Karnataka High Court
Mallappa Onkareppa Chippalkatti vs Raita Seva Co-Operative Society ... on 17 January, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
MFA NO.20942/2013, MFA CROB NO.100204/2015, MFA
NO.22319/2013, MFA CROB NO.903/2013, MFA NO.
22318/2013, MFA CROB NO.905/2013, MFA NO.22317/2013,
MFA CROB NO.904/2013 (MV)
IN MFA NO.20942/2013
BETWEEN :
THE MANAGER
RAITA SEVA CO-OP. SOCIETY LTD.,.
KATKOL, TQ: RAMDURG,
DIST: BELGAUM.
.....APPELLANT
[(BY THE MANAGER, RAITA SEVA CO-OP. SOCIETY LTD.,.
KATKOL, TQ: RAMDURG, DIST: BELGAUM. (ABSENT)]
AND :
1. MAHANTESH MAHALINGAPPA CHINAGUDI
AGE: 39 YEARS, OCC: COOLIE
R/O. GODACHI, TQ: RAMDURG,
DIST: BEGLAUM
2. THE DIVISIONAL MANAGER
THE NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, IST FLOOR, PRABHU BUILDING,
P.B. NO. 175, RAMDEV GALLI,
BELGAUM
.....RESPONDENTS
(By Sri. : H M DHARIGOND, ADV. FOR R1
Sri. SURESH S.GUNDI, ADV. FOR R2)
2
THIS APPEAL IS FILED U/S 173(1) OF THE MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED: 30.10.2012, PASSED IN MVC NO.706/2012 ON THE
FILE OF THE SENIOR CIVIL JUDGE & MEMBER, AMACT,
RAMDURG, AWARDING COMPENSATION OF RS.55,000/- WITH
INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF
PETITION TILL REALISATION OF ENTIRE AMOUNT.
IN MFA CROB NO.100204/2015
IN MFA NO.20942/2013
BETWEEN :
MAHANTESH S/O MAHALINGAPPA CHINAGUDI
AGE: 41 YEARS, OCC: COOLIE,
R/O: GODACHI, TQ: RAMDURG,
DIST: BELAGAVI
.....CROSS OBJECTOR
(By Sri. : H M DHARIGOND, ADV.)
AND :
1. THE MANAGER,
RAITA SEVA CO-OPERATIVE SOCIETY KATKOL
R/O: KATKOL, TQ: RAMDURG,
DIST: BELAGAVI
2. THE DIVISIONAL MANAGER
THE NATIONAL INSUARNCE CO. LTD.,
DIVISION OFFICE, 1ST FLOOR,
PRABHU BUILDING, P B NO.175,
RAMADEV GALLI, BELAGAVI.
.....RESPONDENTS
(By Sri. : SURESH S. GUNDI, ADV. FOR R2
R1-RETIRED)
THIS MFA.CROB IN MFA NO.100204/2015 FILED UNDER
ORDER 41 RULE 22 OF CPC., AGAINST THE JUDGMENT AND
AWARD DATED 30.10.2012 PASSED IN MVC NO.702/2012 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER,
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, RAMDURG,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
3
IN MFA NO.22319/2013
BETWEEN :
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY
LIMITED, RAMDEV GALLI,
BELGAUM (INSURER OF THE TRUCK
BEARING REG.NO.KA-24/3640
CHASSIS NO.MBLHA-10 POLICY NO.
602600-31-11-9300000884 VALID
FROM 11-05-2011 TO 10-05-2012
NOW RPTD.BY DEPUTY MANAGER
NATIONAL INSURANCE COMPANY
LIMITED, 2ND FLOOR, ARIHANT PLAZA,
KUSUGAL ROAD, KESHWAPUR
HUBLI.
.....APPELLANT
(By Sri.: GUNDI SURESHA SHARANAPPA, ADV.)
