Karnataka High Court
Kaleelulla vs Nanjundaswamy on 30 July, 2024
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NC: 2024:KHC:30211
MFA No. 36 of 2012
C/W MFA No. 126 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 36 OF 2012 C/W
MFA NO. 126 OF 2012 (MV-I)
IN M.F.A. No.36/2012
BETWEEN:
THE ORIENTAL INSURANCE COMPANY LIMITED
BRANCH OFFICE, V. NIALAYA, 3RD CROSS
GANDHI BAZAR CIRCLE, B.M.ROAD, HASSAN
BY ITS REGIONAL OFFICE, ORIENTAL INSURANCE
COMPANY LIMITED, NO.44/45, 4TH FLOOR
LEO SHOPPING COMPLEX, RESIDENCY ROAD
BANGALORE - 560 025 REP. BY ITS
REGIONAL MANAGER APPELLANT
(BY SRI. P.B.RAJU, ADV.)
AND:
1. KALEELULLA
S/O SAB JOHN SAB
MERCHANT, MAZID ROAD
Digitally signed by
PRAJWAL A SANTHEPET, TUMKUR - 572 101
Location: HIGH COURT 2. NANJUNDASWAMY
OF KARNATAKA
S/O GOVINDASETTY
SHANTHI VILLAGE
HASSAN DISTRICT - 573 201
3. MANJEGOWDA,
S/O HANUMANTHEGOWDA
MAJOR, SHANKANAHALLI
BOOVANAHALLI POST
HASSAN - 573 201 ...RESPONDENTS
(BY SMT. BHUSHANI KUMAR, ADV. FOR R1;
R2 SERVED AND UNREPRESENTED)
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NC: 2024:KHC:30211
MFA No. 36 of 2012
C/W MFA No. 126 of 2012
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 03.09.2011
PASSED IN MVC NO.175/1996 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-I, ADDITIONAL MACT, TUMKUR,
AWARDING A COMPENSATION OF Rs.1,12,000/- WITH INTEREST
@ 6% P.A. FROM THE DATE OF PETITION TILL 16.09.2006.
IN M.F.A. No.126/2012
BETWEEN:
KALEELULLA
S/O SAB JOHN SAB
MERCHANT, MAZID ROAD
SANTHEPET, TUMKUR - 572 101 ...APPELLANT
(BY SMT. BHUSHANI KUMAR, ADV.)
AND:
1. NANJUNDASWAMY
S/O GOVINDASETTY
SHANTHI VILLAGE
HASSAN DISTRICT - 573 201
2. THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.
BRANCH OFFICE, V. NILAYA
3RD CROSS, GANDHI BAZAR CIRCLE
B.M.ROAD, HASSAN - 573 201
3. MANJEGOWDA
S/O HANUMANTHEGOWDA
MAJOR, SHANKANAHALLI
BOOVANAHALLI POST
HASSAN - 573 201 ...RESPONDENTS
(BY SRI.P. B. RAJU, ADV. FOR R2;
VIDE ORDER DATED 28.03.2014
NOTICE TO R1 DISPENSED WITH
VIDE ORDER DATED 28.03.2014 STEPS
AGAINST DOES NOT ARISE)
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NC: 2024:KHC:30211
MFA No. 36 of 2012
C/W MFA No. 126 of 2012
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 03.09.2011
PASSED IN MVC NO.175/1996 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-I, ADDITIONAL MACT, TUMKUR,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In these appeals, the insurance company is challenging the liability to pay the compensation, whereas the petitioner is seeking enhancement of compensation against the judgment and award dated 03.09.2011 passed in M.V.C.No.175/1996 by the Presiding Officer, Fast Track Court-I and Additional MACT, Tumkur ('the Tribunal' for short).
