Shrishail S/O Siddappa Walikar @ ... vs Vijaykumar S/O Basavanneppa ...
2022 Latest Caselaw 9324 Kant

                             1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

        DATED THIS THE 22ND DAY OF JUNE 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

               MFA No.33059/2013 (MV)

BETWEEN:

Shrishail S/o Siddappa Walikar @ Koli,
Age: 32 years, Occ: Driver Cum Conductor
And also doing Agriculture,
R/o: Lingadalli, Tq: Indi, Now residing at
Jalanagar, Bagalkot Road, Bijapur-586 101.
                                           ... Appellant

(By Sri. Bapugouda Siddappa, Advocate)

AND:

1.     Vijaykumar S/o Basavanneppa Metri,
       Age: 43 years, Occ: Agriculture,
       R/o: House No.EWS 61, Adarsh Nagar,
       Bijapur-586 101.

2.     The Branch Manager,
       The United India Insurance Company Limited,
       Sangam Building, S.S. Front Road,
       Bijapur-586 101.
                                         ... Respondents

(Sri. Sanganagouda V. Biradar, Advocate for R1;
 Sri. Manvendra Reddy, Advocate for R2)
                               2



      This MFA is filed under Section 173(1) of the Motor
Vehicles Act, praying to modify the judgment and award
dated 30.01.2012 passed in MVC No.1545/2010 on the file
of the Motor Accident Claims Tribunal No.VI, Bijapur and
allow the appeal by enhancing the compensation amount
by Rs.14,99,990/- as claimed by the appellant before this
Court and also the liability may be fixed to the respondent
No.2 i.e., Insurance Company and also order for costs of
this appeal.

      This appeal coming on for final hearing this day, the
Court delivered the following:

                        JUDGMENT

This appeal is filed by the claimant under Section

173(1) of the Motor Vehicles Act, challenging the judgment

and award dated 30.01.2012 passed in MVC No.1545/2010

by the Motor Accident Claims Tribunal No.VI, Bijapur

(hereinafter referred to as 'the Tribunal' for short), seeking

enhancement of the compensation.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by the before

the Tribunal.

3. The brief factual matrix leading to the case are

that, on 06.06.2010 at about 10.00 a.m., the claimant was

proceeding towards Bijapur from Lingadalli village of Indi

Taluk on his motorcycle bearing No.KA-28/H-9308 for

attending the marriage of his brother. The motorcycle is

being ridden by his cousin brother Shivappa Banasidda

Walikar. Near Basanal to Kyatanakeri road, the rider of the

motorcycle rode it in a rash and negligent manner and as a

result of the same, the claimant who was travelling as a

pillion rider fell down and sustained injuries. Immediately

he was shifted to BLDEA Hospital, Bijapur and then to

Dr. Prashant Katakol's Health City Hospital, Bijapur for

higher treatment. He has spent more than Rs.1,50,000/-

towards medical expenses and due to the accidental

injuries he is completely disabled. Hence, he filed a claim

petition before the Tribunal, claiming compensation of

Rs.18,75,000/-.

4. Respondent No.1 though appeared, did not

choose to contest the claim petition, while respondent

No.2-insurer filed objections denying the age, occupation

and income of the claimant and further, the nature of

injuries also came to be denied. It is contended that the

accident is not because of the actionable negligence on the

part of the rider for the motorcycle and hence, sought for

dismissal of the claim petition.

5. After considering the oral as well as the

documentary evidence, the Tribunal has awarded total

compensation of Rs.80,000/- with interest at 6% p.a. from

the date of petition till realisation to the claimant by

fastening the liability on respondent No.1-owner.

6. Being aggrieved by this judgment and award,

the claimant has filed this appeal.

7. Heard the arguments advanced by the learned

counsel for the appellant and the learned counsels

appearing for the respondents. Perused the records.

8. The learned counsel for the appellant would

contend that the compensation awarded by the Tribunal

under the heads of pain and suffering, medical expenses,

loss of income during laid up period and loss of amenities

is on the lower side and hence, he would seek for

enhancement. During the course of arguments, he would

also contend that the liability may be fastened on

respondent No.2-insurer.

9. Per contra, learned counsel for respondent

No.1 would support the arguments advanced by the

learned counsel for the appellant/claimant so far as it

relates to liability.

