Karnataka High Court
Sri Munegowda vs The Manager on 25 October, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 9569 of 2013
C/W MFA No. 9515 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.9569 OF 2013(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.9515 OF 2013(MV-I)
IN MFA No. 9569/2013
BETWEEN:
SRI MUNEGOWDA
S/O GOVINDAPPA,
AGED ABOUT 47 YEARS,
RESIDING AT NO.300, KARENAHALLI VILLAGE,
KARENAHALLI POST, DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT - 562 110
...APPELLANT
(BY SRI. SREEDHARA H R., ADVOCATE)
AND:
1. THE MANAGER
ICICI LOMBARD GENERAL
Digitally signed
by RAMYA D INSURANCE COMPANY LTD.,
Location: HIGH REGIONAL OFFICE PRESTIGE CORNICHE,
COURT OF
KARNATAKA
62/1, 2ND FLOOR, RICHMOND ROAD,
BANGALORE-560 026.
2. SRI.ANJINEYA
S/O KRISHNAPPA,
AGED ABOUT 47 YEARS,
RESIDING AT KARAHALLI VILLAGE,
KARAHALLI POST, DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT - 562 110
...RESPONDENTS
(BY SRI. LAKSHMI NARASAPPA, ADVOCATE
FOR SRI. A M VENKATESH, ADVOCATE FOR R1;
SRI. B. PRAMOD, ADVOCATE FOR R2)
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MFA No. 9569 of 2013
C/W MFA No. 9515 of 2013
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 07.09.2013
PASSED IN MVC NO.5451/2011 ON THE FILE OF THE VIII
ADDITIONAL SMALL CAUSES JUDGE, 33RD ACMM, MEMBER,
MACT, BANGALORE, AWARDING A COMPENSATION OF
RS.5,15,000/- WITH INTEREST @ 8% FROM THE DATE OF
PETITION TILL REALIZATION.
IN MFA NO. 9515/2013
BETWEEN:
SRI ANJINEYA
S/O KRISHNAPPA,
AGED ABOUT 47 YEARS,
RESIDING AT KARAHALLI VILLAGE,
KARAHALLI POST,
DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
...APPELLANT
(BY SRI. B PRAMOD., ADVOCATE)
AND:
1. THE MANAGER
ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD.,
REGIONAL OFFICE PRESTIGE CORNICHE,
62/1, 2ND FLOOR, RICHMOND ROAD,
BANGALORE-560 026.
2. SRI.MUNEGOWDA
S/O GIVINDAPPA,
AGED ABOUT 47 YEARS,
RESIDING AT 300,
KARENAHALLI VILLAGE,
KARENAHALLI POST, DEVANAHALLI TALUK,
BANGALORE RURAL DISTRICT.
...RESPONDENTS
(BY SRI. LAKSHMI NARASAPPA, ADVOCATE
FOR SRI. A M VENKATESH, ADVOCATE FOR R1;
SRI. H.R. SHRIDHARA, ADVOCATE FOR R2)
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MFA No. 9569 of 2013
C/W MFA No. 9515 of 2013
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 07.09.2013
PASSED IN MVC NO.5451/2011 ON THE FILE OF THE VIII
ADDITIONAL SMALL CAUSE JUDGE, & XXXIII ACMM, MEMBER,
MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
MFA No.9569/2013 is filed under Section 173(1) of
the Motor Vehicles Act, 1988 (hereinafter referred to as
'MV Act' for brevity) by the owner of the Mahindra Maxicab
('offending vehicle' for short), challenging the judgment
and award dated 07.09.2013, passed in MVC
No.5451/2011, on the file of VIII Additional Small Causes
Judge and the Motor Accident Claims Tribunal (SCCH-5),
Bengaluru (hereinafter referred to as 'the Tribunal' for
brevity), insofar as fastening the liability on him is
concerned. Whereas, MFA No.9515/2013 is filed by the
claimant seeking enhancement of compensation.
