In the High Court of Karnataka at Bangalore

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Dated this the 19th day of February 2014 Before The Hon’ble Mrs. Justice B.S. INDRAKALA

Miscellaneous First Appeal No.11374/2008 c/w M.F.A.Nos.9095, 9094 & 11373/2008 (MV)

In M.F.A.No.11374/2008:

BETWEEN:

Shashidhara Devadiga, S/o Late Doomanna Shetty, Aged about 52 years, R/at Muddar House, Surathkal, Mangalore Taluk, Udupi District. ... Appellant (By Sri H.Pavana Chandra Shetty, Advocate.)

AND:

1. Sri Prabhakar Shetty, S/o Late Doomanna Shetty, Aged about 52 years, R/at Muddar House, Surathkal, Mangalore Taluk.

2. The Branch Manager, The National Insurance Co. Ltd., Branch Office: Panambur, Ananda Building, Kulai, Mangalore Taluk. ... Respondents (By Sri Vivek B.S., for Sri B.C.Seetharama Rao, Advocates for R-2 (VK not filed); R-1 notice dispensed with vide order dated 16.12.2013.)

This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated: 27.06.2008 passed in MVC No.486/2006 on the file of the

MFA No.11374/20 08 & connected matters 2

Civil Judge (Sr.Dn.) and ACJM and AMACT, Karkala, seeking enhancement of compensation.

In M.F.A.No.9095/2008:

BETWEEN:

National Insurance Co. Ltd., Panambur Branch.

Through its Regional Office, No.144, Subharam Complex, M.G.Road, Bangalore – 560 001.

Rep. by its Administrative Officer Smt.D.Karthika. ... Appellant (By Sri Vivek B.S., for Sri B.C.Seetharama Rao, Advocates.)

AND:

1. Shashidhara Devadiga, S/o Late Doomanna Shetty, Aged about 52 years, R/at Muddar House, Surathkal, Mangalore Taluk, Udupi District.

2. Sri Prabhakar Shetty, S/o Late Doomanna Shetty, Aged about 52 years, R/at Muddar House, Surathkal, Mangalore Taluk. (Owner of Tata Sumo No.KA-19/A-9859) ... Respondents (By Sri O.Shivarama Bhat, Advocate for R-2; R-1 served.)

This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated: 27.06.2008 passed in MVC No.486/2006 on the file of the Civil Judge (Sr.Dn.) and ACJM and AMACT, Karkala, awarding a compensation of Rs.1,43,500/- with interest @

MFA No.11374/20 08 & connected matters 3

6% p.a from the date of petition till realisation excluding the amount of future medical expenditure of Rs.7,000/-.

In M.F.A.No.9094/2008:

BETWEEN:

National Insurance Co. Ltd., Panambur Branch.

Through its Regional Office, No.144, Subharam Complex, M.G.Road, Bangalore – 560 001.

Rep. by its Administrative Officer Smt.D.Karthika. ... Appellant (By Sri Vivek B.S., for Sri B.C.Seetharama Rao, Advocates.)

AND:

1. Sri Raghunath Shetty, S/o Sri Channappa Shetty, Aged about 25 years, R/at Kukkudakatte, Nitte Village, Karkala Taluk, Udupi District.

2. Sri Prabhakar Shetty, S/o Late Doomanna Shetty, Aged about 52 years, R/at Muddar House, Surathkal, Mangalore Taluk. ... Respondents (By Sri O.Shivarama Bhat, Advocate for R-2; Sri H.Pavana Chandra Shetty, Advocate for R-1 (VK not filed).)

This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated: 27.06.2008 passed in MVC No.484/2006 on the file of the Civil Judge (Sr.Dn.) and ACJM and AMACT, Karkala, awarding a compensation of Rs.2,47,100/- with interest @

MFA No.11374/20 08 & connected matters 4

6% p.a from the date of petition till realisation excluding the amount of future medical expenditure of Rs.7,000/-.

