Full Judgment
-1- IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 28TH DAY OF JUNE, 2024 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCL. FIRST APPEAL NO. 202364 OF 2017 (MV-I) C/W MISCL. FIRST APPEAL NO. 202363 OF 2017 (MV-I) IN MFA.NO.202364/2017: BETWEEN: MANJUNATH S/O ASHOK MANI AGE: 31 YEARS, OCC: OWNER OF GARAGE & BUSINESS, R/O. GULEDGUDDA Digitally signed by SHIVALEELA TQ. BADAMI & DATTATRAYA UDAGI DIST. BAGALKOT Location: HIGH COURT OF …APPELLANT KARNATAKA (BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE) AND:
1. MOTHILAL S/O ARUMUGUM AGE: 41 YEARS, OCC: BUSINESS, R/O OLD NO.15 NEW NO.35, VALAYAKARA STREET, SAIDAPET, DISTRICT VELLORE, TAMIL NADU-632012. -2-
2. THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD. 1ST FLOOR, SANGAMA BUILDING, S.S. FRONT ROAD, VIJAYAPUR-586101. …RESPONDENTS
(BY SRI MANVENDRA REDDY, ADVOCATE FOR R2; R1 SERVED) THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO, ALLOW THE APPEAL BY MODIFYING THE JUDGMENT AND AWARD DATED 28.02.2017 PASSED BY THE IV ADDITIONAL
DISTRICT JUDGE MACT-XIII, VIJAYAPURA IN MVC NO.788/2016 AND CONSEQUENTLY BE PLEASED TO ENHANCE THE COMPENSATION FROM RS.1,04,500/- TO RS.10,00,000/- WITH INTEREST @ 12% PER ANNUM FROM THE DATE OF PETITION TILL ACTUAL REALIZATION. IN MFA.NO. 202363/2017: BETWEEN: ISMAIL SAB S/O MAKTUMSAB SIKKALI AGE: 39 YEARS, OCC: DRIVER, R/O. GULEDGUDDA TQ. BADAMI & DIST. BAGALKOT. …APPELLANT (BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE) -3- AND:
1. MOTHILAL S/O ARUMUGUM AGE: 41 YEARS, OCC: BUSINESS, R/O. OLD NO.15 NEW NO.35, VALAYAKARA STREET, SAIDAPET, DIST. VELLORE, TAMIL NADU-632012.
2. THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD. 1ST FLOOR, SANGAMA BUILDING, S.S. FRONT ROAD, VIJAYAPUR. …RESPONDENTS
(BY SRI MANVENDRA REDDY, ADVOCATE FOR R2; R1 SERVED) THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO, ALLOW THE APPEAL BY MODIFYING THE JUDGMENT AND AWARD DATED 28.02.2017 PASSED BY THE IV ADDITIONAL DISTRICT JUDGE AND MACT-XIII, VIJAYAPURA IN MVC NO.787/2016 AND CONSEQUENTLY BE PLEASED TO ENHANCE THE COMPENSATION FROM RS.68,500/- TO RS.10,00,000/- WITH INTEREST @ 12% PER ANNUM FROM THE DATE OF PETITION TILL ACTUAL REALIZATION. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: -4-
JUDGMENT
Both these appeals are filed by the claimants, for enhancement of compensation as well as apportionment of liability fixed by the MACT-Vijayapura in MVC.Nos.787/2016 and 788/2016 dated 28.02.2017 on the file of MACT-Vijayapura (hereinafter referred to as ‘the Tribunal’ for short).
2. The parties are referred to as per their ranks before the Tribunal for the sake of convenience.
3. The brief facts of the case are that on
24.11.2015 at midnight 1:30 a.m. (Hours) near Hitnalli village, fuel of the Maxi-Cab bearing Reg.No.KA-53/2089 was exhausted; due to that the driver of Maxi-Cab parked the said vehicle by the side of four-way lane, near petrol pump. In the meanwhile, the driver of the lorry bearing Reg.No.TN-23/CA-2488 drove the same in a rash and negligent manner and dashed against the rear side of the Max-Cab. As a result of the same, the claimants as well as
-5- inmates of the said Maxi-Cab had sustained simple as well as grievous injuries. The claimant in MFA.No.202363/2017 (MVC.No.787/2016) was driver of the said Maxi-Cab and claimant in MFA.No.202364/2017 (MVC.No.788/2016) was the owner of the said vehicle. Both of them had sustained grievous injuries.
4. It is further case of the claimant in
MVC.No.788/2016 that he was the owner of the garage, as well as transport business and owner of the offended Maxi Cab. He was earning more than Rs.20,000/- per month. He was aged about 30 years. Due to injuries sustained in the accident, he is unable to work and lost his earning. With these reasons he prayed to award the just compensation.
