Karnataka High Court
Puttaraju @ Puttamallaiah vs B N Jayaram on 18 November, 2023
Bench: Rajendra Badamikar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO.6475/2012(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.2921/2013(MV),
MISCELLANEOUS FIRST APPEAL NO.6603/2013(MV-D)
IN MFA.NO.6475/2012:
BETWEEN:
PUTTARAJU @ PUTTAMALLAIAH,
S/O RANGAIAH,
AGED ABOUT 41 YEARS,
RESIDENT OF CHIKKAMATHIGATTA VILLAGE,
DODDAGUNNAHALLI HOBLI,
CHANNARAYAPATNA TALUK-560 116,
HASSAN DISTRICT.
... APPELLANT
(BY SRI. CHETHAN .B, ADVOCATE)
AND:
1. B.N. JAYARAM,
S/O B.N. NANJEGOWDA,
MAJOR,
RESIDENT OF BAGEVALU VILLAGE
AND POST, GANDASI HOBLI,
ARASIKERE TALUK-560 103,
HASSAN DISTRICT.
2. THE MANAGER,
ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
1ST FLOOR, S.S. COMPLEX,
2
SUBHASH SQUARE,
HASSAN-573 201.
3. DEEPAK C.V. S/O BALAKRISHNA
MAJOR,
RESIDENT OF 5: 454(489),
KRISHNA NIVAS, KADIYUR,
THALASSERY, W.S. KONUR,
KEREALA STATE-670 101.
4. THE MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
NO.80, THALASSERY, C.J.NO.97,
ASHIK TOWER, NARANGPURAM,
THALASSERY,
KEREALA STATE-570 101.
REPRESENTED BY
THE MANAGE,
UNITED INDIA INSURANCE CO. LTD.,
SUBHASH SQUARE,
HASSAN-573 201.
... RESPONDENTS
(BY SRI. P.B. RAJU, ADVOCATE FOR R2,
V/O DTD: 7.3.2014, SRIKANTA RAO, ADVOCATE FOR R4,
V/O DTD: 30.1.2014, NOTICE TO R1 & R3 IS D/W)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 26.03.2012,
PASSED IN MVC NO.1967/2009 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-I, ADDITIONAL MACT, HASSAN,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA.NO.2921/2013:
BETWEEN:
THE MANAGER,
ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
1ST FLOOR, S.S. COMPLEX,
3
SUBHASH CIRCLE HASSAN.
REP. BY THE REGIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
2ND FLOOR, SUMANGALA COMPLEX,
LAMINGTON ROAD,
HUBLI-580 020.
... APPELLANT
(BY SRI.P. B. RAJU, ADVOCATE)
AND:
1. SRI. PUTTARAJU @ PUTTAMALLAIAH,
S/O SRI. RANGAIAH,
AGED ABOUT 41 YEARS,
RESIDENT OF CHIKKAMATHIGATTA VILLAGE,
DODDAGUNNAHALLI HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-562 137.
2. SRI. B.N. JAYARAM,
S/O B.N. NANJEGOWDA,
MAJOR,
R/O GANDASI HOBLI,
ARASIKERE TALUK-573 103,
3. SRI. DEEPAK C.V. S/O BALAKRISHNA
AGED: MAJOR,
RESIDENT OF 5: 454(489),
KRISHNA NIVAS, KADIYUR,
TALA SERI, W.E. KONUR,
KEREALA STATE-670 571.
4. THE MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
C.G.NO.97, ASHISH TOWERS,
SARANGA PURAM, TALASERI,
KEREALA-670 650.
... RESPONDENTS
(BY SRI. B. CHETHAN, ADVOCATE FOR R1,
4
SRI. V.S. GOVARDHANA, ADVOCATE FOR R2,
R3 IS SERVED,
SRI. A. RAVISHANKAR, ADVOCATE FOR R4)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:26.03.2012,
PASSED IN MVC NO.1967/2009 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-I, ADDITIONAL MACT, HASSAN,
AWARDING A COMPENSATION OF RS.2,67,000/- WITH
INTEREST @ 6% P.A. ON RS.2,47,000/- FROM THE DATE OF
PETITION TILL DEPOSIT.