In M.F.A.No.11373/2008:

BETWEEN:

Raghunath Shetty, S/o Sri Channappa Shetty, Aged about 25 years, R/at Kukkudakatte, Nitte Village, Karkala Taluk, Udupi District. ... Appellant (By Sri H.Pavana Chandra Shetty, Advocate.)

AND:

1. Sri Prabhakar Shetty, S/o Late Doomanna Shetty, Aged about 52 years, R/at Muddar House, Surathkal, Mangalore Taluk.

2. The Branch Manager, The National Insurance Co. Ltd., Branch Office: Panambur, Ananda Building, Kulai, Mangalore Taluk. ... Respondents (By Sri Vivek B.S., for Sri B.C.Seetharama Rao, Advocates for R-2; R-1 notice dispensed with vide order dated 12.10.2011.)

These appeals coming on for final disposal this day, the Court delivered the following:

MFA No.11374/20 08 & connected matters 5 J U D G M E N T

All these four appeals are preferred against the common judgment and award dated 27.06.2008 passed in MVC Nos.484/2006 and 486/2006 on the file of the

Civil Judge, Sr.Dn. & MACT, Karkala.

2. MFA Nos.9034/2008 and 11373/2008 are preferred against the judgment passed in MVC

No.484/2006 while MFA No.9095/2008 and MFA

No.11374/2008 are preferred against the judgment rendered in MVC No.486/2006.

3. Both the said MVC cases are preferred by the respective claimant seeking compensation for the injuries said to have been sustained by each of them in the motor vehicle accident which occurred on

23.04.2006 involving the tata sumo tourist vehicle bearing Regn.No.KA-19-A-9859 belonging to 1 st respondent and insured with the 2 nd respondent. The tribunal appreciating the evidence placed on record, deemed it fit to award Rs.2,47,100/- and Rs.1,43,500/-

MFA No.11374/20 08 & connected matters 6 respectively in both the cases with interest at the rate of

6% p.a. from the date of petition till realisation as against both the respondents holding them liable jointly and severally.

4. Being aggrieved by the said judgment and award, claimant in MVC No.484/2006 preferred MFA

No.11373/2008 and claimant in MVC No.486/2006 preferred MFA No.11374/2008 contending in both the appeals that the amount awarded by the tribunal is inadequate and seeks enhancement of the same while the insurer also chose to appeal against both the said common judgment in MFA Nos.9094/2008 and

9095/2008 contending that the fastening of the liability on the insurer is not proper as there is violation of the terms and conditions of the policy by the insured by permitting the vehicle to be given to the person who did not possess the valid driving licence to drive.

MFA No.11374/20 08 & connected matters 7

5. As all the four appeals are preferred against one and the same common judgment, they are taken up together for consideration.

6. The cause of accident as well as the claimant in both the cases sustaining certain injuries in the said accident are not in dispute. With regard to the liability of the insurer to indemnify the insured, it is seen that the respondent/insurer has got marked “B” register extract as well as the driving licence of the driver of the vehicle in question as Exs.R.2 and R.3 respectively. On perusal of Ex.R.2 it is seen that the same is the extract of “B” register maintained by the transport department, disclosing the nature of the vehicle involved amongst other details and it is seen that the vehicle bearing

Regn.No.KA-19-A-9859 is described as a ‘Tata Sumo tourist motor cab/taxi’.

7. On perusal of Ex.R.3 it is seen that the said licence is issued for the period from 23.12.2003 to

22.12.2023 authorising him to drive the light motor

MFA No.11374/20 08 & connected matters 8 vehicle. Thus, it is seen that as on the date of the accident viz., 23.04.2006, the driver of the vehicle did not possess any licence to drive the transport vehicle.

8. With regard to quantum of compensation awarded in MVC No.484/2006, as per Ex.P2-Wound

Certificate, the claimant sustained tenderness over pubic region and ruptured bladder besides sustaining fracture of left shaft femur and fracture of pubic ramus.

