National Insurance Company Ltd., Vs Raju H N @ Siddaraju

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.04.2022 PASSED IN MVC NO.422/2019 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, CJM AND AMACT-VII, SHIVAMOGGA, AWARDING COMPENSATION OF RS.7,41,611/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA NO. 7878/2022

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BETWEEN:

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RAJU. H. N. @ SIDDARAJU S/O NAGARAJU AGED 27 YEARS

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R/AT HARAPANAHALLI CAMP B BEERANAHALLI POST SHIVAMOGGA 577201

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...APPELLANT

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(BY SRI. M.V. MAHESWARAPPA, ADVOCATE)

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HC-KAR

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AND:

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YOGESH S/O VENKATESH AGED 22 YEARS

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SMT LAKSHMI W/O VENKATESH AGED 41 YEARS

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RESPONDENT NO.1 AND 2 ARE R/AT RAGIGUDDA 2^ND CROSS SHIVAMOGGA - 577 201

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THE BRANCH MANAGER M/S NATIONAL INSURANCE COMPANY LTD NO.151, 1^ST FLOOR S.S. COMPLEX, B.H. ROAD SHIVAMOGGA - 577 201

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...RESPONDENTS

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(BY SMT. H.R. RENUKA, ADVOCATE FOR R3 VIDE ORDER DATED 16.01.2024, NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 28.06.2024,

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NOTICE TO R2 IS HELD SUFFICIENT)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.04.2022 PASSED IN MVC NO.422/2019 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, CJM AND AMACT-VII, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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NC: 2025:KHC:40702 MFA No. 5982 of 2022 C/W MFA No. 7878 of 2022

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HC-KAR

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS

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DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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Both these appeals arises out of judgment and award dated 6^th April 2022, passed in MVC No.422/2019 on the file of I Addl. Senior Civil Judge & CJM & Additional Motor Accident Claim Tribunal-VII at Shivamogga, (for short `Tribunal'). MFA No. 5982/2022 has been filed by the insurer, challenging its liability to pay compensation and claimant has filed MFA No.7878/2022 seeking enhancement of compensation.

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Both the matters are taken up together for disposal.

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For the sake of convenience, the parties are

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referred to as per their ranking before the Tribunal.

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The brief facts of the case are that, on 29.05.2018, at about 10.00 a.m., the claimant met with

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HC-KAR

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an accident while riding the motorcycle bearing registration No.KA-14/EL-1446 near Purale Ganapathi Temple, Holehonnuru Road, Shivamogga, due to rash and negligent riding of offending vehicle bearing registration No.KA-14/EQ-1256 by its rider. As a result, appellant/claimant sustained fracture of right femur as well as facial bones. He took treatment as inpatient and underwent surgery. He suffered permanent disability. With these reasons, he prayed to award compensation of Rs.27,00,000/-.

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Respondent No.1 was the rider and respondent No.2 was the owner and respondent No.3 was insurer of the offending vehicle. Respondent Nos.1 and 2 did not file written statement. Respondent No. 3 filed a written statement denying the contents of the claim petition and also denied its liability to pay compensation on the ground that the rider of the offending motorcycle did not hold a valid driving license, and prayed for the dismissal of the claim petition.

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HC-KAR

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The Tribunal framed necessary issues on the

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basis of rival contentions of the parties; recorded the evidence of petitioner and respondent No.3; heard the arguments and disposed of the petition by impugned judgment and award.

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The Tribunal held that the accident occurred due to negligence of the rider of the offending motor cycle. The Tribunal assessed the income of the claimant as Rs.12,500/- per month and assessed the disability as 9% to the whole body, applied multiplier as '18' and awarded in all, compensation of Rs.7,41,611/- with interest at the rate of 6% p.a.

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I have heard the arguments of learned counsel

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appearing for both the parties.

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Facts of the accident and injury sustained by the claimant are not in dispute. Learned counsel for the appellant/claimant contends that it is the case of the claimant that he was earning Rs.25,000/- per month as

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HC-KAR

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agriculturist and driver, but the Tribunal has taken his income on the lower side. Undisputedly, no materials were produced before the Tribunal to substantiate contentions of the claimant that he was earning Rs.25,000/- per month. Therefore, the Tribunal following the chart prepared by the Karnataka State Legal Services Authority assessed the income of the claimant as Rs.12,500/- per month. Said findings does not call for interference.

