Karnataka High Court
Narasimhalu @ Dodda Narasimha vs Hanumantha S/O Ideppa And Anr on 28 July, 2022
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JULY 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
MFA No.200813/2014 (MV)
BETWEEN:
NARASIMHALU @ DODDA NARASIMHA
S/O CHINNAYYA @ CHANNAYYA
AGE: 28 YEARS, OCC:COOLIE
R/O BIJANAGERA, TQ& DIST.RAICHUR.
...APPELLANT
(BY SRI.KRUPA SAGAR PATIL, ADV. FOR
SRI.VEERANAGOUDA, ADV.)
AND:
1. HANUMANTHA S/O IDEPPA
AGE: 43 YEARS, OCC:OWNER OF TRACTOR BEARING NO
AP-21/X-7145 AND TROLLY NO.KA-36/TB-4026
R/O H.NO. 298 TURUKANADONI, TQ& DIST.RAICHUR
2. THE MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD
KALBURGI MANSON 4TH FLOOR
OPP:MUNICIPAL CORPORATION LEMINGTON ROAD
HUBLI-580005.
.....RESPONDENTS
(BY SRI.SUDARSHAN M., ADV. FOR R2
R1 - SERVED )
2
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DT- 27.09.2012 PASSED IN MVC NO-
654/2011 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS
TRIBUNAL (FTC-I) AT RAICHUR, WHEREIN PARTLY ALLOWING
THE CLAIM PETITION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the claimant under Section 173(1) of M.V.Act, aggrieved by the judgment and award dated 27.09.2012 passed in MVC No.654/2011 by the MACT (FTC-I), Raichur, by which the claimant has been awarded compensation of Rs.1,54,100/-.
2. The facts leading to filing of the present appeal are briefly stated that on 26.05.2011, the claimant was traveling in the tractor bearing registration No.AP-21/X-7145 and trailer bearing registration No.KA-36/TB-4026 as a labour at the instruction of respondent No.1 for the purpose of 3 loading and unloading of stones from Bijanagera hills to the land of Srishail. That when the tractor and trailer was proceeding near Vishwa Shant Rice Mill, in the limits of Bijanagera village at about 12.00 noon, the driver of the said tractor and trailer drove the same in a rash and negligent manner, due to which the tractor and trailer turned turtle and petitioner fell down sustaining fracture injuries in the nature of fracture of left leg. He was shifted to Balanku Hosptial Raichur, wherein he was treated as in-patient for about one month and he underwent surgery. He was bed ridden for a period of six months with advise for further treatment. Thereupon the claimant filed the claim petition seeking compensation of Rs.10,80,000/- on the premise that he was earning Rs.8,000/- per month by doing coolie work. That due to the accident, the injury suffered by him on account of rash and negligent driving of the driver of the tractor and trailer 4 has caused him physical and financial disability. The nature of injury sustained by him requires further treatment. Hence, sought for compensation.
3. On service of notice, the respondents appeared through their counsel. The respondent No.1 filed written statement admitting the ownership of tractor and trailer. He stated that the claimant was serving under him by receiving a sum of Rs.5,000/- per month and the claimant was traveling on 26.05.2011 in the tractor. He denied the same and manner of accident and contended that the accident took place due to negligence on the part of the claimant himself who jumped from the trailer without intimating the driver. That the driver had valid and effective driving license and tractor and trailer were insured with respondent No.2-Insurance Company. Compensation, if any shall be indemnified by the 5 Insurance Company. Hence, sought for dismissal of the claim petition as against him.
4. The respondent No.2-Insurance Company filed written statement admitting the fact of issuing insurance policy in respect of tractor and trailer but denied the liability on the premise that respondent No.1-owner had violated the terms of the policy by entrusting the same to a person without authority to drive. The driver had only LMV license and was not competent to driver the vehicle in question. That the claimant should not have been allowed to sit behind the driver and the said act resulted in breach of policy of the terms of policy exonerating the Insurance Company from any liability. Hence, sought for dismissal of the petition.
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5. Based on the pleadings, the tribunal framed the issues and recorded the evidence. The claimant examined himself as PW.1 and one Dr.Sridhar Reddy has been examined as PW.2. The claimant exhibited 91 documents marked as Exs.P1 to P91. On behalf of respondent No.2-Insurance Company, one Vinod Samaje has been examined as RW.1 and exhibited 6 documents marked as Exs.R1 to R6.
