Karnataka High Court
Sri. H.P. Putte Gaud @ Putta Raju vs Smt. Selvi R. D on 2 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 6427 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 6427 OF 2017 (MV-I)
BETWEEN:
SRI. H. P. PUTTE GAUD @ PUTTA RAJU,
S/O SRI. CHIKKE GAUD,
AGED: 27 YEARS, OCC:CLEANER
R/AT. NO. 05 A, HARALAHALLI (H)
KALASIND, CHANNARAYAPATNA,
HASSAN - 573 116.
...APPELLANT
(BY SRI. SURESH M LATUR, ADVOCATE)
AND:
1. SMT. SELVI R.D.
Digitally signed by JAI W/O DASARATHA NAIDU,
JYOTHI J
Location: HIGH COURT
R/AT NO.50/3,
OF KARNATAKA KADIRANAPALYA, INDIRANAGAR COMPLEX,
INDIRANAGAR, BENGALURU-560 038.
2. THE MANAGER,
RELIANCE GENERAL INS CO. LTD.,
NO.28, EAST WING, 5TH FLOOR,
CENTENARY BUILDING, M.G.ROAD,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI. D. VIJAY KUMAR ADVOCATE FOR R2;
R1- NOTICE SERVED)
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MFA No. 6427 of 2017
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED05.05.2017 PASSED IN MVC
NO.4541/2014 ON THE FILE OF THE MEMBER, MACT, XVI
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, M.A.C.T.,
BENGALURU (SCCH-14), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the appellant-claimant
challenging the judgment and award dated 05.05.2017
passed in MVC.No.4541/2014 by the Member, MACT, XVI
Addl. Judge, Court of Small Causes, Bangalore, for seeking
enhancement of compensation as well as praying to shift the
liability on the Insurance Company.
2. It is the case of the claimant that he was
working as a cleaner in the tanker lorry bearing No.KA-03-C-
2999 and on 25.02.2013 at about 2:30 a.m., the driver of the
said tanker lorry drove the same with high speed and in a
rash and negligent manner and dashed another canter lorry,
due to which, the claimant who sat on the cabin on the left
side of the door suffered injuries. Therefore, for sustaining
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accidental injuries, the claim is made under Section 166 of
Motor Vehicle Act. The Tribunal has awarded compensation of
Rs.2,90,000/- with interest at the rate of 9% p.a., holding
that respondent No.1-owner is liable to pay compensation.
Therefore, for enhancement of compensation and for
fastening liability on the Insurance Company, the present
appeal is filed.
3. Heard the arguments from both sides and
perused the records.
4. Learned counsel for the appellant-claimant
submitted that the compensation amount granted by the
Tribunal is on the lesser side and therefore, the claimant is
entitled for enhancement of compensation. Further submitted
that an order of pay and recovery can be made directing the
Insurance Company to pay compensation at the first instance
and then recover it from the owner of the tanker lorry.
5. On the other hand, learned counsel for
respondent No.2-Insurance Company submitted that the
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driver of the lorry was not holding driving licence and this is
correctly held by the Tribunal. Further submitted that there
is a delay of more than one month in lodging the complaint
and while lodging the complaint, manipulation was made
showing the claimant as a cleaner in the tanker lorry, but the
claimant was travelling in the lorry as gratuitous passenger.
Therefore, for creating such manipulation, it is stated in the
complaint that the claimant was working as a cleaner in the
lorry. Therefore, submitted that the Insurance Company is
not liable to pay compensation, but the owner alone is liable
to pay compensation.
6. The accident is caused on 25.02.2013. It is
the case of the claimant that he was working as a cleaner in
the tanker lorry and sustained injuries in the accident as
above stated. But complaint is lodged on 30.03.2013. There
is a delay of more than one month in lodging the complaint
before the police. The delay explained by the claimant is that
soon after the accident he went unconsciousness and the
driver of tanker lorry left him at the place of accident and
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took away the tanker lorry and some passerby person have
admitted the claimant to the hospital and the owner of tanker
lorry directed him to reimburse medical expense, but could
not reimburse the medical expense. Therefore, delay is
occurred in lodging the complaint.
