Karnataka High Court
M/S United India Insurance Company ... vs Yashodha on 10 August, 2022
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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MFA No. 5530 of 2021
C/W MFA No. 5546 of 2021
AND MFA CROB No.17 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO.5530 OF 2021
C/W
MISCELLANEOUS FIRST APPEAL NO.5546 OF 2021
AND
M.F.A CROB. NO.17 OF 2022 (MV-I)
IN MISCELLANEOUS FIRST APPEAL NO. 5530 OF 2021
BETWEEN:
M/S UNITED INDIA INSURANCE
COMPANY LIMITED
REGIONAL OFFICE
6TH FLOOR, KRUSHI BHAVAN
HUDSON CIRCLE
NRUPATHUNGA ROAD,
BANGALORE - 560 002
REPRESENTED BY ITS MANAGER ANJALI V TIGADI
...APPELLANT
(BY SRI. L SREEKANTA RAO., ADVOCATE)
Digitally signed
by PANKAJA S
Location: High
Court of AND:
Karnataka
1. YASHODHA
W/O MANJUNATH H T
AGED ABOUT 32 YEARS,
R/AT CHIKKATTUR VILLAGE
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MFA No. 5530 of 2021
C/W MFA No. 5546 of 2021
AND MFA CROB No.17 of 2022
P O KUDUMANGALURU
KUSHALNAGAR
SOMWARPET TALUK
KODAGU - 571 234
2. E JAWAHAR
S/O C ESHWARAN
AGED ABOUT 44 YEARS,
PROPRIETOR C P EXPORTS
POT NO.112 KIADB
INDUSTRIAL AREA KULDURU
KUSHALNAGAR
SOMWARPET TALUK
KODAGU - 571 234
...RESPONDENTS
(BY SMT. K SUMA., ADVOCATE FOR R1;
SRI N.JAGADISH BALIGA, ADVOCATE FOR R2)
THIS MFA FILED U/S 173(1) OF MV ACT PRAYING TO a)
MODIFY THE JUDGMENT AND AWARD PASSED IN MVC
NO.112/2017 DATED 31/03/2021 ON THE FILE OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, MADIKERI AS AGAINST THE
APPELLANT; b) ALLOW THE APPEAL WITH COSTS; c) TO PASS
SUCH OTHER ORDERS/RELIEFS AS DEEMED FIT TO BE
GRANTED IN THE INTEREST OF JUSTICE AND EQUITY.
IN MISCELLANEOUS FIRST APPEAL NO. 5546 OF 2021
BETWEEN:
M/S UNITED INDIA INSURANCE
COMPANY LIMITED
REGIONAL OFFICE
6TH FLOOR, KRUSHI BHAVNA
HUDSON CIRCLE,
NRUPATHUNGA ROAD
BANGALORE - 560 002
REPRESENTED BY ITS
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MFA No. 5530 of 2021
C/W MFA No. 5546 of 2021
AND MFA CROB No.17 of 2022
MANAGER ANJALI V TIGADI
...APPELLANT
(BY SRI. L SREEKANTA RAO.,ADVOCATE)
AND:
1. SHIVANNA
AGED ABOUT 55 YEARS,
R/AT KOODAMANGALORE VILLAGE
P O KUDUMANGALURU
KUSHALNAGAR HOBLI
SOMWARPET TALUK
KODAGU-571234
2. MAHESHA
S/O RAJU
AGED ABOUT 33 YEARS,
R/AT SHANIVARSANTHE
SHANIVARSANTHE HOBLI
SOMWARPET TALUK
KODAGU-571235
3. E JAWAHAR
S/O C ESHWARAN
AGED ABOUT 44 YEARS
PROPRIETOR C P EXPORTS
PLOT NO.12
KIADB
INDUSTRIAL AREA KULDURU
KUSHALNAGAR
SOMWARPET TALUK
KODAGU - 571 234
...RESPONDENTS
(BY SRI.N JAGADISH BALIGA, ADVOCATE FOR R3; R1-SERVED;
NOTICE TO R2 DISPENSED WITH V/O/DTD 20.07.2022)
THIS MFA FILED U/S 173(1) OF MV ACT PRAYING TO a)
MODIFY THE JUDGMENT AND AWARD PASSED IN MVC
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MFA No. 5530 of 2021
C/W MFA No. 5546 of 2021
AND MFA CROB No.17 of 2022
NO.113/2017 DATED 31/03/2021 ON THE FILE OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, MADIKERI AS AGAINST THE
APPELLANT; b) ALLOW THE APPEAL WITH COSTS; c) TO PASS
SUCH OTHER ORDERS/RELIEFS AS DEEMED FIT TO BE
GRANTED IN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A CROB. NO.17 OF 2022
BETWEEN:
YASHODHA
W/O MANJUANTH H T
AGED ABOUT 33 YEARS
R/AT CHIKKATTUR VILLGE
P O KUDUMANGALURU
KUSHALNAGR
SOMWARPET TALUK
KODAGU DISTRICT - 571 236
...CROSS OBJECTOR
(BY SRI. K SUMA, ADVOCATE)
AND:
1. E.JAWAHAR
S/O E ESHWARAN
AGED ABOUT 45 YEARS
PROPERIETR
C P EXPORTS PLOT NO 1102
KIADB INDUSTRIAL AREA
KUDLURU, KUSHALNAGAR
SOMWARPET TALUK
KODAGU DISTRICT - 571 234
2. UNITED INDIA INSURANCE CO LTD
SHREE MAHAGANAPATHY COMPLEX
2ND FLOOR, COLLEGE ROD
MADIKREI TOWN - 571 201
...RESPONDENTS
(BY SRI. N JAGADISH BALIGA., ADVOCATE FOR R1;
SRI. L SREEKANTA RAO, ADVOCATE FOR R2)