Further, it is seen that the Medical Officer, who is examined as PW-3, deposed that apart from the said injuries, the claimant sustained disability to an extent of 15% in relation to the whole body. The Tribunal by considering the evidence placed on record deemed it fit to award a sum of Rs.75,000/- towards pain and suffering and Rs.54,479/- towards medical expenses which are just and proper. The Tribunal assessed the income of the claimant at Rs.100/- per day. Further it is seen that the claimant was hospitalized for 37 days and he was aged about 26 years as on the date of the

MFA No.11374/20 08 & connected matters 9 accident. Hence, it is reasonable to award Rs.15,000/- towards incidental expenses. In the absence of evidence with regard to avocation and income of the claimant, considering the date of the accident, it is reasonable to assess the income of the claimant notionally at

Rs.4,500/- p.m.

9. With regard to loss of income on account of disability, considering the notional income of the claimant at Rs.4,500/- p.m. and accepting the disability as held by the Tribunal at 15%, the claimant is entitled to be compensated at Rs.1,37,700/- (Rs.4,500 x 15/100

= 675 x 12 x 17). Apart from the said amount, the claimant is entitled to be compensated towards loss of income during the laid up period for three months at

Rs.13,500/- (Rs.4,500 x 3), Rs.10,000/- towards loss of amenities and it is also reasonable to award

Rs.10,000/- towards future medical expenses. Thus, in all, the claimant in MVC No.484/2006 is entitled to be

MFA No.11374/20 08 & connected matters 10 compensated at Rs.3,15,679/- as against a sum of

Rs.2,47,014/- awarded by the Tribunal.

10. With regard to quantum of compensation awarded in MVC No.486/2006, as per Ex.P18, it is seen that the claimant sustained abrasion measuring 4 x 2 cm on the left scapular region, fracture of left femur shaft and fracture of left clavicle bone; he was hospitalized for 9 days and treated conservatively and the claimant was aged about 26 years as on the date of the accident. In the circumstances, it is reasonable to award Rs.30,000/- towards pain and sufferings,

Rs.20,409/- towards medical expenses, Rs.5,000/- towards incidental expenses. The Tribunal assessed the disability at 10% which is just and proper and in the circumstances, considering the notional income of the claimant at Rs.4,500/- p.m., the claimant is entitled to be compensated at Rs.91,800/- [Rs.4,500 x 10/100 =

450 x 12 x 17] towards loss of income on account of disability. It is also reasonable to award Rs.9,000/-

MFA No.11374/20 08 & connected matters 11 towards loss of income during the laid up period of 3 months at Rs.13,500/- towards loss of amenities and

Rs.7,000/- towards future medical expenses. Thus, in all, the claimant in MVC No.486/2006 is entitled to be compensated at Rs.1,76,709/- as against a sum of

Rs.1,43,409/- awarded by the Tribunal.

11. Thus, the impugned judgment and award passed in MVC Nos.484/2006 and 486/2006 are liable to be modified accordingly. Hence the following:

ORDER

All the four appeals are partly allowed by modifying the impugned judgment and award passed in

MVC Nos.484/2006 and 486/2006 by awarding a sum of Rs.3,15,679/- as against a sum of Rs.2,47,014/- awarded by the Tribunal in MVC No.484/2006 and by awarding a sum of Rs.1,76,709/- as against a sum of

Rs.1,43,409/- awarded by the Tribunal in MVC

No.486/2006 with interest at the rate of 6% p.a. from the date of petition till realization except the interest on

MFA No.11374/20 08 & connected matters 12 future medical expenses in both the cases as against the owner of the vehicle viz., Prabhakar Shetty. The appellants-Insurance Company in MFA Nos.9094/2008 and 9095/2008 is exonerated from the liability to indemnify the owner of the vehicle.

The enhanced amount in both the MVC cases with proportionate interest shall be released in favour of the respective claimant for their immediate necessities.

Draw the award accordingly.

Return the records forthwith.

The amount in deposit in MFA Nos.9094/2008 and 9095/2008 is ordered to be refunded to the appellants in their respective appeal.

Sd/- JUDGE brn/Prs*