Karnataka High Court
Basavaraja P.B. S/O. Late ... vs G Veeranna S/O. Veereshappa on 8 March, 2018
Bench: A.S.Bopanna, S G Pandit
:1:
IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 8 T H DAY OF MARCH 2018
PRESENT
THE HON'BLE MR.JUSTICE A.S .BOPANNA
AND
THE HON'BLE MR.JUSTICE S.G . PANDIT
MFA NO.21210/2013 (MV)
C/W.
MFA NO.23300/2013 (MV)
MFA NO.21579/2013 (MV)
MFA NO.21580/2013 (MV)
MFA NO.100303/2015 (MV)
IN MFA NO.21210/2013
BETWEEN:
BASAVARAJA P.B.
S/O. LATE BASAVALINGAPPA
AGE: 23 YEARS , OCC: HOTEL LABOUR
R/O. KENCHAMALLANAHALLI VILLAGE,
TQ:KUDLIGI, DIS T: BELLARY
... APPELLANT.
(BY SRI T.BASAVANA GOUD, ADVOCATE.)
AND:
1. G VEERANNA S/O . VEERESHAPPA
AGE: 34 YEARS , OCC: DRIVER OF TH E
TRACTOR BEARING REGIS TRATION
NO.KA 35/2898 AND TRALLY NO. KA 2899,
:2:
R/O. CHAPPARADAHALLI VILLGE,
TQ: KUDLIGI, DIS T: BELLARY
2. G. VEERESHAPPA
S/O. LATE DODDA VEERAPPA
AGE: 61 YEARS , OCC: OWNER OF TH E
TRACTOR BEARING REG. NO. KA 35/2898
AND TRALLY NO. KA 2899,
R/O. CHAPPARADAHALLI VILLAGE,
TQ: KUDLIGI, DIS T: BELLARY
3. THE MANAGER
NATIONAL INSURANCE CO .LTD .,
BRANCH OFFICER. DAVANAGERE
4. ANJINAPPA S/O . LATE TINDAPPA
AGE: 36 YEARS , DRIVER CUM OWNER OF
THE AU TO BEARING REG. NO. KA 35/461,
R/O. GANGAMMANAHALLI VILLAGE,
TQ: KUDLIGI, DIS T: BELLARY
5. THE DIVISIONAL M ANAGER
M/S. BAJAJ ALLIA NZ
GENERAL INSURNCE CO . DIVIS IONAL
OFFICE, OPP: CORPORATION, HUBLI
... RESPONDENTS
(BY SMT. SHARMILA PATIL, ADVOCATE, FOR R.3;
SRI RAVINDRA R. MANE, ADVOCA TE, FOR R.5,
R.1, R.2 AND R.4 - NO TICE DISPENS ED WITH .)
THIS MISCELLANEOUS FIRS T APPEAL IS F ILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 19.10.2012 PASSED IN MVC.NO.166/2009, ON
THE F ILE OF THE MACT-VI, KUDLIGI, AND TO
ENHANCE THE COMPENSATION BY MODIFYING THE
IMPUGNED JUDGMENT AND AWARD , ETC.,.
:3:
IN MFA NO.23300/2013
BETWEEN:
1. ANASUYAMMA W/O LA TE BASAPPA,
AGED ABOUT: 38 YEARS,
OCC: COOLIE AND COOKER,
R/O: CHIRIBI VILLAGE,
TQ: KUDLIGI, DIS T: BELLARY.
2. GOWRAMMA D/O LATE BASAPPA,
AGE: 15 YEARS ,
(MINOR REPTD., BY PETITIONER
NO. 1 AS MO THER )
R/O: CHIRIBI VILLAGE,
TQ: KUDLIGI, DIS T: BELLARY.
... APPELLANTS.
(BY SRI T.BASAVANA GOUD, ADVOCATE.)
AND:
1. G.VEERANNA S/O G VEERESHAPPA,
AGE: 34 YEARS , OCC: DRIVER OF
THE TRACTOR BEARING
REGIS TRA TION NO . KA-35/T-2898
AND TRALLY NO. KA-35/T-2899,
R/O: CHAPPARADAHALLI VILLAGE,
TQ: KUDLIGI, DIS T: BELLARY.
2. G VEERESHAPPA S /O LA TE DODDA VEERAPPA,
AGE: 61 YEARS , OCC: OWNER OF
THE TRACTOR BEARING
REGIS TRA TION NO . KA-35/T-2898
AND TRALLY NO. KA-35/T-2899,
R/O: CHAPPARADAHALLI VILLAGE,
TQ: KUDLIGI, DIS T: BELLARY.
