Sannppa S/O Yallappa Vs Lakkappa Basappa Hatti

THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 29.09.2012, PASSED IN MVC NO.2433/2011 ON THE FILE OF THE FAST TRACK COURT AND ADDL. MACT, SAUNDATTI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM:

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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NC: 2025:KHC-D:10824 MFA No. 100073 of 2014

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This Appeal is filed by the petitioner, being dissatisfied

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with the quantum of compensation, and with the fastening

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of the liability on the owner of the vehicle, passed in MVC No.2433/2011 vide judgment and award dated 29.09.2012 by the learned Fast Track Court and Additional MACT, Saundatti (‘the Tribunal’ for short).

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For convenience, the parties are referred to based on their rankings before the Tribunal.

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Brief facts, leading rise to the filing of this appeal are as follows:

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3.1. On 17.01.2011, while the petitioner was waiting

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at Budigoppa cross at 01:30 p.m., a Hero Honda motorcycle

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bearing Reg.No.KA-42/E-5865 ridden by its rider, came in a

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rash and negligent manner and dashed to the motorcycle bearing Reg.No.KA-24/J-3520, which was proceeding towards Yaragatti, and caused the accident. As a result, the

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petitioner sustained grievous injuries. Hence, the petitioner filed a claim petition under Section 166 of the Motor Vehicles Act, 1988.

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The owner of the offending motorcycle appeared through counsel, but did not file a statement of objections. The Insurance Company filed a statement of objections denying the averments made in the claim petition. It is contended that, the rider of the motorcycle bearing Reg.No.KA-24/J-3520 was riding the vehicle in a rash and negligent manner and the rider of the said motorcycle did not possess a valid and effective driving licence as of the date of the accident. Hence, prays to dismiss the claim petition against the Insurance Company.

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The Tribunal, based on the pleadings of the parties, framed the relevant issues.

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The petitioner, to substantiate his case,

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examined himself as PW-1, examined the Doctor as PW-2, and marked 23 documents as Exs.P1 to P23. The

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respondents have not led any oral or documentary evidence.

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The Tribunal after assessing the verbal and documentary evidence, allowed the claim petition in-part with cost vide judgment dated 29.09.2012 and awarded compensation of Rs.1,53,300/- and held that, the owner of the offending motorcycle is liable to pay the entire compensation amount with cost and dismissed the claim petition against the Insurance Company. The petitioner, being aggrieved by the quantum of compensation and the liability, filed this appeal.

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Heard the arguments of learned counsel for the petitioner, and the Insurance Company.

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Learned counsel for the petitioner submits that,

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the compensation awarded by the Tribunal is on the lower side and she submits that, the Tribunal committed an error in fastening the liability on the owner of the offending

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vehicle. Hence, on the grounds, prays to allow the appeal, and enhance the compensation.

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Per contra, the learned counsel for the Insurance Company submits that, as of the date of the accident, the rider of the motorcycle did not possess a valid and effective driving licence. He also submits that, despite sufficient time given to the owner of the motorcycle, he has not adduced, nor produced, the driving licence of the offending vehicle’s rider. He submits that, there is a breach of policy conditions. He submits that, the Tribunal was justified in dismissing the claim petition against the Insurance Company, and accordingly prays to dismiss the appeal.

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Perused the records, and considered the

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submissions of learned counsel for the parties.

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There is no dispute that, the petitioner met with an accident, and sustained grievous injuries, and to prove that the accident had occurred due to rash and negligent riding of the rider of the motorcycle, the petitioner has

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produced a copy of the complaint, and FIR marked as Ex.P1 and P2.

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Insofar as quantum is concerned, the petitioner contended that, he is an Agriculturist, and to prove that, he has produced the ROR marked as Ex.P23, and contended that he was getting an income of Rs.40,000/- per annum, but he has not produced any proof of income. In the absence of income proof, the Court has to assess the notional income as per the schedule notified by the Karnataka State Legal Services Authority. The accident occurred in 2011. The income is taken at Rs.6,000/- per month. The petitioner is aged 40 years old as of the date of accident; therefore, 25% of the future prospects must be added. In view of the proposition laid down by the Hon’ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi and Others¹ . Thus, the income is taken as Rs.6,000/- + Rs.1,500/- = Rs.7,500/- per month. The

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1 2017 (16) SCC 680

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petitioner examined the Doctor as PW-2, who has opined

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that, the petitioner has suffered disability at 30% to the whole body. However the Tribunal assessed the disability at 15% considering that PW-2 is not a treated doctor. The

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Tribunal was justified in assessing the disability considering the evidence of PW-2, and the medical records. This Court re-assesses the compensation under the following heads:

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	Compensati	on awarded in Rs.
Particulars	By the Tribunal	By this Court
Loss of earnings	90,000/-	2,02,500/-
		(7,500 x 12 x 15 x 15%)
Pain ans sufferings	30,000/-	50,000/-
Loss of amenities	10,000/-	25,000/-
Medical expenses	11,300/-	11,300/-
Attendant charges and Miscellaneous expenses	6,000/-	10,000/-
Loss of earnings during laid-up period	6,000/-	22,500/-
Total	1,53,300/-	3,21,300/-

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Enhanced by this Court

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1,68,000/-

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Thus, the petitioner is entitled to a total compensation of Rs.3,21,300/as against Rs.1,53,300/-. Thus, the petitioner is entitled to an enhanced compensation of Rs.1,68,000/-.

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Though the Insurance Company has taken a specific defence in the statement of objections that the rider of the motorcycle did not possess a valid and effective driving licence, admittedly the owner of the offending motorcycle was arrayed as respondent No.1 before the Tribunal. Respondent No.1, though appears through the counsel, did not file statement of objections, and also did not led any oral evidence, and has not produced the driving licence to establish that the rider of the motorcycle was possessing valid, and effective driving licence as of the date of accident. The Tribunal was justified in recording its finding that, the owner of the offending motorcycle has committed a breach of policy conditions, and has rightly

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dismissed the claim petition against the Insurance

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Company.

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14.1. However, as of the date of accident, the

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motorcycle was insured with the Insurance Company and the policy was in force. Respondent No.2 being the insurer, is liable to indemnify the owner of the motorcycle and pay the compensation amount to the petitioner at first instance and recover the same from the owner of the offending motorcycle in accordance with law. In view of the above discussion, I proceed to pass the following:

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ORDER

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