Partly allowed

Sri. Sharanappa v. Nayaz Bash

Karnataka HC21 Sept 2023MFA/100367/2023

Case brief

AI extract

What is this about?

The High Court dismissed the insurance company's appeal challenging liability but allowed the claimant's appeal in part, enhancing the compensation from Rs.16,55,000 to Rs.27,42,000 based on assessed loss of future earnings and other heads of damage.

What did the court decide?

Miscellaneous First Appeal by insurance company dismissed; Miscellaneous First Appeal by claimant allowed in part with compensation enhanced to Rs.27,42,000.

Sri. Sharanappa Vs Nayaz Bash — Motor Accident Claims | Karnataka HC (2023)

¶1

¶2

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 21^ST DAY OF SEPTEMBER, 2023

¶5

PRESENT

¶6

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

¶7

AND

¶8

THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 100367 OF 2023 (MV-I)

¶9

C/W

¶10

MISCELLANEOUS FIRST APPEAL NO. 102254 OF 2022 (MV-I)

¶11

IN MFA NO. 100367/2023

¶12

BETWEEN:

¶13

Digitally signed by SHIVAKUMAR HIREMATH Date: 2024.01.08 16:38:48 +0530

¶14

SRI SHARANAPPA S/O. SHIVALINGAPPA NAREGAL, AGE: 30 YEARS, OCC: NIL, R/O: CHAVADI, TQ: RON, DIST: GADAG, PIN-582209, SINCE BLIND REPRESENTED BY HIS NEXT FRIEND NATURAL FATHER SHIVALINGAPPA S/O. SHIVASANGAPPA NAREGAL OF CHAVADI.

¶15

…APPELLANT

¶16

(BY SRI D.V.PATTAR, ADVOCATE)

¶17

AND:

¶18

NAYAZ BASH S/O AMEER JAN SAB, AGE: 54 YEARS, OCC: R/O: BASHEER GALLI, HOLALKERI ROAD, CHITRADURGA, TQ. DIST: CHITRADURGA.

¶19

¶20

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶21

RELIANCE GENERAL INSURANCE COMPANY LTD., REPRESENTED BY LEGAL MANAGER, NEAREST BRANCH OFFICE CTS NO. 472 TO 474, V.A.KALABURGI SQUARE, DESAI CROSS, DESHPANDE NAGAR, HUBLI,

¶22

…RESPONDENTS

¶23

(BY SRI MADANMOHAN M. KHANNUR, ADVOCATE FOR R1; SRI S.V. YAJI, ADVOCATE FOR R2)

¶24

THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1)OF MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 25.02.2022 PASSED IN MVC NO.173/2016 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, GADAG, AND ALLOW THE APPEAL, AND ENHANCE THE COMPENSATION IN THE INTEREST OF JUSTICE.

¶25

IN MFA NO.102254/2022

¶26

BETWEEN:

¶27

THE RELIANCE GENERAL INSURANCE COMPANY LTD., REPRESENTED BY LEGAL MANAGER, NEAREST BRANCH OFFICE, CTS NO. 472-474 V.A. KALABURGI SQUARE, DESAI CROSS, DESHPANDE NAGAR, HUBLI-580020, REPRESENTED BY AUTHORISED SIGNATORY.

¶28

…APPELLANT

¶29

(BY SRI S.V. YAJI, ADVOCATE)

¶30

¶31

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶32

AND:

¶33

SHARANAPPA

¶34

S/O. SHIVALINGAPPA NAREGAL, AGE: 30 YEARS, OCC: Agriculture, R/O: CHAWADI, TQ. RON, DIST: GADAG 582209. SINCE BLING (NO SIGHT), REPRESENTED BY HIS NEXT FRIEND AND NATURAL FATHER SHIVALINGAPPA S/O SHIVANAGAPPA NAREGAL, OF CHAVADI.

¶35

NAYAZ BASH S/O. AMEER JAN SAB, AGE: 54 YEARS, OCC: OWNER OF THE TRUCK, BEARING REG NO. KA-01/B-0887 R/O: BASHEER GALLI, HOLAKERI ROAD, TQ. AND DIST: CHITRADURGA-577501.

¶36

…RESPONDENTS

¶37

(BY SRI D.V. PATTAR, ADVOCATE FOR RESPONDENT NO. 1; BY SRI MADANMOHAN M. KHANNUR, ADVOCATE FOR R2 )

¶38

THIS MISCELLANEOUS FIRST APPEAL FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 25.02.2022 PASSED IN MVC NO.173/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL, GADAG, AND TO MODIFY THE AWARD AGAINST THE APPELLANT.

¶39

THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

¶40

¶41

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶42

J U D G M E N T

¶43

Both these appeals arise out of judgment and award dated 25^th January, 2022 passed in MVC No.173 of 2016 by the Motor Accident Claims Tribunal, Gadag (for brevity, hereinafter referred to as the "Tribunal”).

¶44

For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Tribunal.

