Karnataka High Court
Lankappa vs Mallappa And Ors on 25 February, 2025
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MFA No. 202153 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISC. FIRST APPEAL NO.202153 OF 2023 (MV-I)
BETWEEN:
LANKAPPA S/O THIPPAYYA KUKKALAYYA,
AGE: 41 YEARS, OCC: AGRICULTURE AND COOLIE,
R/O: FATHEPUR VILLAGE,
TALUK AND DISTRICT RAICHUR-584 101.
...APPELLANT
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. MALLAPPA S/O NARASAPPA,
AGE: 35 YEARS, OCC: DRIVER OF MAHINDRA
TRACTOR BEARING ITS
REG.NO.KA-36/TC-8797,
R/O: FATEPUR,
TALUK AND DISTRICT RAICHUR-584 101.
Digitally signed
by 2. NARASAPPA S/O BASAPPA,
LUCYGRACE
Location: HIGH AGE: MAJOR, OCC: AGRICULTURE AND
COURT OF
KARNATAKA OWNER OF MAHINDRA TRACTOR
NO.KA-36/TC-8797,
R/O: NO.59, FATEPUR VILLAGE,
TALUK AND DISTRICT RAICHUR-584 101.
3. ROYAL SUNDRAM GEN. INS. CO. LTD.,
D.NO.3, PLOT NO.40 AND 4,
MAHANTH ARCADE, MAHANTHNAGAR,
KALABURAGI-585 103.
...RESPONDENTS
(BY SRI. SUDARSHAN M., ADV. FOR R3;
V/O DTD. 07.07.2023 AND 15.02.2024 RESPECTIVELY,
NOTICES TO R1 AND R2 ARE DISPENSED WITH)
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MFA No. 202153 of 2023
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE AWARD
AMOUNT BY MODIFYING THE IMPUGNED JUDGMENT AND
AWARD DATED 11.01.2023 PASSED BY PRL. DISTRICT AND
SESSIONS JUDGE AND MEMBER, MACT AT RAICHUR IN
MVC.NO.178/2018.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Heard the learned counsel for the appellant and the
respondent No.3.
02. Being aggrieved by the judgment and award in
MVC.No.178/2018 dated 11.01.2023, passed by the
Principal District and Sessions Judge and MACT, at
Raichur, the petitioner is before this Court in this appeal.
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03. The factual matrix of the case are that the
petitioner being an agriculturist and coolie was going with
one Basavaraj, the complaint on 25.09.2017 on
Jagirvenktapur - Fathehpur road, when the Tractor bearing
Reg.No.KA-36-TC-8797 came with an agricultural
implement attached to it, due to the negligence of the
driver of the Tractor, such agricultural attachment hit upon
the leg of the petitioner. He sustained fracture of tibia of
the right leg and segmental fracture of fibula and few
other injuries. On the basis of the complaint, Raichur
police registered the case in Crime No.228/2017 against
the driver of the Tractor. Ultimately they have filed the
charge-sheet against the driver. Therefore, he filed a claim
petition before the Tribunal contending that the accident
was due to the negligent driving and involvement of the
said Tractor driver and the Tractor.
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04. On being served with the notice, the respondent
No.1 and 2 did not appear, but the respondent No.3 -
insurance company appeared before the Tribunal and filed
the written statement. It was alleged by the respondent
No.3 that the accident was a created one and the
petitioner had colluded with the police in order to claim the
compensation and make unlawful gain. It was also alleged
that there is a delay in lodging the complaint and this
would reflect the after thought of the petitioner in
implicating the Tractor. Inter-alia it also contended that
the driver was not having effective driving license and
there is violation of the policy conditions.
05. On the basis of the above contentions, the
Tribunal framed the following issues:-
1. Whether the claimant proves that on 25.09.2017 at
about 06.00 p.m. while he was returning to his
native place by walk by the side of Jagirvenkatapur-
Fathepur road at that time respondent No.1 being
the driver of Tractor bearing No.KA-36-TC-8797
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drove the same in rash and negligent manner with
high speed so as to endanger human life and dashed
to the claimant from the backside resulting in
grievous injuries to him.?
2. Whether the respondent No.3 insurance company
proves that the respondent NO.1 was not holding
valid and effective driving license to drive such
category of vehicle as on the date of accident thus
violated the terms and conditions of the policy as
such they are not liable to pay any compensation.?
3. What compensation, if any, the claimant is entitled to
and if so at what quantum and from whom.?
4. What order or award.?
06. The petitioner was examined as PW.1 and the
doctor was examined as PW.2 and Ex.P.1 to 11 were
marked in the evidence. The official of the respondent
No.3 was examined as RW.1 and Ex.R.1 to 5 were marked
in the evidence. The doctor of the hospital was examined
as RW.2.
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07. After hearing the arguments, the Tribunal came
to the conclusion that the injury suffered by the petitioner
was described as an 'agricultural injury', when it was first
seen by the doctor and that the petitioner had failed to
prove that he had met with an accident in a road traffic
accident caused by the Tractor. On that ground, the
petition came to be dismissed.
