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1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 26TH DAY OF APRIL 2013
B E F O R E
THE HON’BLE Dr.JUSTICE JAWAD RAHIM
M.F.A.CROB NO. 1035 OF 2012, CROB 1036/2012,CROB 1037/2012, CROB 1038/2012, CROB 1039/2012
C/W MFA.32122/2011, 32123/2011, 32124/2011/32125/2011, 32126/2011, 32127/2011, 32128/2011
IN M.F.A. CROB NO. 1035/2012
BETWEEN
VAISHNAVI D/O KUMAR BHANDARIAge:11 YEARS
OCC STUDENT, MINOR,U/G OF HER NATURAL FATHER,
KUMARS/O NARASAPPA BHANDARI,
AGE:38 YRS, OCC NOW NIL,R/O CHANDANAHALLI, NOW H.NO.11-28,
CHOUDESHWAR COLONY, BRAHMPUR,GULBARGA-585102
... CROSS OBJECTOR
(BY SRI. SHIVASHARANA REDDY, ADV.,)
AND
1. NISSAR S/O YAKHUB KARASE,Age: 43 YEARS
OCC: BUSINESS & OWNER OF ASHOK LEYLAND LORRYNO.KA-39-5056, R/O RAJESHWAR,
2
BASAVAKALYAN, DIST. BIDAR – 585 401.
2.THE NATIONAL INSURANCE CO.LTD.,
THROUGH ITS BRANCH OFFICE,DR. JAWALI COMPLEX,
SUPER MARKET GULBARGA,BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, 1ST FLOOR,BILGUNDI COMPLEX, MAIN ROAD,
MINI VIDHANA SOUDHA,GULBARGA-585103
THROUGH ITS DIVISIONAL MANAGER ... RESPONDENTS
(BY SMT: PREETI PATIL, ADV., FOR R2)
MFA CROB FILED U/O 41 RULE 22 OF CPC AGAINST
THE JUDGMENT AND AWARD DATED 06.04.2011 PASSED IN
MVC NO.1075/2009 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN) & MACT AT GULBARGA, PARTLY ALLOWING THE
CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN M.F.A. CROB NO. 1036/2012
BETWEEN
ZARANAMMA @ SHANTA,W/O KUMAR BHANDARI
Age:33 YEARS, OCC: NOW NILR/O CHANDANAHALLI,
NOW AT H.NO.11-28,CHOUDESHWAR COLONY,
BRAHMPUR,GULBARGA
... CROSS OBJECTOR
(BY SRI. SHIVASHARANA REDDY, ADV.,)
3
AND
1. NISSAR S/O YAKHUB KARASE,
Age: 43 YEARS, OCC BUSINESS & OWNER OFASHOK LEYLAND LORRY
BEARING NO.KA-39-5056R/O RAJESHWAR, BASAVAKALYAN,
DIST. BIDAR - 585401
2. THE NATIONAL INSURANCE CO.LTD.,THROUGH ITS BRANCH OFFICE
DR. JAWALI COMPLEX, SUPER MARKETGULBARGA, BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, 1ST FLOOR,BILKGUNDI COMPLEX, MAIN ROAD,
MINI VIDHANA SOUDHA, GULBARGA.
THROUGH ITS DIVISIONAL MANAGER
... RESPONDENTS
(BY SMT : PREETI PATIL, ADV., FOR R2,)
MFA CROB FILED U/O 41 RULE 22 OF C.P.C AGAINST
THE JUDGMENT AND AWARD DATED 06.04.2011 PASSED IN
MVC NO.1076/2009 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN) & MACT AT GULBARGA, PARTLY ALLOWING THE
CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA CROB. NO. 1037/2012
BETWEEN
ASHWINI, D/O KUMAR BHANDARIAge:14 YEARS, OCC: STUDENT, MINOR,
U/G OF HER NATURAL FATHER,
KUMAR S/O NARASAPPA BHANDARI,
4
AGE:38 YEARS, OCC NOW NIL,
R/O CHANDANAHALLI, NOW H.NO.11-28,CHOUDESHWAR COLONY, BRAHMPUR – 585 102,
GULBARGA.
... CROSS OBJECTOR
(BY SRI. SHIVASHARANA REDDY, ADV.,)
AND
1. NISSAR, S/O YAKHUB KARASE,Age: 43 YEARS, OCC: BUSINESS & OWNER OF
ASHOK LEYLAND LORRYBEARING NO.KA-39-5056,
R/O RAJESHWAR, BASAVAKALYAN,
DIST. BIDAR-585 401.