¶45

Brief facts of the case are that on 30^th November, 2015, the petitioner was proceeding on National Highway 4 from Chavadi to Bangalore in a Canter lorry bearing Registration No.KA-22/B-147 to sell Corn crop and at 6.00 am, when they reached near KR Halli petrol bunk, Hiriyur, due to puncture of the back wheel, the driver parked the canter to the left side of the road and got down to check the wheel, at that time, the driver of the Heavy Goods Vehicle bearing Registration No.KA-01/B-0887 (for brevity, hereinafter referred to as the "HGV”) came from back side being driven by its driver in a rash and high speed and dashed the same to the parked canter, due to which the claimant sustained grievous injuries. In this regard, Hiriyur Rural Police have registered a case in

¶46

¶47

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶48

Crime 381 of 2015. It is contended that the appellant was hale and healthy before the accident and was aged 24 years and was earning Rs.15,000/- per month by doing agriculture coolie work. Respondent No.1 is the owner and respondent No.2 is the insurer of the offending HGV are jointly and severally liable to pay compensation. On all these grounds preferred the claim petition.

¶49

Pursuant to issuance of notice, respondents have appeared through their counsel. Respondent No.1 has not filed any objection. Respondent No.2 filed its objection contending that respondent is the insurer of offending HGV and the same is subject to terms and conditions of the policy. The driver of the canter had parked the vehicle on the national highway without taking any precautionary measures and without giving any signal which turned to be root cause for the accident and further contended that the driver of the offending HGV was not having valid and effective driving licence as on the date of accident and denied all the other averments made in the claim petition and accordingly sought for dismissal of the claim petition.

¶50

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶51

¶52

Based on the pleadings, the tribunal framed the

¶53

following issues:

¶54

Whether the petitioner proves that he has sustained grievous injuries as mentioned in Col.No.11 of the petition in Road Traffic Accident that occurred on 30.11.2015 at 6.00 a.m. on NH4 road near K.R. Halli Gate Petrol Bunk, Hiriyur Taluk, Chitradurga Dist. Due to the rash and negligent driving of the driver of HGV Lorry bearing its Regd.No.KA-01/B-0887 as alleged in the petition?

¶55

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

¶56

What order or award?

¶57

Additional issues:

¶58

Whether the respondent No.2 proves that the driver of the HGV Lorry had no valid and effective driving license as on the date of the accident?

¶59

Whether the respondent No.2 proves that the petition filed by the petitioner is bad for non joinder of necessary parties?

¶60

¶61

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶62

To prove the case of the petitioner, three witnesses were examined as PWs1 to 3 and marked sixteen documents were marked as Exhibits P1 to P16. Respondents have not adduced any evidence on their behalf.

¶63

Upon hearing the arguments, the Tribunal has answered the issues as under:

¶64

Issue No.1 : In the Affirmative Issue No.2 : In the Affirmative Addl.Issue No.1 : In the Negative Addl.Issue No.2 : In the Negative Issue No. 3 : As per the order

¶65

In view of the above finding, the Tribunal allowed the claim petition in part and awarded compensation of Rs.16,55,000/- with interest at 6% per annum from the date of petition till its realisation. Being aggrieved by the impugned judgment and award, the insurance has preferred Miscellaneous First Appeal No.100367 of 2023 challenging the quantum and liability; and being dissatisfied with the compensation awarded by the Tribunal, the claimant has preferred the Miscellaneous First Appeal No.102254 of 2022 seeking enhancement of compensation.

¶66

- 8 - NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶67

Heard the learned counsel for the parties. Learned counsel appearing for the appellant-Insurance Company submits that the Tribunal has failed to appreciate and consider the fact that the driver of the canter was negligent in parking the vehicle on the middle of the national highway causing inconvenience and obstruction to the movement of other vehicles. Thus, the driver of the canter was solely negligent and responsible for the accident. Hence, saddling the entire liability on the appellant-Insurance has resulted in miscarriage of justice. It is further submitted that it is evident from records that driver of the canter had parked the same on the highway which is not meant for parking, so also the same was parked without any indicator. The Tribunal has not appreciated the evidence on record in accordance with law and further it is submitted that the compensation that the Tribunal has not awarded the compensation in accordance with facts and law and also evidence on record. Further, the Tribunal has wrongly considered the disability of the claimant at 100%. On all these grounds sought to allow the appeal.

¶68

On the other hand, the learned counsel appearing on behalf of the claimant submitted that the Tribunal has rightly

¶69

¶70

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶71

given its finding as to the liability of the insurance company, but, however, has not awarded just compensation in accordance with law and the judgment of Hon'ble Supreme Court and hence, sought for enhancement of compensation and dismissal of the appeal filed by the Insurance Company.

¶72

Having heard the learned counsel for the parties and on perusal of material on record, the following points would arise for our consideration in these appeals:

¶73

Whether the appellant-Insurance has made out a ground to interfere with the impugned judgment and award as to the liability of the Insurance Company as also the reduce the compensation awarded by the Tribunal?

