Karnataka High Court
Kaleelulla vs Nanjundaswamy on 30 July, 2024
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MFA No. 36 of 2012
C/W MFA No. 126 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 36 OF 2012 C/W
MFA NO. 126 OF 2012 (MV-I)
IN M.F.A. No.36/2012
BETWEEN:
THE ORIENTAL INSURANCE COMPANY LIMITED
BRANCH OFFICE, V. NIALAYA, 3RD CROSS
GANDHI BAZAR CIRCLE, B.M.ROAD, HASSAN
BY ITS REGIONAL OFFICE, ORIENTAL INSURANCE
COMPANY LIMITED, NO.44/45, 4TH FLOOR
LEO SHOPPING COMPLEX, RESIDENCY ROAD
BANGALORE - 560 025 REP. BY ITS
REGIONAL MANAGER APPELLANT
(BY SRI. P.B.RAJU, ADV.)
AND:
1. KALEELULLA
S/O SAB JOHN SAB
MERCHANT, MAZID ROAD
Digitally signed by
PRAJWAL A SANTHEPET, TUMKUR - 572 101
Location: HIGH COURT 2. NANJUNDASWAMY
OF KARNATAKA
S/O GOVINDASETTY
SHANTHI VILLAGE
HASSAN DISTRICT - 573 201
3. MANJEGOWDA,
S/O HANUMANTHEGOWDA
MAJOR, SHANKANAHALLI
BOOVANAHALLI POST
HASSAN - 573 201 ...RESPONDENTS
(BY SMT. BHUSHANI KUMAR, ADV. FOR R1;
R2 SERVED AND UNREPRESENTED)
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MFA No. 36 of 2012
C/W MFA No. 126 of 2012
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 03.09.2011
PASSED IN MVC NO.175/1996 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-I, ADDITIONAL MACT, TUMKUR,
AWARDING A COMPENSATION OF Rs.1,12,000/- WITH INTEREST
@ 6% P.A. FROM THE DATE OF PETITION TILL 16.09.2006.
IN M.F.A. No.126/2012
BETWEEN:
KALEELULLA
S/O SAB JOHN SAB
MERCHANT, MAZID ROAD
SANTHEPET, TUMKUR - 572 101 ...APPELLANT
(BY SMT. BHUSHANI KUMAR, ADV.)
AND:
1. NANJUNDASWAMY
S/O GOVINDASETTY
SHANTHI VILLAGE
HASSAN DISTRICT - 573 201
2. THE BRANCH MANAGER
THE ORIENTAL INSURANCE CO. LTD.
BRANCH OFFICE, V. NILAYA
3RD CROSS, GANDHI BAZAR CIRCLE
B.M.ROAD, HASSAN - 573 201
3. MANJEGOWDA
S/O HANUMANTHEGOWDA
MAJOR, SHANKANAHALLI
BOOVANAHALLI POST
HASSAN - 573 201 ...RESPONDENTS
(BY SRI.P. B. RAJU, ADV. FOR R2;
VIDE ORDER DATED 28.03.2014
NOTICE TO R1 DISPENSED WITH
VIDE ORDER DATED 28.03.2014 STEPS
AGAINST DOES NOT ARISE)
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MFA No. 36 of 2012
C/W MFA No. 126 of 2012
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 03.09.2011
PASSED IN MVC NO.175/1996 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-I, ADDITIONAL MACT, TUMKUR,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
ORAL JUDGMENT
In these appeals, the insurance company is
challenging the liability to pay the compensation,
whereas the petitioner is seeking enhancement of
compensation against the judgment and award dated
03.09.2011 passed in M.V.C.No.175/1996 by the
Presiding Officer, Fast Track Court-I and Additional
MACT, Tumkur ('the Tribunal' for short).
2. For the sake of convenience, the rank of the
parties shall be referred to as per their status before
the Tribunal.
