Karnataka High Court

Gangamma vs H N Nagappa on 2 April, 2024

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                                                              NC: 2024:KHC-D:6040
                                                         MFA No. 102306 of 2014
                                                     C/W MFA No. 102305 of 2014



                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 2ND DAY OF APRIL, 2024

                                             BEFORE
                          THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
                    MISCELLANEOUS FIRST APPEAL NO. 102306 OF 2014 (MV-I)
                                           C/W
                       MISCELLANEOUS FIRST APPEAL NO. 102305 OF 2014

                   IN MFA NO.102306/2014

                   BETWEEN:

                   CHANDRAPPA S/O. KOTRAPPA,
                   AGE: 26 YEARS, OCC: EX-PAINTER,
                   R/O. HERE HEGDAL VILLAGE,
                   TQ: KUDLIGI, DIST: BELLARY.
                                                                     ...APPELLANT
                   (BY MISS. RESHMA MADIWALAR, FOR
                       SRI. T. HANUMAREDDY, ADVOCATE)

                   AND:

                   1.   H. N. NAGAPPA, S/O. HANUMANTHAPPA,
                        AGE: MAJOR, OCC: DRIVER OF TRACTOR &
                        TRAILER BEARING NO.KA-35/T-4500 & 4501,
                        R/O. OLD GRAMA NAGALAPURA THANDA,
                        TQ: HOSPET, DIST: BELLARY.
Digitally signed
by JAGADISH T R
Location: HIGH     2.   B. SOMLA NAIK S/O. B. GOPYA NAIK,
COURT OF                AGE: MAJOR, OCC: OWNER OF TRACTOR &
KARNATAKA
                        TRAILER BEARING NO.KA-35/T-4500 & 4501,
                        R/O. GRAMA NAGALAPURA THANDA,
                        TQ: HOSPET, DIST: BELLARY.

                   3.   ICICI LOMBARD GENERAL INSURANCE CO. LTD,
                        BY ITS MANAGER,
                        GANDHINAGAR, BELLARY.

                   4.   VALI SAB @ SHEIK VALI SAB,
                        S/O. BUDEN SAB,
                        AGE: 54 YEARS, OCC: DRIVER OF MAXI CAB,
                        BEARING NO.KA-35/1947,
                        R/O. 4TH WARD, MARIYAMMANAHALLI,
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                                      MFA No. 102306 of 2014
                                  C/W MFA No. 102305 of 2014



     TQ: HOSPET, DIST: BELLARY.

5.   K. ERAPPA S/O. K. GANGANNA,
     AGE: MAJOR, OCC: OWNER OF MAXI CAB,
     BEARING NO.KA-35/1947,
     R/O. 4TH WARD, MARIYAMMANAHALLI,
     TQ: HOSPET, DIST: BELLARY,
     SINCE DECEASED BY LRS,

5A. PADMA W/O. LATE K. ERAPPA,
    AGE: MAJOR, OCC: NOT KNOWN,
    R/O. GALEMMANAGUDI VILLAGE,
    TQ: HOSPET, DIST: BELLARY.

5B. KUM. SHILPA D/O. LATE K. ERAPPA
    SINCE MINOR REPRESENTED BY HER
    NATURAL MOTHER AND GUARDIAN
    SMT. PADMA,
    R/O. GALEMMANAGUDI VILLAGE,
    TQ: HOSPET, DIST: BELLARY.

5C. KUM. BASAMMA D/O. LATE K. ERAPPA,
    SINCE MINOR REPRESENTED BY HER
    NATURAL MOTHER AND GUARDIAN
    SMT. PADMA,
    R/O. GALEMMANAGUDI VILLAGE,
    TQ: HOSPET, DIST: BELLARY.

6.   NATIONAL INSURANCE CO. LTD,
     BY ITS BRANCH MANAGER,
     DAVANAGERE.
                                             ...RESPONDENTS
(BY SRI. R. R. MANE, ADV. FOR R3;
    SRI. M. Y. KATAGI, ADV. FOR R6,
    NOTICE TO R1, R2 AND R4 SERVED,
    NOTICE TO R5(A) DISPENSED WITH,
    RESPONDENT NO.5 (B TO C) ARE MINORS R/BY R5(A)).

     THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, PRAYING TO CALL FOR RECORD IN M.V.C
NO.358/2010 ON THE FILE OF THE M.A.C.T-VI AT KUDLIGI, DATED
20/06/2014 AND ALLOW THE APPEAL AND AWARD THE REMAINING
COMPENSATION OF RS.5,24,600/- EXCEPT THE COMPENSATION
AWARDED BY THE TRIBUNAL.
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                                   MFA No. 102306 of 2014
                               C/W MFA No. 102305 of 2014



IN MFA NO.102305/2014

BETWEEN:

GANGAMMA W/O. HOTTEPPA,
AGE: 34 YEARS, OCC: EX-MILK VENDOR,
R/O. SHIVAPURA VILLAGE,
TQ: KUDLIGI, DIST: BELLARY.

