Karnataka High Court
Cholamandalam Ms General Insurance ... vs M. Ramelsh @ Ramesh S/O Late M Arjunappa on 6 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:2623
MFA No. 100710 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.100710 OF 2017 (MV-I)
BETWEEN:
CHOLAMANDALAM MS GENERAL INSURANCE CO.LTD.,
BY ITS DIVISIONAL MANAGER BALLARI,
HEREIN REPRESENTED BY CHOLAMANDALAM
MS GENERAL INSURANCE CO. LTD.,
UNIT NO.4, 9TH FLOOR (LEVEL-6),
"GOLDEN HEIGHTS" COMPLEX,
59TH 'C' CROSS, INDUSTRIAL SUBURB,
RAJAJINAGAR, 4TH 'M' BLOCK,
BENGALURU-560 010,
REPRESENTED BY ITS AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI. R.R. MANE, ADVOCATE)
AND:
1. M. RAMELSH @ RAMESH
Digitally
signed by
S/O. LATE M.ARJUNAPPA,
SAMREEN
SAMREEN AYUB
AGE: 26 YEARS, OCC: LORRY CLEANER,
AYUB DESHNUR
DESHNUR Date: R/O: THUMATI VILLAGE, TQ: SANDUR,
2024.02.15
13:29:32
+0530
NOW R/O: NEAR OPD, BALLARI.
2. RAMANJINI S/O. B.HULIKUNTAPPA,
AGE: 39 YEARS, OCC: DRIVER OF THE LORRY
BEARING REG.NO.KA-34/A-2164,
R/O: 1ST CROSS, JAGRUTHI NAGAR,
COWL BAZAAR, BALLARI.
3. V.GOPALA SWAMY S/O. V.THIPPESWAMY,
AGE: 42 YEARS, OCC: OWNER OF THE
LORRY BEARING REG.NO.KA-34/A-2164,
-2-
NC: 2024:KHC-D:2623
MFA No. 100710 of 2017
R/O: OPPOSITE HEAD QUARTERS HOSPITAL,
ANANTAPUR ROAD, BALLARI.
...RESPONDENTS
(R1-R2 SERVED;
R3 DISPENSED WITH)
THIS M.F.A. IS FILED U/SEC.173(1) OF MV ACT, 1988,
AGAINST JUDGMENT AND AWARD DTD:11.05.2016, PASSED IN
MVC.NO.691/2013 ON THE FILE OF THE MEMBER MACT NO.II,
BALLARI, AWARDING THE COMPENSATION OF RS.2,77,110/- WITH
INTEREST AT OF 6% P.A. FROM THE DATE OF PETITION TILL ITS
REALISATION.
THIS M.F.A., COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for orders, by consent of
parties, matter is taken up for final disposal.
2. Heard Shri. R. R. Mane, learned counsel for the
appellant.
3. The present appeal is by the Insurance Company
challenging the validity of judgment and award passed in MVC
No.691/2013 dated 11.05.2016 on the file of Motor Accidents
Claim Tribunal - II, Ballari.
4. Facts in brief which are utmost necessary for
disposal of the present appeal are as under:
NC: 2024:KHC-D:2623
4.1. A claim petition came to be filed under Section 166
of the Motor Vehicles Act, 1988 (for short 'M.V. Act'),
contending that on 25.08.2012 when the claimant along with
the driver were proceedings in a lorry bearing registration
No.KA-34/A-2164 from VGM Mines towards Janaki Factory
situated at Sidiginamola with iron ore load and first respondent
stopped the lorry for the purpose of removing the tarpaul in
order to cover the iron ore load in Janaki Factory. At that
juncture claimant said to have climbed on the top of the lorry
for the purpose of removing the tarpaul (covering) which was
covered on the iron ore.
4.2. However without cautioning the petitioner, the
driver of the said lorry suddenly moved the lorry and whereby
the petitioner fell down and sustained injuries. He was shifted
to VIMS hospital and he was treated for the injuries.
