Partly allowed

Lokesh. T. P. v. Mari

Karnataka HC16 Jun 2022MFA/861/2019

Case brief

AI extract

What is this about?

The High Court allowed an appeal under Section 173(1) of the Motor Vehicles Act, enhancing compensation from Rs. 2.06 lakhs to Rs. 2.89 lakhs. The court held the insurer liable for payment with liberty to recover from the owner due to the rash driving. Interest on enhanced compensation was fixed at 6% p.a. excluding future medical expenses.

What did the court decide?

Compensation enhanced to Rs. 2,89,520/- with interest at 6% p.a. on enhanced portion. Insurer directed to deposit amount within six weeks with liberty to recover from owner.

Lokesh. T. P. Vs Mari — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JUNE 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.861 OF 2019(MV)

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BETWEEN:

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Lokesh T.P., S/o Puttaswamy Gowda, Age 45 years, Supervisor, Bhadra Packads, Barandu, R/o U2B 18, Upstairs Building, New Colony, Bhadravathi Taluk-577 301. … Appellant

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(By Sri.Mruthyunjaya S Mathapathi, Advocate for Sri. R Shashidhara, Advocate)

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AND:

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Mari, S/o Doreswamy, Age 42 years, Driver, R/o Mandaravalli, Halasuru Post, Lakkavalli, Tarikere Taluk-577 228, Chikkamagaluru District.

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Murugesh R, S/o Late Ramaswamy, Age 37 years, R/o Hosagangur, Kallahattipura Post, Tarikere Taluk-577 228, Chikkamagaluru District.

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3. The New India Insurance Co. Ltd., Chikkamagaluru District-577101. ... Respondents

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(By Sri.Kiran Kumar P.K., Advocate for R1 & R2: Sri. Ravishankar A., Advocate for R3)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated:01.03.2018 passed in MVC No.682/2015 on the file of the Principal Senior Civil Judge and JMFC., and Additional MACT-II, Bhadravathi, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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This MFA, coming on for admission, this day, this Court, delivered the following:

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J U D G M E N T

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This appeal under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) has been filed by the claimant being aggrieved by the judgment and decree dated 01.03.2018 passed by the MACT, Bhadravathi in MVC No.682/2015.

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2. Facts giving rise to the filing of the appeal

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briefly stated are that on 09.08.2014 at about 4.40 p.m., the claimant was proceeding on Scooty bearing registration No.KA-14/U-3434 in front of Bhadra Petrol

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Bunk near Balabharathi Cross. At that time, the rider of the motorcycle bearing registration No.KA-18/Y5883 being ridden by its rider at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. 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 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.3 appeared through counsel and filed written statement in which the averments made in the petition were

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denied. The 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 accident was due to the rash and negligent riding of the vehicle by the claimant himself. It was further pleaded that the rider of the offending vehicle did not have valid driving licence as on the date of the accident. 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 Nos.1 and 2 did not appear before the Tribunal inspite of service of notice and were placed ex-parte.

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On the basis of the pleadings of the parties,

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the Claims Tribunal framed the issues and thereafter

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recorded the evidence. The claimant himself was examined as PW-1 and got exhibited documents namely Ex.P1 to Ex.P15. On behalf of the respondents, one witness was examined as RW-1 and got exhibited documents namely Ex.R1 to Ex.R3. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the offending vehicle by its rider, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.2,06,000/- along with interest at the rate of 9% p.a. and since the rider of the offending vehicle did not possess valid and effective driving licence, directed the rider and owner of the offending vehicle 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

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raised the following contentions:

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Firstly, even though the claimant claims that he was doing supervising work and earning Rs.15,000/per month, including salary of Rs.8,788/-, but the Tribunal has taken the notional income as only Rs.5,671/- per month. The Tribunal has erred in considering the net income instead of considering the gross salary of the claimant.

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Secondly, due to the accident the claimant has suffered grievous injuries. He was inpatient for a period of 13 days. He has examined the doctor. The doctor has assessed the disability at 26%. The Tribunal has assessed the whole body disability as 8.6% which is on the lower side.

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Thirdly, the claimant has suffered lot of pain during treatment and he has to suffer the disability and unhappiness throughout his life. Considering the

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same, the compensation granted by the Tribunal under the heads of 'pain and sufferings' and other incidental heads are on the lower side and the Tribunal has failed to award any compensation for 'loss of amenities'.

