Karnataka High Court
The Divisional Manager vs Yallappa S/O. Dundappa on 24 March, 2025
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MFA No. 102562 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO. 102562 OF 2014 (MV-I)
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
RAMDEV GALLI, BELGAUM, REPTD. BY,
DEPUTY MANAGER, REGIONAL OFFICES,
2ND FLOOR, ARIHANT PLAZA, KUSUGAL ROAD,
HUBLI. (INSURER OF VEHICLE)
...APPELLANT
(BY SRI. S. S. JOSHI, ADVOCATE)
AND:
1. YALLAPPA S/O. DUNDAPPA HITTALAMANI,
AGE MAJOR, OCC: BUSINESS,
R/O. AMBADAGATTI,
TQ: DIST: BAILHONGAL, DIST: BELGAUM,
Digitally signed
(OWNER OF MAHINDRA GOODS RICKSHAW)
by VISHAL
NINGAPPA
PATTIHAL 2. HUSENSAB S/O. HABIBSAB HONGAL,
Location: High
Court of AGE 24 YEARS, OCC: COOLIE,
Karnataka,
Dharwad Bench R/O. AMBADAGATTI, TQ: DIST: BAILHONGAL,
DIST: BELGAUM.
...RESPONDENTS
(BY SRI. SURESH P. HUDEDAGADDI, ADV. FOR R2;
NOTICE TO R1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1)
OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DT: 23.06.2014 PASSED BY THE SENIOR CIVIL JUDGE, AND ADDL.
MACT, BAILHONGAL AT BAILHONGAL IN MVC NO.2661/2011 AND
CALL FOR THE TRIBUNAL RECORDS AND HEAR THE PARTIES IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 102562 of 2014
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)
1. This appeal is filed by the Insurer in MVC
No.2661 of 2011 dated 23.06.2014 passed by the learned
Senior Civil Judge and Additional MACT, Bailhongal (for
short, 'the Tribunal').
2. I refer the parties as per their ranking before
the Tribunal.
3. It is the case of the claimant that on
06.06.2011, claimant was going as a pillion rider on a
motorcycle bearing registration No.KA-24/3986 and one
Muthu @ mutturaj was riding the said motorcycle. They
met with an accident due to the rash and negligent driving
of the goods vehicle bearing registration No.KA-24/6445
around 8:30 p.m., and due to the accident claimant had
sustained grievous injuries. He was admitted to KLE
Hospital, Belagavi and he had spent Rs.1,50,000/- towards
medical expenses. It is further contended that claimant
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was coolie and earning Rs.6,000/- per month. Due the
injuries, he has been suffering permanent disability, which
has affected his earning capacity. With these reasons,
prayed to award compensation of Rs.8,00,000/-.
4. Respondent Nos.1 and 2 appeared before the
Tribunal and filed written statement. Respondent No.1
admitted the accident but he has contended that accident
had taken place due to rash and negligent riding of the
motorcycle by its rider and the said vehicle was not
insured with the respondent No.2. Therefore if any
compensation is to be paid, the same shall be recovered
from the respondent No.2.
5. Respondent No.2 in the written statement
denied all the contention of the claim petition. It is further
contended that accident had not taken place by the
involvement of goods vehicle therefore respondent No.2 is
not liable to pay compensation. It is also contended that
its liability is restricted to the terms and conditions of the
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policy of insurance and holding of valid and effective
driving licence by the driver of the said vehicle.
6. From the rival contention of the parties, the
Tribunal framed necessary issues.
7. Claimant to prove his case examined two
witnesses as PWs.1 and 2 and got marked 20 documents
as per Exs.P1 to P20. Respondent No.2 examined one
witness as RW1 and got marked two documents as Exs.R1
and R2.
8. After hearing both the parties and appreciating
the materials available on record, the Tribunal held that
accident had taken place due to the rash and negligent
driving of the goods vehicle bearing registration No.KA-
24/6445 (for short, 'the offending vehicle') by its driver.
