Karnataka High Court

Elumalai vs Mohammed Sadique on 16 January, 2024

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                                                       NC: 2024:KHC:2255
                                                   MFA No. 1535 of 2014




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 16TH DAY OF JANUARY, 2024

                                         BEFORE
                      THE HON'BLE MR JUSTICE C.M. POONACHA
              MISCELLANEOUS FIRST APPEAL NO. 1535 OF 2014 (MV-I)
             BETWEEN:

             1.    ELUMALAI
                   S/O CHINNASWAMY,
                   AGED ABOUT 29 YEARS,
                   C/O. UMMAR FAROOQ,
                   ROULATH MANZIL,
                   ALEKATA,ULLA,
                   MANGALORE, D.K. PIN-575008.
                                                             ...APPELLANT
             (BY SRI. RAVISHANKAR SHASTRY G., ADVOCATE)

             AND:

             1.    MOHAMMED SADIQUE
                   S/O IBRAHIM,
                   AGED ABOUT 46 YEARS,
                   D NO 4-216/2, IRFAN MANJIL,
Digitally          KASABA BENGRE,
signed by          MANGALORE-01
BHARATHI S
Location:
HIGH COURT   2.    UNITED INDIA INSURANCE CO. LTD.,
OF                 DIVISIONAL OFFICE,
KARNATAKA
                   RAMA BHAVAN COMPLEX,
                   KODIALBAIL, MANGALORE,
                   DK. DISTRICT PIN-575001.
                   REPRESENTED BY ITS DIVISIONAL MANAGER
                                                           ...RESPONDENTS
             (BY SRI. Y ARUNA., ADVOCATE FOR R2
              R1 SERVED BUT UNREPRESENTED)

                  THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
             JUDGMENT AND AWARD DATED 10.12.2013 PASSED IN MVC
             NO.332/2012 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND
             SESSIONS JUDGE, MEMBER, MACT, D.K., MANGALORE, PARTLY
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                                                      MFA No. 1535 of 2014




ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                                        JUDGMENT

The above appeal is filed by the claimant challenging

the judgment and award dated 1012.2013 passed in MVC

No.332/2012 by the Member MACT and IV Additional District

and Sessions Judge, D.K, Mangaluru1.

2. For the sake of convenience, the parties herein

are referred as per their rank before the Tribunal.

3. The relevant facts necessary for consideration of

the present appeal are that the appellant - claimant was

travelling in a tempo bearing No.KA-19C-2018 on 3.11.2011

as a loader-unloader/coolie and he was seated by the side of

the driver, when the driver of the said tempo drove the said

vehicle in a high speed in a rash and negligent manner

causing the accident in question, as a result of which the

claimant sustained grievous injuries.

Hereinafter referred to as the 'Tribunal'

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4. Claiming compensation for the said injuries, the

claimant filed a claim petition arraying the owner and insurer

of the tempo as respondents. The insurer entered

appearance in the said proceedings and contested the same.

The claimant examined himself as PW.1 and the doctor as

PW.2. Exs.P1 to P16 were marked in evidence. The policy of

insurance was marked as Ex.R1. The Tribunal by its

judgment and award dated 10.12.2013 awarded a

compensation of `3,19,200/- together with interest at 6%

pa. The Tribunal has recorded a finding that the claimant

was a gratuitous passenger traveling in the goods vehicle

and hence, the second respondent - insurer is not liable to

pay the compensation awarded and directed the first

respondent - owner of the vehicle to pay the compensation

awarded. Being aggrieved, the claimant has filed the above

appeal challenging the finding of the Tribunal on liability as

well as seeking for enhancement of compensation.

5. Learned counsel for the appellant assailing the

finding regarding liability contends that the claimant had

specifically averred in the claim petition that he was traveling

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in the vehicle in question as a loader-unloader/coolie and the

same has also been deposed in the examination-in-chief of

PW.1. However, the Tribunal erroneously misjudged the

statements made in the cross-examination of PW.1 and

exonerated the insurer from payment of compensation. It is

further contended that under the policy of insurance - Ex.R1,

a premium of `50/- has been accepted wherein, the risk of

two employees has been covered. Further, learned counsel

for the appellant submits that the compensation is required

to be enhanced and the assessment of the Tribunal with

regard to the income as well as the percentage of disability is

on the lower side and is required to be enhanced. In support

of his contentions, the learned counsel relies on the Full

Bench judgment of this Court in the case of New India

Assurance Co.Ltd., rep.by its Divisional Manager v.

Yallavva & Anr.,2 and the Division Bench judgment of this

Court in the case of National Insurance Co.Ltd., v.