5. It is further case of the claimant in
MVC.No.787/2016 that he was driver and earning Rs.10,000/- per month. He was aged about 38 years. Due to the injuries sustained in the accident he has been suffering from disability. With these reasons he prayed to award the compensation. -6-
6. The respondent No.2 denied the contents of the
claim petitions. It has further contended that the accident had taken place due to negligence of the driver of the Maxi Cab. Its liability is restricted to the terms and conditions of the insurance policy. The driver of the said lorry had no valid and effective driving license to drive the said vehicle. With these reasons, prayed to dismiss the claim petition.
7. From the rival contentions of the parties, the Tribunal had framed the necessary issues for its determination.
8. The above said two cases along with some other cases were clubbed before the Tribunal and common evidence was recorded.
9. The claimants were examined PW.1 to 15 and got marked Ex.P.1 to Ex.P.86 and closed their side. The respondents have not led oral evidence, but copy of the insurance policy was marked as Ex.R.1. -7-
10. The Tribunal after hearing both the parties and
appreciating the oral and documentary evidence, by a common judgment, awarded Rs.2,09,000/- to the claimant MVC.No.788/2016 and Rs.1,37,000/- to the claimant in MVC.No.787/2016, under the following heads:- IN MVC.No.788/2016 :-
Sl. Heads of Compensation Amount No. (in Rs.) 01. Pain and suffering 71,000/- 02. Spl. Diet, conveyance and 46,000/-
attendant charges
03. Loss of income during laid up 21,200/- period rest for 2 months
04. Loss of amenities and 35,000/- unhappiness in life
05. Medical Expenses 35,892/- Total 2,09,092/- Rounded upto 2,09,000/- IN MVC.No.787/2016 :-
Sl. Heads of Compensation Amount No. (in Rs.) 01. Pain and suffering 54,000/- 02. Spl. Diet, conveyance and 4,000/-
attendant charges
03. Loss of income during laid up 12,800/- period rest for 2 months
04. Loss of amenities and 25,000/- unhappiness in life
05. Medical Expenses 41,214/- Total 1,37,014/- Rounded upto 1,37,000/- -8-
11. Heard the learned counsel for the claimants and the respondents.
12. The learned counsel for the claimants submits
that the Tribunal has wrongly come to the conclusion that the driver of the Maxi Cab was also responsible for the accident. It is in fact the driver of the Lorry was charge- sheeted. The driver of the Maxi-Cab helplessly stopped his vehicle at the right side of the one-way road since, fuel was exhausted. The place of accident is a high-way; in spite of there was sufficient space towards left side of the Maxi cab. The driver of lorry negligently driving his vehicle and dashed against the parked Maxi Cab. Therefore, the entire negligence was of the driver of the Lorry and there was no negligence of the driver of Maxi Cab for the accident in question.
13. The learned counsel for the claimants would
further submits that in both the cases, the Tribunal has not assessed the disability suffered by the claimants and the amount of compensation awarded under the other heads are also on lower side. Therefore, prayed for enhancement of the compensation. -9-
14. The learned counsel for the respondent No.2 -
insurer had submitted that accident was caused due to the negligence of the driver of the Maxi Cab. He parked the vehicle at the right side of the high-way that to during the midnight at 01.30 (a.m.). Even there was no indicator lights and no precautions were taken to avoid such accident. However, the insurer had not filed any appeal. The Tribunal has erred in holding that accident was taken place due to composite negligence of driver of both the vehicle in the ratio of 50:50. That needs to be corrected and to be held that accident was cause by the negligence of driver of Maxicab.
15. The learned counsel for the respondent No.2
would further submit that the amount of compensation assessed by the Tribunal is just and fair and does not call for any interference by this Court. With these reasons prays to dismiss the appeal. - 10 -
16. The fact of the accident and the injuries
sustained by the claimants in the said accident, so also the manner in which the said accident had taken place are not in dispute. It is the contention of the learned counsel for the claimants that the claimants have taken all the precautionary measures when the vehicle was parked at the right side of the one way. The driver of the Maxi-cab had applied signal lights and kept the guard stones behind the said vehicle. Moreover, the driver of the said vehicle helplessly parked the said vehicle due to sudden exhaust of the fuel. Inspite of the space available towards right of the Maxi-Cab, the driver of lorry instead over taking Maxicab from left side, dashed against the Maxi-Cab and there was no explanation by the insurer or owner of the said vehicle, as to why the driver of lorry could not take his vehicle from the left side of the said Maxi Cab. Therefore, major contribution was on driver of Lorry.
- 11 -
17. The contention of learned counsel for the
claimants that suddenly, fuel of the Maxicab was exhausted, is not acceptable. The vehicle has fuel meter and driver would came to know the status of fuel. It was not the case that in between there was no petrol pump to fill the fuel. Moreover, parking of vehicle on the road during nigh is also dangerous. Therefore, it was also negligence of driver of Maxi-cab not to take care of fuel status of vehicle and filling of fuel in time. He cannot take shelter of lock of fuel to park the vehicle on the main road. Hence, driver of Maxi-cab also contributed negligence for causing accident.
