Karnataka High Court
Anu @ Linga Shetty vs C Rajesh on 22 May, 2023
Bench: G Basavaraja
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MFA No. 791 of 2018
C/W MFA No. 735 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO. 791 OF 2018
(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 735 OF 2018
(MV-I)
IN MFA NO.791/2018
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD .,
DIVISIONAL OFFICE, MANGALORE.
THROUGH ITS REGIONAL OFFICE
#18, 5TH B & 6TH FLOORS
KRIHIBHAVAN, HUDSON CIRCLE
BANGALORE- 560 001, REP BY ITS MANAGER
...APPELLANT
(BY SRI. JANARDHAN REDDY, ADVOCATE)
Digitally AND:
signed by 1. ANU @ LINGA SHETTY
HARSHITHA B AGED ABOUT 39 YEARS
Location: S/O JAVARA SHETTY
HIGH COURT R/AT BALLURUPURA HOUSE
OF
KARNATAKA PALYA HOBLI, ALOORU TALUK,
HASSAN DISTRICT-573 134
2. C. RAJESH, AGED ABOUT 55 YEARS
S/O CHANDRAPPA, R/AT BALLURPURA
SINDODANAHALLI POST,
ALUR TALUK, HASSAN DISTRICT-573 116
(OWNER OF THE LORRY NO.KA-16-A-959)
...RESPONDENTS
(BY SRI.VISHWANATHA POOJARY K., ADVOCATE FOR R1
SRI.SVS LAW CHAMBER, ADVOCATE FOR R2)
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MFA No. 791 of 2018
C/W MFA No. 735 of 2018
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 22.11.2017 PASSED IN MVC
NO.364/2017 ON THE FILE OF THE 5TH ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL
MACT, D.K., MANGALURU, SITTING AT PUTTUR, D.K,
AWARDING AMOUNT OF RS.2,27,200/- WITH INTEREST AT 7%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO.735/2018
BETWEEN:
ANU @ LINGA SHETTY
NOW AGED ABOUT 40 YEARS
S/O JAVARA SHETTY
R/O BALLAURUPURA HOSUE
PALYA HOBLI, ALOOR TALUK
HASSAN DISTRICT-573201
...APPELLANT
(BY SRI. VISHWANATHA POOJARY K., ADVOCATE)
AND:
1. C. RAJESH, NOW AGED 56 YEARS,
SON OF CHANDRAPPA
R/O BALLURUPURA, SINGODANAHALLI POST,
ALUR TALUK, HASSAN DISTIRCT-573 201
2. THE DIVISIONAL MANAGER
THE UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE
RAMBHAVAN COMPLEX,
NAVABHARATH CIRCLE MANGALROE
DAKSHINA KANNADA DISTRICT, PIN-575 001
...RESPONDENTS
(BY SRI.JANARDHAN REDDY, ADVOCATE FOR R2
VIDE ORDER DT: 6.12.2021 NOTICE TO R1 IS
DISPENSED WITH)
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MFA No. 791 of 2018
C/W MFA No. 735 of 2018
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:22.11.2017 PASSED IN MVC
NO.364/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT
AND SESSIONS JUDGE, AND MEMBER, ADDITIONAL M.A.C.T.
D.K, MANGALURU, SITTING AT PUTTUR, D.K. PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has preferred MFA No.791/2018
against the judgment and award passed in
MVC No.364/2017 on the file of the V Addl.District and
Sessions Judge, D.K.Mangaluru, sitting at Puttur, D.K.
dated 22.11.2017 as to the liability and quantum of
compensation and also the rate of interest fixed by the
tribunal.
2. Appellant/claimant has preferred an appeal in
MFA No.735/2018 for enhancement of compensation.
3. Having heard the arguments on both sides and
perusal of the records the following points that would be
arise for my consideration are:
MFA No. 791 of 2018
C/W MFA No. 735 of 2018
1) Whether the appellant/claimant is entitled for
enhancement of compensation as sought for?
2) Whether the insurance company has made out a
grounds to interfere with the liability on the
insurance company as awarded by the tribunal?
3) Whether the insurance company has made out a
grounds to reduce the quantum of award
amount?
4) Whether the respondent-Insurance company
has made out ground to reduce the rate of
interest on the award amount?
5) What order?
4. My answer to the above points are as under:
Point No.1: Partly in the Affirmative
Point No.2: In the Negative
Point No.3: In the Negative
Point No.4: Partly in the Affirmative
Point No.5: As per final order
MFA No. 791 of 2018
C/W MFA No. 735 of 2018
REASONS
5. Point Nos.1 and 3: That there is no
dispute between the parties as to the alleged accident.