10. Learned counsel for respondent No.2-insurer

specifically asserted that since it is an Act policy and no

extra premium has been paid covering the risk of a pillion

rider, the question of insurance company paying

compensation does not arise at all and hence, he would

contend that the Tribunal has rightly dismissed the claim

petition as against respondent No.2-insurer.

11. Having heard the arguments and perusing the

records, it is evident that the claimant was working as

driver cum conductor in NWKRTC Nippani Depot of

Belgaum District. The records also disclose that his salary

for the first year was Rs.2,500/- per month and for the

second year, it was Rs.3,000/- per month and admittedly,

the accident has occurred within two years from the date

of his appointment. Further, the evidence of PW.1 disclose

that when he had given evidence, he was getting salary of

Rs.4,000/- per month. Hence, it is evident that there is

enhancement of salary regularly and the claimant did not

loose his income because of accidental injuries. As such,

the question of awarding any compensation under the

head of loss of future income does not arise at all.

12. Ex.P5-wound certificate disclose that the

claimant has suffered liner fracture squamour part of left

temporal bone and left parietal bone. Further, he has

spent more than Rs.45,000/- towards medical expenses

and that clearly disclose that because of the temporal and

parietal bone fracture, he was compelled to take rest. The

Tribunal has awarded Rs.3,000/- under the head of loss of

income during laid up period for a period of one month.

The claimant has not produced any documents to show

that he was unable to attend the work immediately after

the accident. However, considering the nature and gravity

of the injuries, it can be safely presumed that the claimant

might have been prevented from attending the normal

duties for at least three months. Hence, he would be

entitled for Rs.9,000/- (Rs.3000x3) under the head of loss

of income during laid up period.

13. The Tribunal has awarded Rs.30,000/- under

the head of pain and suffering, which is a reasonable

compensation and does not call for any interference.

14. Under the head of medical expenses and other

incidental charges, the Tribunal has awarded Rs.45,000/-,

which also does not call for any interference.

15. Under the head of loss of amenities and future

discomfort, the Tribunal has awarded Rs.2,000/-, which is

on the lower side and it requires to be enhanced to

Rs.10,000/-.

16. Further, the Tribunal has not awarded any

compensation under the head of conveyance and

attendant charges. As such, the claimant is entitled for a

sum of Rs.5,000/- under the said head.

17. As such, the claimant is entitled for total

compensation under various heads as under:

     Sl.No. Heads                            Amount

     1.        Pain and suffering            Rs.30,000/-

     2.        Medical    expenses     and Rs.45,000/-
               other incidental charges

3. Loss of income during laid Rs.9,000/-

up period

4. Loss of amenities and Rs.10,000/-

future discomfort

5. Conveyance and attendant Rs.5,000/-

charges

Total Rs.99,000/-

Hence, the appellant/claimant is entitled for total

compensation of Rs.99,000/- with interest at 6% p.a. as

against Rs.80,000/- awarded by the Tribunal.

18. The Tribunal has fastened the liability on

respondent No.1-owner on the ground that no extra

premium has been paid covering the risk of the pillion

rider. The insurance policy is made available at Ex.R1 and

it disclose that no extra premium is paid covering the risk

of either the rider or the pillion rider. The learned counsel

for the appellant would contend that there is a clause

regarding payment of compensation up to the extent of

Rs.1,00,000/-, but that is not to be taken note of in view

of non-payment of premium and hence, the said argument

cannot be accepted. Apart from that, though the Tribunal

has fastened the liability on respondent No.1, he has not

challenged the liability and it is the claimant, who is before

this Court. Respondent No.1-owner has not even contested

the matter by filing any objections before the Tribunal.

Under such circumstances, considering that the policy is an

Act policy, the question of fastening the liability on

respondent No.2-insurer does not arise at all and the

Tribunal is justified in fastening the liability on respondent

No.1-owner.

19. Under these circumstances, the appeal needs

to be allowed in part. Accordingly, I proceed to pass the

following:

ORDER

i. The appeal is allowed in part.

ii. The appellant/claimant is held entitled for total compensation of Rs.99,000/- as against Rs.80,000/- awarded by the Tribunal.

iii. The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till realisation.

iv. Respondent No.1-owner is directed to pay the entire compensation including the enhanced compensation with interest accrued thereon

within six weeks from the date of this judgment.

v. The appeal as against respondent No.2-insurer stands dismissed.

Sd/-

JUDGE

LG