AND :
1. MALLAPPA ONKAREPPA CHIPPALKATTI
AGE: 23 YEARS, OCC: CLEANER AND COOLIE
NOW NIL, R/O: GODACHI,
TAL: RAMDURG, DIST: BELGAUM
2. RAITA SEVA CO-OPERATIVE SOCIETY KATAKOL
AT POST: KATAKOL, TAL: RAMDURG
DIST: BELGAUM, BY ITS MANAGER
SRI MARUTI S/O LACHCHAPPA
KAMANNAVAR, AGE: 32 YEARS,
OCC: MANAGER, AT POST: KATAKOL
TAL: RAMDURG, DIST: BELGAUM
(OWNER OF THE TRUCK BEARING
REG.NO.KA-24/3640)
.....RESPONDENTS
(By Sri.: H. M. DHARIGOND, ADV. FOR R1
R2- RETIRED)
THIS APPEAL IS FILED U/S 173(1) OF THE MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED::31.10.2012 PASSED IN MVC NO.1206/2012 ON THE
FILE OF SENIOR CIVIL JUDGE & ADDL. MACT, RAMDURG,
AWARDING THE COMPENSATION OF RS.80,000/- WITH
4
INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF
PETITION TILL REALISATION.
IN MFA CROB NO.903/2013
IN MFA NO. 22319/2013
BETWEEN :
MALLAPPA ONKAREPPA CHIPPALKATTI
AGE: 23 YEARS, OCC: CLEANER AND COOLIE,
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM
.....CROSS OBJECTOR
(By Sri.: H M DHARIGOND, ADV.)
AND :
1. RAITA SEVA CO-OPERATIVE SOCIETY,
KATAKOL, AT POST KATAKOL
TQ: RAMDURG DIST.: BELGAUM
R/BY ITS MANAGER,
MARUTHI S/O. LACHCHAPPA KAMANNAVAR
AGE: 32 YEARS, OCC: MANAGER
AT POST: KATAKOL, TALUK RAMDURG,
DIST: BELGAUM
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
RAMDEV GALLI, BELGAUM
.....RESPONDENTS
(By Sri. : S.S.GUNDI, ADV. FOR R1,
R1-RETIRED)
THIS MFA CROB IN MFA NO.22319/2013 FILED
U/ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND
AWARD DATED :31.10.2012, PASSED IN MVC NO. 1206/2012
ON THE FILE OF THE SENIOR CIVIL JDUGE AND ADDITIONAL
MACT AT RAMDURG, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
5
IN MFA NO. 22318/2013
BETWEEN :
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY
LIMITED, RAMDEV GALLI,
BELGAUM (INSURER OF THE TRUCK
BEARING REG.NO.KA-24/3640
CHASSIS NO.MBLHA-10 POLICY NO.
602600-31-11-9300000884 VALID
FROM 11-05-2011 TO 10-05-2012
NOW RPTD.BY DEPUTY MANAGER
NATIONAL INSURANCE COMPANY
LIMITED, 2ND FLOOR, ARIHANT PLAZA,
KUSUGAL ROAD, KESHWAPUR
HUBLI.
.....APPELLANT
(By Sri : GUNDI SURESHA SHARANAPPA, ADV.)
AND
1. SHANTA W/O BASANAGOUDA PATIL
AGE: 26 YEARS,OCC: HOUSEHOLD WORK
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM
2. KUMARI. PAVITRA D/O BASANAGOUDA PATIL
AGE: 09 YEARS, OCC: STUDENT,
SINCE MINOR RPTD.BY HER MOTHER
SHANTA W/O BASANAGOUDA PATIL
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM
3. KUMARI. AISHWARYA D/O BASANAGOUDA PATIL
AGE: 05 YEARS, OCC: STUDENT,
SINCE MINOR RPTD.BY HER MOTHER
SHANTA W/O BASANAGOUDA PATIL
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM
4. KUMARI. DEEPA D/O BASANAGOUDA PATIL
AGE: 02 YEARS, OCC: NIL,
SINCE MINOR RPTD.BY HER MOTHER
6
SHANTA W/O BASANAGOUDA PATIL
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM
5. SMT.RACHAVVA W/O GURUNATHAGOUDA PATIL
AGE: 61 YEARS, OCC: OLD AGE NIL,
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM
6. MARUTI S/O LACHAPPA KAMANNAVAR
AGE: 33 YEARS, OCC: MANAGER,
THE MANAGER,
RAITA SEVA CO-OPERATIVE SOCIETY
KATAKOL, AT POST: KATAKOL,
TAL: RAMDURG, DIST: BELGAUM
(OWNER OF THE TRUCK BEARING
REG.NO.KA-24/3640)
.....RESPONDENTS
(By Sri.: H M DHARIGOND, ADV. FOR R1-R5
R2 TO R4 ARE MINORS R/BY R1,
R6 IS RETIRED.)
