The Divisional Manager vs Fakirappa S/O. Irappa Pented
2023 Latest Caselaw 3779 Kant

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                                                   NC: 2023:KHC-D:6409
                                                    MFA No. 102073 of 2015




                 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                       DATED THIS THE 28TH DAY OF JUNE, 2023

                                       BEFORE

                         THE HON'BLE MRS. JUSTICE M.G.UMA

                 MISCELLANEOUS FIRST APPEAL NO.102073/2015(MV-D)

            BETWEEN:

            THE DIVISIONAL MANAGER,
            NATIONAL INSURANCE COMPANY LTD., DHARWAD,
            THROUGH ITS DIVISIONAL OFFICE, RAMDEV GALLI,
            BELAGAUM, JAIPUR, RAJASTHAN - 302022.
            NOW REPRESENTED BY DIVISIONAL MANAGER,
            NATIONAL INSURANCE CO. LTD.
                                                              ...PETITIONER
            (BY SMT. ARUNA R. DESHPANDE, ADVOCATE)

            AND:

            1.    SHRI FAKIRAPPA S/O.IRAPPA PENTED,
                  AGE: 54 YEARS, OCC: AGRICULTURE,
                  R/O. DODWAD, TQ: BAILHONGAL, DIST: BELGAUM.

            2.    SHRI GOPAL B. NIRALKATTI, AGE: MAJOR,
                  OCC: BUSINESS, R/O. BASAVANADEVARGUDI ONI,
                  YERIKOPPA, DHARWAD.
Digitally
signed by
VINAYAKA    3.    SHRI BHUPALGOUDA NINGANAGOUDA PATIL,
BV
                  AGE: 66 YEARS, OCC: AGRICULTURE,
                  R/O: YERIKOPPA, DHARWAD.
                                                            ...RESPONDENTS
            (BY SRI S.L. MATTI, ADVOCATE FOR R1;
            NOTICE TO R2 IS HELD SUFFICIENT;
            NOTICE TO R3 IS SERVED)

                  THIS MFA IS FILED U/S 173(1) OF M.V. ACT, 1988, AGAINST
            THE JUDGMENT AND AWARD DATED 13.04.2015, PASSED IN
            M.V.C.NO.1068/2013, ON THE FILE OF THE SENIOR CIVIL JUDGE
            AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
            BAILHONGAL & ETC.
                  THIS MFA, COMING ON FOR FURTHER HEARING, THIS DAY,
            THE COURT DELIVERED THE FOLLOWING:
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                                          NC: 2023:KHC-D:6409
                                           MFA No. 102073 of 2015




                            JUDGMENT

The insurer-respondent No.2 in M.V.C. No. 1068/2023 on

the file of the learned Senior Civil Judge & AMACT, Bailhongal

(hereinafter referred to as the Tribunal) is impugning the

judgment and award dated 13.04.2015, allowing the claim

petition and awarding compensation of Rs.4,93,600/- with

interest at 9% p.a. from the date of petition till realisation

payable by both the respondent Nos.1 and 2 jointly and

severally.

Parties shall be referred to as per their ranking before the

Tribunal.

2. Brief facts of the case are that the claimant in M.V.C. No.

1068/2023 filed claim petition claiming compensation from the

respondents contending that he was traveling on the

motorcycle bearing reg. no. KA-24-L-9656 as a pillion rider.

One Shivanandayya Hiremath was the rider of the motorcycle.

When they reached near the scene of occurrence on Garag-

Bailhongal road, the driver of the tractor bearing reg.no. KA-

25-T-8973 came from Tadkod and dashed against the

motorcycle, as a result of which both the rider and the pillion

rider sustained injuries. The rider of the motorcycle succumbed

NC: 2023:KHC-D:6409 MFA No. 102073 of 2015

to the injuries. The claimant being the pillion rider sustained

two fractures and had taken treatment for a prolonged period

by incurring huge expenses. It is stated that respondent No.1

being the owner and respondent No.2 being the insurer of the

tractor, are jointly and severally liable to pay compensation.

Respondent No.1 appeared before the Tribunal

contending that the offending tractor was sold in favour of

respondent No.3 and therefore respondent No.3 is liable to pay

compensation. Respondent No.3 filed objections denying the

contention of the claimant and also contending that owner and

the insurer of the motorcycle in question are not arrayed as

parties. There is non joinder of necessary parties. The rider of

the motorcycle has also contributed in causing the accident.

therefore, the claim against respondent No.2 is liable to be

dismissed.

3. On the basis of these pleadings, the Tribunal has framed

the following issues:

1. Whether the petitioner proves that on 29.11.2012 at about 8.30 p.m. on Garag-Bailhongal road, near the land of one Navalagund Hangaraki, Dharwad, when the petitioner was traveling by sitting as pillion rider of motorcycle bearing Reg.

