Dattu Parshram Desai vs Gajanan Parshram Desai
2022 Latest Caselaw 1838 Kant

                                         MFA 24276/2012

                          -1-


           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 7TH DAY OF FEBRUARY 2022

                        BEFORE

   THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

             M.F.A.No.24276/2012 (MV)

BETWEEN:

SHRI DATTU PARSHRAM DESAI
AGE: 39, OCC: COOLIE
R/O GODGERI, TQ: KHANAPUR
DIST: BELGAUM.                       ..APPELLANT

(By SRI SANJAY S.KATAGERI, ADV.)

AND:

  1. SHRI GAJANAN PARSHRAM DESAI
     AGE: MAJOR
     OCC: OWNER CUM DRIVER
     R/O KSRP ROAD, KHANAPUR
     DIST: BELGAUM.

  2. THE MANAGER
     UNITED INDIA INSURANCE CO.LTD.
     MICRO OFFICE
     AT 340, DNYANESHWAR CHOWK
     CHIRMURKAR GALLI, KHANAPUR
     DISTRICT: BELGAUM.         ..RESPONDENTS

(By SRI.S.S.KOLIWAD, Adv. FOR R-2;
 R-1 SERVED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 07.06.2012 PASSED IN
MVC No.2093/2009 ON THE FILE OF THE MEMBER, MACT.,
KHANAPUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION    AND   SEEKING    ENHANCEMENT     OF
COMPENSATION.
                                             MFA 24276/2012

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     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY
THE COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

The claimant has preferred this appeal challenging

the judgment and award dated 7th June 2012 passed in

M.V.C.No.2093/2009 by the M.A.C.T., Khanapur (for

brevity, 'the Tribunal').

2. Though the appeal is listed for admission, with

the consent of learned counsel appearing on both sides,

the same is taken up for final disposal.

3. For the sake of convenience, the parties to this

appeal are referred to by their rankings assigned to

them before the Tribunal.

4. Brief facts of the case as revealed from the

records are:

On 05.07.2009, the claimant was traveling in a

goods Tempo bearing registration No.KA-22/A-4949

owned by the first respondent and insured by the

second respondent. At about 10.45 a.m., when the said

vehicle reached near Goa Cross on NH-4A, the driver of MFA 24276/2012

the offending vehicle, who was driving the said vehicle

in a rash and negligent manner, lost control of the same

and as a result, the vehicle turned turtle and fell into a

ditch. In the said accident, the claimant had suffered

grievous injuries and he was treated in a private

hospital. It is under these circumstances, a claim

petition under Section 166 of the Motor Vehicles Act,

1988, was filed by the claimant claiming compensation

of ` 8,00,000/- with interest from the owner and insurer

of the offending vehicle.

5. The Tribunal partly allowed the claim petition

and globally awarded a compensation of `10,000/- with

interest @ 6% per annum from 06.10.2009 till

realization. On the ground that the claimant was a

gratuitous passenger in the vehicle, the second

respondent-insurer was exonerated of its liability. Being

aggrieved by the said judgment and award, the claimant

is before this court.

6. Learned counsel appearing for the claimant

submits that the Tribunal has erred in exonerating the MFA 24276/2012

liability of the insurer of the offending vehicle. He

submits that in view of the judgment of the Hon'ble

Supreme Court in the case of Manager, National

Insurance Co.Ltd. -vs- Saju P.Paul and Another1

even if it was found that the claimant was a gratuitous

passenger, the Insurance Company ought to have been

directed to pay and recover the compensation amount.

He submits that claimant was a coolie traveling in the

offending vehicle and therefore, he cannot be

considered as a gratuitous passenger. He further

submits that the Tribunal has erred in awarding global

compensation of `10,000/- having regard to the

material evidence available on record. He submits that

the medical bills and also the wound certificate,

disability certificate, etc., have been completely ignored

by the Tribunal and accordingly he prays to grant

compensation as claimed by him in the claim petition

and allow the appeal.

7. Per contra, learned counsel appearing for the

respondent-insurer has argued in support of the

2013 ACJ 554 MFA 24276/2012

impugned judgment and award and submits that having

regard to the material on record, it is very clear that the

claimant was a gratuitous passenger in the offending

vehicle. He submits that the claimant is none other

than the brother of the owner of the offending vehicle

and therefore, he cannot be considered as a coolie,

more so, when the first respondent has not admitted

the same. He submits that the claimant has failed to

prove the injuries and the disability as he has not

examined the Doctor, who has treated him and

therefore, he prays to dismiss the appeal.

8. I have carefully considered the rival arguments

advanced on both sides and also perused the material

available on record.

