Karnataka High Court

The Managing Director, Nekrtc vs Shri. Sheetal Babasaheb ... on 16 June, 2022

Bench: P.Krishna Bhat

                                                  -1-




                                                            MFA No. 21189 of 2010
                                                        C/W MFA No. 21941 of 2010


                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                             DATED THIS THE 16TH DAY OF JUNE, 2022

                                              BEFORE

                            THE HON'BLE MR JUSTICE P.KRISHNA BHAT

                    MISCELLANEOUS FIRST APPEAL NO.21189 OF 2010 (MV-)
                                               C/W
                         MISCELLANEOUS FIRST APPEAL NO. 21941 OF 2010


                   IN MISCELLANEOUS FIRST APPEAL NO.21189 OF 2010
                   BETWEEN:
                   SHRI SHEETAL
                   S/O BABASAHEB BHISTANNAVAR
                   AGE : 26 YEARS,
                   OCC : SERVVICE AND BUSINESS
                   R/O : NEJ, TQ : CHIKKODI,
                   DIST : BELGAUM
                                                                      ...APPELLANT
                   (BY SRI. CHETAN MUNNOLI, ADVOCATE)
                   AND:
                   1.    SHRI. VINOD
                         S/O. JANARDHAN BIRADAR
                         AGE. 31 YEARS, OCC. DRIVER,
                         R/O. VALASANG, TAL. BHALKI,
                         DIST. BIDAR.

Digitally signed   2.    THE MANAGING DIRECTOR
by JAGADISH T
R
Location: HIGH
                         NEKRTC, CENTRAL OFFICE,
COURT OF
KARNATAKA,
DHARWAD
                         GULBARGA
Date:
2022.06.22
15:00:05 +0530
                   3.    K. UMMAHESHWAR REDDI
                         EWS 536, BHARAT NAGAR,
                         HYDERABAD, (A.P)
                              -2-




                                       MFA No. 21189 of 2010
                                   C/W MFA No. 21941 of 2010


4.   THE GENERAL MANAGER
     THE NEW INDIA ASSURANCE CO. LTD.,
     HEAD OFFICE, BELAGAVI.
                                              ...RESPONDENTS
(BY SRI. PRAKASH N HOSAMANE ADV., FOR R2;
SRI. G. N. RAICHUR, ADV., FOR R4;
R1 AND R3 - NOTICE DISPENSED WITH)

       THIS MFA IS FILED U/SEC. 173(1) OF THE MOTOR VEHICLE
ACT 1988, AGAINST THE JUDGMENT AND AWARD DATED: 18-08-
2009 PASSED IN MVC NO.777/2004 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL AND DISTRICT JUDGE, FAST TRACK
COURT-I, CHIKODI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION       AND     SEEKING       ENHANCEMENT     OF
COMPENSATION.


IN MISCELLANEOUS FIRST APPEAL NO. 21941 OF 2010
BETWEEN:
THE MANAGING DIRECTOR, NEKRTC
CENTRAL OFFICE, GULBARGA,
PRESENTLY REPRESENTED BY
ITS CHIEF LAW OFFICER
                                                 ...APPELLANT
(BY SRI. PRAKASH N HOSAMANE, ADVOCATE)
AND:
1.   SHRI. SHEETAL
     BABASAHEB BHISTANNAVAR
     AGE: 25 YEARS,
     OCC: SERVICE/BUSINESS,
     R/O NEJ, TQ: CHIKODI,
     DIST: BELGAUM

2.   VINOD JANARDHAN BIRADAR
     AGE: 32 YEARS, OCC: DRIVER,
                             -3-




                                      MFA No. 21189 of 2010
                                  C/W MFA No. 21941 of 2010


     R/O VALSANG, TQ: BHALKI,
     DIST: BIDAR

3.   K. UMAMAHESHWAR REDDI
     EWS 536, BHARAT NAGAR COLONY,
     HYDERABAD (ANDHRA PRADESH)

4.   NEW INDIA ASSURANCE CO. LTD.,
     REPRESENTED BY ITS
     GENERAL MANAGER,
     HEAD OFFICE, BELGAUM,
     TQ AND DIST: BELGAUM
                                             ...RESPONDENTS
(BY SRI. CHETAN MUNNOLI, ADV., FOR R1;
(SRI. G. N. RAICHUR, ADV., FOR R4;
R2- NOTICE SERVED; R3- NOTICE DISPENSED WITH)


      THIS MFA IS FILED U/SEC. 173(1) OF THE MOTOR VEHICLE
ACT 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED: 18-08-2009 PASSED IN MVC NO.777/2004 ON THE FILE
OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL AND DISTRICT
JUDGE, FAST TRACK COURT-I, CHIKODI.


      THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
COURT MADE THE FOLLOWING:

                        JUDGMENT

These appeals are at the instance of the claimant and

the NEKRTC calling in question the correctness of the

judgment and award dated 18.08.2009 in MVC No.777/2004

by the learned Motor Accident Claims Tribunal and District

MFA No. 21189 of 2010 C/W MFA No. 21941 of 2010

Judge, Fast Track Court-I, Chikkodi (for short "the

Tribunal").