2. THE NATIONAL INSURANCE CO.LTD.,THROUGH ITS BRANCH OFFICE,
DR. JAWALI COMPLEX, SUPER MARKET,GULBARGA, BY ITS DIVISIONAL MANAGER,
DIVSIONAL OFFICE, 1ST FLOOR, BILKGUNDI COMPLEX,MAIN ROAD, MINI VIDHANA SOUDHA,
GULBARGA – 585 102.THROUGH ITS DIVISIONAL MANAGER
... RESPONDENTS
(BY SMT : PREETI PATIL, ADV., FOR R2)
MFA CROB FILED U/O 41 RULE 22 OF C.P.C AGAINST
THE JUDGMENT AND AWARD DATED 06.04.2011 PASSED IN
MVC NO.1078/2009 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN) & MACT AT GULBARGA, PARTLY ALLOWING THE
CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.
5
IN MFA CROB. NO. 1038/2012
BETWEEN
SRINIVAS, S/O RAJANNA BHANDARIAge: 31 YEARS, OCC: NIL,
R/O CHANDANAHALLI, NOW H.NO.11-28,CHOUDESHWAR COLONY,
BRAHMPUR, GULBARGA-585102
... CROSS OBJECTOR(BY SRI. SHIVASHARANA REDDY, ADV.,)
AND
1. NISSAR, S/O YAKHUB KARASE,
Age: 43 YEARS, OCC BUSINESS & OWNER OFASHOK LEYLAND LORRY
BEARING NO.KA-39-5056,R/O RAJESHWAR, BASAVAKALYAN,
DIST. BIDAR - 585401
2. THE NATIONAL INSURANCE CO.LTD.,THROUGH ITS BRANCH OFFICE
DR. JAWALI COMPLEX, SUPER MARKET,GULBARGA, BY ITS DIVISIONAL MANAGER,
DIVSIONAL OFFICE, 1ST FLOOR, BILGUNDI COMPLEX,MAIN ROAD, MINI VIDHANA SOUDHA, GULBARGA
THROUGH ITS DIVISIONAL MANAGER
... RESPONDENTS
MFA CROB FILED U/O 41 RULE 22 OF C.P.C AGAINST
THE JUDGMENT AND AWARD DATED 06.04.2011 PASSED IN
MVC NO.1079/2009 ON THE FILE OF THE PRL. CIVIL JUDGE
6
(SR.DN) & MACT AT GULBARGA, PARTLY ALLOWING THE
CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA.CROB NO 1039 OF 2012
BETWEEN
KUMAR, S/O NARASAPPA BHANDARI
Age:38 YEARS, OCC: NOW NIL,R/O CHANDANAHALLI, NOW H.NO.11-28
CHOUDESHWAR COLONY, BRAHMPUR,GULBARGA - 585102
... CROSS OBJECTOR
(BY SRI. SHIVASHARANA REDDY, ADV.,)
AND
1. NISSAR, S/O YAKHUB KARASE,Age: 43 YEARS,
OCC: BUSINESS & OWNER OFASHOK LEYLAND LORRY
BEARING NO.KA-39-5056,R/O RAJESHWAR, BASAVAKALYAN,
DIST. BIDAR – 584 401
2. THE NATIONAL INSURANCE CO.LTD.,THROUGH ITS BRANCH OFFICE,
DR. JAWALI COMPLEX, SUPER MARKET GULBARGA,BY ITS DIVISIONAL MANAGER, DIVSIONAL OFFICE,
1ST FLOOR, BILKGUNDI COMPLEX, MAIN ROAD,
MINI VIDHANA SOUDHA, GULBARGA - 585102THROUGH ITS DIVISIONAL MANAGER
... RESPONDENTS
(BY SMT : PREETI PATIL, ADV.,FOR R2)
7
MFA CROB FILED U/O 41 RULE 22 OF C.P.C AGAINST
THE JUDGMENT AND AWARD DATED 06.04.2011 PASSED IN
MVC NO.1074/2009 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN) & MACT AT GULBARGA, PARTLY ALLOWING THE
CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA. NO. 32122 OF 2011
BETWEEN
THE NATIONAL INSURANCE CO.LTD.,
THROUGH ITS BRANCH OFFICE,DR. JAWALI COMPLEX, SUPER MARKET GULBARGA,
BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE,1ST FLOOR, BILGUNDI COMPLEX, MAIN ROAD,
MINI VIDHANA SOUDHA, GULBARGATHROUGH ITS DIVISIONAL MANAGER
(NOW REPRESENTED THROUGHASST. MANAGER, NATIONAL INSURANCE CO. LTD
D.O, GULBARGA)
... APPELLANT
(BY SMT. PREETI PATIL, ADV.,)
AND
1. KUMAR, S/O NARASAPPA BHANDARIAge:37 YEARS, OCC: NOW NIL,
R/O CHANDANAHALLI, NOW H.NO.11-28CHOUDESHWAR COLONY,
BRAHMPUR GULBARGA
2. NISSAR, S/O YAKHUB KARASE,Age: 43 YEARS,
OCC: BUSINESS & OWNER OF
ASHOK LEYLAND LORRY
8
BEARING NO.KA-39/5056,
R/O RAJESHWAR, BASAVAKALYAN,DIST. BIDAR.