3. THE MANAGER,
NATIONAL INSURANCE CO ., LTD .,
BRANCH OFFICE, DAVANAGERE.
:4:
4. ANJINAPPA S/O LA TE TH INDAPPA,
AGE: 36 YEARS , OCC: DRIVER CUM
OWNER OF THE AUTO BEARING
REGIS TRA TION NO . KA-35/461,
R/O: GANGAMMANAHALLI VILLAGE,
TQ: KUDLIGI, DIS T: BELLARY.
5. THE DIVISIONAL M ANAGER,
M/S. BAJAJ ALLIA NZ GENERAL
INSURANCE COMPANY,
DIVISIONAL OFFICE,
OPP. CORPORA TIO N, HUBLI.
... RESPONDENTS .
(BY SRI UMESH K. UTTANGI, ADVOCA TE, FOR R.1 AND
R.2;
SMT. PREETI SHASHANK, ADVOCA TE, FOR R.3;
SRI S .S.BETURMA TH, ADVOCA TE, F OR R.4;
SRI RAVINDRA R. MANE, ADVOCA TE, FOR R.5.)
THIS MISCELLANEOUS FIRS T APPEAL IS F ILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 19.10.2012 PASSED IN MVC.NO.186/2010, ON
THE F ILE OF THE MACT-VI, KUDLIGI, AND TO
ENHANCE THE COMPENSATION BY MODIFYING THE
IMPUGNED JUDGMENT AND AWARD , ETC.,.
IN MFA NO.21579/2013
BETWEEN:
THE MANAGER NA TIONAL INSURACNE CO.LTD.
BRANCH OFFICE A T DAVANGERE,
REPRESENTED BY ITS DULY CONSITITU TED
ATTORNEY HAVING ITS OFF ICE A T
REGIONGAL OFFICE, 2 N D FLOOR,
:5:
ARIHANT PLAZA, KUSUGAL ROAD,
KESHWAPUR, HUBLI.
... APPELLANT.
(BY SMT. PREETI S HASHANK, ADVOCATE.)
AND:
1. ANASUYAMMA W/O LA TE BASAPPA
AGE: 38 YEARS , OCC: COOLIE & CO OKER,
R/O: CHIRIBI VILLAGE, KUDLIGI TA LUK
DIST: BELLARY.
2. GOWRAMMA D/O LATE BASAPPA
AGE: ABOU T 15 Y EARS,
MINOR REPRESENTED BY RESPOND ENT NO .1,
AS GUARDIAN VAND NEXT FRIEND ,
R/O: CHIRIBI VILLAGE, KUDILIGI TA LUK,
BELLARY DIS TRICT.
3. G VEERANNA S/O P G VEERESHAPPA
AGE: ABOU T 34 Y EARS,
DRIVER OF THE TRACTOR BERING
REGN.NO .KA-35/T/2898 AND TROLLEY
NO.KA-35/T- 2899 ,
R/O: CHAPPARADAHALLI VILLAGE,
KUDLIGI TA LUK, BELLARY DIS TRICT.
4. G VEERASHAPPA S/O LA TE DODDA VEERAPPA
AGE: ABOU T 61 Y EARS,
OWNER OF THE TRACTOR BERING,
REGN.NO .KA-35/T/2898 AND TROLLEY
NO.KA-35/T- 2899 ,
R/O: CHAPPARADAHALLI VILLAGE,
KUDLIGI TA LUK, BELLARY DIS TRICT.
5. ANJINAPPA S/O LA TE TH INDAPPA
AGED: ABOUT 36 YEARS,
DRIVER CUM OWNER OF AUTO
BEARING REGN.NO.KA-35/A-461,
R/O: GANGAMMANAHALLI VILLAGE,
KUDLIGI TA LUK, BELLARY DIS TRICT.
:6:
6. THE DIVISIONAL M ANAGER
M/S BAJAJ ALLIA NZ GENERAL INSU RANCE CO.,
DIVISIONAL OFFICE, OPP.CO RPORA TION,
HUBLI.580020
... RESPONDENTS
(BY SRI T BASAVANAGOUD, ADVOCATE, FOR R.1;
R.2 - MINOR REP. BY R.1;
SRI M .B.JOGARIS HETER, ADVOCA TE, FOR R.3 AND
R.4;
SRI PRASHANT S. KADADEVAR, ADVOCATE, FOR R.5;
SRI R.R. MANE, A DVOCATE, FOR R.6.)
THIS MISCELLANEOUS FIRS T APPEAL IS F ILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES
ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 19.10.2012, PASSED IN M VC
NO.186/2010, ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MACT-VI, KUDLIGI, ETC.,.