Sarojamma3.

ILR 2020 KAR 2239

ILR 2008 KAR 542

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6. Per contra, learned counsel for the second

respondent - insurer justifies the award passed by the

Tribunal and submits that the finding recorded by the

Tribunal that the claimant was a gratuitous passenger is just

and proper having regard to the statements made in the

cross-examination of PW.1. He further submits that the

quantum of compensation awarded is just and proper and

seeks for dismissal of the above appeal. In support of his

contentions, he relies on a Division Bench judgment of this

Court in the case of Sri Ashwathappa & Anr., v. Sri

Ravichandra T & Anr.,4.

7. The submissions of both the learned counsel have

been considered and the material on record including the

records of the Tribunal have been perused. The questions

that arise for consideration are:

(i) Whether the finding recorded by the Tribunal with regard to liability is just and proper?

(ii) Whether the compensation awarded is liable to be enhanced?

Judgment dated 29.3.2023 passed in MFA No.4096/2021

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Re.question No.(i):

8. The claimant has filed the claim petition

specifically averring that he was traveling in the insured

vehicle on 3.11.2011 as a loader-unloader/coolie. In the

examination-in-chief, at para 2 of the affidavit, he has

deposed that he was traveling as a loader -unloader/coolie

in the tempo. In the cross-examination, PW.1 has stated

that to go to Hoige Bazar he boarded the goods tempo and

he was going to bring a fish net. He further has stated that

the goods tempo was empty. He denied the suggestion put

that he was traveling as a gratuitous passenger in the goods

tempo.

9. The Tribunal while appreciating the material on

record has recorded that since in the case sheet (Ex.P15) it

was not mentioned that PW.1 was traveling as a coolie and

having regard to the statements made in the cross-

examination that he was going to Hoige Bazar to bring a fish

net and the goods tempo was empty as also in view of the

fact that he did not produce any document to show that he

was working as loader-unloader in the said goods tempo, the

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Tribunal has recorded a finding that an inference can be

drawn that he was traveling as a passenger in the goods

vehicle.

10. It was the consistent case of the claimant as

averred in the claim statement as well as in the evidence by

way of examination-in-chief that he was a loader-

unloader/coolie traveling in the tempo. In the cross-

examination, PW.1 has stated that he was going to bring a a

fish net and the goods tempo was empty. The statement of

PW.1 made in the cross-examination is required to be read

along with the statement made in the examination-in-chief

and logical conclusion to be drawn is that it is his testimony

that he was traveling in the tempo as a loader-

unloader/coolie and that he boarded the tempo to go to

Hoige Bazaar to bring the fishnet. If the said aspect is taken

into consideration, it is clear that the claimant has pleaded

and proved that he was a loader-unloader/coolie traveling in

the tempo. The suggestion made in the cross-examination

that he was a passenger traveling in the goods vehicle has

been denied. Hence, there is no other material on record not

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to dis-believe the testimony of PW.1 that he was traveling in

the vehicle as a loader-unloader/Coolie.

11. It is clear from a perusal of the insurance policy

(Ex.R1) that apart from the premium of `2,580/- towards

third party basic and the premium of `200/-, the insurer has

accepted a premium of `50/- to cover the risk of two

employees. Hence, it is clear that the policy of insurance

issued by the insurer covers the risk of two employees and

the claimant having adequately pleaded and deposed in his

evidence that he was a loader-unloader and there is no other

material on record to draw a contrary conclusion, the finding

recorded with regard to the liability is liable to be interfered

with and it is required to be held that the second respondent

- insurer is liable to pay the compensation awarded.

12. In the case of Yallavva2 a Full Bench of this

Court was considering the aspect regarding pay and

recovery. In the present case, having regard to the fact that

the insurer has accepted additional premium covering the

risk of two employees, the facts of the present case are

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different from the facts that arose for adjudication in the

case of Yallavva2.

13. In the case of Sarojamma3, a Division Bench of

this Court was considering the question as to whether the

risk of a person who is the owner or authorized

representative of the goods traveling in the vehicle, while

proceedings to secure the goods for transportation, before

the goods are loaded, is covered. The said fact situation is

different from the fact situation arising in the present appeal.

14. In the case of Sri Ashwathappa4 relied on by

the learned counsel for the respondent, a Division Bench of

this Court was considering a case where no additional

premium was paid under the policy of insurance. Hence, the

said case also is not applicable to the facts of the present

case.

15. Hence, question No.1 framed for consideration is

answered in the affirmative.