2. For the sake of convenience, the rank of the parties shall be referred to as per their status before the Tribunal.
3. Brief facts of the case are, there was an accident on 08.08.1995 involving the Goods Lorry -4- NC: 2024:KHC:30211 MFA No. 36 of 2012 C/W MFA No. 126 of 2012 bearing Reg.No.MYY-7526 at Thippagondanahalli gate, NH-4, Tumkur-Nelamangala road. Due to which, the petitioner being the inmate, sustained injuries, treated at General Hospital, Tumkur and then at Siddhartha Medical College Hospital, Tumkur, seeking compensation, approached the Tribunal. Claim was opposed by the Insurance Company as well as the owner of the lorry. The Tribunal, after taking the evidence and hearing both the parties by impugned judgment allowed the claim petition granting compensation of Rs.1,12,000/- with interest at the rate of 6% p.a., fastening the liability against the owner and insurer of the Lorry to pay the compensation. Challenging its liability, the insurance company has filed MFA.No.36/2012, pleading inadequacy and seeking enhancement, the petitioner has filed MFA.No.126/2012 on various grounds. -5-
NC: 2024:KHC:30211 MFA No. 36 of 2012 C/W MFA No. 126 of 2012
4. Heard the arguments of Smt.Bhushani Kumar, learned Counsel for the petitioner and Sri. P.B.Raju, learned counsel for the Insurance Company.
5. It is the contention of the learned counsel for the petitioner that the petitioner has sustained fracture of posterior dislocation of right hip and olecronon process of right ulna and he was under hospitalization for period of 30 days, he was a businessman in agricultural produce earning more than Rs.15,000/- per month, but the Tribunal has taken Rs.2,250/- as his notional income. PW.2-Dr.G.S.Nagarale, the treated doctor, who has stated that the petitioner has sustained more than 50% of whole body disability, but the Tribunal has taken only 15% and sought for enhancement.
6. Per contra, learned counsel for the insurance company has contended that the petitioner is a gratuitous passenger in the lorry, he was not carrying any goods, the policy does not cover the risk of the -6- NC: 2024:KHC:30211 MFA No. 36 of 2012 C/W MFA No. 126 of 2012 petitioner, the Tribunal erroneously fastened the liability against the insurance company and sought for direction that the owner of the Lorry alone shall pay the compensation.
7. I have given my anxious consideration to the arguments addressed on behalf of the parties and perused the records.
8. The material on record did point out that there was an accident on 08.08.1995, wherein the petitioner while traveling in a Lorry bearing Reg.No.MYY-7256, at Thippagondanahalli gate, NH-4, on Tumkur- Nelamangala road sustained fracture of right hip joint and olecronon process of right ulna and he was under
hospitalization for 30 days. Being a victim of the accident, the petitioner is entitled to claim compensation.
9. The main contention of the insurance company is that the petitioner is a gratuitous passenger and he -7- NC: 2024:KHC:30211 MFA No. 36 of 2012 C/W MFA No. 126 of 2012 was not traveling with any goods. It is the contention of the petitioner that he was traveling with goods. On perusal of the evidence on record, it is pertinent to note that at the time of accident, the petitioner was traveling with 7 bags of coconut, 7-8 bags of puffed rice, few bags of groundnut and sugar and 2 sheeps. Ex.P105 is the mahazar marked before the Tribunal clearly points out that the Lorry was loaded with sugar bags, there are 7-8 bags of puffed rice, 7 bags containing coconut and 2 sheeps. This fortifies that the petitioner was traveling with these goods in the vehicle.
10. Ex.R1 is the policy of the insurance, shows that premium of Rs.150/- was paid by the owner of the lorry to cover the risk of the non-fare paying passengers as per IMT-13. This clearly goes to show that apart from third party liability also unlimited third party property damage, cover to the driver and the conductor. There is liability on the part of the insurance -8- NC: 2024:KHC:30211 MFA No. 36 of 2012 C/W MFA No. 126 of 2012 company to cover the risk of non-fare paying passengers. Hence, the contention of the insurance company that it has no liability to indemnify the owner falls to the ground.
11. As regarding assessment of compensation is concerned, the Tribunal has awarded compensation under the following heads:
Sl. Particulars Amount
No.
1. Pain and agony Rs. 20,000/-
2. Medical Expenses and incidental Rs. 10,000/-
expenses
3. Loss of income during treatment Rs. 6,750/-
period
4. Loss of future income Rs. 64,800/-
5. Loss of amenities and unhappiness Rs. 10,000/-
Total Rs. 1,11,550/-
[rounded off to
Rs.1,12,000/-]
12. Ex.P107 is the wound certificate, which discloses that the petitioner has suffered fracture of right hip joint and olecronon process of right ulna with displacement. Ex.P102 is the discharge card issued by Siddhartha Hospital, Tumkur, which pointed out that the petitioner was hospitalization between 15.08.1995 -9- NC: 2024:KHC:30211 MFA No. 36 of 2012 C/W MFA No. 126 of 2012 to 12.09.1995 for 29 days and he was inpatient in the Government hospital, Tumkur for a day, in all he was under hospitalization for 30 days. The medical bills produced on record shows that he has spent money for a sum of Rs.5,038/.