9. The Tribunal assessed the age of the claimant
as 21 years, his income as Rs.5,000/- per month, applied
multiplier as 18, assessed disability to the whole body as
20% and assessed loss of future earning capacity due to
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permanent disability and awarded the following amount of
compensation:
i. Pain and suffering : Rs.1,00,000.00
ii. Loss of amenities and future unhappiness : Rs. 40,000.00
iii. Medical expenses incurred : Rs.1,45,000.00
iv. Incidental expenses : Rs. 30,000.00
v. Loss of income during laid up and rest period : Rs. 30,000.00
vi. Loss of future income : Rs.3,24,000.00
vii. Future medical expenses : ---
Total : Rs.6,69,000.00
10. The insurer challenged the said judgment and
award dated 23.06.2014 on the ground of false implication
of the offending vehicle in the accident. And also
challenged the quantum of compensation awarded by the
Tribunal.
11. Heard the arguments of the learned advocates
for both the sides.
12. The following questions arise for determination;
"i) Whether the Tribunal erred in holding that the
accident had taken place due to the involvement of
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the goods vehicle bearing registration No.KA-
24/6445?
ii) Whether the Tribunal has awarded just and
reasonable amount of compensation and
interference in the said finding is required?
iii) What order?
13. Learned counsel for the appellant contends that
there is two days delay in lodging the complaint. Delay is
not explained in Ex.P2. In Ex.P7 as well as Ex.R2 and R2a,
it is mentioned that accident was between a two wheeler
and a four wheeler on 06.06.2011. However offending
vehicle is a three wheeler. In Ex.R2a, it is stated as
"passenger vehicle". Therefore there is no consistency in
the identity of the vehicle involved in the accident. The
FIR, Ex.P7 and Ex.R2a, creates serious doubt that above
vehicle was falsely implicated in the accident. It also
indicates that accident was not caused by the offending
vehicle. This fact was not considered by the Tribunal.
14. Per contra, learned counsel for the claimant
submits that immediately after the accident, the claimant
was unconscious and the persons who were traveling in
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the goods vehicle, called the ambulance and he was
shifted to KLE Hospital, Belagavi for treatment. Ex.P7
reveals that he was unconscious, therefore whatever
information given to the Hospital, is not by the claimant.
Motorcycle Inspection Report reveals that the offending
vehicle had been damaged due to the accident in question.
There was no reason for the claimant to falsely implicate
the offending vehicle. In this case, the claimant was
admitted in Hospital from 06.06.2011 to 14.06.2011.
Under the circumstances, falsely implication of the said
vehicle by the claimant is not probable. Mere delay in the
complaint does not mean that there is false implication of
the vehicle. Looking to the facts and circumstance of the
case, delay is probable and hence prays to reject the said
contention of the insurer.
15. According to the contention of the claimant,
accident had taken place on 06.06.2011, which is not in
dispute. In Ex.R2, fact of the accident is stated in detail
and said information appears to be not given by the
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claimant but one Husensab Habibsab Hongal, who is said
to be friend of rider of the motorcycle. Therefore there is
no chance to give explanation for delay in filing of the
complaint. The investigating officer held detailed enquiry
and submitted the charge sheet, against the driver of
offending vehicle.
16. Claimant was examined as PW1 and in his
detailed cross-examination by both the owner as well as
the insurer, nothing was brought out to disbelieve his
evidence regarding involvement of the vehicle or
probability of contention of the insurer.
17. RW1 is not the eyewitness. He is an officer of
the insurance company. In his evidence, he has stated
that on the basis of the delay in filing the complaint as well
inconsistency of description of the vehicle mentioned in
the inpatient record, the insurance company has been
contending that the said vehicle is falsely implicated. On
06.06.2011, when the claimant was admitted in the
hospital as inpatient, it is mentioned that the claimant
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sustained injury due to the accident between a two
wheeler as well as a four wheeler. It is also mentioned
therein that patient was unconscious, which indicates that
the said information was not given by either the rider of
the motorcycle or the claimant and hence much
importance cannot be given to the said contents of the
inpatient record of the Hospital. Similarly, in Ex.R2a, it is
mentioned as "passenger vehicle", that is also the case
sheet of the Hospital.
