Karnataka High Court
Md. Ismail S/Jo Tajoddon Algar vs Kanteppa S/O Gurappa Mulage And Anr on 24 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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MFA No. 200674 of 2017
C/W MFA No. 200797 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO. 200674 OF 2017 (MV-I)
C/W
MISCL. FIRST APPEAL NO. 200797 OF 2017
IN MFA NO. 200674 OF 2017.
BETWEEN:
THE BRANCH MANAGER
UNITED INDIA INSURANCE CO., LTD.,
BASAVASHREE COMPLEX,
1ST FLOOR, NEHRU STADIUM ROAD,
BIDAR,
REPRESENTED BY ITS,
Digitally signed
by LUCYGRACE DIVISIONAL MANAGER,
DR. JAWALI COMPLEX, SUPER MARKET,
Location: HIGH
COURT OF KALABURAGI-585101.
KARNATAKA
...APPELLANT
(BY SRI. SANJAY M JOSHI, ADVOCATE)
AND:
1. MD ISMAIL
S/O TAJUDDIN ALGAR,
AGE: 24 YEARS,
OCC: WELDER IN VIVIMED LAB,
KOLAR, INDUSTRIAL AREA, KOLAR
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MFA No. 200674 of 2017
C/W MFA No. 200797 of 2017
R/O KOLAR, TQ. & DIST. BIDAR-585403.
2. KANTAPPA
S/O GURAPPA MULAGE
AGE: MAJOR OCC: AGRICULTURE,
R/O NAUBAD, BIDAR-585403.
3. SRINIVAS
S/O SANGAYYA REJANTAL,
AGE: MAJOR, OCC: BUSINESS,
H.NO.9-8-111,
BVB COLLEGE ROAD,
BIDAR-585402.
...RESPONDENTS
(BY SRI. SANDEEP V. PATIL, ADVOCATE FOR R1;
R2 SERVED;
SRI. MANURE ASKOK KUMAR, ADVOCATE FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO, ALLOW THIS APPEAL AND SET
ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED-
02.12.2016 IN MVC NO.288/2013 PASSED BY THE ADDITIONAL
SENIOR CIVIL, JUDGE AND ADDITIONAL MACT AT-BIDAR
AWARDING COMPENSATION OF RS.1,11,400/- AND SET ASIDE
THE SAME AND ALTERNATIVELY IT IS PRAYED THAT THE
EXTENT OF LIABILITY SADDLED UPON THE APPELLANT
INSURANCE COMPANY BE REDUCED TO 25% , AND 75% BE
HELD TO BE THAT OF THE MOTOR CYCLIST AND THE OWNER
OF THE MOTOR CYCLE AND THE AMOUNT AWARDED BE
PROPORTIONATELY REDUCED AS AGAINST THE APPELLANT
INSURANCE COMPANY.
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MFA No. 200674 of 2017
C/W MFA No. 200797 of 2017
IN MFA NO. 200797 OF 2017.
BETWEEN:
MD. ISMAIL
S/O TAJODDON ALGAR,
AGE: 24 YEARS, OCC: WELDER IN V V MED LAB,
KOLAR INDUSTRIAL AREA, R/O KOLAR (K),
TQ, AND DIST. BIDAR
...APPELLANT
(BY SRI. SANDEEP VIJAYKUMAR ,ADVOCATE)
AND:
1. KANTEPPA
S/O GURAPPA MULAGE,
(OWNER OF VEHICLE)
AGE: MAJOR, OCC: AGRICULTURE,
R/O NAUBAD, TQ. & DIST. BIDAR-585401.
2. SRINIVAS
S/O SANGAYYA REJANTAL,
AGE: MAJOR OCC: BUSINESS,
R/O H.NO.9-8-111, BVB COLLEGE ROAD, BIDAR,
TQ. AND DIST. BIDAR-585 401.
3. BRANCH MANAGER
UNITED INDIA INSURANCE COMPANY LTD.,
BASAVA SHRI COMBLEX,
1ST FLOOR NEHRU, STADIUM ROAD,
BIDAR-585 401.
...RESPONDENTS
( NOTICE TO R1 AND R2 ARE DISPENSED WITH
BY SRI. SUDARSHAN M., ADVOCATE FOR R3)
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MFA No. 200674 of 2017
C/W MFA No. 200797 of 2017
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO, MODIFY THE JUDGMENT AND
AWARD DATED 02-12-2016 PASSED IN MVC NO. 288/2013 ON
THE FILE COURT OF THE ADDITIONAL SENIOR CIVIL JUDGE
AND ADDITIONAL MACT AT BIDAR. AND ALLOW THIS APPEAL
BY ENHANCING THE COMPENSATION AMOUNT FROM
RS.1,11,400/- TO RS. 14,00,000/-. ONLY AS CLAIMED BY THE
APPELLANT BEFORE THE TRIBUNAL.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.200674/2017 is by the appellant/Insurance
Company aggrieved by the order dated 02.12.2016 passed
in MVC No.288/2013 on the file of the Additional Senior
Civil Judge and Addl. MACT at Bidar, by which the tribunal
while partly allowing the claim petition has awarded
compensation of Rs.1,11,400/- with interest @ 6% p.a.
from the date of petition till realization and has directed
the respondents 2 and 3 therein to pay the compensation
within sixty days of the judgment.
