MAHADEV @ MAHADEVAPPA S/O HIRANNA vs SHIVANAND AND ANR
- Court
- Karnataka High Court
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HC-KAR
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MFA No. 200296 of 2020
CNR: KAHC030022012020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
TH
DATED THIS THE 29 DAY OF SEPTEMBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE BRUNGESH M
MISCL. FIRST APPEAL NO.200296 OF 2020 (MV-I)
BETWEEN:
MAHADEV @ MAHADEVAPPA S/O HIRANNA,
AGE: 42 YEARS, OCC: LABOUR, NOW NIL,
R/O VILLAGE EVANI,
TQ. CHITTAPUR, NOW R/AT H.NO.3-149,
VILLAGE KUSNOOR,
TQ. AND DIST. KALABURAGI-585212.
…APPELLANT
(BY SRI KRUPA SAGAR PATIL, ADVOCATE)
AND:
1. SHIVANAND S/O PEERAPPA,
AGE: MAJOR, OCC: BUSINESS,
OWNER OF FORCE TRAX TOOFAN
CRUISER JEEP BEARING NO. KA.47/3576,
R/O: VILLAGE MUGTA,
TQ: CHITTAPUR, DIST: KALABURAGI-585212.
2. SHRIRAM GENERAL INSURANCE CO. LTD.,
E-8, EPIP R II CO. INDUSTRIAL AREA, SITAPUR,
JAIPUR-302022, RAJASTHAN,
THROUGH ITS AUTHORIZED REPRESENTATIVE.
…RESPONDENTS
(BY SRI. SUBHASH MALLAPUR, ADVOCATE FOR R2;
V/O DATED 09.02.2021, NOTICE TO R1 IS DISPENSED WITH)
Digitally signed
by
BASALINGAPPA
S D
Location: HIGH
COURT OF
KARNATAKA
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THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO MODIFY THE JUDGMENT AND
AWARD PASSED BY PRL. SENIOR CIVIL JUDGE AND MACT,
KALABURAGI IN M.V.C. NO.897/2018, DATED 03.12.2019, BY
ENHANCING THE COMPENSATION AS PRAYED FOR, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE BRUNGESH M
ORAL JUDGMENT
This appeal is filed by the appellant namely Mahadev
@ Mahadevappa S/o. Hiranna, questioning the legality,
correctness and propriety of the judgment and award
dated 03.12.2019, passed by the Principal Senior Civil
Judge and MACT, Kalaburagi (for brevity ‘Tribunal’), in
MVC No.897/2018.
2. The present appellant was the petitioner,
whereas, the present respondents Nos.1 and 2 were
respondents Nos.1 and 2 respectively before the Tribunal
in MVC No.897/2018. For the sake of convenience and
clarity and to avoid confusion, the parties are referred to
as per their rankings assigned to them before the Tribunal.
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3. The petitioner - Mahadev filed the said MVC
No.897/2018 seeking compensation for the injuries
sustained by him in the road traffic accident that occurred
on 24.08.2017. It is the case of the petitioner that on
24.08.2017, at about 10:00 a.m., he, along with his
relatives, was proceeding on foot towards his agricultural
lands. It is his further case that when he reached near the
bridge after Ivani Cross on Kalaburagi - Sedam Road, at
that point of time, the driver of the truck bearing
registration No.KA-47-3576 (hereinafter referred to as the
“offending vehicle” for the sake of brevity), drove the said
vehicle at high speed and in a rash and negligent manner
and dashed against the petitioner from behind.
4. The petitioner further contends that due to the
accident, he fell down on the ground and sustained
grievous injuries including fracture of the right humerus
bone and fracture of the neck of the fifth metacarpal bone
of the left hand besides other injuries to his right hand and
other parts of the body. The petitioner also contended
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before the Tribunal that immediately after the accident, he
was taken to United Hospital, Kalaburagi for treatment and
that he had spent more than Rs.2,00,000/- towards his
medical treatment.
5. It is the specific case of the petitioner that prior
to the accident, he was hale and healthy and was working
as an agricultural labourer, earning Rs.20,000/- per
month. It is further stated by the petitioner that due to
the severity of the injuries sustained by him, he is unable
to perform agricultural work as he was doing prior to the
accident. Besides, the petitioner contends that the
accident occurred solely due to the negligent act of the
driver of the offending vehicle. With the aforesaid
allegations, the petitioner - Mahadev filed the said MVC
No.897/2018 before the Tribunal seeking suitable
compensation.
6. Upon presentation of the petition, the same was
registered and notices were issued by the Tribunal to the
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respondents. Respondent No.1 – Shivanand S/o.
Peerappa did not appear before the Tribunal despite
service of notice. Consequently, he was placed ex-parte .
