Karnataka High Court

United India Insurance Co. Ltd vs Kumari Lakshmi G on 4 March, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                             NC: 2024:KHC:9153
                                                         MFA No. 1036 of 2022
                                                     C/W MFA No. 4058 of 2022



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                            DATED THIS THE 4TH DAY OF MARCH, 2024
                                            BEFORE
                         THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                        MISCELLANEOUS FIRST APPEAL NO.1036 OF 2022 (MV-I)
                                              C/W
                        MISCELLANEOUS FIRST APPEAL NO.4058 OF 2022(MV-I)

                   IN MFA NO.1036/2022:

                   BETWEEN:
                         UNITED INDIA INSURANCE CO. LTD.
                         B.H.ROAD, SHIVAMOGGA
                         REP. BY ITS DIVISIONAL MANAGER
                         NO.1137/947, 2ND FLOOR
                         RUB BUILDING
                         A.A.CIRCLE, B.H.ROAD
                         SHIVAMOGGA-577 201
                                                                  ...APPELLANT
                   (BY SRI RAVISH BENNI, ADVOCATE)

                   AND:

                   1.    KUMARI LAKSHMI G.
                         D/O.DODDAGIDDAPPA JOGI
                         AGED ABOUT 29 YEARS
Digitally signed         COOLIE
by
GAVRIBIDANUR             R/AT THIMLAPURA VILLAGE
SUBRAMANYA               SHIKARIPURA TALUK
GUPTA
SREENATH                 SHIVAMOGGA-577 427
Location: HIGH
COURT OF           2.    SANJEEVA SHIVANAGOWDA
KARNATAKA                SANGANAGOWDAR
                         S/O.SHIVANAGOWDA
                         AGED ABOUT 45 YEARS
                         R/AT BEKANAKONDA VILLAGE
                         RANIBENNUR TALUK
                         HAVERI DISTRICT-581 208
                         (DRIVER OF KA-27 EA 9185)
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                                         NC: 2024:KHC:9153
                                     MFA No. 1036 of 2022
                                 C/W MFA No. 4058 of 2022



3.   DEVARAJA GADDACHIKKI
     S/O.DODDAPPA GADDACHIKKI
     MAJOR
     R/AT THIMLAPURA VILLAGE
     SHIKARIPURA TALUK
     SHIVAMOGGA-577 427
     (OWNER OF MAX CAB
     KA 15/A-0122)

4.   NAGENDRA NAIKA
     S/O.SHIVYA NAIKA
     AGED ABOUT 40 YEARS
     R/AT THIMLAPURA VILLAGE
     SHIKARIPURA TALUK
     SHIVAMOGGA-577 427
                                          ...RESPONDENTS
(BY SMT.ANITHA H.R., ADVOCATE FOR R-1;
    SRI SRIKANTH PATIL K., ADVOCATE FOR R-3;
    SRI HARISH N.R., ADVOCATE FOR R-4;
    R-2 IS SERVED AND UNREPRESENTED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE
JUDGEMNT AND AWARD DATED 17.09.2021 PASSED IN MVC
NO.500/2017 BY THE SENIOR CIVIL JUDGE AND AMACT-15 AT
SHIKARIPURA AND ETC.

IN MFA NO.4058/2022:
BETWEEN:

     KUMARI LAKSHMI G.
     D/O.DODDAGIDDAPPA JOGI
     AGED ABOUT 29 YEARS
     R/AT THIMLAPURA VILLAGE
     SHIKARIPURA TALUK
     SHIVAMOGGA-577 201
                                               ...APPELLANT
(BY SMT.ANITHA H.R., ADVOCATE)
                           -3-
                                          NC: 2024:KHC:9153
                                    MFA No. 1036 of 2022
                                C/W MFA No. 4058 of 2022



AND:

1.   SANJEEVA SHIVANAGOWDA
     SANGANAGOWDAR
     S/O.SHIVANAGOWDA
     AGED ABOUT 45 YEARS
     DRIVER OF KA-27 EA 9185
     R/AT BEKANAKONDA VILLAGE
     RANIBENNUR TALUK
     HAVERI DISTRICT-581 208

