The Manager vs Shashikumar
2021 Latest Caselaw 5164 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 1 S T DAY OF DECEMBER, 2021

                         BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


               M.F.A.No.23049/2013 (MV)

BETWEEN:

THE MANAGER,
UNITED INDIA INS URANCE CO.LTD.,
REP.BY ITS DIVISI ONAL MANAGER
RAMDEV GALLI, BELAGAVI,
NOW REP.BY S .M.DHARMANANDRAO
SR.DIVISIONAL MANAGER,
UNITED INDIA INS URANCE CO.LTD.,
DIVISIONAL OFFICE, MARUTI GA LLI ,
BELAGAVI .
                                          ... APPELLANT
(BY SRI. RAVINDRA R.MANE, ADV OCATE)

AND

1.    SHRI SHASHIKUM AR,
      S/O SHETTEPPA S HIRAHATTI,
      AGE: 23 YEARS ,
      OCC: PRIVATE WORK (MASON),
      R/O INDIRA NA GA R HATTARAGI ,
      TQ: HUKK ERI, DIS T: BELA GAVI.

2.   SMT.PUSHPALATA W/O MURLID HAR T ADE,
     AGE: MAJOR, OCC: BUSINESS AND
     HOUSEHOLD W ORK, R/ O MURGOD ,
     TQ: KAGAL, DISTRICT: KOLHAPUR.
                                     ... RES PONDENTS
(BY SRI. MAHANTESH R.PATIL, ADVOCATE F OR
 SRI S .S.PATIL, A DVOCATE FOR C/R1;
 NOTICE TO R2 SERVED)
                                  2




     THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1) OF MOTOR VEHICLES A CT, 1988, AGAINST THE
JUDGMENT AND A WARD DATED 15.04.2013 PA SSED IN MVC
NO.513/ 2011 ON THE FILE OF THE PRESIDING OFFI CER,
FAST   TRACK   COURT-I,  BELA GA VI, AWARDING   THE
COMPENSATION OF RS.2,62,000/- WITH INTEREST A T THE
RATE OF 8% P.A . FROM THE DATE OF PETITION TILL ITS
REALIZATION .

     THIS APPEAL COMING ON FOR ADMI SSION THIS DAY,
THE COURT , D ELIV ERED THE F OLLOW ING:

                             JUDGMENT

Challenging the judgment and award dated

15.04.2013 passed by Presiding Officer, Fast Track

Court-I, Belagavi (for short, 'the Tribunal') in MVC

No.513/2011, this appeal is filed by the insurer.

2. Though this appeal is listed for admission,

with consent of learned counsel for parties, it is taken

up for final disposal.

3. For the sake of convenience, parties will

hereinafter be referred to as per their respective ranks

before the tribunal.

4. It was submitted by Sri Ravindra R.Mane,

learned counsel for appellant-insurer that in an

accident that occurred on 13.06.2010, claimant

sustained injuries while he was traveling in goods lorry

bearing registration No.MH-09/ L-0650 when it met

with an accident. Despite taking treatment, claimant

sustained physical disability. Claiming compensation

for the same, he filed claim petition under Section 166

of Motor Vehicles Act, 1988 (for short, 'M.V.Act')

against owner and insurer of lorry.

5. Claim petition was contested by respondents

on all counts. Based on pleadings, tribunal framed

issues. Thereafter claimant examined himself as PW1

and a doctor as PW2. Exhibits P1 to P14 were marked.

On behalf of respondents, an official of insurer was

examined as RW1. Exhibits R1 and R2 were marked.

6. On consideration, tribunal answered the

issues in favour of claimant. It held that accident

occurred due to rash and negligent driving of lorry by

its driver and that vehicle was duly insured with

appellant-insurer and that claimant had sustained

disability. By taking monthly income of Rs.6,000/-,

disability at 10% and applying multiplier of '18'

corresponding to his age, tribunal awarded

Rs.2,62,000/-. Assailing award, insurer is in appeal.

7. It was submitted that admittedly vehicle in

question was a goods vehicle. As per pleadings in claim

petition, claimant was traveling in a goods vehicle.

Ex.P2, complaint given by one of the inmates of vehicle

also stated that claimant was traveling as gratuitous

passenger. As carrying gratuitous passengers in a

goods vehicle is prohibited, there was violation of

policy conditions. Learned counsel further submitted

that award of rate of interest at 8% by tribunal was

also unjustified.

