Shrinivas S/O Gaopalrao vs Shidramappa S/O Virappa, ...
2022 Latest Caselaw 10986 Kant

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                                                       MFA No. 21062 of 2010


                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 20TH DAY OF JULY, 2022

                                             BEFORE
                            THE HON'BLE MR JUSTICE P.KRISHNA BHAT
                   MISCELLANEOUS FIRST APPEAL NO. 21062 OF 2010 (MV-SJ)
                   BETWEEN:

                   SHRINIVAS S/O GAOPALRAO CHABBI
                   AGE 51 YEARS, OCC:AGRIL. R/O BAGALKOT.
                                                                    ...APPELLANT
                   (BY SRI RAKESH S. HATTIKATAGI, ADVOCATE)

                   AND:

                   1.    SHIDRAMAPPA S/O VIRAPPA, KADLIMATTI
                         AGE MAJOR, OCC:OWNER OF LORRY BEARING
                         NO.KA 29/6976, R/O KAMATAGI,
                         TQ:HUNGAUND, DIST:BAGALKOT.

                   2.    HANAMAPPA S/O DUNDAPPA BASAKALLI
                         AGE MAJOR, OCC:DRIVER OF VEHICLE BEARING
                         NO.KA29/6976, R/O INGALAGI, TQ:HUNGUND
                         DIST:BAGALKOT.

                   3.    I.C.I.CI. LOMBARD
Digitally signed
by JAGADISH T            GENERAL INSURANCE CO. LTD.,
R
Location: HIGH           HUBLI.
COURT OF
KARNATAKA,
DHARWAD
                                                              ...RESPONDENTS
Date: 2022.07.21
10:42:12 +0530     (BY SRI P. N. HOSAMANE, ADVOCATE FOR R2,
                   SRI S. K. KAYAKAMATH, ADVOCATE FOR R3)
                        THIS APPEAL FILED UNDER SECTION 173 OF MOTOR
                   VEHICLES ACT, 1988, PRAYING THIS COURT TO ADMIT THE
                   APPEAL AND CALL FOR THE RECORDS IN M.V.C.NO.388/2007 ON
                   THE FILE OF M.A.C.T. NO.II, BAGALKOT AND BE PLEASED TO
                   MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED
                   15.12.2009 AND ENHANCE THE AMOUNT OF COMPENSATION
                   ALONG WITH INTEREST AS CLAIMED BEFORE THE M.A.C.T. BY
                   ALLOWING THIS APPEAL WITH COSTS IN THE INTEREST OF
                   JUSTICE AND EQUITY.
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                                      MFA No. 21062 of 2010



     THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY.
THE COURT DELIVERED THE FOLLOWING.

                         JUDGMENT

This appeal is at the instance of the claimant, who is

seeking enhancement of compensation awarded under the

judgment and award dated 15.12.2009 in MVC

No.388/2007 by the learned MACT No.II, Bagalkot (for

short 'MACT').

2. Brief facts are that claimant was the owner of a

farmhouse for tethering cattle and also storing agricultural

equipments in the land bearing Sy.No.55/2 situated at

Chabbi village in Bagalkot Taluk. On 02.07.2006 at about

3 a.m., offending lorry bearing registration No.KA-29/6976

being driven by its driver in rash and negligent manner

came and dashed to the said farmhouse resulting in part

of the farmhouse collapsing and causing loss to the

claimant.

3. His claim petition was resisted by the owner

and the Insurance Company and the driver remained ex-

MFA No. 21062 of 2010

parte. Both the owner and the Insurance Company filed

their respective written statements denying material

averments in the claim petition.

4. During trial, claimant examined himself as PW1

and he examined one Surveyor and Chartered Engineer

and Government Registered Valuer for the Income Tax as

PW2. EX.P.1 to P24 were marked. Insurance Company

examined the owner of the offending lorry as RW1. No

exhibits were marked for the respondent.

