Arjun@ Somu S/O Ramappa Bandiwaddar Vs Santosha S/O Mallappa Ballolli and Ors.

SANTOSHA S/O MALLAPPA BALLOLLI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O MASABINAL, TQ. BASAVANA BAGEWADI, DIST. VIJAYAPURA-586 203, (OWNER OF BAJAJ MOTORCYCLE BEARING REG. NO.KA-25/EH-3188).

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THE BRANCH MANAGER, HDFC ERGO GENERAL INSURANCE CO. LTD., 2^ND BUILDING, SHANKAR NARAYAN BUILDING, IIND FLOOR, M.G. ROAD, BENGALURU-560 018.

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RAJU P. GHANTI, AGE: 38 YEARS, OCC: BUSINESS, R/O SHIRAGUPPI, TQ. HUBBALLI, DIST. DHARAWAD-580 023.

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…RESPONDENTS

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(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE, FOR R2; R1 & R3 - SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 19.08.2019 PASSED IN MVC NO.620/2016 ON THE FILE OF THE COURT OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.VII, VIJAYAPURA, AT VIJAYAPURA, AND ALLOW THIS APPEAL BY ENHANCING COMEPNSATION BY RS.14,99,990/- ONLY AS CLAIMED BY THE APPELLANT.

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IN MFA NO.202392/2019:

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BETWEEN:

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THE BRANCH MANAGER, HDFC ERGO GEN. INS. CO. LTD., 2^ND BUILDING, SHANKAR NARAYAN BUILDING,

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IIND FLOOR, M.G. ROAD, BENGALURU. (NOW REPRESENTED BY AUTHORIZED SIGNATORY, DESHPANDE NAGAR, HUBLI).

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…APPELLANT

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(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)

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AND:

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ARJUN @ SOMU S/O RAMAPPA BANDIWADDAR, AGE: 24 YEARS, OCC: MASON, R/O SHIKHARKHANE, VIJAYAPUR CITY, VIJAYAPUR-586 101.

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SANTHOSHA S/O MALLAPPA BALLOLLI, AGE: 41 YEARS, R/O AGRICULTURE, R/O MASABINAL, TQ. B. BAGEWADI, DIST. VIJAYAPUR-586 101.

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RAJU P. GHANTI, AGE: 37 YEARS, OCC: BUSINESS, R/O SHIRAGUPPI, TQ. HUBBALLI, DIST. DHARWAD-580 001.

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…RESPONDENTS

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(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE, FOR R1; R2- SERVED; R3- HAND SUMMONS)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED 19.08.2019 IN MVC NO.620/2016 PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AND MACT-VII, AT VIJAYAPURA.

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THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE C.M. JOSHI

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE C.M. JOSHI)

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Heard learned counsel appearing for the

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appellant-claimant and learned counsel appearing for the appellant-Insurance Company.

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Being aggrieved by the judgment and award dated 19.08.2019 passed in MVC No.620/2016 by II Additional Senior Civil Judge, Vijayapur, the petitionerclaimant is before this Court in MFA No.200125/2020 and the respondent No.2 - Insurance Company is before this Court in MFA No.202392/2019.

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The factual matrix of the case is as below:

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a) It is the case of the petitioner that on 06.05.2015

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while he was returning from his work, a BAJAJ Pulsar Motorcycle bearing No.KA-25/EH-3188 came in high speed and negligent manner from opposite side and dashed to the petitioner. The petitioner sustained fractures to his right leg

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and right arm and he was immediately shifted to Nayak Nursing Home, Vijayapur. On the next day, while he was in the hospital, the Police came to the hospital and recorded his statement, which was registered in Crime No.73 of 2015 of Mangoli Police Station. After investigation, the Police filed the charge-sheet against the RW1 – Shankreppa for the negligent driving of the motorcycle. The petitioner contends that he was a Mason by profession, earning Rs.18,000/- per month and due to the accidental injuries, he has suffered permanent disability, hence, he be awarded adequate compensation.

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b) On issuance of the notice, respondent Nos.1 and 3 did not appear and as such placed ex-parte.

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c) Respondent No.2 – Insurance Company alone appeared before the Tribunal and contended that there is delay in filing the complaint by one day and the motorcycle has been falsely implicated in the case. It was contended that there was violation of the terms and conditions of the policy and that the compensation claimed is highly excessive,

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imaginary and untenable in law. Inter alia, the age, income

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and occupation of the petitioner were also denied.

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d) On the basis of the above contentions, the Tribunal framed appropriate issues and the petitioner was examined as PW1 and Exs.P1 to P14 were marked in evidence. The Doctor, who assessed the disability, was examined as PW2. The respondent/Insurance Company have examined RW1 to RW3 and the documents at Exs.R1 to R4 were marked in evidence.

