Karnataka High Court
The Oriental Insurance Co., Ltd vs Shivanand S/O. Basappa ... on 11 July, 2023
Bench: M.G.Umaj
-1-
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G.UMA
MISCELLANEOUS FIRST APPEAL NO.21156/2011 (MV-I)
C/W MFA CROSS OBJ NO.787/2011
IN MFA NO.21156/2011:
BETWEEN:
THE ORIENTAL INSURANCE CO., LTD.,
DIVISIONAL MANAGER, DIVISIONAL OFFICE,
CLUB ROAD, BELGAUM, REPRESENTED THROUGH
REGIONAL OFFICE,SUMANGALA COMPLEX,
IIND FLOOR, STATION ROAD, HUBLI.
REP.BY ITS ASSISTANT MANAGER.
...APPELLANT
(BY MISS VINAYA KUPPELUR, ADVOCATE FOR
SRI N.R. KUPPELUR, ADVOCATE)
AND:
1. SRI. SHIVANAND S/O. BALAPPA PATTANASHETTY,
AGE: 49 YEARS, OCC: BUSINESS,
R/O: PLOT NO.50, VAIBHAV NAGAR,
Digitally
signed by BELGAUM.
VINAYAKA
BV 2. SRI SURYAKUMAR S/O. K. NAYADU,
AGE: MAJOR, OCC: BUSINESS,
R/O: HOUSE NO. 962, BHATKAENDI GALLI,
BELGAUM.
...RESPONDENTS
(BY SRI SRINIVAS NADAMANI, ADVOCATE FOR
SRI JAGADISH PATIL, ADVOCATE FOR C/R1;
NOTICE TO R2 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
23-11-2010 PASSED IN MVC NO.1642/2008 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR
ACCIDENT CLAIM TRIBUNAL, BELGAUM, AWARDING THE
-2-
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
COMPENSATION OF RS.2,14,200/- WITH INTEREST AT THE RATE OF
6% P.A., FROM THE DATE OF PETITION TILL REALISATION.
IN MFA.CROB.NO.787/2011:
BETWEEN:
SRI. SHIVANAND S/O. BALAPPA PATTANASHETTY,
AGE: 50 YEARS, OCC: BUSINESS, R/O: PLOT NO.50,
VAIBHAV NAGAR, BELGAUM.
...CROSS OBJECTOR
(BY SRI SRINIVAS NADAMANI, ADVOCATE FOR
SRI JAGADISH PATIL, ADVOCATE)
AND:
1. SURYAKUMAR K. NAYADU,
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO. 962, BHATKAENDI GALLI,
BELGAUM.
(OWNER OF THE VEHICLE BEARING NO.KA-22/A-9432)
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO, LTD.,
D.O. AT CLUB ROAD, BELGAUM.
(RESPONDENTS BEFORE THE TRIAL COURT,
RESPONDENTS BEFORE THIS HON'BLE HIGH COURT).
...RESPONDENTS
(BY MISS. VINAYA KUPPELUR, ADVOCATE FOR
SRI N.R. KUPPELUR, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
THIS MFA.CROB IS FILED UNDER ORDER 41 RULE 22 OF THE
CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIE THE JUDGMENT
AND AWARD PASSED BY THE IIND ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIM TRIBUNAL,
BELGAUM IN MVC NO.1642/2008 DATED 23.11.2010 AND AWARD
THE COMPENSATION AS PRAYED FOR IN THE CLAIM PETIION.
THESE MFA AND MFA.CROB, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
JUDGMENT
Appellant-Respondent No.2 in M.V.C. No. 1642/2008 is
impugning the judgment and award dated 23.11.2010 on the
file of the II Addl. Sr. Civil Judge & AMACT, Belgaum
(hereinafter referred to as the Tribunal), awarding
compensation of Rs.2,14,200/- with interest at 6% p.a. from
the date of petition till realisation and directing the respondent
No.2 to deposit the compensation. The claimant has preferred
cross objection seeking enhancement of the compensation.