2.   DEVARAJA GADDACHIKKI
     S/O.DODDAPPA GADDACHIKKI
     MAJOR
     R/AT THIMLAPURA VILLAGE
     SHIKARIPURA TALUK
     SHIVAMOGGA-577 201
     (OWNER OF MAX CAB
     KA 15/A-0122)

3.   THE UNITED INDIA INSURANCE CO.LTD.
     B.H.ROAD
     SHIVAMMOGGA CITY

4.   NAGENDRA NAIKA
     S/O.SHIVYA NAIKA
     AGED ABOUT 40 YEARS
     R/AT THIMLAPURA VILLAGE
     SHIKARIPURA TALUK
     SHIVAMOGGA-577 427
                                           ...RESPONDENTS

(BY SRI RAVISH BENNI, ADVOCATE FOR R-3;
   NOTICE TO R-1 IS HELD SUFFICIENT V/O/DTD.28.02.2024;
    R-2 & R-4 ARE SERVED AND UNREPRESENTED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE
JUDGEMNT AND AWARD DATED 17.09.2021 PASSED IN MVC
NO.500/2017 BY THE SENIOR CIVIL JUDGE AND AMACT-15 AT
SHIKARIPURA AND ETC.
                               -4-
                                              NC: 2024:KHC:9153
                                          MFA No. 1036 of 2022
                                      C/W MFA No. 4058 of 2022



     THESE APPEALS, ARE COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

These two appeals - MFA Nos.1036/2022 and

4058/2022 are preferred by the Insurance Company and

the claimant respectively questioning the common

judgment and award dated 17th September 2021 passed

in MVC.No.500/2017 by the Court of Senior Civil Judge

and AMACT-15, Shikaripura (for short 'the Tribunal').

2. MFA No.1036/2022 is preferred by the Insurance

Company on the ground that the judgment and award

passed by the Tribunal is perverse, arbitrary, illegal and

the same requires to be set aside. MFA No.4058/2022 is

preferred by the claimant on the premise of inadequate

and meager compensation awarded by the Tribunal.

3. Parties to the appeal shall be referred to as per

their status before the Tribunal.

4. Brief facts of the case are as under:

On 2.8.2016 at about 12.00 noon the claimant was

traveling in maxicab bearing Registration No.KA-15/A-

NC: 2024:KHC:9153

0122 belonging to the 2nd respondent and driven by the 4th

respondent from Timlapura village to Havanur Dyamamma

temple. While she was traveling in the said maxicab, the

driver of the said maxicab drove the same in rash and

negligent manner near Haligere bus stand, at that time,

the 1st respondent, who was riding the motorcycle bearing

No.KA-17/AE-9185 came from the opposite direction in a

rash and negligent manner and dashed against the

maxicab and hit the upper right arm of the claimant, which

she had kept outside the window, due to which she

sustained fractured injury in the upper right arm.

Immediately, she was shifted to Nanjappa hospital,

Shivamogga, where she took treatment as an in-patient

for one month. Hence, she filed the claim petition seeking

compensation against the respondents.

4.1 On service of notice, respondents filed separate

written statements denying the averments made in the

claim petition including age, avocation, income and

disability and sought for dismissal of the claim petition.

NC: 2024:KHC:9153

4.2 On the basis of the pleadings, the Tribunal

framed relevant issues for consideration.

4.3 In order to substantiate the issues and establish

the case, the claimant got examined himself as PW.1 and

other two witnesses as PWs.2 and 3 and got marked

documents as per Ex.P1 to Ex.P32. On the other hand,

respondents examined two witnesses as RW.1 and RW.2

and got marked documents as per Ex.R1 to Ex.R6.

4.4 On the basis of the material evidence, both oral

and documentary, the Tribunal awarded compensation of

Rs.3,98,000/- with interest at 9% per annum and fastened

the liability against the 1st and 3rd respondents in the ratio

of 50:50.

4.5 Being aggrieved by the same, the Insurance

Company is before this Court in MFA.No.1036/2022

seeking to set aside the judgment and award passed by

the tribunal on the ground of it being perverse, arbitrary

and erroneous and the claimant is also before this Court in

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MFA.No.4058/2022 seeking enhancement of

compensation.

