Partly allowed

Tinku S/O Fakeerchand Nahar, v. Sri. Nagarajswamy S/O Basayya Swamy Hosalli

Karnataka HC10 Oct 2023MFA/20243/2011

Case brief

AI extract

What is this about?

Two first appeals were filed under the Motor Vehicles Act. The High Court allowed the owner's appeal by saddling liability on the insurer and allowed the claimant's appeal in part, enhancing total compensation to Rs. 4,42,540 with interest, modifying the lower court's award.

What did the court decide?

Total compensation of Rs. 4,42,540 with 6% p.a. interest; liability saddled on the insurance company; insurer directed to deposit amount within eight weeks.

Tinku S/O Fakeerchand Nahar, Vs Sri. Nagarajswamy S/O… — Banking and Recovery | Karnataka HC (2023)

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NC: 2023:KHC-D:12411 MFA No. 20243 of 2011 C/W MFA No. 21900 of 2011

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.20243/2011(MV) C/W MISCELLANEOUS FIRST APPEAL NO.21900/2011(MV)

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IN MFA.NO.20243/2011:

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BETWEEN:

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TINKU S/O. FAKEERCHAND NAHAR, AGE: MAJOR, OWNER OF AUTO RICKSHAW BEARING NO.KA-36/TRM 399, R/O: KUSHTAGI ROAD, SINDHANOOR, DIST: RAICHUR.

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…APPELLANT

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(BY SRI D. V. PATTAR, ADVOCATE)

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Digitally signed by SUJATA SUBHASH PAMMAR

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AND:

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SRI NAGARAJSWAMY S/O. BASAYYA SWAMY HOSALLI, AGE: 24 YEARS, OCC: FLOOR MILL FITTER, R/O: SANAPUR, HOSPETE - TALUK, NOW R/O: MUSTOOR, TQ: GANGAVATHI, DIST: KOPPAL.

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UNITED INDIA INSURANCE CO. LTD., BY ITS BRANCH MANAGER, BRANCH OFFICE, BUS STAND ROAD, OPP: B.D.O OFFICE, SINDHANOOR, RAICHUR – DISTRICT.

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VEERESH S/O. HANUMANTHAPPA, AGE: MAJOR, OCC: DRIVER OF AUTORICKSHAW,

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NC: 2023:KHC-D:12411 MFA No. 20243 of 2011 C/W MFA No. 21900 of 2011

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R/O: HUDA, SINDHANOOR - TALUK, RAICHUR - DISTRICT.

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…RESPONDENTS (BY SRI CHANDRASHEKAR P. PATIL, ADVOCATE FOR R1; SRI R.R.MANE, ADVOCATE FOR R2; R3 – NOTICE SERVED.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORD OF THE TRIAL COURT, SET ASIDE THE JUDGMENT AND AWARD DATED 26.10.2010, IN M.V.C.NO.418/2008, PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND M.A.C.T., AT GANGAVATHI IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA.NO.21900/2011:

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BETWEEN:

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SRI NAGARAJSWAMY S/O. BASAYYA SWAMY HOSALLI, AGE: 22 YEARS, OCC: FLOOR MILL FITTER AND AGRICULTURAL COOLIE, R/O: SANAPUR, TQ: HOSPETE, DIST:BALLARI, NOW RESIDING AT MUSTOOR, TQ: GANGAVATHI, DIST: KOPPAL.

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…APPELLANT

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(BY SRI CHANDRASHEKAR P. PATIL, ADVOCATE)

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AND:

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THE BRANCH MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED, BRANCH OFFICE, BUS – STAND ROAD, OPP: B.D.O.OFFICE, SINDHANUR, DIST: RAICHUR.

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TINKU S/O. FAKEERCHAND NAHAR, AGE: MAJOR, OCC: OWNER OF AUTO RICKSHAW NO.KA-36/TRM 399, R/O: KUSHTAGI ROAD, SINDHANOOR, DIST: RAICHUR.

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…RESPONDENTS

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(BY SRI R.R.MANE, ADVOCATE FOR R1; SRI D.V.PATTAR, ADVOCATE FOR R2)

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NC: 2023:KHC-D:12411 MFA No. 20243 of 2011 C/W MFA No. 21900 of 2011

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS AND MODIFY THE JUDGMENT AND AWARD DATED 26.10.2010, PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND MACT, GANGAVATHI, IN MVC NO.418/2008, AND AWARD COMPENSATION AS CLAIMED IN THE CLAIM PETITION AND SADDLLING LIABILITY ON THE INSURANCE COMPANY TO PAY THE SAID AMOUNT, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal in MFA No.20243/2011 is filed by the owner of auto rickshaw challenging the judgment and award dated 16.10.2010, passed by the tribunal in MVC No.418/2008, questioning the liability fastened on the owner of the vehicle. Whereas, MFA No.21900/2011 is filed by the claimant seeking enhancement of compensation.

