Karnataka High Court

Sri.Hiregowda S/O. Veerangowda ... vs Sri.Doddabasappa S/O.Shankrappa ... on 1 July, 2024

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                                                          NC: 2024:KHC-D:8939
                                                           MFA No. 101618 of 2020




                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                   DATED THIS THE 1ST DAY OF JULY, 2024

                                                 BEFORE
                                THE HON'BLE MR JUSTICE VENKATESH NAIK T
                           MISCELLANEOUS FIRST APPEAL NO. 101618 OF 2020 (MV)
                      BETWEEN:

                      SRI. HIREGOWDA
                      S/O. VEERANGOWDA SHIVANAGOUDAR,
                      AGE: 41 YEARS, OCC: AGRICULTURE,
                      R/O. BELAGAVI VILLAGE,
                      TQ & DT: HAVERI-581108.

                                                                          ...APPELANT
                      (BY SRI. B. M. PATIL, ADVOCATE)

                      AND:

                      1.     SRI. DODDABASAPPA
                             S/O. SHANKRAPPA HUGAR,
                             AGE: 46 YEARS,
                             OCC: DRIVER CUM OWNER OF TATA ACE,
                             R/O. KALLIHAL,
                             TQ & DT: HAVERI-581110.

                      2.     THE AUTHORIZED SIGNATORY,
Digitally signed by          SHRIRAM GENERAL INSURANCE CO. LTD,
MANJANNA E
                             1003-E-8, RIICO INDUSTRIAL AREA,
Location: HIGH
COURT OF                     SITAPUR, JAIPUR, RAJASTAN-302022.
KARNATAKA
                                                                   ...RESPONDENTS
                      (BY SRI. SURESH S. GUNDI, ADV. FOR R2;
                          NOTICE TO R1 HELD SUFFICIENT)

                           THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
                      AGAINST THE JUDGMENT AND AWARD DATED 24.02.2018 PASSED
                      IN MVC NO.140/2014 ON THE FILE OF THE MOTOR ACCIDENT
                      CLAIMS TRIBUNAL AND PRINCIPAL SENIOR CIVIL JUDGE, HAVERI,
                      PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
                      SEEKING ENHANCEMENT OF COMPENSATION.

                           THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
                      COURT DELIVERED THE FOLLOWING:
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                                        NC: 2024:KHC-D:8939
                                         MFA No. 101618 of 2020




                            JUDGMENT

1. This appeal is filed by the claimant arising out of

the judgment and award dated 24.02.2018 passed in M.V.C.

No.140/2014 on the file of the MACT and Prl. Senior Civil

Judge, Haveri ("Tribunal" for short).

2. For the sake of convenience, the parties are

referred to as they are referred to in the claim petition before

the Tribunal.

3. Brief facts of the claimant's case are as under:

On 02.09.2012 at 02:45 a.m. on NH-4 near Harihar check

post, near Shah Dhaba, the claimant and others were returning

from Ramanagaram to Haveri after selling silk cocoons at

Ramanagar market in Tata Ace vehicle bearing registration

No.KA-27/A-466 and the driver of the Tata Ace drove the same

in a rash and negligent manner and dashed to unknown lorry.

Due to the said impact, the claimant sustained injury. Hence,

the first informant registered the case and this led the Police to

register the FIR and investigation. In the accident, the claimant

sustained fracture of left posterior 8th rib and right posterior 7th

rib and spine and other multiple injuries all over the body.

Immediately he was shifted to Government Hospital, Harihar

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and later shifted to Chigateri Government Hospital, Davanagere

and further he was referred to SSIMS Sparsh Centre Hospital,

Davanagere.

4. Considering the oral and documentary evidence at

Exs.P1 to P75, oral evidence of PWs.1 and 2, evidence of RWs.1

and 2 and Exs.R1 to R10, the Tribunal awarded a compensation

of Rs.1,95,465/- in favour of the claimant. Aggrieved by the

said judgment and award, the claimant has preferred this

appeal.

