Karnataka High Court
The Divisional Manager vs Sri.Gangappa S/O Basappa Modagi on 17 March, 2022
Bench: N.S.Sanjay Gowda
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14 T H DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA
MFA No.22198/2009 (MV)
C/w. MFA No.25371/2010 (MV)
IN MFA No.22198/2009:
Between:
The Divisional Manager,
Oriental Insurance Co. Ltd.,
Divisional Office, At Shanbag Chambers,
Kirloskar Road, Belgaum.
Rep. by its Regional Manager,
Regional Office, Sumangala Complex,
2nd Floor, Lamington Road,
Hubballi-20.
... Appellant
(By Shri S.K. Kayakamath, Advocate)
And:
1. Shri Gangappa S/o. Basappa Modagi,
Age 22 years, Occ: Vegitable Vendor
& Agriculture, R/o.: Suladhal, Tq.: Gokak.
2. Shri Santosh Shivanagouda Modagi,
Age major, Occ: Business,
R/o.: Hudli, Tq.: Belgaum.
... Respondents
(By Shri Hanamanth R.Latur, Advocate for R1;
R2 - served & unrepresented)
:2:
This MFA is filed under Section 173(1) of M.V. Act, 1988
against the judgment and award dated 01.01.2009, passed in
MVC No.57/2006 on the file of the Member MACT-IV & III-
Addl. District Judge, Belgaum, awarding the compensation of
Rs.1,47,200/- with interest at the rate of 6% p.a. in his
favour.
IN MFA No.25371/2010:
Between:
Shri Gangappa S/o. Basappa Modagi,
Age 22 years, Occ: Vegitable Vendor
& Agriculture, R/o.: Suladhal, Tq.: Gokak,
Dist.: Belgaum.
... Appellant
(By Shri Hanamant R.Latur, Advocate)
And:
1. Shri Santosh Shivanagouda Modagi,
Age 30 years, Occ: Business,
R/o.: Hudli, Tq.: Belgaum.
2. The Divisional Manager,
Oriental Insurance Co. Ltd.,
Divisional Office, At Shanbag Chambers,
Kirloskar Road, Belgaum.
... Respondents
(By Shri S.K. Kayakamath, Advocate for R2;
R1 - served & unrepresented)
This MFA is filed under Section 173(1) of M.V. Act, 1988
against the judgment and award dated 01.01.2009, passed in
MVC No.57/2006 on the file of the Member MACT-IV, Belgaum
& in the Court of the III-Addl. District Judge, Belgaum, 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:
:3:
JUDGMENT
1. MFA No.22198/2009 is by the appellant-
Insurance Company challenging the award of
Rs.1,47,200/- to the claimant.
2. In MFA No.25371/2010 is by the claimant
seeking enhancement of compensation.
3. The fact that an accident occurred on
17.05.2005 when the claimant was traveling in a
goods tempo is not in serious dispute. The fact that
he had suffered injuries is also not in dispute. It is
also admitted that the said goods tempo was insured.
4. The only contention of the insurer is that
the claimant was a gratuitous passenger, while it is
the case of the claimant that he was traveling in the
goods tempo along with his goods i.e., vegetab les.
5. The Tribunal on consideration of the
evidence adduced before it and taking note of the
statement of the claimant that he was traveling in
the goods tempo along with vegetables, has recorded
a find ing that he was not a gratuitous passenger and
was in fact a p erson traveling with the goods and
therefore, the Insurance Company would be liable for
payment of comp ensation.
6. Learned counsel Shri S.K. Kayakamath
contended that the claimant had admitted that he
was studying in second PUC and he has also stated
that in the said goods tempo vegetables of another
person called Ravi Patil was also being carried and
this indicated that he was not a person traveling with
his goods i.e., his vegetables.