However, respondent No.2 - Shriram General Insurance
Company entered appearance before the Tribunal and filed
its written statement stoutly resisting the claim petition.
7. After completion of the pleadings, the learned
Tribunal framed five issues for its consideration. The
Tribunal afforded reasonable opportunities to the parties to
adduce their evidence. The petitioner - Mahadev examined
himself as PW1. The petitioner also examined Dr. Raju
Kulkarni as PW2. The petitioner got marked eleven
documents as Exs.P1 to P11. On the other hand, the
Insurance Company examined one of its officials as RW1
and got marked the insurance policy as Ex.R1.
8. After closure of the evidence, the learned
Tribunal afforded an opportunity to the parties to advance
their arguments. Upon hearing the matter, the Tribunal
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passed the judgment and award dated 03.12.2019,
awarding compensation of Rs.2,82,000/- together with
interest at the rate of 6% per annum from the date of the
petition till its realization. Aggrieved by the said judgment
and award, the appellant/petitioner has preferred the
present appeal.
9. Heard the learned counsel for the parties and
perused the Trial Court record.
10. The learned counsel for the appellant/petitioner
Sri Krupa Sagar Patil contends that the learned Tribunal
has erroneously assessed the disability of the petitioner
only at 12%, which has ultimately resulted in awarding
inadequate compensation. Hence, the same warrants
interference by this Court. It is also contended that the
petitioner was earning Rs.20,000/- per month by doing
agricultural coolie work and that cogent material had also
been produced before the learned Tribunal. However, the
Tribunal has not taken the said material into consideration
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and has assessed the income of the petitioner at
Rs.8,000/- per month, which has also resulted in
inadequate compensation. Therefore, the same warrants
interference by this Court.
11. The learned counsel further submits that the
petitioner has produced cogent material to establish that
he requires another surgery for removal of the implants
and that the probable cost of such treatment would be
around Rs.40,000/-. According to the learned counsel, the
Tribunal has ignored the said material and has not
awarded any compensation under this head. Hence,
interference by this Court is necessary. The learned
counsel for the petitioner also contends that the petitioner
underwent inpatient treatment for a period of one month
and was advised bed rest for more than three months,
but, the said evidence has not been considered by the
Tribunal. Hence, the judgment and award warrant
interference by this Court.
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12. The learned counsel for the petitioner further
contends that the Tribunal ought to have awarded
Rs.50,000/- under the head of loss of amenities, but, the
said claim of the petitioner was not considered by the
Tribunal. Hence, the judgment and award warrant
interference by this Court.
13. Per contra, learned counsel for the Insurance
Company Sri Subhash Mallapur would contend that the
Tribunal has meticulously considered the evidence of the
doctor and the other medical documents and has given
due importance to each and every document. After
evaluating the entire material on record, the Tribunal has
ultimately assessed the disability of the petitioner at 12%
to the whole body. Therefore, the well-reasoned judgment
passed by the Tribunal does not call for any interference
by this Court.
14. Learned counsel for the Insurance Company has
also specifically contended that the nature of the injuries
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sustained by the petitioner does not justify an award of
Rs.50,000/- towards loss of amenities, as claimed by the
petitioner. According to the learned counsel for the
Insurance Company, the compensation awarded towards
loss of amenities is in conformity with the well-settled
norms and commensurate with the severity of the injuries
sustained by the petitioner. Further, the learned counsel
for the Insurance Company contends that for the foregoing
reasons, the judgment and award passed by the Tribunal
do not warrant any interference by this Court.
15. Learned counsel for the Insurance Company
also submitted that the compensation awarded by the
Tribunal under non-pecuniary heads, such as, pain and
suffering, transportation, loss of amenities and laid-up
period, is in accordance with the norms fixed by the higher
Courts and consistently followed by the Tribunals and the
High Courts as well as by the Hon'ble Apex Court. By
contending so, learned counsel prayed for dismissal of the
appeal.
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16. As the petitioner is seriously disputing the
medical evidence, whereas, the Insurance Company is
supporting the same, it is incumbent upon this Court to
examine the medical evidence, before proceeding to
consider the other evidence. In the considered opinion of
this Court, if the medical evidence is analyzed at this
stage, the Court would be in a better position to determine
whether the compensation awarded by the Tribunal under
the non-pecuniary heads is proper or otherwise. Therefore,
this Court proceeds to examine the medical evidence
available on record.
17. The petitioner has produced the disability
assessment report dated 11.10.2018 issued by Harsha
Fracture Clinic, which is marked as Ex.P8. Ex.P7 is the
discharge summary issued by United Hospital, Kalaburagi.
Ex.P6 is the wound certificate issued by United Hospital. A
perusal of Ex.P6-wound certificate, Ex.P7-discharge
summary and Ex.P8-disability assessment report give an
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impression that the petitioner has sustained serious
injuries.
