Karnataka High Court
Vithal S/O. Kanu vs Bhutali Pujari S/O. Havanna on 31 July, 2018
Author: L Narayana Swamy
Bench: L.Narayana Swamy
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST OF JULY 2018
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL NO.32055 OF 2009 (MV)
Between
Vithal
S/o Kanu
Age 38 years
Occ: Agriculture Labour
R/o Machanal Tanda
Taluk and Distrit: Gulbarga
Lunatic through his next friend
His wife Smt. Gangabi
Agd 30 years
Occ: Household
R/o Machan Thanda
Taluk and District: Gulbarga
...Appellant
(By Shri Basavaraj R. Math, Advocate)
And
1. Bhutali Pujari
W/o Havanna
Agd 53 years
Occ: Owner of Vehicle bearing
No.KA 32 A/3588
R/o Gobburwadi
Taluk: Afzalpur
District: Gulbarga
2
2. Zonal Manager
IFFCO Tokia General Insurance Co. Ltd.
Zonal Office
KSCMF Building
III Floor, 3rd Block
No.1, Cunningham Road
Bangalore - 52
...Respondents
(By Smt. Preeti Patil, Advocate for R2)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, against the judgement and
award dated 29.09.2009 passed by III Addl. Civil Judge (Sr. Dn.)
and MACT at Gulbarga in MVC No.196 of 2007 to modify the
award insofar as exonerating of respondent No.2 Insurer from
liability.
In this MFA arguments being heard, judgment reserved on
20.07.2018, coming for pronouncement of judgment, today, the
Court delivered the following:
JUDGMENT
For the injuries suffered in the road traffic accident that took place on 18th September 2006 while the appellant was travelling in the goods vehicle, he filed claim petition before the III Additional Civil Judge (Sr.Dn.) and Motor Accident Claims Tribunal at Gulbarga (for short hereinafter referred to as 'the Tribunal'). The Tribunal, by its order dated 29th September 2009 passed in MVC No.196 of 2007, awarded compensation of Rs.99,000/- with 6% interest from the date of petition till the 3 date of deposit. Being not satisfied with the compensation, the claimant is before this Court seeking enhancement.
2. The learned counsel appearing for the appellant, seeking enhancement in the compensation, has taken the following grounds. He submitted that the accident occurred due to the rash and negligent driving of the goods vehicle by its driver as a result which the appellant fell down from the vehicle and sustained perennial injuries. The injured was immediately shifted to Government General Hospital, Gulbarga and thereafter to Basaveshwar Hospital, Gulbarga; and after obtaining the CT Scan report, the appellant was referred to National Institute of Mental Health and Neuroscience at Bangalore where he was an inpatient and after discharge the appellant was advised to visit the hospital once in a month and to be under medication life long. The learned counsel submitted that the appellant has lost thinking capacity and sensation and is not in a position to identify the things resulting in he becoming an insane and as such the claim petition has been filed through next friend-wife of the claimant. It is stated that prior to accident the injured was 4 working as agricultural labour and was earning Rs.6,000/- per month. Contrary to the claimed income, the Tribunal has assessed at Rs.100/- day and taken the income at Rs.3,000/- per month which is on the lower side. It is submitted that though the Doctor in his report has stated that the appellant has suffered 80% disability, the Tribunal has assessed it at 10% to the whole body, which is an error. It is to be noted that the appellant has become a mental patient and require assistance all through his remaining life.
3. The learned counsel also submitted that the compensation awarded under the other heads is also on the lower side. The Tribunal has not awarded any compensation towards loss of earning during the laid off period. The compensation awarded under the head 'loss of expectancy' is also on the lower side. Taking into consideration that the appellant has become insane, the Tribunal ought to have awarded Rs.50,000/- under the said head. Though it is claimed in the claim petition that the claimant has spent around Rs.2,00,000/- towards medical expenses, the Tribunal has 5 awarded only a paltry sum of Rs.10,000/-. It is also submitted that the Tribunal has not granted any compensation towards food, nourishment and attendant charges and also has not granted any amount towards future medical expenses.
4. Nextly, the learned counsel submitted that the Tribunal was not justified in exonerating the respondent No.2-Insurer from liability and fastening the liability on the owner of the vehicle. It is submitted that the Tribunal has failed to notice that the Insurer has collected extra premium towards non-fare paying passenger and though the Insurer during the cross-examination, has admitted about the collection of extra premium of Rs.150/- towards NFPP, but has erroneously exonerated the insurer from liability. Hence, the learned counsel submitted to allow the appeal by enhancing the compensation. In support of his submissions, the learned counsel has relied upon the judgments in the case of LAXMAN TATYABA KANKATE AND ANOTHER v. TARAMATI HARISHCHANDRA DHATRAK; reported in (2010)7 SCC 717; in the case of BANGALORE MOTROPOLITAN TRANSPORT CORPORATION v. PADMA AND OTHERS reported in 6 2009(3) SCC 285; in the case of FAHIM AHMAD AND OTHERS v. UNITED INDIA INSURANCE CO. LTD. AND OTHERS reported in 2014 STPL (Web) 199 SC; and a judgement of this Court in the case of BRANCH MANAGER, M/S. UNITED INDIA INSURANCE CO. LTD. v. KALAVATHI AND OTHERS reported in ILR 2007 KAR 3885.
