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2022 DIGILAW 648 (KAR)

Lohith v. Udaya Gonda

2022-05-23

H.T.NARENDRA PRASAD

body2022
JUDGMENT H.T. Narendra Prasad, J. - MFA No. 8166/2018 is filed by the claimant whereas MFA No. 4985/2018 is filed by the Insurance Company under Section 173(1) of the Motor Vehicles Act, (for short, 'the Act') being aggrieved by the judgment and award dated 02.04.2018 passed by the MACT, Udupi (sitting at Kundapura) in MVC No. 1152/2016. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed. 2. Facts giving rise to the filing of the appeal briefly stated are that on 12.11.2015 at about 10.45 a.m., the claimant was proceeding as a pillion rider in the motorcycle bearing registration No. KA-47/J-7864 towards Bhatkal side. When they reached near Agga, Hasrolli, Sagar Road, Bhatkal, another motorcycle bearing Engine No. U3S5C1FLO52482 being driven by its rider at a high speed and in a rash and negligent manner came from Bhatkal side towards Sagar side and dashed to the claimant's motorcycle. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized. 3. The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent riding of the offending vehicle by its rider. 4. On service of notice, the respondent Nos. 2 and 4 appeared through counsel and filed written statements in which the averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded by respondent No. 2 that the accident occurred solely due to the negligence of the motorcycle bearing registration No. KA-47/J-7854 only. It was further pleaded that the amount claimed by the claimant is exorbitant. It was pleaded by respondent No. 4 that the motorcycle bearing registration No. KA-47/J-7854 is insured with this respondent and liability if any is subject to terms, conditions and limitations of the policy. It was further pleaded that the rider of the above motorcycle was not holding valid and effective driving licence as on the date of the accident. It was further pleaded that the petition is bad for mis-joinder of necessary parties. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. It was further pleaded that the rider of the above motorcycle was not holding valid and effective driving licence as on the date of the accident. It was further pleaded that the petition is bad for mis-joinder of necessary parties. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. The respondent Nos. 1 and 3 did not appear before the Tribunal inspite of service of notice and were placed ex-parte. 5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr. Dinesh Kumar Shetty as PW-2 and got exhibited documents namely Ex.P1 to Ex.P10. On behalf of the respondents, two witnesses were examined as RW-1 and RW-2 and got exhibited documents namely Ex.R1 to Ex.R4. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs. 4,10,590/- along with interest at the rate of 6% p.a. and directed the insurer of the offending vehicle, i.e., National Insurance Company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed. 6. The learned counsel for the claimant has raised the following contentions: Firstly, even though the claimant claims that he was doing Centering and Painting work and earning Rs. 20,000/- per month, but the Tribunal has taken the notional income as merely as Rs. 9,000/- per month. Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 24% to right leg but the Tribunal has considered the whole body disability as 12% which is on the lower side. Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 12 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation granted by the Tribunal under the heads of 'pain and sufferings' and 'loss of earnings during laid up period' and other heads are on the lower side. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment. Considering the same, the compensation granted by the Tribunal under the heads of 'pain and sufferings' and 'loss of earnings during laid up period' and other heads are on the lower side. The Tribunal has not awarded any compensation for 'loss of amenities'. Hence, he sought for enhancement of compensation by allowing the appeal filed by the claimant. 7. On the other hand, the learned counsel for the National Insurance Company has raised the following counter contentions: Firstly, even though the claimant claims that he was earning Rs. 20,000/- per month, he has not produced any documents to establish his income. Therefore, the Tribunal has rightly assessed the income of the claimant notionally. Secondly, the injuries suffered by the claimant are minor in nature. Even though the doctor has assessed the disability to right leg as 24%, the whole body disability assessed by the Tribunal at 12% is on the higher side. Thirdly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is on the higher side. Fourthly, at the time of the accident the rider of the offending vehicle was not having valid and effective driving licence, the insurance company has taken a specific plea before the Tribunal. Even though notice has been served on the rider of the motorcycle, he neither filed any objections nor produced any documents. Notice has also been issued under Section 133 of the Motor Vehicles Act to the owner of the offending vehicle. He has admitted that he was not having valid driving licence. Even the insurance company has filed an application under Order 16 Rule 1, 2 and 6 of CPC for issuing summons to the owner to produce the