Partly allowed

Sri Rangegowda B D v. Sri Hanumesh S N

Karnataka HC16 Aug 2022MFA/10432/2018

Case brief

AI extract

What is this about?

The High Court allowed this first appeal filed under Section 173(1) of the Motor Vehicles Act partly. The court enhanced the compensation awarded to the claimant, modified liability provisions to require the insurance company to pay first, and clarified the quantum of future loss of income based on functional disability.

What did the court decide?

Appellant entitled to additional compensation of Rs. 1,28,160 along with interest. Insurance company to pay claim at first instance.

Sri Rangegowda B D Vs Sri Hanumesh S N — Motor Accident Claims | Karnataka HC (2022)

¶1

1 MFA NO.10432/2018

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 16^TH DAY OF AUGUST, 2022

¶4

BEFORE

¶5

THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

¶6

M.F.A.NO.10432/2018 (MV-I)

¶7

BETWEEN :

¶8

SRI. RANGEGOWDA B.D. S/O SRI. DASEGOWDA, AGED ABOUT 37 YEARS, R/O BIDARAKATTE VILLAGE, NAGAVALLI POST, HEBBUR HOBLI, TUMAKURU TALUK.

¶9

… APPELLANT

¶10

(BY SRI SATHISHA J., ADVOCATE)

¶11

AND :

¶12

SRI HANUMESH S.N., S/O SRI. NARASIMHAIAH H., AGED ABOUT 35 YEARS, R/O SINGANAPALYA VILLAGE, PATHAGANAHALLI POST, KOLALA HOBLI, KORATAGERE TALUK, TUMAKURU DISTRICT.

¶13

(OWNER OF THE VEHICLE HERO HONDA, PASSION PRO BEARING REG.NO.KA-06-A-9990)

¶14

THE MANAGER, NATIONAL INSURNCE COMPANY LTD., BRANCH OFFICE, KASTHURI MANSION, 1^ST FLOOR, ABOVE CORPORATION BANK, BEHIND KRISHNA TALKIES, M.G.ROAD, TUMAKURU CITY.

¶15

2 MFA NO.10432/2018

¶16

NOW REPRESENTED BY: THE REGIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD., REGIONAL OFFICE, NO.144, 2^ND FLOOR, SUBHARAM COMPLEX, M.G.ROAD, BENGALURU-560001.

¶17

... RESPONDENTS

¶18

(BY SRI.RAVISHANKAR A., ADVOCATE FOR R2, R1-SERVED)

¶19

THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:11.06.2018 PASSED IN MVC NO.837/2015 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE & MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

¶20

THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶21

J U D G M E N T

¶22

This appeal is filed under Section-173(1), of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act’ for brevity) by the appellant-claimant, challenging the judgment and award dated 11.06.2018, passed in MVC No.837/2015, on the file

¶23

3 MFA NO.10432/2018

¶24

of III^rd Additional Senior Civil Judge and the Motor Accident Claims Tribunal at Tumakuru, (hereinafter referred to as ‘the Tribunal’ for brevity), questioning the liability.

¶25

Brief facts:

¶26

On 15.02.2015 at about 1.15 p.m., when

¶27

the claimant was proceeding by walk on the extreme end of left side of the Balabakatte road, beside Prashanth Talkies at Tumakuru, the driver of the Hero Honda Passion Pro motorbike bearing registration No.KA-06-EK-9660 has driven the same in high speed, rash and negligent manner and dashed to the claimant from his behind and caused accident. Due to the accident, the claimant has sustained fracture and grievous injuries such as left leg tenderness, fracture of both bones, fracture of leg tibia involving upper, middle and lower segments and other injuries all over the body. Immediately after the accident, the claimant was shifted to the Government Hospital, Tumakuru,

¶28

4 MFA NO.10432/2018

¶29

wherein he was admitted as inpatient from 15.02.2015 to 06.03.2015 and at the time of treatment, the claimant has undergone surgery and implants were fixed to his fracture and discharged with an advice of follow up treatment.

¶30

Hence, a claim petition was filed by the claimant under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.1,88,700/- along with interest at 6% per annum, from the date of petition till the date of deposit. The Tribunal held the owner of the offending motor cycle bearing registration No.KA-06EK-9660 is liable for payment of compensation.