IN MFA.NO.6603/2013:
BETWEEN:
1. YAKPAL UNNISA,
W/O LATE UMAR DARAS,
AGED ABOUT 71 YEARS,
2. HABIB UNNISA,
W/O LATE ABDUL JALEEL,
AGED ABOUT 51 YEARS,
3. SHABEENA TAJ,
D/O LATE ABDUL JALEEL,
AGED ABOUT 31 YEARS,
4. ASIF IQBAL,
S/O LATE ABDUL JALEEL,
AGED ABOUT 27 YEARS,
5. SHEK UMMER,
S/O LATE ABDUL JALEEL,
AGED ABOUT 23 YEARS,
6. SHEK IRFAN,
S/O LATE ABDUL JALEEL,
AGED ABOUT 21 YEARS,
THE APPELLANTS.NO.1 TO 6 ARE
RESIDING AT BARAGUR HAND POST,
DANDIGANAHALLI HOBLI,
5
CHANNARAYAPATNA TALUK.
... APPELLANTS
(BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE)
AND:
1. B.N. JAYARAMU,
S/O B.N. NANJEGOWDA,
MAJOR, BAGIVALU VILLAGE AND POST,
GANDASI HOBLI, ARASIKERE TALUK,
HASSAN DISTRICT.
(OWNER OF THE TRACTOR AND
TRAILER BEARING NO.KA-13-T-2111/2112)
2. THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, 1ST FLOOR,
S.S. COMPLEX, SUBASH SQUARE,
HASSAN.
3. DEEPAK C.V S/O BALAKRISHNA,
MAJOR, KRISHNA NIVAS, KAKIRUR,
TALASSERI DISTRICT, KANNUR,
KERAL STATE-670 101.
(OWNER OF THE MARUTHI VAN
BEARING NO.KL-13-C-2700)
4. UNITED INDIA INSURANCE CO. LTD.,
NO.80, TALASSERI, POST BOX NO.97,
ASHIK TOWERS, NARANGAPURAM,
TALASSERI-570 101,
KANNUR, KERALA,
BRANCE OFFICE:
UNITED INDIA INSURANCE CO. LTD.,
I STAGE, SUBASH SQUARE,
THANNIRUHALLA ROAD,
HASSAN, HASSAN DISTRICT.
... RESPONDENTS
(BY SRI. M. NARAYANAPPA, ADVOCATE FOR R2,
R3 AND R4 SERVED, V/O DTD: 7.2.2020,
THE APPEAL IS DISMISSED AS ABATED AS AGAINST R1)
6
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:13.12.2011,
PASSED IN MVC NO.293/2011 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 31.10.2023, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed under Section 173(1) of
M.V.Act (hereinafter referred to as 'the Act' for short)
challenging the judgment and award passed in
M.V.C.No.1967/2009 and M.V.C.No.293/2011 by I Fast
Track Court, Hassan and Fast Track Court,
Channarayapatna respectively.
2. Since, both the claim petitions are arising out of
the same accident, the matters are taken up together for
disposal.
3. For the sake of convenience, the parties herein
are referred with original ranks occupied by them before the
trial Court.
4. The brief factual matrix leading to the case are
that according to the claimants on 18.08.2009 at 5.30 p.m.
deceased Abdul Jaleel was proceeding on motor cycle
bearing registration No.KA-13-Q-646 along with injured
viz., Puttaraju i.e., claimant in M.V.C.No.1967/2009 on
B.M.Road. While they were proceeding near Sangam Hotel,
the driver of the tractor and trailer bearing registration
No.KA-13-T-2111/2112 hit the two wheeler as a result they
fell and in the meanwhile, the driver of Maruti Van bearing
registration No.KL-13-C-2700 drove it in a rash and
negligent manner and dashed against them as a result,
deceased Abdul Jaleel suffered grievous injuries and
succumbed subsequently, while, Puttaraju suffered grievous
injuries. It is asserted that the accident is due to the
actionable negligence on part of both the drivers of the
offending vehicles who were prosecuted by the concerned
police by submitting the charge sheet.
5. The legal heirs of deceased Abdul Jaleel filed a
claim petition under Section 166 of the Act in MVC
293/2011 claiming compensation of Rs.50 Lakhs, while
injured Puttaraju filed a claim petition in
M.V.C.No.1967/2009 claiming compensation of Rs.20 Lakhs.
6. The respondents No.1 and 2 being the owner and
insurer of the tractor and trailer while respondent No.4 the
insurer of the Maruti Van contested the matter. The
respondent No.3 being the owner of the Maruti Van did not
contest the matter.
7. The respondent No.2 disputed the claim on the
ground that the tractor was used for commercial purpose,
which is breach of policy conditions and also disputes
actionable negligence on the part of the driver and asserts
that there is negligence on the part of the deceased as well
as the driver of the offending car, while respondent No.4
disputed actionable negligence on the part of the driver of
the offending car, but asserts that there is actionable
negligence on the part of the deceased as well as the driver
of the tractor and trailer and thereby disputed the claim.
