Karnataka High Court
Meharunnisa vs Khader Basha on 4 January, 2024
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MFA No. 3323 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 3323 OF 2013 (MV-I)
BETWEEN:
1. MEHARUNNISA
W/O LATE DADAVALI SAB,
AGED ABOUT 56 YEARS,
R/O HORPET,
CHITRADURGA-577501
...APPELLANT
(BY SRI. B PRAMOD., ADVOCATE)
AND:
1. KHADER BASHA
S/O.LATE DADAVALI SAB,
MAJOR, OWNER OF GOODS AUTO BEARING
REGISTRATION NO.
KA-52-2870,R/O NO.28314,
7TH CROS, 1ST MAIN,
DODDANA INDUSTRIAL ESTATE,
Digitally signed
by BHARATHI BANGALORE-560091.
S
Location: HIGH 2. THE DIVISIONAL MANAGER
COURT OF CHOLAMANDALAM GENERAL INSURANCE CO LTD.,
KARNATAKA
DIVISIONAL OFFICE,
9/1, ULSOOR ROAD,
BANGALORE 560008.
...RESPONDENTS
(BY SRI. H R SREEDHARA.,ADVOCATE FOR R1
SRI. H S LINGARAJ, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 27.07.2012 PASSED IN MVC
NO.304/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL MACT-IV, CHITRADURGA PARTLY
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MFA No. 3323 of 2013
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above appeal is filed by the claimant under Section
173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as
"the Act") seeking enhancement of the compensation as well as
challenging the finding fastening/fixing the liability to pay the
compensation on the owner of the vehicle vide judgment and
award dated 27.07.2012 passed in MVC No.304/2011 on the
file of the II Addl. Senior Civil Judge and MACT., - VI,
Chitradurga (hereinafter referred to as 'the Tribunal')
2. The relevant facts necessary for consideration in the
present appeal are that on 16.08.2010, the appellant/claimant
(hereinafter referred to as claimant) was traveling in a Goods
Auto rickshaw bearing registration No. KA-52-2870 along with
the goods on NH-4 road near Hiriyuru Taluk and when the
driver of the said Auto rickshaw drove the same in a rash and
negligent manner causing the Auto rickshaw to topple down on
the left side of the road causing the accident in question.
Claiming compensation for the injuries sustained by her in the
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said accident, the claimant filed a claim petition before the
Tribunal arraying owner and insurer of the Auto rickshaw as
respondents. The said claim petition was contested by the
respondents.
3. The claimant examined herself as PW1 and marked
Exs.P1 t P7. The representative of the 2nd respondent - insurer
was examined as RW.1 and the copy of the insurance policy
was marked as Ex.R1. The Tribunal by its judgment and award
dated 27.07.2012, allowed the claim petition and awarded a
compensation of Rs.10,000/- together with interest @ 6% per
annum. The Tribunal further directed the 1st respondent-owner
of the vehicle to pay the compensation awarded and
exonerated the 2nd respondent- insurer from payment of
compensation on the ground that the appellant was gratuitous
passenger traveling in the goods vehicles. Being aggrieved, the
present appeal is filed.
4. Learned counsel for the Appellant vehemently
contended that the compensation awarded is on the lower side
in view of the fact that although the Doctor has not been
examined, there was sufficient material on record to
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demonstrate that the claimant has sustained fracture of the
lower end of radius along with 4 other simple injuries and she
has taken treatment as inpatient for ten days. With regard to
the liability, it is submitted that the liability is required to be
fastened on the insurer having regard to the fact that it was the
case of the claimant that she was traveling along with her
goods and the finding of the Tribunal exonerating the insurer is
erroneous and liable to be set aside.
5. Per contra, learned counsel for 2nd respondent -
insurer justifies the award of compensation as well as the
finding regarding liability.
6. The contentions putforth have been considered and
the material on record have been perused including the records
of the Tribunal. The questions that arise for consideration are:
i. 'Whether the quantum of compensation
awarded by the Tribunal is liable to be
enhanced?
ii. whether the finding of the Tribunal
regarding liability is erroneous and liable to be
interfered with?
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7. The essential facts regarding occurrence of the
accident are undisputed. With regard to the injuries sustained,
it is forthcoming from the wound certificate (Ex.P6) that the
claimant had sustained 4 simple injuries and one grievous
injury and the grievous injury being fracture of lower end of
radios. It is forthcoming from the wound certificate itself that
the claimant was treated as an inpatient at Apoorva Hospital for
the period from 16.08.2010 to 26.08.2010. The discharge card
of Apoorva Hospital (Ex.P7) also discloses the factum of the
claimant being treated as an inpatient for ten days.
8. No doubt, the claimant has not examined the
Doctor nor has produced the bills for having incurred expenses
for the treatment of the injuries. However, having regard to the
material on record as noticed above and the nature of injuries
sustained, it is just and proper that the compensation awarded
be enhanced by a further sum of Rs.5,000/-.
9. With regard to the liability, the claimant has stated in
the complaint (Ex.P2) that she is traveling in the goods auto
rickshaw along with her goods and it is the averment of the
claimant in the claim petition as well as her testimony in her
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examination - in - chief that she was traveling with the goods.
It is relevant to note that the 1st respondent who is the owner
of the vehicle is the son of the claimant. Although, the vehicle
in question is a four wheeler and the seating capacity is 1+1
including the driver, the Tribunal while considering the said
aspect, has recorded with a finding that although the claimant
has averred that she was traveling along with the goods, she
was not specifically pleaded or deposed as to whether the
goods being carried by her through the vehicle and hence, has
held that there is no specific pleading or evidence to prove that
the claimant was traveling in the goods vehicle with any
particular goods or things. The Tribunal further noticed that in
the cross examination of PW.1, she has specifically admitted
that she was traveling as a passenger. Hence, the Tribunal has
recorded a finding that the claimant was traveling as a
gratuitous passenger in the goods vehicle. Further, the Tribunal
has noticed the judgments of the Hon'ble Supreme Court in the
case of National Insurance Co. Ltd., Vs. Cholleti
Bharatamma & Others1 as also the judgment of this Court in
the case of The United India Insurance Company Vs. Smt.
1997 SAR 921 Civil, Supreme Court
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Lalithabai and others2, wherein it has been specifically held
that 'carrying goods would not include the luggage or personal
effects or personal luggage of person/s traveling in the
vehicle'. The Appellant has failed in demonstrating that the
said finding is in any manner erroneous or recorded contrary to
any particular material on record and the same is liable to be
interfered with by this Court. Hence, the finding regarding
liability recorded by the Tribunal is just and proper.
10. In view of the aforementioned, question No.1 is
framed for consideration is answered in the Affirmative and
question No.2 framed for consideration is answered in the
Negative.
11. Hence, the following
ORDER
i) The appeal is allowed in part;
ii) The judgment and award dated 27.7.2012 in MVC
No.304/2011 is hereby modified to the extent
stated herein. In all other respects, the judgment
and award of the Tribunal remain unaltered;
ILR 2007 Kar. 1585
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iii) The Appellant/Claimant is entitled to enhanced
compensation in addition the amount awarded by
the Tribunal in a sum of `5,000/- together with
interest at 6% pa., from the date of petition till its
realization;
iv) The enhanced compensation together with accrued
interest is liable to be deposited by the Respondent
No.1 within two months from this day.
v) Upon such deposit, the entire enhanced
compensation together with interest accrued
thereon shall be disbursed to the Claimant.
No costs.
Sd/-
JUDGE
BS
