Partly allowed

Umesh S/O Dundappa Hosamani v. Ashok S/O Siddappa Tadasanur

Karnataka HC23 Sept 2023MFA/100270/2019

Case brief

AI extract

What is this about?

This Miscellaneous First Appeal challenged the quantum of compensation in a motor vehicle accident case. The High Court modified the award by increasing disability percentage to 70%, removing contributory negligence, and adjusting future income calculation, enhancing total compensation significantly.

What did the court decide?

Impugned award modified; compensation enhanced to Rs.29,93,955/- with insurer directed to deposit amount within 60 days.

Umesh S/O Dundappa Hosamani Vs Ashok S/O Siddappa… — Specific Performance | Karnataka HC (2023)

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NC: 2023:KHC-D:11278-DB MFA No. 100270 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 23^RD DAY OF SEPTEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO.100270 OF 2019 (MV-I)

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BETWEEN:

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UMESH S/O. DUNDAPPA HOSAMANI, AGE: 28 YEARS, OCC: LECTURER (NOW NIL), R/O: HUNASHIKATTI, TAL: BAILHONGAL.

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…APPELLANT

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(BY SRI G.R. TURAMARI AND SRI H.D.PATIL, ADVOCATES)

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AND:

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ASHOK S/O. SIDDAPPA TADASANUR, AGE: MAJOR, OCC: BUSINESS, R/O. A/P: KURAGUND, TAL: BAILHONGAL.

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Date: 2023.12.13 13:28:08 +0530

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THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., HAVING ITS DIVISIONAL OFFICE AT, MADIWAL ARCADE, CLUB ROAD, BELAGAVI.

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VEERRANAGOUD TIRAKANAGOUD HOSAGOUDRA, AGE: MAJOR, AT: ANUR, POST: BISALAHALLI, TAL: BYADGI, DIST: HAVERI.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., HAVING ITS DIVISIONAL OFFICE AT, MARUTI GALLI, BELAGAVI.

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…RESPONDENTS

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(BY SRI R.R. MANE, ADVOCATE FOR R2;

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BY SRI CHANDRASHEKHAR M. HOSAMANI, ADVOCATE FOR R3; BY SMT. SHARMILA M. PATIL, ADVOCATE FOR R4; NOTICE SERVED TO R1)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION OF RS.17,68,555/- TO RS.50,00,000/-, BY MODIFYING THE JUDGMENT AND AWARD PASSED BY THE HON’BLE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, BELAGAVI IN M.V.C NO. 771/2016 DATED 05-12-2018 AND CONSEQUENTLY GRANT THE ENTIRE COMPENSATION IN FAVOUR OF THE APPELLANT/ PETITIONER BY SADDLING THE ENTIRE LIABILITY UPON THE RESPONDENT NOs. 1 AND 2 JOINTLY AND SEVERALLY.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Appellant-claimant has preferred this appeal against

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the judgment and award dated 05.12.2018 passed in M.V.C.No.771/2016 on the file of the IX Addl. District and Sessions Judge and Addl. MACT., Belagavi (hereinafter referred to as the ‘Tribunal’) and is seeking enhancement of compensation.

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The parties are referred to as per their ranks before the Tribunal, for the sake of convenience.

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The brief facts of the case are that on 04.03.2016 the petitioner was proceeding on a motorcycle

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bearing Regn.No.KA-27/EA-0296 from Bailhongal towards Hunasikatti in a very moderate speed by observing the traffic rules and regulations. When he reached within the limits of Holi-Hosur village on M.K.Hubli-Bailhongal road, at that time, one Mahindra Tractor bearing Regn.No.KA24/TA-8161 driven by its driver came in a very high speed, rash and negligent manner endangering the human life without giving any signal and thereby dashed the motorcycle ridden by the petitioner and caused the accident. As a result of which, the petitioner sustained grievous injuries. Immediately, he was shifted to KLE Hospital, Belagavi and underwent the treatment. It is contended that the petitioner has incurred more than Rs.5 lakh for his treatment. Prior to the accident, the petitioner was working as a lecturer and earning Rs.13,500/- per month. Due to the said accidental injuries, he has sustained permanent physical disability. It is also contended that the accident is solely due to the rash and negligent driving of the said Mahindra vehicle by its driver, hence, respondent Nos.1 and 2 being the owner and the

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insurer of the said vehicle, are liable to pay the compensation. On all these grounds, sought for allowing the claim petition.

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On service of notice, both the respondent Nos.1

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and 2 appeared through their respective counsel and filed their statement of objections.

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Respondent No.1 has filed the objections by denying all the contents urged in the claim petition stating that, as on the date of the accident, the vehicle was validly insured with respondent No.2 and as such, if any compensation is to be paid, it has to be saddled on respondent No.2.