IN MFA NO.21580/2013
BETWEEN:
THE MANAGER NA TIONAL INSURACNE CO.LTD.
BRANCH OFFICE A T DAVANGERE,
REP. BY ITS DULY CONSITITU TED A TTORNEY HAVING
ITS OFFICE AT REGIONGAL OFFICE,
2 N D F LOOR, ARIHA NT PLAZA, KUSUGAL ROAD,
KESHWAPUR, HUBLI.
... APPELLANT.
(BY SMT. PREETI S HASHANK, ADVOCATE.)
:7:
AND:
1. KUBHERAPPA @ VANTI KUBHERAPPA
S/O MUGAPPA,
AGE: 48 YEARS , OCC: AGRICULTURE,
R/O: CHIRIBI VILLAGE, KUDLIGI TA LUK,
BELLARY DIS T: 583135
2. G VEERANNA S/O P G VEERESHAPPA
AGE: ABOU T 34 Y EARS,
DRIVER OF THE TRACTOR BERING,
REGN.NO .KA-35/T/2898 AND TROLLEY
NO.KA-35/T- 2899 ,
R/O: CHAPPARADAHALLI VILLAGE,
KUDLIGI TA LUK, BELLARY DIS TRICT.
3. G VEERASHAPPA S/O LA TE DODDA VEERAPPA
AGE: ABOU T 61 Y EARS,
OWNER OF THE TRACTOR BERING,
REGN.NO .KA-35/T/2898 AND TROLLEY
NO.KA-35/T- 2899 ,
R/O: CHAPPARADAHALLI VILLAGE,
KUDLIGI TA LUK, BELLARY DIS TRICT.
4. ANJINAPPA S/O LA TE TH INDAPPA
AGED: ABOUT 36 YEARS,
DRIVER CUM OWNER OF AUTO BEARING
REGN.NO .KA-35/A -461,
R/O: GANGAMMANAHALLI VILLAGE,
KUDLIGI TA LUK, BELLARY DIS TRICT.
5. THE DIVISIONAL M ANAGER
M/S BAJAJ ALLIA NZ GENERAL INSU RANCE CO.,
DIVISIONAL OFFICE, OPP.CO RPORA TION,
HUBLI.580020
... RESPONDENTS
(BY SRI M AMAREGOUDA, ADVOCATE, FOR R.1;
SRI M .B.JOGARIS HETTER, ADVOCA TE, FOR R.2 AND
R.3;
SRI PRASHANT S. KADADEVAR, ADVOCATE, FOR R.4;
SRI R.R.MANE, ADVOCATE, FOR R.5.)
:8:
THIS MISCELLANEOUS FIRS T APPEAL IS F ILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES
ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 19.10.2012, PASSED IN M VC
NO.187/2010, ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MACT-VI, KUDLIGI, ETC.,.
IN MFA NO.100303/2015
BETWEEN:
NATIONAL INSURANCE CO .LTD .,
THE MANAGER,
BRANCH OFFICE, DAVANGERE,
RPTD.THROUGH ITS REGIONAL
OFFICE, ARIHANT PLAZA,
KUSUGAL ROAD, H UBLI
RPTD.BY ITS DY.M ANAGER
... APPELLANT.
(BY SMT. PREETI S HASHANK, ADVOCATE.)
AND:
1. BASAVARAJ P B S /O LA TE BASALINGAPPA
AGED ABOUT 25 Y EARS, OCC: HOTEL LABOUR,
R/O. KENCHAMALLANAHALLI VILLAGE,
TQ: KUDLIGI, DIS T: BALLARI
2. G VEERANNA S/O G VEERESHAPPA
AGED ABOUT: 36 YEARS,
DRIVER OF THE TRACTOR AND
TRILER BEARING REG.NO.KA-35/T- 2898
AND KA-35/T-2899,
R/O. CHAPPARADAHALLI VILLAGE,
TQ: KUDLIGI, DIS T: BALLARI
:9:
3. G VEERESHAPPA S /O D VEERAPPA
AGE: MAJOR,
OCC: OWNER OF THE TRACTOR AND
TRILER BEARING REG.NO.KA-35/T- 2898
AND KA-35/T-2899,
R/O. CHAPPARADAHALLI VILLAGE,
TQ: KUDLIGI, DIS T: BALLARI
4. ANJINAPPA S/O LA TE TH INDAPPA
AGE: MAJOR, OCC: OWNER CUM DRIVER
OF PASSANGER AUTO RICKSHAW
BEARING REG .NO.KA-35/A-461,
R/O. GANGAMMANAHALLI POS T,
TQ: KUDLIGI.