7. The claimant in the course of cross-
examination has stated as follows:
"£Á£ÀÄ ªÉÆzÀ®Ä DmÉÆÃzÀ°è PÁ¬Ä¥À¯Éè
ºÁQPÉÆAqÀÄ §gÀÄwÛ z ÉÝ zÁjAiÀÄ°è gÀ« ¥Ánî ¸ÀºÀ
vÀ£Àß PÁ¬Ä¥À¯Éè CzÉà DmÉÆÃzÀ°è ºÁQPÉÆAqÀÄ
¨É¼ÀUÁ«UÉ §gÀÄwÛ z ÀÝ. ¸ÀzÀjà PÁ¬Ä¥À¯Éè A iÀÄ£ÀÄß
¸ÀÄ®zÁ¼À UÁæ ª ÀÄ¢AzÀ ºÁQPÉÆAqÀÄ §gÀÄwÛ z ÉÝãÀÄ."
8. The said deposition of P.W.1 clearly
establishes that the vegetables b eing carried in the
goods tempo were both that of the claimant and Sri
Ravi Patil. The Tribunal has therefore correctly
appreciated the evidence and come to the conclusion
that the claimant was traveling in the goods tempo
along with his goods and as a consequence, the
Insurance Comp any would be liable. There is no
infirmity in the award of the Tribunal insofar as it
relates to liability to the insurance Company.
Consequently, the appeal of the Insurance Company
fails.
9. The claimant contends that the monthly
income assessed by the Tribunal at Rs.3,000/- was
on the lower side and the sums awarded toward s pain
and suffering and loss of amenities were also on the
lower side and the Tribunal had committed a serious
error in not awarding any sums towards loss of
amenities.
10. In this connection, it is not in dispute that
there was no documentary evidence to establish the
actual income of the claimant, as a consequence, the
income determined by the Karnataka Legal Services
Authority for the accidents of the year 2005 i.e.,
Rs.3,500/- per month would have to be adopted as
the appropriate monthly income.
11. The Tribunal has on appreciation of medical
evidence, come to the conclusion that the claimant
had suffered 30% d isab ility to the left upper limb and
10% disability to the whole body. This assessment
being proper, the same is maintained.
12. The claimant would therefore be entitled to
a sum of (Rs.3,500/- X 12 X 18/10%) = Rs.75,600/-
towards loss of future income (since the age of the
claimant was 22 years). The Trib unal has awarded a
sum of Rs.60,000/- towards medical and other
expenses. The said sum being proper, the same is
maintained.
13. A sum of Rs.20,000/- has been awarded
towards pain and suffering, having regard to the fact
that the claimant has suffered a major fracture, a
sum of Rs.40,000/- is awarded towards pain and
suffering .
14. The Tribunal had committed an error in not
awarding compensation towards loss of amenities.
Having regard to the injuries suffered by the
claimant, the claimant is entitled to Rs.25,000/-.
15. Since the income of the claimant is
determined at Rs.3,500/- per month, the loss of
income during treatment period is determined at
Rs.10,500/- for a period of three months.
16. Thus, in all, the claimant is entitled to
Rs.2,11,100/- as against Rs.1,47,200/- awarded by
the Tribunal.
1. For loss of future income Rs.75,600/-
2. For medical expenses Rs.60,000/-
3. For pain and suffering Rs.40,000/-
4. For loss of amenities Rs.25,000/-
5. For loss of income during Rs.10,500/-
treatment period
Total Rs.2,11,100/-
17. Appeal filed by the claimant
(MFA.No.25371/2010) is allowed in part. The appeal
filed by the Insurance Company (MFA.No.22198/
2009) is dismissed.
18. The Insurer shall deposit the compensation
amount with interest at the rate of 6% per annum
from the date of petition till the date of deposit
exclud ing the deposit, if any made.
19. The order regarding disb ursement of the
compensation amount to the claimant made by the
Tribunal holds god.
20. The amount deposited in
MFA.No.22198/2009 be transmitted to the concerned
Tribunal forth with for disbursement.
SD
JUDGE
Vnp*
Ck k p a ra -6 t o en d
