Karnataka High Court
The Oriental Insurance Co., Ltd vs Sri Shrishail Babu Sanadi on 15 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 15 T H DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No.20862/2012(MV)
BETWEEN:
THE ORI ENTAL INS URANCE COM PANY LIMITED,
BELGA UM, REPRES ENTED BY
THE AUTHORIZED SIGNATORY,
THE CHI EF REGIONAL MANAGER,
ORIENTAL INS URA NCE COMPANY LIMITED,
REGIONAL OFFICE,
SUMANGALA COMPLEX, HUBLI .
... APPELLANT
(BY SRI.M.K .SOUD AGAR, ADVOCATE)
AND
1. SRI.SHRISHAIL BA BU SANADI ,
AGE: 40 YEARS , OCC: A GRICULTURE,
R/O BA LLIGERI, T AL: ATHANI,
DIST: BELGAUM.
2. SHRI.IMTIAJE @ N IMITEJE YUSUF @ NAISUB MULLA,
AGE: 45 YEARS , OCC: DRIVER,
R/O: JATH, TA L: D RIVER,
DIST: SANGLI .
... RES PONDENTS
(BY SRI.H.M.DHA RIGAND, ADV OCATE FOR R1)
(APPEA L STAND DI SMISSED AGAINST R2)
THIS MISC.FIRST APPEAL IS FI LED UNDER S ECT ION
173(1) OF MOTOR VEHICLES ACT , 1988, PRAYING TO CALL FOR
RECORDS IN MVC NO.2939/ 2007, ON THE FILE OF THE FAST
TRACK COURT, AT HANI AND SET A SIDE THE J UDGM ENT AND
AWARD DATED 30.08.2011 BY ALLOWING THIS APPEA L WITH
COST AND ETC.
2
THIS APPEAL COMI NG ON F OR ADMISSION THIS DAY, T HE
COURT , D ELIVERED THE F OLLOWING:
JUDGMENT
Challenging the judgment and award dated
30.08.2011 passed by Fast Track at Athani (for short, 'the
Tribunal') in MVC No.2939/2007, this appeal is filed by
the claimant seeking for enhancement of compensation.
2. Though this appeal is listed for admission, with
the consent of learned counsel for parties, it is taken up
for final disposal.
3. Brief facts giving rise to this appeal are that in
an accident that occurred on 07.06.2007 Srishila while
traveling in Mahindra Jeep bearing registration No.MH-
11/B-1741 from Athani to Balligeri village sustained
grievous injury when a goods tempo bearing registration
No.MH-10/K-8702 being driven by its driver in rash and
negligent manner. Immediately, after accident, claimant
was admitted to Government Hospital and other private
hospital for treatment. Despite treatment, he did not
recover fully. Claiming compensation for same, he filed
claim petition against owner and insurer of goods tempo
under Section 166 of Motor Vehicles Act.
4. On contest, where insurer opposed claim
petition on all counts and also on the ground of
negligence by driver of Mahindra jeep. Tribunal held that
accident had occurred due to rash and negligent driving of
goods tempo by its driver. Based on medical evidence,
Tribunal held that claimant was aged 35 years, occupation
as agriculturist. Referring to exhibits P.30 and P.31-
record of rights of land held by him it considered monthly
income at Rs.5,000/-, assessed functional disability at 6%
and applying multiplier of 16 awarded total compensation
of Rs.2,17,600/- with interest at 6% and held
appellant/insurer liable to pay same. Challenging award,
insurer is in appeal.
5. Sri.M.K.Soudagar, learned counsel for appellant
submitted that award passed by Tribunal was excessive
and exorbitant and contrary to evidence on record. It was
submitted that though accident occurred during the year
2007, Tribunal considered monthly income at Rs.5,000/-
which was excessive. It was submitted that award under
head loss of earning during laid up period for four months
was also excessive. Insofar as liability, learned counsel
fairly submitted that though a ground regarding validity of
driving licence of insured vehicle was urged, it was fairly
submitted that said ground would not survive in view of
pronouncement of decision by Hon'ble Supreme Court in
case of Mukund Devangan Vs. Oriental Insurance Company
Limited reported in (2017) 14 SCC 663.
6. On other hand, Sri.H.M.Darigond, learned
counsel for claimant submitted that claimant was an
agriculturist. To substantiate same, he has produced
record of rights as per exhibits P.30 and P.31. Said
record of rights reveal that total land holding of claimant
as 8 acres 35 guntas. Taking note of crops grown and
extent of land held, Tribunal considered monthly income
at Rs.5,000/-. It was further submitted that though, PW.2
Dr.Anand P. Kulkarni assessed limb disability of 23%,
taking note of fractures sustained by claimant namely
fracture of right tibia, fibula and femur, Tribunal assessed
functional disability of 6% which was inadequate and any
reduction in insurers appeal would be upset by same. On
said ground, learned counsel sought for dismissal of
appeal.
7. From above submissions, occurrence of accident
due to rash and negligent driving of goods tempo by its
driver and claimant sustaining injuries therein is not in
dispute. Issuance of policy and validity as on date of
accident was also not in dispute. Though, insurer
challenged award on ground that driver of insured vehicle
was not having valid licence namely 'transport'
endorsement, challenge has been fairly conceded.
Therefore, liability of insurer to pay compensation is also
not in dispute. Only point that arise for consideration in
this appeal is
"Whether the assessment of
compensation by Tribunal calls fo r
modification as so ught for?".
8. Exhibit P.30 and P.31- record of rights produced
by claimant indicate that claimant is holding total land of
8 acres 35 guntas of agricultural land. Crops grown
indicates that he was growing maize as submitted by
learned counsel for appellant/insurer, notional income for
ordinary coolie for the year 2007 is Rs.4,000/- but as
claimant was holding agricultural lands established by
production of record of rights, Tribunal would be justified
in assessing notional income at Rs.5,000/- which is
slightly higher. Insofar as loss of income during laid up
period indeed normal fractures take out 2 to 2 ½ months
to heal but, claimant in this appeal has taken inpatient
treatment of 26 days. Therefore, consideration of about 3
months apart from inpatient period would not be
excessive or unjustified especially in the light of fractures
sustained. Therefore, there are no good grounds or
sufficient grounds made out for interference.
9. In the result, I pass following:
ORDER
Appeal is dismissed.
Amount in deposit is ordered to be
transmitted to Tribunal for payment.
Sd/-
JUDGE
H MB