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The factum of accident, the claimant sustaining

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injuries in the accident are not in dispute in this case.

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Heard the arguments and perused the material placed before the Court.

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4 - NC: 2023:KHC-D:12411 MFA No. 20243 of 2011 C/W MFA No. 21900 of 2011

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In the present case the offending vehicle auto

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rickshaw is LMV (transport). The driver was holding driving licence to drive the LMV (non transport). Therefore the issue involved is covered by the decision of Hon’ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited reported in (2017) 14 Supreme Court Cases 663 . Therefore the insurance company is liable to indemnify the owner and to pay compensation.

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In the present case the claimant has sustained fracture of right and left femur. The doctor has assessed 20% of physical disability to the whole body. The claimant was working in a floor mill as a fitter and also an agriculturist. Certainly the fracture of femur bones of both legs would affect the earning capacity and therefore the doctor is correct in assessing that the claimant suffered 20% of functional disability.

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The accident is caused on 20.01.2008.

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Therefore, notional income would be Rs.4,250/- per

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5 - NC: 2023:KHC-D:12411 MFA No. 20243 of 2011 C/W MFA No. 21900 of 2011

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month. The claimant was aged 22 years old at the time of accident. Accordingly as per the age group mentioned in

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National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680 , and as per the Division Bench judgment of this Court in New India Assurance Company Vs. Abdul S/o Mehaboob Tahasildar i n MFA

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No.103807/2016 C/w. MFA Nos.103835/2016 & 103807/2018 and as per the judgment of the Hon’ble Supreme Court in the case of Sidram vs. Divisional Manager, United India Insurance Company Limited and another reported in (2023) 3 SCC 439, even in the case of injuries, certain income is to be added towards loss of future prospects in life.

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Since the claimant suffered significant disability of fracture of femur bones of both legs, certainly it affects his life towards future prospects. Accordingly 40% of income is to be added towards loss of future prospects in life. Considering the age of the claimant, appropriate

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applicable multiplier is 18. Therefore, loss of future income due to disability including loss of future prospects in life is hereby reassessed and quantified as Rs.2,57,040/(Rs.4,250 + 40% x 20% 12 x 18).

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Further, considering the injuries sustained by the claimant, Rs.70,000/- towards injuries pain and suffering, Rs.5,000/towards medical expenses, Rs.5,000/- towards incidental charges like attendant charges, food, nourishment, conveyance, etc., Rs.40,000/towards loss of amenities, Rs.40,000/- towards loss of marriage prospects and Rs.25,500/- towards loss of income during laid up and treatment period for a period of six months, is awarded.

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Thus, the claimant is entitled for total

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compensation under various heads as under:

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Sl.	Heads.		Amount in
No.			(Rs.)
1.	Towards injuries, pain suffering.	and	70,000
2.	Towards medical expenses.		5,000
3.	Towards loss of amenities.		40,000

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NC: 2023:KHC-D:12411 MFA No. 20243 of 2011 C/W MFA No. 21900 of 2011

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4.	Towards loss of income during laid up period and medical treatment period.	25,500
5.	Towards incidental charges like attendant charges, food, nourishment, conveyance, etc.,.	5,000
6.	Towards loss of marriage prospects.	40,000
7.	Towards loss of future earning capacity. (Rs.4,250 + 40% x 20% 12 x 18)	2,57,040
	Total:	4,42,540

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Therefore, the claimant is entitled for total

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compensation of Rs.4,42,540/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.1,85,600/- awarded by the Tribunal. The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.

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In the result, I proceed to pass the following:

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ORDER

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i) The appeal in MFA No.20243/2011

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filed by the owner of auto rickshaw is allowed

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8 - NC: 2023:KHC-D:12411 MFA No. 20243 of 2011 C/W MFA No. 21900 of 2011

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by saddling the liability to pay compensation on the insurance company.

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ii) The appeal in MFA No.21900/2011

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filed by the claimant is allowed in part.

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iii) The judgment and award dated 26.10.2010, passed by the Senior Civil Judge and MACT, Gangavathi, in MVC No.418/2008, stands modified.

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iv) The claimant is entitled for total compensation of Rs.4,42,540/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.1,85,600/- awarded by the Tribunal.

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v) The claimant is not entitled for

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interest for the delayed period of 69 days in filing the appeal.

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