THIS APPEAL IS FILED U/S 173(1) OF THE MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED: :31-10-2012 PASSED IN MVC NO.899/2012 ON THE
FILE OF SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT,
RAMDURG, AWARDING THE COMPENSATION OF RS.6,15,000/-
WITH INTEREST AT THE RATE OF 9% P.A., FROM THE DATE OF
PETITION TILL THE DATE OF REALISATION.
IN MFA CROB NO.905/2013
IN MFA NO. 22318/2013
BETWEEN :
1. SHANTA W/O BASANAGOUDA PATIL
AGE: 26 YEARS, OCC: HOUSEHOLD WORK
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM.
2. KUMARI. PAVITRA D/O BASANAGOUDA PATIL
AGE: 09 YEARS, OCC: STUDENT,
SINCE MINOR RPTD.BY HER MOTHER
7
SHANTA W/O BASANAGOUDA PATIL
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM
3. KUMARI. AISHWARYA D/O BASANAGOUDA PATIL
AGE: 05 YEARS, OCC: UKG STUDENT,
SINCE MINOR RPTD.BY HER MOTHER
SHANTA W/O BASANAGOUDA PATIL
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM
4. KUMARI. DEEPA D/O BASANAGOUDA PATIL
AGE: 02 YEARS, OCC: NIL,
SINCE MINOR RPTD.BY HER MOTHER
SHANTA W/O BASANAGOUDA PATIL
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM
5. SMT. RACHAVVA W/O GURUNATHAGOUDA PATIL
AGE: 61 YEARS, OCC: HOUSE HOLD WORK,
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM
.....CROSS OBJECTORS
(By Sri.: H M DHARIGOND, ADV.)
AND :
1. MARUTHI S/O. LACHAPPA KAMANNAVAR
AGE: 32 YEARS, OCC: MANAGER
RAITA SEVA CO-OPERATIVE SOCIETY
KATAKOL, AT & POST KATAKOL
TQ: RAMDURG, DIST: BELGAUM
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
RAMADEV GALLI, BELGAUM
.....RESPONDENTS
(By Sri.: S.S. GUNDI, ADV. FOR R2, R1-RETIRED)
MFA CROB. IN MFA NO.22318/2013 FILED U/ORDER 41
RULE 22 OF C.P.C., AGAINST THE JUDGMENT AND AWARD
DTD: 31.10.2012 PASSED IN MVC NO.899/2012 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND ADDL. MACT AT RAMDURG,
8
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 22317/2013
BETWEEN :
THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY
LIMITED, RAMDEV GALLI,
BELGAUM (INSURER OF THE TRUCK
BEARING REG.NO.KA-24/3640
CHASSIS NO.MBLHA-10 POLICY NO.
602600-31-11-9300000884 VALID
FROM 11-05-2011 TO 10-05-2012
NOW RPTD.BY DEPUTY MANAGER
NATIONAL INSURANCE COMPANY
LIMITED, 2ND FLOOR, ARIHANT PLAZA,
KUSUGAL ROAD, KESHWAPUR
HUBLI
.....APPELLANT
(By Sri.: S.S.GUNDI, ADV.)