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Learned counsel for the claimant contends that looking at the injuries sustained by the claimant, CW.1 assessed the disability as 25% but the Tribunal assessed the disability at 9% which is on the lower side. The said contention is also not tenable. As rightly noted by the Tribunal in the impugned judgment, the disability assessed by CW.1 was in respect of right lower limb and not to the whole body and when compared to the whole body it shall be 1/3^rd and on that basis the Tribunal assessed disability

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HC-KAR

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at 9%. It also does not call for any interference by this Court.

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Looking at the age of the claimant, his occupation, injury sustained by him and treatment taken as inpatient, the amount of compensation awarded on some of the heads are inadequate, which requires enhancement.

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Learned counsel for the insurer vehemently contends that the claimant sustained a permanent disability of 9%, despite this, the Tribunal added 40% of his income towards future prospects, which is not permissible. The said contention is tenable. Normally future prospects would be added, in case claimant sustain severe injuries resulting in a permanent disability of 80% to 90% to whole body. The said finding requires interference.

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For above said discussions, claimant is entitled to following compensation:

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NC: 2025:KHC:40702 MFA No. 5982 of 2022 C/W MFA No. 7878 of 2022

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HC-KAR

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Particulars A	mount in Rs.
Pain and sufferings	50,000/-
Medical expenses	2,96,411/-
Attendant charges, conveyance and Special diet	25,000/-
Loss of income during laid up period	62,500/-
(Rs.12,500/- x 5)
Loss of future earning capacity due to permanent disability	2,43,000/-
(Rs.12,500/- x 12 x 18 x 9%)
Loss of amenities and future unhappiness	50,000/-
Future medical expenses	30,000/-
Total	7,56,911/-
Amount awarded by the Tribunal	7,41,611/-
Enhancement-	15,300/-
Rounded off-	*16,000/-*

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The claimant is entitled to enhanced

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compensation of Rs.16,000/- along with interest @ 6% p.a. from the date of petition till its realization.

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The main ground urged by the insurer is that the

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rider of the offending vehicle did not hold a valid and effective

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HC-KAR

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driving license and was charge-sheeted under Section 3 read with Section 181 of the Motor Vehicles Act. Hence, insurer was not liable to pay compensation.

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In order to substantiate the said contention, respondent-Insurer examined RW.1. The Tribunal in the impugned judgment considered the judgment of the Apex Court as well as this Court and held that respondentinsurer failed to prove that rider of the offending vehicle had no valid and effective Driving Licence to ride the said vehicle. Therefore, directed the insurer to pay the compensation.

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It is not in dispute that the offending vehicle was insured with respondent No.3 and policy was in force as on the date of the accident. For the sake of discussion, even if it is accepted that driver had no valid and effective Driving Licence, in that event also Insurance Company had to satisfy the claim of the third party and it is at liberty to recover the same from the owner of the vehicle. Although the owner and rider of the vehicle appeared before the Tribunal,

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NC: 2025:KHC:40702 MFA No. 5982 of 2022 C/W MFA No. 7878 of 2022

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HC-KAR

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they did not file a written statement nor produce the driving license. Therefore, as per the law laid down in the case of New India Assurance Company Ltd., v. Yellavva , reported in 2020 ACJ 2560 High Court of Karnataka, insurer is liable to pay the compensation and it is at liberty to recover the same from the owner of the vehicle.

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For afore said discussions, following orders are

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passed:

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ORDER

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i) The Appeals are allowed in part.

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ii) The judgment and award dated 6^th April 2022, passed in MVC.No.422/2019, by the I Addl. Senior Civil Judge & CJM & Additional Motor Accident Claim Tribunal-VII is modified.

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iii) The claimant is entitled to an enhanced compensation of Rs.16,000/- with interest at 6% p.a. from the date of petition till its realization.

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iv) Respondent No.3 being the insurer shall deposit the said amount and it is at liberty

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NC: 2025:KHC:40702 MFA No. 5982 of 2022 C/W MFA No. 7878 of 2022

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HC-KAR

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to recover entire amount of compensation awarded by the Tribunal as well as this Court from owner of the vehicle in an appropriate proceedings, on the basis of this award.

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v) Entire enhanced amount shall be released in favour of the claimant on due identification.

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vi) Whatever amount deposited by the appellant-insurer in MFA No.5982/2022 shall be transmitted to the Tribunal for disbursal.

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v) Draw award accordingly.

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Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal.

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Sd/(UMESH M ADIGA) JUDGE

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PSJ List No.: 1 Sl No.: 28

National Insurance Company Ltd., v. Raju H N @ Siddaraju

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National Insurance Company Ltd., v. Raju H N @ Siddaraju

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