9. It is not in dispute that the claimant had

suffered injuries in the accident that had taken place on

05.07.2009 in which admittedly the offending goods

Tempo bearing registration No.KA-22/A-4949 was

involved. The said vehicle is owned by the first

respondent and insured by the second respondent and it MFA 24276/2012

is not in dispute that the insurance policy issued by the

second respondent was valid as on the date of the

accident. Though the claimant has contended before

the Tribunal as well as before this court that he was a

coolie traveling in a goods Tempo, he has failed to prove

the same by producing necessary documents. It is a

settled principle of law that relationship between the

parties will not come in the way of their respective

employment and there is no bar as such that a close

relative should not be employed as a coolie. However,

in the case on hand, though the claimant, who is the

brother of the first respondent/owner of the vehicle, has

contended that he was traveling in the offending vehicle

as a coolie, the first respondent has not admitted the

same and on the other hand, he has disputed the same.

Even the Police records do not show hat the claimant

was working as a coolie with the first respondent.

Under the circumstances, the Tribunal has rightly

refused to consider the case of the claimant that he was

a coolie traveling in a goods Tempo along with his

brother. However, having regard to the judgment of MFA 24276/2012

the Hon'ble Supreme Court in the case of Saju P.Paul

(supra), even if it is held that the claimant was a

gratuitous passenger traveling in the offending goods

vehicle, the second respondent-insurer of the offending

vehicle cannot be completely exonerated from its

liability. The Hon'ble Supreme Court in the said case

has held that in such a case, the Insurance Company is

required to be saddled with the liability to pay the

compensation with liberty to recover the same from the

owner of the offending vehicle. The said judgment

would be squarely applicable to the facts and

circumstances of the present case and therefore, even

in this case, it is held that the second respondent, who

is the insurer of the offending vehicle, is required to pay

the compensation amount to the claimant and the

insurer is at liberty to recover the same from the owner

of the offending vehicle.

10. The material on record would go to show that

the claimant had suffered comminuted fracture of left

tibia and he was admitted in a private hospital on the MFA 24276/2012

very same date of accident. The claimant has produced

the medical bills and the x-ray, but he has not produced

the case sheet and the discharge summary from the

hospital where he was treated for his injuries. The

disability certificate is issued by PW-2 Doctor who,

admittedly had not treated the injured claimant.

11. Having regard to the injuries suffered by the

claimant, he is entitled for a compensation of `25,000/-

towards pain and suffering. The medical bills produced

by the claimant in all amounts to `65,699/- after

excluding certain duplicate bills. Therefore, under the

head of 'medical expenses', the claimant is entitled for a

compensation of `66,000/-. Towards incidental

expenses, the claimant is entitled for another sum of

`7,500/- and towards loss of income during the laid-up

period, the claimant is entitled for a compensation of

`10,000/-. Towards loss of amenities, the claimant is

entitled for a compensation of `25,000/-. Though the

Doctor-PW2 has assessed that the disability to the

particular limb was at 30%, it would be difficult to rely MFA 24276/2012

upon the evidence of PW-2 having regard to the fact

that the claimant had suffered a single fracture and

there is no material on record to show the nature of

treatment undergone by him to the said injury. There is

no material on record to show the number of days for

which the claimant was admitted in the hospital.

However, having regard to the nature of injuries and

considering the fact that the claimant is a coolie, the

disability to the whole body is taken at 5%. The

notional income of the claimant having regard to the

year of accident is considered at `5,000/- per month.

Having regard to the age of the claimant, the applicable

multiplier would be '15' and in the said event, the

claimant would be entitled for a sum of `45,000/-

towards loss of future income due to disability.

Therefore, in all, the claimant would entitled for a sum

of `1,78,500/- as against `10,000/- awarded by the

Tribunal. The enhanced amount of compensation shall

carry interest @ 6% per annum from the date of

petition till the date of realization.

MFA 24276/2012

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12. Since the insurer of the offending vehicle is

held liable to pay the compensation and recover the

same from the owner, the second respondent - insurer

is directed to deposit the entire compensation amount

with interest before the Tribunal within a period of six

weeks from the date of receipt of certified copy of this

order.

13. Out of the compensation amount, 50% of the

same is directed to be released in favour of the claimant

after proper identification and the remaining 50% shall

be invested in Fixed Deposit in a nationalized Bank for a

period of three years.

The Miscellaneous first appeal is partly allowed.

The judgment and award dated 7th June 2012 passed in

M.V.C.No.2093/2009 by the M.A.C.T., Khanapur, is

accordingly modified.

Sd/-

JUDGE

KNM/-