3. Brief facts of the case are, there was an
accident on 08.08.1995 involving the Goods Lorry
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bearing Reg.No.MYY-7526 at Thippagondanahalli gate,
NH-4, Tumkur-Nelamangala road. Due to which, the
petitioner being the inmate, sustained injuries, treated
at General Hospital, Tumkur and then at Siddhartha
Medical College Hospital, Tumkur, seeking
compensation, approached the Tribunal. Claim was
opposed by the Insurance Company as well as the
owner of the lorry. The Tribunal, after taking the
evidence and hearing both the parties by impugned
judgment allowed the claim petition granting
compensation of Rs.1,12,000/- with interest at the rate
of 6% p.a., fastening the liability against the owner
and insurer of the Lorry to pay the compensation.
Challenging its liability, the insurance company has
filed MFA.No.36/2012, pleading inadequacy and
seeking enhancement, the petitioner has filed
MFA.No.126/2012 on various grounds.
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4. Heard the arguments of Smt.Bhushani Kumar,
learned Counsel for the petitioner and Sri. P.B.Raju,
learned counsel for the Insurance Company.
5. It is the contention of the learned counsel for
the petitioner that the petitioner has sustained fracture
of posterior dislocation of right hip and olecronon
process of right ulna and he was under hospitalization
for period of 30 days, he was a businessman in
agricultural produce earning more than Rs.15,000/-
per month, but the Tribunal has taken Rs.2,250/- as
his notional income. PW.2-Dr.G.S.Nagarale, the treated
doctor, who has stated that the petitioner has
sustained more than 50% of whole body disability, but
the Tribunal has taken only 15% and sought for
enhancement.
6. Per contra, learned counsel for the insurance
company has contended that the petitioner is a
gratuitous passenger in the lorry, he was not carrying
any goods, the policy does not cover the risk of the
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petitioner, the Tribunal erroneously fastened the
liability against the insurance company and sought for
direction that the owner of the Lorry alone shall pay
the compensation.
7. I have given my anxious consideration to the
arguments addressed on behalf of the parties and
perused the records.
8. The material on record did point out that there
was an accident on 08.08.1995, wherein the petitioner
while traveling in a Lorry bearing Reg.No.MYY-7256, at
Thippagondanahalli gate, NH-4, on Tumkur-
Nelamangala road sustained fracture of right hip joint
and olecronon process of right ulna and he was under
hospitalization for 30 days. Being a victim of the
accident, the petitioner is entitled to claim
compensation.
9. The main contention of the insurance company
is that the petitioner is a gratuitous passenger and he
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was not traveling with any goods. It is the contention
of the petitioner that he was traveling with goods. On
perusal of the evidence on record, it is pertinent to
note that at the time of accident, the petitioner was
traveling with 7 bags of coconut, 7-8 bags of puffed
rice, few bags of groundnut and sugar and 2 sheeps.
Ex.P105 is the mahazar marked before the Tribunal
clearly points out that the Lorry was loaded with sugar
bags, there are 7-8 bags of puffed rice, 7 bags
containing coconut and 2 sheeps. This fortifies that the
petitioner was traveling with these goods in the
vehicle.
10. Ex.R1 is the policy of the insurance, shows
that premium of Rs.150/- was paid by the owner of the
lorry to cover the risk of the non-fare paying
passengers as per IMT-13. This clearly goes to show
that apart from third party liability also unlimited third
party property damage, cover to the driver and the
conductor. There is liability on the part of the insurance
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company to cover the risk of non-fare paying
passengers. Hence, the contention of the insurance
company that it has no liability to indemnify the owner
falls to the ground.
11. As regarding assessment of compensation is
concerned, the Tribunal has awarded compensation
under the following heads:
Sl. Particulars Amount
No.
