Karnataka High Court
Kumar Davalsab S/O Hassansab ... vs United India Insurance Co.Ltd.., on 4 December, 2020
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 04TH day of December 2020
Before
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
MFA No.22859/2012 (MV-I)
C/W MFA No.24794/2012
MFA No.25153/2012
IN MFA NO.22859/2012:
BETWEEN
UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE, GADAG.
TONTADARYA VIDYAPEETH BUILDING,
ROTARY CIRCLE, PB ROAD, GADAG
REPTD., THROUGH ITS DIVISIONAL OFFICE,
UNITED INDIA INSURANCE CO. LTD.,
L.E.A. COMPLEX, OPP: CORPORATION BUILDING,
DHARWAD.
REP. BY ITS DIVISIONAL MANAGER,
DR. P M KULKARNI.
...APPELLANT
(By SRI.SHASHANK S. HEGDE, ADV. FOR
SMT PREETI SHASHANK, ADV.)
AND
1. KUMAR. MANJUNATH YALLAPPA BHAJANTRI,
AGE: MINOR, OCC: STUDENT,
MINOR GUARDIAN MOTHER
HULAGAVVA W/O YALLAPPA BHAJANTRI,
AGE: 38 YEARS, OCC: COOLIE,
R/O: BHAJANTRI ONI, HUILGOL HOSPITAL,
2
GADAG.
2. SMT.PADMAVVA W/O YANKAPPA BANDI
AGE: MAJOR, OCC: AGRIL., and OWNER OF
TRACTOR TRAILER BEARING NO. KA-26/T-6718-6719,
R/O: ASUNDI TALUK GADAG,DIST: GADAG.
....RESPONDENTS
(By SMT. PADMAJA S TADAPATRI, ADV. FOR R1;
R2 IS SERVED BUT UNREPRESENTED)
MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988
AGAINST JUDGEMENT AND AWARD DATED 09.04.2012 PASSED
IN MVC NO.80/2009 ON THE FILE OF THE DISTRICT JUDGE AND
MEMBER, MACT, GADAG, AWARDING COMPENSATION OF
RS.1,09,675/- WITH INTEREST AT THE RATE OF 6% P.A. FROM
THE DATE OF PETITION TILL REALISATION.
IN MFA NO.24794/2012:
BETWEEN
UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE, GADAG.
TONTADARYA VIDYAPEETH BUILDING,
ROTARY CIRCLE, PB ROAD, GADAG,
TQ: GADAG.
REP: THROUGH ITS DIVISIONAL OFFICE,
UNITED INDIA INSURANCE CO. LTD.,
L.E.A. COMPLEX,
OPP: CORPORATION BUILDING, DHARWAD.
REP.BY ITS
DIVISIONAL MANAGER,
DR.P.M.KULKARNI.
...APPELLANT
(By SRI.SHASHANK S. HEGDE, ADV. FOR
SMT PREETI SHASHANK, ADV.)
3
AND
1. KUMAR DAVALSAB S/O HASANSAB DODDAMANI
AGE: 17 YEARS, OCC: STUDENT,
MINOR REP: BY HIS FATHER
HASANSAB MALIKSAB DODDAMANI,
AGE: 45 YEARS,OCC: KSRTC CONDUCTOR,
BOTH ARE R/O DASARA GALLI,
HASAR KERI,GADAG.
2. SMT. PADMAVVA W/O YANKAPPA BANDI
AGE: MAJOR, OCC: AGRIL. AND
OWNER OF TRACTOR TRAILER BEARING
NO. KA-26/T-6718-6719, R/O ASUNDI,
TQ: GADAG. DIST: GADAG.
....RESPONDENTS
(By SRI.DEEPAK C. MAGANUR, ADV. FOR
SRI. CHANDRASHEKHAR P PATIL, ADV. FOR R1)
MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988
AGAINST JUDGEMENT AND AWARD DATED 22.08.2012 PASSED
IN MVC NO.215/2008 ON THE FILE OF THE DISTRICT JUDGE
AND MEMBER, MACT, GADAG, AWARDING COMPENSATION OF
RS.1,02,980/- WITH INTEREST AT THE RATE OF 6% P.A. FROM
THE DATE OF PETITION TILL REALISATION.
