Karnataka High Court
Branch Manager vs Durgadas on 8 December, 2023
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MFA No. 3206 of 2014
C/W MFA No. 3052 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 3206 OF 2014 C/W
MFA NO. 3052 OF 2013 (MV-I)
IN MFA NO. 3206 OF 2014
BETWEEN:
MR. DURGADAS
S/O POOVAPPA KULAL, AGED ABOUT 28 YEARS
R/AT DURGA NILAYA, NEAR SHREE DEVI COLLEGE
KENJAR, MARAVUR VILLAGE & POST, MANGALORE
TALUK, D.K. - 575 012 ...APPELLANT
(BY SRI. RAVISHANKAR SHASTRY G., ADV.)
AND:
1. MR. SRINIVASA ALIAS SRINIVAS KUNDER
S/O DEVAPPA, AGED ABOUT 50 YEARS
R/AT DOOR NO 2-153/1, NEAR
SHRE DEVI COLLEGE, KENJAR POST
VIA BAJPE, MANGALORE TALUK
D.K. DISTRICT - 575 012
Digitally signed by
MALA K N 2. THE NEW INDIA ASSURANCE COMPANY LTD.,
Location: HIGH COURT OFFICE AT 3RD FLOOR, ESSEL CHAMBERS
OF KARNATAKA KARANGALPADY, MANGALORE REP. BY ITS
BRANCH MANAGER - 575 003 ...RESPONDENTS
(BY SRI. A N KRISHNA SWAMY, ADV. FOR R2;
R2 SERVED)
IN MFA NO. 3052 OF 2013
BETWEEN:
BRANCH MANAGER
THE NEW INDIA ASSURANCE COMPANY LTD.,
OFFICE AT 3RD FLOOR, ESSEL CHAMBERS
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MFA No. 3206 of 2014
C/W MFA No. 3052 of 2013
KARANGALPADY, MANGALORE REP. BY ITS
REGIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE, 2-B, UNITY BUILDING
ANNEXE, P.KALINGA RAO ROAD
BANGALORE - 560 027 ...APPELLANT
(BY SRI. A N KRISHNA SWAMY, ADV)
AND:
1. DURGADAS
S/O POOVAPPA KULAL, NOW AGED ABOUT 27 YEARS
R/AT DURGA NILAYA, NEAR SHREE DEVI COLLEGE
KENJAR, MARAVUR VILLAGE & POST, MANGALORE
TALUK, D.K. - 575 012
2. SRINIVASA ALIAS SRINIVAS KUNDER
S/O DEVAPPA, AGED ABOUT 49 YEARS
R/AT DOOR NO 2-153/1, NEAR
SHRE DEVI COLLEGE, KENJAR POST
VIA BAJPE, MANGALORE TALUK
D.K. DISTRICT - 575 012 ...RESPONDENTS
(R1 AND R2 ARE SERVED)
THESE APPEALS ARE FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
20.12.2012 PASSED IN MVC NO.661/2011 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT-VI,
MANGALORE, D.K, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND IN MFA NO.3052 OF 2013 AWARDING
COMPENSATION OF RS.1,06,705/- WITH INTEREST AT 6%
P.A., FROM THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 3206 of 2014
C/W MFA No. 3052 of 2013
JUDGMENT
In these two appeals, both the petitioner as
well as the Insurance Company have challenged the
judgment and award dated 20.12.2012 passed by
the M.A.C.T. & II Additional Senior Civil Judge,
Mangalore, D.K. ('the Tribunal' for brevity) in
M.V.C.No.661/2011.
2. For the sake of convenience, the parties
shall be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, on 01.02.2011,
while the petitioner was travelling in an auto
rickshaw bearing No.KA-19/B-7483 from Kunjathbail
to Kenjar, near Marakada junction on Bajpe Kavoor
road, the auto rickshaw was capsized injuring the
petitioner. After taking treatment at Tejaswini
hospital, Mangalore for 10 days, the petitioner has
moved the Tribunal for grant of compensation of
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Rs.4,00,000/- with interest @ 12% per annum.
Claim was opposed by the Insurance Company.
After taking the evidence, the Tribunal allowed the
claim petition awarding compensation of
Rs.1,06,705/- with 6% interest, directing the owner
and Insurance Company of the auto rickshaw to pay
the compensation. Pleading inadequacy and seeking
enhancement, the petitioner has filed
M.F.A.No.3206/2014. Whereas, challenging the
liability fastened against it, the Insurance Company
has filed M.F.A.No.3052/2013 on various grounds.
4. Heard the arguments of Sri.Ravishankar
Shastry, learned counsel for the petitioner and
Sri.A.N.Krishnaswamy, learned counsel for Insurance
Company.
