Karnataka High Court
The Branch Manger vs Sri Gadlingappa S/O Siddappa on 3 January, 2023
Bench: Ravi V.Hosmani
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MFA No. 21750 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO. 21750 OF 2011 (MV-I)
BETWEEN:
1. THE BRANCH MANGER,
NATIONAL INSURANCE CO.LTD.,PARVATHI NAGAR,
BELLARYTHROUGH THE ADMINISTRATIVE
OFFICER,NATIONAL INSURANCE COMPANY
LTD.,REGIONAL OFFICE,SUJATHA COMPLEX,
P.B.ROAD,HUBLI.
... APPELLANT
(BY SRI. S K KAYAKAMATH, ADVOCATE)
AND:
1. SRI GADLINGAPPA S/O SIDDAPPA,
AGE: 30 YEARS, OCC: AGRICULTURIST,R/O HANDIHAL
VILLAGE,BELLARY TALUK and DIST.
ANNAPURNA
CHINNAPPA
DANDAGAL 2. SRI B. BASAVRAJ S/O BASAVARAJ REDDY,
AGE: MAJOR, DRIVER OF TRACTOR and TRAILER NO.
Digitally signed by
ANNAPURNA CHINNAPPA
DANDAGAL KA 34/T-4001-4012,R/O H.HOSAHALLI VILLAGE,
Location: High court of
Karnataka, Dharwad Bench,
Dharwad
SIRUGUPPA TALUK,BELLARY DIST.
Date: 2023.01.17 10:52:53 -
0800
3. SRI BASAVRAJ S/O NARAYANA REDDY,
AGE: MAJOR, DRIVER OF TRACTOR and TRAILER NO.
KA 34/T-4001-4012,R/O H.HOSAHALLI VILLAGE,
SIRUGUPPA TALUK,BELLARY DIST.
...RESPONDENTS
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MFA No. 21750 of 2011
(BY SRI. SHIVARAJ HIREMATH FOR R1, ADVOCATE
R2 & )
MFA FILED U/SEC.173(1) OF MV ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DTD:14-06-2010 PASSED IN
MVC.NO.273/2009 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACT COURT-I, BELLARY, AWARDING THE
COMPENSATION OF RS.1,28,428/- WITH INTEREST AT THE
RATE OF 6% P.A., FROM THE DATE OF PETITION TILL ITS
COMPLETE REALISATION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging imp ugned judgment and award dated
14.06.2010 passed by Presiding Officer FTC-I, Bellary
(for short, 'tribunal') in MVC No.273/2009, this appeal
is filed by insurer.
2. Heard Smt. Anusha V.Sangami, advocate
appearing for Sri S.K.Kayakmath, learned counsel for
appellant-insurer and Sri Shivaraj Hiremath, learned
counsel for respondent no.1-claimant.
3. In this is appeal filed by insurer, one of
grounds urged is that driver of vehicle involved in
MFA No. 21750 of 2011
accident possessed licence to drive light motor
vehicle, but, as offending vehicle was a tractor trailer
unit, it would be a Goods Vehicle. Without transport
endorsement, fastening liability upon insurer was
illegal.
4. Insofar as quantum of compensation, it was
submitted that assessment of loss of earning capacity
even when claimant failed to adduce ev idence of
doctor would not be justified.
5. On other hand, Sri.Shivaraj Hiremath,
learned counsel for claimant sought to justify award.
It was submitted that claimant aged 30 years working
as agriculturist, sustained fracture of right tib ia and
award of comp ensation Rs.1,28,428/- on over all
consideration was not excessive and sought for
dismissal of appeal.
6. From above submission, occurrence of
accident due to rash and negligent driving by driver of
tractor trailer, claimant sustaining injuries therein,
insurer issuing insurance policy which was valid on
MFA No. 21750 of 2011
date of accident are not in d isp ute. Only dispute is
about liability of insurer on ground of violation of
policy condition and quantum. Therefore, points that
arise for consideration are:-
a) whether Trib unal was justified in fixing
liability upon insurer?
b) Whether award passed by tribunal calls
for interference on quantum?
7. Insofar as point no.1, learned counsel for
appellant insurer fairly considered that in view of
decision of Hon'ble Supreme Court in case of Mukund
Dewangan vs. Oriental Insurance Comp any Ltd.,
reported in (2017) 14 SCC 663 even in absence of
transport endorsement, insurer would be liable.
Therefore, fastening of liability upon insurer does not
call for interference.
8. Insofar as point no.2, indeed claimant has
not examined any Doctor to estab lish extent of
disab ility sustained and loss of earning capacity
MFA No. 21750 of 2011
suffered. But, it is settled law that Tribunal is
empowered to make assessment based on evidence
available.
9. In instant case, claimant has sustained
fracture of right tibia. Occupation of claimant is
stated to be agriculturist. Ex .P6 wound certificate
ind icates that he also sustained other injuries to right
knee as well as ankle. Tenor of cross examination of
PW1 would indicate that insurer disputed claimant
taking treatment in hospital as alleged. But, there is
no serious d isp ute about claimant having sustained
loss of earning capacity . While assessing loss of
earning capacity, Trib unal has considered it at 7%
which on over all consideration does not appear to be
excessive or totally unjustified.
10. Interference in appeal cannot be merely on
basis of possibility of taking a d ifferent opinion. Point
no.2 is answered in negative.
MFA No. 21750 of 2011
11. In result, I pass following:
ORDER
a. Appeal is dismissed.
b. Amount in deposit is ordered to be
transmitted to Tribunal for d isbursement.
Sd/-
JUDGE
VMB
