Karnataka High Court
Sri Shivaraj Nagappa Gonda vs Sri Girish Gonda on 30 October, 2024
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NC: 2024:KHC:43964
MFA No. 4259 of 2016
C/W MFA No. 5418 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 4259 OF 2016 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5418 OF 2016 (MV-I)
IN MFA NO.4259/2016
BETWEEN:
SRI. SHIVARAJ NAGAPPA GONDA
AGED ABOUT 31 YEARS
S/O NAGAPPA GONDA
R/AT ALIVEKODI,
SHIROOR POST
AND VILLAGE,
KUNDAPURA TALUK
UDUPI DIST - 576 124 ... APPELLANT
(BY SRI NAGARAJA HEGDE, ADV.)
AND:
Digitally signed by 1. SRI. GIRISH GONDA
PRAJWAL A MAJOR, S/O NAGAPPA GONDA
Location: HIGH COURT R/O MULLI MANE, KANMADLU
OF KARNATAKA BELKE, BHATKAL,
U.K.DIST - 581 320.
2. THE UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE, JEWEL PLAZA
MARUTHI VEETHIKA,
UDUPI - 576 101
REP. BY ITS DIVISIONAL MANAGER ... RESPONDENTS
(BY SRI O. MAHESH, ADV. FOR R2;
R1 SERVED AND UNREPRESENTED)
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MFA No. 4259 of 2016
C/W MFA No. 5418 of 2016
IN MFA NO.5418/2016
BETWEEN:
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE, JEWEL PLAZA
MARUTHI VEETHIKA, UDUPI - 576 101 ... APPELLANT
(BY SRI O. MAHESH, ADV. [VC])
AND:
1. SRI. SHIVARAJ NAGAPPA GONDA
AGED ABOUT 31 YEARS
S/O NAGAPPA GONDA
R/AT ALIVEKODI, SHIROOR POST
AND VILLAGE, KUNDAPURA TALUK
UDUPI DIST - 576 201
2. SRI. GIRISH GONDA
MAJOR, S/O NAGAPPA GONDA
R/O MULLI MANE, KANMADLU
BELKE, BHATKAL, U.K.DIST - 581 320 ... RESPONDENTS
(BY SRI NAGARAJ HEGDE, ADV. FOR R1;
VIDE ORDER DATED 12.12.2017
NOTICE TO R2 HELD SUFFICIENT)
THESE APPEALS ARE FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED 11.03.2016
PASSED IN MVC NO.477/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE, MEMBER, MACT, KUNDAPURA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND IN MFA NO.5418 OF 2016 AWARDING
COMPENSATION OF RS.58,400/- WITH INTEREST AT 6% P.A., FROM
THE DATE OF PETITION TILL DEPOSIT.
THESE APPEALS HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT THIS DAY,
T.G.SHIVASHANKARE GOWDA, J., DELIVERED/PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
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MFA No. 4259 of 2016
C/W MFA No. 5418 of 2016
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA)
In these two appeals, the petitioner is seeking
enhancement of compensation, whereas the Insurance
Company is questioning the award of compensation to the
petitioner.
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, on 27.03.2013 at about
1.15 p.m. while the petitioner was riding his motorcycle
bearing Chassis No.02376 along with the first respondent as
the pillion rider on Belke - Benandoor road within the limits
of Bhatkala Taluk, in order to avoid an autorikshaw coming
from the opposite direction, he took the motorcycle to the
left side of the road, while doing so, he lost the control over
the motorcycle, fell down and sustained the injuries. After
taking treatment, he has approached the Tribunal under
Section 163-A of the Motor Vehicles Act (for short, 'the
M.V.Act') for grant of compensation of Rs.8,55,000/-. Claim
was opposed by the Insurance Company, on the ground that
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the accident took place due to negligence on the part of the
petitioner and he being a tort-feasor, he cannot maintain a
claim. The Tribunal, after taking the evidence and hearing
both the parties allowed the claim petition, granting
compensation of Rs.58,400/- with interest @ 6% per annum.
Pleading inadequacy and seeking enhancement, the
petitioner has filed MFA.No.4259/2016 and questioning the
impugned judgment and award, the Insurance Company has
filed MFA.No.5418/2016.
4. Heard the arguments of Shri O.Mahesh, learned
counsel for the Insurance Company and Shri Nagaraja
Hegde, learned counsel for the petitioner.
5. It is the contention of the learned counsel for the
Insurance Company that, the claim under Section 163-A of
the M.V.Act is not maintainable as the petitioner himself is
the tort-feasor. No compensation is contemplated for the
injuries that the petitioner has sustained. The petitioner is
working in a company at Mangalore, post treatment he has
become normal, still he is working in the same company and
there is no disability affecting his earning capacity. The
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Tribunal did not consider these aspects, assessed the loss of
future earning and he sought for dismissal of the claim
petition.