1. Pain and agony Rs. 20,000/-
2. Medical Expenses and incidental Rs. 10,000/-
expenses
3. Loss of income during treatment Rs. 6,750/-
period
4. Loss of future income Rs. 64,800/-
5. Loss of amenities and unhappiness Rs. 10,000/-
Total Rs. 1,11,550/-
[rounded off to
Rs.1,12,000/-]
12. Ex.P107 is the wound certificate, which
discloses that the petitioner has suffered fracture of
right hip joint and olecronon process of right ulna with
displacement. Ex.P102 is the discharge card issued by
Siddhartha Hospital, Tumkur, which pointed out that
the petitioner was hospitalization between 15.08.1995
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to 12.09.1995 for 29 days and he was inpatient in the
Government hospital, Tumkur for a day, in all he was
under hospitalization for 30 days. The medical bills
produced on record shows that he has spent money for
a sum of Rs.5,038/.
13. PW.2-Dr.G.S.Nagarale, the treated doctor, in
his evidence has stated that the fractures causing in
disability to an extent of 50% to the right lower limb
and 10% to the right upper limb. Though the Doctor
made an assessment of 50% whole body disability,
same cannot be accepted. The Tribunal had considered
whole body disability at 15%. Having regard to the
fracture and dislocation and avocation of the petitioner,
injuries certainly affect the earning capacity and it shall
not be less than 20% disability. Therefore, the whole
body disability of the petitioner is assessed at 20%.
14. The Tribunal has taken the income of the
petitioner at Rs.2,250/-. The accident had taken place
in the year 1995 and the petitioner was doing business
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and earning handful money and therefore he would
have earned not less than Rs.100/- per day. Hence,
the income of the petitioner at rate of Rs.3,000/- per
month has to be considered for the calculation
purpose.
15. In a case of this nature, a person aged 34
years, suffers fracture and dislocation and disability
and definitely he was kept idle from doing his normal
work due to 20% of whole body disability. Therefore,
towards pain and suffering a sum of Rs.30,000/- has to
be assessed. Medical expenses of Rs.5,038/- has to be
taken. During hospitalization of petitioner for about 30
days, was attended by an attendant, spent money
towards travelling and also food and nourishment, the
Tribunal has not granted any amount under these
heads. Therefore, towards attendant charges
Rs.3,000/-, towards food and nourishment Rs.5,000/-
and towards transportation at Rs.2,000/- is assessed.
The petitioner had been laid up for a period of 5
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months and hence he is entitled for Rs.15,000/-
(Rs.3,000/-x5). The petitioner has suffered loss of
amenities and discomfort, it has to be compensated
with Rs.30,000/-.
16. As regarding loss of future earnings is
concerned, as discussed above, the income is taken at
Rs.3,000/- per month, applicable multiplier is '16',
whole body disability is 20%. Calculation comes to
Rs.3,000x12x20%x16=Rs.1,15,200/-. There is no
evidence to assess the compensation under other
heads. Therefore, the petitioner is entitled for
compensation under the following heads:
Sl. Particulars Amount
No. in (Rs.)
1. Pain and Sufferings 30,000/-
2. Medical Expenses 5,038/-
3. Loss of income during laid up 15,000/-
period
4. Loss of future income 1,15,200/-
5. Loss of amenities and 30,000/-
unhappiness
6. Attendant charges 3,000/-
7. Food & nourishment 5,000/-
8. Transportation 2,000/-
Total 2,05,238/-
Less: compensation awarded 1,15,550/-
by the Tribunal
Enhanced compensation 93,688/-
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17. It is the just compensation which the
petitioner is entitled in the facts and circumstances of
the case.
18. Hence, the appeal filed by the petitioner
merits consideration and the appeal filed by the
insurance company is devoid of merits, in the result,
the following:
ORDER
(i) MFA.No.36/2012 filed by the insurance
company is dismissed.
(ii) MFA.No.126/2012 filed by the petitioner is
allowed.
(iii) The impugned judgment and award
passed by the Tribunal is modified;
(iv) The petitioner would be entitled to
enhanced compensation of Rs.93,688/-
with interest at the rate of 6% per annum
from the date of petition till its
realization;
(v) The Insurance Company is directed to
deposit the compensation amount within
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eight weeks from the date of receipt of
certified copy of this judgment.
(vi) The statutory deposit made in
MFA.No.36/2012 shall be transmitted to
the Tribunal along with records
forthwith.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
MKM