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MFA No. 5530 of 2021
C/W MFA No. 5546 of 2021
AND MFA CROB No.17 of 2022
THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22
AND SECTION 173 (1) OF THE MV ACT, 1978 PRAYING TO i)
PASS AN ORDER MODIFYING THE JUDGMENT AND AWARD
PASSED ON 31.03.2021, IN MVC NO.112/2017 ON THE FILE OF
I ADDL. DISTRICT JUDGE & MACT, KODAGU AT MADIKERI AND
GRANT JUST AND FAIR COMPENSATION; ii) TO GRANT SUCH
OTHER RELIEFS, INTEREST @ 12% P.A. AND COSTS UNDER
THE FACTS AND CIRCUMSTANCES OF THE CASE.
THESE MFAs C/W MFA Crob COMING ON FOR ORDERS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The insurer is in appeal in MFA No.5530/2021 and MFA No.5546/2021, challenging the order of the Tribunal by which the Tribunal has awarded a sum of Rs.14,36,800/- in respect of the injuries suffered by Yashodha (claimant in MVC No.112/2017) and Rs.3,90,300/- was granted for the injuries suffered by Shivanna (claimant in MVC No.113/2017).
2. It is the principal contention of the insurer that both the claimants were not the bonafide employees of the owner of the vehicle and that they were gratuitous passenger and therefore, the insurer is not liable to pay the compensation.
-6-MFA No. 5530 of 2021 C/W MFA No. 5546 of 2021 AND MFA CROB No.17 of 2022
3. Learned counsel contends that Shivanna, the claimant in MVC No.113/2017 had clearly stated in his evidence that only he had travelled in lorry to curing works at Hassan for unloading the Coffee bags and in light of this evidence, the Tribunal ought to have held that Yashodha, the claimant in MVC No.112/2017 was not an employee working as the loader or unloader in the lorry. He also contends that there are several contradictions in the evidence of the claimants and the owner, which indicate that the claimants could not be the employees travelling in the truck. Lastly, it is contended that the proviso to Rule 100 of the Karnataka Motor Vehicle Rules, 1989 (hereinafter referred to as 'the Rules' for short) does not enable the claimants to claim that they were entitled to travel as employees of the owner.
4. It was the case of the claimants that after finishing the pooja programme in Arasikatte Temple of Konanur Village, on instructions of respondent No.1-owner, they -7- MFA No. 5530 of 2021 C/W MFA No. 5546 of 2021 AND MFA CROB No.17 of 2022 were travelling in the lorry and at that time, the lorry driver lost control of the lorry and as a result, the lorry toppled and the claimants were injured.
5. The owner entered appearance and contested the proceedings. In his objections, he categorically admitted that the claimants were working under him in his company. He stated that while they were on duty on 01.10.2016, after unloading the bags of coffee at Hassan and returning from Hassan, they visited Arasikatte Temple of Konanur Village of Hassan District and after performing the pooja, while they were returning, the lorry met with an accident. Thus, the fact that the claimants were employees was admitted by the owner of the vehicle.
6. The owner of the vehicle also got himself examined as RW-1 and he has also reiterated the fact that the claimants were his employees. He has also produced certain documents such as attendance registers to indicate that they were the employees.
-8-MFA No. 5530 of 2021 C/W MFA No. 5546 of 2021 AND MFA CROB No.17 of 2022
7. In my view, the best person to talk about the employees was the owner of the lorry. If he admits that the claimants were his employees and they were travelling in the lorry during the course of their employment, it would not really be open for the insurer to contend to the contrary. The arguments of the learned counsel cannot therefore be accepted.
