Karnataka High Court
Fakkirappa Mallappa Kadkol vs Ningappa Mahadevappa Danannavar on 13 November, 2024
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NC: 2024:KHC-D:16643
MFA No. 25954 of 2011
C/W MFA No. 25136 of 2011
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.25954 OF 2011 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 25136 OF 2011
IN MFA.NO.25954/2011:
BETWEEN:
NINGAPPA MAHADEVAPPA DANANNAVAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: K-CHANDARGI, TALUK: RAMDURGA,
DIST: BELAGAVI.
...APPELLANT
(BY SRI RAVI N. CHIKKARADDER, ADVOCATE)
AND:
1. FAKKIRAPPA MALLAPPA KADAKOL,
Digitally signed
AGE: 38 YEARS, OCC: NIL,
by SAROJA
HANGARAKI
R/O: ALADAKATTI, NOW AT UDEKERI,
Location: High TALUK: BAILHONGAL.
Court of
Karnataka
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
MARUTI GALLI, BELAGAVI.
...RESPONDENTS
(BY SRI R. R. MANE, ADVOCATE FOR R2;
SRI CHANDRAGOUDA S. SANGANNAVAR, ADVOCATE FOR R1)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988, PRAYING
TO MODIFY THE JUDGMENT AND AWARD DATED 31.12.2009,
PASSED BY THE MACT BAILHONGAL IN MVC NO.1027/2007 AND
-2-
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MFA No. 25954 of 2011
C/W MFA No. 25136 of 2011
CONSEQUENTLY HOLD THE 2ND RESPONDENT LIABLE TO SATISFY
THE SAME IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,
IN MFA.NO.25136/2011:
BETWEEN:
FAKKIRAPPA MALLAPPA KADAKOL,
AGE: 38 YEARS, OCC: NIL,
R/O: ALADAKATTI, NOW AT UDEKERI,
BAILHONGAL, BELAGAVI.
...APPELLANT
(BY SRI CHANDRAGOUDA S. SANGANNAVAR AND
SRI PRASHANTH HOSAMANI, ADVOCATES)
AND:
1. NINGAPPA MAHADEVAPPA DANANNAVAR,
AGE: MAJOR, OCC: BUSINESS,
R/O: K-CHANDARGI,
TALUK: RAMDURGA,
DIST: BELAGAVI.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO., LTD.,
MARUTI GALLI, BELAGAVI.
...RESPONDENTS
(BY SRI R. R. MANE, ADVOCATE FOR R2;
NOTICE ISSUED TO R1 IS SERVED,
BUT UNREPRESENTED)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988, PRAYING
TO MODIFY THE JUDGMENT AND AWARD DATED 31.12.2009,
PASSED BY THE MACT BAILHONGAL IN MVC NO.1027/2007 AND
SUITABLY MODIFY/ENHANCE THE SAME, IN THE INTEREST OF
JUSTICE AND EQUITY AND ETC.,
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
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MFA No. 25954 of 2011
C/W MFA No. 25136 of 2011
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
MFA.No.25954/2011 is filed by the owner and
MFA.No.25136/2011 is filed by the claimant.
2. Both the above appeals are field under Section
173(1) of the Motor Vehicles Act, 19881 challenging the
judgment and award dated 31.12.2009 passed in
MVC.No.1027/2007 by the Motor Accident Claims Tribunal,
Bailhongal2.
3. For the sake of convenience, the parties herein
are referred as per their rank before the Tribunal.
4. The relevant facts leading to the present appeal
are that the claimant has filed a claim petition claiming
compensation for the injuries sustained in road traffic
accident which occurred on 29.07.2006. It is the case of
the claimant that himself, his wife and minor son were
traveling in a truck bearing No. KA.22/A-8089 from
Hereinafter referred as to 'ACT'
Hereinafter referred as to the 'Tribunal'
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Belagum to Ramadurg. That after unloading goods at
Belagum and while proceeding to Ramadurg, due to rash
and negligent driving of the driver of the truck, the same
made the accident, wherein the claimants sustained
grievous injuries. The claim proceedings were contested by
the insurer of the truck. The Tribunal, by its judgment and
award dated 31.12.2009, allowed the claim petition in
part, and ordered that the claimant is entitled to a total
compensation of ₹87,900/- together with interest at the
rate of 6% per annum and further ordered that the owner
of the vehicle who was arrayed as respondent No.1 before
the Tribunal is liable to pay the compensation awarded.
Being aggrieved, the above appeals are filed.