... RESPONDENTS
(BY SRI. SHIVASHARANA REDDY, ADV., FOR R1,)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DT: 6.4.2011 PASSED IN MVC NO.
1074/2009 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.
DN.) & MACT GULBARGA, PARTLY ALLOWING THE CLAIM
PETITION AND AWARDING COMPENSATION OF RS
1,25,000/- WITH INTEREST AT 6% P.A.
IN MFA. 32123/2011
BETWEEN
THE NATIONAL INSURANCE CO.LTD.,
THROUGH ITS BRANCH OFFICE,
DR. JAWALI COMPLEX,SUPER MARKET GULBARGA,
BY ITS DIVISIONAL MANAGER,DIVISIONAL OFFICE, 1ST FLOOR,
BILGUNDI COMPLEX, MAIN ROAD,MINI VIDHANA SOUDHA, GULBARGA
THROUGH ITS DEPOT MANAGER(NOW, REPRESENTED THROUGH
ASST. MANAGER, NATIONAL INSURANCE CO. LTDD.O, GULBARGA)
... APPELLANT
(BY SMT: PREETI PATIL, ADV.,)
AND
9
1. VAISHNAVI, D/O KUMAR BHANDARIAge:10 YEARS
OCC STUDENT, MINOR,U/G OF HER NATURAL FATHER
KUMAR,S/O NARASAPPA BHANDARI,
AGE:37 YEARS, OCC NOW NIL,R/O CHANDANAHALLI, NOW H.NO.11-28,
CHOUDESHWAR COLONY, BRAHMPUR,GULBARGA.
2. NISSAR, S/O YAKHUB KARASE,
Age: 42 YEARSOCC: BUSINESS & OWNER OF ASHOK LEYLAND LORRY
NO.KA-39-5056, R/O RAJESHWAR,
BASAVAKALYAN, DIST. BIDAR – 585 401.
….RESPONDENT(BY SRI. SHIVASHARANA REDDY, ADV.,)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DT: 6.4.2011 PASSED IN MVC NO.
1075/2009 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.
DN.) & MACT GULBARGA, PARTLY ALLOWING THE CLAIM
PETITION AND AWARDING COMPENSATION OF RS
1,00,000/- WITH INTEREST AT 6% P.A.
IN MFA 32124/11
BETWEEN
THE NATIONAL INSURANCE CO.LTD.,
THROUGH ITS BRANCH OFFICEDR. JAWALI COMPLEX, SUPER MARKET
GULBARGA, BY ITS DIVISIONAL MANAGER,
DIVSIONAL OFFICE, 1ST FLOOR,
10
BILGUNDI COMPLEX, MAIN ROAD,
MINI VIDHANA SOUDHA, GULBARGA.THROUGH ITS DEPOT MANAGER
(NOW, REPRESENTED THROUGHASST. MANAGER, NATIONAL INSURANCE CO. LTD
D.O, GULBARGA)
... APPELLANT
(BY SMT : PREETI PATIL, ADV.,)
AND
1. ZARANAMMA, W/O KUMAR BHANDARI
Age:33 YEARS, OCC: NOW NIL
R/O CHANDANAHALLI,NOW AT H.NO.11-28,
CHOUDESHWAR COLONY,BRAHMPUR,
GULBARGA
2. NISSAR, S/O YAKHUB KARASE & ANRAge: 43 YEARS, OCC: BUSINESS & OWNER OF
ASHOK LEYLAND LORRY BEARINGNO.KA-39/5056,
R/O RAJESHWAR, BASAVAKALYAN,DIST. BIDAR
... RESPONDENTS
(BY SRI. SHIVASHARANA REDDY, ADV.,)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DT: 6.4.2011 PASSED IN MVC NO.