It is also not in dispute that appellant has sustained
injuries as per the wound certificate Ex.P.7. Ex.P.12 is
the case sheet. Exs.P7 and 12 reveals that the date of
admission is 13.12.2016 and the date of discharge is
17.12.2016. The claimant has also produced five
medical bills amounting to Rs.27,855/- with medical
prescription Ex.P.9. Dr. Ullas Shetty and Dr.Mayur Rai
issued disability certificate Exs.P.10 and 11. The
claimant has deposed in his evidence that due to the
accidental injuries, he is unable to do any work. He
has lost income and future income and is suffering
from permanent disability. The treated doctor PW2-
Dr.Mayur Rai has deposed in his evidence that he has
examined the petitioner and found injuries as per
Ex.P7. The claimant has taken follow-up treatment as
MFA No. 791 of 2018
C/W MFA No. 735 of 2018
out patient and he has clinically and radiologically
examined the injured by taking X-ray and evaluated
the permanent disability of the claimant to the extent
of 18% to his right lower limb and Rs.35,000/- is
required for removal of implant. On the basis of
permanent disability certificate, the tribunal has
assessed permanent disability of the claimant to the
extent of 8%. With regard to the physical disability of
the claimant concerned 8% is quite reasonable.
Hence, there is no need to interfere in this regard. But
the tribunal has assessed the notional income of the
petitioner at Rs.8,000/-. The tribunal ought to have
assessed income of the petitioner at Rs.9,500/- as per
the chart issued by the Karnataka State Legal Service
Authority. That there is no dispute as to the multiplier
15 adopted by the tribunal. Hence, it comes
Rs.9,500/-. Rs.9,500/-X12X15X8%=1,36,800/-, which
is rounded of to Rs.1,37,000/-. Accordingly, the
MFA No. 791 of 2018
C/W MFA No. 735 of 2018
appellant/claimant is entitled for compensation
towards loss of future income due to disability.
6. Considering the nature of injuries sustained
by the petitioner and oral and documentary evidence,
it is just and proper award the compensation on the
following heads.
Sl.No. Heads By Tribunal By this Court
1. Pain and agony Rs.30,000/- Rs.30,000/-
(As awarded by
the tribunal)
2. Earning during loss of Rs.24,000/- Rs.28,500/-
laid up period
3. Medical Expense Rs.27,855/- Rs.28,000/-
4. Food and Nourishment - Rs.10,000/-
and Attainder charges
during treatment
5. Future medical Rs.30,000/- Rs.30,000/-(As
Expense awarded by the
tribunal)
6. Loss of future income Rs.1,15,200/- Rs.1,37,000/-
due to disability
7. Loss of Amenities - Rs.20,000/-
Total Rs.2,27,200/- Rs.2,83,500/-
MFA No. 791 of 2018
C/W MFA No. 735 of 2018
7. Accordingly, the appellant/claimant is
entitled for enhancement of compensation and I
answer point No.1 in Partly affirmative and point
No.3 in the Negative.
8. Point No.2: With regard to the liability of
insurance company is concerned, learned counsel
appearing on behalf of insurance company has
submitted his argument that as on the date of the
accident, risk of the cleaner is not covered nor
received any additional premium to cover such risk of
the cleaner. On these ground sought for allow this
appeal by dismissing the liability of the Insurance
company.
9. In this regard in the impugned judgment at
para 21 and 22, the tribunal has observed as under:
MFA No. 791 of 2018
C/W MFA No. 735 of 2018
"21. In Ex.P3 mahazar drawn by Uppingady
Police and also in the sketch map of the accident
spot produced at Ex.P.4 it is mentioned that
offending lorry was carrying coffee seeds. Ex.P3
shows that coffee seeds bags of 70Kg/each were
thrown out from the lorry into rough road and
they were scattered in slush of rain water, out of
which coffee seeds of about 12 bags were
sustained loss to the tune of Rs.2,00,000/-. The
presence of coffee seeds bags scattered near the
accident spot are also mentioned in Ex.P4. The
said documentary evidence shows that the
petitioner has been engaged as cleaner in the
offending lorry when it was carrying coffee seeds
bags. Ex.R1 shows that the respondent No.2 has
received Rs.19,632/- as premium towards 3rd
party basic+Rs.100/- towards compulsory PA for
owner/driver, Rs.50/- towards LL to paid driver-
IMT 28. Further, respondent No.2 received
Rs.3,086/- as service tax and Rs.110/- as
Swatcha Bharatha Cess, in total respondent no.2
has received Rs.25,238/- as insurance premium.