13. PW.2-Dr.G.S.Nagarale, the treated doctor, in his evidence has stated that the fractures causing in disability to an extent of 50% to the right lower limb and 10% to the right upper limb. Though the Doctor made an assessment of 50% whole body disability, same cannot be accepted. The Tribunal had considered whole body disability at 15%. Having regard to the fracture and dislocation and avocation of the petitioner, injuries certainly affect the earning capacity and it shall not be less than 20% disability. Therefore, the whole body disability of the petitioner is assessed at 20%.
14. The Tribunal has taken the income of the petitioner at Rs.2,250/-. The accident had taken place in the year 1995 and the petitioner was doing business
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NC: 2024:KHC:30211 MFA No. 36 of 2012 C/W MFA No. 126 of 2012 and earning handful money and therefore he would have earned not less than Rs.100/- per day. Hence, the income of the petitioner at rate of Rs.3,000/- per month has to be considered for the calculation purpose.
15. In a case of this nature, a person aged 34 years, suffers fracture and dislocation and disability and definitely he was kept idle from doing his normal work due to 20% of whole body disability. Therefore, towards pain and suffering a sum of Rs.30,000/- has to be assessed. Medical expenses of Rs.5,038/- has to be taken. During hospitalization of petitioner for about 30 days, was attended by an attendant, spent money towards travelling and also food and nourishment, the Tribunal has not granted any amount under these heads. Therefore, towards attendant charges Rs.3,000/-, towards food and nourishment Rs.5,000/- and towards transportation at Rs.2,000/- is assessed. The petitioner had been laid up for a period of 5
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NC: 2024:KHC:30211 MFA No. 36 of 2012 C/W MFA No. 126 of 2012 months and hence he is entitled for Rs.15,000/- (Rs.3,000/-x5). The petitioner has suffered loss of amenities and discomfort, it has to be compensated with Rs.30,000/-.
16. As regarding loss of future earnings is concerned, as discussed above, the income is taken at Rs.3,000/- per month, applicable multiplier is '16', whole body disability is 20%. Calculation comes to Rs.3,000x12x20%x16=Rs.1,15,200/-. There is no evidence to assess the compensation under other heads. Therefore, the petitioner is entitled for compensation under the following heads:
Sl. Particulars Amount
No. in (Rs.)
1. Pain and Sufferings 30,000/-
2. Medical Expenses 5,038/-
3. Loss of income during laid up 15,000/-
period
4. Loss of future income 1,15,200/-
5. Loss of amenities and 30,000/-
unhappiness
6. Attendant charges 3,000/-
7. Food & nourishment 5,000/-
8. Transportation 2,000/-
Total 2,05,238/-
Less: compensation awarded 1,15,550/-
by the Tribunal
Enhanced compensation 93,688/-
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NC: 2024:KHC:30211
MFA No. 36 of 2012
C/W MFA No. 126 of 2012
17. It is the just compensation which the
petitioner is entitled in the facts and circumstances of the case.
18. Hence, the appeal filed by the petitioner merits consideration and the appeal filed by the insurance company is devoid of merits, in the result, the following:
ORDER
(i) MFA.No.36/2012 filed by the insurance company is dismissed.
(ii) MFA.No.126/2012 filed by the petitioner is allowed.
(iii) The impugned judgment and award passed by the Tribunal is modified;
(iv) The petitioner would be entitled to enhanced compensation of Rs.93,688/-
with interest at the rate of 6% per annum from the date of petition till its realization;
(v) The Insurance Company is directed to deposit the compensation amount within
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NC: 2024:KHC:30211 MFA No. 36 of 2012 C/W MFA No. 126 of 2012 eight weeks from the date of receipt of certified copy of this judgment.
(vi) The statutory deposit made in MFA.No.36/2012 shall be transmitted to the Tribunal along with records forthwith.
SD/-
(T.G. SHIVASHANKARE GOWDA) JUDGE MKM List No.: 1 Sl No.: 2