                                                  ...APPELLANT
(BY MISS. RESHMA MADIWALAR, FOR
    SRI. T. HANUMAREDDY, ADVOCATE)

AND:

1.   H. N. NAGAPPA, S/O. HANUMANTHAPPA,
     AGE: MAJOR, OCC: DRIVER OF TRACTOR &
     TRAILER BEARING NO.KA-35/T-4500 & 4501,
     R/O. OLD GRAMA NAGALAPURA THANDA,
     TQ: HOSPET, DIST: BELLARY.

2.   B. SOMLA NAIK S/O. B. GOPYA NAIK,
     AGE: MAJOR, OCC: OWNER OF TRACTOR &
     TRAILER BEARING NO.KA-35/T-4500 & 4501,
     R/O. GRAMA NAGALAPURA THANDA,
     TQ: HOSPET, DIST: BELLARY.

3.   ICICI LOMBARD GENERAL INSURANCE
     CO. LTD, BY ITS MANAGER,
     GANDHINAGAR, BELLARY.

4.   VALI SAB @ SHEIK VALI SAB,
     S/O. BUDEN SAB,
     AGE: 54 YEARS, OCC: DRIVER OF MAXI CAB,
     BEARING NO.KA-35/1947,
     R/O. 4TH WARD, MARIYAMMANAHALLI,
     TQ: HOSPET, DIST: BELLARY.

5.   K. ERAPPA S/O. K. GANGANNA,
     AGE: MAJOR, OCC: OWNER OF MAXI CAB,
     BEARING NO.KA-35/1947,
     R/O. 4TH WARD, MARIYAMMANAHALLI,
     TQ: HOSPET, DIST: BELLARY,
     SINCE DECEASED BY LRS,
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                                  MFA No. 102306 of 2014
                              C/W MFA No. 102305 of 2014



5A. PADMA W/O. LATE K. ERAPPA,
    AGE: MAJOR, OCC: NOT KNOWN,
    R/O. GALEMMANAGUDI VILLAGE,
    TQ: HOSPET, DIST: BELLARY.

5B. KUM. SHILPA D/O. LATE K. ERAPPA
    SINCE MINOR REPRESENTED BY HER
    NATURAL MOTHER AND GUARDIAN
    SMT. PADMA,
    R/O. GALEMMANAGUDI VILLAGE,
    TQ: HOSPET, DIST: BELLARY.

5C. KUM. BASAMMA D/O. LATE K. ERAPPA,
    SINCE MINOR REPRESENTED BY HER
    NATURAL MOTHER AND GUARDIAN
    SMT. PADMA,
    R/O. GALEMMANAGUDI VILLAGE,
    TQ: HOSPET, DIST: BELLARY.

6.   NATIONAL INSURANCE CO. LTD,
     BY ITS BRANCH MANAGER,
     DAVANAGERE.

                                              ...RESPONDENTS
(BY SRI. R. R. MANE, ADV. FOR R3;
    SRI. M. Y. KATAGI, ADV. FOR R6,
    NOTICE TO R1, R2 AND R4 SERVED,
    NOTICE TO R5(A) DISPENSED WITH,
    RESPONDENT NO.5 (B) & 5 (C) ARE MINORS R/BY R5(A).

     THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, PRAYING TO CALL FOR RECORD IN M.V.C
NO.357/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE CUM
MEMBER AND M.A.C.T-VI AT KUDLIGI, DATED 20/06/2014 AND
ALLOW THE APPEAL AND AWARD THE REMAINING COMPENSATION
OF RS.4,23,000/- EXCEPT THE COMPENSATION AWARDED BY THE
TRIBUNAL.


     THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                         MFA No. 102306 of 2014
                                     C/W MFA No. 102305 of 2014



                             JUDGMENT

MFA.No.102305/2014 is arising out of the

MVC.No.357/2010 and MFA.No.102306/2014 is arising out

of the MVC.No.358/2010. Both the appeals are filed by the

claimants/injured, being aggrieved by the common

judgment and award dated 20.06.2014 passed in the

above said MVC numbers by the Sr.Civil Judge cum

Member VI-MACT, Kudligi (for short, 'Tribunal').

2. Heard Ms.Reshma Madiwalar, learned counsel

appearing for the appellants/claimants, Sri.R.R.Mane,

learned counsel appearing for the respondent No.3/Insurer

of tractor-trailor and Sri.M.Y.Katagi, learned counsel

appearing for the respondent No.6/Insurer of Maxi Cab.

3. Though the driver and the owner of the tractor-

trailor are served, they remained absent. Hence, placed

exparte.

4. Learned counsel appearing for the

appellants/claimants submits that in both the claim

petitions, the Tribunal committed grave error in assessing

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the income of the claimants at Rs.3,000/- per month and

also assessed disability on the lower side. It is submitted

that the award of compensation by the Tribunal on all the

other heads is also on the lower side, hence, she seeks to

enhance the same by allowing these appeals.