IN MFA NO.25153/2012:
BETWEEN
KUMAR DAVALSAB S/O HASSANSAB DODDAMANI,
AGE: 16 YEARS, OCC: STUDENT,
M/G HIS FATHER HASANSAB MALIKSAB DODDAMANI,
AGE: 45 YEARS, OCC: KSRTC CONDUCTOR,
R/O: DASAR GALLI, HASAR KERI, GADAG.
...APPELLANT
4
(By SRI.DEEPAK C. MAGANUR, ADV. FOR
SRI. CHANDRASHEKAR P PATIL, ADV.)
AND
1. UNITED INDIA INSURANCE CO.LTD.,
BRANCH OFFICE, GADAG,
TONTADARYA,VIDYAPEET BUILDING,
ROTARY CIRLCE, P.B. ROAD,GADAG,
TQ and DIST: GADAG.
BY ITS BRANCH MANAGER.
2. SMT.PADMAVVA W/O YANKAPPA BANDI,
AGE: MAJOR, OCC: AGRIL. AND
OWNER OF TRACTOR and TRAILER BEARING
NO.KA26/T-6718 and 6719,
R/O: ASUNDI, TQ and DIST: GADAG.
...RESPONDENTS
(By SRI.SHASHANK S. HEGDE, ADV. FOR
SMT PREETI SHASHANK, ADV. FOR R1;
R2 NOTICE IS DISPENSED WITH)
MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988
AGAINST JUDGEMENT AND AWARD DATED 22.08.2012 PASSED
IN MVC NO.215/2008 ON THE FILE OF THE DISTRICT JUDGE
AND MEMBER, MACT, GADAG, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE MFAs COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The insurer is in appeal in MFA No.22859/2012 challenging the judgment and award dated 09.04.2012 5 passed by the District Judge and MACT, Gadag in MVC No.80/2009 and in appeal in MFA No.24794/2012 challenging the judgment and award dated 22.08.2012 passed by the District Judge and MACT, Gadag in MVC No.215/2008.
The claimant is in appeal MFA No.25153/2012 against the judgment and award dated 22.08.2012 passed by the District Judge and MACT, Gadag in MVC No.215/2008 seeking for enhancement of compensation.
2. The claimants being minors having sustained accidental injuries on 15/09/2007 due to rash and negligent driving by the driver of tractor filed petition under Section 166 of the Motor Vehicles Act, for awarding just and proper compensation.
3. The tribunal in MVC No.80/2009 awarded compensation of Rs.1,09,675/- with interest at the rate of 6% per annum from the date of petition till realization. The tribunal in MVC No.215/2008 awarded total compensation of Rs.1,02,980/- with interest at the rate of 6% per annum from the date of petition till realization. 6
4. Learned counsel for the insurer submits that the claimants who were sitting on the mudguard of the tractor sustained accidental injuries due to rash and negligent driving of the driver of the tractor. He submits that the accident occurred when the tractor was used for bringing Ganesh Idol and not for agricultural purpose for which it was insured. Hence, he submits that there was breach of policy condition, and as such the insurer is not liable to pay compensation awarded by the tribunal.
5. The tractor was insured under the Farmers Package Policy which provided for payment of compensation only when it was used exclusively for agricultural purposes.
6. Learned counsel for the claimants submits that the charge sheet has been filed against the driver of the tractor stating that when the claimants were standing by the side of the road, the driver ran the tractor over the left foot of the claimant. Hence, he submits that the insurer is liable to pay compensation. He also submits that the 7 compensation awarded by the tribunal is on the lower side and the same is to be enhanced.
7. I have considered the submissions made by the learned counsel for the parties and have perused the materials on record.