¶31

The Tribunal has awarded compensation under various heads as follows:

¶32

5 MFA NO.10432/2018

¶33

1.	10 % Future Loss of Income	:	Rs.	1,15,200/-
2.	Pain & Sufferings	:	Rs.	25,000/-
3.	Medical Expenses	:	Rs.	16,500/-
4.	Conveyance, Attendance and other expenses	:	Rs.	5,000/-
5.	Loss of comforts & amenities	:	Rs.	15,000/-
6.	Loss of Income for 2 months	:	Rs.	12,000/-
	TOTAL	:	Rs.	1,88,700/-

¶34

Exhibit – P6 is the wound certificate, Exhibit-P8 is the discharge summary, Exhibit-P11, P12 and Exhibit-P14 are the case sheet, along with the evidence of Doctor-PW-2 which proves, that the claimant had suffered fracture of left tibia segment fracture and he was treated and operated for left tibia in the form of IM nailing. Therefore, the above said injury is grievous in nature. There is only a single fracture caused. Therefore, a compensation of Rs.25,000/- awarded towards ‘Pain and Suffering’ is appropriate and does not require interference.

¶35

The Tribunal has awarded a sum of

¶36

Rs.16,500/- , toward ‘Medical Expenses’ which is

¶37

6 MFA NO.10432/2018

¶38

as per actual medical bills. Therefore, there is no need for interference on the said head.

¶39

The Tribunal had awarded compensation of Rs.1,75,200/- under the head loss of future income by taking 10% disability and Rs.6,000/- as notional income per month. But in the present case, the Doctor, who has treated the claimants that the claimant had suffered 40% disability towards left lower limb and suffered 15% of disability to whole body. But the Tribunal has considered only 10% of disability towards whole-body and accordingly awarded compensation. Upon considering the nature of injuries sustained as he has suffered single fracture of tibia of the left leg. The Doctor evidence deposing 40% disability towards left lower limb is on higher side, there is no other fracture proved. If 1/3^rd of 40% above stated is taken that would also be on higher side. The Tribunal has taken 10% of disability it is also

¶40

7 MFA NO.10432/2018

¶41

on the lower side compared to the nature of injuries suffered by the claimant. Therefore, single fracture of the leg in the present case fracture of tibia to the left leg and there are no other fractures. On considering the avocation of the claimant that he was doing plumbing work. Therefore, it affects his earning capacity to some extent as he has suffered functional disability. The criteria for calculating functional disability is elaborately discussed by the Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another, reported in (2011) 1 SCC 343, at para Nos.12, 13 and 19, hence, it can be assessed that the claimant suffered 12% functional disability.

¶42

The Tribunal has held notional income of Rs.6,000/- per month, which is lower side the accident was occurred in the year 2015 and therefore the notional income is taken Rs.9,000/- per month as per the chart of Karnataka State Legal Services

¶43

8 MFA NO.10432/2018

¶44

Authorities. The age of the claimant at the time of the accident was 34. Therefore, the appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104 , is ‘16’. Therefore, the compensation under the head ‘Loss Of Future Earning Capacity’ is recalculated and quantified as follows:

¶45

Rs.9,000 x 12/100 x 16 x 12 = Rs.2,07,360/-

¶46

Further, the Tribunal has awarded

¶47

compensation of Rs.5,000/- towards conveyance, attendance and other expenses, which is on lower side. The facts proved from the medical records, that the claimant was in patient for a period of 21 days and also undergone follow up treatment, on discharge from the hospital. Therefore, the compensation under the head of incidental

¶48

9 MFA NO.10432/2018

¶49

expenses is on lower side. Accordingly,

¶50

Rs.20,000/- awarded on the head ‘Conveyance,

¶51

Attendance And Other Expenses’.

¶52

The Tribunal has awarded compensation of Rs.15,000/- towards ‘Loss Of Comfort And Amenities’ , which is on lower side and the same is enhanced to Rs.30,000/-, considering the nature of injuries and difficulties undergone by the claimant.

¶53

The Tribunal has awarded compensation of Rs.12,000/- towards loss of income during laid up period of two months. Since the notional income of the claimant is held at Rs.9,000/- the compensation towards ‘ loss of income during laid up period’ is awarded at Rs.18,000 (Rs.9,000 x 2).

¶54

10 MFA NO.10432/2018

¶55

Therefore, the appellant is entitled to the

¶56

enhanced compensation as follows:

¶57

1.	Loss of Future Income Due to disability (Rs.9,000 x 12/100 x 16 x 12)	:	Rs.	2,07,360/-
2.	Pain & Sufferings	:	Rs.	25,000/-
3.	Medical Expenses	:	Rs.	16,500/-
4.	Conveyance, Attendance and other expenses	:	Rs.	20,000/-
5.	Loss of comforts & amenities	:	Rs.	30,000/-
6.	Loss of Income for 2 months	:	Rs.	18,000/-
	TOTAL	:	Rs.	3,16,860/-

¶58

The appellant-claimant is entitled for a total enhanced compensation of Rs.3,16,860/- as against Rs.1,88,700/- awarded by the Tribunal. Hence, the appellants are entitled for an additional Compensation of Rs.1,28,160/- (Rs.3,16,860 - Rs.1,88,700), along with interest at the rate of 6% per annum from the date of petition till the date of realization.