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e) After hearing the arguments, the Tribunal awarded the compensation of Rs.3,17,375/- as under and held that the Insurance Company is liable to pay the compensation:

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1	Injury, pain and sufferings	Rs.25,000/-
2	Other remaining heads	Rs.30,000/-
3	Loss of future income	Rs.1,08,000/-
4	Medical Expenses	Rs.1,54,375/-
	Total	Rs.3,17,375/-

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Aggrieved by the said judgment, the petitioner as well as the respondent No.2/ Insurance Company are before this Court in their respective appeals.

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Learned counsel appearing for the Insurance Company (appellant in MFA No.202392/2019) would submit that the Tribunal though refers to the testimony of the RWs.2 and 3, did not refer to the testimony of the RW1. It is submitted that the Insurance Company has summoned RW1, who is none else than the rider of the motorcycle as per the petitioner. It is contended that the said rider who has been charge-sheeted before the Police had stated before the Tribunal that he does not know as to when and where the accident had occurred and that he had given a letter in his own hand writing to respondent No.2/Insurance Company that he was not the rider at the time of the accident. It is pointed out that as per Ex.R1, it was none else than the respondent No.1 was the rider of the motorcycle. Since, respondent No.1 – Santhosha had no driving license, the name of RW1 was used. It is contended that the testimony of RW1 categorically shows that the Police have taken the

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driving license of RW1 and have implicated his name in the charge-sheet. Therefore, it is contended that the fastening of the liability upon respondent No.2/Insurance Company is not sustainable in law. Secondly, she submits that the compensation awarded by the Tribunal is proper and correct and no interference is required in respect of the same.

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Per contra, learned counsel appearing for the petitioner-claimant submits that the Tribunal has considered the testimony of RWs.2 and 3 and it has come to the conclusion that RW1 himself was riding the motorcycle and as such, he was charge-sheeted by the Police. It is contended that RW1 cannot be treated to be a name lender but in fact, the vehicle was driven by him. Therefore, he submits that the fastening of liability upon respondent Nos.1 and 2 is proper and correct. Alternatively, he submits that, in case respondent No.2/Insurance Company is absolved from paying the liability, an order of ‘pay and recover’ be made, since, the petitioner is a 3^rd party.

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Regarding quantum, it is submitted that the

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testimony of PW2 would disclose that there is 40 to 45% disability to the right lower limb and 20 to 25% to the right upper limb. The Tribunal has assessed the total functional disability at 10%, which is erroneous. Therefore, he contends that there is a need for reassessment of the compensation under all heads.

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The perusal of the records would reveal that earlier the vehicle was owned by respondent No.3 and later it was transferred to respondent No.1. But however, the policy was not transferred. The petitioner lodged the complaint in respect of the accident while he was in the hospital. This is evidenced by Ex.P2. Evidently, the complaint was lodged on the next day of the accident. The complaint discloses that the petitioner came to know about the name of the rider only because the rider had come to the hospital and informed that he was riding the vehicle. In other words, PW1 do not say that he had seen the RW1 – Shankreppa was rider of the motorcycle. The Police on the basis of such complaint filed by the petitioner, proceeded to

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investigate the matter. Ultimately, they filed charge-sheet against RW1 – Shankreppa. The records also reveal that during the enquiry before the Tribunal, the Insurance Company summoned the said Shankreppa and he deposed as RW1. The testimony of the RW1 show that in his examination-in-chief, he admits that he does not know where and how the accident had occurred. He also admits that he came to know about the accident only after the Police registered the case against him and thereafter he went to the Court and has paid the fine. He admits the contents of Ex.R1. He denied that the accident was not due to his negligence. This is something which is peculiar. RW1 though states that he does not know how and where the accident had occurred, also states that the accident occurred due to his own negligence. Thus, the testimony of the RW1 show that he was made to agree to lend his name for inclusion as an accused in the charge-sheet. The crossexamination of RW1 by the learned counsel for the petitioner would show that he admits that he was riding the motorcycle and the accident occurred while he was riding the same.

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This is in direct contradiction to his testimony to his examination-in-chief. In normal circumstances, it would have been a case of perjury.

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Be that as it may. However, this case being there of a summery enquiry, this Court desist from initiating any such proceeding.

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A perusal of evidence of RW1 would show that he categorically admits that the Police had come to him and have taken copy of his driving license and later his name was included in the charge-sheet. In Ex.R1, it is also clearly mentioned that the motorcycle was ridden by one Santhosh i.e., respondent No.1 and he was not having driving license. Thus, it is evident from the testimony of RW1 and Ex.R1 that the name of RW1 was falsely implicated in order to save respondent No.1 – Santhosha. Respondent No.1 – Santosha was infact riding the motorcycle and therefore, it is the respondent No.1, who is made liable. Evidently, the Ex.R1 coupled with the testimony of RW1 – Shankreppa show that respondent No.1 – Santhosha was not having valid driving

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license. Hence, the appeal filed by the Insurance Company deserves to be allowed.

