Karnataka High Court

B.S.Krushi vs Badhruddin on 17 October, 2022

Bench: H.P.Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 17TH DAY OF OCTOBER, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A.NO.3501/2013 (MV)

BETWEEN:

B.S.KRUSHI
S/O. B.J.SURENDRA,
AGED ABOUT 38 YEARS,
OCCUPATION: COFFEE PLANTER,
BAGHAMANE ESTATE,
BYRAVALLI GRAMA,
MALLANDUR POST,
CHIKMAGALUR TALUK AND DISTRICT.               ... APPELLANT

             (BY SRI VINOD GOWDA, ADVOCATE)

AND:

1.     BADHRUDDIN
       S/O. NOOR AHMED,
       AGED ABOUT 49 YEARS,
       R/O. NEAR ANUPAMA TALKIES ROAD,
       TIPPUNAGAR,
       CHIKMAGALUR CITY-577 001

2.     SURENDRA SHETTY
       S/O. SEENA SHETTY,
       AGED ABOUT 54 YEARS,
       R/O. SOWRABHA, 2ND CROSS,
       CHRISTIAN COLONY,
       CHIKMAGALUR-577 001.
                               2



3.    THE NEW INDIA ASSURANCE CO. LTD.,
      NEAR ANDE CHATRA, I.G.ROAD CROSS,
      CHIKMAGALUR CITY-577 001.         ... RESPONDENTS

           (BY SRI E.I.SANMATHI, ADVOCATE FOR R3;
              SRI B.S.SACHIN, ADVOCATE FOR R2;
               NOTICE TO R1 IS DISPENSED WITH
            VIDE COURT ORDER DATED 05.06.2015)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02.02.2013
PASSED IN MVC NO.722/2009 ON THE FILE OF THE ADDITIONAL
DISTRICT JUDGE, MEMBER MACT, CHIKMAGALUR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Heard the learned counsel for the appellant and learned

counsel appearing for respondent Nos.2 and 3.

2. This appeal is filed challenging the judgment and

award dated 02.02.2013 passed in M.V.C.No.722/2009 on the

file of the Additional District Judge and MACT at Chikmagalur

('the Tribunal' for short).

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case of the claimant before

the Tribunal is that on 01.07.2006 at about 5.00 p.m., when he

was traveling in a lorry along with the timber, the driver of the

lorry drove the same in a rash and negligent manner and

capsized the lorry. As a result, he sustained fracture on his left

lateral end clavicle and left acromascarist and he was inpatient

for one day.

5. In order prove his claim, he examined himself as

P.W.1 and examined the Doctor as P.W.2, who assessed the

disability at 20% to the left shoulder and clavicle and 10% to

whole body. However, the Tribunal has taken the disability at

6% and awarded compensation of Rs.60,080/- and fastened the

liability on the owner of the vehicle, in coming to the conclusion

that the claimant was an unauthorized passenger. Hence, the

present appeal is filed by the claimant questioning the quantum

of compensation fastening the liability on the owner-insured.

6. The main contention of the claimant before this

Court is that, in the complaint itself, the claimant has stated that

he was proceeding along with timber in the lorry. On the other

hand, though it is contended by the learned counsel for the

respondent No.3-Insurance Company that he was an

unauthorized passenger, no document is placed before the Court

and the witness, who has been examined as R.W.1 has admitted

the same. Inspite of the same, the Tribunal comes to the

conclusion that he was an unauthorized passenger. Hence, it

requires interference of this Court. The counsel also would

submit that the disability taken at 6% by the Tribunal is very

meager and hence, it has to be revisted and just and reasonable

compensation is to be awarded.

7. Learned counsel for the respondent Nos.2 and 3

would vehemently contend that the Tribunal rightly comes to the

conclusion that the claimant was an unauthorized passenger and

no document is placed to show that he was having timber along

with him in the lorry and the compensation awarded is also just

and reasonable and it does not require any interference.

8. Having heard the respective counsel and also on

perusal of the material available on record, the accident has

occurred on 01.07.2006 and the complaint was given on the

very same day. When the accident took place, with regard to

whether timber was loaded in the lorry or not, nothing is

mentioned in the spot mahazar, except the fact that the lorry

was capsized at the spot. It has to be noted that the P.W.1 in

his evidence and also in the claim petition has stated that he was

traveling along with timber in the lorry and in the complaint also,

it is stated that, at the time of the accident, there was timber in

the lorry. Merely because the same is not mentioned in the spot

mahazar, the same cannot be a ground to arrive at a conclusion

that there was no timber. No doubt, the Insurance Company

also examined one witness as R.W.1, he also reiterates their

contention. But, in the cross-examination, he admits that, in

order to transport silver tree, no permit is required. Apart from

that, he also admits that, in order to come to an conclusion that

he was an unauthorized passenger, nothing is placed on record.

When such admission is available before the Court and in the

immediate document of complaint which was given on the same

day it is specifically mentioned that at the time of the accident,

he was proceeding along with the timber, the Tribunal ought not

to have accepted the contention of the Insurance Company, in

the absence of any cogent evidence. Hence, it requires

interference of this Court in exonerating the liability of the

Insurance Company.

9. With regard to the quantum of compensation is

concerned, the Tribunal has taken the income at Rs.4,000/- per

month and it was the accident of the year 2006. Hence, I do not

find any error in taking the income. But, the fact is that the

claimant has sustained fracture on his left lateral end clavicle

and left acromascarist and the Doctor has assessed the disability

at 20% to the left shoulder and the clavicle and 10% to the

whole body. But, the Tribunal has taken the disability at 6%.

Having considered the evidence of P.W.2, it is clear that fracture

is malunited and hence, the Tribunal ought to have taken the

disability at 8%. Hence, taking the income at Rs.4,000/- per

month, multiplier '16' and the disability at 8%, the loss of future

income comes to Rs.61,440/-.

10. The compensation awarded towards medical

expenses in a sum of Rs.5,000/- does not require any

interference since, the same is awarded based on the records.

11. The Tribunal has awarded a sum of Rs.4,000/-

towards loss of income during laid up period. Considering the

nature of injuries sustained, taking the laid up period as 3

months, a sum of Rs.12,000/- (4,000 x 3) is awarded towards

loss of income during laid up period.

12. The Tribunal has awarded a sum of Rs.5,000/-

towards food and nourishment and the same does not require

any interference.

13. Having considered the hospitalization of the

claimant, the Tribunal has not awarded any compensation

towards loss of amenities. It is the accident of the year 2006

and taking the disability at 8%, it is appropriate to award

Rs.15,000/- on the head of loss of amenities since, the claimant

was aged about 34 years at the time of the accident.

14. The Tribunal has not awarded any compensation

towards pain and suffering and having taken note of the nature

of injuries i.e., fracture on his left lateral end clavicle and left

acromascarist and taking note of the fact that it is the accident

of the year 2006, it is appropriate to award a sum of Rs.25,000/-

towards pain and suffering. Hence, in all, the claimant is entitled

for compensation of Rs.1,23,440/- as against Rs.60,080/-

awarded by the Tribunal.

15. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

      (ii)    The impugned judgment and award of the

              Tribunal    dated      02.02.2013      passed     in

              M.V.C.No.722/2009          is   modified    granting

              compensation      of   Rs.1,23,440/-   as    against

              Rs.60,080/- with interest at 6% per annum

              from the date of petition till deposit.