Karnataka High Court
The Law Officer vs Gangavva W/O Shekhar Badiger on 3 April, 2024
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NC: 2024:KHC-D:6079
MFA No. 105213 of 2019
C/W MFA No. 103499 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 105213 OF 2019 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 103499 OF 2019
IN MFA NO.105213/2019
BETWEEN:
SMT. GANGAVVA W/O. SHEKHAR BADIGER,
AGE: 46 YEARS, OCC: COOLIE, (NOW NIL),
R/O. HALLUR, TQ: GOKAK,
DIST: BELAGAVI, PIN CODE: 591312.
...APPELLANT
(BY SRI. SANJAY S. KATAGERI, ADVOCATE)
AND:
1. SHRI. NAGAPPA S/O. SHIVAPPA PATIL,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. MARAKODI, TQ: RAIBAG,
DIST: BELAGAVI, PIN CODE: 591307.
Digitally signed
by JAGADISH T
R 2. SHRI. SANJAY S/O. SHIVAPPA PATIL,
Location: HIGH AGE: MAJOR, OCC: AGRICULTURE,
COURT OF R/O. MARAKODI, TQ: RAIBAG,
KARNATAKA
DIST: BELAGAVI, PIN CODE: 591307.
3. THE LAW OFFICER,
RELIANCE GENERAL INSURANCE COMPANY LTD,
CTS NO.472/424, VA KALBURGI SQUARE,
DESAI CROSS, DESHPANDE NAGAR,
HUBBALLI, PIN CODE: 580029.
...RESPONDENTS
(BY SRI. G. N. RAICHUR, ADV. FOR R3;
NOTICE TO R1 & R2 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 09.04.2019
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MFA No. 105213 of 2019
C/W MFA No. 103499 of 2019
PASSED IN MVC NO.212/2018 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL,
GOKAK, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 103499/2019
BETWEEN:
THE LAW OFFICER,
RELIANCE GENERAL INSURANCE CO. LTD,
CTS NO.472/424, V. A. KALBURGI SQUARE,
DESAI CROSS, DESHPANDE NAGAR,
HUBBALLI-380022, REPRESENTED BY
ITS AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI. G. N. RAICHUR, ADVOCATE)
AND:
1. GANGAVVA W/O. SHEKHAR BADIGER,
AGE: 46 YEARS, OCC: COOLIE, NOW NIL,
R/O. HALLUR, TQ: GOKAK-591307.
2. NAGAPPA S/O. SHIVAPPA PATIL,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. MARAKODI, TQ: RAIBHAG-592307.
3. SANJAY S/O. SHIVAPPA PATIL,
AGE: MAJOR, OCC: AGRICULTURE,
R/O. MARAKODI, TQ: RAIBAG-592307.
...RESPONDENTS
(BY SRI. SANJAY S. KATAGERI, ADV. FOR R1;
NOTICE TO R2 & R3 SERVED)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 09.04.2019 PASSED
IN MVC NO.212/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, GOKAK,
AWARDING COMPENSATION OF Rs.3,13,000/- WITH INTEREST AT
9% P.A. FROM THE DATE OF PETITION TILL ITS DEPOSIT.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 105213 of 2019
C/W MFA No. 103499 of 2019
JUDGMENT
Though these appeals are listed for admission, with the
consent of learned counsel for the parties, they are taken up
for final disposal.
2. MFA No.105213/2019 is filed by the claimant-
injured seeking enhancement of compensation, whereas the
MFA No.103499/2019 is filed by the insurance company
challenging the liability saddled on it. Both these appeals are
arising out of the judgment and award dated 09.04.2019
passed in MVC.No.212/2018 by the Principal Senior Civil Judge
& MACT., Gokak (for short, 'Tribunal').
3. Heard the learned counsel Sri.G.N.Raichur, for the
insurance company and learned counsel Sri.Sanjay S.Katageri,
for the injured-claimant.
4. Learned counsel for the insurance company submits
that the Tribunal has erred in saddling the liability on the
insurance company without appreciating the material evidence
available on record. It is submitted that the initial complaint
filed before the police indicates that the claimant-injured was a
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pedestrian, however, after filing of charge sheet, it is shown
that she was a pillion rider along with another pillion rider in
the motorcycle. It is further submitted that there were three
riders on the motorcycle, which is a clear violation of the policy
condition. It is also submitted that the rider of the motorcycle
and pillion rider were negligent in riding the motorcycle and
contributed to the accident in question as the rider could not
control the vehicle in view of two pillion riders on the
motorcycle and the jurisdictional police filed the charge sheet
against the rider of the motorcycle. It is contended that as on
the date of accident, the motorcycle was not registered which is
a clear violation of Section 39 of the Motor Vehicles Act as well
as the terms of the policy. Hence, the insurance company is not
liable to pay any compensation. It is further contended that the
complaint is filed after two days of the incident, which creates
doubt with regard to the accident in question, hence, seeks to
allow the appeal filed by the insurance company by saddling
the liability on the owner of the vehicle.
