Karnataka High Court
Vinay R vs Ravikumar on 14 January, 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE N.K. SUDHINDRARAO
MISCELLANIOUS FIRST APPEAL NO.7938/2013
C/W
MFA NOS.7939 AND 7940 OF 2013(MV)
IN MFA NO.7938/2013
BETWEEN
VINAY R
S/O RAMANNA, AGED 26 YEARS
R/AT NO.138 A, KEMPANAHALLI
SIRA TALUK, TUMKUR DISTRICT. ... APPELLANT
(BY SRI. K.V. SHYAMAPRASAD, ADVOCATE)
AND
1. RAVIKUMAR
S/O K T SRINIVAS
MAJOR, R/AT NO.206, V CROSS
VENKATAPURA NEW EXTENSION
KORMANGALA
BENGALURU - 560 034
2. M/S. UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE - V, NO.143/144
I FLOOR, CKN - CHAMBERS, I MAIN ROAD
SHESHADRIPURAM
BENGLAURU - 560 020
REPRESENTED BY ITS MANAGER ... RESPONDENTS
(BY SRI. S. KRISHNA KISHORE, ADVOCATE FOR R2
R1 SERVED)
2
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
07.06.2013 PASSED IN MVC NO.3339/2011 ON THE FILE
OF THE IX ADDITIONAL SMALL CAUSE JUDGE, AND XXXIV
ACMM, MEMBER, ADDITIONAL MACT, COURT OF SMALL
CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
*****
IN MFA NO.7939/2013
BETWEEN
SMT. SHALINI
W/O SRI. PRAKASH B.D
AGED 24 YEARS
R/AT NO.44/4, NEAR MULAKANTAMMA TEMPLE
CHOWDAPPA LAYOUT
YEMLUR, BENGALURU - 560 037. ... APPELLANT
(BY SRI. K.V. SHYAMAPRASAD, ADVOCATE)
AND
1. RAVIKUMAR
S/O K T SRINIVAS
MAJOR, R/AT NO.206, V CROSS
VENKATAPURA NEW EXTENSION
KORMANGALA
BENGALURU - 560 034
2. M/S. UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE - V, NO.143/144
I FLOOR, CKN - CHAMBERS, I MAIN ROAD
SHESHADRIPURAM
BENGLAURU - 560 020
REPRESENTED BY ITS MANAGER
... RESPONDENTS
(BY SRI. S. KRISHNA KISHORE, ADVOCATE FOR R2
R1 SERVED)
3
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
07.06.2013 PASSED IN MVC NO.3506/2011 ON THE FILE
OF THE IX ADDITIONAL SMALL CAUSE JUDGE, AND XXXIV
ACMM, COURT OF SMALL CAUSES,MEMBER, MACT-7,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
******
IN MFA NO.7940/2013
BETWEEN
GURUMURTHY @ GURU
S/O MANJUNATHA R
AGED 26 YEARS R/AT 44/4, 1ST FLOOR
NEAR MULAKANTAMMA TEMPLE
CHOWDAPPA LAYOUT, YEMLUR
BENGALURU - 560 037. ... APPELLANT
(BY SRI. K.V. SHYAMAPRASAD, ADVOCATE)
AND
1. RAVIKUMAR
S/O K T SRINIVAS
MAJOR, R/AT NO.206, V CROSS
VENKATAPURA NEW EXTENSION
KORMANGALA
BENGALURU - 560 034
2. M/S. UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE - V, NO.143/144
I FLOOR, CKN - CHAMBERS, I MAIN ROAD
SHESHADRIPURAM
BENGLAURU - 560 020
REPRESENTED BY ITS MANAGER
... RESPONDENTS
(BY SRI. S. KRISHNA KISHORE, ADVOCATE FOR R2
R1 SERVED)
4
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
07.06.2013 PASSED IN MVC NO.3505/2011 ON THE FILE
OF THE IX ADDITIONAL SMALL CAUSE JUDGE, AND XXXIV
ACMM, MEMBER, MACT, COURT OF SMALL CAUSES,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
******
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
When the matters are set down for orders, at the request of the learned counsel appearing for the appellants, they are heard in detail and taken up for final disposal.
