically stated that there is lower body disability to the extent of 42% and accordingly, the whole body disability would be 14%. The Court below is not justified in taking the

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whole body disability at 10%. Based on the deposition of the Doctor and the disability certificate at Ex.P4, this Court is of the considered opinion that the whole body disability would be 14% in stead of 10% taken by the Court below. Accordingly, the loss of earning capacity is reassessed as under:

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Rs.40,000/- x 13 x 14% = Rs.72,800/-

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In respect of the compensation awarded by

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the Court below in a sum of Rs.15,000/- towards medical expenses and Rs.5,000/- awarded towards pain and suffering remain unaltered.

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In respect of the appeal field by the appellant-Insurance Company, it is relevant to extract Section 163-A of M.V. Act, it reads as under:

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“163-A. Special provisions as to

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payment of compensation on structured formula basis:— (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the

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authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

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Explanation:— For the purposes of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923 (8 of 1923).

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(2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

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(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.”

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Section 163-A(2) stipulates that in any claim for compensation under sub-Section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or negligent or default of the owner of the vehicle or vehicles concerned or of any other person. It is very much clear that there is no burden on the claimants to prove that the negligence in respect of two vehicles involved, but deciding the negligence of involvement of a particular vehicle is concerned on basis of the evidence of the parties, the Court below can decide the liability of the insurance Company. In the case on hand, the Court below on the basis of Ex.P1-FIR; Ex.P2-copy of the complaint; Ex.P3-panchanama and Ex.P7-charge sheet, has held that the rider of the vehicle bearing registration No.KA-22/Y-6062 is responsible for the accident and entire liability is fastened on the insurer of that vehicle. I have perused the evidence of the parties, it is clear that the accident

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occurred due to the negligence of the rider of both the vehicles. By verifying these documents, I am of the considered opinion that the vehicle bearing registration No.KA-22/Y-6062 has contributed 75% of negligence and the vehicle bearing registration No.KA22/S-3396 has contributed 25% negligence to the alleged accident.

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In respect of the contention raised by the appellant-Insurance Company that the owner cum rider of the motorcycle bearing registration No.AK22/Y-6062 was not possessing valid driving licence, for which they have issued a notice to the owner as well as the driver of the offending vehicle, they kept away from entering into the witness box. In the similar circumstances, this Court in the case of the Divisional

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Manager, New India Assurance Co. Ltd., vs. Manamma and others reported in 2014 ACJ 523 and in the case of Iffco-Tokio General Insurance Co. Ltd., Vs. K.Prabhakar Reddy and another

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reported in 2015 ACJ 389 , wherein it is held that it is the burden on the Insurance Company to prove that the rider of the offending vehicle was not having valid driving licence and further held that filing charge sheet is not enough to prove that he is not having valid driving licence and it is the duty of the Insurance Company to examine the owner, driver of the vehicle and officer of the transport department since the Insurance Company filed to discharge the burden.

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In view of the above, the Court below has rightly fastened the liability on the Insurance Company and the judgment and award passed by the Court below is modified and the claimant is entitled to total compensation of Rs.92,800/- instead of Rs.67,000/awarded by the Court below with interest at the rate of 9% p.a. from the date of petition till the date of actual deposit and the appellant-National Insurance Co. Ltd., and the respondent No.4-New India Assurance Co. Ltd., in MFA No.21847/2011 are jointly

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and severally liable to pay the compensation to the claimant. So far as liability is concerned, as already held that it has to be apportioned between the National Insurance Co. Ltd., and New India Assurance Co. Ltd., in the ratio of 75% and 25% respectively.

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With this observation, the appeals are disposed

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of.

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The amount in deposit, if any, before this Court is order to be transmitted to the Court below for disbursement forthwith.

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Em & Vnp*

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Sd/JUDGE

Bhautish S/O. Andru Lobo v. the Divisional Manager

Case brief

What is this about?

What did the court decide?

Bhautish S/O. Andru Lobo v. the Divisional Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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