Karnataka High Court
Siddaram S/O Siddalingappa ... vs Irappa S/O Suresh Ulavi on 15 September, 2022
Bench: H.P.Sandesh
-1-
MFA No. 21905 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 21905 OF 2011 (MV-I)
BETWEEN:
SRI. SIDDARAM S/O SIDDALINGAPPA KAMATAGI
AGE: 23 YEARS, OCC: AGRICULTURE COOLIE, (NOW NIL),
R/O DESNUR, TQ: BAILHONGAL, DIST: BELGAUM
...APPELLANT
(BY SRI. HANAMANT R. LATUR, ADVOCATE)
AND:
1. IRAPPA S/O SURESH ULAVI
AGE: 38 YEARS, OCC: BUSINESS,
R/O HANABARATTI, TQ: BAILHONGAL.
DIST: BELGAUM
2. BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.
Digitally
signed by APMC YARD, SAUNDATTI,
John John Doe
Date:
BELGAUM
Doe 2022.09.19
12:16:41
+0530
...RESPONDENTS
(SRI. A.G.JADHAV, ADVOCATE FOR R2;
R1 SERVED)
THIS MFA IS FILED U/SEC.173(1)OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DTD:10-01-2011 PASSED IN
MVC.NO.3088/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE,
ASST. SESSIIONS JUDGE AND MEMBER, ADDL. MACT, BAILHONGAL,
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MFA No. 21905 of 2011
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT
PASSED THE FOLLOWING:
JUDGMENT
Heard the appellant counsel and also the counsel
appearing for the respondents.
2. The factual matrix of the case is that, on
09.01.2007 at about 5.00 p.m., when the petitioner was
traveling by sitting in Tempo on Kudala Sangam road near
Kajagal cross, at that time the driver of the said tempo
driver driven the vehicle in a rash and negligent manner
and he has lost control and dashed to the neem tree, as a
result, he sustained injuries i.e. fracture of femur and he
was an inpatient for a period of 32 days on two occasions
and examined the Doctor as P.W.2 and the Doctor has
assessed the disability of 30% and he was earning
Rs.6,000/-, but the tribunal has not taken the income but
only awarded an amount of Rs.1,60,000/- with 6%
interest and also fastened the liability on the owner,
MFA No. 21905 of 2011
instead of the Insurance company. Hence, the present
appeal is filed.
3. The learned counsel would also submits that, he
was an inpatient for 32 days and the compensation
awarded Rs.7,000/- under the head of attendant and
conveyance charges, and food and nourishment charges
are very meager and the tribunal has not taken the
disability of the injured and the compensation awarded
under all the heads are very meager. The tribunal also
committed an error in fastening the liability on the owner
and the driver of the offending vehicle had a licence to
drive the light motor vehicle and the offending is also a
light motor vehicle, but the tribunal has also not
considered the same and fixed the liability on the
respondent No.1 i.e. owner of the vehicle, hence, requires
interference of this Court.
4. Per contra, learned counsel appearing for the
Insurance company would submits that, the vehicle
involved in the accident is also a LMV, but he was carrying
MFA No. 21905 of 2011
more persons i.e. 32 persons and seating capacity was 12
and there was a violation of conditions of the policy and
hence, the tribunal has rightly comes to the conclusion
that the Insurance company is not liable to pay the
compensation.
5. Having heard the respective counsel and also
on perusal of the material available on record, and injured
was the only claimant and the fact that he has suffered
fracture of left femur and immediately he was shifted to
the District Hospital, Bagalkot and then he was shifted to
Vijaya Hospital, Belgaum, wherein he was an inpatient
from 23.01.2007 to 22.02.2007 and again from
21.03.2007 to 10.04.2007 and discharged on 10.04.2007
and in total, he was inpatient for a period of 32 days. The
evidence of the Doctor is clear that, he has suffered the
disability of 30% to the particular limb and he was also a
treated Doctor and the tribunal not considered this
evidence and not taken the disability and awarded
compensation of Rs.1,60,000/- including medical bills and
other heads. The compensation awarded under the head of
MFA No. 21905 of 2011
pain and suffering is Rs.45,000/-. Having considered the
nature of the injury of the fracture and he was an inpatient
for a period of 32 days, the compensation awarded under
the head of pain and sufferings is just and reasonable.
Since this accident is occurred in the year 2007, the
tribunal also awarded compensation under the head of
medical expenses a sum of Rs.53,000/- and the same is
based on the medical bills, it does not require any
interference. The tribunal has awarded an amount of
Rs.8,000/- under the head of Nourishment charges,
attendant and conveyance charges. The claimant was
inpatient for a period of 32 days, it is appropriate to
enhance the same for Rs.20,000/- since it was the
accident of the year 2007, and hence, as against
Rs.8,000/-, awarded an amount of Rs.20,000/-. The loss
of income during treatment period awarded an amount of
Rs.24,000/- by taking the income of Rs.3,000/- for a
period of eight months. Since he was in the hospital for
twice for a period of 32 days and taking of eight months
for loss of income appears to be on higher side since he
MFA No. 21905 of 2011
has sustained only fracture of femur and no other injuries
and taking the income of Rs.4,000/- for a period of five
months, it is appropriate to award an amount of
Rs.20,000/-. For loss of amenities and future
unhappiness awarded an amount of Rs.30,000/- and it
does not require any interference. However, the future
loss of income has not been considered and when the
treated Doctor was examined and he has suffered the
fracture of femur, the tribunal ought to have considered
the disability. If it is taken 1/3rd, it comes to 10% and
having considered the income of Rs.4,000/-
X12X'18'X10%, it comes to Rs.86,400/-. In all the
claimant is entitle for compensation of Rs.2,54,400/-, as
against Rs.1,60,000/-
6. The other contention of the appellant that, the
driver was having the driving licence and the vehicle
involved in the accident is also the passenger vehicle but
he tribunal while fastening the liability on the owner comes
to the conclusion that in the charge-sheet, it was
mentioned as goods vehicle, but actually it was a
MFA No. 21905 of 2011
passenger tempo and it is also a 407 goods vehicle and it
is mentioned that, it is a Maxi Cab and comes to the
conclusion that, the goods vehicle cannot be used to
transport passengers and the very approach of the tribunal
is erroneous and admittedly, the vehicle is a Maxi Cab and
the passengers were carrying in the said vehicle and
hence, it requires interference and the liability is fastened
on the Insurance company as the same is not the goods
vehicle.
7. In view of the discussions made above, I pass
the following:
ORDER
The appeal is allowed in part;
The impugned Judgment and award dated
10.01.2011 in MVC No.3088/2007 by the Senior Civil
Judge, Asst. Sessions Judge and Addl. MACT, Bailhongal, is
modified granting compensation of Rs.2,54,400/- with 6%
MFA No. 21905 of 2011
interest as against Rs.1,60,000/- and the liability is
fastened on the Insurance company.
The Insurance company is directed to pay the entire
compensation amount within six weeks to the claimant.
Registry to send back the TCR if any, to the
concerned tribunal, forthwith.
SD
JUDGE
SVH