2. MFA No.200797/2017 is filed by the
appellant/claimant seeking enhancement of compensation.
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3. Brief facts of the cases are that;
(a) On 20.08.2012 at about 8.30 p.m. claimant along
with his friend by name Chandu Mulge were proceeding on
a motorcycle bearing registration No.KA-38/E-4753 from
Bidar to Kolar (K). At about 8.30 p.m. near Dhaba of
Manju Bakchowdi on Bidar-Kolar (K) road, a DCM vehicle
bearing registration No.KA-38/1103 was parked in a
negligent manner in the middle of the road without any
indicators or any signals. That the rider of the motorcycle
dashed the said stationed vehicle in which the claimant
sustained grievous injuries. Thereupon, claimant filed the
claim petition seeking compensation.
appeared through their counsel and filed written
statements. Respondent No.2 contended that accident
took place due to fault and negligent riding on the part of
the rider of the motorcycle and that there was no
negligence on the part of the DCM Van. He further
contended that vehicle in question is duly insured and the
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driver had the valid driving license. Hence, sought for
dismissal of the appeal.
(c) Appellant/Insurance Company/respondent No.3 in
its written statement denied the petition averments and
also contended that the accident had occurred on account
of the negligent riding of the motorcycle by its rider. That
the DCM Van was parked on the extreme left side of the
road. That the respondent No.2 had allowed the
unauthorised person to drive the vehicle. Thus, there was
a clear violation of the terms of the insurance policy.
Hence, sought for dismissal of the appeal.
(d) Based on the averments tribunal framed the
issues and recorded the evidence. The claimant examined
himself as PW.1 and one Dr. Mallikarjun G.B has been
examined as PW.2. Exhibited 10 documents, same is
marked as Ex.P1 to P10. One witness has been examined
on behalf of the appellant/Insurance Company as RW.1
and marked the Insurance Policy as Ex.R1.
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(e) On appreciation of material evidence and
documents tribunal partly allowed the claim petition
granting the compensation as stated above. Being
aggrieved by the same, appellant/Insurance Company is
before this Court in MFA No.200674/2017 challenging the
liability while the claimant is before this Court in MFA
No.200797/2017 seeking enhancement of compensation.
4. The accident in question involving a motorcycle
and the DCM Van is not in dispute. The only question
raised by the appellant/Insurance Company is that the
accident in question had occurred on account of negligence
on the part of rider of the motorcycle.
5. Sri.Sanjay M.Joshi, learned counsel appearing
for the appellant/Insurance Company reiterating the
grounds urged in the memorandum of appeal submits that
the rider of the motorcycle did not have the valid license
and the motorcycle was not insured. It is only to make a
false claim the allegation of negligence on the part of the
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driver of the DCM Van is made, which was insured by the
appellant/Insurance Company.
(a) He submits that the claimant has not produced
the charge sheet to bring on as to whom the Police have
framed the case against. He also refers to Ex.P3 the Spot
Mahazar and submits that there is no reference in the
spot mahazar as to the position at which the vehicles
were parked. Thus, he submits that the tribunal has not
taken these aspects of the matter even while coming to
the conclusion that there was negligence on the part of the
driver of the DCM Van. Hence, he seeks for allowing of the
appeal exonerating the appellant/Insurance Company from
payment of compensation.
6. Sri. Sandeep Vijayakumar, learned counsel for the
appellant/claimant in response submits that the accident
in question has taken place at 8.30 p.m. at a place where
there were no public. He also submits that the vehicles
were parked without there being any indications or
signals for the fellow road users which has resulted in the
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accident. Learned counsel in furtherance to the grounds
seeking enhancement submits that the tribunal has taken
the notional income of the claimant at Rs.6,000/- p.m.
while claimant was earning Rs.10,000/- p.m. as working
as a welder in VIVIMED Lab, Kolar (K) Industrial Area. He
submits that the assessment of the disability by the
tribunal is inaccurate. The grant of compensation on the
other heads is also meager. Hence, seeks for allowing of
the appeal by enhancing compensation.
7. Heard. Perused the records.
8. The twin points that arise for consideration is ;
(1) Whether tribunal is justified in fastening the
liability of payment of compensation the
appellant/Insurance Company?.
(2) Whether the claimant is entitled for
enhancement of compensation?.