AND :
1. KALLANAGOUDA RUDRAGOUDA PATIL
AGE: 27 YEARS, OCC: AGRICULTURE AND COOLIE
NOW NIL, R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM.
2. RAITA SEVA CO-OPERATIVE SOCIETY
KATAKOL, AT POST: KATAKOL,
TAL: RAMDURG, DIST: BELGAUM,
BY ITS MANAGER, SRI MARUTI
S/O LACHCHAPPA KAMANNAVAR,
AGE: 32 YEARS, OCC: MANAGER,
AT POST: KATAKOL, TAL: RAMDURG,
DIST: BELGAUM
(OWNER OF THE TRUCK BEARING
REG.NO.KA-24/3640)
.....RESPONDENTS
(By Sri.: H M DHARIGOND, ADV. FOR R1, R2-RETIRED)
THIS APPEAL IS FILED U/S 173(1) OF THE MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD
9
DATED: 31-10-2012 PASSED IN MVC NO.898/2012 ON THE FILE
OF SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT,
RAMDURG, AWARDING THE COMPENSATION OF RS.68,000/-
WITH INTEREST AT THE RATE OF 9% P.A., FROM THE DATE OF
PETITION TILL REALISATION.
IN MFA CROB NO.904/2013
IN MFA NO. 22317/2013
BETWEEN :
KALLANAGOUDA RUDRAGOUDA PATIL
AGE: 27 YEARS, OCC: AGRICULTURE AND COOLIE
R/O: GODACHI, TAL: RAMDURG,
DIST: BELGAUM
.....CROSS OBJECTOR
(By Sri.: H M DHARIGOND, ADV.)
AND :
1. RAITA SEVA CO-OPERATIVE SOCIETY
KATAKOL, AT POST KATAKOL TALUK RAMDURG
DIST: BELGAUM R/BY ITS MANAGER
MARUTI S/O. LACHCHAPPA KAMANNAVAR
AGE: 32 YEARS, OCC: MANAGER
AT POST: KATAKOL, TQ: RAMDURG
DIST: BELGAUM
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LIMITED,
RAMDEV GALLI, BELGAUM
.....RESPONDENTS
(By Sri. : S.S. GUNDI, ADV. FOR R2, R1-RETIRED)
MFA CROB. IN MFA NO.22317/2013 FILED U/ORDER 41
RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD
DATED: 31.10.2012 PASSED IN MVC NO.898/2012 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT AT
RADURG, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
10
THESE APPEALS AND CROSS OBJECTIONS ARE COMING
ON FOR ORDERS THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
MFA No.20942/2013 has been preferred by the appellant-owner and MFA Nos.22319/2013, 22318/2013 and 22317/2013 have been preferred by the appellant- Insurer and MFA Crob Nos.100204/2015, 903/2013, 905/2013 and 904/2013 have been preferred by the appellants-claimants, assailing the Judgment and award passed by the Senior Civil Judge and Addl. MACT, Ramdurg in MVC Nos. 706/2012, 1206/2012, 899/2012, 898/2012 dated 30.10.2012 and 31.10.2012.
2. Heard the learned counsel for the appellants - cross objectors and the respondents. Though the cases have been listed for orders, with the consent of learned counsels appearing for the parties, the same are taken up for final disposal.
3. The brief facts leading to the case are that, on 24.11.2011, the petitioners were traveling in the Truck bearing registration No.KA-24-3640 as Hamals and cleaner. 11 The said Truck was driven by its driver rashly and negligently, when he was proceeding at Ramadurg-Soundatti road and when the said Truck came near Mullur ghat road, he lost control over the said Truck and the same was turtuled on the roadside ditch. As a result of the same, persons who were traveling as cleaner and hamals sustained the injuries. Immediately, they were shifted to Ramadurg Government Hospital and there they took treatment and subsequently they were also shifted to Sukh-Shanti Polyclininc Hospital, Gokak and other hospitals. For having suffered the injuries, they filed the claim petitions.
