Allowed

Sri. Mallikarjuna v. Shivu

Karnataka HC8 Mar 2021MFA/1675/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka modified the Motor Accident Claims Tribunal's judgment. Applying the Supreme Court's *Pappu* decision, it held the insurer liable to pay first. The court enhanced the compensation to Rs. 7,11,200, awarding Rs. 1,78,200 for loss of future earnings and additional allowances for pain, suffering, and medical expenses.

What did the court decide?

The judgment of the Claims Tribunal was modified to enhance compensation to Rs. 7,11,200/-; the appellant is to be paid at first instance by the insurer.

Sri. Mallikarjuna Vs Shivu — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF MARCH 2021

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PRESENT

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THE HON'BLE MR. JUSTICE ALOK ARADHE

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AND

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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M. F. A. NO.1675 OF 2015 (MV)

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BETWEEN:

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SRI. MALLIKARJUNA VEERABASAPPA BEVINAMAT S/O VEERABASAPPA BEVINAMAT AGED ABOUT 58 YEARS R/O D No. 443/286 2^ND MAIN, NITUVALLI NEW EXTENSION DAVANGERE - 577 002.

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… APPELLANT

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(BY SRI. HAREESH BHANDARY T., ADVOCATE )

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AND:

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SHIVU S/O BASAVARAJ BEERANURU AGED ABOUT 23 YEARS HUNAGALL, BRAMHAG COLONY HUBLI - 580 020.

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SRI. PRABHU G. KURAKALMATH S/O GURUPUTRAPPA AGED ABOUT 36 YEARS

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R/AT C/O ARUNKUMAR BONGALE THASHIDAR COLONY

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UNKAL CROSS, HUBLI - 580 020.

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THE MANAGER

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THE BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD BENGALUR - 560 001.

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… RESPONDENTS

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(BY SMT H.R.RENUKA, ADV. FOR R3 R2 - SERVED

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V/O DATED 30.01.2020 NOTICE TO R1 DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGEMENT AND AWARD DATED 16.12.2014 PASSED IN MVC No.928/2010 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUGDE, 7^TH MACT, DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMNT OF COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal under Section 173(1) of the Motor

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Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) has been filed by the claimants against the judgment dated 16.12.2014 passed by the Motor Accident Claims Tribunal.

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Facts giving rise to the filing of the appeal, briefly stated, are that on 30.03.2010 at about 3.30 p.m., the claimant was traveling in his car bearing Reg.No.KA-25M-8531 from Haveri to Chitradurga and at that time, near Maragatta NH-4, the driver of a lorry bearing Reg.No.KA25/C-847 drove the same in a rash and negligent manner and dashed the car which was being driven by the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries. The claimant thereupon filed a petition under Section 166 of the M.V.Act claiming compensation inter alia on the ground that the accident has taken place on account of rash and negligent driving of the driver of the lorry. It was further pleaded that the claimant sustained grievous injuries in the aforesaid accident and he is entitled to compensation of a sum of Rs.22,00,000/- along with interest.

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Respondent Nos.1 and 2 in their statement of

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objections did not specifically deny the averments with

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regard to the accident which was met by the appellant. However, it was elicited that respondent No.3 is liable to pay compensation. The respondent No.3 in the statement of objections denied its liability to pay compensation on the ground that the driver of the lorry did not have a valid driving licence. It was further pleaded that at the time of the accident, the vehicle was being plied in violation of the terms and conditions of the policy.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1, and Dr.J.C.Basavaraj was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P166. On behalf of the respondents, one Shivu, Prabhu, Balachandra Naik and K.P.Kumar were examined as RW-1 to RW-4 and got exhibited documents namely Ex.R1 to Ex.R14. The Claims Tribunal, on the basis of the material available on record, partly allowed the petition by the claimant. However,

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respondent No.3 Insurance Company was exonerated from its liability to pay the compensation on the ground that the driver of the offending lorry did not have a valid driving licence. The Claims Tribunal quantified the amount of compensation by a sum of Rs.4,93,000/- along with interest at the rate of 6% p.a. from the date of petition till its realization. In the aforesaid factual background, this appeal has been filed.