08. The learned counsel appearing for the petitioner
contends that the petitioner immediately after the accident
got admitted to Balanku Hospital at Raichur. In fact, the
Hospital records mention that it was an RTA, but later it
was shown by them as an 'agricultural injury'. He submits
that there is no such category as agricultural injury and
that the involvement of the vehicle in causing injury to the
petitioner is not denied by the respondent No.3. It was
contended that the involvement of the Tractor in the said
accident having been found from the investigation done by
an official of the respondent No.3 - Insurance Company,
the Tribunal could not have held that there was no such
RTA. It is contended that the hospital records,
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undoubtedly established that the injuries suffered by the
petitioner were caused due to the use of the vehicle i.e., a
Tractor. Hence, it is submitted that the impugned
judgment is perverse and the same is liable to be set
aside. He submits that adequate compensation be
awarded by this Court, since there is sufficient evidence
available on record.
09. Per contra, the learned counsel appearing for
the respondent No.3 would submit that even though the
medical records show that it is an agricultural injury and
there is no such category named as agricultural injury, the
delay in filing the complaint definitely reflects on a false
implication of the Tractor involved in the case. It is
submitted that the involvement of the Tractor was not
initially mentioned in the hospital records and therefore,
the conclusions reached by the Tribunal that there was no
such vehicular accident needs to be upheld. It is submitted
that the hospital records having come into existence prior
to filing of the FIR, the involvement of the Tractor is being
a doubtful one, the impugned judgment needs to be
confirmed.
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10. Having considered these submissions, the
evidence and record needs to be re-appreciated by this
Court. It cannot be disputed that much of the facts
involved depends upon the documentary evidence rather
than the ocular evidence. It is in this background that the
hospital records which are placed before the Tribunal
needs to be considered. The FIR in respect of the said
accident which occurred on 25.09.2017 at about 06.00
p.m. was registered by the police on 26.09.2017 at about
8.30 a.m. on the basis of the complaint filed by one
Basavaraj. He had mentioned in this said complaint that
on the previous evening, while he and the petitioner were
walking on Jagirvenktapur - Fathehpur road, the Tractor
came from behind and the tiller attached to the Tractor hit
upon the right leg of the petitioner and he fell down. It
was found that there was fracture of the bones of the right
leg and he noted the Tractor number and the name of the
driver, who went away without arranging for shifting the
petitioner to the hospital. Later, with the help of the
brother of the petitioner, he was shifted to the Balanku
Hospital, at Raichur.
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11. The Medico Legal Certificate which was
produced before the Tribunal at Ex.P.2 shows that the
mode of injury is shown to be agricultural. In Ex.P.2, there
is no mention of the involvement of the Tractor or RTA.
Subsequently, the investigating officer completed the
investigation and has filed the charge-sheet against the
driver of the vehicle as per Ex.P.4. He had found the
involvement of the Tractor in unequivocal terms.
12. The Hospital records which are produced at the
instance of the respondent No.3 as per Ex.R.4 shows that
at the time of the admission, the history of findings
recorded on 25.09.2017 at 10.00 p.m. show that while
working in agricultural field near Fathepur on 25.09.2017,
the limb of the injured was struck by Tractor. This
recording in the case-sheet of Balanku Hospital, at
Raichur, is clear enough to understand what is meant by
agricultural injury. It appears that when the agricultural
implement attached to the Tractor was involved in causing
injury to the petitioner, the hospital authorities have
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interpreted the same as an agricultural injury. Subsequent
to that a medico legal patient record, produced at Ex.R.3
depicted as history of RTA - agricultural injury and the
injury was open comminuted fracture of right tibia and
fracture of fibula.
13. Thereafter, when the claim petition came to be
filed, the respondent No.3 engaged an investigator and he
gave a report as per Ex.R.2. In Ex.R.2, it is reported that
he had met with an eyewitness by name Narasappa and
he confirmed that while coming back to his place on the
way, he had seen that the petitioner had met with an
accident and the said Narsappa had helped the injured to
reach the hospital. He also had confirmed that the Tractor
had dashed to the petitioner.
14. The above evidence available on record, clearly
indicate that the Tribunal could not have brushed aside the
fact that the injury to the petitioner was caused by
involvement of the Tractor. An agricultural implement
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attached to the Tractor, had caused injury to the
petitioner. This is in consonance with the narration that is
available in Ex.P.1. Moreover, such narration was also
found to be true as per the investigation made by the
investigating officer, who filed the charge-sheet as per
Ex.P.4.
15. It is pertinent to note that the provisions of
Sections 165 and 166 of the Motor Vehicles Act laid down
that the involvement of the vehicle is sufficient to invoke
the provisions of Section 166 of the M.V. Act, in claiming
compensation. It is not essential that negligence has to be
made. The liability being a tortuous liability, it is the
actionable negligence which is of importance, but not
culpable negligence. Keeping in view, the provisions
contained in Sections 165 and 166 of the M.V. Act, if an
injury or damages caused either to the person or property,
the claim is permissible and maintainable.