8. The contention that there were certain contradictions in the evidence which would lead to the conclusion that the claimants were not the employees cannot also be accepted. As stated above, when the employer came before the Tribunal and accepted that the claimants were his employees, the contradictions, if any, in the depositions would be of no consequence.
9. The last argument that the proviso to Rule 100 of the Rules permits the bona fide employee of the owner of the vehicle to be carried in the vehicle was permissible but in view of the second proviso which make sub clauses (ii) -9- MFA No. 5530 of 2021 C/W MFA No. 5546 of 2021 AND MFA CROB No.17 of 2022 and (iii) of the first clause inapplicable, the contention that the claimants, even if, they were not the employees would be of no consequence as according to the insurer, the vehicle was plying between one city to another city.
10. As stated above, it was the case of the claimants as well as the owner that the lorry had gone to Hassan to unload the coffee bags at the curing works and it was returning to the owners coffee plantation.
11. In this view of the matter, the contention that the vehicle was used for carrying goods from one city to another city would also not be attracted.
12. I find no reasons to entertain these appeals. Accordingly, the same are dismissed.
13. The Tribunal, on consideration of the evidence adduced before it, has proceeded to award the following sums as compensation in MVC No.112/2017:
- 10 -MFA No. 5530 of 2021 C/W MFA No. 5546 of 2021 AND MFA CROB No.17 of 2022
Sl.No. Particulars Amount in
(Rs.)
1. Loss of earning capacity and 7,48,800
future income
(Rs.6,500/- x 12 x 60% x
16/100)
2. Pain and suffering 2,00,000
3. Medical expenses 3,63,000
4. Loss of amenities 50,000
5. Conveyance, attendant charges 75,000
and food and nourished food
Total 14,36,800
14. Learned counsel for the cross objector contends that the Tribunal has committed an error in determining the monthly income of the claimants at Rs.6,500/- per month.
However, learned counsel for the insurer contends that the claimant herself has stated that she was earning Rs.209/- per day.
15. In that view of the matter, the income determined by the Tribunal cannot be found fault with. Learned counsel also contends that the claimant has suffered paraplegia and she has no control over urine and Doctor has also
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MFA No. 5530 of 2021 C/W MFA No. 5546 of 2021 AND MFA CROB No.17 of 2022 stated that she has suffered 100% disability. It is also borne out from the evidence that she has to have a catheter. Though the Doctor has opined that the claimant has suffered 100% disability, the Tribunal has committed an error in assessing the disability only at 60% and hence the disability should be taken at 100%.
16. Consequently, 40% would have to be added to the monthly income towards future prospects and this would result in monthly income at Rs.9,100/- (6,500/- + 40%). As the claimant was aged about 28 years, the multiplier 17 will have to be adopted. Consequently, the claimant is entitled to Rs.9,100 x 12 x 17 x 100 =18,56,400/- towards 'loss of future income'.
17. The Tribunal has awarded a sum of Rs.2,00,000/- towards 'pain and suffering', Rs.3,63,000/- towards 'medical expenses' and Rs.75,000/- towards 'conveyance, attendant charges, food and nourished food'. In my view,
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MFA No. 5530 of 2021 C/W MFA No. 5546 of 2021 AND MFA CROB No.17 of 2022 the sums awarded are adequate and does not call for interference.
18. The Tribunal has awarded Rs.50,000/- towards 'loss of amenities'. Having regard to the fact that the claimant has suffered 100% disability, this sum would have to be enhanced to Rs.2,00,000/-.
19. Yashodha - the claimant in MVC No.112/2017 would be entitled to the following sums as compensation:
Sl.No. Particulars Amount in
(Rs.)
1. Loss of earning capacity and 18,56,400
future income
(Rs.9,100/- x 12 x 17 x 100%)
2. Pain and suffering 2,00,000
3. Medical expenses 3,63,000
4. Loss of amenities 2,00,000
5. Conveyance, attendant charges 75,000
and food and nourished food
Total 26,94,400
20. The MFA Crob 17/2022 is thus allowed in part. The claimant is entitled to compensation of Rs. 26,94,400/-.
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MFA No. 5530 of 2021 C/W MFA No. 5546 of 2021 AND MFA CROB No.17 of 2022
21. The compensation amount shall carry interest at the rate of 6% per annum from the date of petition till its realization.
22. The Insurance Company is directed to deposit the enhanced compensation within two months from the date of receipt of a copy of this order.
23. The amount in deposit, if any, shall be transferred to the Tribunal for disbursal in terms of the impugned award.
SD/-
JUDGE MDS List No.: 1 Sl No.: 14