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Respondent No.2 has filed objections by denying the contents of the claim petition and also contended that as per the documents, two vehicles have been involved in the alleged accident. The petitioner has not impleaded the owner and insurer of the motorcycle bearing Regn.No.KA-27/EA-0296 and also alleged that

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respondent No.1 has not furnished the particulars of the accident and injuries and also about the driver of the vehicle and contended that the driver of the tractor bearing Regn.No.KA-24/TA-8161 was not holding valid and effective driving licence to drive a particular type of vehicle and hence the petition is bad for non-joinder of necessary parties, as such, respondent No.2 is not liable to pay the compensation and also denied all averments made in the claim petition. Respondent No.2 also contended that respondent No.1 has not complied with the Rules of Motor Vehicles Act and prayed for dismissal of the claim petition.

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The substance of objections of respondent No.3 is that, he has denied all the averments made in the claim petition and stated that the Police after completing investigation have filed the charge sheet against the driver of the tractor and also contended that, as on the date of the accident, he was not the owner of the said vehicle as he had sold the said vehicle long back to the petitioner,

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but the petitioner has not made any efforts to change RC in his name and prayed for dismissal of the claim petition.

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The substance of objections of respondent No.4 is that it denied all the contents of the claim petition and specifically contended that respondent No.3 has breached the policy conditions. It is stated that the petitioner was riding the motorcycle without valid driving licence to drive the same and has violated the terms and conditions of the policy and prayed for dismissal of the claim petition.

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On the basis of the aforesaid pleadings, the

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following issues came to be framed:

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“(1) Whether the petitioner proves that on 04.03.2016 at about 16.00 hours within the limits of Holihosur village on M.K. Hubli Bailhongal road Tal: Bailkhongal the petitioner sustained injuries in the accident occurred due to rash, or negligent, driving of the Mahindra tractor No. KA-24/TA-8161 by the driver and motor cycle No. KA-27/EA-0296 by petitioner?

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(2) Whether the petitioner is entitled to for compensation? If so, what amount and from whom?

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(3) What order?”

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To prove the case of the petitioner, the petitioner himself got examined as PW1 and doctors are examined as PWs.2 and 4 and another witness is examined as PW3 and 26 documents were got marked as Exs.P1 to P26.

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The respondents have not adduced any oral evidence, but got marked 3 documents as Exs.R1 to R3 in support of their defence.

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After carefully considering the arguments

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presented by both parties and perusing the materials on record, the Tribunal allowed the claim petition in part and awarded compensation of Rs.17,68,555/-, along with 6% annual interest from the petition's initiation date until full realization and respondent Nos.2 and 3 are held liable to

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pay the compensation amount at the rate of 80% and

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20% respectively.

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Being aggrieved by the same and being dissatisfied, the petitioner-claimant is before this Court by way of the present appeal questioning the liability of respondent No.3 and also the quantum of compensation.

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Heard learned counsel for the appellant, learned counsel for respondent No.2, learned counsel for respondent 3 and learned counsel for respondent No.4.

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SUBMISSIONS ON BEHALF OF THE CLAIMANT

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Learned counsel for the appellant-claimant submits that the Tribunal has erred in considering the disability of the appellant to the extent of 60% to the whole body whereas the appellant has suffered permanent physical disability to the extent of 75%. The appellant has examined the doctor, but the Tribunal has failed to appreciate the evidence given by the doctor and has not given proper findings to that effect. He submits that the

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Tribunal has erred in holding the appellant’s contributory negligence to the extent of 20%, which is without any basis. Exs.P3-spot panchnama and P6-charge sheet disclose that the accident has caused due to the rash and negligence of the offending vehicle, hence holding the appellant to the extent of 20% as contributory negligence does not arise. He also submits that the Tribunal has erred in considering the income of the appellant at Rs.9,000/per month instead of Rs.12,150/- per month as per Exs.P13 and P14. He further submits that the Tribunal has awarded very meager compensation on other heads and on all these grounds, sought for enhancement of the compensation by allowing the appeal.

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SUBMISSIONS ON BEHALF OF RESPONDENT No.2

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Learned counsel appearing on behalf of respondent No.2 submits that the Tribunal has passed the judgment and award in accordance with law and facts and there are no grounds to interfere with the impugned

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judgment and award. Hence, he sought for dismissal of the appeal.

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On hearing and perusal of the materials on record, the following points would arise for our

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reconsideration:

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(i) Whether the appellant-claimant is entitled for enhancement and has made out any grounds to interfere with the impugned judgment and award as to the liability of the respondent No.3 and also the quantum of compensation?

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(ii) What order?