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Brief facts:
2. It is the case of the claimant that the claimant
was an agriculturist and on 13.06.2011, at about 2.30
p.m., was carrying empty boxes after selling the tomatoes
at RMC Yard, Kolar in Mahendra Maxicab vehicle bearing
registration No.KA.43.3069 and the driver of the said
offending vehicle was driving the same in a rash and
negligent manner and when they reached near
Mariyappanahalli Gate i.e., Kolar H.Cross Road, the
offending vehicle turtled. As a result of this road traffic
accident, the claimant sustained grievous injuries and he
preferred the claim petition under Section 166 of Motor
Vehicles Act, 1988, against the owner and insurer of the
offending vehicle Mahendra Maxicab and the Tribunal has
granted compensation of Rs.5,15,000/- along with interest
at the rate of 8% from the date of petition till realization
by fastening the liability on the owner of the offending
vehicle by exonerating the Insurance Company to pay the
compensation. Therefore, the owner of the offending
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vehicle Mahendra Maxicab has filed MFA No.9569/2013
challenging fastening the liability on the owner. The
claimant has filed MFA No.9515/2013 seeking
enhancement of compensation.
3. Learned counsel for the appellant-owner
submitted that the claimant after selling tomatoes at RMC
Yard, Kolar, was returning in the offending vehicle along
with empty boxes. Therefore, the claimant was not a
gratuitous passenger, but was returning with goods.
Therefore, exonerating the Insurance Company is not
correct. It is submitted that from the complaint, FIR,
charge sheet and the evidence of PW-1 and PW-2, it is
proved that the claimant was returning in the offending
vehicle along with empty boxes which carried tomatoes.
Therefore, the claimant was driving along with goods and
not as a gratuitous passenger. Hence, exonerating of
Insurance Company is not correct. Hence, prays to modify
the liability and prays to hold that the Insurance Company
is liable to indemnify the appellant and pay compensation.
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4. On the other hand, learned counsel for the
respondent-Insurance Company submitted that there is no
evidence that the claimant has hired the offending vehicle
for the purpose of transportation of tomatoes to RMC Yard,
Kolar. In the spot mahazar also there is no whisper that
the tomato boxes have fallen on the ground. Therefore, it
belies the case of the claimant. Further, the complaint is
lodged belatedly on the next day i.e., on 14.06.2011 at
4.45 p.m. Therefore, some manipulation has been done in
mentioning in the complaint that tomatoes boxes were
there in the offending vehicle. Therefore, it is submitted
that the claimant was driving as a gratuitous passenger in
the offending vehicle, which is the goods carrying vehicle.
Hence, the Tribunal has rightly considered and exonerated
the Insurance Company, which need not be interfered.
Therefore, he prays to dismiss the appeal and also
submitted that the quantum of compensation is just and
proper and correct.
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5. Learned counsel for the claimant while seeking
enhancement of compensation, submitted that the
claimant has sustained injuries to the left forearm and
crush injury to the left upper limb - distal to the elbow
with near total amputation at forearm level and the Doctor
has opined that claimant has suffered 86% of physical
disability towards left upper limb and 28% of physical
disability towards whole body. But the Tribunal has not at
all awarded any compensation under the head 'loss of
income due to disability'. Therefore, learned counsel
submitted that the claimant being an agriculturist, is not
able to do agricultural work with left hand. Hence, the
claimant prays to award compensation under the head
'loss of income due to disability' and prays to enhance
compensation under other heads also.
6. Heard arguments of the learned counsel for the
parties and perused the materials on record.
7. It is claimed that the claimant was an
agriculturist and has carried tomatoes to the RMC Yard,
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Kolar for selling the same and after selling the tomatoes at
RMC Yard, Kolar, while returning with empty boxes in the
offending vehicle, due to rash and negligent driving of the
driver of the offending vehicle, accident occurred and the
claimant sustained grievous injuries.
8. The question to be considered is:
i) Whether the claimant was a gratuitous
passenger or has traveled along with the
goods?
9. The Tribunal has exonerated the Insurance
Company on the reasons that the RTC extract produced by
the claimant does not prove that he is an agriculturist as
crop information is not found in the RTC extract.