1076/2009 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.
DN.) & MACT GULBARGA, PARTLY ALLOWING THE CLAIM
11
PETITION AND AWARDING COMPENSATION OF RS 76,000/-
WITH INTEREST AT 6% P.A.
IN MFA. 32125/2011
BETWEEN
THE NATIONAL INSURANCE CO.LTD.,
THROUGH ITS BRANCH OFFICE,DR. JAWALI COMOPLEX,
SUPER MARKET GULBARGA,BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, 1ST FLOOR,
BILGUNDI COMPLEX, MAIN ROAD,MINI VIDHANA SOUDHA, GULBARGA
THROUGH ITS DEPOT MANAGER(NOW, REPRESENTED THROUGH
ASST. MANAGER, NATIONAL INSURANCE CO. LTDD.O, GULBARGA)
... APPELLANT
(BY SMT: PREETI PATIL, ADV., FOR R2)
AND
1. NIKHIL, S/O KUMAR BHANDARI
Age:13 YEARSOCC: STUDENT, MINOR,
U/G OF NATURAL FATHERKUMAR, S/O NARASAPPA BHANDARI,
AGE:37 YRS, OCC NOW NIL,R/O CHANDANAHALLI, NOW H.NO.11-28,
CHOUDESHWAR COLONY, BRAHMPUR,GULBARGA.
2. NISSAR, S/O YAKHUB KARASE,
Age: 42 YEARS
12
OCC: BUSINESS & OWNER OF ASHOK LEYLAND LORRY
NO.KA-39-5056, R/O RAJESHWAR,BASAVAKALYAN, DIST. BIDAR – 585 401.
….RESPONDENTS
(BY SRI. SHIVASHARANA REDDY FOR R1, ADV.,)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DT: 6.4.2011 PASSED IN MVC NO.
1077/2009 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.
DN.) & MACT GULBARGA, PARTLY ALLOWING THE CLAIM
PETITION AND AWARDING COMPENSATION OF RS 7,000/-
WITH INTEREST AT 6% P.A.
IN MFA. 32126/11
BETWEEN
THE NATIONAL INSURANCE CO.LTD.,
THROUGH ITS BRANCH OFFICE,DR. JAWALI COMPLEX, SUPER MARKET,
GULBARGA, BY ITS DIVISIONAL MANAGER,DIVSIONAL OFFICE, 1ST FLOOR, BILGUNDI COMPLEX,
MAIN ROAD, MINI VIDHANA SOUDHA,GULBARGA – 585 102.
THROUGH ITS DEPOT MANAGER(NOW, REPRESENTED THROUGH
ASST. MANAGER, NATIONAL INSURANCE CO. LTDD.O, GULBARGA)
…..APPELLANT
(BY SMT : PREETI PATIL, ADV.,)
AND
13
1. ASHWINI, D/O KUMAR BHANDARIAge:13 YEARS, OCC: STUDENT, MINOR,
U/G OF HER NATURAL FATHER,KUMAR, S/O NARASAPPA BHANDARI,
AGE:37 YEARS, OCC: NOW NIL,R/O CHANDANAHALLI, NOW H.NO.11-28,
CHOUDESHWAR COLONY, BRAHMPUR,GULBARGA.
2. NISSAR, S/O YAKHUB KARASE,
Age: 42 YEARS, OCC: BUSINESS & OWNER OFASHOK LEYLAND LORRY BEARING
NO. KA.39/5056, R/O RAJESHWAR,BASAVAKALYAN, DIST. BIDAR-585 401.
... RESPONDENTS
(BY SRI. SHIVASHARANA REDDY FOR R1, ADV.,)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DT: 6.4.2011 PASSED IN MVC NO.
1078/2009 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.
DN.) & MACT GULBARGA, PARTLY ALLOWING THE CLAIM
PETITION AND AWARDING COMPENSATION OF RS 87,000/-
WITH INTEREST AT 6% P.A.