5. Per contra, Sir.R.R.Mane, learned counsel

appearing for the respondent No.3/Insurer of tractor-

trailor submits that though the chargesheet is filed against

the driver of the tractor which was insured with its

company, the Tribunal has rightly come to the conclusion

that the owner of the tractor-trailor has not paid premium,

as the cheque issued by him was dishonored. Hence, there

is no insurance policy as on the date of the accident. The

Tribunal has justified in saddling the liability on the owner

of the tractor. Hence, he submits that if an enhancement

of the compensation is made, it would be against the

owner of the vehicle. Thus, he seeks to pass appropriate

orders.

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6. Sri.M.Y.Katagi, learned counsel appearing for

respondent No.6/Insurer of Maxi Cab submits that the

Tribunal has not saddled the liability on the insurer of Maxi

Cab vehicle on the ground that the chargesheet is filed

against the driver of the tractor. Thus, he seeks to pass

appropriate orders.

7. I have heard the arguments of the learned

counsel for the appellants/claimants, learned counsel

appearing for the respondent No.3/Insurer of tractor-

trailor and learned counsel appearing for the respondent

No.6/Insurer of Maxi Cab. Perused the trial Court records.

8. It is not in dispute that the appellants/claimants

have met with a road accident and sustained grievous

injuries when they were traveling in a Maxi Cab on

29.12.2006. Insofar as the award of compensation is

concerned, admittedly, the appellants/claimants have not

placed any evidence with regard to their income. Hence,

this Court reassesses the notional income of the claimants

at Rs.3,750/- per month placing reliance on the notional

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income chart prepared by the Karnataka State Legal

Services Authority.

9. Insofar as the assessment of disability is

concerned, the Tribunal has assessed disability of both the

claimants at 5%. The oral testimony of PW5 and other

medical evidence indicate that the appellants/claimants

have sustained different injuries as referred in the Wound

Certificate, Disability Certificate and the oral testimony of

PW5. Hence, this Court reassesses the disability of the

claimants at 8% for the purpose of determination of

compensation. Thus, the loss of future income of the

appellant/claimants due to disability is recomputed as

under:

(i) IN MFA.No.102305/2014 (MVC.No.357/2010):-

Rs.3,750/- (income) x 12(months) x 15 (multiplier) x 8%

(disability) = Rs.54,000/-

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(ii) IN MFA.No.102306/2014 (MVC.No.358/2010):-

Rs.3,750/- (income) x 12(months) x 18 (multiplier) x 8%

(disability) = Rs.64,800/-

10. The appellants/claimants in both the cases are

entitled to Rs.11,250/- (i.e.Rs.3,750 X 3 months) under

the head of 'loss of income during laid-up-period'

11. Insofar as the award of compensation on all the

other heads is concerned, the same is unaltered. Thus, in

all, the claimants shall be entitled to modified

compensation under the following heads:

(i) IN MFA.No.102305/2014 (MVC.No.357/2010):-

                   HEADS                             AMOUNT
                                                     (in Rs.)
Loss of future income due to disability                 54,000/-
Towards pain and suffering                              30,000/-
Medical expenses                                        10,000/-
Food and nourishment charges                             5,000/-
Towards Attendant charges                                5,000/-
Loss of income during laid-up-period                    11,250/-
                   Total                             1,15,250/-
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(ii) IN MFA.No.102306/2014 (MVC.No.358/2010):-

                   HEADS                           AMOUNT
                                                   (in Rs.)
Loss of future income due to disability               64,800/-
Towards pain and suffering                             30,000/-
Medical expenses                                        3,000/-
Food and nourishment charges                            5,000/-
Towards Attendant charges                               5,000/-
Loss of income during laid-up-period                   11,250/-
                   Total                            1,19,050/-




      Thus,     the      claimant        in   MFA.No.102305/2014

(MVC.No.357/2010) shall be entitled to total compensation

of Rs.1,15,250/- as against Rs.77,000/- awarded by the

Tribunal and the claimant in MFA.No.102306/2014

(MVC.No.358/2010) shall be entitled to total compensation

of Rs.1,19,050/- as against Rs.75,400/- awarded by the

Tribunal.

12. In the result, this Court proceeds to pass the

following:

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ORDER

a) Both the appeals are allowed in part.

b) The impugned judgment and award of the Tribunal is modified to an extent that the claimant in MFA.No.102305/2014 (MVC.No.357/2010) shall be entitled to total compensation of Rs.1,15,250/- as against Rs.77,000/- awarded by the Tribunal and the claimant in MFA.No.102306/2014 (MVC.No.358/2010) shall be entitled to total compensation of Rs.1,19,050/- as against Rs.75,400/- awarded by the Tribunal.

c) The enhanced compensation in both the cases shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.

d) The respondents No.1 and 2 shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.