5. THE DIVISIONAL M ANAGER
M/S. BAJAJ ALLIA NZ GENERAL INSU RANCE
CO.LTD., DIVISIONAL OFFICE,
OPP: CORPORA TIO N, HUBLI,
INSURER OF AU TO RICKSHAW BEARING
REG.NO.KA-35/A- 461
... RESPONDENTS
(BY SRI T BASAVANA GOUD, ADVOCATE, FOR R.1;
SRI M .B.JOGARIS HETTAR, ADVOCATE, FOR R.2 AND
R.3;
R.4 - NO TICE S ERVED;
SRI R.R.MANE, ADVOCATE, FOR R.5.)
THIS MISCELLANEOUS FIRS T APPEAL IS F ILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES
ACT, PRAYING TO SET ASIDE THE JUDGMENT AND
AWARD DATED 19.10.2012, PASSED IN M VC
NO.166/2009, ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MACT-VI, KUDLIGI, ETC.,.
THESE APPEALS COMING ON FOR FINAL
HEARING THIS DAY, A.S.BOPANNA J., DELIVERED THE
FOLLOWING:
: 10 :
JUDGMENT
MFA Nos.21579/2013, 21580/2013 and 100303/2015 are filed by the insurance company assailing the judgment and award passed in MVC Nos.186/2010, 187/2010 and 166/2009 dated 19.10.2012 passed by the MACT-VI, Kudligi.
2. The contentions urged in the said appeals is with regard to the liability fastened on the insurance company on the ground that the driver of the tractor did not possess a valid licence to drive the tractor and trailer. Further with regard to the tribunal arriving at the conclusion with regard to the negligence being fastened at 90% against the driver of the tractor and trailer, the appellant insurance company is aggrieved and it is contended that the negligence was in fact on the part of the driver of the auto rickshaw and even otherwise if it is apportioned a : 11 : higher percentage of negligence is to be attributed to the driver of the auto rickshaw.
3. In MFA Nos.21210/2013, 23300/2013 the claimants in MVC Nos.166/2009 and 186/2010 are before this Court seeking enhancement of the compensation.
4. Since all these appeals arise out of the common judgment passed by the tribunal, they are taken up together and disposed of by this common judgment.
5. The accident occurred on 14.1.2009 at about 4.30 p.m. near old police quarters, Kottur on Kottur Chiribi road. The vehicles involved in the accident are the tractor and trailer bearing registration No.KA-35/T-2898 and the auto rickshaw bearing No.KA-35/A-461. The appellant insurance company in the three appeals named above is the insurer of the tractor-trailer bearing : 12 : No.KA-35/T-2898. While determining the compensation, the tribunal at the outset had considered the issue No.1 relating to the accident and the negligence thereof. While doing so, the negligence is apportioned at 10% to the auto rickshaw and 90% to the tractor and the trailer.
6. The learned counsel for the appellant insurance company would contend that the accident had occurred in the middle of the road as is evident from the document at Ex.P.3 and therefore it is contended that even if the negligence is to be apportioned, it should be in equal proportion and the consideration as made by the tribunal is not justified.
7. In order to appreciate the contentions we have perused the document at Ex.P.3. The same narrates the manner in which the accident had occurred. The complainant states that while the auto rickshaw was moving on the road, the : 13 : tractor-trailer had come and dashed against the auto rickshaw. Though it is stated that the accident had occurred in the middle of the road, what is also stated is that after the accident the tractor and trailer had dragged the auto rickshaw to a distance and it is also categorically stated therein that the tractor and trailer was being driven in a rash and negligent manner. If that be the position, the said document by itself cannot be a clinching evidence to come to the conclusion with regard to the negligence being more on the part of the auto rickshaw driver.
8. Be that as it may, the undisputed position is that the driver of the tractor-trailer was charge sheeted and was prosecuted before the criminal Court. In that situation when the tribunal has taken note of the same and in that circumstance has arrived at the conclusion that the driver of the tractor-trailer was negligent in : 14 : causing the accident, to that extent we cannot find any error in the conclusion reached. Further what is noticed is that though the tribunal had apportioned 10% of the negligence on the driver of the auto rickshaw, it is not for the purpose for the accident having occurred due to his negligence but for violation of certain terms and conditions in carrying more number of passengers. Since in any event the tribunal has apportioned the negligence to that extent and fixed the negligence at 90% on the driver of the tractor-trailer, we find no reason to alter such findings rendered by the tribunal after taking into consideration the material available on record.