5. Learned MACT after hearing leaned counsel on

both sides and perusing the records allowed claim petition

in part, awarding compensation of Rs.20,000/- with

interest thereon at 6% per annum from the date of

petition till the date of payment and the Insurance

Company was held liable to pay compensation.

6. In this appeal learned counsel appearing for the

claimant submitted that on account of rash and negligent

act of the driver of the insured vehicle, farmhouse of the

claimant was damaged to a significant extent causing him

MFA No. 21062 of 2010

loss to the extent of rupees more than three lakhs. He

submitted that the claimant has examined himself as PW1

and he examined a Chartered Engineer as PW2 to prove

the extent of loss caused to him to the tune of

Rs.3,19,000/- and in respect of the same the learned

MACT has awarded only Rs.20,000/- and therefore, the

compensation awarded is required to be enhanced.

7. Sri S. K. Kayakmath, learned counsel appearing

for the Insurance Company, per contra, submits that the

learned Tribunal, after consideration of the entire evidence

placed before it, has awarded a just compensation of

Rs.20,000/- and absolutely no material available on record

and therefore appeal is required to be dismissed.

8. The Insurance Company or the owner of

Insured vehicle have not filed any appeal against the

impugned judgment and award and therefore the factum

of occurrence of the accident due to negligence of the

driver of he offending truck resulting in damages to the

farmhouse of the claimant is not in dispute.

MFA No. 21062 of 2010

9. It is the case of the claimant that he suffered

loss to the extent of Rs.3,19,000/- on account of the

collapse of the part of the farmhouse and therefore, he is

entitled to the compensation in a sum of Rs.3,19,000/-

with interest thereon. In this behalf he examined himself

as PW1 and he also examined PW2-Registered Chartered

Engineer and valuer for Income Tax. The learned Tribunal,

upon consideration of evidence of PW1 and PW2 and

perusing the documents produced viz., Ex.P.14-Blue Print

of Building, Ex.P21-estimate letter, Ex.P22-estimate and

Ex.P24-CD and four photos, has awarded compensation of

Rs.20,000/- with interest at the rate of 6% per annum. It

was not convinced by the evidence of PW2 regarding the

extent of damage caused to the farmhouse and the extent

of financial loss suffered by the claimant to restore the

farmhouse to the same condition in which it was before

the accident. Learned MACT particularly referred to the

fact that PW2 has not produced any Survey Report. It is

relevant to notice that PW2 had not inspected the building

MFA No. 21062 of 2010

in the presence of representative of Insurance Company

and therefore the survey report regarding the extent of

damage caused to the building and his evidence regarding

damages suffered by the claimant lacks credibility.

However, it is required to be noticed that Ex.P24 is 4

photographs of the damaged building and the CD is also

produced. When this material was produced before the

learned Tribunal, PW.2 was subjected to cross-

examination.

10. It is apparent that the farmhouse was

constructed by using equal extent of mud and bricks. The

structure appears to be rectangular in shape and one

portion of the wall has been completely damaged to the

entire length. Taking reasonable view of the matter, it is

apparent that the compensation award at Rs.20,000/- for

restoring the said wall and also for restoring roof, which

has also collapsed is on the lower side and another

Rs.25,000/- is required to be awarded, which would be a

just compensation. Accordingly, I award Rs.25,000/- to

MFA No. 21062 of 2010

the appellant-claimant in addition to Rs.20,000/-, which

has already been awarded by the learned Tribunal.

11. The enhanced compensation shall carry interest

at the rate of 6% per annum from the date of petition till

the date of payment. Accordingly, the appeal is allowed in

part.

The enhanced compensation along with interest shall

be deposited by the respondent-Insurance Company within

six weeks from the date of receipt of certified copy of this

judgment.

Registry to transmit the records to the jurisdictional

Tribunal forthwith.

In view of disposal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are disposed of accordingly.

Sd/-

JUDGE SSP