IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JUNE, 2017 BEFORE THE HON’BLE MR. JUSTICE B. MANOHAR MFA NO.6350/2013 C/W MFA No.5506/2013(MV) IN MFA No.6350/2013 BETWEEN:
HORAKERAPPA S/O BASAPPA @ BASAVARAJAPPA, AGED ABOUT 43 YEARS, AGRICULTURIST, R/O TALYA VILLAGE, TEMPORARY R/AT C/O NARASAPPA, KARUVINAKATTE CIRCLE, NEAR RANGAIAHNABAGILU, CHITRADURGA – 577 501. … APPELLANT (BY SRI R.SHASHIDHARA., ADVOCATE) AND:
1. RAMAPPA S/O KENCHAPPA, AGE MAJOR, DRIVER OF TRACTOR-TRAILER BEARING NO.KA-31/T-7756-57, R/O SHIVAGANGA VILLAGE, HOLALKERE TALUK, CHITRADURGA DISTRICT.
PIN – 577 526.
2. C.H. NAGESHWARA RAO S/O SATHYANARAYANA, MAJOR, OWNER OF TRACTOR-TRAILER BEARING NO.KA-31/T-7756-57, R/O HONNALI VILLAGE, SIRAGUPPA TALUK, BELLARY DISTRICT – 583 121.
3. IFFCO TOKIO GENERAL INSURANCE COMPANY LTD., NO.41, 2ND FLOOR, CRISTU COMPLEX, NEAR MANDOVI MOTORS, LEVELLE ROAD, BANGALORE – 01. … RESPONDENTS (BY SRI E.I. SANMATHI, ADVOCATE FOR R3, R1- NOTICE DISPENSED WITH V/O DTD.25.04.2017; R2-SERVED UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.02.2013 PASSED IN MVC NO.706/2010 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.5506/2013(MV) BETWEEN:
THE MANAGER, IFFCO TOKIO GENERAL INSURANCE COMPANY LTD., NO.41, 2ND FLOOR, CRISTU COMPLEX, NEAR MANDOVI MOTORS, LEVELLE ROAD, BANGALORE – 01. … APPELLANT (BY SRI.SANMATHI.E.I., ADVOCATE) AND:
1. RAMAPPA S/O KENCHAPPA, AGE MAJOR, DRIVER OF TRACTOR-TRAILER BEARING NO.KA-31/T-7756-57, R/O SHIVAGANGA VILLAGE, HOLALKERE TALUK, CHITRADURGA DISTRICT, 2. C.H. NAGESHWARA RAO S/O SATHYANARAYANA, MAJOR, OWNER OF TRACTOR-TRAILER BEARING NO.KA-31/T-7756-57, R/O HONNALI VILLAGE, SIRAGUPPA TALUK, BELLARY DISTRICT – 583 121.
3. HORAKERAPPA S/O BASAPPA @ BASAVARAJAPPA, AGED ABOUT 43 YEARS, AGRICULTURIST, R/O TALYA VILLAGE, TEMPORARY R/AT C/O NARASAPPA, KARUVINAKATTE CIRCLE, NEAR RANGAIAHNABAGILU, CHITRADURGA – 577 501. … RESPONDENTS (BY R. SHASHIDHARA, ADVOCATE FOR R3, R1 AND R2-SERVED UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.02.2013 PASSED IN MVC NO.706/2010 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, CHITRADURGA, AWARDING COMPENSATION OF RS.3,66,920/- WITH INTEREST AT 6% P.A. FROM THE DATE OF THE PETITION TILL THE DATE OF REALIZATION.
THESE APPEALS ARE COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These two appeals are filed by the claimant as well as the IFFCO TOKIO General Insurance Company Limited, challenging the judgment and award dated 16.02.2013 passed in MVC No.706/2010 by the Motor Accident Claim Tribunal, Chitradurga (hereinafter referred to as ‘the Tribunal’).
2. The claimant being not satisfied with the quantum of compensation filed MFA No.6350/2013, whereas the insurance company being aggrieved by the exorbitant quantum of compensation awarded by the Tribunal has filed MFA No.5506/2013. Hence, both the appeals are clubbed together and disposed of by this common order.