7. At this stage, the submission made by the
learned counsel for respondent No.2-Insurnace Company is
considered that the claimant was travelling as a gratuitous
passenger in the tanker lorry and after the accident, the
driver left the claimant at the spot itself and took away the
lorry. When this being the factual matrix is considered, if
really the claimant was a cleaner in the lorry, then the driver
should not have left the claimant at the spot of accident itself.
Considering the fact that the claimant might have been
travelling as a passenger in the lorry, therefore, after the
accident, when the claimant went unconsciousness, the driver
of the lorry left the claimant at the spot itself and took away
the lorry.
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8. Further upon considering Ex.P.15-case sheet
of M.S.Ramaiah Harsha Hospital, in which, it is stated that
there is no history of losing consciousness and vomiting by
the claimant, but the claimant has stated that he lost
consciousness and the driver of tanker lorry had left the
claimant at the spot of accident itself. Considering the nature
of injuries sustained, the claimant had sustained ligament
injury to right leg and cut laceration wound to left ankle joint.
When this being the fact, the claimant had suffered injury to
the leg, then loosing conscious is remote. Therefore, Upon
analyzing these evidences on record and there is a delay of
more than one month in lodging the complaint before the
police and to cover up the delay in lodging the complaint, the
claimant might have stated that he lost consciousness and
also by stating that he was a cleaner in the lorry. The delay of
more than one month in lodging the complaint creates doubt
in the mind of the Court that in order to avoid the liability on
the owner of tanker lorry, the claimant might have stated
that he was working as a cleaner in the lorry. Therefore,
there might have been collusion between the claimant and
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respondent No.1-owner just to make claim against the
Insurance Company by stating that he was working as a
cleaner in the lorry.
9. Therefore, considering these evidences on
record on all its preponderance of probabilities, it is found
more probable that the claimant might have travelled in the
lorry as a gratuitous passenger and soon after the accident,
the driver of the lorry had left the claimant at the spot of
accident itself and took away the lorry. If really the claimant
was a cleaner in the lorry and the driver of lorry and cleaner
if they were working together for some time, then the driver
could not have left the claimant at the spot of accident itself.
Therefore, these evidences on record prove that the claimant
had travelled as a gratuitous passenger. Respondent No.1
being the owner of tanker lorry remained absent and he could
not come to the Court and give evidence. Therefore, there is
force found in the submission made by the learned counsel
for the Insurance Company.
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10. Further when it is the definite case of the
Insurance Company that the driver of lorry was holding
driving licence, then it is incumbent upon respondent No.1-
owner or driver of the lorry to produce the driving licence, but
the same has not been produced. The driving licence of the
driver was lapsed on 23.01.2009. The tanker lorry is
hazardous goods vehicle carrying diesel. The accident was
caused on 25.02.2013. Therefore, as on the date of accident,
there was no valid driving licence. When these are the facts
proved that the driver was not holding driving licence to drive
the hazardous goods lorry as on the date of the accident and
the claimant is proved to be travelling as a gratuitous
passenger in the lorry, therefore, the Insurance Company is
liable to be exonerated from payment of compensation.
Respondent No.1 alone is liable to pay compensation being
owner of the tanker lorry.
Regarding quantum of compensation:
11. From the medical evidence on record, it is
proved that the claimant has suffered the following injuries:
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1. Abrasion over both the hands.
2. Cut lacerated wound over right
3. Cut lacerated would below right knee joint
4. Cut lacerated wound above left ankle joint.
MRI scan reveal that the claimant has sustained the following
injuries:
1. Complete bucket handle tear of lateral meniscus over
flipped fragment in the inter condylar notch.
2. Complete chronic tear mild posterior cruciate ligament.
3. Partial tear anterior cruciate ligament.
4. Complete tear distal end lateral collateral ligament.
5. Complete of the popliteos tendon at insertion site.
6. Partial interstitial tear of distal end of patellar tendon.
7. Moderate joint effusion supra patellar recess.
8. Linear signal changes seen in the outer 1/3rd of medial
meniscus not extending to articular surface.
