Karnataka High Court
The Oriental Insurance Co. Ltd vs M. Suresha on 2 September, 2024
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NC: 2024:KHC:35540
MFA No. 7881 of 2013
C/W MFA No. 6719 of 2013
MFA No. 6720 of 2013
MFA No. 7882 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO.7881 OF 2013(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.6719 OF 2013(MV-I)
MISCELLANEOUS FIRST APPEAL NO.6720 OF 2013(MV-I)
MISCELLANEOUS FIRST APPEAL NO.7882 OF 2013(MV-I)
IN MFA NO.7881/2013:
BETWEEN:
1. SRI M. SURESH
S/O MUNISWAMAPPA
AGED ABOUT 29 YEARS
R/AT KANDAVARA VILLAGE
NANDI HOBLI,
CHICKBALLAPUR TALUK
AND DISTRICT.
...APPELLANT
Digitally signed by (BY SMT. SUGUNA R. REDDY, ADVOCATE)
PRAJWAL A AND:
Location: HIGH
COURT OF
KARNATAKA 1. THE BRANCH MANAGER
M/S. ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
NO.VIII, 22, DVG MAIN ROAD
BASAVANAGUDI
BANGALORE-4.
2. SRI T.V.MUNIBACHAPPA,
AGED ABOUT 57 YEARS
R/AT THOWDANA HALLI VILLAGE
NANDI HOBLI,
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NC: 2024:KHC:35540
MFA No. 7881 of 2013
C/W MFA No. 6719 of 2013
MFA No. 6720 of 2013
MFA No. 7882 of 2013
CHICKABALLAPUR TALUK AND DISTRICT .
...RESPONDENTS
(BY SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R1;
VIDE ORDER DATED 25.11.2021,
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 15.5.2013 PASSED IN MVC
NO.22/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
CJM AND MACT, CHICKBALLAPUR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.6719/2013:
BETWEEN:
1. THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE
NO.VIII, NO.22, DVG MAIN ROAD
BASAVANAGUDI, BANGALORE-04
THROUGH ITS BANGALORE REGIONAL OFFICE
NO.44/45, RESIDENCY ROAD,
BANGALORE - 25
REPRESENTED BY ITS
DEPUTY MANAGER.
...APPELLANT
(BY SRI. S.V.HEGDE MULKHAND, ADVOCATE)
AND:
1. T.M. PRAVEEN,
S/O MUNIBACHAPPA
AGED ABOUT 26 YEARS
R/O THOUDANAHALLI VILLAGE
NANDI HOBLI
CHICKBALLAPUR DISTRICT-562101.
2. JOSEPH S/O MARIAPPA,
DRIVER OF VEHICLE
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MFA No. 7881 of 2013
C/W MFA No. 6719 of 2013
MFA No. 6720 of 2013
MFA No. 7882 of 2013
BEARING NO.KA 40-2063,
MAJOR IN AGE,
R/O NO.38, THIRD CROSS,
7TH MAIN, 18TH STAGE
2ND BLOCK, HBL LAYOUT,
BANGALORE-560043.
...RESPONDENTS
(BY SMT. SUGUNA R. REDDY, ADVOCATE FOR R1;
VIDE ORDER DATED 25.11.2021,
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 15.05.2013 PASSED IN MVC
NO.08/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
CJM, MEMBER, ADDITIONAL MACT, CHICKBALLAPUR,
AWARDING COMPENSATION OF Rs.1,10,000/- WITH INTEREST
@ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO.6720 OF 2013:
BETWEEN:
1. THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE
NO.VIII, NO.22, DVG MAIN ROAD
BASAVANAGUDI, BANGALORE-04
THROUGH ITS BANGALORE
REGIONAL OFFICE,
NO.44/45, RESIDENCY ROAD,
BANGALORE-25,
REPRESENTED BY ITS
DEPUTY MANAGER.
...APPELLANT
(BY SRI S.V.HEGDE MULKHAND, ADVOCATE)
AND:
1. M. SURESHA,
S/O MUNISWAMAPPA,
AGED ABOUT 30 YEARS,
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MFA No. 7881 of 2013
C/W MFA No. 6719 of 2013
MFA No. 6720 of 2013
MFA No. 7882 of 2013
R/O KANDAVARA VILLAGE,
NANDI HOBLI,
CHICKBALLAPUR TALUK
ANDDISTRICT - 562101.
2. T.V. MUNIBACHAPPA
AGED ABOUT 56 YEARS
R/O THOUDANAHALLI VILLAGE,
NANDI HOBLI, CHICKBALLAPUR TALUK
AND DISTRICT - 562101.