2. These are the three appeals directed against the judgment and award dated 07.06.2013 passed by the IX Addl. Small Causes and Addl. MACT, Bengaluru, questioning the quantum of compensation awarded by the Tribunal. The details of which are as under:
Sl.No. MVC No. MFA No. Preferred by:
1. 3339/2011 7938/2013 Vinay.R - Cleaner
2. 3506/2011 79392013 Shalini - Claimant
3. 3505/2011 7940/2013 Gurumurthy -
Claimant
5
3. All the appeals are filed against a common judgment passed in the above said MVC cases arising out of the same road traffic accident that occurred on 14.03.2011 at about 4.30 a.m., when the claimants Shalini and Gurumurthy were proceeding in a Goods Carriage vehicle bearing Registration No.KA-01/D-710 with their vegetables, in which one Vinay.R. was the cleaner of the said vehicle, the driver of the Tempo was driving the vehicle in a rash and negligent manner dashed against the road side tree and caused the accident. The appellants/claimants herein have suffered grievous injuries.
4. The respondent No.2 Insurance Company in all these cases appeared through the counsel and filed its written statement.
5. Before the claimant in MVC No.3506/2011 Smt.Shalini is examined as PW1 and examined the doctors as PWs.2 & 3 and got marked in all 19 documents as Exs.P1 to P19 and closed its side. Respondent No.2 examined its official as RW2, examined two witnesses as 6 RWs.1 & 3 and got marked in all 5 documents as Exs.R1 to R5.
6. Further, the claimant in MVC No.3339/2011 Vinay R is examined as PW1 and examined Doctor as PW2 and got marked in all 15 documents as Exs.P1 to P15. Respondent No.2 examined respondent No.1 as RW-1 and examined its official as RW2 and witness as RW3 and got marked four documents and closed its side.
7. Further, the petitioner in MVC No.3505/2011 (Gurumurthy) is examined as PW-1 and got marked in all 13 documents as Exs.P1 to P13. Respondent No.2 examined respondent No.1 as RW-1 and examined its official as RW1 and witness as RW3 and got marked in all 5 documents as Exs.R1 to R5 and closed its side.
8. The Tribunal after hearing the arguments of both sides and on perusal of the materials placed before it, and considering the nature of the injuries and the treatment taken, has allowed the claim petitions awarding the compensation as under:
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(1) MFA No.7938/2013 (Vinay.R) is partly allowed with costs against both the respondents and ordered that the petitioner is entitled for a total compensation of Rs.1,98,500/- with interest at 6% p.a., from the date of petition till payment from respondents;
(2) MFA No.7339/2013 (Smt. Shalini) is partly allowed awarding compensation in a sum of Rs.2,59,500/- with interest at 6% p.a., on Rs.2,49,500/- (excluding future medical expenses) from the date of petition till payment from respondent No.1 owner; and (3) MFA No.7940/2013 (Gurumurthy) is partly allowed awarding compensation in a sum of Rs.57,000/- with interest at 6% p.a., from the date of petition till payment from respondent No.1 owner.
9. The claimants being aggrieved by the judgment and award of the Tribunal have come up with these appeals contending that, the Insurance Company is also liable to pay the compensation.
10. The learned counsel appearing for the appellant- Claimant in MFA No.7938/2013 (Vinay R. in MVC No.3339/2011) has contended that the Tribunal has erred in awarding only a sum of Rs.1,98,500/- as against the 8 claim of Rs.6,00,000/-. It is further contended that the claimant was drawing a salary of Rs.10,000/- per month, but the Tribunal has taken the notional income at Rs.4,000/- which is on the lower side and the same needs to be enhanced to Rs.5,000/- per month and therefore, the loss of future income would be Rs.1,08,000/-. The compensation awarded under other heads needs no enhancement. Therefore, in all the claimant in MFA No.7938/2013 is entitled to a total compensation of Rs.2,20,000/- with interest at 6% p.a., from the date of petition till payment.
