United India Insurance Co.Ltd vs Ramesh S/O Parasappa Kotihal
2022 Latest Caselaw 11831 Kant

                                                 -1-




                                                       MFA No. 24946 of 2012


                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                            DATED THIS THE 14TH DAY OF SEPTEMBER, 2022

                                             BEFORE

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

                        MISCELLANEOUS FIRST APPEAL NO.24946 OF 2012 (MV-I)

                   BETWEEN:

                   UNITED INDIA INSURANCE CO.LTD.,
                   THE BRANCH MANAGER,
                   OPP: KSRTC BUS STAND, HAVERI.
                   REPRESENTED BY ITS
                   DIVISIONAL MANAGER
                   RAGHUVEER N. NAYAK,
                   DIVISIONAL OFFICE,
                   ENKAY COMPLEX,
                   KESHAWAPUR, HUBLI.
                                                                 ...APPELLANT

                               (BY SMT. PREETI SHASHANK, ADVOCATE)

                   AND:

                   1.    RAMESH,
                         S/O PARASAPPA KOTIHAL,
                         AGED ABOUT 32 YEARS,
       Digitally
       signed by
                         OCC: HOTEL BUSINESS AND AGRICULURE,
John John
     Date:
          Doe
                         R/O.HIREKABBAR VILLAGE
Doe 2022.09.19
     12:24:17
       +0530             IN HIREKERUR TALUK,
                         NOW AT MASANAGI VILLAGE,
                         TQ: BYADAGI, DIST: HAVERI.

                   2.    SRI SHASHIKUMAR,
                         S/O SHIVAJAPPA BUBAR,
                         AGE: MAJOR,
                         OCC: BUSINESS,
                         R/O.HIREKERUR,
                               -2-




                                        MFA No. 24946 of 2012


    DIST: HAVERI.
    (OWNER OF VEHICLE NO.KA-27/A-1973).
                                               ...RESPONDENTS

  (BY SRI MADANMOHAN M. KHANNUR, ADVOCATE FOR R-1,
                    R-2 SERVED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED
11.07.2012 PASSED IN MVC NO.439/2010 ON THE FILE OF
SENIOR CIVIL JUDGE AND MEMBER, MACT, ITERNATE COURT,
BYADAGI, AWARDING THE COMPENSATION OF RS.1,51,000/-
WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF
PETITION TILL ITS REALISATION.

    THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

Heard the learned counsel for the appellant and the

learned counsel for respondent No.1.

2. This appeal is filed by the Insurance Company

challenging the judgment and award dated 11.07.2012, passed

in MVC.No.439/2010, on the file of the Senior Civil Judge and

MACT, Iternate Court, Byadagi ('the Tribunal' for short)

questioning the quantum of compensation as well as liability.

3. The factual matrix of the case of the claimant

before the Tribunal is that the claimant met with an accident on

02.09.2009 and he himself and others were travelling in the

MFA No. 24946 of 2012

autorickshaw for attending the sandy work and the vehicle was

driven in a rash and negligent manner, as a result, the accident

was taken place and hence he made the claim. The Tribunal

after considering both oral and documentary evidence on

record, allowed the claim petition granting compensation of

Rs.1,51,000/- with interest at 6% per annum. Hence, the

present appeal is filed.

4. The main contention of the Insurance Company in

the appeal is that the driver was not having valid driving licence

at the time of driving the autorickshaw and hence the liability

saddled on the Insurance Company is erroneous. The other

contention is that the Tribunal considering the disability of

15%, awarded compensation and he has suffered fracture of

femur and the Insurance Company also assessed the disability

through a doctor one Dr. Mudri, who assessed the disability of

28% to 30% and the disability taken by the Tribunal is on the

higher side and compensation awarded under other heads is

also very exorbitant. Hence, it requires interference of this

Court.

MFA No. 24946 of 2012

5. The learned counsel for respondent No.1/claimant

submits that the claimant has suffered fracture of femur and he

was an inpatient for a period of one month and he was

subjected to surgery and the compensation awarded under

other heads are meager.

6. Having heard the respective learned counsel and

also on perusal of the material available on record, the wound

certificate marked as Ex.P.3 discloses that he had suffered

fracture of femur and the injury is grievous in nature. The

discharge card, which is marked as Ex.P.9 discloses that

immediately after the accident, he was shifted to General

Hospital, Honnali and x-ray was taken which showed fracture of

shaft of middle third of right femur bone and he was discharged

on 03.09.2009 and he was an inpatient only for a period of two

days. Thereafter, he was admitted to Venlock Hospital on

06.01.2010 and discharged on 02.02.2010 and again he was

admitted on 04.08.2010 and discharged on 05.08.2010. The

doctor assessed the disability of 45% and hence the Tribunal

has taken 15% disability. The Insurance Company also re-

assessed the disability and doctor assessed 28% to 30%

MFA No. 24946 of 2012

disability, but the doctor who has assessed the disability has

not been examined before the Tribunal. Though disability

assessed is on litter higher side, the compensation awarded

under other heads is very meager. The income was taken at

Rs.4,000/- per month and the accident is of the year 2009 and

ought to have taken the income as Rs.5,000/- per month and

no cross-appeal is filed by the claimant. Hence, the

compensation awarded by the Tribunal is not exorbitant as

contended by the Insurance Company.

7. The other contention of the Insurance Company is

that the liability saddled on the Insurance Company is

erroneous and the same cannot be accepted in view of

judgment of the Apex Court in the case of MUKUND

DEWANGAN v. ORIENTAL INSURANCE CO.LTD., reported in

(2017) 14 SCC 663, wherein it is held that even in the

absence of transport endorsement, if the vehicle involved in the

accident is a LMV, the liability cannot be exonerated.

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

following:

MFA No. 24946 of 2012

ORDER

(i) The appeal is dismissed.

(ii) The amount in deposit, if any, is ordered to be transmitted to the Tribunal.

sd JUDGE

MD