Karnataka High Court
Gopal vs N L Ramesh on 6 August, 2024
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NC: 2024:KHC:31260
MFA No. 2347 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6 TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 2347 OF 2014 (MV-I)
BETWEEN:
GOPAL
S/O LATE KRISHNEGOWDA
AGED ABOUT 55 YEARS
RESIDENT AT SHANTHIGRAMA
HASSAN TALUK-573 201
HASSAN DISTRICT ...APPELLANT
(BY SRI. G. M. SHARATH KUMAR, ADV. FOR
SRI. CHETHAN B., ADV.)
AND:
1. N L RAMESH
S/O CHANNAPPA, MAJOR
R/AT SUNGARANAHALLI
MADHUGIRI TALUK-572 132
TUMKUR DISTRICT
2. K.S.NAGESH
S/O SWAMYGOWDA, R/O KATTAYA HOBLI
Digitally signed by
PRAJWAL A HASSAN TALUK-573 201, HASSAN DIST.
Location: HIGH COURT
OF KARNATAKA 3. THE MANAGER, THE ORIENTAL
INSURANCE CO LTD., TUMKUR
T.G.M.A. BUILDING, J.C.ROAD
TUMKUR. REP. BY: THE ORIENTAL
INSURANCE CO LTD., SUBASH CIRCLE
HASSAN TALUK-573 201, HASSAN DIST.
...RESPONDENTS
(BY SRI. B S UMESH, ADV. FOR R3;
R2 SERVED AND UNREPRESENTED;
VIDE ORDER DATED 19.02.2019
NOTICE TO R1 DISPENSED WITH)
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MFA No. 2347 of 2014
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 11.7.2013
PASSED IN MVC NO.593/2009 ON THE FILE OF THE II ADDL.
DISTRICT AND SESSIONS JUDGE, ADDITIONAL MACT, HASSAN
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In this appeal, the petitioner has challenged the
Judgment and Award dated 11.07.2013 passed in
MVC.No.593/2009 by the II Additional District and
Sessions Judge and Additional MACT, Hassan, (in
short, 'the Tribunal').
2. For the sake of convenience, the parties will
be referred to as per their status before the Tribunal.
3. Brief facts of the case are, on 27.08.2008 at
about 9.00 a.m., while the petitioner was standing in
front of Madhuvan Hotel, on B.M.Road, Hassan, a Mini
goods lorry bearing Reg.No.KA-06-9643, came and
dashed against him, causing in injuries to his right leg
and right eye. He was treated at SC hospital, Hassan
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under hospitalization for 20 days and after discharge,
files the complaint. Thereafter, he has approached the
Tribunal for grant of compensation. Claim was opposed
by the respondents. The Tribunal, after taking the
evidence and hearing both the parties by the impugned
judgment allowed the claim petition against the owner
of the vehicle granting compensation of Rs.84,400/-
with interest at 6% p.a. Pleading inadequacy, seeking
enhancement and also questioning the liability
fastened against owner-respondent No.2, the petitioner
is before this Court on various grounds.
4. Heard the arguments of Sri. G.M.Sharath
Kumar, learned counsel for Sri Chethan B., learned
counsel for the petitioner and Sri. B.S.Umesh, learned
counsel for the Insurance Company.
5. It is contended by the learned counsel for
the petitioner that once the Tribunal accepted the
accident as claimed by the petitioner, has erroneously
fastened the liability against the owner and not against
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the insurance company. Compensation awarded is
inadequate and sought for enhancement.
6. Per contra, learned counsel for the
insurance company has contended that the accident
took place on 27.08.2008, whereas the complaint was
filed on 23.09.2008, the petitioner was hospitalization
for 20 days. Even after discharge, he did not file the
complaint and no MLC intimation was sent by the
hospital to the police, nor any records to show that the
accident is reported to the hospital in the manner
claimed by the petitioner. The driver of the vehicle did
not possess any driving licence. Fraud is played against
the insurance company by fixing the vehicle in
question and claim is made. The Tribunal has rightly
held that the liability on the part of the owner to pay
the compensation for the fraud played and has
supported the impugned judgment.
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7. I have given my anxious consideration to
the arguments addressed on both sides and also
perused the materials on record.