Therefore, on that basis the Tribunal doubted the claimant
as an agriculturist and doubted the claimant has traveled
in the offending vehicle with goods of tomatoes. Further,
the claimant though has produced the letter issued by
Commission agent of APMC Yard, Kolar for having sold
tomatoes, the Tribunal has held that the letter is not
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proved as author of receipt is not examined. The Tribunal
has held that it is doubtful that the claimant has carried
goods of tomatoes to the RMC Yard and sold at RMC Yard,
Kolar. Further, claimant has not produced any evidence
that he has hired the offending vehicle for transportation
of tomatoes as he has not produced any receipt for paying
hiring charges of the offending vehicle. On these reasons,
the Tribunal has exonerated the Insurance Company by
holding that the claimant has traveled as a gratuitous
passenger.
10. Exs.P1, P2 and P3, which are FIR, Complaint
and charge sheet prove the fact that the accident was
occurred on 13.06.2011 at about 2.30 p.m. The wife of the
claimant has lodged the complaint on the next day i.e.,
14.06.2011 at 4.45 p.m. There is one day delay in lodging
the complaint. But this delay is not much delay so as to
disbelieve the case of the claimant. The wife of the
claimant is not an eye witness and she has heard about
the accident from one Ramesh through phone and
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immediately, he was shifted to Jalappa Hospital, Kolar,
wherein after first aid, referred to Hosmat Hospital,
Bengaluru. Therefore, it cannot be said that there is a
delay in lodging the complaint before the Police.
11. In the complaint, it is stated that the claimant
while he was returning to his village Karenahalli from Kolar
along with empty boxes after selling tomatoes in RMC
Yard, Kolar, accident was occurred. It is stated that the
claimant was traveling along with the goods of tomato
boxes. After investigation, charge sheet is filed stating that
the claimant has sustained injuries while returning with
empty boxes after selling the tomatoes in the RMC Yard,
Kolar. RW-2, the owner of the offending vehicle was
driving the vehicle. It is stated that while returning to the
Karenahalli village along with empty boxes after selling
tomatoes at RMC Yard, Kolar, the vehicle got turtled and
in the said accident, the claimant sustained injuries.
Therefore, upon considering this aspect also, it is proved
that the claimant was returning with empty boxes after
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selling tomatoes at RMC Yard, Kolar. Hence, it is
considered that the claimant was traveling along with
goods of tomatoes.
12. In the spot mahazar, it is not mentioned that
the goods have fallen on the ground. This cannot be the
reason to discard the complaint. Non-examination of
Ramesh cannot be the ground to disbelieve the case of the
complainant as the case has to be considered on the
theory of preponderance of probabilities and not by the
theory beyond reasonable doubt.
13. In the complaint, the wife of the claimant has
stated that she has received information through phone
from one Ramesh. This is not the ground to disbelieve the
case of the claimant. It is not the case of the Insurance
Company that the claimant was unconscious soon after the
accident. The claimant might have stated the phone
number of his wife and Ramesh has stated through phone
to the wife of the claimant. The paramount thing when the
wife received the information that her husband met with
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an accident is first to attend the Hospital and thereafter,
complaint is to be lodged. That is how the present case is
done. Therefore, the complaint filed before the Police is in
natural course of time. It cannot be said that there is
delay in lodging the complaint by manipulating the
information. Further, the claimant has traveled in the
offending vehicle along with the goods but not as a
gratuitous passenger.
14. The reasons assigned by the Tribunal is that
RTC produced by the claimant does not show the name of
the claimant. The name of the claimant is shown at one
portion of the land. Just because RTC evidence that the
petitioner has dry land and in the relevant column
regarding the nature of crop shown as 'no crop', that does
not mean that the claimant is not an agriculturist. The
Tribunal has assessed that in the RTC, the name of the
claimant is not shown and in the relevant column
regarding the nature of the crop it is shown as 'no crop',
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hence, has come to the conclusion that the claimant is not
an agriculturist, is perverse approach.
15. For the sake of example, if it is considered that
the claimant is not the owner of the agricultural land but
for selling tomatoes he can go to the RMC Yard, Kolar and
no one is prohibited to go to RMC Yard to sell the goods, if
they did not own the land. Therefore, the appreciation of
evidence done by the Tribunal is not correct in this regard.
Further, the Tribunal has found fault with non production
of receipt for hiring the offending vehicle. In village, they
do not give receipt for hiring a vehicle for transportation
like in the present case. Just because receipt is not
produced, that cannot disprove the case of the claimant.
