Karnataka High Court
Irappa S/O. Patrappa Yaragatti vs Sangamesh S/O. Ayappa Shetty on 28 July, 2022
Bench: H.P.Sandesh
-1-
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 28TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 25593 OF 2010
(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 25370 OF 2010
IN MFA NO.25593/2010
BETWEEN:
1. THE NATIONAL INSURANCE COMPANY LTD.
APMC YARD SOUNDATTI BRANCH,SOUNDATTI, TQ:
SOUNDATTI, DIST: BELGAUMNOW REP: BY ITS
ADMINISTRATIVE OFFICER,A.P. KULKARNI, NATIONAL
INSURANCE CO. LTD. DIVISIONAL OFFICE, RAMDEV
GALLI BELGAUM
...APPELLANT
(BY SMT. PREETI SHASHANK, ADVOCATE)
AND:
1. IRAPPA S/O PATRAPPA YARAGATTI
AGE: 29 YEARS, OCC: COOLIE,R/O YARAGATTI TQ:
BAILHONGAL, DIST: BELGAUM
2. SANGAMESH AYYAPPA SHETTY
AGE: MAJOR, OCC: BUSINESS,
-2-
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
R/O KADAKOL,TQ: RAMADURG, DIST: BELGAUM
...RESPONDENTS
(BY SRI. HANAMANT R LATUR FOR R1, ADVOCATE,
R2 NOTICE SERVED)
THIS APPEAL IS FILED U/SEC.173(1) OF THE MOTOR VEHICLE
ACT 1988, AGAINST THE JUDGMENT AND AWARD DTD:07-07-2010
PASSED IN MVC NO.2970/2007 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MEMBER, ADDL. MACT, BAILHONGAL, AWARDING THE
COMPENSATION OF RS.9,15,000/- WITH INTEREST AT THE RATE
FOF 6% P.A. SHALL BE DEPOSITED WITHIN THREE MONTHS FROM
THE DATE OF ORDER.
IN MFA NO.25370/2010
BETWEEN
SRI.IRAPPA S/O. PATRAPPA YARAGATTI,
AGE: 29 YEARS, OCC: COOLIE, NOW NIL,
R/O: YARAGATTI, TQ: BAILHONGAL,DIST: BELGAUM.
...APPELLANT
(BY SRI. HANAMANT R LATUR, ADVOCATE)
AND
1. SANGAMESH S/O. AYAPPA SHETTY,
AGE: 60 YEARS, OCC: BUSINESS,
R/O: KADAKOL, TQ: RAMDURG, DIST: BELGAUM.
2. THE NATIONAL INSURANCE CO., LTD.,
A.P.M.C. YARD, SAUNDATTI BRANCH,
SAUNDATTI, TQ: SAUNDATTI,DIST: BELGAUM.
...RESPONDENTS
(BY SRI. SANTOSH MALAGOUDAR, ADVOCAET FOR R1,
SMT.PREETI SHASHANK, ADVOCATE FOR R2)
-3-
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
THIS APPEAL IS FILED U/SEC.173(1) OF M.V. ACT, AGAINST
THE JUDGMENT AND AWARD DATED:07.07.2010, PASSED IN M.V.C.
NO.2970/2007, ON THE FILE OF THE SENIOR CIVIL JUDGE AND
ADDL. M.A.C.T. BAILHONGAL, AT BAILHONGAL, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
2. Heard learned counsel for both the parties.
3. Factual matrix of the case of the claimants
before the Tribunal is that the claimant was working as
loader in lorry bearing No.KA-24/-3928 and that on
28.05.2007 at 8.30 p.m. he was standing on the katte of
the godown in front of M.G.Bank Bajar area Katakol village
village, Ramdurg taluk and at that time driver of the truck
bearing No.KA-24/3928 drove the same in reverse manner
and dashed against the claimant. As a result, he sustained
injury to his leg and case has been registered and charge
sheet has been filed. It is the contention of the claimant
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
before the Tribunal that he was earning Rs.5,000/- p.m.
and also spent Rs.75,000/- towards medical expenses and
as a result of the accidental injuries his leg was amputed
and he has suffered 100% disability and hence, claimed
compensation.
4. Insurance company appeared before the
Tribunal and filed written statement disputing the
accident, date, occupation, income and nature of injuries.