12. Even though, there are multiple injuries
shown, but all are pertaining to ligament of right leg knee.
There is no fracture to the left leg. Hence, compensation of
Rs.40,000/- awarded under the head injury, pain and
suffering is found to be correct and it is kept in tact.
13. The compensation of Rs.10,000/- awarded
under the medical expenses is as per the actual bills
produced, which needs no interference. Hence, it is kept in
tact.
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14. Further compensation of Rs.15,000/-
awarded under the head incidental expenses such as
nourishment, conveyance and attendant charges is found to
be correct and it is kept in tact.
15. The compensation of Rs.25,000/- each
awarded under the heads loss of amenities and future
medical expenses is found to be correct and it is kept in tact.
16. The doctor has stated that the claimant has
suffered 36% of disability to the right lower limb and 18% to
the whole body. The Tribunal has taken 12% as functional
disability. Considering the nature of injuries sustained, it is
just and proper to take functional disability at 15%. The
accident is caused in the year 2013, therefore, notional
income of Rs.8,000/- per month is to be taken into
consideration. The claimant was aged 24 years, therefore, the
appropriate multiplier applicable is 18. Therefore, the
compensation under the head loss of future income due to
disability is hereby re-assessed and quantified as follows:
Rs.8,000/- x 15% x 18 x 12=Rs.2,59,200/-
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Accordingly, compensation of Rs.2,59,200/- is
awarded under the head loss of future income due to
disability.
17. Further compensation of Rs.24,000/-
(Rs.8,000/- pm., x 3 months) is awarded under the head loss
of income during laid up period as against Rs.20,000/-
awarded by the Tribunal.
18. The compensation awarded towards
permanent disability at Rs.25,000/- is amounting to double
claim, since the claimant is granted compensation under the
head loss of future income due to disability. Therefore,
compensation awarded under the head permanent disability
at Rs.25,000/- is set aside.
19. Thus, in all, the appellant/claimant is entitled
to total compensation as follows:
1 Pain and sufferings Rs. 40,000/- Kept in tact
2 Medical expenses Rs. 10,000/- Kept in tact
3 Nourishment, conveyance Rs. Kept in tact
15,000/-
and attendant charges
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4 Loss of income during laid Rs.
24,000/-
up period
5 Loss of future income due Rs.
2,59,200/-
to disability
6 Loss of amenities Rs. 25,000/- Kept in tact
7 Future medical expenses Rs. 25,000/- Kept in tact
Total Rs. 3,98,200/-
20. The Tribunal has granted compensation of
Rs.2,90,000/-, but the appellant/claimant is entitled to total
compensation of Rs.3,98,200/-. Hence, the
appellant/claimant is entitled to enhanced compensation of
Rs.1,08,200/- (Rs.3,98,200/- - Rs.2,90,000/-) along with
interest at the rate of 6% p.a., from the date of petition till
realization, in addition to what has been awarded by the
Tribunal. Therefore, the claimant is entitled to compensation
as above determined from respondent No.1-owner of tanker
lorry. Hence, the appeal filed by the claimant is liable to be
allowed insofar as quantum of compensation is concerned.
Accordingly, I proceed to pass the following
ORDER
i. The appeal is allowed in part.
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ii. The impugned judgment and award dated
05.05.2017 passed in MVC.No.4541/2014 by the
Member, MACT, XVI Addl. Judge, Court of Small
Causes, Bangalore, is modified insofar as quantum of
compensation is concerned.
iii. The appellant/claimant is entitled to enhanced
compensation of Rs.1,08,200/- along with interest
at the rate of 6% p.a., from the date of petition till
realization, in addition to what has been awarded by
the Tribunal.
iv. Respondent No.1 alone is liable to pay compensation
being owner of the tanker lorry.
v. No order as to costs.
vi. Registry is directed to transmit the TCR along with
copy of this order to the Tribunal forthwith.
vii. Draw award accordingly.
Sd/-
JUDGE
PB