9. The accident in question that occurred on
20.08.2012 about 8.30 p.m. involving motorcycle and a
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DCM Van referred to above is not in dispute. The only
ground urged by the appellant/Insurance Company is that
there was negligence on the part of the rider of the
motorcycle. The FIR produced at Ex.P1, Statement of the
witnesses, the spot mahazar at Ex.P3 , MV report at Ex.P5
and the pleadings and evidence would indicate that the
VCM van was parked on the middle of the road without
there being any signals or indications. Section 122 of the
Motor Vehicles Act, casts statutory obligation on the part
of the owner or driver of the vehicle with regard to manner
in which the vehicle has to be parked on road, which reads
as under;
"122. No person in charge of a motor vehicle
shall cause or allow the vehicle or any trailer
to be abandoned or to remain at rest on any
public place in such a position or in such a
condition or in such circumstances as to
cause or likely to cause danger, obstruction
or undue inconvenience to other users of the
public place or to the passengers".
10. Though it is contended by the learned counsel
for the appellant that charge sheet has not been brought
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on record, then it is for the claimant to establish the fact
as to which of the drivers of the two vehicles were
charged, the same cannot be a ground to discard the
evidence which is on record. Issue of negligence has to be
proved in the manner known to law. No attempt is made
by the appellant /Insurance Company in either examining
the witness or producing the documentary evidence to
discard the evidence which is already on record. Neither
the respondent/ owner of the vehicle nor the driver of the
vehicle had been examine by the appellant /Insurance
Company. In that view of the matter, the contention now
urged attributing negligence on the part of rider of the
motorcycle, cannot be countenanced. The tribunal taking
into consideration the overall aspect of the matter has
come to just conclusion that the accident had occurred on
account of negligence on the part of the driver of the DCM
Van parking the vehicle in the middle of the road cannot
be found fault with. Point No.1 is answered accordingly.
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11. Adverting to the case of the claimant for
seeking enhancement of compensation though it was
contended that the claimant was earning Rs.10,000/- p.m.
as a welder no documentary evidence is produced. The
tribunal has assessed the same, at Rs.6,000/- p.m. This
Court in the absence of any evidence with regard to the
income takes into consideration the chart prepared by the
Karnataka State Legal Services Authority in terms of which
notional income of a victim of a road traffic accident for
the year 2012 has been determined at Rs.6,500/- p.m.
and the same is taken in this case as well.
12. The PW.2-Doctor who has been examined the
victim has opined that the claimant has suffered 25%
disability. Wound Certificate at Ex.P4 reveal the claimant
sustained fracture of mid shaft of left humorous.
Considering the material on record the disability assessed
by the tribunal at 8% is enhanced to 10%.
13. Calculated as above claimant is entitled for
Rs.1,40,400/- towards loss of earning.
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Rs.6,500 X18 X 12X 10%= Rs.1,40,400/-
14. The tribunal has awarded Rs.10,000/- towards
'pain and suffering', the same is enhanced to Rs.25,000/-
by adding Rs.15,000/-. The tribunal has awarded
compensation of Rs.5,000/- towards medical expenses
incurred and future medical expenses, nourishment, same
is maintained as it is. The tribunal has awarded
Rs.10,000/- towards loss of amenities, life comforts and
expectancy of life, which is enhanced to Rs.25,000/- by
adding Rs.15,000/-. The tribunal has not awarded any
amount towards the loss of income during treatment. The
claimant is stated to have been treated as inpatient for 15
to 20 days. Considering the nature of injuries he must
have been advised rest for at least 3 months. Therefore,
he is entitled for Rs.19,500 (6,500 X3 months). The
tribunal has not awarded attendant charges, same is
granted at Rs.15,000/-. Point No.2 raised is answered
accordingly.
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15. Thus, in total the appellant/claimant is entitled
for compensation of Rs.2,29,900/- instead of
Rs.1,11,400/- as awarded by the Tribunal, which is as
under:
Sl. By By
Heads
No. Tribunal this Court
1 Towards pain and suffering Rs. 10,000/- Rs.25,000/-
2 Towards Medical Expenses Rs. 5,000/- Rs. 5,000/-
3 Towards income on account Rs. 86,400/- Rs. 1,40,400/-
of permanent disability
4 Toward loss of amenities Rs. 10,000/- Rs. 25,000/-
5 Loss of income during - Rs. 19,500/-
period of treatment
6 Towards attendant charges - Rs.15,000/-
Total Rs.1,11,400/- Rs.2,29,900/-
16. For the foregoing reasons, following:
ORDER
a) The appeal in MFA No.200797/2017 filed by the
claimant/appellant is partly allowed. The appeal
in MFA No.200674/2017 filed by the
appellant/Insurance Company is dismissed.
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b) The appellant/claimant is entitled for a total
compensation of Rs.2,29,900/- instead of
Rs.1,11,400/- awarded by the Tribunal with
interest at the rate of 6% per annum from the
date of claim petition till realization.
c) Respondent No.3/Insurance Company shall pay
the aforesaid compensation amount within an
outer limit of six weeks from the date of receipt
of certified copy of this judgment.
d) Amount in deposit if any shall be transmitted to
tribunal.
e) The award of the Tribunal is modified
accordingly.
Sd/-
JUDGE
RU
