Partly allowed

Mr Siddeshi v. Mr Mohammed Saifulla

Karnataka HC22 Apr 2022MFA/4712/2012

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, holding that the driver's lack of transport endorsement did not exonerate the insurer as the larger bench's reference does not stay proceedings. The court enhanced total compensation to Rs.1,98,000/-.

What did the court decide?

Enhanced compensation of Rs.1,14,160/- along with interest at 6% per annum from the date of petition till realization.

Mr Siddeshi Vs Mr Mohammed Saifulla — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^nd DAY OF APRIL, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.4712/2012 (MV)

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BETWEEN :

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MR. SIDDESHI S/O CHIGARAPPA, AGED ABOUT 22 YEARS, RESIDING AT REDDYHALLI VILLAGE, CHALLAKERE TALUK, NOW RESIDING AT VEMANA NAGARA, CHITRADURGA TOWN-577501.

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… APPELLANT

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(BY SRI B. PRAMOD, ADVOCATE)

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AND :

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MR. MOHAMMED SAIFULLA S/O MOHAMMED HUSSAIN SHARIEF, MAJOR, OWNER OF PICK-UP VAN BEARING, REG. NO.KA-16/B-645, RESIDING AT NO.1657, 5^TH DIVISION, NEW MARKET PLACE, CHITRADURGA-577501.

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BRANCH MANAGER, IFFCO TOKIO GENERAL INSURANCE CO., LTD., BRANCH OFFICE, 127/A, BHAVANI ARCADERS,

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NEAR OLD BUS STAND, OPP. BASAVA VANA, NEW MUTTON MARKET, HUBLI-580 020.

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... RESPONDENTS

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(BY SRI O.MAHESH, ADVOCATE FOR R2 APPEARING THROUGH V/C, R1-NOTICE VIDE PAPER PUBLICATION ACCEPTED V/O DT:03/03/2020)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.01.2012 PASSED IN MVC NO.832/2010 ON THE FILE OF THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR “PRONOUNCEMENT OF JUDGMENT” THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The present appeal is filed by the

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appellant/claimant challenging the judgment and award dated 09.01.2012 in MVC.No.832/2010 passed by 2^nd Addl. Senior Civil Judge and Addl. MACT, Chitradurga. The claim petition was filed by the appellant/claimant seeking compensation. The Tribunal has partly allowed the claim petition and

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awarded compensation of Rs.83,840/- with interest at 6% p.a., from the date of petition till the date of deposit. Being aggrieved by the same, the present appeal is filed before this Court.

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Brief facts of the case are as under:

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On 22.02.2010 at about 5.30 p.m., when the claimant was traveling in an autorickshaw as a passenger from Challakere towards Reddyhalli, near Saw Mill, the driver of pick-up van bearing Reg. No.KA-16/B-645 drove the same in a rash and negligent manner with high speed and dashed against the autorickshaw. As a result, the claimant sustained severe injuries. Immediately, he was shifted to Government Hospital, Challakere. Later on, he was referred to District Hospital, Chitradurga, for higher treatment.

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The learned counsel appearing for the appellant/claimant submitted that the Tribunal has

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wrongly fastened the liability on respondent No.1 - owner and the matter is squarely covered by the judgment of the Hon’ble Apex Court in Mukund Dewangan Vs. Oriental Insurance Company Limited reported in (2017) 14 SCC 663. Therefore, it is submitted that, even though, the driver of the vehicle was holding the driving licence for nontransport, but he could drive transport vehicle also. Therefore, just because, there is no endorsement in the driving licence with regard to mentioning of transport vehicle that cannot be said that there is fundamental breach of conditions of Insurance Policy. Therefore, submitted that the Tribunal has erred in fastening the liability on respondent No.1-Owner. Further submitted that the compensation awarded under various heads by the Tribunal are not adequate and sufficient. Therefore, prays for enhancement of compensation.

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On the other hand, learned counsel

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appearing for respondent No.2-Insurance Company vehemently submitted that the driver of the pick-up van was not holding the valid and effective driving licence. Therefore, the Tribunal has rightly exonerated respondent No.2 - Insurance Company. Further submitted that the driver was holding driving licence to drive non-transport vehicle, but he was driving transport vehicle. Therefore, this makes difference to hold the valid and effective driving licence. Hence, it is rightly considered by the Tribunal and exonerated respondent No.2 - Insurance Company. Therefore, prays to dismiss the appeal.

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Further submitted that the decision of the

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Hon’ble Apex Court in Mukund Dewangan ’s case (stated supra) is now referred to the larger bench and therefore, till the larger bench settles the issue, the principles laid down cannot be followed. Therefore,

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requested to defer the decision to be taken in the appeal.