However, both respondents No.2 and 4 have admitted the
coverage of insurance of respective offending vehicles as on
the date of the accident.
8. After appreciating the oral and documentary
evidence, the tribunal in M.V.C.No.293/2011 awarded a
total compensation of Rs.7,03,000/- by fastening 50%
liability on both the vehicles, but the claim petition was
dismissed as against respondent No.2 for breach of policy
conditions. The tribunal allowed M.V.C.No.1967/2009 in
part by awarding compensation of Rs.2,67,000/- by
fastening liability of 50% on respondents 1 and 2 and 50%
on respondents 3 and 4. These judgments and award are
being challenged in these appeals.
9. M.F.A.No.6603/2013 is filed by the claimant in
M.V.C.No.293/2011 seeking enhancement.
M.F.A.No.2921/2013 in M.V.C.No.1967/2011 is filed by the
respondent No.2 - insurance company challenging the
fastening of the liability on respondent No.2 and in view of
clear breach of policy conditions, no order is passed
regarding pay and recovery. M.F.A.No.6475/2012 is filed by
the claimant / injured in M.V.C.No.1967/2009 seeking
enhancement.
10. Heard the arguments advanced by the learned
counsel appearing for the appellant in M.F.A.No.6603/2013
and the respondents therein as well as claimants in
M.F.A.No.6475/2012 as well as the respondent No.2 who
was the appellant in M.F.A.No.2921/2013. Perused the
records.
11. The learned counsel for the appellant in
M.F.A.No.2921/2013 i.e., the Oriental Insurance Company
would contend that admittedly, the vehicle was used for
commercial activities though it is registered for agricultural
purpose and there is a breach of policy conditions, but the
claims tribunal in M.V.C.No.1967/2009 fastened the entire
liability on respondent No.2 and even there is no order
regarding pay and recovery. Hence, he would contend that
in both M.F.A.No.2921/2013 and M.F.A.No.6603/2013 there
should be an order of pay and recovery in respect of the
liability fastened on Oriental Insurance Company.
12. The learned counsel for claimants in
M.F.A.No.6603/2013 would contend that the age and
income of the deceased taken was on the lower side and no
proper compensation was also awarded under other heads.
13. The learned counsel for injured in
M.F.A.No.6475/2012 submits that the disability taken was
on the lower side and the income of the claimant taken was
also on the lower side. Hence, he would seek for
enhancement of the compensation.
14. The learned counsel for respondent No.4 / United
India insurance company - insurer of Maruti Van has not
challenged the judgment and award, but however, submits
that the judgments and award passed by the tribunal is just
and proper and sought for dismissal of the appeals.
15. Having heard the arguments and after
appreciating the oral and documentary evidence, now let us
consider first the liability. The records disclose that when
the deceased and injured were proceeding on a two-
wheeler, they were first hit by tractor and trailer and when
they fell, the Maruti Van hit them, which was also driven in
a rash and negligent manner. There is no dispute regarding
coverage of insurance policy. Both the tribunals have
fastened the liability to an extent of 50% each on both the
vehicles. The records also disclose that the drivers of both
the vehicles have been prosecuted and were chargesheeted.
The evidence on record clearly establishes that both the
drivers were rash and negligent, which has resulted in the
accident and hence, the finding of both the tribunals
regarding fastening of 50% liability each is reasonable and
cannot be disturbed.
16. However, in M.V.C.No.293/2011, the claim
petition was dismissed as against respondent No.2 - insurer
of tractor and trailer on the ground that there is breach of
policy conditions as the tractor was registered for
agricultural purpose, but it is being used for transportation
of electrical poles, which were extending beyond the trailer
as no precautions were taken. Prima facie, there is material
evidence that there is breach of policy conditions, but at the
same time, admittedly, the vehicle was duly insured and the
claim is made by the third parties who are the riders of the
two- wheeler. Under the circumstances, the initial burden is
on respondent No.2 to pay the compensation and recover
the same. In M.V.C.No.1967/2009, there is no order of pay
and recovery, but directly liability was fastened on
respondent No.2. In M.V.C.No.293/2011, no liability was
fastened and hence, it is evident that both the tribunals
have erred in not properly fastening the liability.
17. Since, the tractor trailer is duly insured with
respondent No.2 and since, the claim is by the third parties,
the respondent No.2 is liable to reimburse the claim and
then for breach of policy condition, he is at liberty to
recover the same from the owner / respondent No.1.