9. In addition, we find that though a contention is being urged by the learned counsel for the appellant insurance company with regard to the negligence on the part of the driver of the auto rickshaw and contends so as to seek : 15 : exoneration of the driver of the tractor and trailer, the driver has not been examined as a witness before the tribunal. It is only the driver who could have spoken with regard to the actual manner in which the accident had taken place in a circumstance when the spot mahazar has not been drawn and even if the content in Ex.P.3 is taken note to indicate the accident had occurred in the middle of the road. Therefore the contention as urged to that extent is not acceptable.
10. In so far as the next contention on behalf of the appellant insurance company relating to the driver of the tractor-trailer not possessing the licence to drive the tractor-trailer as a composite transport vehicle, the same need not detain us for long in as much the Division Bench of this Court in the case of Vanajakshi vs. K.G.Hanuman thappa, MFA Nos.2044 and 10852 of 2012 had at an earlier point held that the licence : 16 : possessed to drive the tractor would be sufficient. In any event the Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insur ance Company Limited, AIR 2017 Supreme Cour t 3668 has reiterated this position and the said aspect is no more res-integra so as to consider the matter in that regard. Therefore insofar as the tribunal holding the insurer of the tractor-trailer liable for payment of the compensation we find no error.
11. With regard to the appeals filed by the claimants seeking enhancement it is seen insofar as the claimant in MVC No.166/2009 namely Sri Basavaraj, the tribunal has taken into consideration the evidence tendered by the claimant as PW.1 with regard to the nature of injuries. From the evidence of PW.1 and the document at Ex.P.5, the fact that the claimant had suffered injuries including fracture cannot be disputed.
: 17 :
12. If that be the position, though there is no disability as spoken, the very nature of the injuries suffered which includes a fracture would require consideration for the compensation to be granted under the different heads. To that extent a perusal of the consideration made by the tribunal would disclose that except for granting compensation for the nature of the injuries, the tribunal has not assessed the compensation under the conventional method of providing for pain and suffering, loss of amenities and other considerations.
13. Therefore if the compensation is considered in that regard, the amount of `30,000/- is payable towards pain and suffering and an equal amount of `30,000/- towards loss of amenities. The tribunal has awarded a sum of `12,500/- towards medical expenses which is justified. Further a sum of `10,000/- will have to : 18 : be taken towards the miscellaneous expenses, nourishment, etc.,. Therefore if the amount is taken in that manner, the total amount would be in a sum of `82,500/-. Since the tribunal has awarded the sum of `43,500/-, the claimant would be entitled to the balance amount of `39,000/- which is rounded of to `40,000/- with interest at the same rate as awarded by the tribunal.
14. With regard to the compensation as claimed in MVC No.186/2010, the deceased is the son of the 1 s t claimant aged about 14 years. The tribunal on taking note of the age of the deceased, has awarded the global compensation at `1,80,000/- and after awarding towards love and affection and other expenses a sum of `2,00,000/- has been awarded. The learned counsel for the claimant no doubt would seek that the compensation payable is to be taken into consideration, based on the consideration as made : 19 : by the learned single Judge of this Court in the case of Kumar i Vaishnavi vs. Mallikar jun Malipatil and others, 2017(4) KCCR 2962.
15. The learned counsel for the insurance company would however point out that the consideration made therein is not justified in as much as the learned single Judge had wrongly applied the decision in the case of Kishan Gopal though a larger bench of the Hon'ble Supreme Court in the case of Reshma Kumari and others vs. Mad an Mohan and others, 2013 ACJ 1253 has indicated a different consideration in respect of the death of children including minors who are below the age of 15 years.
16. In that regard it is pointed out that the very same learned Judge, in MFA No.23328/2012 dated 15.12.2017 by applying the said decision granted the compensation at `2,75,000/-. Having taken note of all these aspects of the matter it is : 20 : seen that the consideration in Reshma Kumar i case as made by the Hon'ble Supreme Court would be relevant herein.
17. If in that light the compensation is taken into consideration, by taking the notional income at `15,000/- per annum and the multiplier at 15, the compensation would be in a sum of `2,25,000/-. In addition, a sum of `50,000/- would be available. Thus the compensation in all would be a sum of `2,75,000/-. Since the tribunal has granted the amount of `2,00,000/-, the claimants therein would be entitled to the enhanced portion of `75,000/- with interest at the same rate as awarded by the tribunal.
18. The enhanced portion of the amount shall be deposited by the insurance company within a period of six weeks from the date of receipt of the copy of this judgment whereupon : 21 : the enhanced portion of the amount shall be disbursed to the claimant.
In terms of the above, all these appeals stand disposed of.
The amount in deposit before this Court be transmitted to the tribunal.
Sd/-
JUDGE Sd/-
JUDGE Mrk/-