IN MFA. 32127/2011
BETWEEN
THE NATIONAL INSURANCE CO.LTD.,
THROUGH ITS BRANCH OFFICE,DR. JAWALI COMPLEX,
SUPER MARKET GULBARGA,BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, 1ST FLOOR,
BILGUNDI COMPLEX, MAIN ROAD,
14
MINI VIDHANA SOUDHA, GULBARGA
THROUGH ITS DEPOT MANAGER(NOW, REPRESENTED THROUGH
ASST. MANAGER, NATIONAL INSURANCE CO. LTDD.O, GULBARGA)
... APPELLANT
(BY SMT: PREETI PATIL, ADV.,)
AND
1. SRINIVAS, S/O RAJANNA BHANDARI
Age:30 YEARSOCC: NOW NIL,
R/O CHANDANAHALLI, NOW H.NO.11-28,
CHOUDESHWAR COLONY, BRAHMPUR,GULBARGA.
2. NISSAR, S/O YANKHUB KARASE,
Age: 42 YEARS, OCC: BUSINESS & OWNER OFASHOK LEYLAND LORRY BEARING
NO.KA-39-5056, R/O RAJESHWAR,BASAVAKALYAN, DIST. BIDAR – 585 401.
….RESPONDENTS
(BY SRI. SHIVASHARANA REDDY, ADV., FOR R1, ADV.,)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DT: 6.4.2011 PASSED IN MVC NO.
1079/2009 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.
DN.) & MACT GULBARGA, PARTLY ALLOWING THE CLAIM
PETITION AND AWARDING COMPENSATION OF RS
3,40,000/- WITH INTEREST AT 6% P.A.
15
MFA. 32128/2011
BETWEEN
THE NATIONAL INSURANCE CO.LTD.,
THROUGH ITS BRANCH OFFICE,DR. JAWALI COMPLEX,
SUPER MARKET GULBARGA,BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE, 1ST FLOOR,BILGUNDI COMPLEX, MAIN ROAD,
MINI VIDHANA SOUDHA, GULBARGATHROUGH ITS DEPOT MANAGER
(NOW, REPRESENTED THROUGHASST. MANAGER, NATIONAL INSURANCE CO. LTD
D.O, GULBARGA)
... APPELLANT(BY SMT: PREETI PATIL, ADV.,)
AND
1. BABALU, S/O SRINIVAS BHANDARI
Age:11 YEARS, OCC: STUDENT,U/G OF NATURAL FATHER
SRI SRINIVAS, S/O RAJANNA BHANDARI,R/O CHANDANAHALLI, NOW H.NO.11-28,
CHOUDESHWAR COLONY, BRAHMPUR,GULBARGA.
2. NISSAR, S/O YANKHUB KARASE,
Age: 42 YEARS, OCC: BUSINESS & OWNER OF ASHOK
LEYLAND LORRY NO.KA-39-5056,R/O RAJESHWAR,
BASAVAKALYAN,DIST. BIDAR – 585 401.
….RESPONDENTS
(BY SRI. SHIVASHARANA REDDY, ADV., FOR R1)
16
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DT: 6.4.2011 PASSED IN MVC NO.
1080/2009 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.
DN.) & MACT GULBARGA, PARTLY ALLOWING THE CLAIM
PETITION AND AWARDING COMPENSATION OF RS 5,000/-
WITH INTEREST AT 6% P.A.
THESE MFA CROBS A/W MFA’s COMING ON FORORDERS THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
J U D G M E N T
These appeals are directed against the common
judgment and award passed by the Civil Judge (Senior
Divn.) and MACT, Gulbarga, granting compensation to the
claimants for the injuries suffered by them.
2. M.F.A.32122/11 is by the insurance company against
the award in M.V.C.1074/2009 while the claimant is in
cross-objection in MFA.Crob.1039/12 seeking enhancement.
M.F.A.32123/11 is by the insurance company against the
award in M.V.C.1075/09, while the claimant is in cross-
objection in MFA.Crob.1035/12 seeking enhancement.
M.F.A.32124/11 is by the insurance company against the
award in M.V.C. 1076/09, while the claimant is in cross-
objection in MFA.Crob.1036/12 seeking enhancement.
17
Likewise M.F.A.32125/11 is by the insurance company
against the award in M.V.C.1077/2009, but the claimant has
not questioned it. M.F.A.32126/11 is by the insurance
company against the award in M.V.C..10768/2009 while the
claimant is in cross-objection in MFA.Crob.1037/12 seeking
enhancement. M.F.A.32127/11 is by the insurance
company against the award in M.V.C.1079/2009 while the
claimant is in cross-objection in MFA.Crob.1038/12 seeking
enhancement. M.F.A.32128/11 is by the insurance company
against the award in M.V.C..1080/2009, but the claimant
has not questioned it.