...RESPONDENTS
(BY SMT. SUGUNA R. REDDY, ADVOCATE FOR R1;
R2 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 15.05.2013 PASSED IN MVC
NO.22/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
CJM, MEMBER, ADDITIONAL MACT, CHICKBALLAPUR,
AWARDING A COMPENSATION OF RS.1,56,000/- WITH
INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
IN MFA NO.7882/2013:
BETWEEN:
1. SRI T.M. PRAVEEN
AGED ABOUT 26 YEARS
S/O MUNIBACHAPPA
R/AT TOWDANAHALLI VILLAGE
NANDI HOBLI
CHICKBALLAPUR TALUK AND DISTRICT
...APPELLANT
(BY SMT. SUGUNA R. REDDY, ADVOCATE)
AND:
1. THE BRANCH MANAGER,
ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
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MFA No. 7881 of 2013
C/W MFA No. 6719 of 2013
MFA No. 6720 of 2013
MFA No. 7882 of 2013
NO.VII, 22, DVG MAIN ROAD,
BASAVANAUDI, BANGALORE-4.
2. MR. JOSEPH S/O MARIYAPPA
MAJOR IN AGE
R/AT NO.38, 3RD CROSS
7TH MAIN, 18TH STAGE
2ND BLOCK, HBL LAYOUT
BANGALORE-43.
3. SRI T.V.MUNIBACHAPPA
S/O VENKATARAYAPPA,
AGED ABOUT 59 YEARS,
R/AT THOUDANAHALLI VILLAGE,
NANDI HOBLI, CHICKBALLAPUR TALUK,
CHICKBALLAPUR DISTRICT.
(AMENDMENT VIDE COURT ORDER
DATED 02.09.2024)
...RESPONDENTS
(BY SRI. S.V. HEGDE MULKHAND, ADVOCATE FOR R1;
VIDE ORDER DATED 05.02.2017,
NOTICE TO R3 DISPENSED WITH,
SRI K.H.THAMMEGOWDA, ADVOCATE FOR PROPOSED R3)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 15.5.2013 PASSED IN MVC
NO.8/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
CJM AND MEMBER, ADDL. MACT, CHICKBALLAPUR, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
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MFA No. 7881 of 2013
C/W MFA No. 6719 of 2013
MFA No. 6720 of 2013
MFA No. 7882 of 2013
ORAL JUDGMENT
In these appeals, petitioners are seeking
enhancement of compensation and Insurance company is
challenging the liability fastened against it by the Tribunal.
2. For the sake of convenience, the parties shall
be referred to as per their status before the Tribunal.
3. Brief facts of the case are, on 05.01.2007, the
petitioners were traveling in the goods tempo bearing
Reg.No.KA-40-2063 along with the load of grapes from
Chikkaballapura to Nellur of Andra Pradesh. At 3.00 p.m.,
on 06.01.2007 at Kalahasthi High way near Talavayapadu
Balaji Hotel of Naidupet, the tempo was hit against parked
lorry bearing No. AP-27-U-9117 by the road side, as a
result of which, the inmates of the tempo have sustained
injuries and they were treated at Government Hospital,
Naidupet and at M.S.Ramaiah Hopital, Bengaluru. The
petitioners approached the Tribunal for grant of
compensation, same was opposed by the insurance
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company in both the cases. The Tribunal after taking the
evidence and hearing both the parties, awarded
compensation of Rs.1,09,961/- in respect of injured
Praveen and Rs.1,56,036/- in respect of injured Suresh.
4. Pleading inadequacy and seeking enhancement,
both the petitioners are before this Court in
M.F.A.No.7881/2013 and M.F.A.No.7882/2013.
Challenging the liability fastened against it and award
passed in respect of injured Praveen without the owner of
the vehicle being impleaded in the claim petition,
Insurance company has filed the appeal in
M.F.A.No.6719/2013 and M.F.A.No.6720/2013.
5. Heard the arguments of Smt.Suguna R.Reddy,
learned counsel for the petitioner and
Smt.S.V.Hegde Mulkhand, learned counsel for the
Insurance Company and Sri.K.S.Thammegowda, learned
counsel appearing for the insured owner of the goods
vehicle.
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6. It is contended by the learned counsel for the
petitioners that, both the petitioners have suffered
fractures of their leg, they have taken treatment under
hospitalization, but the Medical officer, who has treated
them is not examined before the Tribunal. It is requested
this Court to take judicial notice of the fact for assessing
the disability in respect of fracture of leg.