4. In pursuance of the notice, the respondent No.1 appeared and filed objections by denying the contents of the petition, he further contended by admitting the fact that the petitioners were traveling as hamals and cleaner and the said Truck is duly insured with respondent No.2 and also was in currency and the driver was holding valid and effective driving license and as such, he is liable to pay the compensation. On these grounds, he prayed for dismissal of the said petition.
12
5. The respondent No.2-Insurer filed his objections by denying the contents of the petition, he further contended that the driver had no valid and effective driving license and as such, he is not liable to pay any compensation. He further contended that the petitioners were not working as hamals and cleaner and they were traveling in the said Truck as an unauthorized passengers by sitting on the ration bags. He further contended that there is a violation of policy conditions as such, he is not liable to pay any compensation.
6. On the basis of above pleadings, the Tribunal framed the following issues :
IN MVC NO.706/2012
1. Whether petitioner proves that, on 24.11.2011 at about 10.30 a.m. accident was took place on Ramdurg-Saundatti road near Mullur ghat, only due to rash and negligent driving of Truck bearing Reg.No.KA-24/3640 by its driver and consequently petitioner had sustained injuries ?
2. Whether 2nd respondent proves that at the time of accident driver of the Truck bearing Reg.No.KA-24/3640 did not possessed valid and effective driving licence ?13
3. Whether petitioner is entitled for compensation if so how much and from whom ?
4. What order or award ?IN MVC No.1206/2012
1. Whether petitioner proves that, on 24.11.2011 at about 10.30 a.m. accident was took place on Ramdurg-Saundatti road near Mullur ghat, only due to rash and negligent driving of Truck bearing Reg.No.KA-24/3640 by its driver and consequently petitioner had sustained injuries ?
2. Whether 2nd respondent proves that at the time of accident driver of the Truck bearing Reg.No.KA-24/3640 did not possessed valid and effective driving licence ?
3. Whether petitioner is entitled for compensation if so how much and from whom ?
4. What order or award ?MVC No.899/2012
1. Whether petitioners proves that, on 24.11.2011 at about 10.30 a.m. accident was took place on Ramdurg-Saundatti road near Mullur ghat, only due to rash and negligent driving of Truck bearing Reg.No.KA-24/3640 by its driver?
2. Whether 2nd respondent proves that at the time of accident driver of the Truck bearing 14 Reg.No.KA-24/3640 did not possessed valid and effective driving licence ?
3. Whether petitioners are entitled for compensation? If so, how much and from whom ?
4. What order or award ?MVC No.898/2012
1. Whether petitioner proves that, on 24.11.2011 at about 10.30 a.m. accident was took place on Ramdurg-Saundatti road near Mullur ghat, only due to rash and negligent driving of Truck bearing Reg.No.KA-24/3640 by its driver and consequently petitioner had sustained injuries ?
2. Whether 2nd respondent proves that at the time of accident driver of the Truck bearing Reg.No.KA-24/3640 did not possessed valid and effective driving licence ?
3. Whether petitioner is entitled for compensation if so how much and from whom ?
4. What order or award ?
After examining the witnesses the Tribunal has passed the impugned orders. Assailing the same, the owner, the Insurer and the claimants are before this Court. 15
7. The main contention raised by the learned counsel appearing on behalf of the appellant-Insurer are that as on the date of accident, the petitioners were traveling in the goods vehicle as an unauthorized passengers and they were not working as hamals or cleaner. When they are unauthorized passengers in the goods vehicle, then under such circumstances, the Tribunal ought to have fixed the liability on respondent No.1 by holding that there is a violation of the policy conditions. He further contended that though one of the petitioner has contended that he was working as a cleaner, but actually he was traveling in the body of the said goods vehicle, as such, the question of considering him as cleaner does not arise at all. On these grounds, he prayed for allowing the appeal by setting aside the impugned judgment and award and fastening the liability on the respondent No.1-owner.
8. Per contra, the learned counsel appearing on behalf of the appellants-claimants vehemently argued by contending that though the petitioners have sustained grievous injuries and the Doctor has specifically assessed 16 the disability, the Tribunal by taking the disability and the income on the lower side, has awarded the compensation very meagerly and on the lower side. On these grounds, he prayed for allowing the appeal by enhancing the compensation.