¶59

LIABILITY:

¶60

The Tribunal has exonerated the insurance

¶61

company to pay the compensation by fastening the

¶62

11 MFA NO.10432/2018

¶63

liability on the owner of the motor cycle bearing registration No.KA-06- EK–9660, on the ground that the owner has failed to prove that the rider of the motor cycle was having valid and effective driving license as on the date of the accident. In the present case, the claimant is a third party. Even though the owner has appeared before the Tribunal but he has not produced any evidence to show that the rider of the motor cycle was having driving license to ride the motorcycle.

¶64

RW-1 is the Officer of the insurance company has deposed that the rider of the motor cycle was not having driving license to ride the motor cycle. Exhibit-R3 is the Notice issued by the Insurance Company calling upon the owner of the motor cycle to produce the Driving License. But the respondent No.1 had not discharged the burden by producing the Driving License either before the insurance company or before the Tribunal. Therefore, the insurance

¶65

12 MFA NO.10432/2018

¶66

company has discharged its initial burden that the rider of the motor cycle was not having driving license to drive the motor cycle. Then the onus shifts on respondent No.1. But respondent No.1 has not entered the witness box and also did not produce driving license to prove that the rider of the motor cycle was having the driving license at that relevant point of time. Hence, the Tribunal is correct by exonerating the insurance company and fastening the liability on the owner of the motor cycle.

¶67

Therefore, in view of that the insurance company has to pay the compensation at the first instance and to satisfy the compensation amount to the claimant at first instance and then recover the same from the owner of the motor cycle as per the principle laid down by the Hon’ble Apex Court in the case of PAPPU AND OTHERS -V- VINOD KUMAR LAMBA AND ANOTHER reported in (2018) 3 SCC 208 and in view of full bench judgment of this court in

¶68

13 MFA NO.10432/2018

¶69

the cases of NEW INDIA ASSURANCE COMPANY LIMITED VS . YELLAVVA AND ANOTHER reported in 2020 ACJ 2560 (HCK) and NATIONAL INSURANCE CO. LTD. V. CHELLABHARATAMMA reported in AIR 2004 SCC 4882. In the present case, the insurance company is absolutely not liable to pay the compensation. But as per Section–149(2) of M.V. Act, the insurance company has taken defence and successfully established. Therefore, the insurance company shall satisfy the claim in respect of the third parties at the first instances, then recover from the owner of the offending vehicle as per the principle of law is laid down in the above stated case. Since claimant is being third party, respondent No.2 – insurance company shall satisfy the claim of the claimant at the first instance with liberty to recover the said amount from the owner of the motor cycle bearing registration

¶70

14 MFA NO.10432/2018

¶71

No.KA-06-EK-9660, as held by the Hon’ble Supreme Court in a catena of decisions.

¶72

Accordingly, I proceed to pass the

¶73

following:

¶74

ORDER

¶75

i. The appeal is Allowed In Part .

¶76

ii. The judgment and award dated 11.06.2018, passed in MVC No.837/2015, on the file of III^rd Additional Senior Civil Judge and the Motor Accident Claims Tribunal at Tumakuru, is modified to an extent that the appellant – claimant is entitled for an additional compensation of Rs.1,28,160/(Rs.3,16,860 - Rs.1,88,700), along with interest at the rate of 6% per annum from the date of petition till the date of realization, in

¶77

15 MFA NO.10432/2018

¶78

addition to what has been awarded by the

¶79

Tribunal.

¶80

iii. Respondent No.2 – Insurance company shall satisfy the claim of the appellant at the first instance and thereafter recover the said amount from the owner of the motor cycle bearing registration No.KA-06-EK9660.

¶81

iv. No order as to cost.

¶82

v. Draw award accordingly.

¶83

Sd/JUDGE

¶84

Sri Rangegowda B D v. Sri Hanumesh S N

Case brief

What is this about?

What did the court decide?

Sri Rangegowda B D v. Sri Hanumesh S N

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S Oriental Insurance Company Ltd., Vs Smt Gangamma

The Managing Director Vs Mr. Kapil Batra

Kapil Batra Vs the Managing Director

Sri Jagadeesh K Vs Sri Krishnappa

Smt Parvathamma Vs Smt Rama Singh

Smt. Shivanagamma Vs Jiyauddin