5. It is the contention of the learned counsel for
the owner who is the appellant in MFA No.25954/2011
that the insurer is liable to pay the compensation awarded
and that the injured was not a passenger. It is further
contended that the owner has paid premium towards
covering the liability of seven employees including driver
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and cleaner and hence, the insurer is liable to pay the
compensation awarded.
6. The MFA No.25136/2011 is filed by the claimant
seeking for enhancement of compensation.
7. Learned counsel for the respondent No.2 -
Insurer submits that the insurer has been exonerated from
its liability by the Tribunal and the said aspect of the
judgment of the Tribunal is not liable to be interfered with.
8. The submissions of the learned counsels have
been considered and the records including the records of
the Tribunal has been perused.
9. The Tribunal while considering the oral and
documentary evidence on record has recorded the
following findings:
"47. In the cross-examination PWs.1 and 2 have
admitted that before police they never stated that they
worked as coolies of the lorry/truck owned by
Respondent No.1. Pws.1 and 2 submitted regarding non-
production of the documents to confirm that they worked
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as coolies in the offending lorry. PWs.1 and 2 have
submitted that when lorry met with an accident, the
lorry was empty. PWs.1 and 2 have submitted that they
were boarded the lorry at Chandrargi village in order to
reach Belgaum. PWs.1 and 2 have stated that the sand
was loaded in the truck was owned by Respondent No.1.
PWs.1 and 2 have stated that the sand was unloaded at
Mahantesh Nagar Belgaum. PWs.1 and 2 have further
stated that since last two months as on the date of
accident they worked in the lorry as coolies. PWs.1 and 2
submitted ignorance regarding contents of the complaint
regarding their status in the lorry. PWs.1 and 2 have
admitted that before police they never stated that they
worked as coolies of the lorry owned by Respondent
No.1. PWs.1 and 2 have denied the suggestion that
during occurrence of the accident they were present in
the lorry as passengers.
54. As already noted above on the basis of the oral
evidence of PWs.1 and 2 the status of the Petitioners
noted in the FIR, witness list, non production of certified
copy of accusation/allegation enclosed with the charge
sheet. I have drawn adverse inference against the
petitioners' contention and inferred that during
occurrence of the accident, PWs.1and 2 and their child
were present in the offending lorry as passengers and
not in the capacity of loader/unloader (coolies). Hence, it
is to be inferred that the Petitioners have not discharged
their initial burden to prove their status as
loader/unloader in the offending lorry. Hence, non-
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production of the evidence by the Respondent No.2
Insurance Company or non-disputing the status of the
Petitioners and claim of the Petitioners by the
Respondent No.1 are not a ground to believe the oral
evidence of the PWs.1 and 2."
10. It is clear from the aforementioned that the
PWs.1 and 2 have categorically admitted in the testimony
that they boarded the insured lorry at Chandrargi village
to reach Belgaum. Further, the Tribunal has recorded a
finding that the claimant along with his wife and children
were present in the offending lorry as passengers and not
in the capacity of loaders/unloaders (coolies).
11. It is further relevant to note that the owner of
the vehicle had remained ex-parte before the Tribunal and
had not contested the said proceedings. It is further
pertinent to note that the owner of the vehicle has been
held for liable to pay the compensation in MVC
No.1027/2007 filed by the claimant as well as MVC
No.1028/2007 filed by the son of the claimant and MVC
No.1029/2007 filed by the wife of the claimant. All the said
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three claim petitions were disposed by the common
judgment dated 31.12.2009 by the Tribunal. The owner
has not filed an appeal challenging the judgment of the
Tribunal in MVC No.1028/2007 and 1029/2007 and has
filed the present appeal challenging the finding of the
Tribunal in MVC No.1027/2007 only.
12. Having regard to the fact that the finding of the
Tribunal regarding the claimants being passengers in the
insured vehicle not having been challenged in the
connected claim petitions in MVC No.1028/2007 and
1029/2007, the question of considering the said
contention of the owner in the above appeal does not
arise. Hence, on this sole ground, the MFA No.25954/2011
filed by the owner is liable to be rejected.
13. With regard to the quantum of compensation it
is relevant to note that the claimant (in MVC
No.1027/2007) was aged 34 years. It is forthcoming from
Wound Certificate (Ex.P6), Summary Sheet (Ex.P7),
Disability Certificate (Ex.P36) and the Testimony of the
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Doctor (PW.3) that the claimant sustained fracture of the
middle third left clavicle apart from other injuries. The
claimant was treated as an inpatient from 30.07.2006 to
05.08.2006 i.e., for a period of 7 days. The doctor (PW.3)
has deposed regarding the treatment given to the claimant
and has also deposed regarding the disability. The Tribunal
considering the same has assessed the disability as 3%.