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Our answer to the above points are as under:

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Point No.1 :- Partly in the affirmative

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Point No.2 :- As per the final order for the following:

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REASONS

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We have carefully examined the material on record. It is the case of the petitioner that the accident occurred due to the rash and negligent act on the part of

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the driver of the Mahindra Tractor bearing Regn.No.KA24/TA-8161 and due to this accident, the petitioner has sustained grievous injuries. To substantiate the same, the petitioner himself examined as PW1. He has reiterated the averments made in the claim petition. Apart from this, he has produced the documentary evidence. On perusal of the documentary evidence, it is crystal clear that on the basis of the complaint filed by Nagappa Dundappa Hosamani, the Bailahongal Police have registered the case in Crime No.101/2016 against the driver of the Mahindra Tractor bearing Regn.No.KA-24/TA-8161 for the offence punishable under Sections 279 and 338 of the India Penal Code, 1860 and Sections 134 and 187 of the Motor Vehicles Act, 1988 and thereafter the Police rushed to the spot and conducted spot panchnama in presence of the panchas, prepared rough sketch, obtained MV report, wound certificate and recorded the statement of witnesses. On through investigation, the IO has submitted the charge sheet against accused No.1-the driver of the Mahindra Tractor bearing Regn.No.KA-24/TA-8161 for the

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offence punishable under Sections 279 and 338 of the India Penal Code and Sections 134 and 187 of the Motor Vehicles Act. The IO has also submitted the charge sheet against accused No.2- the owner of the offending tractor for the offence punishable under Section 3 read with Section 181 of the Motor Vehicles Act. During the course of cross-examination of PW1, respondents have not questioned as to the charge sheet submitted against the driver of the tractor. Respondents have also not adduced any evidence to discard the evidence of PW1 and also the contents of documentary evidence placed by the petitioner. The Tribunal has not framed any issues as to the contributory negligence of the petitioner. The Tribunal has also not assigned reasons to come to the conclusion that there is a contributory negligence on the part of the rider of the motorcycle at the rate of 20% which is not sustainable under law and hence, same cannot be accepted. On re-appreciation of evidence on record, we do not find any negligent act on the part of the petitioner. Hence, we are of the view that the accident occurred due

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to sole rash and negligent act on the part of the rider of the offending tractor bearing Regn.No.KA-24/TA-8161.

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With regard to quantum of compensation is concerned, the claimant has produced Ex.P7-disability certificate issued by Dr. Satish D.Patil in which the functional disability is observed as under:

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“1) Below knee amputee.

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2) Restriction of left Knee/ tip movements.

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3) Inability to do any work.”

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Dr. Satish D.Patil who is examined as PW2 has

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deposed as to the facts of the disability certificate. The Tribunal has assessed the disability of the injured at 60%. Considering the injuries and disability certificate issued by PW2 and also keeping in mind of the decision of the Hon’ble Apex Court in the case of Dinesh Singh Vs. Bajaj Allianz General Insurance Co. Ltd .¹ , it is just and proper

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1 2014 ACJ 1412

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to assess disability of the petitioner at 70% to the whole body.

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The Tribunal has observed in para No.17 of the judgment that the petitioner has examined PW3-the FDA of Kittur Rani Channamma Education Society, where PW3 has stated that the petitioner has worked as a Guest Lecturer in B.B.A and M.Com sections and was drawing salary of Rs.6,150/- for B.B.A and Rs.6,000/- for M.Com and has marked Exs.P13 and P14 in support of the same, but the Tribunal as assessed the notional income of the petitioner at Rs.9,000/- per month which is on lower side. Hence, upon considering the avocation and the contents of Exs.P13 and P14, we are of the opinion that it is just and proper to assess the income of the petitioner at Rs.10,000/- per month.

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In view of the decision in the case of NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND

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OTHERS² the future prospects at 40% is to be added to

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2 AIR 2017 SCC 5157

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the income of the petitioner which comes to Rs.14,000/-

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(i.e., Rs.10,000/- + 40%). Thus, the petitioner-claimant is entitled for compensation towards future income of Rs.21,16,800/- (i.e., Rs.14,000 X 12 X 18 X 70%).

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For the aforesaid reasons, is it just and proper

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to award the compensation to the petitioner-claimant as

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under:

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Sl. No.	Heads	Amount (In Rupees)
1.	Pain and suffering	1,00,000.00
2.	Food, transport and attendant charges	40,000.00
3.	Loss of amenities	1,00,000.00
4.	Loss of marriage prospects	50,000.00
5.	Medical expenses	4,27,155.00
6.	Loss of future income	21,16,800.00
7.	Loss of income during laid-up- period	60,000.00
8.	Expenses towards artificial limb	1,00,000.00
	Total	29,93,955.00

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Accordingly, we proceed to pass the following:

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ORDER

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(i) The appeal preferred by the appellant/claimant

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is hereby partly allowed .

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(ii) The impugned judgment and award dated 05.12.2018 passed in MVC.No.771/2016 on the file of the learned IX Addl. District & Sessions Judge and Addl. M.A.C.T., Belagavi is modified. It is held that the respondent Nos.1 and 2 are jointly and severally liable to pay the total compensation amount of Rs. 29,93,955/- to the petitioner-claimant with interest at 6% per annum from the date of petition till realization as against Rs.17,68,555/- awarded by the Tribunal.

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(iii) Respondent No.2-insurance company is directed to deposit the entire amount within 60 days from the date of receipt of the copy of this judgment and award.

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