The claimant himself has been examined as PW.1 before
the Tribunal and also examined doctor as PW.2 and got
marked documents as Exs.P.1 to P.54. On the other hand,
insurance company examined one witness as RW.1 and
got marked documents as Exs.R.1 to R.6.
5. The Tribunal after considering both the oral and
documentary evidence on record, awarded compensation
of Rs.9,15,000/- with 6% interest.
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
6. Being aggrieved by the impugned judgment and
award, the insurance company has filed MFA
No.25593/2010. The claimant being aggrieved by the
compensation awarded has filed MFA No.25370/2010
seeking enhancement of compensation.
7. Learned counsel for the appellant-insurance
company vehemently contends that the Tribunal failed to
take note of Ex.R.6 policy and no additional premium has
been paid to cover the risk of employees and as such
liability of the insurance company is limited and the same
ought to have been restricted as per the provisions of
Workmen's Compensation Act as held by the Hon'ble
Supreme court in National Insurance Co. Ltd., Vs.
Prembai Patel reported in LAWS (SC) 2005 459.
8. The counsel further contends that the Tribunal
committed an error in taking disability at 75% and
admittedly, amputation was made below the knee and
hence disability considered by the Tribunal is on higher
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
side. He also submits that the compensation awarded on
other heads is also on higher side and hence it requires
interference.
9. The claimant has also filed an appeal claiming
enhancement of compensation.
10. Learned counsel for the claimant vehemently
contends that the income taken by the Tribunal at
Rs.3,500/- for the accident of the year 2007 is meager
and it ought to have taken Rs.5,000/- though no
documents are produced to prove the income. The
Tribunal has awarded only Rs.20,000/- towards
conveyance charges, attendant charges and food and
nourishment. The Tribunal also committed an error in
awarding only Rs.84,000/- towards loss of income during
treatment period and only Rs.51,400/- has been awarded
towards medical expenses. He has purchased artificial limb
which costs more than Rs.1,00,000/- and no
compensation has been awarded for the same.
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
Rs.1,00,000/- awarded for loss of amenities is very
meager and ought to have taken 100% disability and
hence it requires interference.
11. In view of the rival contentions of the parties,
the following points would arise for consideration:
i. Whether the Tribunal has committed an error
in awarding exorbitant compensation as
contended by the insurance company and it
ought to have been awarded the
compensation as per the provisions of
Workmen's Compensation Act or as per the
Motor Vehicles Act?
ii. Whether the Tribunal has committed an error
in not awarding just and reasonable
compensation?
iii. What order?
12. Regarding Point No.1: Having heard the
learned counsel for the parties and on perusal of the
material on record, the very contention of the insurance
company is that no separate premium was collected in
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
respect of loader and liability of the insurance company is
very limited and the same ought to have been restricted
as per the provisions of Workmen's Compensation Act.
13. Learned counsel for the claimant in support of
his contention, relied on an unreported judgment of this
Court in MFA No.23360/2013 connected with MFA
Crob.No.100032/2015 dated 03.09.2019 and brought to
notice of this Court the discussion made in the judgement
in para No.2 wherein the division bench has observed that
policy issued was a package policy and liability of
insurance company is unlimited and it is open to the victim
either to seek compensation under the provisions of
Workmen's Compensation Act or under the provisions of
Motor Vehicles Act, which is beneficial to him.
14. In the case on hand, the policy is a package
policy and not an act policy. When such being the material
on record, the very contention of the insurance company
cannot be accepted. With regard to the quantum of
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
compensation is concerned, no doubt the Tribunal
assessed the disability at 75% and admittedly, the
amputation was below the knee. When such being the
case, considering the disability at 75% is on higher side as
contended by insurance company and the matter requires
to be reconsidered by assessing the material on record
with regard to taking of disability is concerned and the
same will be done while considering point No.2 while
awarding just and reasonable compensation.
15. Regarding point No.2: The very claim of the
claimant is that the Tribunal has committed an error in not
considering 100% disability to the whole body. No doubt,
the witness who has been examined as PW.2-doctor
assessed the disability to whole body at 100% but no
material is placed before the Court in a case of amputation
below the knee the disability at 100% has to be taken.
Learned counsel for the insurance company also brought
to notice of this Court that in case of amputation below
- 10 -
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
knee in term of Workmen's Compensation Act, the
disability at 50% should be considered and not 75% but
the fact that I have already pointed out that it is open to
the victim to claim compensation either under the
Workmen's Compensation Act or under the Motor Vehicles
Act, the fact that amputation was made below the knee is
not in dispute. When such being the case, it is settled law
that in a case of amputation below the knee the same has
to be considered as 60%.