5. Claim petition was resisted by denying the claim
petition averments by the Insurance Company.
6. The driver and the owner of the lorry though served
with notice, remained absent.
NC: 2024:KHC-D:2623
7. The Tribunal on contest allowed the claim in a sum
of Rs.2,77,110/-
8. Being aggrieved by the said compensation,
Insurance Company is in appeal.
9. Shri. R. R. Mane, learned counsel for the appellant
reiterating the grounds urged in the appeal memorandum
contended that the Tribunal has not properly considered the
material evidence on record and has wrongly allowed the claim
and sought for allowing the appeal.
10. He further contended that genesis of the accident
as propounded by the claimant has not been properly
established.
11. He further contended that the driver of the lorry did
not possess the valid driving license. Therefore, fastening the
liability on the Insurance Company of the lorry is incorrect.
12. He also contended that the notices were issued both
owner, driver and Investigating Officer to furnish the driving
license details. But the driver and owner remained absent and
Investigating Officer did not reply to the notice of the Insurance
Company and therefore, adverse inference drawn that the
driver of the lorry did not possess the valid driving license to
NC: 2024:KHC-D:2623
drive the lorry as on the date of incident and sought for
removing the liability of the Insurance Company.
13. Yet another ground on which the appeal is filed
assailing the impugned judgment is that the quantum of
compensation awarded by the Tribunal is on the higher side
especially for one fracture i.e., fracture on patella, the Tribunal
has awarded sum of Rs.50,000/- on the head of pain and
suffering and so also the Tribunal has failed to note that the
injured was in-patient only for three days and therefore, gravity
of the injury is on the lower side and sought for modification
with regard to the quantum of compensation by reasonably
reducing the quantum.
14. The respondents though served with the notice, but
they remained absent.
15. This Court having heard the arguments of learned
counsel for the appellant, perused the material on record
meticulously.
16. As could be seen from the material available on
record, there is clear mention as to how accident has taken
place. Admittedly the claimant was a cleaner in the lorry who
had climbed the top of the lorry in order to remove the tarpaul
NC: 2024:KHC-D:2623
which has been covered the iron ore load in Janaki Factory.
But when the claimant was removing the tarpaul, without there
being proper caution, the driver has moved the lorry in a rash
and negligent manner whereby the claimant fell down and
sustained injuries and he was shifted to VIMS hospital.
17. Material on record would sufficiently indicate that
the claimant has suffered injuries as is contended by him in the
claim petition.
18. The next ground on which the Insurance Company
is trying to assailed the impugned judgment in exonerating the
liability of the Insurance Company is that the driver of the lorry
did not possess the valid driving license.
19. No doubt it is the contention of the appellant that
notice has been issued to the owner, driver and the
Investigating Officer, for the reasons best known to the
Insurance Company that there is no valid driving license.
20. In this regard, it is pertinent to note that in the
charge sheet itself, the Investigating Officer did not prosecute
the driver of the lorry under Section 3 of the M. V. Act for not
possessing the valid driving license. Therefore, it presupposes
that the driver of the lorry did possess the valid driving license.
NC: 2024:KHC-D:2623
21. Third ground on which the appeal is filed that the
quantum of compensation.
22. Admittedly, the injured has suffered the fracture of
patella. No doubt that the Tribunal has granted a sum of
Rs.50,000/- on the head of pain and suffering as compensation,
which may be on the higher side. But taking into note that the
accident is of the year 2012, the monthly income has not been
properly taken while considering the disability factor.
Therefore, instead of enhancing the monthly income and
reducing the quantum of compensation on the head of pain and
suffering, if the quantum of compensation is kept intact ends of
justice would be met.
23. Accordingly, the following order is passed:
ORDER
(i) Appeal is meritless and hereby dismissed.
(ii) Amount in deposit is ordered to be
transmitted to the Tribunal for disbursement in
accordance with law.
Sd/-
JUDGE