8. On the other hand, Sri S.S.Patil, learned

counsel for respondent-claimant supported the award.

It was submitted that insofar as claimants, as they

were third parties, insurer cannot escape liability in

view of full bench decision of this Court in New India

Assurance Company Limited V/s Yallavva and

others reported in 2020(2) KCCR 1405 (FB) case.

Learned counsel further submitted that tribunal had

assessed meager compensation and therefore

considering same rate of interest awarded by tribunal

would be justified.

9. Owner of vehicle respondent no.2 is served

unrepresented.

10. From above submission, occurrence of

accident, claimant sustaining physical disability and his

entitlement for compensation are not in dispute.

Issuance of insurance policy and its validity on date of

accident is not in dispute. Challenge by insurer is on

limited ground of liability and rate of interest.

Therefore, points that arise for consideration in this

appeal are:

1. Whether tribunal was justified in fastening liability upon insurer?

2. Whether quantum of compensation and rate of interest awarded are justified?

11. Point no.1: Admittedly claimant is passenger

in a goods vehicle. As per complaint averments Ex.P3,

claimant had boarded the vehicle to travel to Hattargi,

he is a gratuitous passenger. However as claimant

would be a third party insofar as contract of insurance,

in view of full bench decision of this Court in

Yallavva's case (supra), insurer would be liable to

pay compensation. However, insurer would be entitled

to recover the same from insured after paying it to

claimant. Therefore, point no.1 for consideration is

answered partly in affirmative.

12. Point no.2: Claimant has sustained several

grievous injuries. Wound certificate and disability

certificate show following injuries:

1) Bone deep laceration 8 x 3 cms (+) other parietal region 'W' shaped.

2) Contusion 7 x 4 cms (+) over chest.

3) Contusion 4 x 3 cms (+) over outer aspect of Rt thigh.

4) # (Lt) Latieral aspect of body C2 and (Lt) transule process of C2 and C3.

     5)    Linear # of 1 s t rib (ht).

     6)    Fracture of medial 1/3 of femur (RT).


     13.    PW2-doctor      who       examined      claimant       and

assessed disability deposed about same. During his

examination of claimant, he found following:

1) Standing longtime climbing up coming down on sloppy surface on affected limb painful.

• Walking for long distance painful.

• Kneeling down, squatting, sitting crossed leg painful.

• Restriction of joint movement of the affected limb as examined above.

X-ray taken on 18.11.2011 at Dr.A.C.Shetti Belgaum show:-

• Healed malunited fracture or right femur at its upper 3 r d is seen with IM Nail and screws in situ.

FUNCTIONAL DISABILITY OBSERVED IS:-

1) Restriction of right knee and hip movements.

• Muscle wasting of right thigh present.

• Shortening of right lower limb present.

CONCLUSION:-

Considering the clinical and radiological findings and after going through ALMICO the patient in my opinion has got permanent physical disability amounting to 35% to right lower limb."

14. Based on medical evidence, tribunal

assessed loss of earning capacity at 10%. Considering

nature of injuries sustained, occupation of claimant,

assessment of compensation under different heads by

tribunal is by reference to evidence on record and

cannot be said to be either excessive or unjustified.

Therefore, does not warrant interference. However, in

view of recent decision of this Court in the case of

Shriram General Insurance Company Limited,

Rajasthan V/s Smt.Laxmi and others reported in

(2018) 8 AKR 808, the interest awardable in a claim

petition arising in Motor Vehicles Act cannot be more

than 6%. Therefore, rate of interest awarded by

tribunal is reduced to 6%. Point no.2 is answered

partly in the affirmative as above.

15. In the result, I pass the following:

ORDER

i. Appeal is allowed.

ii. Appellant-insurer is held liable to pay compensation of Rs.2,62,000/- to claimant with interest at the rate of 6% per annum from date of petition till realization.

iii. Appellant shall deposit the compensation with interest within six weeks from the date of receipt of certified copy of this order.

iv. Appellant would be entitled to recover the same from insurer after paying it to claimant without recourse to separate proceedings.

v. Amount in deposit is ordered to be transmitted to the Tribunal.

Sd/-

JUDGE CLK