5. Learned counsel for the claimant would submit that

Tribunal committed error in fastening the liability on the owner

of the Tata Ace in question on the ground that the claimant

after unloading the goods belonging to him was travelling in

Tata Ace as gratuitous passenger and not as owner of the

goods. He would further submit that the compensation awarded

by the Tribunal under various heads is on the lower side and

the same may be enhanced.

6. In support of his submission, the learned counsel

for the claimant relied on the decision of the Hon'ble Apex

Court in the case of Shivawwa and another vs. The Branch

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Manager, National Insurance Company Limited and

another1.

7. The learned counsel for the Insurance Company

would submit that the Tribunal has rightly fastened the liability

on the owner of the Tata Ace in question, having regard to the

fact that the claimant was travelling as a gratuitous passenger

as on the date of the accident. He further submits that the

Tribunal ought to have attributed negligence on the owner of

the parked lorry. In support of his submission, he relied on the

decision of the Hon'ble Apex Court in the case of Jumani

Begaum vs. Ram Narayan and others2.

8. Perused the material available on record. It is not in

dispute that as on the date of accident, the claimant was

returning back to his village after unloading goods at

Ramanagar. The Tribunal held that the claimant was travelling

as gratuitous passenger. The Hon'ble Apex Court in identical

circumstances, in the case of Shivawwa cited supra, at

paragraph 10 has held that the factum of deceased has

travelled alongwith his goods at the time of accident, the

2020 ACJ 2148

NC: 2024:KHC-D:8939

insurer would be obliged to satisfy the compensation amount

awarded to the claimant. Therefore, the Tribunal has

committed error in coming to the conclusion that the Insurance

Company cannot be saddled with the liability to satisfy the

award on the ground that the claimant was not travelling

alongwith his goods at the time of accident.

9. The Hon'ble Apex Court in the case of Shivawwa,

it is held that, the deceased at the time of accident was

travelling in lorry in question not as a gratuitous passenger, but

as owner of the cocoon goods. In the instant case, the claimant

was travelling in the Tata Ace in question not as a gratuitous

passenger, but as owner of the goods. Hence, finding recorded

by the Tribunal that the claimant was travelling as a gratuitous

passenger is not sustainable in law.

10. It is not in dispute that the Tata Ace in question

dashed against the lorry which was parked on the road.

Admittedly, the complaint and charge sheet was filed against

the driver of the Tata Ace in question. Further, the Insurance

Company in its written statement has not taken any defence

that the accident was solely attributed to the negligence on the

part of parked vehicle. In the absence of the evidence that the

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driver of the parked vehicle was solely responsible for the

accident, the submission of learned counsel for Insurance

Company that negligence should have been attributed on the

part of the parked lorry is not acceptable. Thus, Insurance

Company is liable to pay compensation.

11. So far as quantum is concerned, to substantiate the

claim of the claimant, the claimant examined on oath as PW1

and relied on wound certificate Ex.P6 and discharge summary

on Exs.P8 and P9. As per Ex.P6 - the wound certificate, the

claimant sustained the following injuries:

"1. Wedge compression fracture D12 vertebral body

2. Fracture spinal processes involving D10, D11, D12.

3. Compression fracture in D7 vertebral body."

12. The Tribunal has awarded a sum of Rs.40,000/-

towards pain and suffering which is not reasonable. Hence,

additional sum of Rs.10,000/- is enhanced under the head pain

and suffering. Accordingly, a sum of Rs.50,000/- is awarded

towards pain and suffering.

13. The Tribunal awarded a sum of Rs.90,465/-

towards medical expenses which is reasonable amount and

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no interference in this regard is called for by this Court. The

Tribunal has awarded a sum of Rs.30,000/- towards

nourishment, conveyance, incidental charges, which is

reasonable one and no interference is called for by this Court in

that regard.

14. Towards loss of income during laid up period,

Tribunal has not awarded any compensation. The claimant

being an agriculturist and having regard to the chart prepared

by the Karnataka State Legal Services Authority, the

appropriate notional income to be taken at Rs.6,500/-. Thus,

the notional income of the claimant is re-assessed at

Rs.6,500/- per month. The nature of injuries suggests that the

claimant must have been under rest and treatment for a period

of three months. Therefore, a sum of Rs.6,500/- X 3 =

Rs.19,500/- is awarded towards loss of income during laid

up period.

