Karnataka High Court
Basavaraj S/O Chanabasappa ... vs K. Kasim S/O Ibrahim on 13 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
M.F.A.NO.22494/2010 (MV)
BETWEEN:
BASAVARAJ S/O CHANABASAPPA
VALASANGAD
AGE: 52 YEARS, OCC: BUSINESS,
R/O. RANEBENNUR,DIST: HAVERI.
...APPELLANT.
(BY MISS.REBENA SHIVAPUR, ADVOCATE, FOR SHRI PATIL M H,
ADVOCATE.)
AND:
1. K. KASIM S/O IBRAHIM.
AGE: 45 YEARS, OCC: BUSINESS,
R/O. NETLAMUDHOOR PARROT HOUSE,
BANTWAL, DIST: DAKSHINA KANNADA.
2. THE DIVISIONAL MANAGER
UNITED INDIA ASSURANCE CO., LTD.,
L E A COMPLEX, NEAR CORPORATION,
DHARWAD.
...RESPONDENTS.
(BY SHRI PRAVEEN P TARIKAR, ADVOCATE, FOR R.1;
SHRI M.G.GADGOLI, ADVOCATE, FOR RESPONDENT NO.2.)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED: 12-06-2009 PASSED IN
MVC NO.126/1999 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.) &
ADDL. M.A.C.T., HAVERI, BY ENHANCING COMPENSATION, ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by claimant challenging judgment and
award dated 12.6.1999, passed by Prl. Senior Civil Judge
(Sr.Dn.) and Addl. MACT, Haveri, in MVC No.126/1999.
2. Heard Shri M.G.Gadgoli, learned counsel for
respondent no.2 insurer, perused the impugned judgment and
award. In an accident that occurred on 9.4.1999 when lorry
bearing registration no.CRQ-7806 met with an accident with a
parked lorry bearing registration no.KA-27/3166, claimant who
was travelling in lorry bearing registration no.CRQ-7806
sustained grievous injuries. Despite taking treatment in hospital,
he did not recover fully. Claiming compensation for the same,
he filed claim petition against owner and insurer under Section
166 of Motor Vehicles Act, 1988.
3. Despite service, owner of vehicle did not contest the
matter, he was placed exparte. Respondent no.2 insurer
opposed claim petition denying negligence on the part of its
driver. It also denied liability to pay compensation to claimant.
4. Based on pleadings, tribunal framed issues.
Claimant was examined as PW.1 and Dr.Umakant as PW.2.
Exhibits P.1 to P.615 were marked. On behalf of respondents,
one official was examined as RW.1. Exhibit R.1 insurance policy
was marked.
5. On consideration, tribunal answered all other issues
except on liability in favour of claimant. It assessed
compensation of Rs.1,24,400/- and held owner liable to pay the
same. Tribunal absolved liability of insurer on the ground that
claimant was a gratuitous passenger at the time of accident. As
the vehicle in question was a goods vehicle, risk of gratuitous
passengers would not be covered and therefore dismissed claim
petition against insurer. Challenging the same, claimant is in
appeal.
6. In the appeal it is contended that claimant sustained
fracture of right ankle, right tibia and fibula and also to his ribs,
but tribunal awarded meager compensation by assessing
functional disability of only 10% which was meager and also
contended that tribunal was not justified in dismissing claim
petition against insurer as claimant was a third party.
7. On the other hand Shri M.G.Gadgoli, learned counsel
for respondent no.2 insurer sought to support the award and
opposed the appeal. It was submitted that document produced
by claimant himself, namely, complaint Ex.P.2 clearly
established that claimant had boarded goods vehicle as a
passenger. Though it was claimed that he was travelling in
goods vehicle as owner of goods, no evidence was led to
establish the same. Therefore tribunal rightly discharged liability
of insurer.
8. From above submission, occurrence of accident
involving insured vehicle and claimant sustaining injuries therein
is not in dispute. Issuance of insurance policy and its validity as
on the date of accident is also not in dispute. On consideration
of medical evidence on record, tribunal held that claimant had
sustained functional disability of 10%, determined monthly
income of claimant at Rs.3,000/- and applying multiplier of 14,
awarded compensation of Rs.50,400/- towards loss of future
earning capacity.
9. Claimant sustained fracture of left fibula and left
ulna. Tribunal has awarded a sum of Rs.25,000/- towards pain
and suffering. As claimant has sustained two fractures, award
towards pain and suffering would be inadequate. It would be
appropriate to award a sum of Rs.35,000/- instead of
Rs.25,000/- towards pain and suffering.
10. Tribunal has awarded Rs.10,000/- towards loss of
amenities which is proper. It has also awarded a sum of
Rs.30,000/- towards medical expenses, towards full
reimbursement of amount for which medical bills were
produced. Hence there is no scope for enhancement under this
head. Tribunal has awarded Rs.9,000/- towards loss of income
during the period of treatment. As normally fractures take about
2-2½ months to heal, award of same is also adequate. Hence
no enhancement would be called for. Claimant did not establish
his income. Tribunal has assessed it at Rs.3,000/- per month on
notional basis. As the accident occurred during the year 1999,
assessment of notional income would be adequate. Hence there
is no scope for enhancement towards loss of future earning also.
11. Insofar as liability, though claimant was a gratuitous
passenger, he would be a third party insofar as contract of
insurance is concerned. In view of judgment of Full Bench of this
Court in New India India Assurance Co. Ltd., Bijapur vs.
Yallavva w/o. Yamanappa Dharanakeri, reported in
2020 (2) AKR 484, even if insurer is able to establish any of
the defences available to it under Section 149 of the Act, insurer
would still be liable to pay compensation to claimant and
thereafter recover it from insured. Therefore tribunal would not
be justified in discharging liability of insurer. To the said extent
appeal deserves to be allowed.
12. At this stage, learned counsel for respondent insurer
submits that accident was of the year 1999 and there was delay
on the part of claimant to lead evidence. As insurer is held liable
to pay compensation, it should not be made liable to pay
interest for the period during which claimant was in default for
not leading evidence. The submission appears reasonable. It is
stated that claimant concluded recording of evidence on
3.12.2008. Therefore insurer would be liable to pay interest on
compensation only from the said date.
13. Hence, I pass the following:
ORDER
i) Appeal is allowed in part.
ii) Compensation awarded towards pain and
suffering is enhanced from Rs.25,000/- to
Rs.35,000/-. Except the same, compensation
awarded under other heads is confirmed.
iii) Insurer is held liable to pay compensation to
claimant with interest at 6% p.a. from
3.12.2008 till the date of deposit.
Sd/-
JUDGE
Mrk/-