Parties shall be referred to as per their ranking before the
Tribunal.
2. Brief facts of the case as stated in the claim petition is
that the claimant filed claim petition u/s 166 of M.V. Act
contending that he is the partner of M/s Super Metal Industries,
Belgaum and on 18.03.2008 he was traveling in the TATA ACE
vehicle bearing reg. no. KA-22-A-9432 along with the goods,
i.e., alluminium scrap material. Due to the rash and negligent
driving of the vehicle by its driver, he dashed the same to
another goods vehicle which was parked by the side of the
road. Due to the impact, the claimant sustained injuries and
was shifted to the hospital. He spent huge amount for his
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
treatment and he has suffered permanent disability.
Respondent No.1 being the owner, respondent No.2 being the
insurer of the offending vehicle are liable to pay compensation.
Accordingly, he prayed for allowing the claim petition.
Respondent No.1 has not contested the matter.
Respondent No.2 filed objection statement denying the
contentions taken by the claimant. It is also contended that
the vehicle in question was a goods carriage and no persons
are permitted to travel in the same. Even if the claimant was a
passenger, then also the insurer is not liable to pay
compensation. Accordingly, he prayed for dismissal of the
petition.
3. On the basis of these pleadings, the Tribunal framed the
following:
ISSUES
1. Whether petitioner proves that he suffered injuries in a
motor vehicle accident that allegedly occurred on NH-4 within
the limits of M.K.Hubli on 18.03.2008 at 24-00 hours due to
rash and negligent driving of vehicle bearing No.KA-22/a-9432
by its driver?
2. Whether petitioner is entitled for compensation? If so, to
what extent and from whom?
3. What order or award?
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
The claimant examined PWs.1 and 2 and got marked Exs.P.1 to
P.11 in support of his contention. Respondent No.2 got marked
Ex.R.1. The Tribunal after taking into consideration all these
materials came to the conclusion that claimant is entitled for
compensation of Rs.2,14,200/- with interest at 6% p.a.
Respondent No.2 was directed to deposit the compensation.
Being aggrieved by the same, the insurer is before this Court.
4. Heard Miss Vinaya Kuppelur, learned counsel for the
appellant-insurer and Sri Srinivas Nadamani, learned counsel
for the cross-objector.
5. Learned counsel for the appellant-insurer has contended
that even though the claimant has claimed that he was the
owner of the goods in question, he has not produced any
material in support of the same. During cross examination of
PW1, the claimant categorically admitted that he is not having
any documents to show that he was carrying the goods along
with him while traveling in the offending vehicle. Under such
circumstances, it cannot be held that he was the owner of the
goods in question. As per Ex.R.1 the Insurance Policy, seating
capacity of the goods vehicle is 1+1 including the driver. As
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
per the limitations to the use, carrying the passengers in the
vehicle, except the employees not exceeding the number
permitted in the RC is barred.
6. She further submitted that, admittedly claimant is not an
employee and he failed to prove that he was the owner of the
goods in question. Under such circumstances, the Tribunal
committed an error in awarding compensation. Accordingly she
prays for setting aside the impugned judgment and award by
allowing the appeal in the interest of justice.
7. Per contra, learned counsel for the cross objector
opposing the appeal submitted that the claimant has pleaded
that he was the owner of the goods in question but
unfortunately he could not produce the relevant documents
before the Tribunal. He came to know about non production of
the documents very recently and that is why he has filed I.A.
No. 1/2023 under Order XLI Rule 27 CPC, producing the cash
memo dated 18.03.2008 and delivery note of even date. These
documents substantiate the contention of the claimant that he
was transporting the alluminium scrap in the vehicle in
question. Therefore, he prays for allowing I.A. No. 1/2023.
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
Learned counsel also contended that the Tribunal has not
awarded just compensation and seeks for enhancement.
8. Perused the materials on record including the trial Court
records.