18. However, as stated above, the learned counsel
for the Insurance Company has seriously disputed
genuineness and evidentiary value of these documents.
The record further discloses that Ex.P9 is the X-ray/
radiological report pertaining to the petitioner - Mahadev
issued by Crystal Diagnostic and Scanning Centre,
Kalaburagi.
19. In the considered opinion of this Court, it would
be appropriate to first examine the radiological report and
thereafter analyze the other medical evidence available on
record. Accordingly, this Court has meticulously perused
the said X-ray report marked as Ex.P9. In Ex.P9, it is
mentioned as follows:
th
“Minimal malunited fracture neck of 5
metacarpal of left hand.
No lytic or sclerotic lesion.
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Soft tissues reveal no obvious
abnormality.”
Further, under the caption “Impression” in Ex.P9, it
is mentioned as follows:
“Minimal malunited fracture shaft of right
humerus with implant in situ.”
20. Thus, it appears that the X-ray/radiological
report does support the case of the petitioner.
Nevertheless, this Court is conscious of the fact that
unless the medical meaning of the terminology used in
the X-ray report is properly understood and the residual
consequences of the said injuries on the human body and
day-to-day activities of the injured are analyzed, mere
reproduction of the contents of the X-ray/radiological
report would not take the matter any further.
21. The meaning of the term “ fracture of right
humerus ” is as follows. The humerus is the long bone of
the upper arm extending between the shoulder and the
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elbow. Therefore, fracture of the right humerus or fracture
of the shaft of the right humerus means that the bone of
the right upper arm has been fractured.
22. Further, the other medical records show that
the petitioner - Mahadev underwent an ORIF procedure.
ORIF means Open Reduction and Internal Fixation with a
plate and screws. In other words, the doctor surgically
opened the affected area, aligned the fractured bone and
fixed it with a metal plate and screws. Further, the record
also shows that the other injury namely the fracture of the
th
5 metacarpal of the left hand of the petitioner was
treated by the procedure of CRIF with K-wire . The
meaning of “CR” means Closed Reduction. In other words,
without surgically opening the affected area, the fractured
bone is aligned or corrected and this procedure is known
as closed reduction. “K-wire” is a thin metal wire inserted
to hold and stabilize the fractured bone.
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th
23. Further, the 5 metacarpal bone is the bone in
the palm situated just below the little finger. In the
considered opinion of this Court, since the petitioner has
th
sustained a fracture of the 5 metacarpal namely the bone
situated below the little finger, such injury by itself would
not substantially affect the petitioner’s ability to work and
earn his livelihood. At the same time, this Court cannot
lose sight of the fact that while performing agricultural
operations or other strenuous work, the petitioner may
experience some pain or discomfort on account of the
th
fracture of the 5 metacarpal. Such a possibility cannot
be ruled out altogether. However, the mere fracture of
th
the 5 metacarpal, in the facts and circumstances of the
present case, would not by itself establish any functional
disability. Nevertheless, reasonable compensation is
required to be awarded under the heads ‘pain and
suffering’.
24. Having considered the aforesaid aspects, this
Court cannot view the fracture of the humerus sustained
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by the petitioner in a casual or light manner. Again, it is
necessary to note that the petitioner has sustained a
fracture of the shaft of the right humerus with implants in
situ. Besides, it is important to note that the said fracture
is malunited. Therefore, this Court proceeds to discuss
certain other important aspects which require
consideration at this stage.
25. Having understood the meaning of the term
“ right humerus bone ” and the nature of the fracture
sustained by the petitioner, this Court now proceeds to
examine the possible ill effects and residual
consequences of such fracture. It is a matter of common
experience that most persons predominantly use their
right hand for performing their day-to-day activities.
Therefore, when a person sustains a fracture of the right
humerus, the functioning of the dominant hand is likely to
be affected. Consequently, the loss of functional ability to
work may be somewhat greater. Such an effect cannot be
ignored as being insignificant.
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26. Another ill effect associated with such injury is
severe pain and swelling followed by persistent pain and
discomfort in the arm. A further consequence of fracture
of the humerus may be restriction of movements of the
shoulder and elbow joints. Consequently, a person who
has sustained such an injury may experience difficulty in
lifting heavy objects, pushing or pulling objects or freely
rotating and using the right hand as he was able to do
prior to the accident. He may also experience difficulty in
performing routine activities such as eating, dressing and
bathing.
27. Another important residual consequence
associated with fracture of the humerus is the possibility of
injury to the radial nerve . It is necessary to note that
the radial nerve passes in close proximity to the humerus.