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Fourthly, even though the driver of the offending vehicle was not having valid and effective driving licence and the insured has violated the policy condition, but in respect of third party is concerned, the Insurance Company has to pay the compensation amount with liberty to recover the same from the owner of the offending vehicle. In support of his contention, he relied upon the Hon’ble Apex Court in the case of ‘PAPPU AND OTHERS vs. VINOD KUMAR LAMBA AND ANOTHER’ AIR 2018 SC 592 and a Full Bench judgment of this Court in ‘NEW INDIA ASSURANCE CO. LTD. BIJAPUR vs.

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YALLAVVA AND ANOTHER’ ILR 2020 Kar.2239.

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Hence, he sought for allowing the appeal.

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On the other hand, Sri A.RAvishankar, 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.15,000/- per month and produced salary certificate showing the gross income as Rs.8,788/- and the net income Rs.5,671/-. The Tribunal has rightly considered the monthly income of the claimant as Rs.5,671/-.

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Secondly, even though the doctor has opined that there is disability of 26% he has not deposed regarding whole body disability. The Tribunal has considered 1/3^rd of limb disability and rightly assessed the whole body disability as 8.6%.

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Thirdly, considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is just and reasonable compensation.

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Fourthly, in view of the law laid down by a Division Bench of this Court in the case of MS.JOYEETA BOSE AND OTHERS vs.

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VENKATESHAN.V AND OTHERS ( MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 9% p.a. is on the higher side. Hence, he sought for dismissal of the appeal.

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Heard the learned counsel for the parties

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and perused the judgment and award.

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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.15,000/- per month and produced the salary certificate wherein his gross income is shown as Rs.8,788/-. Even as per the guidelines issued by the Karnataka State Legal Services Authority for the accident occurred in the year 2014, the notional income has to be taken at Rs.8,500/- p.m. As per wound certificate, the claimant has sustained first lumber vertebra burst fracture. PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 26% to particular limb. The whole body disability can be assessed at 9%. The claimant was aged about 41 years at the time of the accident and multiplier applicable to his age group is ‘14’. Thus, the claimant is entitled for compensation of Rs.1,28,520/- (Rs.8,5001214*9%) on account of 'loss of future income'.

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Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. 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 of the opinion that the claimant is entitled to compensation of Rs.51,000/- (Rs.8,500*6) under the head 'loss of income during laid-up period' and Rs.20,000/- under the head 'loss of amenities'.

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Considering the nature of injuries, the

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compensation awarded by the Tribunal under other heads is just and reasonable.

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Thus, the claimant is entitled to the

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following compensation:

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Compensation under different Heads	As awarded by the Tribunal (Rs.)	As awarded by this Court (Rs.)
Pain and sufferings	50,000	50,000
Food, nourishment, conveyance and	20,000	20,000

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attendant charges
Loss of income during	34,026	51,000
laid up period
Loss of amenities	0	20,000
Loss of future income	81,934	1,28,520
Future medical expenses	20,000	20,000
Total	2,05,960	2,89,520
Rounded off to	2,06,000

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Re.liability:

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The Tribunal has given a finding that the driver of the offending vehicle was not having a valid and effective driving licence as on the date of the accident. Since the insured has violated the policy condition, Insurance Company is not liable to pay the compensation. But in view of the law laid down by the Hon’ble Apex Court in the case of PAPPU (supra) and a Full Bench judgment of this Court in the case of YELLAVVA (supra), Insurance Company has to pay the compensation with liberty to recover the same from the insured, i.e., the owner of the offending vehicle.

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In the result, the appeal is allowed in part. The judgment of the Claims Tribunal is modified.

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The claimant is entitled to a total compensation of Rs.2,89,520/- as against Rs.2,06,000/- awarded by the Tribunal.

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In view of the law laid down by a Division Bench of this Court in JOYEETA BOSE (supra) the enhanced compensation carries interest @ 6% p.a.

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The Insurance Company is directed to deposit the compensation amount along with interest @ 9% p.a. (interest @ 6% p.a. on the enhanced compensation) 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 excluding interest for the compensation awarded under the head of 'future medical expenses' with liberty to recover the same from the owner of the offending vehicle.

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In view of the order dated 26.05.2022 passed by

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this Court, the claimant is not entitled to interest on

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the enhanced compensation for the delayed period of 239 days in filing the appeal.

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Sd/JUDGE

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Cm/-