8. The material on record pointed out that
there was an accident on 27.08.2008 at 9.00 a.m., in
front of Madhuvan Hotel, on B.M.Road, Hassan, the
petitioner was taken to SC hospital, Hassan, where he
was admitted for 20 days as inpatient. The history
furnished to the hospital is only 'RTA', no details of the
vehicle or the vehicle number is furnished to the
hospital. No MLC intimation was sent to the police in
spite of the petitioner said to have sustained injuries in
RTA. The petitioner was discharged from the hospital
on 13.09.2008. Even after 10 days from discharge, he
kept quiet and only on 23.09.2008 he went to the
police station with a definite case that the vehicle in
question has been caused in the accident. From
27.08.2008 to 23.09.2008, no documents are placed to
show that the vehicle in question was involved in the
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accident and caused injury to the petitioner. Under
such circumstances, the Tribunal has recorded the
conduct of the petitioner, clearly indicate and suspect
that the vehicle has been fixed and for this reason,
owner of the vehicle would support such kind of
activity and he has to pay the compensation to the
victim.
9. Medical evidence is placed through PW.2-
Dr.S.C.Kiran, who assessed the limb disability at
25.30%, the Tribunal has considered the same at 5%.
But the nature of injuries is required to be assessed
that the petitioner has suffered fracture of 5th
metatarsal, fracture of 3rd metatarsal, fracture of distal
phalanx of great toe. Therefore, the disability as even
if considered at 1/3rd of the limb, it comes to 8%, the
Tribunal has taken it on the lower side.
10. The Tribunal has taken the income of the
petitioner at Rs.3,000/- per month, which is on the
lower side. In the year 2008, a person with no proof of
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income, will earn not less than Rs.4,500/-. Hence, the
income of the petitioner is assessed at Rs.4,500/-. The
petitioner is a coolie, aged about 50 years. Multiplier
applicable to the said age group is '13'. No
compensation is awarded towards attendant, food and
nourishment and travelling expenses. Keeping totality
of the case, the petitioner has to be compensated with
Rs.25,000/- towards pain and suffering, Rs.10,000/-
towards medical expenses, he was laid up for 3 months
and loss of income is assessed at Rs.13,500/-
(Rs.4,500/- x 3 months), Rs.25,000/- towards loss of
amenities in life and discomfort, Rs.2,700/- towards
attendant charges, Rs.5,000/- towards food and
nourishment and Rs.2,000/- towards traveling
expenses.
11. As regarding loss of future earnings is
concerned, as discussed above, the notional income is
taken at Rs.4,500/- per month, multiplier at '13' and
whole body disability at 8%. Hence, calculation comes
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to Rs.4,500/- x 12 x 13 x 8% = Rs.56,160/-. The
petitioner is entitled for compensation under the
following heads:
Sl. Particulars Amount in
No. (Rs.)
1. Pain and sufferings 25,000/-
2. Medical Expenses 10,000/-
3. Loss of income during laid up period 13,500/-
4. Loss of future income 56,160/-
5. Loss of amenities in life and 25,000/-
discomfort
6. Attendant, Food & nourishment and 9,700/-
travelling expenses
Total 1,39,360/-
Less: compensation awarded by the 84,400/-
Tribunal
Enhanced compensation 54,960/-
Rounded off 55,000/-
It is the just compensation which the petitioner is
entitled in the facts and circumstances of the case.
12. As regarding liability is concerned, the
Tribunal has referred to the judgment of this Court in
BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD.,
VS. B.C.KUMAR AND OTHERS reported in ILR 2009
KARNATAKA 2921 and also VEERAPPA AND
ANOTHER VS. SIDDAPPA AND ANOTHER reported
in ILR 2009 KARNATAKA 3562 (DB). In the said
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two judgments, the law has been settled that in a case
where the owner of the vehicle involves in helping the
victim of the accident in fixing the vehicles, is liable to
pay the compensation and not the insurance company.
The Tribunal has rightly held that the owner has to pay
the compensation. There is no error or illegality in the
finding of the Tribunal. Hence, the owner of the vehicle
has to pay the compensation. Hence, the appeal merits
consideration, in the result, the following:
ORDER
i) Appeal is allowed in part;
ii) Impugned judgment and award is modified.
iii) Petitioner would be entitled to enhanced
compensation of Rs.55,000/- along with
interest of 6% p.a. from the date of petition
till the date of deposit.
iv) The owner of the vehicle i.e. respondent
No.2 is directed to satisfy the award within
eight weeks from the date of receipt of
certified copy of the judgment.
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v) Amount in deposit, if any, shall be
transmitted to the Tribunal along with
records forthwith.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
MKM