In certain cases of humerus fracture, the radial nerve may
be injured, compressed or stretched resulting in difficulty
in extending the wrist and fingers. In severe cases, this
may result in a condition known as “ wrist drop ”.
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28. At this stage, it is also necessary to understand
the meaning and function of the radial nerve . The radial
nerve is one of the principal nerves supplying the upper
limb. It arises from the brachial plexus passes along the
posterior aspect of the humerus and extends towards the
forearm and hand. ‘Brachial Plexus’ means it is the
network of nerves near the neck and shoulder from which
the major nerves of upper limb arise. When the humerus
is fractured, the radial nerve may, depending upon the
nature and location of the fracture, be injured,
compressed, stretched or in rare cases, severed. The
radial nerve controls the muscles responsible for extension
of the wrist and fingers. Therefore, injury to the radial
nerve may result in an inability to extend the wrist and
fingers, a condition commonly referred to as “wrist drop”.
29. Further, the radiological report, namely Ex.P9
also indicates that both the fractures sustained by the
petitioner are malunited . Malunion means that a
fractured bone has united in an abnormal or improper
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position. Such malunion may, depending upon its extent
and location, result in altered mechanics of the limb,
weakness and reduced functional use of the affected hand.
Therefore, in the considered opinion of this Court, the
injuries sustained by the petitioner cannot be viewed as
insignificant. Due consideration has to be given to the
nature of the fractures, the surgical treatment undergone,
the malunion and the possible residual consequences of
the injuries while determining the just compensation
payable to the petitioner.
30. Against the information available in the
radiological report, this Court has meticulously perused
the evidence of Dr. Raju Kulkarni. In the considered
opinion of this Court, the evidence given by the doctor is
in tune with and conforms to the residual consequences
that may be suffered by a person who has sustained a
fracture of the humerus. Therefore, at the first blush,
there appears to be no reason to doubt the evidence given
by the doctor. Nevertheless, this Court has carefully
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perused the cross-examination of PW2/doctor. During the
cross-examination, the learned counsel for the insurance
company put routine suggestions to PW2, which were
emphatically denied by him. Ultimately, nothing has been
elicited from the mouth of PW2 to draw an inference that
he has given false evidence before the Tribunal.
31. In the considered opinion of this Court, if the
petitioner had not produced the radiological report at
Ex.P9 and had only produced the disability certificate
issued by the doctor, the matter might have stood on a
different footing. In such circumstances, this Court could
have examined the correctness or otherwise of the
evidence given by PW2 with greater caution. However,
even if the disability certificate issued by the doctor and
the wound certificate are kept aside, there is nothing
to disbelieve the information contained in the
X-ray/radiological report at Ex.P9.
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32. The record shows that during the cross-
examination of PW1 - Mahadev as well as PW2/doctor,
suggestions were made that the radiological report at
Ex.P9 had been concocted or created by the petitioner.
However, nothing has been elicited in support of such
suggestions. Therefore, there is no reason to disbelieve
the contents of Ex.P29.
33. Since, as stated above, the evidence given by
the doctor is in conformity with the injuries mentioned in
Ex.P9, there is no reason to doubt the evidence of the
doctor. In addition, in the preceding paragraphs of this
judgment, this Court has discussed the ill effects and
residual consequences of malunion of the humerus and
has concluded that such an injury cannot be viewed
lightly, rather, due importance has to be given to the
same. Therefore, this Court does not find any infirmity in
assessment made by the doctor. It is also necessary to
note that the doctor has assessed the disability of the
petitioner at 36.66%.
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34. The record shows that the learned Tribunal at
paragraph No.19, page No.13 of the impugned judgment,
has observed that one-third of 36% comes to 12% and
accordingly, assessed the whole-body disability of the
petitioner at 12%.
35. Further, it is a well accepted principle that
ordinarily one third of the disability of a particular limb is
taken into consideration as the whole body disability. In
other words, the Courts have consistently followed the
guidelines and norms formulated in the Gazette
Notification issued by the Ministry of Social Justice and
Empowerment, Government of India, bearing Registration
No. DL-33004/99, [Extraordinary, Part II, Section 1, dated
13.06.2001], published and printed by the National
Institute for Orthopedically Handicapped, B.T. Road, Ban
Hooghly, Kolkata .
36. A perusal of the said guidelines makes it clear
that anatomically, the upper limb of a human being has
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three principal joints namely the shoulder joint, elbow
joint and wrist joint. In the same manner, the lower limb
has three principal joints namely the hip joint, knee joint
and ankle-foot joint.
37. Further, the said guidelines prescribe that while
evaluating the percentage of disability of the upper limb,
the disability of the affected joint is first required to be
ascertained. The result is thereafter multiplied by 100 and
the product so obtained is divided by 3. Such division
becomes necessary because the upper and lower limbs
have three principal joints. Therefore, the guidelines
contemplate that one-third of the disability attributable to
a particular joint is to be taken into consideration while
assessing the disability of the entire limb.