5. Learned counsel for Insurance Company

vehemently contends that the tribunal has erred in

fastening the liability as against the owner of the Maxi cab.

Filing of FIR and laying of chargesheet against the rider of

the motor cycle itself show that there was negligence on

the part of the rider of the motor cycle in occurrence of

accident. However, no FIR and chargesheet have been laid

against the driver of the Maxi cab. On these grounds, he

seeks to fasten the entire liability as against the rider of

the motor cycle and absolve the liability as against the

owner of maxi cab.

6. Learned counsel for claimant vehemently contends

that the tribunal has erred in awarding meager

compensation, which calls for interference at the hands of

this Court. Hence, he seeks to enhance the compensation

awarded by the tribunal.

NC: 2024:KHC:9153

7. Having heard learned counsel for claimant and

learned counsel for Insurance Company and perused the

impugned judgment and award and documents exhibited

at Exs.P1 to P32, it is seen that the Police records at

Exs.P1 to P7 clearly depict filing of FIR and laying of

chargesheet against the rider of the motor cycle i.e.

respondent No.1. Therefore, the negligence is attributed

against the rider of the motor cycle rather than the driver

of the maxi cab. The occurrence of accident, involvement

of vehicle and injuries suffered by the claimant are

established by production of these documents.

8. Now coming to the aspects of age, avocation and

income and other heads of compensation, it is stated that

the claimant was aged 24 years as on the date of

occurrence of accident and the tribunal applied the

multiplier at '18'. Though it is stated that the claimant

was working as a teacher, nothing is placed on record to

prove the same. Therefore, the tribunal has taken the

notional income at Rs.9,000/- per month. The Doctor has

NC: 2024:KHC:9153

been examined as CW.1 who has opined the disability to

an extent of 12.33% of permanent impairment to a

particular limb. However, he has not opined the disability

to the whole body. Hence, the tribunal assessed the

disability at 6% to the whole body. In view of the same,

the tribunal awarded Rs.1,23,000/- towards loss of future

income due to disability. However, I do not find any

reason to interfere with the same. Hence, it is retained.

9. The tribunal awarded Rs.50,000/- towards pain

and suffering, Rs.20,000/- towards future medical

expenses, Rs.57,000/- towards loss of income during laid

up period for 6 months, Rs.58,000/- towards medical

expenses, RS.20,000/- towards food and nourishment,

Rs.70,000/- towards loss of amenities and discomfort.

However, I do not find any good ground or cogent reason

to interfere with the compensation awarded by the

tribunal, which are just and reasonable and the same are

retained. Therefore, the claimant is entitled for total

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NC: 2024:KHC:9153

compensation of Rs.3,98,000/- along with interest @ 9%

p.a. as awarded by the tribunal.

10. Now coming to the aspect of fixing the liability,

the tribunal has fastened the liability as against

respondent Nos.1 and 3 in the ratio of 50:50 by holding

that both the vehicles responsible for causation of the

accident.

11. On careful perusal of the records and submission

of learned counsel for both parties, it is not in dispute that

the FIR and chargesheet have been laid against the rider

of the motor cycle. However, no case is filed against the

driver of the maxi cab. Therefore, the question of

fastening any liability against the owner of the maxi cab

does not arise as it is the negligence and fault of the rider

of the motor cycle, due to which, the accident occurred.

Hence, the entire liability will have to be fastened as

against respondent No.1-owner-cum-rider of the motor

cycle and the liability as against respondent No.3 will have

to be absolved in view of there being no FIR or

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NC: 2024:KHC:9153

chargesheet against the driver of the said maxi cab. Under

the circumstance, the entire liability is ordered to be

fastened against respondent No.1-owner-cum-rider of the

motor cycle.

12. Accordingly, I pass the following:

ORDER

i) The appeal in MFA.No.1036/2022 preferred by the

Insurance Company is allowed;

ii) The appeal in MFA.No.4058/2022 preferred by the

claimant is dismissed;

iii) The judgment and award dated 17.09.2021

passed in MVC.No.500/2017 by the Court of

Senior Civil Judge and AMACT-15, Shikaripura, is

modified;

iv) The entire liability is fastened as against

respondent No.1-rider of the motor cycle,

whereas, respondent No.3-Insurance Company is

absolved from the liability;