9. The learned counsel appearing on behalf of appellant-respondent No.1 -owner of the vehicle has filed a memo of retirement by serving the notice to the respondent No.1-the owner. Inspite of notice, he has not put in his appearance nor he has made any arrangement to appear on his behalf and as such, he has been kept as not represented. For having heard the said argument the accident in question is not dispute so also the involvement of the offending vehicle insured with respondent-Insurer.
10. As could be seen from the judgment and award in MVC No.706/2012 therein, the claimant has suffered the following injuries. 1) Multiple abrasions over right hand, (2) Multiple abrasions on the right knee, (3) Multiple abrasions on the left knee (tear of patella), (4) Abrasions on the right knee big toe, (%) Abrasion on the left shoulder, (6) Cut 17 lacerated wound on the chin and he has also got produced the wound certificate as per Ex.P6 and has also got examined the Dr. Basavaraj Hanamantappa Dodamani as PW2. In his evidence, he has deposed that on clinical examination, the movements of left knee joint with right knee joint and other injuries they are restricting the movement of the petitioner and on the basis of that he has assessed the disability to the extent of 20%. The Tribunal by considering the fact that the disability sustained by the claimant to his left lower limb hardly to an extent of 10% and after taking 1/3rd of it i.e.3%, and by taking the notional income @ Rs.3,000/- has awarded the compensation of Rs.55,000/- under various heads. Though under normal circumstances, the compensation awarded by the Tribunal appears to be justifiable, but, while taking the notional income, the Tribunal ought to have consider the year of accident and wages prevailing during that particular period. Admittedly, the accident is of the year 2011 and at that time, the notional income of Rs.6,000/- is the yardstick, which even used to be adopted for the purpose of settlement of 18 cases before the Lok Adalath. If that were to be adopted, then under such circumstances, by keeping in view the disability taken by the Tribunal the appellant-claimant is entitled to an amount of Rs.34,560/-
(Rs.6,000x12x3/100x16) towards loss of future income, an amount of Rs.12,000/- towards loss of income during laid off period, an amount of Rs.20,000/- towards pain and suffering, an amount of Rs.20,000/- towards loss of amenities and discomfort, an amount of Rs.10000/- under the head of attendant charges, diet, food and nourishment and other incidental charges, an amount of Rs.9,000/- awarded towards the medical expenses. In that light, the appellant-claimant is entitled to a total compensation of Rs.1,05,560/- after deducting the compensation awarded by the Tribunal to the extent of Rs.55,000/-, the appellant- claimant is entitled to an additional compensation of Rs.50,560/- with interest.
11. As could be seen from the judgment and award passed in MVC No.1206/2012, therein, the claimant has suffered the following injuries :
19
1. contusion over his lumbar spine(pain and tenderness in the lower lumbar region).