driving licence. The application has been allowed. Inspite of service of notice, he has not produced any documents to prove that he was holding a valid and effective driving licence. Fifthly, even in the appeal filed by the insurance company before this Court, it has taken a specific contention that the rider of the offending vehicle was not having a valid and effective driving licence. Inspite of service of notice, he has not produced any documents to prove that he was holding a valid and effective driving licence. Fifthly, even in the appeal filed by the insurance company before this Court, it has taken a specific contention that the rider of the offending vehicle was not having a valid and effective driving licence. Inspite of service of notice to the insured of the offending vehicle in this appeal he has not appeared and defended his case. The Tribunal has erred in holding that the Insurance Company has failed to prove that the rider of the offending vehicle was not holding a valid and effective driving licence. Hence, she sought for allowing the appeal filed by the Insurance Company. 8. The learned counsel appearing for United India Insurance Company has submitted that it is a formal party and no liability is fastened on the said insurance company. 9. The insured of the offending vehicle is served and has remained unrepresented. 10. Heard the learned counsel for the parties. Perused the judgment and award and the original records. 11. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred due to rash and negligent riding of the offending vehicle by its rider. As per wound certificate, the claimant has sustained comminuted fracture of both bones of right leg, laceration of right leg fracture exposed and abrasion of right leg. PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 24% to right leg. Considering the disability certificate - Ex.P8 and wound certificate - Ex.P3, the Tribunal is justified in considering the whole body disability as 12%. Considering the age and avocation of the claimant, the monthly income assessed by the Tribunal is also just and reasonable and the compensation awarded by the Tribunal for 'pain and sufferings' and other heads is just and reasonable. But the Tribunal has failed to award compensation under the head of 'loss of amenities'. Considering the injuries suffered by the claimant and disability, I am of the opinion that the claimant is entitled to Rs. 15,000/- under the head of 'loss of amenities' in addition to the compensation awarded by the Tribunal. 12. But the Tribunal has failed to award compensation under the head of 'loss of amenities'. Considering the injuries suffered by the claimant and disability, I am of the opinion that the claimant is entitled to Rs. 15,000/- under the head of 'loss of amenities' in addition to the compensation awarded by the Tribunal. 12. In respect of liability is concerned, the National Insurance Company has taken a specific contention before the Tribunal that the rider of the offending vehicle was not holding a valid and effective driving licence to drive the said vehicle. The Insurance Company has filed IA No. 3 under Order 16 Rule 1, 2 and 6 of CPC, the said application being allowed, summons has been issued. Even though notice issued by the Tribunal has been served on the insured of the offending vehicle, he has not appeared before the Tribunal and filed written statement denying his case. Even notice is issued by the police under Section 133 of the Act and it is signed by the insured and he has admitted that he did not have the valid driving licence as on the date of the accident. Even in the appeal preferred by the Insurance Company it has taken a specific ground that the rider of the offending vehicle was not having valid and effective driving licence. Inspite of service of notice by this Court he has not appeared and defended his case. Therefore, it is very clear that as on the date of the accident the rider of the offending vehicle was not having a valid and effective driving licence. The Tribunal has failed to consider this aspect of the matter. Hence, National Insurance Company is not liable to pay the compensation. But in view of the judgment of the Hon'ble Apex court in the case of Pappu And Others Vs. Vinod Kumar Lamba And Another reported in AIR 2018 SC 592 and a Full Bench judgment of this Court in the case of New India Assurance Co. Ltd. Bijapur vs. Yallavva And Another reported in ILR 2020 Kar. 2239, the National insurance company has to pay the compensation amount with liberty to recover the same from the owner of the offending vehicle, the insured. 13. In the result, the appeals are allowed in part. The judgment of the Claims Tribunal is modified. The claimant is entitled to a total compensation of Rs. 4,25,590/-. 2239, the National insurance company has to pay the compensation amount with liberty to recover the same from the owner of the offending vehicle, the insured. 13. In the result, the appeals are allowed in part. The judgment of the Claims Tribunal is modified. The claimant is entitled to a total compensation of Rs. 4,25,590/-. The National Insurance Company is directed to deposit the compensation amount along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment with liberty to recover the same from the owner of the offending vehicle, the insured. The amount in deposit is ordered to be transferred to the Tribunal forthwith.