3. Occurrence of the accident on 25.11.2008 involving a
car bearing registration No.MH-11-H-3007 and a lorry
bearing registration No.KA-39/5056,validity of the insurance
policy and sufferance of injuries by the occupants of the car
is not brought in question. The insurer is aggrieved by the
direction of the Tribunal to indemnify the insured owner by
discharging the compensations awarded to the claimants.
18
4. The main ground to seek such relief is, the driver of
the lorry possessed licence to drive a transport vehicle, i.e.
M-HMV-rigid goods with effect from 16.4.1996 but not lorry.
Referring to this part of the licence, learned counsel,
Ms.Preeti Patil submits the vehicle involved in this case is a
goods vehicle and does not come in the category of 'heavy
motor vehicle with rigid chassis.' Therefore the driver did
not possess the requisite licence to drive the offending
vehicle and consequently there was violation of the terms of
insurance policy which absolves the insurance company. To
support such contention, she draws my attention to Section
10 of the Motor Vehicles Act which classifies types of
vehicles she submits the licence issued to the driver in this
case comes under Section 10(1)(j). She relies on the
decision in the case of NATIONAL INSURANCE COMPANY –
VS- MEENA AGGARWAL (III(2009) SLT 158) wherein the
apex court observed if the driver had licence for a
particular category of vehicle, he will not be licenced driver
to drive other type of vehicle.
19
Such view is taken in a case where the owner had allowed
the driver to drive his private use a non-transport vehicle
though it was registered as a taxi. In that situation, the
apex court held the driver should possess valid licence to
drive a taxi and as he did not possess such licence, the
owner has to be held liable and consequently the insurance
company will not be liable.
5. It must be noticed the decision has been rendered not
in a claim relating to a claim by a third person in the
accident, but in a case relating to a claim by the party
insured against the insurer for damages and in that context
the apex court observed the owner having allowed the
vehicle to be driven by the person who did not possess
licence to drive such vehicle, the insurance company has to
be absolved. This could be found from the decision cited by
the learned counsel in paragraph 7 which reads thus:
'Aforesaid was highlighted in National
Insurance Company Ltd. –vs- Kusum Rai,III(2006)
SLT 162-II (2006) ACC 19 (SC)= II (2006) CPJ 8
(SC) = 2006 (4) SCC 250. The said decision related
20
to liability in the case of third party. But in the instant
case no such claim is involved and the claim is
related to the damage of a vehicle"
In this view the decision of the apex court in the case of
2004 (3) SCC 797 applies to facts of this case which I have
already adverted to in M.F.A.31725/11. Thus the grounds
urged by the insurance company to avoid liability is
unsustainable.
6. Besides it must be noticed the driver of the offending
vehicle had sanction to drive 'M-HMV-rigid-chassis-
transport.' It is a clear indication that he had licence to
drive a heavy transport motor vehicle. Mere mention of
'rigid chassis' does not exclude a goods vehicle. On facts
also it has to be affirmatively held that the driver did
possess licence to drive lorry a transport vehicle involved in
the accident and any contention to the contrary is rejected.
7. This being the common ground, all the appeals filed
by the insurance company, viz., M.F.A. Nos.32122/11,
32123/11, 32124/11, 32125/11, 32126/11, 32127/11 and
32128/11 are dismissed as being devoid of merit.
21
8. Coming to cross-objections filed by the claimants
seeking enhancement of compensation, in
MFA.Crob.1035/12, the victim, Kum.Vaishnavi was aged 8
years at the time of the accident. She was claimant in
MVC.1075/09. She has suffered fracture of shaft of femur
of both legs and knees and other parts of the body. She
was initially treated at Govt. General Hospital, Solapur, and
then shifted to Markandey Solapur Sahakari Rugnalaya &
Research Centre, Solapur, where she was in-patient for 7
days; the injuries have left her disabled for life. The
Tribunal has granted Rs.20,000/- towards pain and
suffering which is low and is enhanced to Rs.35,000/-.
Towards medical expenses, Rs.16381/- is granted besides
Rs.2,500/- for special diet. It is on the lower side. Hence it
is enhanced to Rs.25,000/- including medical and
incidental expenses. Considering physical disability of 15%
to the whole body, she is awarded Rs.35,000/- towards
loss of marriage prospects. Towards loss of marriage
prospects, she is entitled to Rs.35,000/-. Physical
disability undoubtedly has had effect on her earning
22
capacity. When she reaches employable age. The Tribunal
has taken her income as Rs.15,000/- p.a. notionally which
is unrealistic. She is a young girl aged 8 years and
therefore, compensation has to be given towards loss of job
opportunity in future and for such grant, her income is
taken at Rs.4,500/- p.m. 15% of it comes to Rs.675/- p.m.
and annually it is Rs.8,100/-. Applying multiplier 15, she is
entitled to Rs.1,21,500/- (Rs.8,100/- x 15) towards loss of
future income. In all, claimant is entitled to Rs.2,51,500/-
as against Rs.1,00,000/- awarded by the Tribunal.