NC: 2023:KHC-D:6409 MFA No. 102073 of 2015

No. KA-24-L-9656, which was driven by Shivanandayya Virupaxayya Hiremath, when they came near the spot of accident, at that time driver of Tractor bearing Reg. No.KA-25- T-8973 came from Tadakod side in very high speed with rash and negligent manner so as to endanger the human life and dashed to Motorcycle thereby caused accident caused grievous injuries to him?

2) Whether the petitioner proves that, the driver of offending vehicle has valid and effect driving licence at the time of accident?

3) Whether the petitioner is entitle for compensation, If so, at what extent and from whom?

4) What order or award?

The claimant examined himself before the Court as PW2

and got examined PW3 and got marked Exs.P.1 to P.141 in

support of his contention. Respondent No.2 got examined RW1

and got marked Ex.R.1 copy of the policy in support of its

defence.

The Tribunal after considering all the materials on record

came to the conclusion that the claimant is entitled for

compensation of Rs.4,93,600/- with interest at 9% p.a. from

the respondent Nos.1 and 2 jointly and severally. Being

NC: 2023:KHC-D:6409 MFA No. 102073 of 2015

aggrieved by the same, the respondent No.2-insurer is before

this Court.

4. Heard Smt. Aruna R. Deshpande, learned counsel for

appellant and Sri S.L. Matti, learned counsel for respondent

No.1.

5. Learned counsel for the appellant submitted that the

owner and the insurer of the motorcycle in question are not

arrayed as respondents as there was contributory negligence

on the part of the rider of the motorcycle and the same was not

considered by the Tribunal. Therefore, the insurer cannot be

made liable to pay the entire compensation. Moreover, the

compensation awarded towards pain & suffering and incidental

charges are very high and exorbitant.

6. Learned counsel also contended that the interest at the

rate of 9% p.a. awarded on the compensation is on the higher

side. Hence, she prays for allowing the appeal and to dismiss

the claim against the appellant herein.

NC: 2023:KHC-D:6409 MFA No. 102073 of 2015

7. Per contra, learned counsel for the respondent No.1-

claimant opposing the appeal submitted that the LRs. of rider of

the motorcycle who died in the accident filed claim petition in

M.V.C. No. 1073/2013 which was disposed of along with the

present claim in M.V.C. No. 1068/2013 under common

judgment and award on 13.04.2015. The appellant herein has

preferred M.F.A. No. 102072/2015 challenging its liability to

pay compensation and the same was disposed of by the co-

ordinate Bench of this Court on 29.11.2017 confirming the

judgment and award passed by the Tribunal saddling liability on

the insurer. Under such circumstances, the contention taken

by the insurer is liable to be rejected.

8. He further submits that considering the fact that the

claimant has suffered two fractures and he had undergone

treatment as inpatient for a period of 52 days, the

compensation awarded by the Tribunal is just and reasonable

and it does not call for interference and prays for dismissal of

the appeal.

9. From the above the following point arises for

consideration:

NC: 2023:KHC-D:6409 MFA No. 102073 of 2015

Whether the impugned judgment and award passed by the Tribunal calls for interference by this Court?

10. My answer to the above is partly in the affirmative for the

following

REASONS

11. Learned counsel for the appellant fairly concedes that the

connected appeal in M.F.A. No. 102072/2015 arising out of

M.V.C. No. 1073/2013 disposed of along with the present claim

petition, liability is fastened on the owner of the insurer. Under

such circumstances, I do not find any reason to discuss about

the negligence. Hence, I hold that the insurer is liable to pay

compensation to the claimant as held by the Tribunal.

12. Further, as regards the contention of the appellant that

the amount awarded by the Tribunal towards pain and suffering

and incidental charges, is high and exorbitant is concerned, it is

evident that the claimant was admitted to the hospital for a

period of 52 days and noticing these facts the Tribunal has

awarded compensation of Rs.1 lakh towards pain and suffering

and Rs.50,000/- towards incidental charges, which obviously

NC: 2023:KHC-D:6409 MFA No. 102073 of 2015

include attendant's charges and other incidental expenses.

Hence, this contention is also liable to be rejected.

13. However, the Tribunal has not assigned any valid reasons

for awarding 9% interest payable on the compensation. Hence,

the same is liable to be reduced to 6% p.a.

14. Considering the amount of compensation awarded under

the facts and circumstances of the case, I am of the opinion

that it is just and reasonable and do not call for interference by

this Court, but for reducing the rate of interest from 9% to 6%

p.a. Accordingly, I answer the point for consideration partly in

the affirmative and pass the following:

ORDER

The appeal is allowed in part.

Consequently, the impugned judgment and award passed

by the learned Sr. Civil Judge & AMACT, Bailhongal dated

13.04.2015 in M.V.C. No. 1068/2013 is modified only to the

extent of awarding of interest at 6% p.a. on the compensation

that is awarded by the Tribunal.

NC: 2023:KHC-D:6409 MFA No. 102073 of 2015

Appellant is directed to deposit the compensation amount

with up to date interest within two months from the date of

award.

Office to draw award accordingly.

Amount in deposit be transmitted to the Tribunal.

Send back the trial Court records with a copy of the

judgment and award.

SD/-

JUDGE BVV