6. Per contra, learned counsel for the petitioner has
contended that, the petitioner has suffered injuries all over
the body particularly fracture of ribs and tendon injury to the
right knee. The medical evidence is placed explaining the
whole body disability of 12%. Since the petition is under
Section 163-A of the M.V.Act, compensation has to be
awarded under structured formula by taking the disability at
12%. The Tribunal has taken it at 8%, is on the lower side
and sought for enhancement.
6.1. To support his contention, he has relied on the
judgment of Hon'ble Apex Court in United India Insurance
Company Ltd. -vs- Sunil Kumar and Another 1, to effect
that there is no defense available to the Insurance Company
to raise a plea of negligence on the part of the petitioner as
the claim is under 'no fault liability.'
2019 (12 ) SCC 398
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7. I have given my anxious consideration to the
arguments addressed on behalf of both parties and perused
the records.
8. There is no dispute as to the accident, in the
accident, the petitioner has suffered fracture of 6th rib with
plural collection of his right chest, haemothorasis of right
knee with collateral ligament injury. PW.2-Dr.Dinesh Kumar
Shetty, the Orthopedic Surgeon, Chinmayi Hospital,
Kundapura, where the petitioner has taken treatment,
entered the witness box explaining 12% right lower limb
disability sustained by the petitioner. The Tribunal has
considered it at 8%. Having regard to the fracture of ribs and
also ligament injury to the right knee, the whole body
disability assessed by the Tribunal at 8% is proper.
9. As rightly contended by the learned counsel for the
petitioner that in the light of the judgment of the Hon'ble
Apex Court in Sunil Kumar's case (supra), in a claim
petition filed under Section 163-A of the M.V.Act, it is not
open for the Insurance Company to raise any defense of
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negligence on the part of the victim as the claim is under 'no
fault liability'. In view of the law being laid down, it is not
open for the Insurance Company to raise any defense
regarding negligence.
10. It is argued on behalf of the Insurance Company
that, there a discrepancy in the pleadings that the petitioner
claims that while avoiding the autorickshaw, he fell down and
sustained the injuries. Whereas in a claim petition filed in
MVC.No.530/2013 before the same Tribunal by the pillion
rider, different story has been narrated. In this regard,
careful perusal of the prosecution papers and on perusal of
the complaint, which is filed by the pillion rider, a specific
allegation is made against the petitioner who was the tort-
feasor, and at his fault the motorcycle capsized and for this
reason, he has been charge sheeted post investigation.
11. The prosecution papers sufficiently explained that
there is no discrepancy in the pleadings of the petitioner.
When a claim petition under Section 163-A of the M.V.Act,
irrespective of the petitioner being the tort-feasor, entitled to
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claim compensation under structured formula where
compensation is to be determined as per the formula and
there is a clear cap for assessment of compensation towards
pain and suffering maximum at Rs.5,000/-, medical
expenses of Rs.15,000/- and disability with restriction on
income at Rs.40,000/- per annum. Here also, the petitioner
claims his income at Rs.40,000/- per annum and there is no
evidence on record that in which company the petitioner was
working and it is specifically pleaded that even if the
petitioner is doing coolie in the same company, it does not
gives him the permanent job. He being the coolie, sustained
the ligament injury to the right knee, fracture of right 6th rib
certainly affect his earning capacity and having regard to the
medical evidence, whole body disability of 8% is proper.
When the medical officer himself speaks the limb disability of
12%, the argument of the petitioner that the functional
disability has to be considered at the higher rate cannot be
sustained.
12. The Tribunal, considering all these aspects has
rightly assessed the compensation of Rs.5,000/- towards
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pain and suffering and Rs.38,400/- towards loss of future
income. The medical bills constitutes a sum of Rs.8,513/-,
whereas the Tribunal awarded Rs.15,000/- and a sum of
Rs.6,487/- is on the higher side. Hence, the medical
expenses has to be restricted at Rs.8,513/- only. Then the
total compensation comes to Rs.51,913/- as against
Rs.58,400/-, thereby reduction of Rs.6,487/-.
13. As regarding liability is concerned, the policy is in
force, there is no issue regarding the driving licence.
Insurance Company is required to indemnify the 1st
respondent, who is the owner. There is no scope for
enhancement of compensation, rather there is a scope for
reduction.
14. In the light of the above, the appeal filed by the
Insurance Company deserves merit consideration and that of
the petitioner is devoid of merits, in the result, the following:
ORDER
(i) M.F.A.No.5418/2016 is allowed in part;
(ii) M.F.A.No.4259/2016 is dismissed;
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(iii) The impugned judgment and award is
modified;
(iv) The petitioner would be entitled to
compensation of Rs.51,913/- with interest at
the rate of 6% per annum from the date of
petition till deposit;
(v) The Insurance Company is directed to deposit
entire compensation with interest within eight
weeks from the date of receipt of certified copy
of this judgment.
(vi) Amount in deposit shall be transmitted to the
Tribunal.
Sd/-
(T.G.SHIVASHANKARE GOWDA)
JUDGE
MKM/-
CT:HS