5. It is the contention of the learned counsel
for the petitioner that the petitioner has suffered
facture of left femur. He has suffered disability of
10% and the evidence of Dr.M.Shantharama Shetty,
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a well-known Orthopedic Surgeon of Mangalore was
made available before the Tribunal, but the Tribunal
did not consider the medical evidence and awarded
lesser compensation under different heads and
sought for enhancement.
6. Per contra, learned counsel for the Insurance
Company has contended that the auto rickshaw was
permitted to ply only outside the limits of Mangalore
city whereas the place of accident comes within the
limits of Mangalore Corporation area. Hence, there
is a violation of permit conditions, the Insurance
Company can avoid its liability and he sought for a
direction to the owner to pay compensation by
exonerating the Insurance Company.
7. I have given my anxious consideration to the
arguments addressed on behalf of both parties and
also perused the materials on record.
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8. The material on record did point out that the
petitioner has suffered fracture of left femur shaft
and he has been treated at Tejaswini Hospital by
Dr.M.Shantharama Shetty. The evidence on record
points out that the petitioner has suffered limb
disability of 10%. The Tribunal has taken disability
of 3%. Having regard to the fracture of left femur, it
is proper to assess the disability at 5% instead of
3% assessed by the Tribunal. The accident is on
01.02.2011. A person with no proof of income will
earn not less than Rs.4,000/- per month. The
Tribunal has considered the same and it is proper.
The age of the petitioner is 25 years, but the
Tribunal has selected multiplier of '17' instead of
'18'. Hence, the multiplier has to be taken at '18'.
Accordingly, loss of future income has to be
calculated.
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9. The Tribunal has awarded compensation as
under:
SL.NO. PARTICULARS AMOUNT
1 Disability Rs. 24,480/-
2 Pain and agony Rs. 25,000/-
3 Conveyance Rs. 1,000/-
4 Attendant charges and
Rs. 1,000/-
Nourishing food
5 Medical expenses Rs. 40,225/-
6 Future expenses Rs. 15,000/-
Total Rs. 1,06,705/-
10. The Tribunal did not consider the loss of
income during laid up period, loss of amenities and
discomfort. Hence, the compensation requires to be
re-assessed. Towards pain and suffering at
Rs.30,000/-; Food and nourishment at Rs.5,000/-;
Attendant and conveyance charges at Rs.2,000/-;
Loss of income during laid-up period of four months
at Rs.16,000/-; Medical expenses at Rs.40,225/-;
loss of amenities and discomfort at Rs.30,000/- and
future medical expenses at Rs.15,000/-. As against
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loss of future income is concerned, the income of
Rs.4,000/- if taken, 40% has to be considered as
future prospects. Then the multiplicand will be
Rs.5,600/- x 12 x 18 x 5% = Rs.60,480/-.
Accordingly, loss of future income is assessed. Thus,
the total compensation comes to Rs.1,98,705/- as
against Rs.1,06,705/- awarded by the Tribunal,
thereby enhancement of Rs.92,000/-, which is the
just compensation to which the petitioner is entitled,
in the facts and circumstances of the case.
11. As regards liability is concerned, as rightly
argued by the learned counsel for the Insurance
Company, the auto rickshaw did not posses any
permit to enter the Corporation limits of Mangalore
city, it holds the permit to ply in the rural area, in
violation of the permit, it had entered into the
corporation limits of Mangalore city and thereby
violated the permit conditions. A Division Bench of
this Court in M.F.A.No.5745/2016 DD 07.12.2023 in
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the matter of Syed Zaheer @ Sayyued Jahiruddin
Bokhari -vs- Smt.Puttamadamma laid down that
for violation of permit conditions, the Insurance
Company can avoid its liability, at the same time,
the petitioner cannot be driven to recover it from the
owner. Hence, it is a case for the Insurance
Company to deposit the compensation and to
recover it from the owner of the auto rickshaw.
Hence, both the appeals merit consideration. In the
result, the following;
ORDER
(i) Both appeals are allowed in part;
(ii) The impugned judgment and award stands
modified;
(iii) The petitioner is entitled to enhanced
compensation of Rs.92,000/- with
interest @ 6% per annum from the date of
petition till deposit;
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(iv) The Insurance Company is directed to
satisfy the entire award amount within a
period of eight weeks from the date of
receipt of a certified copy of this judgment
and to recover the same from the owner of
the auto rickshaw in the same proceedings.
(v) In M.F.A.No.3052/2013, the amount in
deposit shall be transmitted to the
Tribunal.
Sd/-
JUDGE
KNM
CT:HS
