Partly allowed

The Divisional Manager v. Nagaraj S/O Eshappa Sunkad

Karnataka HC17 Aug 2020MFA/20963/2011

Case brief

AI extract

What is this about?

High Court of Karnataka allowed the appellant-claimant's appeal in part, enhancing compensation by Rs.10,000, and dismissed the insurance company's appeal on maintainability grounds citing a Supreme Court precedent.

What did the court decide?

Compensation enhanced by Rs.10,000; insurance company's appeal to set aside liability dismissed.

The Divisional Manager Vs Nagaraj S/O Eshappa Sunkad — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 17^{T H} DAY OF AUGUST 2020

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BEFORE

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THE HON’BLE MR. JUSTICE M.NAGAPRASANNA

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M.F.A.NO.20391/2012 (MV) C/W M.F.A.NO.20963/2011 (MV)

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IN M.F.A.NO.20391/2012 (MV)

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BETWEEN :

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NAGARAJ S/O. ESHAPPA SUNKAD, AGE: 35 YEARS, OCC: PHARMACY WORK, R/O. BANNIKATTI AREA, KOPPAL, TQ & DIST: KOPPAL.

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APPELLANT

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(BY SRI CHANDRASHEKAR P.PATIL, ADVOCATE)

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AND :

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THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD., EDIGA HOSTEL COMPLEX,

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OPP. KSRTC BUS STAND, DOUBLE ROAD, BELLARY,

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DIST: BELLARY.

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KONGANANDAN JEEVAMANI D/O K.J.PAPU JOSEPH. AGE: 37 YEARS, OCC: BUSINESS, OWNER OF TRAX BEARING NO.KA-25/C-1595, R/O. PLOT NO.4, BLOCK NO.14, AKSHAY PARK, GOKUL ROAD, HUBLI, DIST: DHARWAD.

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... RESPONDENTS

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(BY SRI M.Y.KATAGI, ADVOCATE FOR R.1) (NOTICE TO R.2 : DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,

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1988, AGAINST THE JUDGEMENT AND AWARD DATED 20.11.2010, PASSED IN MVC NO.497/2009 ON THE FILE OF THE ADDITIONAL MACT & FAST TRACK COURT-II, AT KOPPAL SEEKING ENHANCEMENT OF COMPENSATION

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IN M.F.A.NO.20963/2011 (MV)

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BETWEEN :

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THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD., BELLARY, THROUGH ITS REGIONAL OFFICE, REPRESENTED BY ASST.MANAGER, NEW INDIA ASSURANCE CO. LIMITED., T P HUB, SRINATH COMPLEX, II^{N D} FLOOR, NEW COTTON MARKET, HUBLI-580 022.

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… APPELLANT

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(BY SRI M.K.SOUDAGAR, ADVOCATE)

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AND :

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NAGARAJ S/O ESHAPPA SUNKAD, AGE: 35 YEARS, OCC: PHARMACY WORK, R/O BANNIKATTI AREA, KOPPAL, TQ & DIST: KOPPAL.

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MANJAYYA S/O FAKEERAYYA HIREMATH, AGE: 22 YEARS, OCC: DRIVER, R/O BYAHATTI, TQ: HUBLI, DIST: DHARWAD.

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KONGANANDAN JEEVAMANI, D/O K.J.PAPU JOSEPH AGE: 37 YEARS, OCC: BUSINESS, R/O: PLOT NO.4, BLOCK NO.14, AKSHAY PARK, GOKUL ROAD, HUBLI.

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... RESPONDENTS

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(NOTICE TO R.1 TO R3 SERVED : UNREPRESENTED)

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT 1988, AGAINST THE JUDGMENT AND AWARD DATED 20.11.2010 PASSED IN MVC NO.497/2009 ON THE FILE OF THE MEMBER, ADDL. MACT, & FAST TRACK COURTII, KOPPAL.

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THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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: JUDGMENT :

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These appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) have been filed by the claimants and the insurance company being aggrieved by the judgment dated 20.11.2010 passed by the Additional Motor Accident Claims Tribunal & Fast Track Court-II, at Koppal (hereinafter referred to as “the Tribunal” for short) in M.V.C. No.497/2009.

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Parties will be referred to as per their ranking before the Claims Tribunal.