9. The points that arise for consideration in this appeal is:
1) Whether I.A. No. 1/2023 is to be allowed?
2) Whether the impugned judgment and award
passed by the Tribunal requires interference by this
Court?
10. My answer to point no.1 is in the 'negative' and point
no.2 is 'partly in the affirmative' for the following:
REASONS
11. The claimant is said to be a businessman and an
agriculturist. He is said to be the partner of M/s Super Metal
Industries, Belgaum and claimed compensation for the injuries
sustained by him. In the claim petition he contended that he
was travelling along with the alluminium scrap materials.
When he was examined as PW1 and the learned counsel for
respondent No.2 cross-examined him, he categorically stated
that he was not having any documents to substantiate his
contention that he was traveling along with the goods. He also
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
stated that he is not having any document to show that
alluminium scrap materials was belonging to M/s Super Metal
Industries or that he was acting as a Commission Agent and
carrying the materials along with him. But strangely cross
objector filed I.A. No. 1/2023 under Order XLI Rule 27 CPC
seeking permission to produce the purchase bill dated
18.03.2008 and delivery note dated 31.05.2007 along with tax
invoice dated 18.03.2005 as additional evidence. The affidavit
sworn by the claimant discloses that during the arguments
addressed by the learned counsel, the claimant came to know
that he has not produced any documents before the Tribunal to
substantiate his contention that he was traveling along with the
goods and later he found the additional documents with him
and intends to produce the same. There is absolutely no
explanation as to why these documents were not produced
before the Tribunal from 2008 till disposal of the claim petition
in the year 2010 and even when he has preferred cross
objection seeking enhancement of compensation.
12. It is pertinent to note that the order sheet dated
09.02.2023 highlighted that the only question involved in the
appeal is as to whether respondent No.1 was the owner in the
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
goods vehicle which is being carried in the vehicle or not.
Thereafter, on 04.09.2023, I.A. No. 1/2023 was came to be
filed. These circumstances are to be considered in the light of
the evidence of PW1 before the Tribunal wherein he
categorically stated that he is not having any documents to
prove his contention that he was traveling along with the goods
or in other words he was the owner of the goods carried in the
vehicle. The documents produced by the claimant are the cash
memo dated 18.03.2008, second one is the delivery note dated
31.05.2007 and the third one is the credit order dated
18.03.2008. It is pertinent to note that both the cash memo
and the delivery note are signed by the claimant himself. If at
all these documents were available with the claimants, he
would not have stated during his cross examination that he is
not having any documents in support of his contention that he
was traveling along with the goods. Under such circumstances,
a cloud of doubt cast on the genuineness of these documents.
Moreso, when the claimant has not stated anything as to why
those documents were not produced before the Court or at this
before this Court while filing the cross objection. Under Order
41 Rule 27 CPC there is a bar for production of additional
- 10 -
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
evidence before the appellate Court, unless specific ground as
mentioned in Rule 27 CPC are made out. On going through the
affidavit accompanying the application, I.A. No. 1/2023 no such
grounds as made out under Rule 27 of Order XLI CPC. I do not
find any bonafides in the conduct of the claimant and therefore
the application, I.A. No. 1/2023 is liable to be rejected.
13. When the claimant failed to substantiate his contention
that he was the owner of the goods in question, the only
conclusion that can be arrived at is that he was an
unauthorized passenger traveling in the goods vehicle.
14. Ex.R.1, the copy of Insurance Policy carries limitation as
to the goods including carrying of passengers in the vehicle.
Under such circumstances, I find considerable force in the
contentions taken by the appellant to hold that the claimant is
not entitled for any compensation. Under such circumstances,
he is not entitled for any compensation from the hands of the
insurer.
15. I have gone through the impugned judgment and award
passed by the Tribunal. There is absolutely no discussion about
the stand taken by the respondent No.2 to deny its liability and
- 11 -
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
proof of the claimant traveling in the goods vehicle along with
the goods. Under such circumstances, I am of the opinion that
the impugned judgment and award passed by the Tribunal
fastening liability to pay compensation on the insurer is liable to
be set aside.