18. As regards M.V.C.No.293/2011 is concerned, the
deceased claims to be aged about 27 years as on the date
of the accident. The tribunal has awarded total
compensation under various heads as under:
Sl. Compensation awarded Amount
No. under various heads in (Rs.)
1. Loss of dependency Rs.6,48,000/-
2. Loss of consortium Rs. 5,000/-
3. Loss of Love and affection Rs. 15,000/-
4. Loss of Estate Rs. 20,000/-
5. Funeral expenses Rs. 10,000/-
6. Medical expenses Rs. 5,000/-
Total Rs.7,03,000/-
19. The tribunal has taken the income of the
deceased at Rs.9,000/- per month and considering the fact
that the other claimants being married, 1/3rd was
deducted towards personal expenses. A detailed reasoning
was given by the tribunal in para 22 in this regard and the
same cannot be said to be erroneous. Normally in respect of
accidents occurred in 2008, this court is consistently taking
monthly income at Rs.4,500/-. In the instant case, the
tribunal has taken the income at Rs.9,000/- p.m. and this
finding is not challenged. Though there is assertion
regarding he earning Rs.50,000/- per month, no material
evidence was produced. Though it is asserted that he owned
Lorries, no documents have been produced to show that the
deceased was possessing lorries and he was an income-tax
assesee. However, it is evident that he was possessing the
driving licence, which is marked at Ex.P16 and considering
these aspects the tribunal has taken his income at
Rs.9,000/-, which is reasonable and does not call for any
interference.
20. The tribunal has taken age of the deceased as 58
years. Much arguments have been advanced regarding the
age of the deceased referred in post mortem report marked
at Ex.P7, in which the age of the deceased is shown to be
55 years, but as rightly observed by the tribunal in para 19
of its judgment, the age was altered. On the contrary, in
the police intimation marked at Ex.P27, the age of the
deceased was shown to be 58 years. The tribunal has taken
this age and considering the age of the petitioners No.2 to
6, this age appears to be normal. Hence, the tribunal has
rightly applied the multiplier of '9'. Since, the deceased was
self employed and since, he is aged between 50-60 years,
10% is required to be added towards established income. In
that event, his monthly income would be Rs.9,900/- and
1/3rd is required to be deducted and the deceased would
have contributed Rs.6,600/- towards his family. Hence, loss
of dependency would work out as Rs.7,12,800/-
(6600x12x9=712800) as against Rs.6,48,000/- awarded by
the tribunal.
21. However, the tribunal has not awarded proper
compensation under the head of 'loss of consortium' and
compensation was awarded under the heads 'love and
affection', 'medical expenses' etc., which is not permissible
in the absence of any material evidence. The claimants are
the mother, widow and children of the deceased. Hence,
each of them are entitled for compensation of Rs.40,000/-
under the head of 'loss of consortium'. Hence, the claimants
would be entitled for a compensation of Rs.2,40,000/-
(Rs.40000x6=240000) under the head of 'loss of
consortium'. Further, they are entitled for Rs.15,000/-
towards 'funeral expenses' and Rs.15,000/- under the head
of 'loss of estate' and as such, the claimants would be
entitled for total compensation under different heads as
under:
Sl. Compensation Amount
No. awarded under in (Rs.)
various heads
1. Loss of dependency
Rs.7,12,800/-
2. Loss of consortium Rs.2,40,000/-
3. Loss of Estate Rs. 15,000/-
4. Funeral expenses Rs. 15,000/-
Total Rs.9,82,800/-
22. Thus, the claimants are entitled to total
compensation of Rs.9,82,800/- as against Rs.7,03,000/-
awarded by the tribunal. Hence, M.F.A.No.6603/2013 needs
to be allowed not only in respect of enhancement, but
regarding fastening of the liability on respondent No.2 /
appellant in M.F.A.No.2921/2013 and an order for pay and
recovery.
23. Regarding M.V.C.No.1967/2009, the claimant in
the said case has suffered grievous as well as simple
injuries. The wound certificate discloses that he had fracture
of femur, fracture of right clavicle as well as fracture of
humorous. Hence, it is evident that he has suffered 3
fractures along with other simple injuries.
24. From Ex.P9 discharge summary, he was inpatient
for 19 days and subsequently, he was inpatient in Mangala
Hospital also. The tribunal has awarded Rs.45,000/- under
the head of 'pain and suffering'. Considering 3 fractures
with other injuries, this appears to be on the lower side.