8. The claimant in MFA. Crob.1036/12-Zaranamma @
Shanta seeks enhancement of compensation awarded by
the Tribunal on the assertive contention that she has
suffered fracture of mandible, fracture of left transverse
process of T1 vertebra with condisplaced fracture of
posterior part of left first rib and injuries to other parts of
the body. She was first admitted to Government General
Hospital at Solapur and she claims to have spent
Rs.1,80,000/- towards medical expenses. She was a tailor
23
by profession and was aged 30 years at the time of the
accident and was earning Rs.6,000/- p.m. The Tribunal has
disbelieved her version regarding her income but has
accepted the medical evidence that she has suffered injuries
as averred. However, the learned member of the Tribunal
did not accept the evidence tendered by the medical officer,
Dr.Veeranna Satnoor (PW8) regarding his evaluation of
physical disability at 40%, and has awarded Rs.10,000/-
towards pain and suffering, Rs.25,000/- towards medical
expenses, Rs.10,000/- towards loss of future amenities in
life, Rs.3,200/- towards conveyance and special diet and
Rs.28,800/- towards loss of earning due to disability, in all,
Rs.76,000/-. It is on the lower side and needs to be re-
determined.
9. Medical evidence proves she has suffered grievous
injuries, particularly to her vertebra, towards pain and
suffering she is awarded Rs.35,000/-. Towards medical
and incidental expenses, she is awarded Rs.40,000/-,
towards loss of amenities she is awarded Rs.35,000/-.
Towards disfiguration and permanent scar on her face, she
24
is awarded Rs.20,000/-. There is no reason to disbelieve
she was a tailor by profession and was earning Rs.6,000/-
p.m. Towards loss of income during the laid-up period of 3
months, she is awarded Rs.18,000/-. Towards loss of
income consequent to physical disability, the Tribunal has
declined to accept medical evidence that she had 40%
disability. Keeping in mind the possible exaggeration, it will
be possible to take physical disability at 20%. Thus she will
be entitled to loss of income at Rs.1,200/- p.m. (20% of
Rs.6,000/-) and annually it will be Rs.14,400/-. She was
aged 33 years as per the Tribunal’s determination. Based
on it, the multiplier would be 16 and thus under this head,
she would be entitled to Rs.2,30,400/- (Rs.14,400/- x
16). In all, she is entitled to enhanced compensation of
Rs.3,78,400/- as against Rs.76,000/- awarded by the
Tribunal.
10. The claimant in MFA.Crob.1037/12-Ashwini is a
young girl aged 11 years and seeks enhancement of
compensation. She has suffered fracture of right femur and
25
grievous injuries over the right knee, hands and other parts
of the body. She has claimed reimbursement of medical
expenses of Rs.1,60,000/-. She has suffered physical
disability as determined by Dr.Kishore Mengaji (PW9) to an
extent of 20% of the whole body. The Tribunal, considering
her age as 11 years, has taken her income at Rs.15,000/-
p.a. for determining loss of future income, and has awarded
Rs.15,000/ towards pain and suffering, Rs.41,500/- towards
loss of earning due to disability, Rs.7,000/- towards medical
expenses, Rs.3,500/- towards conveyance and special diet,
Rs.10,000/- towards future amenities in life and
Rs.10,000/- towards loss of marriage prospects, in all,
Rs.87,000/-. It is certainly on the lower side and the award
needs re-determination.
11. Towards pain and suffering, the claimant is entitled
to Rs.35,000/-, towards medical expenses she is awarded
Rs.20,000/-, towards loss of amenities in life she is
awarded Rs.35,000/-, towards loss of marriage prospects
consequent to the disability, she is awarded Rs.35,000/-.
26
Towards loss of future income when she reaches
employable age, she has to be suitably compensated.
Therefore notionally her income is taken as RS.4,500/- p.m.
and not Rs.15,000/- p.a. as determined by the Tribunal.
20% of it would be Rs.900/- p.m. and annually Rs.10,800/-.