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Further, learned counsel appearing for respondent No.2 - Insurance Company submitted that the compensation amount awarded under various heads is correct and adequate considering the nature of injuries sustained by the appellant-claimant, which needs no interference. Therefore, submitted that the compensation awarded by the Tribunal is correct. Hence, prays to dismiss the appeal.

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In the present case, the driver of the pick-

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up Van bearing Reg.No.KA-16/B-645 was holding the driving licence to drive the non-transport vehicle, but he was driving transport vehicle. Therefore, it is the contention of the Insurance Company that there is fundamental breach of conditions mentioned in the Insurance Policy. This point is settled by the Hon’ble Apex Court in the case of Mukund Dewangan ’s case

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(stated supra) at Paragraph No.59, which reads as under:

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“59. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28-3-2001. Any other interpretation would be repugnant to the definition of “light motor vehicle” in Section 2(21) and the provisions of Section 10(2)(d), Rule 8 of the 1989 Rules, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of “light motor vehicles” and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act “Transport Vehicle” would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in Sections 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed.”

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Therefore, just because, there is no

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endorsement of transport in the driving licence, it does not mean that he is incompetent to drive the transport vehicle. Here, the driver of the pick-up Van

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was holding the driving licence to drive

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Non-Transport Light Motor Vehicle, nevertheless, he is competent to drive autorickshaw transport vehicle also in order to exonerate the Insurance Company from payment of compensation. There ought to have been fundamental breach, but in the present case, there is no such fundamental breach has been proved except as above stated, so as to exonerate the Insurance Company. Therefore, respondent No.2Insurance Company is liable to pay the compensation. Hence, the findings of the Tribunal fastening the liability on respondent No.1-owner is set aside and respondent No.2-Insurance Company is made liable to pay the compensation.

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Considering the other submissions made by the learned counsel for respondent No.2-Insurance Company that Mukund Dewangan ’s case (stated supra) is now referred to the larger bench. Therefore, it is requested to defer the appeal till the decision to

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be taken by the larger bench cannot be considered, for the reason that, just because, the issue laid down in the judgment by the Hon’ble Apex Court is referred to the larger bench, that cannot be made as a ground to stay all further proceedings in the pending matters. Ordinarily, the fact that a case is referred to the larger bench does not take away its precedential value. In such situation, what should be done by the Courts is guided by a few decisions. The Hon’ble Apex Court in the case of Ashok Sadarangani & Another Vs. Union of India & Others reported in 2012 (11) SCC 321 at paragraph No.29 observed as follows:

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“29. As was indicated in Harbhajan Singh case (2009) 13 SCC 608, the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh case (2010) 15 SC 118 need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field.”

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Further, the Hon’ble Apex Court in the case

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of Manager, National Insurance Company Ltd., Vs. Sanju P.Paul & Another reported in (2013) 2 SCC 41 at paragraph Nos.25 and 26 observed as follows:

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“25. In National Insurance Co. Ltd., V. Parvathneni, the following two questions have been referred to the Larger Bench for consideration: (SCC p. 788, para 7)

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“7,… ‘(1) if an Insurance company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles act or any other enactment, can the court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle?

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(2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142? Does Article 142 permit the court to create a liability where there is none?”

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26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur and Chall Upendra Rao should not be followed, more so in a peculiar fact situation of this case.”

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These two decisions are a complete answer to the question raised by the learned counsel for the insurer.”

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Therefore, from the above principles of law laid down by the Hon’ble Apex Court, just because, Mukund Dewangan ’s case (stated supra) is referred to the larger bench, then the proceedings in the appeal is to be stayed cannot be accepted and the above two decisions are answered to the questions raised by the learned counsel for respondent No.2Insurance Company.

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12. Regarding quantum of compensation:

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The Tribunal has awarded the compensation under

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various heads as follows:

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Loss of future income due to disability	Rs.51,840/-
Pain and sufferings	Rs.15,000/-
Medical expenses	Rs. 5,000/-
Los of income during laid up period	Rs. 2,000/-
Loss of future amenities	Rs. 5,000/-
Conveyance, traveling expenses, attendant charges	Rs. 5,000/-
Total	Rs.83,840/-

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Ex.P.7 is the Wound Certificate, Ex.P.8 is

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the Disability Certificate and Ex.P.9 is the X-ray

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report, which revealed that the appellant/claimant has suffered the following injury:-

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(i) Lacerated wound over right knee joint.

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(ii) Fracture of left condylor of right femur

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Further the Doctor who was examined as P.W.2 has given the disability certificate-Ex.P.8 deposing that the appellant/claimant has suffered several following deformities due to the accident.

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a. He is having restriction of ROM of right knee by 3.6%

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b. He is having muscle strength of grade IV in right knee 6%

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c. He is having difficulty in climbing stairs 5% d. He is having difficulty in squatting on floor 5% e. He is having difficulty in cross leg sitting 5% f. He is having severe pain in right knee 2%

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Therefore, it is proved that the appellant had sustained fracture of left condylor of right femur, which is a major fracture and grievous one. Therefore, the amount of Rs.15,000/- awarded under the head “Pain and Suffering” by the Tribunal is on the lower side. Hence, the same has to be enhanced.