8. Initially the complaint was lodged by the father of the claimant in MVC No.80/2009 stating that the accident occurred when the claimant was sitting on the mudguard of the tractor. However, in his further statement, he has stated that the accident occurred when the claimant was standing by the side of the road and the driver of the tractor ran the tractor over the left foot of the claimant.
9. The complainant who was examined as PW2 has not denied that he had given the statement before the police stating that on the information given by his son, he has filed the complaint stating that the accident occurred when the claimant was sitting on the mudguard of the tractor. However, the charge sheet has been filed stating that the accident occurred when the claimants were 8 standing by the side of the road. Considering the further statement given by the father of the claimant and the statement of the doctor who was examined as PW2 in his cross examination that it is possible that after fall from the tractor, the injury mentioned in the wound certificate may have occurred. Having regard to the complaint lodged by the father of the claimant and the information given by his own son and also having regard to the evidence of doctor who was examined as PW2, it is held that the accident occurred when the claimant were sitting on the mudguard of the tractor. Since the tractor was used for non agricultural purpose, there was violation of Farmers Package policy. Hence, the insurer is liable to pay compensation to the claimants at the first instance and then recover the same from the owner of the tractor in the same proceedings.
10. In MVC No.80/2009, the tribunal has awarded compensation of Rs.1,09,675/- with interest at the rate of 6% per annum from the date of petition till realization.
The claimants have suffered the following injuries: 9
1. Linear vertical lacerated wound of lower left and foot of left leg measuring 20x5x1cm.
2. Lacerated wound of dorsum of right foot measuring 12x5x1cm.
The treated doctor who was examined as PW2 has opined that the claimant has suffered permanent disability amounting to 35% and 6% respectively. The tribunal has assessed functional disability at 10%. However, the disability assessed by the tribunal is on the lower side, having regard to the nature of injuries sustained by the claimants, it is proper to assess the disability of the claimant at 14% and as the claimant was minor as on the date of accident, the claimant is entitled for compensation of Rs.3,00,000/- towards pain and suffering as held by the Apex Court in the case of Mallikarjun Vs.Divisional Manager, National Insurance Company Limited and another reported in (2014) 14 SCC 396.
11. Even though the claimant in MVC No.80/2009 has not filed any cross objection or independent appeal and since, the tribunal has committed series error of law 10 and procedure while computing the loss of future income by not taking disability of the claimant at 14%, this Court in exercise of power under Order 41 Rule 33 of CPC should grant relief which ought to have been granted by the tribunal as the claim petition arises out of Motor Vehicles Act which is a beneficial legislation.
12. In MVC No.215/2008, the tribunal has awarded total compensation of Rs.1,02,980/- by assessing disability of the claimant at 10%. The doctor examined as PW2 has assessed the disability of 32 to 35% in respect of left lower limb of fore foot and the limb. The tribunal has assessed the disability at 10% instead of 12% which is appropriate. Having regard to the nature of injuries sustained by the claimant and by assessing disability at 12% and in view of the decision of the Apex Court in Mallikarjun case (supra), the claimant is entitled for total compensation of Rs.3,00,000/- as against Rs.1,02,980/- awarded by the tribunal.
Accordingly, the appeals are allowed in part. 11 The judgment and award passed by the tribunal in MVC No.80/2009 is modified. The claimant is entitled to total compensation of Rs.3,00,000/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.1,09,675/- awarded by the tribunal.
The insurer is liable to pay compensation awarded to the claimant at the first instance and then recover the same from the owner of the tractor in the same proceedings.
The judgment and award passed by the tribunal in MVC No.215/2008 is modified. The claimant is entitled to total compensation of Rs.3,00,000/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.1,02,980/- awarded by the tribunal.
The insurer is liable to pay compensation awarded to the claimant at the first instance and then recover the 12 same from the owner of the tractor in the same proceedings.
Amount in deposit to be transmitted to the concerned tribunal for disbursement in accordance with law.
Sd/-
JUDGE KGK