38. It is necessary to note that in the introductory
part of the said guidelines, it is specifically mentioned that
while assessing locomotor or orthopedic disability, the
human body is divided into three parts namely the upper
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limb, lower limb and trunk. It is also a matter of record
that the said guidelines do not either specifically or
impliedly prescribe any particular formula or method for
calculating or computing whole-body disability. In the
considered opinion of this Court, when the said guidelines
prescribe that one-third of the disability relating to a
particular joint is to be taken into consideration while
assessing the disability of the corresponding limb, the
same principle can reasonably be applied for the purpose
of assessing whole-body disability, particularly when the
human body is itself divided into the upper limb, lower
limb and trunk while assessing locomotor disability.
Therefore, keeping the said principle as a yardstick, the
Tribunals have consistently taken one-third of the limb
disability for the purpose of assessing whole-body
disability that is precisely what the Tribunal has done in
the present case.
39. In the considered opinion of this Court, the
approach adopted by the Tribunal is correct from the
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medical standpoint . In other words, from the medical
perspective, one-third of the limb disability may ordinarily
be taken into consideration while assessing whole-body
disability. However, in the case of Raj Kumar vs. Ajay
1
Kumar & Another , the Hon'ble Apex Court has
specifically held that functional disability is distinct from
the medical percentage of disability. It is therefore, the
duty of the Tribunal and the Court to assess the functional
disability of an injured person having regard to the nature,
severity and gravity of the injuries sustained by him, the
residual consequences thereof and importantly, the nature
of the avocation pursued by the injured.
40. Therefore, the Courts and the Tribunals cannot
mechanically conclude that one-third of the limb disability
must, in every case, be treated as the whole-body
disability merely because such a method has been
generally followed. Such an approach would not be
1
2011 (1) SC 343
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appropriate. The functional impact of the injury upon the
earning capacity and day-to-day activities of the injured
has to be considered having regard to the facts and
circumstances of each case.
41. Having held so, this Court has once again
meticulously perused the entire material available on
record. The petitioner- Mahadev claims that he was
working as an agricultural labourer at the relevant point of
time. It is common knowledge that for carrying out
agricultural labour and agricultural operations, healthy and
functional limbs are essential. Agricultural work requires
frequent squatting and sitting and thereafter, immediately
standing up to attend to other agricultural activities.
Further, while sowing, ploughing and performing other
agricultural operations, the dominant hand namely the
right hand of the petitioner plays an important role.
42. The residual consequences of the injury also
assume significance. The material on record indicates that
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the petitioner is unable to raise his right hand above
shoulder level and is unable to lift heavy objects and has
also suffered a reduction in grip strength. Having regard
to the nature of the petitioner's avocation, the functional
limitations suffered by him and the residual consequences
of the injury, this Court is of the opinion that if the whole-
body disability of the petitioner is assessed at 20%, the
same would meet the ends of justice.
43. Therefore, notwithstanding the fact that the
doctor has assessed the limb disability of the petitioner at
36.66% and the Tribunal has assessed his whole-body
disability at 12%, having regard to the overall material on
record and the functional impact of the injury upon the
petitioner, this Court is of the considered opinion that the
whole-body disability of the petitioner ought to be
assessed at 20%. Accordingly, the whole-body disability
of the petitioner is assessed at 20%.
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44. The record shows that the learned Tribunal has
assessed the income of the petitioner at Rs.8,000 per
month. Except for his oral assertion, the petitioner has
not produced any material to establish his actual income.
Therefore, the Tribunal ought to have placed reliance on
the notional income chart published by the Karnataka
State Legal Services Authority. It is necessary to note
that as per the said chart, the notional income prescribed
for the year 2017 was Rs.10,250/- per month. Therefore,
the monthly income of the petitioner ought to have been
assessed at Rs.10,250/-.
45. The impugned judgment further shows that the
Tribunal has not added any amount to the established
income of the petitioner under the head of future
prospects. The learned counsel for the appellant submits
that an appropriate amount ought to be added towards
future prospects. On the other hand, the learned counsel
for the insurance company contends that the petitioner
has not sustained 30% whole-body disability. According to
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him, the petitioner has sustained 36% limb disability and
as per the consistent practice followed by the Courts, the
question of adding an amount towards future prospects
would arise only when the injured has sustained at least
30% whole-body disability. On these grounds, the learned
counsel for the insurance company submits that the
question of adding any amount towards future prospects
to the income of the petitioner does not arise.