16. Ex.P.4 is the wound certificate according to which the
claimant sustained (1) Posterior dome of acetabular fracture of
left hip, (2) Posterior dislocation of left hip joint, and (3)
fracture lateral condylar of the upper end of the left tibia bone.
According to the Doctor-PW2, injury nos.2 and 3 are grievous
in nature. The claimant took treatment as inpatient from
19.03.2008 till 10.04.2008 at Kapileshwar Orthopaedic, Trauma
& Surgical Care Centre, Belgaum. Ex.P.10 are the medical bills
according to which he has spent about Rs.90,000/- for his
treatment. Doctor has assessed disability of 60% to the left
lower limb as per Ex.P.9, which is rightly taken by the Tribunal
at 15% to the whole body.
17. The injured-claimant pleaded that he was the partner of
M/s Super Metal Industries, Belgaum, doing all the affairs of
the firm and earning Rs.10,000/- per month, however he has
- 12 -
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
not produced any proof of the same. In the absence of the
same, the Tribunal has assessed monthly income of the injured
at Rs.3,000/-, which is on the lower side. In view of the same,
the guidelines adopted by the Lok Adalath for assessing
monthly income of the victims of the accidents could be taken
into consideration. The accident is of the year 2008 and the
income could be taken at Rs.4,250/-, the claimant was aged 47
years as on the date of accident and the appropriate multiplier
would be '13'. The disability to the whole body is rightly
assessed at 15% by the Tribunal. Thus the compensation
towards loss of income would be Rs.99,450/- (Rs.4,250/- x 12
x 13 x 15/100).
18. The claimant was an inpatient for a period of 22 days and
might have taken rest for a period not less than three months.
Hence, he is entitled for loss of income during laid up period at
Rs.12,750/- (Rs.4,250/- x 3).
19. The compensation awarded by the Tribunal under other
heads is just and proper and does not call for interference.
Thus, the claimant is entitled for compensation as under:
- 13 -
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
Sl. No. Particulars Amount
1. Loss of future income 99,450.00
2. Loss of income during laid up 12,750.00
period
3. Pain & sufferings 20,000.00
4. Medical expenses, special 1,00,000.00
diet, nutritious food,
conveyance and attendant
charges
5. Loss of amenities and future 15,000.00
happiness
Total 2,47,200.00
Award of Tribunal 2,14,200.00
Enhancement 33,000.00
20. In the result, the appeal preferred by the insurer is liable
to be allowed while the cross objection preferred by the
claimant seeking enhancement is liable to be partly allowed.
I.A. No. 1/2023 filed in the cross objection for production of
additional documents is liable to be rejected. Accordingly, I
answer the point no.1 in the negative and point no.2 partly in
the affirmative and proceed to pass the following:
ORDER
Appeal preferred by the appellant-insurer is allowed.
I.A. No. 1/2023 filed in the Cross objection for production
of additional documents is rejected.
Cross Objection filed by the claimant seeking
enhancement of compensation is allowed in part.
- 14 -
NC: 2023:KHC-D:7027
MFA No. 21156 of 2011
C/W MFA.CROB No. 787 of 2011
Consequently, the judgment and award dated 23.11.2010
passed in M.V.C. No. 1642/2008 by the II Addl. Sr. Civil Judge
& AMACT, Belgaum is modified holding that the claimant is
entitled for total compensation of Rs.2,47,200/- as against
Rs.2,14,200/- with interest at 6% p.a. from the date of petition
till realisation.
Claim against the respondent No.2-insurer is rejected.
Respondent No.1-owner of the offending vehicle is held
liable to pay compensation. Hence, he is directed to deposit
the compensation amount within three months from the date of
award.
Amount in deposit is ordered to be refunded to the
appellant on due identification.
Send back the trial Court records with a copy of
judgment.
SD/-
JUDGE
BVV