Therefore, the appreciation made by the Tribunal is
completely perverse and illegal. Therefore, it is proved
that the claimant has traveled in the offending vehicle
along with the goods - empty boxes after selling the
tomatoes in the RMC Yard, Kolar.
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16. In this regard, exonerating the Insurance
Company is not correct. Therefore, Insurance Company
shall indemnify the owner and pay the compensation.
Therefore, the liability is accordingly modified and held
that in view of the undisputed fact that the validity of the
Insurance Policy is covered, the Insurance company shall
pay compensation to the claimant.
17. The Tribunal has awarded the compensation
under various heads as follows:
Pain and sufferings Rs.50,000/-
Medical expenses Rs.2,50,000/-
Future medical expenses Rs.50,000/-
Loss of income during the laid up Rs.10,000/-
period
Loss of income due to physical Rs.50,000/-
disability
Loss of future amenities Rs.50,000/-
Conveyance, dieting, attendant charges Rs.30,000/-
Loss of longevity, discomfort, Rs.25,000/-
disappointment, unhappiness, loss of
future income, loss of future earning
capacity, frustration, joyless life and
sorrow
Total Rs.5,15,000/-
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18. From the medical evidence on record and from
the evidence of Doctor PW-2, the claimant has suffered
the following injuries:
"Fracture of both bones of left forearm and
severe crush injury to left upper limb-distal to
the elbow with near total amputation at
forearm level."
19. Therefore, the amount of compensation
awarded by the Tribunal on all the heads are found to be
correct, just and proper but the Tribunal has not awarded
any compensation under the head 'loss of future income
due to disability'. Therefore, the claimant is entitled for
'loss of income due to disability'. The claimant has suffered
fracture of both forearm and crush injury to left upper
limb-distal to the elbow with near total amputation at
forearm level and advised treatment to the claimant. It is
stated that the claimant has suffered 86% of physical
disability towards left upper limb and 28% of physical
disability to the whole body. The claimant is an
agriculturist by profession and has enclosed RTC extracts.
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The claimant was aged about 45 years old as on the date
of the accident. The accident occurred on 13.06.2011.
Since the claimant has suffered injuries as stated above
and it is near amputation at forearm level, therefore, the
assessment of physical disability is found to be correct
without any exaggeration. Accordingly, it is accepted. The
appropriate multiplier is 14.
20. Since the claimant being agriculturist and has
suffered significant physical disability at 28% to the whole
body, as per the judgment of Hon'ble Supreme Court in
Sidram Vs. Divisional Manager, United India
Insurance Company Limited and Another1 and
judgment of this Court in the case of New India
Assurance Company Ltd., Vs. Abdul & Others2, has
held that in the case of injury suffered like in the present
case, additional income has to be added towards loss of
future income due to disability. Since the claimant was
aged about 45 years, 25% of the income is to be added.
(2023) 3 SCC 439
MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018
DD.27.05.2022
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Accordingly, compensation under the head 'loss of income
due to disability' is hereby assessed as follows:
Rs.6,500/- + Rs.1,625/- (25% of Rs.6,500/-)=Rs.8,125/-.
Rs.8,125/- x 28% x 14 x 12 = Rs.3,82,200/-
Accordingly, Rs.3,82,200/- is awarded under the
head 'loss of future income due to disability'.
21. Since on all other heads, compensation is found
to be just and proper and correct, the claimant is entitled
to additional compensation of Rs.3,82,200/- under the
head 'loss of future income due to disability'. Therefore,
the appeal filed by the owner is liable to be allowed.
Appeal filed by the claimant is liable to be allowed in part.
22. Accordingly, I pass the following:
i) The appeal filed by the owner is allowed.
ii) The appeal filed by the claimant is
allowed in part.
iii) The impugned judgment and award dated
07.09.2013 in MVC.No.5451/2011 passed
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by the Tribunal is modified to the extent
that the appellant/claimant is entitled to
enhanced compensation of
Rs.3,82,200/- along with the rate of
interest at 6% per annum from the date
of petition till the date of realization, in
addition to what has been awarded by the
Tribunal. Compensation amount awarded
by the Tribunal and enhanced by this
Court shall carry interest at 6% p.a.
iv) Draw award accordingly.
v) No order as to costs.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
MDS
