Karnataka High Court
Gundu S/O Anant Gouda @ Patil vs Smt. Rekha W/O Rama Gajakosh on 9 February, 2024
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2024:KHC-D:3137
MFA No. 24525 of 2011
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
MISCELLANEOUS FIRST APPEAL NO.24525 OF 2011 (MV-I)
BETWEEN:
GUNDU
S/O. ANANT GOUDA @ PATIL,
AGE: 28 YEARS, OCC: COOLIE/HAMALI,
R/O: HULAKOPPA, TALUK: DHARWAD,
DISTRICT: DHARWAD.
...APPELLANT
(BY SRI. H.M. DHARIGOND, ADVOCATE)
AND:
1. SMT. REKHA
W/O. RAMA GAJAKOSH,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: AMBEDIKAR GALLI, HALIYAL,
TALUK: HALIYAL, DISTRICT: KARWAR.
2. THE RELIANCE GENERAL INSURANCE CO. LTD.,
Digitally
signed by
NO. 1 and 2, FIRST FLOOR,
BHARATHI
BHARATHI H M
HM Date:
MAGANUR COMMERCIAL COMPLEX,
2024.02.21
11:58:44
+0530
BEEDI ROAD, CHITRADURGA-577501.
...RESPONDENTS
(BY SRI. N.C. KOLLOORI, ADVOCATE FOR R2;
R1 SERVED)
THIS M.F.A. IS FILED U/SEC.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DTD:14-07-2011 PASSED IN
MVC.NO.317/2008 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CJM, AND MEMBER, ADDL. MACT, DHARWAD, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS M.F.A., COMING ON FOR FINAL HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:3137
MFA No. 24525 of 2011
JUDGMENT
Heard Shri. H. M. Dharigond, learned counsel for the
appellant and Shri. N. C. Kolloori, learned counsel for
respondent No.2.
2. Present appeal is directed against the judgment and
award passed in MVC No.317/2008 dated 14.07.2011 on the
file of Principal Senior Civil Judge and Chief Judicial Magistrate
and Additional Motor Accident Claims Tribunal, Dharwad.
3. Admitted facts are that the claimant got injured in a
road traffic accident occurred on 23.05.2008 at about 7.45
a.m., when the driver of the vehicle Mahindra Maxi Truck
bearing engine No.GA71L32962 and Chassis
No.MA1R22GAA71L5318 has lost control over the vehicle and
dashed to the road side mango tree.
4. Claimant claims as a cleaner-cum-hamali in the said
vehicle. But in the complaint, the averments made by the
claimant are different from what is mentioned in claim petition
averments which have been extracted by the learned Trial
Judge in the impugned judgment in paragraph No.12 and
exonerated the Insurance Company to pay the compensation
quantified in a sum for Rs.1.69.000/- with interest at the rate
NC: 2024:KHC-D:3137
of 6% per annum from the date of petition till the date of
realization and directed the amount to be recovered form the
owner of the vehicle.
5. Being aggrieved by the same, the claimant is in
appeal.
6. Shri. H. M. Dharigond, learned counsel for the
appellant contended that the Tribunal has wrongly concluded
that the claimant is a gratuitous passenger and not a cleaner-
cum-hamali in the said vehicle as on the date of accident and
sought shifting the liability on the Insurance Company and
allowing the appeal.
7. He also contended that compensation awarded in a
sum of Rs.1,69,000/- is on the lower side and sought for
reasonable enhancement.
8. Per contra, Shri. N. C. Kolloori, learned counsel for
respondent No.2 placed reliance on the judgment of the Hon'ble
Apex Court in the case of Balu Krishna Chavan Vs. The
Reliance General Insurance Company Limited and Others
decided on 03.11.2022 and sought for dismissal of the appeal
insofar as, shifting the liability on the Insurance Company is
concerned.
NC: 2024:KHC-D:3137
9. Insofar as the compensation is concerned, Shri. N.
C. Kolloori, learned counsel for respondent No.2 submits that
the Court can pass an appropriate orders taking note of the
material evidence placed on record.
10. Owner of the vehicle though served with notice of
appeal, remained absent.
11. Taking note of these aspects of the matter, this
Court perused the material on record meticulously.
12. On such perusal of the material on record, the
claimant has successful established injuries sustained in a roat
traffic accident occurred on 23.05.2008 at about 7.45 a.m., on
account of rash and negligent driving of the driver of offending
vehicle as referred to supra.
13. The Tribunal taking into consideration the injuries
sustained by the claimant awarded compensation in a sum of
Rs.1,69,000/- and directed that the owner of the vehicle is to
pay the compensation on the ground that he was a gratuitous
passenger and not cleaner-cum-hamali as is claimed by him
admitted discussion in paragraph No.12 of the judgment.
14. Shri. H. M. Dharigond, learned counsel for the
appellant, however contended that even in such cases following
NC: 2024:KHC-D:3137
the dictum of the full Bench judgment of this Court in the case
of New India Assurance Company Limited Vs. Yallawwa and
Another reported in ILR 2020 (3) 2239, the direction be made
to the Insurance Company to pay the adjudged compensation
at the first instance and directed to recover the same from the
owner in the very same proceedings.
15. Shri. N. C. Kolloori, learned counsel for respondent
No.2 in turn has relied on the judgment of Balu Krishna Chavan
(supra) wherein their lordships in paragraph No.9 has held as
under:
"In the instant case, the appellant has
relied on the judgment dated 21.02.2017
passed by this Court in Civil Appeal
No(s).3047 of 2017 titled as "Manuara
Khatun & Ors. Vs. Rajesh Kr. Singh & Ors".
In the said case also, a Bench of this Court,
having referred to the earlier decisions in
Para - 15 and 16 of that judgment, has
concluded that normally, there would be no
order to "pay and recover'. However, in the
said facts, this Court, to meet the ends of
justice, had taken into consideration the fact
situation though, the claimant therein, was a
'gratuitous passenger' and had kept in view
that the benevolent object of the Act and
NC: 2024:KHC-D:3137
had directed the payment by the Insurance
Company and to recover the amount."
16. Taking note of the said aspects of the matter in
case of a gratuitous passenger, there cannot be any direction to
be issued to the Insurance Company to pay the compensation
at the first instance and recover the same from the owner
unless the claimant prove that there is no violation of the policy
condition.
17. Therefore, contention of the claimant that the
liability to be shifted to the Insurance Company or for a
direction that the Insurance Company to pay the adjudged
compensation at the first instance and recover the same from
the owner cannot be countenanced in law.
18. This would take us to the next question adequacy of
the quantum of compensation.
19. Admittedly, the injured has sustained injuries as is
found in the wound certificate and disability certificate marked
at Ex.P.7 and Ex.P.49 respectively.
20. Taking note of the fact that the injured was aged 25
years, this Court is of the considered opinion that enhancing
the compensation amount in a sum for Rs.2,25,000/- as
NC: 2024:KHC-D:3137
against Rs.1,69,000/- would meet the ends of justice instead of
enhancing the compensation on each and every head.
21. Accordingly, the following order is passed:
ORDER
(i) Appeal is allowed in part.
(ii) As against a sum of Rs.1,69,000/-
awarded by the Tribunal, the claimant is entitled to
a sum of Rs.2,25,000/- as compensation with
interest at the rate of 6% per annum from the date
of petition till realization, recoverable from the
owner of the offending vehicle Mahindra Maxi Truck
bearing engine No.GA71L32962 and Chassis
No.MA1R22GAA71L5318 who is the first respondent
in the appeal.
Sd/-
JUDGE
SMM