5. Per contra, learned counsel appearing for the
injured-clamant submits that the complaint averment is
admitted, however, the charge sheet material indicates that
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there were three persons on the motorcycle and the present
claimant was the pillion rider, hence, the question of
contributory negligence on the part of pillion rider would not
arise. Insofar as registration of the motorcycle is concerned, it
is submitted that the accident in question has occurred on
24.12.2017 and the motorcycle in question was registered on
28.11.2017, which is evident from the document produced
along with the application for additional document. It is further
submitted that there is no evidence whatsoever on record with
regard to the contributory negligence of the rider of the
motorcycle other than the charge sheet and there is no fault on
the part of the pillion rider with regard to the accident. Hence,
the insurance company is liable to pay compensation and seeks
to dismiss the appeal filed by the insurance company. It is also
submitted that the Tribunal has committed error in assessing
the income, disability and award of compensation on other
heads are also required to be re-assessed by enhancing the
same appropriately, hence, seeks to allow the appeal filed by
the injured-claimant.
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6. I have heard the learned counsel for the insurance
company and the learned counsel for the claimant-injured and
perused the material available on record.
7. It is not in dispute that on 24.12.2017, the
claimant-injured was proceeding on the motorcycle bearing
Reg.No.KA-23-SR-3885 as a pillion rider along with another
pillion rider and they met with an accident and sustained
injuries. The jurisdictional police registered the information and
after completion of the investigation, filed the charge sheet
against the rider as well as the owner of the motorcycle for the
offence punishable under Sections 279, 338 of IPC and Section
192 read with Section 177 and Section 128(1) read with
Section 177 of the Motor Vehicles Act, 1988. On perusal of the
charge sheet material, it indicates that the charge sheet is filed
against the rider and the owner of the motorcycle for
negligence and for non-registration of the vehicle respectively.
The injured-claimant has placed on record the 'B' register
extract issued by the Regional Transport Officer, Chikkodi,
which indicates that the motorcycle involved in the accident
was registered on 28.11.2017 which was much prior to the
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date of accident. Hence, filing of charge sheet by the police has
no bearing with regard to non-registration of the vehicle
involved in the accident, accordingly, the said contention urged
by the insurance company is rejected.
8. Insofar as the contention that there were three
persons on the motorcycle, hence it is violation of the condition
of the policy is concerned, the material available on record
indicates that the injured was a pillion rider, hence, the
question of pillion rider contributing to the accident would not
arise and mere filing of charge sheet against the rider of the
motorcycle under Section 279, 338 of IPC is not sufficient to
come to the conclusion that the rider of the motorcycle was
negligent unless the insurance company establishes the factum
of negligence before the Tribunal by adducing independent
witness. In the instant case, the insurance company examined
RW-1, an officer of insurance company, who deposed based on
the charge sheet material, hence, the charge sheet material
cannot be the sole basis to come to the conclusion that there
was negligence on the part of the rider of the motorcycle and
the charge sheet material also cannot be the basis to come to
the conclusion that there were three persons on the
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motorcycle, in the absence of any independent evidence before
the Tribunal, there cannot be contributory negligence on the
part of the claimant, hence, this Court do not find any error in
the finding recorded by the Tribunal with regard to liability,
such findings are based on the evidence available on record,
same does not call for modification.
9. Insofar as the award of compensation is concerned,
admittedly, the injured-claimant was aged about 50 years and
is an agricultural coolie, hence, this Court assesses the income
of the injured notionally at Rs.10,250/- p.m. placing reliance on
the notional income chart prepared by the KSLSA. The injured
has sustained fracture of right tibia and fibula bones and she
was inpatient for a period of 6 days. Taking note of the wound
certificate, disability certificate and oral testimony of PW-2, this
Court re-assesses the disability at 12% as the treated doctor
entered witness box and deposed that the injured has suffered
disability of 25%, hence, the injured is entitled to compensation
under the head of loss of future income due to disability as
under:
Rs.10,250 X 12 X 13 X 12% = Rs.1,91,880/-
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10. Taking note of the injuries suffered by the injured-
claimant, this Court is of the considered view that the injured is
entitled to an additional sum of Rs.40,000/- towards pain &
suffering. The injured is entitled to a sum of Rs.40,000/-
towards loss of amenities which the Tribunal has not awarded.
The injured-claimant is also entitled to compensation of
Rs.30,750/-(Rs.10250 X 3) towards the loss of income during
laid-up period as against Rs.5,000/- awarded by the Tribunal.
The award of compensation towards medical expenses, food &
nourishment and travelling & incidental expenses is unaltered.
11. The Tribunal has also committed an error in
awarding interest at the rate of 9%p.a., which is modified and
the injured-claimant is entitled to interest at the rate of 6%
p.a. Thus, in all, the claimant-injured shall be entitled to
modified compensation as under:
HEADS Amount(in Rs.)
Pain & suffering 50,000
Medical expenses 1,32,000
Food & nourishment 5,000
Loss of income during laid-up period 30,750
Travelling & incidental expenses 5,000
Loss of future income due to disability 1,91,880
Loss of amenities 40,000
Total 4,54,630
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Thus, the appellant-claimant shall be entitled to total
compensation of Rs.4,54,630/- as against Rs.3,13,000/-
awarded by the Tribunal.
12. In the result, this Court proceeds to pass the
following:
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
injured-claimant would be entitled to total
compensation of Rs.4,54,630/- as against
Rs.3,13,000/- awarded by the Tribunal.
c) The entire compensation amount shall carry
interest at the rate of 6% per annum from
the date of petition till the date of payment.
d) The Insurance Company shall deposit the
entire 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.
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e) The apportionment, deposit and disbursement
shall be made as per award of the Tribunal.
f) The amount in deposit shall be transmitted to
the Tribunal along with the records forthwith.
g) Draw modified award accordingly.
Sd/-
JUDGE
BSR
Ct-an