46. It is significant to note that, in Pappu Deo
2
Yadav vs. Naresh Kumar and also in Sidram v. United
3
India Insurance Company Limited , the Hon'ble Apex
Court has specifically recognised that even in injury cases,
an appropriate amount permissible under law can be
added to the income of the injured towards future
prospects. It is also significant that the Hon'ble Apex
Court has not prescribed any threshold such as 30% or
2
(2020) 14 SCC 516
3
2023 (3) SCC 439
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20% whole-body disability as a condition precedent for
awarding future prospects in an injury case.
47. In the considered opinion of this Court, in the
absence of any such threshold prescribed by the Hon'ble
Apex Court, this Court cannot impose an additional
condition that an injured person would be entitled to
future prospects only if he has sustained 30% whole-body
disability. Therefore, this Court is of the opinion that the
petitioner is entitled to an appropriate addition towards
future prospects. As regards the extent of such addition,
the principles laid down by the Hon'ble Supreme Court
provide guidance for determining the appropriate
percentage having regard to the age and employment
status of the injured. In the present case, the petitioner
has described himself as aged about 40 years at the time
of the accident. Therefore, an addition of 25% to the
assessed income towards future prospects is appropriate.
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48. As stated above, the notional income prescribed
for the year 2017 was Rs.10,250/- per month. 25% of the
same works out to Rs.2,562.50/-, which is rounded off to
Rs.2,563/-. Accordingly, upon adding Rs.2,563/- towards
future prospects to the monthly income of Rs.10,250/-,
the monthly income of the petitioner works out to
Rs.12,813/-. The proper multiplier applicable is 15. As
mentioned above, the disability of the petitioner is
assessed at 20%. Thus, the petitioner is entitled for
compensation of Rs.4,61,268/- (Rs.12,813x12x15x20%)
towards loss of income due to permanent disability.
49. The record shows that the Tribunal has awarded
a sum of Rs.16,000/- towards loss of income during the
laid-up period of two months. Thus, it is clear that the
Tribunal has assessed the income of the petitioner -
Mahadev at Rs.8,000/- per month for the said period.
However, having regard to the nature of the injuries
sustained by the petitioner and the income which ought to
have been taken into consideration, this Court is of the
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considered view that if a sum of Rs.25,000/- is awarded
towards loss of income during the laid-up period as
against Rs.16,000/- awarded by the Tribunal, the ends of
justice would be met.
50. The Tribunal has awarded certain amount
towards medical expenses. The record discloses that
during the pendency of this appeal, the petitioner -
Mahadev has not produced any additional material to
establish that he incurred medical expenses in excess of
the amount awarded by the Tribunal. Therefore, the
amount awarded under the head of medical expenses is
maintained.
51. The record further shows that the Tribunal has
awarded a sum of Rs.20,000/- towards diet and attendant
charges. In the considered opinion of this Court, having
regard to the nature of the injuries sustained by the
petitioner - Mahadev, special diet and nutritious food
would have been necessary. Therefore, if the amount
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awarded under this head is enhanced from Rs.20,000/- to
Rs.30,000/- , the ends of justice would be met.
52. The record also shows that the Tribunal has
awarded a sum of Rs.10,000/- towards loss of amenities.
Having regard to the nature of the injuries sustained by
the petitioner, this Court is of the view that a sum of
Rs.30,000/- would be just and reasonable towards loss
of amenities.
53. Thus, the appellant/ petitioner is entitled for
enhanced compensation as follows:
Compensation
Sl. Heads awarded by
the Tribunal
Compensation
awarded by this
Court
1. Towards pain and suffering Rs.45,000/- Rs.45,000/-
2. Towards medical Expenses Rs.18,368/-
Rs.18,368/-
3. Towards Diet and attendant Rs.20,000/- Rs.30,000/-
charges
4. Towards loss of income Rs.16,000/-
Rs.25,000/-
during laid-up period
5. Towards loss of feature Rs.1,72,800/-
Rs.4,61,268
earning capacity
6. Towards loss of Amenities Rs.10,000/- Rs.30,000/-
Total Rs.2,82,168/-
Total rounded off Rs.2,82,000/-
Rs.6,09,636
Difference amount
Rs.3,27,636/-
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54. The record shows that the Tribunal has fastened
the liability upon respondent No.1 - Shivanand, who is the
owner of the offending vehicle. At paragraph No.24 of the
impugned judgment, the Tribunal has observed that
despite issuance of notice by the insurance company, the
owner of the offending vehicle - Shivanand did not
produce any material including the driving licence of the
person, who was riding the offending vehicle at the time of
the accident or the permit relating to the vehicle in
question.
55. The Tribunal has further observed that the said
owner - Shivanand did not enter appearance before the
Tribunal despite service of notice/summons. Therefore,
having regard to these facts and circumstances, the
Tribunal directed respondent No.1 - Shivanand owner of
the offending vehicle to satisfy the award.