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16. In the case on hand, simply because the
hospital records showed that it was an agricultural injury
and that the involvement of the road traffic accident was
not mentioned, the Tribunal erroneously came to the
conclusion that there was no such accident. It is surprising
that despite there being involvement of the Tractor, as per
Ex.R.2 the investigation report of the investigator engaged
by the insurance company, the Tribunal has come to such
conclusion. Prima-facie, such conclusion of the Tribunal is
perverse. Therefore, the same has to be set aside.
17. Insofar as the quantum of the compensation is
concerned, the PW.2 who assessed the disability states
that the petitioner having suffered comminuted fracture of
middle 1/3rd of right fibula and shaft of the right fibula, he
was inpatient for a period 13 days and the petitioner
complained of inability to fold the knee and to lift weight
and to sit cross legged, squat etc. In his examination he
had found that there is a pain and restriction of the
movement, wastage of the quadriceps and he also found
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antalgic gait. He attributes the limping to restriction of the
movement and malunion of the fracture. Ultimately, he
comes to the conclusion that there is a disability of 30% to
the limb and in his opinion there is 20% disability to the
whole body. Obviously, the PW.2 has given the physical
disability, but not the functional disability. Nowhere his
report at Ex.P.6 mention about ascertainment of the
avocation of the petitioner. The petitioner claims that he is
agricultural coolie and by the very fact that he and his
friend Basavaraj was walking by the side of the
agricultural lands, would indicate that he was an
agriculturist. Therefore, considering the nature of the
injury, the disability stated by PW.2, the avocation of the
petitioner and the age of the petitioner which is 36 years,
the functional disability is assessed at 12%.
18. The petitioner being aged 36 years, appropriate
multiplier would be 15. There being no material on record
to show the income of the petitioner, the notional income
has to be accepted.
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19. The guidelines issued by the KSLSA for
settlement of disputes before Lok-Adalath prescribe a
notional income of Rs.10,250/- per month for the year
2017. In umpteen number of judgments, this Court has
held that the guidelines issued by the KSLSA are in
general conformity with the wages fixed under the
Minimum Wages Act. Therefore, they are acceptable.
Hence, the notional income of the petitioner is considered
at Rs.10,250/-. Therefore the loss of future income is
calculated as Rs.10,250/- x 12 x 15 x 12% =
Rs.2,21,400/-.
20. The petitioner has suffered two fractures as
mentioned supra, therefore, a sum of Rs.40,000/- is
awarded to him under the head of pain and suffering.
21. Looking to the injuries suffered by him and the
inpatient treatment, it can safely be said that he was
unable to resume his work at least for a period of 3
months. Therefore, a sum of Rs.10,250 x 3 = Rs.30,750/-
is awarded to him under the head of loss of income during
the laid up period.
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22. The petitioner was inpatient for 13 days at
Raichur. Therefore, it would be just and proper to award a
sum of Rs.15,000/- the head of attended charges, food
and nourishment and conveyance expenses.
23. The petitioner had produced the medical bills of
the hospital and medicines, which is to tune of
Rs.61,585/-. The same is rounded of to Rs.62,000/- and is
awarded to the petitioner.
24. The petitioner has suffered the fractures as
mentioned above and he is left with antalgic gait for which
he has to suffer his rest of the life. Therefore, it would be
just and proper to award a sum of Rs.60,000/- under the
head of loss of amenities in life.
25. Therefore, the claimant is entitled for total
compensation of Rs.3,89,150/- under the following
heads :-
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Sl. Heads Compensation Awarded
No.
by this Court
1. Loss of future earning Rs.2,21,400/-
capacity
2. Loss of income during Rs.30,750/-
laid up period
Towards attended Rs.15,000/-
charges, food and
3.
nourishment and
conveyance expenses
4. Towards medical Rs.62,000/-
expenses
5. Towards loss of Rs.60,000/-
amenities
Total Rs.3,89,150/-
26. Hence, appeal deserves to be allowed.
Therefore, the following;
ORDER
I. The appeal is allowed.
II. The judgment and award passed by the Tribunal is
hereby set-aside.
III. The appellant is entitled for a sum of Rs.3,89,150/-,
along with interest at the rate of 6% p.a. from date
of petition till the date of deposit.
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IV. The respondent No.3 - insurance company is
directed to deposit the said compensation amount
with interest within a period of 04 weeks from today
before the Tribunal.
V. On such deposit the Tribunal is directed to release
the 50% of the deposited amount along with interest
in favour of the petitioner on proper identification
and the remaining 50% of the compensation
including interest shall be deposited in his name as
F.D. in any of the Nationalized Bank as per choice of
the petitioner for a period of 03 years.
The learned counsel appearing for the respondent
No.3 is permitted to file Vakalath within two weeks.
Sd/-
(C M JOSHI)
JUDGE
KJJ
CT: AK