2. Hemeactnrosis (R) knee, medical meniscal tear (R ) knee.
He has got produced the wound certificate as per Ex.P6 and has also produced the disability certificate as per Ex.P16 and got examined PW2 the Doctor. In his evidence, he has assessed the disability to the extent of 12% to 15%, but the Tribunal by taking 5% disability and taking the notional income @ 3,000/- per month has awarded the compensation of Rs.80,000/-. Though under normal circumstances, the compensation awarded appears to be justifiable, but, while taking the notional income, the Tribunal ought to have kept in view the year of accident and the wages prevailing during the said period. Admittedly, the accident is of the year 2011 and at that time, the notional income of Rs.6,000/- is the yardstick, even used to be adopted before the Lok Adalath. If that were to be taken into consideration, then under circumstances, the appellant- claimant is entitled to an amount of Rs.61,200/- (Rs.6000/- 20 x 12 x 17x5/100=) towards for loss of future income, an amount of Rs.9,500/- towards, medical expenses, an amount of Rs.12,000/- towards loss of income during laid- off period, an amount of Rs.10,000/- towards attendant charges, diet, food and nourishment and other incidental charges, an amount of Rs.20,000/- towards has awarded for pain and suffering and an amount of Rs.20,000/- towards under the head of loss of amenities. In all, the appellant- claimant is entitled to a total compensation of Rs.1,32,700/-, after deducting Rs.80,000/- which has been awarded by the Tribunal appellant-claimant is entitled to an additional compensation of Rs.52,700/- with interest. MFA CROB No.905/2013
12. As could be seen from the judgment and award passed in MVC No.899/2012 therein, the petitioners have contended that the deceased Basanagouda was doing agricultural work and hamali work and was earning Rs.15,000/- per month. In order to establish the said fact, they have produced RTC extract as per Ex.P8 and P9 and in order to substantiate the said fact, no other documents have 21 been produced. In the absence of such documents, the Tribunal by taking the notional income @ Rs.4,000 and after deducting 1/5th towards the personal expenses and after applying the multiplier of 15 has awarded an amount of Rs.5,76,000/- towards loss of dependency.
13. It is the contention of the learned counsel for the Insurer that the dependants are Nos.1, 2 and 4 and another and as such, the Tribunal ought to have deducted ¼th of the income instead of 1/5th. Though under normal circumstances, the compensation awarded appears to be justifiable, but while taking the notional income the Tribunal ought to have kept in view the year of accident and the wages prevailing during that particular period. Admittedly, the accident is of the year 2011, at that time, the notional income Rs.6,000/- is the yardstick, which even used to be adopted in the settlement of cases before the Lok Adalath. If that income is taken at Rs.6,000/- and after deducting 1/4th of the salary and after applying multiplier of 15, then the appellants-claimants are entitled to a compensation of 22 Rs.8,10,000/- (Rs.4500/- x12x15=8,10,000/-) towards loss of dependency.
14. As could be seen from the judgment and award, the compensation awarded under the conventional head is also appears to be on the lower side. In that light, in view of the decision of Hon'ble Apex Court in the case of National Insurance Company V/s. Pranaya Sethi and others reported in 2017 SC -5157, the appellants-claimants are entitled to an amount of Rs.70,000/- under the conventional head. In that light, the appellants-claimants are entitled to a total compensation of Rs.8,80,000/-, since already the Tribunal awarded an amount of Rs.6,15,000/- after deducting the same, the appellants-claimants are entitled to an additional compensation of Rs.2,65,000/- with interest.
MVC No.898/2012
15. As could be seen from the judgment and award passed in MVC No.898/2012 therein, the appellant-claimant has sustained the following injuries 23 i. Contusion with abrasion on right leg calf ii. Contusion on dorsum of the right foot, iii. Abrasion on right ileum iv. Abrasion on frontal left knee and v. Partial tear of ACL right knee with hemeathrosis.
He has got produced Ex.P6-wound certificate and also produced the disability certificate at Ex.P15 and has also got examined PW2 the Doctor. Doctor, who came to be examined, has assessed the disability to the extent of 10% to 12%, but the Tribunal by taking the disability at 4% has awarded the compensation of Rs.6,8,000/- under various heads. Though under normal circumstances, the compensation awarded appears to be justifiable. But, at the time of taking the notional income, the Tribunal ought to have kept in view the year of accident and the wages prevailing during the said period. In that light, admittedly the accident is of the year 2011 and at that time, the notional income at Rs.6,000/- is the yardstick, which even used to be adopted in the settlement of cases before Lok 24 Adalath. If that income is taken and the compensation is re- assessed then under circumstances, the reassessed compensation is mentioned as below :
1 Loss of future income 48,960/- 2 Attendant charges, diet, incidental 10,000/-
charges 3 Loss of pain and suffering 20,000/- 4 Loss of amenities and discomfort 20,000/- 5 Medical expenses 12,000/-
TOTAL 1,10,960/-
16. In all, the appellant-claimant is entitled to a total compensation of Rs.1,10,960/- after deducting the amount awarded by the Tribunal to the extent of Rs.68,000/-, the appellant-claimant is entitled to an additional compensation of Rs. 42,960/- with interest @ 9% as awarded by the tribunal.