56. It is therefore, necessary for this Court to
examine the said aspect. The petitioner himself has
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produced the First Information Report at Ex.P1 and the
Final Report/charge-sheet at Ex.P3. A perusal of Exs.P1
and P3 disclose that upon conclusion of the investigation,
the jurisdictional police filed the charge-sheet alleging that
one Suryakant S/o. Lakshman Kulkuri had committed the
offences punishable under Sections 279 and 338 of the
Indian Penal Code read with Section 187 of the Motor
Vehicles Act.
57. It is necessary to note that neither in the First
Information Report nor in the Final Report/charge-sheet, it
is alleged that the driver of the offending vehicle did not
possess a valid and effective driving licence as on the date
of the accident. Likewise, neither the First Information
Report nor the Final Report/charge-sheet contains any
allegation that the vehicle shown as the offending vehicle
did not have a valid permit to ply on the road where the
accident occurred.
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58. As noticed above, the police have alleged that
the driver of the said vehicle had committed the offences
punishable under Sections 279 and 338 of the Indian Penal
Code read with Section 187 of the Motor Vehicles Act.
This Court has carefully perused Section 187 of the Motor
Vehicles Act. The said provision deals with punishment for
offences relating to accidents. It provides that whoever
fails to comply with the provisions of clause (a) of Sub-
Section (1) of Section 132 or Section 133 or Section 134
of Motor Vehicles Act shall be punishable with
imprisonment for a term, which may extend to six months
or with fine or with both.
59. Thus, Section 187 of the said Act essentially
prescribes the punishment for the offence referred to
therein. It does not, by itself, deal with the validity of a
driving licence or the existence of a valid permit. On the
other hand, the provision specifically makes reference to
Sections 132, 133 and 134 of the Motor Vehicles Act. It is
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now necessary to peruse Sections 132, 133 and 134 of the
Motor Vehicles Act.
60. A plain reading of Section 132 of the Motor
Vehicles Act makes it pellucid that where a motor vehicle
is involved in an accident resulting in injury to a person or
animal or damage to any vehicle or property, the driver of
the motor vehicle is required to cause the vehicle to stop
and remain stationary for such reasonable period as may
be necessary, but, not exceeding 24 hours. Further, when
required to do so by a police officer not below the rank of
Sub-Inspector in uniform, the driver is required to comply
with such direction. The provision also requires the driver
to furnish his name and address and the name and
address of the owner of the vehicle to any person affected
by such accident or damage, if such person demands the
same, provided such person also furnishes his name and
address.
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61. Further, Section 133 of the Motor Vehicles Act
makes it clear that the owner of a motor vehicle, the
driver or conductor of which is accused of an offence under
the Motor Vehicles Act, shall, on demand by a police
officer authorised in this behalf by the State Government,
furnish all information regarding the name and address of,
and the licence held by, the driver or conductor, if such
information is in his possession or could by reasonable
diligence be ascertained by him.
62. Section 134 of the Motor Vehicles Act also casts
certain statutory duties upon the driver or the person in
charge of the vehicle. Where any person is injured or any
property belonging to a third party is damaged as a result
of an accident in which the motor vehicle is involved, the
driver or the person in charge of the vehicle is required,
unless it is impracticable to do so on account of mob fury
or any other reason beyond his control, to take all
reasonable steps to secure medical attention for the
injured person.
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63. The said provision further requires the driver or
the person in charge of the vehicle to furnish, on demand
by a police officer, such information as may be required by
him. If no police officer is present, he is required to report
the circumstances of the occurrence including, if
applicable, the reasons for not taking reasonable steps to
secure medical attention to the nearest police station as
soon as possible and in any event within 24 hours of the
occurrence.
64. Clause (c) of Section 134 further requires the
driver or the person in charge of the vehicle to furnish
information relating to the insurance policy, including the
policy number and the period of its validity, the date, time
and place of the accident, the particulars of the persons
injured or killed in the accident and the name of the driver
and the particulars of his driving licence.
65. Thus, a conjoint reading of Sections 132, 133
and 134 of the Motor Vehicles Act makes it clear that
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certain statutory obligations are cast upon the driver and
the owner of the offending vehicle, particularly, with
regard to furnishing the particulars of the driver, his
driving licence and other relevant particulars concerning
the vehicle and the accident. Failure to comply with the
requirements referred to in Section 187 of the Motor
Vehicles Act, attracts the punishment prescribed therein.