11. The learned counsel appearing for the appellant- Claimant in MFA No.7939/2013 (Smt. Shalini in MVC No.3506/2011) has contended that the Tribunal has erred in awarding only a sum of Rs.2,59,500/- as against the claim of Rs.10,00,000/-. The learned counsel has further contended that the Tribunal has erred in assessing the income of the appellant at Rs.4,000/- p.m., and loss of earnings during the period of treatment at Rs.8,000/-. The appellant being the vegetable vendor, has been earning a sum of Rs.5,000/- per month but the Tribunal 9 has taken the income of the appellant at Rs.4,000/- per month.
12. Therefore, the appellants in all these appeals prayed for enhancement of compensation awarded by the Tribunal.
13. Upon hearing the arguments of the learned counsel for the appellants, and on perusal of the oral and documentary evidence adduced and produced before the court, the accident in question is not disputed.
14. The learned counsel for the respondent No.2 - Insurance Company opposes the claim petitions and contended that the claim petitions are not maintainable. Accident was not occurred due to the involvement of the offending vehicle. The appellants/claimants are not the owner of the goods and the cleaner as alleged by them. It is further contended that the appellants/claimants are gratuitous passengers and therefore, the respondent- Insurance Company is not liable to pay compensation. The driver was not having the driving licence. Under package policy that was issued by the Insurance Company in so far 10 as vehicle bearing Regn. No.KA-01/D-710, liable gratuitous passengers are not allowed.
15. It is further contended that the seating capacity of the vehicle is 1+2, as per the Registration certificate, whereas in the vehicle at the time of the alleged accident, five persons were traveling and that the Insurance Company is not liable to pay compensation. As per the policy, the gratuitous passengers are not covered since the owner has not paid extra premium covering the risk of the said passengers.
16. The fact that the occurrence of the accident, sustaining of injuries by the claimants are not disputed. Sri Shyamprasad, learned counsel appearing for the claimants in all the cases submit that the Tribunal has erred in coming to the conclusion that the appellants/claimants in MFA No.7939/2013 and MFA No.7940/2013 were traveling to escort their goods as owners, they are gratuitous passengers. Whether a person is an unauthorized passenger or otherwise is a question of fact that has to be adjudicated based on the relevant materials. However, there is no circumstance or 11 material evidence to hold that the claimants are gratuitous passengers.
17. Sri S.Krishna Kishore, learned counsel for the second respondent Insurance Company in so far as the cleaner of the vehicle is concerned, has fairly accepted the liability. However, in case of the claimants i.e., gratuitous passengers, they are not entitled for any compensation to be paid from the Insurance Company.
18. The term 'Gratuitous Passneger' literally means a person traveling without consideration. That is how, if the meaning that the claimants were regarded as gratuitous passengers, their presence is admitted and they were traveling free of charge is the meaning and it does not throw complete and acceptable meaning as the claimants in two cases are gratuitous passengers. The learned Tribunal without basing on the materials relevant to the point of liability has erred in exonerating the Insurance Company and saddled liability only on the owner.
12IN MFA NO.7938/2013 [MVC.NO.3339/2011]
19. So far as the injuries on the claimant Vinay.R, aged 24 years, are concerned, it is categorically stated that after the accident he had admitted to K.C.General Hospital and underwent operation open reduction and internal fixation with proximal tibial LCP plating for right leg and open reduction and internal fixation with LCP plating for left humerus. It is further stated that even after taking treatment he has not recovered completely and he has to go for follow up treatment and he is facing various difficulties in doing his personal activities and also to do his work as cleaner. Doctor assessed disability at 10%.