16. Now coming to the aspect of income of the
claimant is concerned, he was earning an amount of
Rs.5,000/- per month, but no material is placed on record
to substantiate that he was earning Rs.5,000/-. The
Tribunal has taken Rs.3,500/- as income. As per the chart
prepared by the Karnataka State Legal Services Authority,
the notional income for the accidental claim of the year
2007 would be Rs.4,000/- and the same is to be applied in
this case.
- 11 -
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
17. While considering the compensation awarded
under the head pain and suffering, the Tribunal has
awarded Rs.1,20,000/- and the same is just and proper.
The claimant is aged about 28 years and he has to lead
rest of his life with disability at 60% and hence I do not
find any error committed by the Tribunal in awarding
Rs.1,20,000/- towards pain and suffering.
18. The Tribunal also awarded Rs.51,400/-
towards medical expenses, which does not require any
interference. Rs.4,100/- has been awarded on the head
nourishment and the same is just and proper.
19. The injured was in hospital for 28 days and the
accident is of the year 2007. Hence, I do not find any error
in the finding of the Tribunal in awarding Rs.20,000/-
towards attendant and nourishment charges.
20. Now this Court has to reconsider the material
with regard to loss of earning during treatment period. He
- 12 -
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
was inpatient for 4 times on different dates i.e. from 2007
to 2008. The Tribunal while considering the loss of income
during treatment period has taken a period of 2 years.
Since the claimant was intermittently took treatment for a
period of two years at the rate of Rs.4,000/-, the
compensation under the said head would be as under:
Rs.4,000 x 24 months = Rs.96,000/-
21. The multiplier adopted by the Tribunal is just
and proper. Now coming to loss of future income is
concerned, this Court considered disability at 60%. The
Hon'ble Apex Court in Sanjay Kumar Vs. Ashok Kumar
(2014 (5) SCC 330) and in Syed Sadiq and Others
Vs. Divisional Manager, United India Insurance
Company Limited (2014) 2 SCC 735, has held that
when disability is more than 50% compensation should be
awarded under the head future loss of income. In the case
on hand, the claimant is aged about 28 years and he is
entitled for addition of 40%. Having reconsidered disability
- 13 -
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
of 60% and considering income at Rs.4,000/-, the
compensation payable under the head loss of future
income would be as under:
Rs.4,000 + 40% x 12 x 17 x 60% = Rs.6,85,440/-
22. The Tribunal awarded Rs.1,00,000/- towards
loss of amenities, the same is kept intact since the injured
is aged about 28 years he has suffered disability at 60% in
view of amputation and he has to lead his rest of life with
loss of amenities and unhappiness in life.
23. The Tribunal failed to award any compensation
on the head of artificial limb is concerned, and admittedly
his leg was amputed below the knee and he has to lead his
life with disability and for a limb the same has to be
periodically changed and when such being the material, it
is appropriate to award Rs.75,000/- on the head artificial
limb since he has to use a artificial limb throughout his
life.
- 14 -
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
24. The claimant is aged 28 years and in the
pleading at coloum No.22 he has specifically pleaded that
he has lost his marriage prospects and it is not the case of
the insurance company that the claimant is married and
when there is a pleading that he is a bachelor, loss of
marriage prospects is to be considered and therefore, it is
appropriate to award Rs.50,000/- on the head loss of
marriage prospects. In all, the claimant is entitled for
Rs.12,01,940/-. Accordingly point Nos.1 and 2 are
answered.
25. Regarding point No.3: In view of the
discussions made above, I pass the following:
ORDER
Appeals are allowed in part.
In modification of the impugned judgment and award
passed by the Tribunal, the claimant is entitled for a sum
- 15 -
MFA No. 25593 of 2010
C/W MFA No. 25370 of 2010
of Rs.12,01,940/- as against Rs.9,15,000/- awarded by
the Tribunal in the impugned judgment and award.
Enhanced compensation shall carry interest at 6%
p.a. from the date of petition till realization and payable
within six weeks from the date of this order.
Apportionment, deposit of compensation amount and
other terms would be as per the award of the Tribunal.
Amount in deposit, if any, is ordered to be
transferred to the Tribunal forthwith.
Sd/-
JUDGE
SH