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Insofar as the quantum of the compensation is concerned, the petitioner had sustained compound fracture of the right leg, right knee, fracture of the right wrist and he was operated with ORIF. The Discharge Summary at Ex.P10 would also show the same. The perusal of the Disability Certificate, which is at Ex.P13, would show that there is 40 to 45% of disability to the right lower limb and about 20 to 25% to the right upper limb.

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PW2 is being a treated Doctor, his testimony has to be accepted. The physical disability as stated by PW2 definitely would result in functional disability. The petitioner being a Mason, aged about 25 years, the functional disability on account of the fracture of the upper limb and the lower limb is to be assessed. In the considered opinion of this Court, it would be proper to accept the same at 20%.

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The Tribunal has considered the notional income at Rs.5,000/- per month. The guidelines issued by the

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Karnataka State Legal Services Authority (KSLSA) for settlement of the disputes before the Lok Adalat prescribe the notional income of Rs.8,000/- for the year 2015. In umpteen number of decisions, this Court has held that the guidelines issued by KSLSA are held to be acceptable on the ground that they are in general conformity with the minimum wages fixed under the Minimum Wages Act. Therefore, the notional income of the appellant-petitioner is accepted as Rs.8,000/- per month. Accordingly, the loss of future income on account of permanent disability is calculated at Rs.8,000/- x 12 x 18 x 20% = Rs.3,45,600/-, by adopting multiplier of ‘18’ for the age of 21 years.

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Consequently, the compensation under the head loss of income during laid up period for three months is calculated as Rs.8,000/- x 3 = Rs.24,000/-.

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The Tribunal has awarded Rs.25,000/- under the head injury, pain and suffering and the same is enhanced to Rs.50,000/-, since the injuries are to the upper limb as well as lower limb.

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The Tribunal has not specifically considered the

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loss of amenities, conveyance, attendant’s charges and under the common head has awarded Rs.30,000/-. The petitioner would be entitled for compensation of Rs.40,000/under the head loss of amenities in life and a sum of Rs.20,000/- under the head conveyance, attendant’s charges and nourishment etc.

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The compensation under the head medical expenses do not require any enhancement. But the petitioner would be entitled for future medical expenses in view of the implants in situ as per the Disability Certificate. The said sum is assessed at Rs.25,000/-, but it would not carry any interest.

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Accordingly, the appellant-petitioner is entitled for

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total compensation of Rs.6,58,975/- as below as against Rs.3,17,375/- awarded by the Tribunal:

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Sl.	Heads	Award
No.
1	Pain and sufferings	Rs.50,000/-
2	Medical expenses	Rs.1,54,375/-

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3	Loss of income due to permanent physical disability	Rs.3,45,600/-
4	Conveyance, attendant’s charges andnourishment	Rs.20,000/-
5	Loss of amenities and future unhappiness	Rs.40,000/-
6	Loss of income during laid up period	Rs.24,000/-
7	Futuremedicalexpenses	Rs.25,000/-
	TOTAL	Rs.6,58,975/-
	Less: Award by the Tribunal	Rs.3,17,375/-
	Enhancement	Rs.3,41,600/-

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In the result, the appeal filed by the petitioner

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deserves to be allowed in part and hence, the following:

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ORDER

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(i) The MFA No.202392/2019 filed by the

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Insurance Company is allowed.

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(ii) The appellant/Insurance Company is absolved from paying any compensation amount to the petitioner.

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(iii) The appeal filed by the appellantpetitioner in MFA No.200125/2020 filed by the petitioner is allowed in part.

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(iv) The appellant-petitioner is entitled for

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a sum of Rs.3,41,600/- with interest at the rate of 6% per annum (excluding interest on Rs.25,000/-

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awarded under the head ‘future medical expenses’), from the date of petition till realization, in addition to what has been awarded by the Tribunal.

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(v) The respondent No.1 is directed to

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deposit the entire compensation amount, as awarded by the Tribunal and by this Court, along with interest within a period of 02 months from the date of receipt of this judgment, before the Tribunal.

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(vi) The amount in deposit before this Court is ordered to be refunded to the

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appellant/Insurance Company.

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Sd/(C.M. JOSHI) JUDGE

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SBS List No.: 1 Sl No.: 59 CT: AK

Arjun@ Somu S/O Ramappa Bandiwaddar v. Santosha S/O Mallappa Ballolli and Ors.

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Arjun@ Somu S/O Ramappa Bandiwaddar v. Santosha S/O Mallappa Ballolli and Ors.

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