3. Parties are referred as before the Tribunal.
4. The claimant filed a claim petition contending that on 24.12.2009, while he was proceeding in a motor cycle bearing registration No.KA-16-S-843 along with his friends, near Talya bus stand at about 12.30 p.m., the driver of the tractor-trailer bearing registration No.KA- 34-T-7756-57 came from opposite direction in a rash and negligent manner and dashed against the motor cycle of the claimant. Due to that the claimant fell down and sustained grievous injuries all over the body. Immediately, after the accident the claimant was shifted to Government Hospital, Chitradurga, thereafter he was shifted to S.S. Hospital, Davanagere. In the accident, he has sustained grievous injuries. Prior to the accident, he was earning Rs.10,000/- per month by doing agricultural work. In view of the injury sustained, he has become permanently disabled to do the work which he was doing prior to the accident. The accident occurred due to the rash and negligent driving of the offending Tractor and Trailer which was insured with the 3rd respondent-insurance company. Hence, all the respondents are liable to compensate the claimant to the tune of Rs.16,00,000/-.
5. In response to notice issued by the Tribunal, though respondent Nos.1 and 2 were served with notice, they remained unrepresented. The respondent No.3/Insurance Company in their written statement denied the entire averments made in the claim petition and also contended that the claim petition filed by the claimant is bad for non-joinder of necessary parties. The insurer of the motorcycle was not made party in the proceedings. Further, both the rider of the motorcycle as well as the driver of tractor-trailer were not holding valid and effective ‘Driving License’ as on the date of accident. The driver of the Tractor and Trailer was having driving license to drive only tractor and he did not possess valid driving license to drive both Tractor and Trailer as on date of accident. Hence, the Insurance Company is not liable to compensate the claimant and sought for dismissal of the claim petition.
6. On the basis of pleadings of the parties, the Tribunal framed necessary issues.
7. After trial, the Tribunal held that due to actionable negligence on the part of the driver of the Tractor and Trailer the accident had occurred and the claimant had sustained injuries. Hence, he is entitled for compensation. With regard to the quantum of compensation is concerned, in the accident, the claimant has sustained comminuted fracture of proximal phalanx of greater toe of right side with fracture 4th, 5th and 6th rib on left side. He took treatment as inpatient from 24.12.2009 to 11.02.2010. The doctor assessed the disability to an extent of 18% to the whole body. The Tribunal reckoning the income of claimant as Rs.8,000/- per month, considering the disability to an extent of 18% to the whole body and applying multiplier 14 as he was aged about 45 years, awarded a sum of Rs.2,41,920/- towards future loss of income, Rs.40,000/- towards Pain and Sufferings, Rs.75,000/- towards medical expenses, Rs.10,000/- towards incidental and miscellaneous expenses. In all, the Tribunal has awarded a sum of Rs.3,66,920/- with 6% interest p.a. Since, the driver of the offending Tractor and Trailer was holding driving license to drive the tractor, he is entitled to drive the trailer also. Hence fastened the liability on the Insurance Company to compensation the claimant. Being not satisfied with the quantum of compensation awarded by the Tribunal, the claimant has filed MFA No.6350/2013 whereas the insurance company being aggrieved by the exorbitant quantum of compensation and fastening liability on them to pay the compensation filed MFA No.5506/2013.
8. Sri.E.I.Sanmathi, learned counsel appearing for the Insurance Company contended that the judgment and award passed by the Tribunal is contrary to law. As on the date of accident, driver of the offending trailer-tractor was having ‘Driving License’ to drive only the tractor. The Tractor and Trailer put together becomes goods vehicle. Hence, he is not eligible to drive both the tractor-trailer and the compensation claimed is exorbitant. Hence sought for setting aside the impugned judgment and award.
9. On the other hand, Sri.R.Shashidhar, learned counsel appearing for the claimant contended that the compensation awarded by the Tribunal is too meager. In the accident, the claimant has sustained amputation of greater toe and fracture of 4th, 5th, and 6th rib of left side. Though the doctor has assessed the disability to an extent of 18% to the whole body, the Tribunal has not awarded any compensation towards loss of amenities of life. Further, the Tribunal has also not awarded any compensation towards future medical expenses. Hence sought for enhancement of compensation.
