Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1692 (KAR)

Parushram v. Hanamappa Kallappa Kurtkoti

2020-09-03

M.NAGAPRASANNA

body2020
JUDGMENT M.Nagaprasanna, J. - This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties. 2. This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act , for short) has been filed by the claimant being aggrieved by the judgment dated 01.08.2013 passed by the Member, MACT-II, Bagalkot in M.V.C.No.27/2012. 3. Parties will be referred to as per their ranking before the Claims Tribunal. 4. Facts giving rise to the filing of the appeal briefly stated are that, on 22.08.2011, the claimant and his relative were proceeding towards Badami from Nasabi on a motorcycle bearing Reg.No.KA-29/H-3982, where the claimant was a pillion rider. When they reached Badami- Banashankari temple, the driver of the tractor and trailer unit bearing Reg.No.KA-26/TA-2344-2345 drove the same in a rash and negligent manner dashed into the motorcycle. Due to which, the claimant fell down and sustained grievous injuries. He was immediately shifted to Government Hospital, Badami and after taking preliminary treatment, he was shifted to Kanthi Nursing Home, Bagalkot for advanced treatment, where he underwent surgeries. 5. The claimant, claiming to have spent huge sums of money towards treatment of the injuries sustained by him in the road accident and that he is earning about Rs.300/- per day and due to the injuries sustained by him in the accident he is unable to do heavy work which deprived him of his daily income filed a claim petition under Section 166 of the Act before the Tribunal claiming compensation to the tune of Rs.15,00,000/-. 6. On service of notice, respondent No.2-Insurance Company appeared and denied the factum of the accident that had taken place and the manner in which it was explained by the claimant. The age, avocation and income of the claimant were all denied. It was contended that, as on the date of the accident, the driver of the tractor and trailer unit did not have a valid and effective driving licence to drive transport vehicle and he had only a LMV (NT) driving licence and could not drive the tractor and trailer. On this ground, it was contended that there was violation of policy conditions and the Insurance Company was not liable to pay any compensation for the injuries sustained by the claimant in the road accident. 7. On this ground, it was contended that there was violation of policy conditions and the Insurance Company was not liable to pay any compensation for the injuries sustained by the claimant in the road accident. 7. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. 8. The claimant, in order to prove his case, examined himself as P.W.1 and the doctor who had issued disability certificate as P.W.2 and got marked 11 documents namely Exs.P1 to P11. On the other hand, Insurance Company examined one witness as R.W.1 and got marked 2 documents as Exs.R1 & R2. 9. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the tractor and further held that the claimant is entitled to a compensation of Rs.1,49,600/- along with interest at the rate of 6% p.a. The Tribunal fastened liability of payment of compensation so determined upon the owner of the offending vehicle on the ground that the driver of the tractor and trailer did not have a valid driving licence to drive the transport vehicle, but only had LMV licence. The claimant has preferred the subject appeal questioning the order of the Tribunal fastening liability upon the owner of the offending vehicle and has also sought enhancement of compensation for the injuries sustained by him in the accident. 10. I have heard Sri.Anand R.Kolli, learned counsel for the claimant and Sri.N.R.Kuppelur, learned counsel for the Insurance Company. 11. The learned counsel for the appellant-claimant would contend that, fastening of the liability upon the owner of the vehicle is erroneous, in the light of the law laid down by the Hon ble Apex Court in the case of Mukund Dewangan V/s Oriental Insurance Company Limited, (2017) AIR SC 3668 . He further contends that the compensation awarded by the Tribunal on all the heads is on the lower side and seek its enhancement. 12. On the other hand, learned counsel for the Insurance Company would contend that the compensation awarded by the Tribunal is just, fair and proper and does warrant any interference. Insofar as fastening liability upon the owner of the vehicle, learned counsel would concede to the law laid down by the Hon ble Apex Court in the case of Mukund Dewangan (supra). 13. Insofar as fastening liability upon the owner of the vehicle, learned counsel would concede to the law laid down by the Hon ble Apex Court in the case of Mukund Dewangan (supra). 13. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the material on record. 14. Admittedly, as on the date of the accident, the driver of the offending vehicle namely, tractor and trailer had a LMV (NT) licence and the tractor and trailer did not belong to the class of light motor vehicle but nonetheless the vehicle whose unladen weight is less than 7500 kgs, the Hon ble Apex Court in Mukund Dewangan (supra) held that, driver of the transport vehicle whose unladen weight is less than 7500 kgs can drive the same holding a LMV(NT) licence. In the light of the law laid down by the Apex Court, the order of the Tribunal fastening liability upon the owner of the offending vehicle is not sustainable and is set aside. 15. Insofar as quantum of compensation is concerned, Ex.P10 is the disability certificate issued by P.W.2-doctor. The doctor has assessed 25% disability to the whole body notwithstanding the fact that there were fracture of tibia and fibula. Hence, the assessment of the doctor to the whole body was erroneous which is considered by the Tribunal, but the Tribunal restricts the percentage of disability to 5% without there being any reason. Hence, I deem it appropriate to consider 1/3rd of the disability taken by the doctor, which is at 25%. Hence, the disability of the claimant is to be taken at 8% as against 5% taken by the Tribunal. Hence, the claimant is entitled for compensation under loss of future income would be Rs.1,03,680/- (Rs.6,000/- x 12 x 18 x 8/100) as against Rs.64,800/- awarded by the Tribunal. 16. The compensation awarded by the Tribunal on other heads appears to be on the lower side and contrary to the chart provided by the High Court Legal Services Committee. Under the head pain and suffering, the Tribunal has awarded Rs.30,000/-, which I deem it appropriate to enhance by Rs.10,000/-. Hence, the claimant would be entitled to Rs.40,000/- under the head pain and suffering. The Tribunal has awarded Rs.2,000/- towards transportation charges, which I deem it appropriate to enhance to Rs.5,000/-. The Tribunal has awarded Rs.10,000/- towards loss of amenities. Under the head pain and suffering, the Tribunal has awarded Rs.30,000/-, which I deem it appropriate to enhance by Rs.10,000/-. Hence, the claimant would be entitled to Rs.40,000/- under the head pain and suffering. The Tribunal has awarded Rs.2,000/- towards transportation charges, which I deem it appropriate to enhance to Rs.5,000/-. The Tribunal has awarded Rs.10,000/- towards loss of amenities. In the light of the fact that claimant has suffered two fractures, I deem it appropriate to enhance the same to Rs.30,000/-.The Tribunal has awarded only Rs.2,400/- towards laid off period notwithstanding the fact that income taken by the Tribunal is Rs.6,000/- p.m. and the treatment period is taken as 3 months. Hence, the same is enhanced to Rs.18,000/- as against Rs.2,400/- awarded by the Tribunal. On attendant charges and food and nutrition, the Tribunal has awarded Rs.1,200/- each, which I deem it appropriate to enhance putting them together at Rs.10,000/-. 17. Hence, the claimant is entitled to total compensation of Rs.2,44,680/- as against Rs.1,49,600/- awarded by the Tribunal, which shall carry interest at the rate of 6% p.a. from the date of petition till its satisfaction by the Insurance Company. In the light of the judgment of the Apex Court in Mukund Dewangan (supra), the order of the Tribunal fastening the liability upon the owner is set aside and the Insurance Company is liable to pay the entire compensation. 18. The Tribunal shall release 60% of the amount in favour of the claimant and remaining 40% shall be kept in fixed deposit in any nationalized bank in the name of the claimant for a period of five years with liberty to draw accrued interest. To the aforesaid extent, the judgment of the Tribunal is modified. Accordingly, the appeal is allowed in part.