17. The main contention taken up by the learned counsel for the appellant-Insurer is that the petitioners were traveling in a goods vehicle as an unauthorized passengers and as such, there is breach of policy conditions and he is 25 not liable to pay any compensation. In order to substantiate the said contention, he has got examined RW1 the Officer of the Insurance company-Mangesh Neelakant Gaitonde as RW1. The RW1 in his evidence, he has specifically contended that the claimants were traveling as an unauthorized passenger vehicle, but in order to substantiate the said fact, he has not got produced any material.
18. On the contrary, the respondent No.1, who has also put in his appearance, has specifically filed his objections by contending that the said petitioners were working as a hamals and one petitioner was working as a cleaner. When the Insurer has taken-up the contention under Section 149 (2) of the Motor Vehicles Act, heavy burden lies upon him to substantiate the said fact by proving by calling a qualified and effective evidence and by producing the documents. Though the documents have been produced at Ex.R1, it is only the policy, which has been produced, no other documents have been produced in this behalf. Even as could be seen from the other records, the 26 documents have been produced by the respondent Insurer is also not going to substantiate the said fact.
19. Be that as it may, even as could be seen from the policy at Ex.R1, it is covering three employees, who are considered to be the hamal, one cleaner and the driver. Then under such circumstances, even as per Sections 147 and 149 of M.V. Act, the Insurer is liable to pay the compensation in respect of three hamals and one driver and the cleaner.
20. Keeping in view the above said facts and circumstances, the contention taken up by the learned counsel for the Insurer does not sustainable in law and the same is liable to be rejected. Accordingly, the same is rejected.
21. In so far as the respondent No.1-owner has contended that the premium has been paid and covering the third party risk, an amount of Rs.100/- has been collected to cover the risk of the driver and Rs.75/- has been collected to cover the risk of three employees. So in that light, he 27 prays the hamal and the truck is also covered under the said policy. But, as could be seen from the judgment and award, at para No.31 therein, the Tribunal has elaborately discussed and has observed that respondent No.1 has paid the premium to the second respondent to cover the risk of three employees and the Tribunal has awarded the compensation in respect of three claimants by fastening the liability on the respondent-Insurer and the fourth hamal is not covered with the risk. In that light, the liability has been fixed on the appellant-owner of the vehicle and that too the said amount is on the lower side.
22. Keeping in view, the law laid down by the Hon'ble Apex Court if the said policy is covering the only three hamals, one driver and cleaner then under such circumstances, the cleaner-4th hamal is not covered the risk. As such, the Tribunal rightly fixed the liability on the appellant-owner and in this behalf, there is no merits in the case and the same is liable to be dismissed. 28
23. It is also contended by the learned counsel for the appellant-Insurer that the interest awarded is on the higher side.
24. As could be seen from the judgment and award, the Tribunal has awarded the interest @ 9% that appears to be without any reasons are justifiable ground. In that light, in so far as the enhanced compensation is concerned, the interest is fixed at 6% p.a. MFA No.20942/2013 is dismissed as devoid of merits and MFA Nos.22319/2013, 22318/2013 and 22317/2013 are also dismissed as devoid of merits and MFA Crob Nos.100204/2015, 903/2013, 905/2013 and 904/2013 are allowed in part and the judgment and award passed in MVC Nos. 706/2012, 1206/2012, 899/2012 and 898/2012 have been modified as indicated above.
25. The respondent -Insurer is directed to pay the compensation awarded by the Tribunal and additional compensation awarded by this Court along with up to date interest within six weeks from the date of receipt of a copy of this order except in MFA No.20942/2013.
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The amount in deposit, shall be transmitted to the jurisdictional Tribunal.
The registry is directed to draw the award accordingly and send back the records.
SD/-
JUDGE MNS/-