Re.question No.(ii) :

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16. The age of the claimant was 27 years at the time

of the accident and the Tribunal has rightly assessed the

appropriate multiplier as 17.

17. The claimant has averred that he was earning a

sum of `6,000/- pm. However, no document is produced to

prove the same. The Tribunal has assessed the income as

`4,500/- pm. In the absence of any document to prove the

income, the income of the claimant is required to be re-

assessed as notional income as per the income chart that is

being followed for settlement of claims in the Lok Adalath

conducted by the Legal Services Authority and having regard

to the date of the accident, the income is re-assessed at

`6,500/- pm.

18. It is forthcoming from the wound certificate

(Ex.P4) that the claimant has sustained crush injury to the

left foot and from the discharge summary of Rajamal

Hospital (Ex.P13) it is forthcoming that he was admitted as

an inpatient on 6.11.2011 and discharged on 7.12.2011 and

that forefoot amputation has been done. It is also

forthcoming from the disability certificate (Ex.P14) issued by

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the District Wenlock Hospital that the mid tarsal amputation

of the left lower limb has been done and the disability is

assessed as 40%. The case sheet (Ex.P15) of the Wenlock

District Hospital, Mangaluru, discloses that the claimant was

admitted on 3.11.2011 and discharged on 5.11.2011. Hence

the claimant was treated as an inpatient totally for 33 days.

19. In view of the aforementioned, the compensation

is re-assessed as follows:

19.1 The Tribunal has awarded a sum of `50,000/-

towards pain and agony. Having regard to the nature of

injuries sustained, the same is re-assessed at `60,000/-.

19.2 The Tribunal has awarded a sum of `73,921/-

towards medical expenses and the same is just and proper

and is rounded off to `74,000/-.

19.3 The Tribunal has awarded a sum of `5,000/-

towards attendant charges and `10,000/- towards nutritious

food, traveling expenses, etc. The compensation on both

the heads is re-assessed at `25,000/- having regard to the

nature of injuries and the period of treatment.

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19.4 The Tribunal has taken the laid up period as 5

months. Hence, the compensation towards loss of earning

during laid up period is re-assessed as (`6,500/-x5)

`32,500/- as against `22,500/- awarded by the Tribunal.

19.5 The Tribunal has awarded a sum of `20,000/-

towards loss of amenities. Having regard to the nature of

injuries sustained and the period of treatment, the same is

re-assessed at `25,000/-.

19.6 The Tribunal has appreciated the evidence of the

doctor - PW.2 and has recorded a finding that the disability

is assessed at 15% to the whole body. It is forthcoming that

PW.2, who is the Orthopedic Surgeon from District Wenlock

Hospital has not specifically stated regarding the percentage

of disability. However, it is forthcoming from the

photographs (Ex.P11) that the left foot has been amputated

below the ankle. Having regard to the disability certificate

(Ex.P14), and having regard to the judgment of the Hon'ble

Supreme Court in the case of Sandeep Khanuja vs. Atul

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Dande and another5 that the effect of the disability will

have to be seen vis-à-vis the avocation of the claimant while

assessing loss of earning capacity, it is just and proper that

the disability is re-assessed at 40%. Accordingly, the loss of

future earning is re-assessed at (`6,500/-x12x17x40%)

`5,30,400/- as against `1,37,700/- awarded by the Tribunal.

20. Accordingly, the total compensation under various

heads is re-assessed as follows:

Sl.No. Heads Amount awarded Amount awarded by the Tribunal (`) by this Court (`)

1. Pain and agony 50000.00 60000.00

2. Medical expenses 73921.00 73921.00

3. Attendant charges, food, 15000.00 25000.00 nourishment and conveyance charges

4. Loss of earning during the 22500.00 32500.00 period of treatment

6 Loss of amenities 20000.00 25000.00

7 Permanent Disability, 137700.00 530400.00 future loss of income

Total 319121.00 746821.00

(2017) 3 SCC 351

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21. Hence, the appellant/claimant is entitled for

enhanced compensation of (`746821 - `319121) `4,27,700/-

together with interest at 6% p.a. Accordingly, question No.2

is answered in the affirmative.

22. In view of the aforementioned, the following:

ORDER

i) The appeal is allowed in part;

ii) The judgment and award dated 10.12.2013 passed in MVC No.332/2012 on the file of Member MACT and IV Additional District and Sessions Judge, D.K, Mangaluru, is modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

iii) The appellant/claimant is entitled to enhanced compensation of `4,27,700/- with interest at 6% per annum from the date of petition till its realization in addition to the compensation awarded by the Tribunal.