18. Considering the facts and circumstances of
these cases, the contribution of driver of the Maxi-Cab as assessed by the Tribunal is on much higher side. It could be taken as accident had taken place due to composite negligence of Lorry and Maxi-Cab in the ratio of 75:25. - 12 -
19. In MFA.No.200364/2017 (MVC.No.
by the claimant. He sustained fracture of distal end of right fibula and fracture of medical malleolus of right tibia (distal end) and few simple injures. The Tribunal has assessed the medical expenses on the basis of the medical bills. It had also noted that the claimant was hospitalized for a period of 46 days.
20. The claimant has examined the doctor Sri. S.S.
Nagathan as PW.15, who issued the disability certificate. According to his evidence, the claimant has been suffering from permanent disability to an extent of 25% to 30% to the whole body. However, the Tribunal has not taken the said fact into consideration. It is true that the permanent disability assessed by the Doctor to the whole body is on higher side. However, looking to the evidence available on record, the Tribunal could have assessed the functional
disability affecting the earning capacity of claimant. - 13 - Considering the age of the claimant, nature of his work and his occupation, the permanent disability which is affecting his earning capacity is considered at 10% to the whole body.
21. The Tribunal has not assessed the income of
the claimant. There are no reliable materials on record to accept the income stated by the claimant. Therefore, his notional income to be assessed as per the chart prepared by the Karnataka Legal Services Authority, notional income of the claimant could be taken at Rs.8,000/- per month.
22. Considering the injuries and other materials available on record, the amount of compensation awarded by the Tribunal is on lower side, which needs to be enhanced. Accordingly, the following amount of compensation is awarded. - 14 -
Sl. Heads of Compensation Amount No. (in Rs.) 01. Pain and suffering 75,000/- 02. Spl. Diet, conveyance and 50,000/-
attendant charges
03. Loss of income during laid up 24,000/- period rest for 2 months
04. Loss of amenities and 50,000/- unhappiness in life
05. Medical Expenses 36,892/-
06. Loss of future earning capacity 1,63,200/- due to permanent disability (Rs.8,000/- x 12 x 17 x 10%) Total 3,99,092 Rounded upto 3,99,000/-
23. The claimant is entitled for enhancement of
compensation at Rs.1,90,000/- along with interest at the rate of 6% per annum from the date of claim petition till its realization, excluding the delayed period of 176 days in filing the appeal. - 15 -
24. In MFA.No.200363/2017 (MVC.No.
sustained three minor injuries and fracture of second and fourth metacarpal bone. The Tribunal has also calculated the medical bills on the basis of documents. It had also noted that the claimant was hospitalized for a period of 04 days.
25. According to the evidence of PW.15, the
claimant has been suffering from permanent disability to an extent of 5% to 10% to the whole body. The Tribunal did not accept the same. The said findings of the Tribunal in the impugned judgment at Para Nos.50 and 51, is sustainable. Due to the said injuries, he might have been suffering from permanent pain and loss of several amenities available to the healthy person. Considering the same, more amount of compensation is to be awarded under the head of loss of amenities.
26. Looking to the materials available on record, the amount of compensation awarded by the Tribunal under the other heads are also on lower side, which needs to be award. - 16 -
27. For the above said discussion following amount of compensation is awarded:-
Sl. Heads of Compensation Amount No. (in Rs.) 01. Pain and suffering 60,000/- 02. Spl. Diet, conveyance and 15,000/-
attendant charges
03. Loss of income during laid up 24,000/- period
04. Loss of amenities and future 50,000/- unhappiness.
05. Medical Expenses 41,214/- Total 1,90,214/- Rounded upto 1,90,200/-
28. The claimant is entitled for enhancement of
compensation at Rs.53,200/- along with interest at the rate of 6% per annum from the date of claim petition till its realization, excluding the delayed period of 173 days in filing the appeal.
29. The claimants in MVC.No.788/2016 and in
MVC.No.787/2016 are owner and driver of Maxi-cab are entitled for 75% of compensation amount from the respondent. Since, the accident had taken place due to composite negligence of driver of Maxi-cab to an extent of 25%, they are not entitled for the same. Accordingly, I pass the following; - 17 -
ORDER
i. Both the appeals are allowed in part. ii. The impugned judgment and award passed by the Member MACT-XIII and IV Additional District Judge, Vijayapura, in MVC.Nos.788/2016 and
a) The claimant in MVC.No.788/2016 is entitled for enhancement of compensation Rs.1,90,000/- with interest on the enhanced amount of compensation at the rate of 6% per annum from the date of petition till its realization, excluding the delayed period of 176 days in filing the appeal. b) The claimant in MVC.No.787/2016 is entitled for enhancement of compensation Rs.53,200/- with interest on the enhanced amount of compensation at the rate of 6% per annum from the date of petition till its realization, excluding the delayed period of 173 days in filing the appeal. - 18 -
iii. The respondent No.2 - insurance company shall deposit the said amount with interest within a period of 02 months from the date of receipt of copy of this order. iv. The order pertaining to release and deposit of compensation amount passed by the Tribunal is not disturbed. The registry is directed to send back the Trial Court records along with copy of this judgment. Sd/- JUDGE SDU/KJJ LIST NO.: 1 SL NO.: 38 CT:PK