66. In the present case, the material on record,
particularly, the charge-sheet indicates that the police
have alleged non-compliance with the statutory
requirements by the driver or the person in charge of the
offending vehicle. However, there is no specific allegation
in the First Information Report or the charge-sheet that
the driver did not possess a valid and effective driving
licence or that the offending vehicle did not possess a valid
permit. It is therefore necessary to examine whether the
insurance company has independently established the
alleged breach of the policy conditions.
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67. The record discloses that the insurance
company has not made any independent effort to place
material before this Court to establish that the driver, who
was driving the offending vehicle at the time of the
accident did not possess a valid and effective driving
licence.
68. The record discloses that the insurance
company has not made any independent effort to place
material before this Court to establish that the driver of
the offending vehicle did not possess a valid and effective
driving licence at the time of the accident. Similarly, it has
not made any independent effort to establish that the
offending vehicle did not have a valid permit to ply on the
road where the accident occurred.
69. Before arriving at any conclusion, it is
necessary to examine the evidence adduced by the
insurance company. As stated above, the insurance
company has examined its Legal Officer, Ashlesh Moger as
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RW1. He has filed his affidavit in lieu of examination-in-
chief under Order XVIII Rule 4 of the CPC, reiterating the
contentions raised by the insurance company.
70. At page 2 of his affidavit, RW1 has specifically
stated that the insurance company had filed an application
under Order XVI Rule 6 of the CPC seeking issuance of
summons to respondent No.1 to produce a copy of the
permit relating to the offending vehicle. He has further
deposed that the summons was served on respondent
th
No.1 on 27 August, 2019. However, despite service of
the summons, respondent No.1 did not comply with the
direction of the Tribunal. On this basis, RW1 has requested
that an adverse inference be drawn against respondent
No.1, the owner of the offending vehicle.
71. The record reveals that, except for making the
aforesaid assertion and seeking production of the relevant
documents through summons, respondent No.2 has not
made any independent effort to establish the alleged
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breach of the policy conditions. The question that
therefore arises for consideration is whether the mere
issuance and service of summons on respondent No.1
would, by itself, be sufficient to accept the contention of
the insurance company.
72. In this regard, it is appropriate to refer to the
judgment of the Hon'ble Supreme Court in Kamala
Mangalal Vayani v. United India Insurance Company,
reported in 2011 (2) TAC 390. In the said judgment, the
Hon'ble Supreme Court has clarified that once it is
established that the vehicle was comprehensively insured
with the insurer so as to cover the passenger risk, the
burden shifts to the insurer to establish that it is not liable
notwithstanding the existence of such an insurance policy.
73. Keeping the aforesaid position of law in view,
this Court has once again carefully examined the material
placed on record by respondent No.2. Ex.R1 is the
insurance policy issued in respect of the offending vehicle,
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and the same is described as a Package Policy. The
production of the said policy by the insurance company
establishes that the offending vehicle was covered by an
insurance policy on the date of the accident. In such
circumstances, it was incumbent upon the insurance
company to independently establish the alleged breach of
the policy conditions.
74. However, as noticed above, respondent No.2
has not made any effective effort in this regard, except
seeking production of the relevant documents from
respondent No.1 through summons. In the considered
opinion of this Court, the insurance company could have
examined the concerned Regional Transport Officer to
establish that the driver of the offending vehicle did not
possess a valid and effective driving licence and that the
offending vehicle did not have a valid permit to ply on the
road in question. In the absence of such independent
evidence, the contention raised by respondent No.2 cannot
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be accepted as sufficient to absolve it of its liability
towards the claimant.
75. At the same time, this Court cannot lose sight
of the fact that the insurance company did make an effort
to secure the relevant documents by calling upon the
owner of the offending vehicle to produce them. The
record further discloses that the insurance company had
filed an appropriate application before the Tribunal and
that respondent No.1 failed to produce the documents
despite service of summons.
76. Having regard to the aforesaid peculiar facts
and circumstances of the case, this Court is of the
considered opinion that the ends of justice would be met
by directing the insurance company to pay the
compensation awarded to the claimant-petitioner in the
first instance, with liberty to recover the same from
respondent No.1, the owner of the offending vehicle, in
accordance with law.
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77. With these observations, this Court proceeds to
pass the following:
ORDER
i. The appeal is allowed in part.
ii. The judgment and award passed by Tribunal in
MVC No.897/2018 is modified to the aforesaid
extent.
iii. The appellant / petitioner shall be entitled to
enhanced compensation of Rs.3,27,636/- with
interest at the rate of 6% per annum from the
date of claim petition till its realization.
iv. The respondent-Insurance Company is directed
to deposit the enhanced compensation within six
weeks from receipt of certified copy of this
judgment and thereafter recover the same from
respondent No.1 - the owner of the offending
vehicle.
Sd/-
(BRUNGESH M)
JUDGE
SRT/SMP
LIST NO.: 1 SL NO.: 36
CT:SI