15. The Tribunal has awarded a sum of Rs.20,000/-

towards loss of amenities, which is not reasonable one. Hence,

an additional sum of Rs.10,000/- is granted under the head

loss of amenities, considering the nature of injuries sustained

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and the period spent in the hospital. Accordingly, a sum of

Rs.30,000/- is awarded under the head loss of amenities.

16. Towards loss of future income, the Tribunal has not

awarded fair compensation. The accident is of the year 2012,

the income is taken at Rs.6,500/- per month, the Tribunal has

not considered disability aspect.

17. Perused the oral evidence of claimant and Doctor,

who were examined as P.Ws.1 and 2 and also the disability

certificate issued by Doctor at Ex.P71 and the x-ray sheets

taken at the time of assessment of disability, which were

marked as Exs.P72 and P73. From the perusal of the evidence

of claimant, it appears that the claimant sustained accidental

injuries viz., fracture of left 8th rib, 7th right side rib and

fracture of left vertebra. In this regard, the claimant was

admitted in hospital for a period of 20 days and 11 days, as per

contents of Ex.P8 and P9 - discharge summaries. In order to

prove this aspect, the claimant got examined the Doctor -

P.W.2, who assessed disability of claimant. P.W.2 has stated

that claimant has permanent physical disability up to 65 to

70% to particular limb and 26.28% to the whole body and

same was marked as Ex.P71. The oral evidence of P.W.1, P.W.2

NC: 2024:KHC-D:8939

and disability certificate also corroborates x-rays taken at the

time of assessment of disability which were marked as Ex.P72

and P73. But the Tribunal has not considered the disability

aspect. The Trial Court assigned only reason that the evidence

of P.W.2 is doubtful. But the Trial Court has not discussed as to

how the Doctor evidence is doubtful. Apart from this aspect,

the Tribunal has not considered the relevancy of oral evidence

of P.W.1, disability certificate and x-ray sheets. In fact, the oral

evidence of P.W.1 claimant, disability certificate and x-ray

sheets have not been rejected. Hence, the Tribunal finding as

to non-consideration of oral testimony of P.W.2 Doctor, is not in

accordance with law. The Tribunal ought to have considered the

disability at 22%. Considering the oral evidences of claimant,

Doctor and the wound certificate and disability certificate, if

22% of permanent disability is taken into consideration, then it

would meet the ends of justice. Considering the age of

claimant, the multiplier applicable is 16, then the compensation

under the head loss of earning due to permanent disability

would be (Rs.6,500/- X 12 X 16 X 22% = Rs.2,74,560/- is

awarded towards loss of future income.

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18. Accordingly, the claimant is entitled for the

compensation as under:

Pain and suffering                                         Rs.50,000/-
Medical expenses                                           Rs.90,465/-
Towards nourishment,          conveyance        and        Rs.30,000/-
attendant charges
Loss of income during laid up period                       Rs.19,500/-
Loss of future income                                    Rs.2,74,560/-
Loss of amenities                                          Rs.30,000/-
                     Total                             Rs.4,94,525/-
Less: compensation awarded by Tribunal                   Rs.1,95,465/-
           Enhanced compensation                       Rs.2,99,060/-


    19.    Accordingly, I pass the following:

                               ORDER

    (i)    The appeal filed by the appellant - claimant is partly

allowed.

(ii) The judgment and award dated 24.02.2018 passed

by the MACT and Prl. Senior Civil Judge, Haveri in M.V.C.

No.140/2014 is modified to the extent stated herein above. The

claimant is entitled for an additional enhanced compensation of

Rs.2,99,060/- with an interest at 6% per annum from the date

of petition till the date of realization. The claimant is not

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NC: 2024:KHC-D:8939

entitled for the interest for the delayed period of 744 days in

filing the appeal.

(iii) The respondent - Insurance Company is directed to

deposit the enhanced compensation amount alongwith interest