The respondent no.2 has not produced fully
worded contract. It is not the case of respondent
no.2 that inspite of demand to pay premium
towards cleaner or loader, the RC owner has not
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MFA No. 791 of 2018
C/W MFA No. 735 of 2018
paid the same. When the respondent no.2 is able
to demand the receive service tax of Rs.3,086/-
and Swatcha Bharatha Cess Rs.110/-, why not
demanded the respondent no.1 to pay additional
premium to cover the risk of cleaner or loader
cum un-loader is not known. For making
payment of Rs.100/- as additional premium to
cover the risk of cleaner or loader cum un-loader
will not be any burden to the RC
owner/respondent no.1. Therefore, the defence
of respondent no.2 that additional premium to
cover the risk of cleaner is not paid by the
respondent no.1 and on the said ground
disputing liability of insurance company to
indemnify the respondent no.1 is not
sustainable. At this stage it is worth to refer
Sec.147 of MV Act, same is reproduced below for
ready reference.
Sec.147:- Requirements of policies and
limits of liability-(1) In order to comply with the
requirements of this chapter, a policy of
insurance must be a policy which-
(a) xxxxxxx
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MFA No. 791 of 2018
C/W MFA No. 735 of 2018
(b) Insurers the person or classes of
person specified in the policy to the extent
specified in sub section(2)-
(i) against any liability which may be
incurred by him in respect of the death or bodily
(injury to any person, including owner of the
goods, or his authorized representative carried
in the vehicle) or damage to any property of a
3rd party caused by or arising out of the use of
the vehicle in a public place.
(ii) against the death or bodily injury to
any passenger of a public service vehicle,
caused by or arising out of the use of the
vehicle in a public place,
Provided that a policy shall not be required-
(i) to cover liability in respect of the
death, arising out of and in the course of his
employment of the employee of a person
insured by the policy or in respect of bodily
injury sustained by such an employee arising
out of and in the course of his employment
other than a liability arising under the
workmen's compensation Act 1923(8 of 1923)
in respect of the death of or bodily injury to any
such employee.
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as
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MFA No. 791 of 2018
C/W MFA No. 735 of 2018
conductor of the vehicle or in examining tickets
on the vehicle, or
(c) If it is a goods carriage, being carried in the
vehicle, or
To cover any contractual liability.
22. As per the above provision of law it is
the duty of insurance company to cover the risk
of employee i.e. cleaner of the lorry, because as
admitted by RW1 it is the discretion of
respondent no.1 to engage cleaner, accordingly
engaged the petitioner as cleaner in the
offending lorry. Hence, there is no force in the
argument of learned counsel for respondent
no.2. Since the respondent no.2 has issued
package policy, risk is covered. The contractual
liability between respondent no.1 and 2 is
subsisting as on the date of accident. Hence
respondent No.2 shall indemnify the respondent
No.1 in making compensation to the petitioner.
Accordingly, I answer Issue No.2 partly in the
affirmative holding that the petitioner is entitled
for just compensation of Rs. 2,27,200/- from
the respondent No.2."
10. A perusal of the impugned judgment, it is
clear that the tribunal has properly appreciated
evidence on record in accordance with law and facts.
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MFA No. 791 of 2018
C/W MFA No. 735 of 2018
11. Considering the facts and circumstances of
the case and also keeping in the mind of Rule 100 of
Karnataka Motor Vehicle Rules, 1989, it is held that
there are no grounds to interfere with the impugned
judgment and award as to the liability of the insurance
company. Accordingly, I answer point No.2 in the
Negative.
12. Point No.4: With regard to the interest on
award amount is concerned, the tribunal has awarded
amount of Rs.2,27,200/- with interest 7% PA.
(Excluding future medical expense) which is on higher
side.
13. Considering the rate of interest on fixed
deposit in nationalized bank as on the date of
accident, it is just and proper to award an interest at
6% instead of 7%. Hence, the same is liable to be
modified. Accordingly, point No.4 is answered partly
in the affirmative.
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MFA No. 791 of 2018
C/W MFA No. 735 of 2018
14. Point No.5: For the aforesaid reasons and
discussions, I proceed to pass the following:
ORDER
MFA No.791/2018 filed by the Insurance
company is partly allowed.
MFA No.735/2018 filed by the claimant is partly
allowed.
The appellant is entitled for enhanced
compensation of Rs.2,83,500/- with interest 6% P.A.
(excluding interest on future medical expenses) from
the date of petition till the date of deposit of
compensation amount.
Respondent-Insurance company is directed to
deposit the said compensation amount with interest at
6% before the tribunal within 30 days from the date of
award.
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MFA No. 791 of 2018
C/W MFA No. 735 of 2018
All other terms and conditions stipulated by the
Tribunal shall stand intact.
The Registry is directed to transfer the deposit
amount to the tribunal along with accrued interest.
Draw award accordingly.
SD/-
JUDGE
BH