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Accordingly, compensation of Rs.25,000/- is awarded under the head “Pain and Suffering”. Further the Tribunal has awarded compensation of Rs.5,000/towards “Medical Expenses and Hospitalization Charges”. The appellant has not produced the medical bills to prove as to how much amount he has spent towards medical expenses and hospitalization charges. Therefore, the Tribunal has awarded a sum of Rs.5,000/- under the said head, but the appellant has not produced any document to prove as to how much amount he has spent towards medical expenses, but judicial notice of the fact has to be taken into consideration, the appellant had suffered fracture of left leg femur and therefore, he has taken treatment in the hospital. Therefore, in the absence of evidence regarding medical expenses, notional amount ought to have been given and what the Tribunal has awarded is a meager one. Therefore, considering the nature of injuries sustained by the appellant and period spent as

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inpatient in the hospital for treatment, compensation of Rs.15,000/- is awarded under the head “Medical Expenses and Hospitalization Charges”. Further compensation of Rs.10,000/- is awarded towards “Conveyance, traveling expenses and attendant charges” etc., as against Rs.5,000/- awarded by the Tribunal. Further the Tribunal has awarded a sum of Rs.5,000/- only towards “loss of Future Amenities”, which is a meager one. The appellant had suffered fracture of left leg femur. The appellant/claimant may find it difficult for squatting, walking and he cannot run and to some extent caused discomfort and inconvenience in his life. Therefore, compensation of Rs.25,000/- is awarded under the head “loss of future amenities”.

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The Tribunal has awarded Rs.2,000/towards “loss of income during laid up period”. The said amount awarded by the Tribunal is a meager one. The accident has occurred in the year 2010.

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Therefore, the notional income ought to have been taken at Rs.5,000/- as per the Notional Income Chart recognized by the Karnataka State Legal Service Authority. The appellant has lost income atleast for a period of three months due to the injuries sustained by him. Hence, a sum of Rs.15,000/- is awarded (Rs.5,000/- x 3 months) under the head “loss of income during laid up period”.

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The Tribunal has awarded compensation of Rs.51,840/- towards “loss of future income due to the disability” and the same is a meager one. The Tribunal has considered the notional income of the appellant/claimant at Rs.3,000/-, which is a meager one. Further the Tribunal has considered the disability at 8%. As discussed above, the notional income at Rs.5,000/- is to be taken into consideration as per the Notional Income Chart recognized in the year 2009 by the Karnataka State Legal Service Authority. Accordingly, the notional income is taken at

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Rs.5,000/- per month. The age of the appellant is 20 years as on the date of the accident. Hence, the appropriate multiplier applicable is ‘18’. The appellant/claimant had sustained fracture of left leg femur. The doctor had stated that the appellant/claimant had suffered permanent disability at 24.8% to the right lower limb. The Tribunal has considered the permanent disability at 8% towards the whole body after deducting 1/3^rd out of 24.8% of disability. Just because, the doctor has stated the disability at 24.8% that alone cannot be taken into consideration as the appellant has suffered left leg femur, which is a major bone. Therefore, if 10% of disability is taken that would be sufficient. Therefore, loss of earning capacity due to disability is re-calculated as follows:

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Rs.5,000/- x 10/100 x 18 x 12 = Rs.1,08,000/-

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18. The appellant/claimant is entitled to the

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compensation as follows:

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Loss of future income due to disability	Rs.1,08,000/-
Pain and sufferings	Rs. 25,000/-
Medical expenses	Rs. 15,000/-
Los of income during laid up period	Rs. 15,000/-
Loss of future amenities	Rs. 25,000/-
Conveyance, traveling expenses, attendant charges	Rs. 10,000/-
Total	Rs.1,98,000/-

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The Tribunal has awarded the compensation of Rs.83,840/-, but the appellant/claimant is entitled to total compensation of Rs.1,98,000/-. Hence, the appellant is entitled to enhanced compensation of Rs.1,14,160/- (Rs.1,98,000/Rs.83,840/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.1,14,160/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

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Accordingly, I pass the following :

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ORDER

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Appeal is allowed-in-part.

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The appellant is entitled to enhanced

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compensation of Rs.1,14,160/- along with the rate of interest at 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.

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Draw award accordingly.

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No order as to costs.

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Sd/-

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PB

Mr Siddeshi v. Mr Mohammed Saifulla

Case brief

What is this about?

What did the court decide?

Mr Siddeshi v. Mr Mohammed Saifulla

Case brief

What is this about?

What did the court decide?

What the court decided

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