18. Ex.P7 simply mentions as four wheeler and
Ex.R2a it is mentioned as passenger vehicle. It appears
that while making of the said entry in the records of the
Hospital, claimant was unconscious. It indicates that no
such information was given by the claimant. Considering
the said facts, contention of the appellant/insurer in this
regard is not tenable.
19. From the charge-sheet and enclosures, prima
facie case was made out by the claimant about the
involvement of the said vehicle in the accident.
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20. The Tribunal has considered the case properly
and rightly held that accident had taken place due to rash
and negligent driving of goods vehicle bearing registration
No.KA-24/6445. The said view is based on the evidence
available on record therefore there is no reason to hold
that the said evidence is incorrect. Accordingly I answer
point No.1 in the negative.
21. Learned counsel for the appellant submits that
the amount of compensation awarded under the head of
pain and suffering, loss of amenities and loss of income
during laid period are on much higher side. He further
submits that the Tribunal has taken income of the claimant
as Rs.5,000/- adding 50% of the said income as future
prospects though claimant has sustained 20% of the
permanent disability as assessed by the Tribunal. Hence
adding 50% of income towards future prospects is
incorrect. Therefore, prays to re-calculate the
compensation amount and reduce the award on the said
head.
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22. Looking to the nature of injury sustained,
treatment taken as inpatient for 40 days and the
formalities mentioned in the discharge summary given by
the treated doctor as well as PW2, the amount of
compensation awarded under the said heads are not on
higher side; therefore re-considerations of the amount of
compensation awarded under the head of pain and
suffering, the loss of amenities and loss of income during
laid up period are not required.
23. As rightly submitted by the learned counsel for
the appellant, the Tribunal erred in adding 50% of the
income towards future prospects while assessing
compensation under loss of future earning capacity due to
permanent disability. The future prospects could be
considered in case of death or in cases wherein permanent
disability affecting earning capacity of a victim of an
accident is higher side i.e., between 75 to 100% and not
in the cases of fractures of both the bones of right and left
leg and right shoulder. Therefore the said calculation is
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erroneous. It is also pertinent to note that the Tribunal
has taken income as Rs.5,000/- per month. According to
the chart prepared by the KSLSA, it should have taken it
as Rs.6,000/- per month. It is not in dispute that
appropriate multiplier would be 18 since claimant is aged
about 21 years. Considering the above said figures, loss of
future earning capacity due to permanent disability is to
be re-assessed. That amounts to Rs.2,59,200/- (Rs.6000/-
x 12 x 18 x 20%). The Tribunal has awarded
Rs.3,24,000/- under the said head, therefore, the amount
of Rs.64,800/- needs to be deducted in total amount of
compensation awarded by the Tribunal. To that extent, the
award passed by the Tribunal needs interference.
24. For the aforesaid discussions, question No.2 is
answered partly in the affirmative.
25. Point No.3 for the reasons discussed above, I
pass the following:
ORDER
i. Appeal is allowed in part.
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ii. The impugned judgment and award dated
23.06.2014 passed in MVC No.2661 of 2011 by
the learned Senior Civil Judge and Additional
MACT, Bailhongal is modified.
iii. The claimant is entitled for Rs.6,04,200/- as
against Rs.6,69,000/- awarded by the Tribunal
(that is less than the compensation awarded by
the Tribunal) with interest @ 6% per annum
from the date of petition till its realisation.
iv. Remaining orders passed by the Tribunal is not
disturbed.
v. Send back the TCR along with copy this order to
the Tribunal.
vi. Whatever amount deposited by the appellant-
insurer shall be transmitted to the Tribunal.
Sd/-
(UMESH M ADIGA)
JUDGE
KGK /CT-AN