2. The learned Tribunal had allowed the claim

petition in part and awarded a compensation of Rs.65,000/-

with interest thereon at 6% per annum from 13.07.2009 till

the date of payment. The learned Tribunal fastened the

liability to pay the compensation with interest on NEKRTC,

which is the appellant in MFA No. 21941/2010.

3. The brief facts are that on 05.01.2004 at about

8.00 a.m., the claimant was riding his bicycle near ISO

Spinning Mill Shivankwadi towards Ichalkaranji and at that

time, the driver of the bus bearing registration No.KA-

33/2349 owned by respondent No.2 (before the learned

Tribunal), insured with respondent No.4 (before the learned

Tribunal) and was leased to respondent No.3-NEKRTC driven

in high speed and rash and negligent manner dashed against

the claimant resulting in grievous injuries to him.

4. Before the learned Tribunal, the owner, Insurer

and NEKRTC contested the proceedings by filing their written

MFA No. 21189 of 2010 C/W MFA No. 21941 of 2010

statements. During trial, the claimant examined himself as

PW1 and another witness as PW2. Exs.P1 to Ex.P16 were

marked. Respondents did not examine any witness and no

documents were marked. After hearing, the learned Tribunal

allowed the claim petition in part in terms as already stated

above.

5. Learned counsel appearing for the appellant-

NEKRTC contended before me that the learned Tribunal was

in error in fastening the liability to pay the compensation on

the appellant, inasmuch as the offending vehicle was owned

by respondent No.2-Uma Maheshwar Reddy, who had

insured it with respondent No.4-New India Assurance

Company Limited. Even though NEKRTC had taken the

vehicle on lease, the liability of the insurance company to

indemnify the compensation cannot be avoided as the

vehicle was taken on lease with coverage of insurance policy.

He further submitted that the said question is no more res-

integra and the same is covered by two decisions of the

Hon'ble Supreme Court in Uttar Pradesh State Road

MFA No. 21189 of 2010 C/W MFA No. 21941 of 2010

Transport Corporation vs. Kulsum and others1 and in

Uttar Pradesh State Road Transport Corporation vs.

National Insurance Company Limited and others in Civil

Appeal Nos.18490-18491/2017 decided on 14.07.2021. He

therefore, submits that the appeal filed by the NEKRTC

deserves to be allowed.

6. Learned counsel for the Insurance Company, Sri.

G. N. Raichur, per contra, contended that the learned

Tribunal has correctly fastened the liability to pay the

compensation on NEKRTC in view of the fact that at the

material point of time viz., when the accident took place, the

insured bus was being plied by NEKRTC and the Insurance

Company was not intimated about the lease arrangement

between the insured and NEKRTC. His submission is that

therefore, there is violation of terms of the policy and

therefore, the Insurance Company is correctly held to be not

liable to pay the compensation. He further submits that the

learned Tribunal has awarded compensation after

(2011) 8 SCC 142

MFA No. 21189 of 2010 C/W MFA No. 21941 of 2010

appreciation of the entire evidence and therefore, there is no

scope for enhancement of the compensation awarded.

7. I have given my anxious consideration to the

submissions made on both sides and I have carefully

perused the records.

8. There is no dispute about the fact that the

claimant has suffered cerebral odema and fracture of

maxilla. The claimant was aged about 19 years at the time of

the accident. The learned Tribunal has awarded Rs.25,000/-

under the head of pain sufferings. Taking into consideration

the nature of the fracture and injuries suffered, I am of the

view that the claimant is entitled to be awarded Rs.35,000/-

under the head of pain and sufferings.

9. Learned Tribunal has awarded Rs.10,000/- under

the head of loss of amenities and the same is maintained.

Learned Tribunal has awarded Rs.25,000/- under the head of

medical expenses and since the said finding is arrived at

after evaluating the medical bills produced, I am not inclined

to interfere with the same and the same is maintained.

MFA No. 21189 of 2010 C/W MFA No. 21941 of 2010

10. Learned Tribunal has awarded Rs.5,000/- under

the head of conveyance charges etc. The same is reasonable

and it is maintained. Accordingly, the claimant is entitled to

be awarded with the compensation as follows:

                    HEAD                               Amount
                                                       (in Rs.)

Towards pain and sufferings                                 35,000/-

Towards loss of amenities                                   10,000/-

Towards medical expenses                                    25,000/-

Towards conveyance charges etc.                              5,000/-

                    Total                               75,000/-

11. The learned Tribunal has awarded a sum of

Rs.65,000/- and therefore, the enhanced compensation to

which the claimant is entitled to is Rs.10,000/- and it shall

carry interest at the rate of 6% per annum from 13.07.2009

till the date of payment.

12. In regard to the liability to pay compensation is

concerned, as rightly contended by the learned counsel for

the appellant-NEKRTC, the matter is covered by two

decisions of the Hon'ble Supreme Court referred to supra. In

MFA No. 21189 of 2010 C/W MFA No. 21941 of 2010

that view of the matter, the learned Tribunal ought to have

fastened the liability to pay the compensation on the