10. I have carefully considered the arguments addressed by the learned counsel appearing for the parties. Perused the judgment and award, oral and documentary evidence adduced by the parties.
11. The issue raised in these two appeals is with regard to quantum of compensation and also validity of the driving license held by the driver of the offending Tractor and Trailer.
12. The occurrence of the accident and the injuries and fracture sustained by the claimant are not disputed. The learned counsel for the insurance company contended that driver of the offending Tractor and Trailer was holding driving license to drive only the tractor and not the trailer. He contended that the Tractor and Trailer put together becomes goods vehicle and the driver is not eligible to drive both the Tractor and Trailer. The issue raised by the appellant is no more res-integra.
13. This Court while disposing of MFA No.7834/2012 C/W MFA No.7421/2012 on 20-06-2017 relied upon paragraph 10 of the judgment of the Hon’ble Supreme Court reported in (2001) 8 SCC 56 in the case of NAGASHETTY v/s UNITED INDIA INSURANCE CO.
LTD. AND OTHERS which reads as under:
“10. It is an admitted fact that the driver had a valid and effective licence to drive a tractor. Undoubtedly under Section 10 a licence is granted to drive specific categories of motor vehicles. The question is whether merely because a trailer was attached to the tractor and the tractor was used for carrying goods, the licence to drive a tractor becomes ineffective. If the argument of Mr.S.C.Sharda is to be accepted then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle by itself does not make that tractor or motor vehicle a transport vehicle. The tractor or motor vehicle remains a tractor or motor vehicle. If a person has a valid driving licence to drive a tractor or a motor vehicle he continues to have a valid licence to drive that tractor or motor vehicle even if a trailer is attached to it and some goods are carried in it. In other words a person having a valid driving licence to drive a particular category of vehicle does not become disabled to drive that vehicle merely because a trailer is added to that vehicle.”
In view of the said judgment, there is no substance in the contention of the learned counsel for the insurance company with regard to holding of valid driving license is concerned.
14. With regard to the quantum of compensation is concerned, the Doctor who treated the claimant has assessed disability to an extent of 20% in respect of the right lower limb i.e., amputation of greater toe and 10% of disability insofar as mal-union of fractured 4th, 5th and 6th ribs. The Tribunal considering the disability to an extent of 18% to the whole body, awarded the compensation which is contrary to law. The amputation of greater toe will not come in the way of his day to day activities. However, the claimant will be put to some inconvenience in performing the duties. The Tribunal taking income of the claimant at Rs.8,000/- per month, as the accident occurred in the year 2009 awarded the compensation. However, the disability of 18% to the whole body considered by the Tribunal is higher side. Hence, taking income of the claimant as Rs.8,000/- per month, disability to an extent of 15% to whole body, as he was aged 45 years, applying multiplier 14, the claimant is entitled for compensation of Rs.2,01,600/- towards future loss of income, as against Rs.2,41,920/-
awarded by the Tribunal. Though the Tribunal has not awarded any compensation under the head loss of amenities of life, since the income is taken as Rs.8,000/- per month that will take care of loss of amenities of life and compensation awarded in all other head is in accordance with law. The claimant has not made out any ground for enhancement of compensation.
15. Accordingly, I pass the following:
ORDER MFA No.6350/2013 filed by the claimant is dismissed.
MFA No.5506/2013 filed by the Insurance Company is allowed in part. Judgment and award dated 16.02.2013 made in MVC No.706/2010 passed by the Addl. District and Sessions Judge and Addl. M.A.C.T Chitradurga is modified and the claimant is entitled for compensation of Rs.3,26,600/- as against Rs.3,66,920/- awarded by the Tribunal with 6% interest p.a.
The amount in deposit in MFA No.5506/203 is directed to be transferred to M.A.C.T., Chitradurga for disbursement.
Sd/- JUDGE mpk/-*/VBS