Karnataka High Court
Sri Cheluvaiah vs K P Keerthi on 20 April, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 352 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL NO. 352 OF 2017 (MV-DM)
BETWEEN:
SRI CHELUVAIAH
S/O PANDURANGAIAH,
NOW AGED ABOUT 42 YEARS,
R/AT ADDIHALLI VILLAGE,
GANDASI HOBLI, ARSIKERE TALUK,
HASSAN DISTRICT - 871 222.
...APPELLANT
(BY SRI. KAMALA D K., ADVOCATE)
AND:
1. K P KEERTHI
S/O PUTTEGOWDA,
R/AT KATTEHALLI,
Digitally GAVENAHALLI POST, HASSAN TALUK,
signed by
VEENA HASSAN DISTRICT
KUMARI B
Location:
High Court 2. M/S SRIRAM GEN INS CO LTD
of
Karnataka REP BY ITS BRANCH MANAGER,
E-8, EPIP, RIICO, SITAPUR,
JAIPUR, RAJASTHAN-302022
...RESPONDENTS
(BY SRI. B.C. SHIVANNE GOWDA., ADVOCATE FOR R2; V/O DT.
15.11.2022 NOTICE TO R1 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 02.11.2015 PASSED IN MVC NO.149/2014 ON THE
FILE OF THE SENIOR CIVIL JUDGE & JMFC, ARSIKERE, PARTLY
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MFA No. 352 of 2017
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THROUGH PHYSICAL HEARING/VIDEO
CONFERENCING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal is filed by the claimant under Section 173 (1) of the Motor Vehicles Act, 1988, (hereinafter for brevity referred to as the 'Act') seeking enhancement of the compensation awarded by the learned Senior Civil Judge & JMFC, MACT, Arasikere (hereinafter for brevity referred to as the 'Tribunal'), in its judgment and award dated 02.11.2015 in M.V.C.No.149/2014.
2. The summary of the case of the claimant before the Tribunal was that on 15.03.2011 the driver of motor vehicle 709 Tata Canter bearing registration No. KA- 01/1345 droven the said vehicle in rash and negligent manner with high speed and dashed against the house of the claimant situated at Aadihalli village. Due to the said road traffic accident the wall of the house of the claimant -3- MFA No. 352 of 2017 collapsed and thus claimant sustained a loss of `10 lakhs. The claimant also contended that he is residing in a separate house on rental basis, hence he has sustained loss and has prayed for compensation of a sum of `15 lakhs from respondent Nos.1 and 2, arraigning them as owner and insurer of the alleged offending motor vehicle.
3. In response to the notice it is only respondent no.2 appeared through its counsel and filed its statement of objections wherein, it contended that in order to have a wrongful compensation the claimant has filed false case. It denied the occurrence of the accident as contended by the claimant. It also contended that the driver of the alleged offending motor vehicle did not possess a valid driving licence at the time of the accident.
4. Before the Tribunal, the claimant got himself examined as PW-1 and besides him one witness examined as PW-2 and got marked documents from Exs.P-1 to P.9. Respondents have not led any evidence.
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5. After analysing the evidence and the materials placed before it, the Tribunal awarded the compensation of `60,000/- with interest at the rate of 6% per annum from the date of petition till the date of realisation and held that respondents no.1 and 2 are jointly and severally liable to pay compensation and directed respondent no.2 to deposit the said award amount. It is against the said judgment and award passed by the Tribunal, the claimant has filed this appeal seeking enhancement of compensation.
6. The respondent No.2 herein (insurer) is represented by its counsel. Notice to respondent No.1 is dispensed with vide order dated 15.11.2022.
7. Though this matter is listed for admission, however, at the request of learned counsels for the parties, the matter was taken up for its final disposal. Learned counsel for appellants has placed the copies of pleadings, depositions and exhibits before the Court for its perusal and return.
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8. Heard the arguments of learned counsel for the appellant and learned counsel for respondent No.2 - Insurance Company. Perused the materials placed before this Court, including memorandum of appeal and impugned judgment.
9. The present appeal being the claimant's appeal and respondent No.2 (insurer) having not preferred either cross-objection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute.
10. Further claimant got himself examined as PW-1 and while reiterating the contention taken up by him in the claim petition even in his evidence also, has got produced and marked documents from Exs.P.1 to P.9 which, interalia, includes copies of FIR, scene of offence panchanama, Final report, three photographs, an estimation report and assessment extract. The FIR at -6- MFA No. 352 of 2017 Ex.P.1 which goes to show that with respect to alleged accident, Gandasi Police have registered a case in Crime No.31/2011 against the offending vehicle for the offences punishable under Sections 279, 337, 427 of IPC read with 134 (A) and (B) of M.V. Act. The scene of offence Panchanama at Ex.P.2 shows that in the said accident the house of the claimant got damaged and the backside wall of the house of the claimant got collapsed at some portion and developed cracks in some portion. The police are also shown to have filed final report against the driver of the offending motor vehicle of having committed the alleged offences narrated in the FIR.
