Allowed

Sri Kenchappa v. Smt Ashubi

Karnataka HC12 Oct 2022MFA/10306/2011

Case brief

AI extract

What is this about?

High Court allowed claimant's appeal in part and dismissed insurer's appeal in a motor accident case. The Court enhanced compensation under specific heads and held the insurance company liable after interpreting that a non-transport license covers transport vehicles under 7500 kgs.

What did the court decide?

Compensation enhanced to Rs.1,57,840/-; Insurance Company directed to deposit amount with interest within six weeks.

Sri Kenchappa Vs Smt Ashubi — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF OCTOBER 2022

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BEFORE

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

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MFA No.10306 OF 2011(MV)

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C/W MFA No.9036 OF 2011(MV)

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IN MFA 10306/2011 BETWEEN:

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Sri. Kenchappa, S/o Venkateshappa, Aged about 31 years, R/at Sahakarasanahalli Village, Kamasamudram Post, Bangarpet Taluk, Kolar District-563101. … Appellant

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(By Sri.Arun Bhat, Advocate)

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AND:

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Smt. Ashubi,

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W/o Bhaskar Sab,

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No.72, Gangatta Village, Kolar Taluk, Kolar District-563101.

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United India Insurance Company, Branch Office: 1^st Floor, Baglur Mansion, Doddapet,

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Kolar-563101. ... Respondents

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(By Sri.Janardhan Reddy, Advocate for R2; Notice to R1 is d/w v/o dated: 13.04.2012)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated:22.06.2011 passed in MVC No.2742/2010 on the file of the 14^th Additional Judge, Court of Small Causes, Member, MACT, Bangalore city, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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IN MFA 9036/2011 BETWEEN:

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United India Insurance Co Ltd., Branch Office: Kolar, Through its Regional Office, 5^th and 6^th Floors, Krishbhavan, Hudson Circle, Bangalore-560 001, Rep. by its Deputy Manager. …Appellant

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(By Sri.Janardhan Reddy, Advocate)

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AND

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Sri. Kenchappa, S/o sri. Venkateshappa, Aged about 31 years, R/at Sahakarasanahalli Village, Bathalahalli post, Kamasamudram Hobli, Bangarpet Taluk, Kolar District-563101.

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Smt. Ashubi, S/o Bhaskar Sab, No.72, Gangatta Village, Kolar Taluk, Kolar District-563101. …Respondents

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(By Sri. Arun Bhat, Advocate for R1: Notice to R2 is H/S v/o dated: 25.08.2015)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated:22.06.2011 passed in MVC No.2742/2010 on the file of the 14^th Additional Judge, Court of Small Causes, Member, MACT, Bangalore city, awarding a compensation of Rs.1,07,840/- with interest @ 6% from the date of petition till payment.

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These MFAs, coming on for hearing, this day, this Court, delivered the following:

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J U D G M E N T

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MFA No.10306/2011 is filed by the claimant whereas

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MFA No.9036/2011 is filed by the Insurance Company under Section 173(1) of the Motor Vehicles Act, (for short, ‘the Act’) being aggrieved by the judgment and award dated 22.06.2011 passed by the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru City (SCCH.10) in MVC No.2742/2010. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed.

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Facts giving rise to the filing of the appeal briefly stated are that on 18.03.2010 at about 4.15 p.m. the claimant was proceeding in autorickshaw bearing

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registration No.KA-07/7243 to reach his village Sahakarasanahalli, Bathalahalli Post, Bangarpet Taluk, Kolar District from Kamasamudram. At that time, the driver of the autorickshaw drove the same at a high speed and in a rash and negligent manner. As a result, the vehicle tumble on the dig at Chikkbaompalli curve, Bangarpet Taluk. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166

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of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. The

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age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.

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The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed exparte.