6.1. It is further contended that both the petitioners
were carrying the grapes from Chikkaballapur to Nellur,
during transit, they met with an accident. Policy is a
package policy and carrying capacity of goods vehicle is
three. Hence, the risk of both the petitioners is covered
and the Tribunal has rightly fastened the liability against
the owner as well as the insurer of the vehicle to pay the
compensation. Hence, he sought for direction to both the
owner and the insurance company to pay the enhanced
compensation also.
7. Per Contra, learned counsel for the Insurance
company has contended that in M.V.C.No.8/2007, the
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insured is not a party, only driver was arrayed as party.
The Tribunal tried both the cases separately and
pronounced the judgment separately but, same advocates
represented the parties in both the cases. Unless the
owner of the vehicle is impleaded, the Insurance company
has no role in M.V.C.No.8/2007. The award passed against
the insurance company in the absence of the owner is
liable to be set-aside.
7.1. It is further contended that the petitioners have
not examined the Medical Officers nor produced disability
certificate explaining physical disabilities or the functional
disability. The Tribunal has rightly assessed the
compensation proportionate to the nature of the injuries
and supported the award of compensation.
7.2. It is the forceful argument on behalf of the
Insurance company that there is no evidence placed on
record that both the petitioners were carrying the grapes
from Chikkaballapura to Nellur. Both the petitioners were
gratuitous passengers in the vehicle. The insurance policy
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does not cover the risk of the gratuitous passengers and
even if the accident is proved, the Insurance company
cannot be directed to pay the compensation.
8. It is the argument of the learned counsel
representing owner of the vehicle that both the petitioners
were carrying the grapes from Chikkaballapur to Nellur.
The policy obtained was a package policy, it covers the
risk of the passenger as well as the persons, who are
carrying the goods. Therefore, the Insurance company is
liable to indemnify the insured. Accordingly, the Tribunal
rightly recorded the same and he has supported the
impugned judgment. It is argued that it is not a case for
enhancement as there is no medical evidence in proof of
disability.
9. I have given my anxious consideration to the
arguments addressed on behalf of both sides and also
perused the materials on record.
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10. On perusal of the materials on record, it is clear
that on 05.01.2007 with a grape load, both the petitioners
left Chikkaballapura in the goods vehicle bearing No.KA-
40-2063 towards Nellur. On 06.01.2007 at 3.00 p.m., they
reached the Naidupet on Sri.Kalahasthi Highway. The
driver of goods vehicle hit on the hind portion of the lorry
bearing No.AP 27-U-9117, due to which, both the
petitioners who were in the cabin of the goods vehicle
sustained fracture of their legs, wherein the petitioner
Suresh has suffered fracture of right femur shaft, fracture
of left femur, fracture of both bones of right leg, vascular
compromise of left leg below the adduction canal whereas
the injured Praveen suffered fracture of both bones of
right leg and fracture of thigh. They have taken
preliminary treatment at Andra Pradesh and thereafter
under hospitalization treated at M.S Ramaiah hospital.
11. As regarding the negligence on the part of the
goods vehicle-mini tempo, prosecution papers clearly point
out that the goods tempo vehicle was hit on the hind
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portion of the lorry in a day light. It is also explained that
the complete negligence is on the part of the driver of the
goods tempo and no negligence explained on the part of
the driver of the lorry though he was parking the lorry by
the side of the road.
12. As regarding the liability is concerned, as rightly
contended by the learned counsel for the Insurance
company, in M.V.C.No.8/2007, claim was determined in
the absence of the owner of the goods vehicle. The role of
the Insurance company comes only if there is a liability
against the owner. In the absence of the owner, there is
no indemnification on the part of the Insurance company.
However, the application I.A.No.1/2020 filed by the
petitioner to implead the owner of the vehicle is allowed
by this Court on 02.09.2024, the liability on the part of the
owner comes into picture and whether Insurance company
can be liable to indemnify the owner is to be determined
now.
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13. Prosecution papers clearly points out from the
beginning of filing of the complaint that the goods tempo
was carrying the grapes from Chikkaballapura to Nellur.
Strange arguments is canvassed forcefully on behalf of the
Insurance company that there is no evidence to that
effect. Grape is a perishable goods and it cannot be
retained in the vehicle even after the accident till the
Police comes and draws the mahazar. When the complaint
averments itself speaks that the vehicle was moving from
Chikkaballapura to Nellur by carrying the seasonal crop of
grapes, it clearly points out that both the petitioners were
carrying the goods in the goods vehicle.