5. Per contra, the learned counsel appearing for the second respondent-insurance company submitted to dismiss the appeal. It is submitted that in the absence of any cogent evidence adduced by the claimant, the Tribunal considering the materials produced before it has awarded just and reasonable compensation. It is submitted that in the absence of the claimant proving that he was travelling along with the goods in the goods vehicle, the Tribunal was right in exonerating the Insurer and fixing the liability on the owner. Hence, she submitted there is no scope for interference by this Court in this appeal. To fortify her submissions, the learned counsel placed reliance upon the judgements of this Court in the case of SMT. MAHADEVI AND ANOTHER v. JAGANNATH AND ANOTHER in MFA 7 NO.31693 OF 2013 disposed of on 19TH JULY 2016; and in the case of THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD. v. SMT. SHANTA @ LAGAMMAVVA in MFA NO.9326 OF 2004 disposed of on 25TH AUGUST 2010.
6. Heard the learned counsel for the parties and gone through the Judgment of the Tribunal and also the lower Court records. The appellant-claimant suffering injury in the accident is not in dispute. After hearing the parties the Tribunal has framed issues for its consideration. As regards the issue framed by the Tribunal as to "whether the petitioner proves that he is injured in the accident on 18.09.2006 at about 09.45 a.m. when he was travelling in the light goods vehicle bearing No.KA-32/A- 3588 alongwith three bags of blackgram and udit and when said vehicle was near Gobbur-K Village, the driver of the said vehicle drove it in high speed and in rash and negligent manner and in zigzag manner, due to which petitioner fell down from the vehicle and sustained injuries as alleged?" the Tribunal has answered the same in the affirmative and held that the Claimant has proved the accident occurred due to the rash and negligent 8 driving of the driver of the goods vehicle and hence the claimant is entitled for compensation. To come to the conclusion that the appellant was travelling as a gratuitous passenger in the goods vehicle, the Tribunal has assigned reasons in paragraph 13 of the judgment that "But in Ex.P1 complaint, nowhere it is stated that the petitioner was travelling in the said vehicle with the said goods and that the petitioner had paid charges to the driver of the vehicle for transport of the said goods. In Ex.P1 complaint it is only stated that the petitioner was going to Gulbarga to meet his daughter. The complainant has not whispered anything about the said gods in her complaint." It is further observed that "one Subhash was also travelling in the said vehicle along with the petitioner. Though the said Subhash is cited as witness in the charge sheet as per Ex.P2, the petitioner has not examined him." In the absence of any cogent evidence, the Tribunal has disbelieved statement of the appellant and has observed that the appellant was travelling as a gratuitous passenger in the goods vehicle and not travelling with any goods, as stated in the complaint.
9
7. Considering the every aspect of the case, the Tribunal has awarded just and reasonable compensation. As regards the contention of the counsel for the appellant that the claimant has spent more than Rs.2,00,000/- towards the medical expenditure is concerned, the Tribunal has observed that the petitioner has produced medical for Rs.3,506/- and in view of the evidence of PW1 that petitioner has taken treatment in the Government General Hospital at Gulbarga, Basaveshwar Hospital, Gulbarga and National Institute of Mental Health and Neuroscience at Bangalore the Tribunal has awarded compensation of Rs.10,000/- under the said head. The same is sound and proper. The Tribunal has also awarded Rs.8,000/- towards conveyance considering that the appellant might have travelled to Bangalore for taking treatment in NIMHANS.
8. As regards awarding of compensation under the head "loss of income during the laid off period" is concerned, it is observed that though it is claimed that the appellant has taken treatment in Government General Hospital, Gulbarga and was admitted in NIMHANS Bangalore, no document is produced to 10 show that he was an inpatient in any of these hospitals. But, in the letter addressed by the authorities of Basaveshwar Hospital to the Medical Officer, Government General Hospital Gulbarga, it is stated that petitioner was admitted to the said hospital on 18th September 2006 and was discharged on 19th September 2006. The Tribunal has observed that in the absence of any materials to substantiate that he was inpatient the petitioner is not entitled for any compensation under the said head which cannot be found fault with.
9. As regards the contention of the learned counsel for the appellant that the Tribunal has not considered the report of the Doctor who has stated that the claimant has suffered 80% disability and has taken it at 10% to the whole body is concerned, the Tribunal has gone into detail and observed that if Disability Certificate-Exhibit P13 is read in conjunction with the wound certificate-Exhibit P5 and the CT Scan report-Exhibit 12, the assessment of disability is on the higher side. It is further observed that PW2 has not stated the basis on which he has 11 assessed the disability. The said conclusion of the Tribunal cannot be found fault with.
10. The contention of the learned counsel for the appellant that the Tribunal has committed an error exonerating the insurer and fastening the liability on the owner of the vehicle is concerned, the said aspect has been dealt with by the Tribunal and in the course of judgement, it has observed that "the petitioner has not shown to the Court that he was travelling along with his goods at the time of accident. Admittedly, the vehicle is a Goods vehicle. In his evidence, RW1 has denied the suggestion that as the Insurance Company has collected premium of Rs.150.00 under NFPP, the Company is liable to pay the compensation to the petitioner. As the petitioner has not proved that he was travelling in the said Goods vehicle along with goods, I am of the opinion that the Respondent No.2 is not liable to pay compensation to the petitioner, as the petitioner is a gratuitous passenger who has travelled in a Goods carriage vehicle.". The same is not to be said as a wrong conclusion. The decisions relied upon by the learned counsel for the counsel 12 would be of any use to the appellant. Though the appellant was travelling in the goods vehicle but was not travelling with any goods as is claimed in the complaint and since it has been proved that he was travelling in the said vehicle at the time of accident and has suffered accidental injuries, the Tribunal has awarded reasonable compensation. The same is said to be just and proper and does not call for interference. In that view of the matter, I am of the considered opinion that the appeal fails and the same is liable to be rejected, accordingly it is rejected.
Sd/-
JUDGE lnn