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On the basis of the pleadings of the parties, the

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Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Srinivasa was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P11. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R7. The Claims Tribunal, by the impugned judgment, inter alia, held that

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the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.1,07,840/- along with interest @ 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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The learned counsel for the claimant has raised the following contentions:

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Firstly, even though the claimant claims that he was doing coolie work and earning Rs.10,000/- per month, but the Tribunal has taken the notional income as only Rs.6,000/- per month.

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Secondly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 11 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He

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has suffered lot of pain during treatment and he has to suffer the disability and unhappiness throughout his life. Considering the same, the compensation granted by the Tribunal under the heads of 'pain and sufferings', 'loss of amenities' and other heads are on the lower side. Hence, he sought for allowing the appeal filed by the claimant.

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On the other hand, the learned counsel for the Insurance Company has raised following counter contentions:

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Firstly, even though the claimant claims that he was earning Rs.10,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally.

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Secondly, the injuries suffered by the claimant are minor in nature, he was inpatient for only 11 days. Considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the

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overall compensation awarded by the Tribunal is just and reasonable compensation.

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Thirdly, the offending vehicle is a transport vehicle.

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As on the date of the accident the driver of the offending vehicle was having valid and effective driving licence to drive LMV (non-transport), but he was driving the transport vehicle. Since the insured has violated the policy condition, the Insurance Company is not liable to pay the compensation. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties and perused the judgment and award and the original records.

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It is not in dispute that the claimant has

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sustained injuries in the road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver.

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The claimant claims that he was earning Rs.10,000/per month. He has not produced any documents to prove his income. Therefore, the notional income assessed by the Tribunal is just and reasonable. The claimant was aged about 30 years at the time of the accident and multiplier applicable to his age group is ‘17’. Accordingly, loss of future earning assessed by the Tribunal is just and reasonable.

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Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He was treated as inpatient for more than 11 days in the hospital and thereafter, has received further treatment. He has suffered lot of pain during treatment and he has to suffer with the disability and unhappiness throughout his life. Considering the same, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.15,000/- to Rs.35,000/-, 'loss of amenities' from Rs.5,000/- to Rs.25,000/-, 'loss of

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income during laid-up period' from Rs.5,000/to

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Rs.15,000/-/

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Considering the nature of injuries, the compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the following

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compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	15,000	35,000
Medical expenses	40,000	40,000
Loss of income during	5,000	15,000
laid up period
Loss of amenities	5,000	25,000
Loss of future income	42,840	42,840
Total	107,840	157,840

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Re.liability:

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It is not in dispute that as on the date of te accident the driver of the offending vehicle was holding LMV (non-transport) licence but he was driving a transport

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vehicle. But in view of the law laid down by the Hon’ble Apex Court in the case of MUKUND DEWANGAN vs. ORIENTAL INSURANCE COMPANY LIMITED reported in (2017) 14 SCC 663 has held that the licence to drive LMV (non-transport) includes licence to drive LMV transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road roller, the unladen weight of any of which, does not exceed 7500 kgs. In the case on hand, the unladen weight of the vehicle involved in the accident is less than 7,500 kgs. In view of the above, the driver of the offending vehicle was holding a valid and effective driving licence to drive the said vehicle. But the Tribunal has erred in fastening liability on the owner of the offending vehicle. In view of the above, the Insurance Company is liable to pay the compensation.

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In the result, the appeal filed by the claimant in MFA No.10306/2011 is allowed in part and the appeal filed

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by the Insurance Company in MFA No.9036/2011 is dismissed. The judgment of the Claims Tribunal is modified.

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The claimant is entitled to a total compensation of Rs.1,57,840/- as against Rs.1,07,840/- awarded by the Tribunal.

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The Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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The amount in deposit is ordered to be transferred to the Tribunal forthwith.

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Sd/JUDGE

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Cm/-

Sri Kenchappa v. Smt Ashubi

Case brief

What is this about?

What did the court decide?

Sri Kenchappa v. Smt Ashubi

Case brief

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