Having regard to the nature of injuries sustained and
resultant disability, the finding of the Tribunal regarding
the disability is just and proper.
14. The Tribunal has assessed the income of the
claimant as ₹3,000/- by taking note of the fact that he
was working as a coolie. However, since no documents
have been produced regarding income, and keeping in
mind the date of accident and avocation of the claimant,
the income is required to be re-assessed as per the chart
followed by the Karnataka State Legal Service Authority3
for settlement of cases in Lok-adalat and having regard to
Hereinafter referred to as the 'KSLSA'
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the same, the income is re-assessed as ₹3,750/- per
month.
15. The Tribunal has assessed the multiplier of 15.
However having regard to the fact that the age of the
claimant is 34 years the appropriate multiplier is re-
assessed as 16.
16. Having regard to the aforementioned, the
compensation is re-assessed as follows:
i. The compensation awarded by the Tribunal towards
pain and suffering a sum of ₹30,000/- and Medicine
and Hospital charges ₹7,200/- is just and proper.
ii. Having regard to the period of treatment, the
compensation towards food, nutrition and
nourishment is re-assessed as ₹5,000/- as against
₹500/- awarded by the Tribunal.
iii. Having regard to the nature of injuries sustained and
the period of treatment, the compensation awarded
towards attendant and conveyance charges is re-
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assessed at ₹5,000/- as against ₹2,000/- awarded by
the Tribunal.
iv. The compensation awarded by the Tribunal of a sum
of ₹12,000/- towards loss of income during the period
of treatment and ₹20,000/- towards loss of amenities
are just and proper.
v. The loss of future income is re-assessed as
(3,750 x 12 x 16 x 3%) ₹21,600/- as against
₹16,200/- awarded by the Tribunal.
17. Accordingly, the total compensation under re-
assessed is as follows:
Sl.No. Heads Amount awarded by the Amount awarded by this
Tribunal (₹) Court (₹)
1. Pain and Suffering 30,000.00 30,000.00
2. Medicine and Hospital 7,200.00 7,200.00
Charges
3. Nourishment Charges 5,00.00 5,000.00
4. Attendant and Conveyance 2,000.00 5,000.00
Charges
5. Loss of Income during 12,000.00 12,000.00
treatment period
6. Loss of Amenities and 20,000.00 20,000.00
future unhappiness
7. Loss of future income 16,200.00 21,600.00
Total 87,900.00 1,00,800.00
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18. Hence, the appellant/claimant is entitled to total
compensation of ₹1,00,800/- as against ₹87,900/-
awarded by the Tribunal i.e., an enhancement of
₹12,900/- along with the interest at the rate of 6% per
annum from the date of petition till date of payment.
19. The claimant is not entitled for interest for a
period of 579 days having regard to the condition imposed
in the order dated 08.06.2015 passed in MFA
No.25136/2011, while condoning the delay of 579 days
and allowing I.ANo.1/2011.
20. In view of the aforementioned, the following:
ORDER
a) MFA No.25954/2011 is dismissed.
b) MFA No.25136/2011 is partly allowed;
c) The judgment and award dated 31.12.2009
passed in MVC No.1027/2007 by the Motor
Accident Claims Tribunal, Bailhongal, is modified
to the extent stated herein. In all other
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respects, the judgment and award of the
Tribunal remains unaltered.
d) The claimant is entitled to a further
compensation of ₹12,900/- along with interest
at 6% per annum from the date of petition till
its realization, in addition to the compensation
awarded by the Tribunal. However, the
claimants would not be entitled to interest on
the enhanced compensation amount for a period
of 579 days. Registry to take note of the same
while drawing award.
e) The amount deposited by the
appellant/owner, i.e., the appellant in the said
appeal shall be transmitted back to the Tribunal
for disbursement in terms of the award of the
Tribunal.
f) Respondent No.2/Insurance Company to pay
the entire compensation amount along with
interest to the appellant/claimant within six
weeks from the date of receipt of certified copy
of this judgment.
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g) Registry to transmit the records to the
Tribunal forthwith.
h) The Registry to draw the modified award
accordingly.
Sd/-
(C.M. POONACHA)
JUDGE
PMP
CT-ASC