These documents coupled with the evidence of PW-1 would go to show that the occurrence of the said road traffic accident on the date, time and in the manner in which it occurred was due to rash and negligent driving of the offending motor vehicle, Tata Canter bearing No. KA-10/1345 and in the said road traffic accident some portions of the house of the claimant got damaged, as such respondents no.1 and 2 being the owner and the insurer of the said motor vehicle are liable -7- MFA No. 352 of 2017 to pay compensation to the claimant. The only point that remains for consideration is quantification of the compensation.
11. The claimant in his claim petition has claimed a compensation of a sum of `15 lakhs towards the damage caused to his house. Even in his evidence as PW 1 also though he has reiterated the same claim. He got three photographs of the damaged house at Exs.P.5 to P.7, marked. An estimation extract was produced and marked at Ex.P.9 and an estimate at Ex.P.4. The said estimate at Ex.P.4 which is shown to have issued by the Assistant Executive Engineer of Panchayat Raj Engineering Sub Division, Arasikere has estimated damage at `60,000/-.
12. In addition to the above, the claimant got examined one Sri. B.G. Gangadhar, the Engineer who has given his evidence on the lines of Ex.P.4 and stated that he has physically visited the spot and assessed the damages and it requires a sum of `60,000/- for its repair. It is analysing this evidence both oral and documentary, -8- MFA No. 352 of 2017 the Tribunal has awarded a sum of `60,000/- towards damages.
13. Learned counsel for the appellant in her argument submitted that the Tribunal has not considered the expenses to be incurred towards painting of the repaired portion of the house and the incidental expenses including rent paid by the petitioner for his temporary relocation to different place.
14. Per contra, learned counsel for respondent no.2 in his argument submitted that the compensation awarded by the Tribunal is reasonable and as per the estimation of the Panchayat Raj Engineering Sub Division.
15. The evidence of PW-2, who is undisputedly an Engineer shows that repair expenses would be at `60,000/-. His evidence is corroborated with the estimation report at Ex.P.4 issued by the Assistant Executive Engineer of Panchayat Raj Engineering Sub Division, Arasikere. The nature of the repair work shown in -9- MFA No. 352 of 2017 the said document is filling up all the cracks developed in the wall and rebuilding of the collapsed portion of the wall with its plastering, however the said estimation does not include the incidental activities including painting of the portion of the house. As such, I am of the view that the impugned award towards the repair of the house deserves to be enhanced.
16. In the absence of any document to show the requirement of the amount for painting and miscellaneous expenses to be incurred by the claimant and in the facts and circumstances of the case, I am of the view that a sum of `20,000/- if ordered, would be a reasonable amount for the said purpose. As such, for the painting and miscellaneous expenses the claimant is entitled for a sum of `20,000/-
17. The claimant, both in his claim petition and in his evidence as PW-1, has stated that after collapse of the portion of the house that too, particularly the damage caused to the house to the bathroom and toilet he has to
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MFA No. 352 of 2017temporarily shift his residence at different place in the same village, for which he has incurred a rental expenses. No doubt there are no documentary proof in that regard, however, considering the portion of the house which has sustained damage in the accident, definitely it was not possible for the claimant to continue to stay in the said house till the damaged portion of the house got repaired. As such, for the said period he must have incurred expenses towards rent payable to the temporary house said to have been taken by him on rental basis. As such, towards the said expenses and in the facts and circumstances of the case, I am of the view that awarding another sum of `20,000/- would be reasonable.
18. Barring the above, the claimant/appellant is not entitled for compensation under any other heads or for enhancement of compensation under any other heads. Thus, in total the appellant/claimant is entitled for the enhanced sum of `40,000/- which is in addition to the
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MFA No. 352 of 2017sum of `60,000/- awarded by the Tribunal under the impugned award.
Accordingly, I proceed to pass the following:
ORDER
(i) The appeal filed by the claimant stands allowed in part;
(ii) The impugned judgment and award
passed by the learned Senior Civil
Judge and Member MACT, Arasikere
dated 02.11.2015 in
M.V.C.No.149/2014 is hereby
modified to the extent that the
compensation awarded at `60,000/- is enhanced by a sum of `40,000/-
(Rupees Forty Thousand only) thus
fixing the total compensation at
`1,00,000/- (Rupees One Lakh only).
(iii) The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing respondent No.2 -Insurance Company to deposit the awarded amount, awarding the interest, its rate, terms
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regarding release of the amount
awarded shall remain unaltered.
(iv) Since the alleged enhancement is not
a huge amount the entire enhanced
amount after its deposit by
respondent no.2 - Insurance
Company be released in favour of the
appellant herein after his due
identification.
(v) However, as per the order dated
29.11.2022 the appellant/claimant is not entitled for interest for the delayed period of 322 days in filing the present appeal.
Draw the modified award accordingly.
Registry to transmit a copy of this judgment to the concerned Tribunal without delay.
Sd/-
JUDGE BVK List No.: 1 Sl No.: 41