Karnataka High Court
The Branch Manager United India ... vs Shivshanker @ Shankerayya S/O ... on 16 March, 2023
Bench: G Basavaraja
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MFA No. 200116 of 2016
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCL. FIRST APPEAL NO. 200116 OF 2016 (MV-I)
BETWEEN:
1. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE, TILAK NAGAR,
MAIN ROAD,LATUR REPRESENTED
BY DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISION OFFICER
KALABURAGI-585103
...APPELLANT
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND:
1. SHIVSHANKER @ SHANKERAYYA
Digitally S/O REVANAYYA MATHAPATI
signed by
RAMESH AGE: 37 YEARS, OCC: MUNIM & HAMAL
MATHAPATI R/O NAVADGI TQ.BHALKI
Location: DIST. BIDAR NOW RESIDING AT
High Court H.NO.9-12-607, NAVADGERI,
of BIDAR-585401
Karnataka
2. SIDDALING S/O REVANAYYA SWAMY
AGE: MAJOR OCC: AGRICULTURE & BUSINESS
R/O VILLAGE NAVADAGI
TQ.BHALKI-585328
(OWNER OF HERO HONDA MOTORCYCLE
NO.KA-39/J-6376)
...RESPONDENTS
(BY SRI SANDEEP VIJAYAKUMAR, ADVOCATE FOR R1;
R2-SERVED)
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MFA No. 200116 of 2016
THIS MFA IS FILED U/S 173(1) OF MV ACT, BY THE
ADVOCATE FOR APPELLANT, PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND
AWARD DATED 16.06.2015 PASSED BY THE II ADDITIONAL
MACT AND ADDITIONAL DISTRICT JUDGE, BIDAR, IN MVC
NO.619/2012, BY ALLOWING THE APPEAL AS PRAYED FOR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the
consent of both counsel, it is taken up for final disposal.
The appellant/insurance company has challenged the
impugned judgment and award directing it to pay
compensation, on the ground that the claimant himself
was riding the motorcycle and dashed to the road divider
and sustained injuries. As such, claimant-rider being a
tort-feasor is solely responsible for the accident, and
fastening the liability on the appellant/insurance company
is against the materials placed on record.
2. For the sake of convenience, the parties are
referred to by their rank before the Tribunal.
MFA No. 200116 of 2016
3. It is the case of the petitioner that on
15.02.2011 the petitioner after completing his duty, was
returning to his village Navadagi by riding the motorcycle,
due to slip motorcycle dashed the road divider near Phule
Chowk Bhalki. Due to which he fell on the road and
sustained compound fractures of both bones of right tibia
and fibula. As the appellant is the insurer of motorcycle,
respondent No.2 is liable to pay compensation.
4. Heard arguments and perused the records.
5. Learned counsel for the appellant/insurance
company ha submitted his argument that the Tribunal has
awarded excess amount contrary to the Schedule-II of the
Motor Vehicles Act (for short 'the M.V.Act), as the
petitioner has filed the petition under Section 163A of the
M.V.Act. Hence, sought for modification of the award
passed by the Tribunal.
6. As against this, learned counsel for
respondent/petitioner submitted his argument that
MFA No. 200116 of 2016
considering the fractures of both bones of right tibia and
fibula, the Tribunal has awarded just compensation and
that there is no ground to interfere with the judgment and
award passed by the Tribunal and to substantial his
argument, he relied upon decision reported in 2014 Kant
MAC 509 in The Oriental Insurance Company Ltd. Vs.
Shilpakala and others.
7. The Tribunal has observed at para-15 of its
judgment while awarding compensation as under:
15. So far as medical expenses is concerned,
petitioner has filed the medical bills and
prescriptions, they would show that the
petitioner had spend Rs.5,000/- towards
hospital charges and medical expenses.
Therefore, this court could believe the above
hospital bills and medical bills and prescriptions
and on believing the above documents, this
court believe that petitioner could have been
spent Rs.10,000/- hence the following
calculation:
Sl. Head Amount
No.
1. Pain & sufferings Rs.30,000/-
2. Loss of future amenities Rs.10,000/-
3. Conveyance and nourishment Rs.5,000/-
4. Medical Expenses Rs.5,000/-
Total Rs.50,000/-
MFA No. 200116 of 2016
8. A perusal of the documentary evidence placed
by the petitioner i.e. wound certificate/Ex.P3 reveals that
the petitioner has sustained both bones of right tibia and
fibula and the injured has admitted to the Hospital on
15.02.2011 and discharged on 27.01.2011, Ex.P4 is the
discharge card. Since the petitioner has not produced
disability certificate, the court has not awarded any
compensation for loss of future earning. However, the
Tribunal has awarded compensation in a sum of
Rs.30,000/- towards pain & sufferings as per Schedule-II
of the M.V.Act. The future amenities is also not shown in
the Schedule-II. However, considering the fractures of
right tibia and fibula, this Court can take judicial notice to
some extent there is some permanent disability.
9. Considering the nature of injuries sustained by
the petitioner, I am of the considered opinion that it is just
and proper to award compensation in a sum of
Rs.35,000/- instead of Rs.50,000/-. Accordingly, I proceed
to pass the following:
MFA No. 200116 of 2016
ORDER
(i) The appeal filed by the insurance company
is partly allowed.
(ii) The petitioner/claimant is entitled
compensation in a sum of Rs.35,000/-
with interest at 6% p.a. instead of
Rs.50,000/- as granted by the Tribunal.
(iii) The respondent/insurance company is
directed to deposit the said compensation
with accrued interest from the date of
petition till realization within a period of
eight weeks.
(iv) On deposit of the compensation amount,
the entire amount shall be paid to the
petitioner/claimant after obtaining
necessary documents.
(v) The amount deposited, if any by the
insurance company is directed to be
transmitted to the concerned Tribunal,
along with a copy of this order.
Sd/-
JUDGE
SDU