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The learned counsel for the claimant submitted

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that the Tribunal grossly erred in exonerating respondent No.3 from its liability to pay the amount of compensation on the ground that the driver of the offending lorry did not have a valid driving licence. It is further submitted that the Insurance Company ought to have been made liable to pay compensation and thereafter should have been granted liberty to recover the amount from the owner as well as the driver. It is also urged that the amount of compensation awarded by the Claims Tribunal is on the lower side.

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On the other hand, the learned counsel for the Insurance Company fairly submitted that in view of the law laid down by the Hon’ble Apex Court in the case of PAPPU & ORS. VS. VINOD KUMAR LAMBA & ANR. (AIR 2018 SC 592), the Insurance Company is liable to pay the compensation at the first instance. However, it was pleaded that the Insurance Company be granted the liberty to recover the same from the owner and the driver of the offending vehicle. It is further submitted that the amount of compensation awarded by the Claims Tribunal is just and proper and does not call for any interference in this appeal.

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7. We have considered the submissions made on

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both sides and have perused the records.

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Twin questions arise for consideration in this appeal. Firstly, whether the Insurance Company is liable to make payment of the compensation; and secondly, with regard to the quantum of compensation.

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In view of the law laid down by the Supreme Court in the case of PAPPU (supra) , the respondent No.3 being the valid insurer of the lorry bearing Reg.No.KA-25/C-847, is directed to pay the amount of compensation to the claimant at the first instance and to recover the same from the insured.

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The claimant, admittedly, has sustained injuries

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in the accident which took place on 30.03.2010. Particulars

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of the injuries sustained by the appellant in the aforesaid

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accident are as under:

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(1) Intertrochantic fracture of right femur (2) Fracture of right femur junction of lower 1/3 + middle 1/3

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(3) Condylar fracture of upper 1/3 of right tibia

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(4) Condylar fracture of left upper 1/3 of tibia

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(5) Fracture of right lower end of ulna

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The appellant has remained inpatient for a period of 30 days from 31.03.2010 to 29.04.2010 in Shilpa Diagnostic Hospital, Chitradurga and thereafter for a period of 4 days in the same hospital from 12.05.2010 to

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15.05.2010. Thus, the total period of treatment of the appellant is 34 days. PW-2 Dr.J.C.Basavaraj in his evidence has assessed whole body disability of the appellant at 45% and to the limb at 80%. The MACT, however, has assessed the disability at 15% only. It is pertinent to note that the appellant has not produced any documents with regard to his income.

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Therefore, in view of the guidelines issued by the Karnataka State Legal Services Authority, taking into account the year of accident, we assess the notional income of the claimant at the time of accident at Rs.5,500/- p.m. The claimant was aged about 58 years at the time of accident. In the fact situation of the case and in view of the evidence adduced by Dr.J.C.Basavaraj, we assess disability of the claimant at 30% and taking into account the age of the claimant, the multiplier of '9' will have to be adopted. Hence, the appellant is entitled to a sum of Rs.1,78,200/-

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(5,500 x 12 x 9 x 30/100) on account of loss of future earnings.

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In view of the injuries sustained by the claimant, we hold that the appellant shall be entitled to a sum of Rs.60,000/- on account of pain and sufferings and shall be entitled to a sum of Rs.3,60,000/- on account of medical expenses (actual bills), conveyance, nourishment and attendant charges. The appellant has remained inpatient for a period of 34 days and therefore we hold that the claimant is entitled to a sum of Rs.33,000/- (5,500 x 6 months) on account of loss of income during the period of treatment. We further hold that the appellant is entitled to a sum of Rs.50,000/- on account of loss of amenities and a further sum of Rs.30,000/- on account of future medical expenses. Thus, in all, the claimant is entitled to a sum of Rs.7,11,200/-.

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Needless to state that the enhanced amount of compensation shall carry interest at the rate of 6% per annum from the date of petition till payment is made.

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To the aforesaid extent, the judgment of the Claims Tribunal is modified.

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In the result, the appeal is disposed of.

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SD/JUDGE

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SD/JUDGE

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Sri. Mallikarjuna v. Shivu

Case brief

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Sri. Mallikarjuna v. Shivu

Case brief

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