20. The learned counsel for the appellant in MFA No.7938/2013 contended that the Tribunal is not right in taking monthly income at Rs.4,000/-. The Tribunal ought to have taken Rs.5,000/-. Therefore, it is just and necessary to take the monthly income of the claimant Vinay.R as Rs.5,000/- instead of Rs.4,000/-. Now, the loss of future income would be in a sum of Rs.1,98,500/- [Rs.5000 x 10/100 x 12 x 18]. The compensation 13 awarded by the Tribunal under other heads does not require interference. Therefore, the claimant is entitled for the enhanced compensation of Rs.21,500/- with interest at 6% p.a., from the date of petition till payment. IN MFA NO.7939/2013 [MVC NO.3506/2011]
21. So far as the injuries on the claimant in MFA No.7939/2013 Smt Shalini is concerned, she has suffered frontal contusion with subarachinoid haemorrhage and fracture of greater wing of right sphenoid bone. Further, she had suffered fracture of distal 1/3rd of left tibia, comminuted and fracture of left medial malleolus. The wound certificate produced at Ex.P-8 fully corroborates her evidence. She has deposed that she was traveling in the vehicle as a owner of goods to escort it.
22. The learned counsel for the appellant in MFA No.7939/2013 contended that the Tribunal is not right in taking monthly income at Rs.4,000/-. I accept the said contention. The Tribunal ought to have taken the income at Rs.5,000/- p.m. Therefore, it is just and necessary to take the monthly income of the claimant Smt.Shalini as 14 Rs.5,000/- instead of Rs.4,000/-. Now, the loss of future income would be in a sum of Rs.1,40,400/- [Rs.5,000 x 13/100 x 12 x 18]. The compensation awarded by the Tribunal under other heads does not require interference. Therefore, the claimant is entitled for the enhanced compensation of Rs.28,080/- with interest at 6% p.a., from the date of petition till payment.
IN MFA NO.7940/2013 [MVC NO.3505/2011]
23. So far as the injuries on the claimant in MFA No.7940/2013 Gurumurthy is concerned, he has suffered Tenderness, instability and swelling on the left foot. X-ray showed fracture of 4th and 5th metatarsal bone, a cut lacerated wound on left side of lower lip and on lower labial mueosa. The wound certificate produced at Ex.P-9 fully corroborates his evidence. The Discharge summary produced at Ex.P-12 goes to show that the petitioner was treated conservatively in K.C.General Hospital. Further he has not adduced any evidence or produced any document to show that he has suffered permanent physical disability or he has not recovered completely. He has deposed that 15 he was traveling in the vehicle as a owner of goods to escort it.
24. The learned counsel for the appellant in MFA No.7940/2013 Gurumurthy has contended that the Tribunal is not right in non considering the loss of future income by assessing the monthly income of the claimant at Rs.5,000/-. Therefore, it is just and necessary to take the monthly income of the claimant at Rs.5,000/-. Further, the learned counsel for the appellant contended that the Tribunal has erred in awarding only a sum of Rs.8,000/- towards loss of income for two months. The appellant was a vegetable vendor and earning a sum of Rs.5,000/- per month, but the Tribunal failed to consider the same and has erred in not assessing the income under this head and prayed for enhancement under all the heads.
25. Considering the submissions of the learned counsel for the appellant, I have re-evaluated the entire oral and documentary evidence adduced and produced by the appellant. I find no materials to hold that the compensation awarded by the Tribunal requires enhancement. Therefore, considering the overall evidence 16 and materials on record, the claimant/appellant Gurumurthy in MFA No.7940/2013 is entitled for the global compensation of Rs.60,000/- instead of Rs.57,000/- awarded by the Tribunal with interest at 6% from the date of petition till payment, payable by *Insurance comapny.
26. Further, I find no materials to hold that the appellant along with another was traveling as a gratuitous passenger and the insurance company by virtue of the policy is liable to pay compensation.
27. Accordingly, the appeals are allowed in part. The claimants in all the appeals are entitled for the following enhancement:-
(1) Claimant in MFA No.7938/2013 - Rs.21,600/-
(2) Claimant in MFA No.7939/2013 - Rs.28,080/-
(3) Claimant in MFA No.7940/2013 - Rs.3,000/-
with interest at 6% p.a., from the date of petition till payment. The impugned judgment and award passed by the Tribunal is modified to the above extent. Insurance Company is directed to deposit the compensation amount with interest including the enhanced compensation within *Corrected vide chamber's Order dated 08.12.2020.
17four weeks from the date of receipt of the copy of this judgment.
Sd/-
JUDGE PL*