¶74

Whether the claimant is entitled for enhancement of compensation as sought for?

¶75

What order or award?

¶76

Our answer for the above points are as under:

¶77

Point No.1: in the negative;

¶78

Point No.2: partly in the affirmative

¶79

10 -

¶80

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶81

Point No.3: as per final order

¶82

Regarding Point No.1:

¶83

We have carefully examined the material placed before this Court. To substantiate the case of the petitioner, petitioner got examined as PW1 and he has deposed in his evidence with regard to accident as alleged in the claim petition. Apart from his oral evidence, petitioner also produced documentary evidence. On the basis of complaint filed by one Mallappa, Hiriyur Police have registered a case in Crime No.381 of 2015 against the driver of the HGV for commission of offence punishable under Section 279, 338 and 304A Indian Penal Code and submitted First Information Report to the court. Thereafter, police have visited the spot and conducted spot panchnama in presence of panchas. The Investigating Officer has also obtained the wound certificate MV report and recorded the statement of witnesses. Upon investigation, the Investigating Officer has submitted the charge sheet against the driver of the offending HGV for commission of offences punishable under Section 279, 338 and 304A Indian Penal Code. The charge sheet submitted by the Investigating Officer

¶84

11 - NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶85

has not been challenged by the respondent-Insurance. Respondents have also not adduced any evidence before the Tribunal to discard the evidence adduced by the petitioner. Considering the evidence on record, the Tribunal has rightly held that the accident occurred due to rash and negligent act on the part of driver of the HGV. On re-appreciation and reexamination of the evidence on record, we do not find any reason to interfere with the impugned judgment and award as to the finding given by the Tribunal in this regard. Accordingly, we answer Point No.1 in the negative.

¶86

Regarding Point No.2:

¶87

As regards quantum of compensation is concerned, PW1 has produced wound certificate and disability certificate as per Exhibits P4 and P7 respectively issued by M M Joshi Eye Institute, Hubli. Exhibit P15 is the case summary of the petitioners. On behalf of petitioner, Dr. Guruprasad, working as MM Joshi Eye Hospital, Hubli has been examined as PW3 through Court Commissioner. The Tribunal has observed that by looking into Exhibits P4, P7, P10 and P15 and the oral evidence of PWs1 and 3, the same would disclose sustained

¶88

12 -

¶89

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶90

vision of both eyes. PW3 has assessed the disability at 100%, the same is admitted by the other side. The Tribunal has rightly observed that the abovesaid injuries are schedule injuries of Employees Compensation Act. As per Schedule-I (Section 2(4) Part-I at Sl.No.4) it is mentioned that loss of both eye of would amount to 100% disability. Considering all these aspects, the Tribunal rightly held the disability to the whole body at 100%.

¶91

As regards loss of earning is concerned, the age of the petitioner was 30 years as on the date of accident. The Tribunal has assessed the income of the petitioner at Rs.7,000/- per month which is not in consonance of the guidelines issued by Karnataka State Legal Services Authority. In view of the chart, the notional income for the accident of the year 2015 is to be taken Rs.8,000/- per month. In view of the judgment of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, 40 is to be added towards future prospects. Then the monthly income would be Rs.12,000/-. As per the decision of the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI

¶92

13 -

¶93

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶94

TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121, the appropriate multiplier would be 17 and the same has been adopted by the Tribunal. Hence, the loss of future income comes to Rs.24,88,800/- (Rs.12,000/- x 12 x 17). Keeping in mind the decisions of Hon'ble Supreme Court in the case of SARLA VERMA and in the case of PRANAY SETHI and in the case of MAGMA GENERAL INSURANCE COMPANY LIMITED v. NANU RAM AND OTHERS reported in (2018)18 SCC 130, it is

¶95

just and proper to award compensation as under:

¶96

Sl.No.	Head	Amount (Rs.)
1.	Towards pain and suffering	75,000.00
2.	Loss of future earning	24,88,000.00
3.	Medical Expenditure	84,000.00
4.	Towards diet, food and nourishment	20,000.00
5.	Loss of amenities	75,000.00
	Total	27,42,000.00

¶97

Accordingly, we answer point No.2 partly in the affirmative.

¶98

Regarding Point No.3:

¶99

For the foregoing reasons and discussions, we

¶100

proceed to pass the following:

¶101

14 -

¶102

NC: 2023:KHC-D:11336-DB MFA No. 100367 of 2023 C/W MFA No. 102254 of 2022

¶103

O R D E R

¶104

Miscellaneous First Appeal No.100367 of 2023 preferred by the insurance company is dismissed;

¶105

Miscellaneous First Appeal No.102254 of 2022 preferred by the claimant is allowed in part;

¶106

Judgment and award dated 25^th February, 2022 passed in MVC No.173 of 2016 by Motor Accident Claims Tribunal, Gadag, is modified by enhancing the compensation to Rs.27,42,000/as against Rs.16,55,000/- awarded by the Tribunal;

¶107