14. On perusal of the policy, it is pertinent to note
that it is a package policy and it covers the risk of driver
plus one. It is interesting to note that injured Praveen is
none other than the son of the owner of the vehicle. One
passenger who was carrying the grapes is also injured.
Hence, under Section 147 of Motor Vehicles Act, Insurance
company is liable to indemnify the liability of Suresh.
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15. In respect of injured Praveen, who is none
other than the son of owner of the vehicle, keeping his
father away, makes the claim and now he files
I.A.No.1/2020 to implead his father. The said application is
allowed by this Court on 02.09.2024. Claim starts from the
said date against owner. Therefore, liability on the part of
the insurance company starts from the date of allowing
I.A.No.1/2020. Though the package policy is taken by the
owner, the injured Praveen being the son of the owner
was also traveling in the said goods vehicle and his risk is
not covered under the policy of insurance. Hence, injured
Praveen has to go against his father for recovery of the
compensation. Accordingly, Insurance company is liable to
pay the compensation to the injured Suresh alone.
16. Adverting to compensation is concerned, the
injured Praveen has suffered fracture of both bones of
right leg and fracture of right leg. Though he was under
hospitalization for 21 days at Ramaiah Hospital, neither
disability certificate is produced, nor the Medical Officer
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can assess the same. Hence, he has to be compensated
with Rs.40,000/- towards pain and suffering, Medical bills
of Rs.60,461/-, incidental expenses of Rs.10,000/-, loss of
4 months income during laid off is Rs.24,000/-, Future
Medical Expense is Rs.10,000/-, loss of amenities and
discomfort is Rs.30,000/-. Total compensation comes to
Rs.1,74,461/- as against Rs.1,09,961/- awarded by the
Tribunal, thereby enhancement of Rs.64,500/-.
17. In respect of the injured Suresh is concerned,
he has suffered fracture of both femurs, fracture of both
bones of right leg and also vascular injury on his left leg.
He was under hospitalization for one month. He has
neither examined any Medical officer nor produced the
disability certificate. The injured has produced medical bills
of Rs.1,38,000/-. The reasons assigned by the Tribunal in
discounting the same and reducing it to Rs.82,036/- is not
proper and he has to be awarded with medical bills of
Rs.1,38,000/-, Pain and suffering Rs.50,000/-, Incidental
expense has to be assessed at Rs.20,000/-, 4 months laid
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up period comes to Rs.24,000/- future medical expense at
Rs.15,000/-, loss of amenities and discomfort Rs.50,000/-.
Total compensation comes to Rs.2,97,000/- as against
Rs.1,56,036/- awarded by the Tribunal, thereby
enhancement of Rs.,1,40,964/- rounded off to
Rs.1,41,000/-. It is the just compensation that both the
petitioners are entitled in the facts and circumstances of
the case.
18. In view of the discussions made above, liability
on the part of the owner as well as the Insurance company
is settled. Hence, the appeals filed by the petitioners
merits consideration. The appeal filed by the insurance
company in respect of injured Suresh is devoid of merits
and the appeal filed by the Insurance company in respect
of injured Praveen merits consideration. In the result, the
following:
ORDER
i. M.F.A.No.7882/2013 and M.F.A.No.7881/2013 are
partly allowed.
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ii. M.F.A.No.6720/2013 is dismissed.
iii. M.F.A.No.6719/2013 is allowed.
iv. The Petitioner in M.F.A.No.7881/2013 is entitled to
enhanced compensation of Rs.1,41,000/- and the
petitioner in M.F.A.No.7882/2013 is entitled to
enhanced compensation of Rs.64,500/-.
v. In both the cases, the owner of the vehicle is liable
to pay the compensation with interest at 6% p.a.
vi. The Insurance company is directed to indemnify
the owner in M.F.A.No.7881/2013
(M.V.C.No.22/2007).
vii. Liability against the Insurance company to
indemnify the owner in M.F.A.No.7882/2013
(M.V.C.No.8/2007) is set-aside and claim against
the Insurance company in M.V.C.No.8/2007 is
dismissed.
viii. The petitioner in M.V.C.No.8/2007 has to recover
the compensation from owner of the vehicle.
ix. The amount in deposit in M.F.A.No.6719/2013 shall
be returned to the Insurance company. The
amount in deposit in M.F.A.No.6720/2013 shall be
transmitted to the Tribunal.
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x. The petitioners are not entitled for the interest for
the period of delay in filing the appeal as well as
the period of dismissal of the appeal for non-
prosecution and its restoration i.e., from
08.07.2015 to 26.06.2018.
SD/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
RHS