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Facts giving rise to the filing of the appeal briefly stated are that on 11.02.2009 the claimant was proceeding in Tempo Trax bearing registration No.KA.25//C-1595 from Koppal to Gangavathi. When the vehicle reached near Basapattana at about 5.00 a.m., the driver of the Tempo Trax drove it in an high speed, rash and

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negligent manner and dashed into a Lorry bearing registration No.KA.35/2461 which was parked on the left side of the road. As a result of the aforesaid accident, the claimant suffered grievous head injury, grievous injury to pelvis bone and fracture of hip joint and injuries to all over the body.

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The claimants filed a petition under Section 166 of the Act before the Tribunal in MVC.No.497/2009 on the ground that the claimant has spent huge sums of money towards medical expenses and claimed compensation to the tune of Rs.9,00,000/- along with interest.

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On service of notice, the 3^rd respondentInsurance Company appeared through its counsel and filed its statement of objections denying the facts that the driver of the lorry bearing registration No.KA.35/2461 was parked on the wrong side and stated that the owner of the vehicle in which the claimant was driving by its driver in a rash and negligent manner. The

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liability was not admitted as it was not a passenger carrying vehicle. It was contended that the owner has entrusted the vehicle deliberately to the 1^st respondent to drive the vehicle who had no valid and effective driving licence as he has only authorized to drive LMV non transport vehicle.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence.

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The claimant, in order to prove the case, examined himself as P.W.1 and got exhibited documents as Exs.P1 to Ex.P30. On the other hand respondent-Insurance Company examined one witness and got marked two documents as Exs.R.1 and R.2.

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The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the driver of the offending vehicle and held that

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the Insurance Company is liable to pay a compensation of Rs.53,000/along with 6% interest per annum. The claimants being aggrieved by the compensation awarded for the injuries sustained in the road traffic accident has filed appeal in M.F.A.No.20391/2012 seeking enhancement of compensation. The respondentInsurance Company has preferred appeal in M.F.A.No.20963/2011 against the liability fastened upon it notwithstanding the fact that, the driver of the vehicle did not have valid and effective driving licence to drive the vehicle which was non transport vehicle.

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I have heard Sri Chandrashekar P.Patil learned counsel appearing for the claimant and Sri M.K.Soudagar learned counsel appearing for the respondent-Insurance Company.

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Learned counsel for the appellant would contend notwithstanding the fact that there were fractures the Tribunal has awarded a meager sum

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on the head of pain and suffering and has ignored award of compensation on all other heads.

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On the other hand, learned counsel for the respondent-Insurance Company would

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contend that the compensation awarded by the Tribunal for a swelling of the hip bone which was due to the accident is already on the higher side and does not warrant any interference.

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I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the record.

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Admittedly, to prove the disability that the claimant had suffered, due to the accident in terms Ex.P.5-the wound certificate, no doctor, who either treated or issued the certificate is examined as a witness to prove the said document. Hence, the document based upon which the claimants is now claiming the quantum of compensation to be enhanced has remained only a document and not a piece of evidence.

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Thus, on that ground itself, the scope of enhancement of compensation in favour of the claimant is depleted. But according to certificate, since the claimant has suffered grievous injury, the compensation of Rs.21,000/awarded towards loss of income and pain & suffering appears to be on the lower side.

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Hence, I am of the opinion that enhancement of compensation at Rs.10,000/under the head of loss of income and pain and suffering would meet the ends of justice. Hence, the claimant is entitled to the enhanced compensation of Rs.10,000/- over and above Rs.53,000/- that is already awarded by the Tribunal as a global compensation in the facts and circumstances of the case.

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To the aforesaid extent, the judgment of the Claims Tribunal is modified. Rest of the findings recorded by the Tribunal is sustained. Accordingly, the appeal filed by the claimants in MFA.No.20391/2012 is allowed in part.

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Insofar as the appeal filed by the insurance company in MFA.No.20963/2011 disputing the liability fastened it by the insurance company, the issue is no longer on the ground that the driver of the offending vehicle did not possess a valid and effective driving licence to drive a transport vehicle is concerned, the issue is no longer res-integra in the light of the judgment of the Apex Court in the case of

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Mukund Dewangan Vs. Oriental Insurance Company Limited ’ reported in 2017 AIR(SC) 3668 . Hence, the appeal filed by the insurance company stands dismissed .

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The amount in deposit before this Court, if any, in these proceedings shall be transferred to the Tribunal forthwith.

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Sd/JUDGE

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EM/-

The Divisional Manager v. Nagaraj S/O Eshappa Sunkad

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. Nagaraj S/O Eshappa Sunkad

Case brief

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What did the court decide?

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