Hence, I propose to award Rs.50,000/- under the head of
'pain and suffering'.
25. The tribunal has taken the income of the injured
claimant at Rs.4,000/- p.m. This court is consistently taking
monthly income pertaining to accidents occurred in 2008 as
Rs.4,500/-. Hence, income taken by the tribunal appears to
be on the lower side. Though the medical officer has given
disability to the extent of 30% to right lower limb and 28%
to the right upper limb, he has not substantiated the same.
However, considering these aspects, the tribunal has taken
the disability to the extent of 12% to the whole body, but it
is important to note here that the claimant has suffered
fracture to right femur and humorous along with clavicle
bone and they are weight bearing bones. Hence disability
taken appears to be on the lower side and Tribunal should
have taken at 15%. Hence, I propose to take disability at
15% to the whole body. There is no serious dispute
regarding the age of the claimant and since, he was aged
about 38 years and multiplier of '15' is applicable and
hence, 'loss of future income due to disability' would work
out to Rs.1,21,500/- (4500x12x15x15/100=121500) as
against Rs.86,000/- awarded by the tribunal.
26. The tribunal has not awarded any compensation
under the head of 'loss of amenities'. Considering the nature
of injuries sustained by the claimant, I propose to award
Rs.30,000/- under the said head.
27. The tribunal has awarded loss of income during
laid up period to the extent of Rs.3,000/- which appears to
be on the lower side. Due to femur and humorous fractures,
the claimant should have been prevented from attending his
normal duties for a minimum period of 3 months and hence,
claimant would be entitled to compensation under the head
of loss of laid up period at Rs.13,500/- i.e.,
(4500x3=13500).
28. The tribunal has awarded Rs.13,000/- towards
'incidental, food and nourishment', which does not call for
any interference. Further, under the head of 'medical
expenses' a sum of Rs.1,00,000/- was awarded and towards
'future medical expenses', a sum of Rs.20,000/- was
awarded which is reasonable and does not call for any
interference. Hence, claimant in M.V.C.No.1967/2009 is
entitled for total compensation under various heads as
under:
Sl. Compensation Amount
No. awarded under in (Rs.)
various heads
1. Pain and agony Rs.50,000/-
2. Loss of amenities Rs.30,000/-
3. Loss of income during Rs.13,500/-
laid up period
4. Incidental expenses, Rs.13,000/-
food and nourishment
5. Medical expenses Rs.1,00,000/-
6. Future medical expenses Rs.20,000/-
7. Loss of future income Rs.1,21,500/-
due to disability
Total Rs.3,48,000/-
Hence, the claimant in all is entitled for a total
compensation of Rs.3,48,000/- as against Rs.2,67,000/-
awarded by the tribunal.
29. In view of these facts and circumstances, all the
appeals need to be allowed in part. The insurance appeal
requires to be allowed only to the extent of pay and
recovery and accordingly, I proceed to pass the following:
ORDER
(i) M.F.A.No.6603/2013, M.F.A.No.6475/2012
and M.F.A.No.2921/2013 are allowed in
part.
(ii) The appellants / claimants in
M.F.A.No.6603/2013 arising out of
M.V.C.No.293/2011 are held entitled for total
compensation of Rs.9,82,800/- as against
Rs.7,03,000/- awarded by the tribunal.
(iii) Out of the said compensation, the claimant
No.1 is entitled for Rs.1,50,000/- with
accrued interest at the rate of 6% while
claimants 3 to 6 are entitled for Rs.50,000/-
each with proportionate interest of 6%. The
remaining entire compensation shall be paid
to claimant No.2 / appellant No.2 viz., the
widow.
(iv) The claimant in M.V.C.No.1967/2009 is
entitled for total compensation of
Rs.3,48,000/- as against Rs.2,68,000/-
awarded by the tribunal and the entire
enhanced compensation with accrued interest
of 6% shall be released in favour of the
claimant / appellant.
(v) The respondent No.1 and 2 are liable to pay
50% of the compensation awarded and the
respondents No.3 and 4 are liable to pay the
balance 50%. However, the respondent No.2
i.e., the appellant in M.F.A.No.2921/2013
i.e., oriental insurance company is at liberty
to recover the compensation paid to the
claimants in these claim petitions from the
respondent No.1 i.e., the owner of the tractor
and trailer.
The Statutory deposit made by Insurer in
MFA No.2921/2013 shall be transmitted to
tribunal for dispersement.
Sd/-
JUDGE
SS