Applying multiplier 15, she would be entitled to
Rs.1,62,000/- (Rs.10,800/- x 15). Thus she is entitled
to enhanced compensation of Rs.2,87,000/- as against
Rs.87,000/- awarded by the Tribunal.
12. The claimant in MFA.Crob.1038/12-Srinivas has
suffered fracture of both bones of right arm, fracture of one
third of femur and injuries to other parts of the body. He is
examined by Dr.Kishore Mengaji (PW9) who has deposed
about his physical disability and has assessed it at 20% of
the whole body. The Tribunal has awarded Rs.25,000/-
towards pain and suffering, Rs.1,10,000/- towards medical
expenses, Rs.1,92,000/- towards loss of earning due to
disability, Rs.10,000/- towards loss of future amenities in
life and RS.3,000/- towards conveyance and special diet, in
27
all Rs.3,40,000/-. It is certainly on the lower side and
requires to be re-determined.
13. Towards pain and suffering, claimant is awarded
Rs.35,000/-. Towards medical expenses though he has
produced bills as per Exs.P45 to P104 amounting to
RS.1,13,087/-, Tribunal has awarded only Rs.1,10,000/-,
and no amount is awarded towards incidental expenses.
Hence, he is awarded under this head Rs.1,13,087/-. For
physical disability at 20%, he is entitled to Rs.35,000/-
towards loss of amenities in life. For calculating loss of
future income, Tribunal has taken his income at Rs.5,000/-
p.m. and on that basis computation has been done. It is
proved from evidence that the claimant was working in a
Dhaba and had regular income. He has filed income tax
returns vide Ex.P8 showing he had been paying for income
of Rs.12,000/- which the Tribunal has disbelieved. Such
approach is irrational. His income is therefore taken at
Rs.8,000/-, and 20% of it would be Rs.1,600/- p.m. and
annually Rs.19,200/-. The multiplier is 16 as chosen by
28
the Tribunal and thus he will be entitled to Rs.3,07,200/-
(Rs.19,200/- x 16). Thus the claimant is entitled to
Rs.4,90,287/- as against Rs.3,40,000/- awarded by the
Tribunal.
14. The claimant in MFA.Crob.1039/12-Kumar has
suffered fracture of middle third of tibia and fibula and
injuries to other parts of the body. He is examined by Dr.
Kishore Mengaji (PW9) who has testified that the claimant
has suffered injuries as referred to above and has physical
disability to the extent of 15% of the lower limb and 10% in
relation to the whole body. He was aged 33 years and
claims to be a businessman, having an income of
Rs.11,000/- p.m. He has produced income tax returns at
Exs.P132 and P133. The Tribunal has disbelieved his
version. It has taken his income at Rs.5,000/- p.m. and
physical disability is taken at 10% in respect of the whole
body. Thus it has awarded Rs.96,000/- towards loss of
earning due to disability, Rs.15,000/- towards pain and
suffering, Rs.10,00/- towards loss of amenities in life and
29
Rs.4,000/- towards conveyance and special diet, in all,
Rs.1,25,000/-. It is certainly on the lower side and needs
to be re-determined.
15. The claimant is awarded Rs.35,000/- towards pain
and suffering and another Rs.35,000/- towards loss of
amenities in life. Towards medical and incidental expenses
he is awarded Rs.20,000/-. His income is taken as
Rs.9,000/- and at 10% loss of income would be Rs.900/-
and annually Rs.10,800/-. He was aged 31 years and
applying multiplier 16, he is awarded Rs.1,72,800/-
towards loss of income on account of physical disability.
Towards loss of income during the laid-up period of 3
months, he is entitled to Rs.27,000/-. In all, the claimant
is entitled to enhanced compensation of Rs.2,89,800/- as
against Rs.1,25,000/- awarded by the Tribunal.
16. In the result, I pass the following order:
I) All the appeals filed by the insurance
company, viz., M.F.A. Nos.32122/11,
32123/11, 32124/11, 32125/11, 32126/11,
30
32127/11 and 32128/11 are dismissed as
being devoid of merit.
II) All the cross-objections filed by the
claimants, viz., M.F.A. Crob.1035/12,
1036/12, 1037/12, 1038/12 and 1039/12 are
allowed in part as stated above.
III) The claimants are entitled to interest at 6%
p.a. on the enhanced compensation. The
insurance company shall discharge the award
in each case within eight weeks from today.
IV) Rest of the directions contained in the award
are affirmed.
SD/- JUDGE
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