6. On appreciation of evidence, the tribunal found that the accident in question resulting in injury to the claimant was caused due to rash and negligent riding of the offending vehicle by its driver and consequently held that the claimant being entitled for compensation of Rs.1,54,100/- with interest @ 6% p.a. from the date of petition till realization. As regards the liability, the tribunal dismissed the claim 7 petition against respondent No.2 and directed the respondent No.1-owner to pay the entire compensation within one month from the date of the award.
7. Being aggrieved by the same, the claimant is before this Court questioning the quantum as well as liability.
8. Learned counsel for the appellant/claimant reiterating the grounds urged in the memorandum of appeal submitted that the tribunal grossly erred in not taking into consideration the income being earned by the claimant for the purpose of determination of the quantum of compensation. That PW.2, the doctor who assessed the disability of the claimant in his deposition has stated that the claimant has suffered disability of 15% to the whole body. However, the 8 tribunal has taken the disability at 5%. He further submits that as regards exonerating the respondent- Insurance Company from the liability of payment of compensation by the tribunal, the same is contrary to the law laid down by the Hon'ble Apex Court in the case of Shivaraj Vs. Rajendra, reported in AIR 2020 SC (Civil) 577, wherein the Apex Court has directed the Insurance Company to pay compensation and thereafter recover.
9. On the other hand, the learned counsel for the respondent No.2-Insurance Company justifying the order passed by the tribunal submitted that no documentary evidence is produced by the claimant to prove his income. The disability taken by the tribunal at 5% being 1/3rd of the whole body warrants no interference. He refers to the full bench judgment of this Court in the case of Gadhilingappa @ 9 Gadhilinga and Anoher Vs. K.Guleppa K.Lingappa & Another, reported in AIR 2021 KAR 102, in which the full bench of this Court has held that a person traveling on a mudguard of a tractor cannot be construed as an authorized passenger exonerating the Insurance Company from the liability thereof. Further, he submits no grounds are made out for consideration of the appeal. Hence, seeks for dismissal of the same.
10. Heard the learned counsel for the parties and perused the records.
11. The twin points that arise for consideration are with regard to the quantum of compensation and liability.
12. The accident in question resulting injuries sustained by the claimant is not disputed. Though the 10 claimant claims to have been earning Rs.8,000/- from his work as coolie no documents have been produced in support of the same. As per the chart prepared by the Karnataka State Legal Services Committee the notional income in respect of the victims of road traffic accident of the year 2011 is fixed at Rs.6,000/- per month. The same needs to be taken into consideration in this case as well.
13. PW.2 the doctor in his evidence referring to the injuries sustained by the claimant as per Ex.P3- wound certificate has stated that the claimant has suffered 15% disability. The injuries referred to in Ex.P3 are as under;
(a) Swelling CLW measuring 5 cm middle 1/3rd leg.
(b) Deformity present lower fourth of left leg.
(c) Fracture of tibia and fibula.
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14. The disability certificate at Ex.P87 in which the PW.2 has opined that the claimant is having disability to whole body of 15%. Since the said disability certificate does not speaks about the disability of upper limb, the tribunal has taken 1/3 rd of the disability mentioned therein which is 5%. The tribunal has taken the income of the claimant at Rs.4,000/- per month by applying multiplier of 18 has awarded compensation of Rs.43,200/- towards future loss of income.
15. It is necessary to note that in view of injuries mentioned in Ex.P3 percentage of disability shown in Ex.P87 read in the light of deposition of PW.2, this Court is of the considered view that the disability be taken at 8% instead of 5% taken by the tribunal. The notional income having held to be at Rs.6,000/- per month, the loss of future income of the 12 claimant would be at Rs.1,03,680/- (Rs.6,000/- x 12 x 18 x 8%).
16. The tribunal has awarded a sum of Rs.35,000/- towards pain and suffering. Considering the nature of injuries, a sum of Rs.15,000/- is added enhancing the same to Rs.50,000/-.
17. The tribunal has awarded a sum of Rs.48,660/- under the head medical expenses and the same is retained.
18. The tribunal has awarded a sum of Rs.10,000/- towards conveyance, attendant charges and extra nourishment. Considering the fact that the claimant was treated as an inpatient with an attendant next to him and the conveyance involved, this Court is of the considered view that a sum of Rs.10,000/- be added by enhancing it to Rs.20,000/-. 13
19. The tribunal has awarded a sum of Rs.5,000/- under the head of loss of amenities and the same is enhanced to Rs.25,000/- by adding a sum of Rs.20,000/- thereof.
20. The future medical expenses having been not awarded by the tribunal which is borne out of the record. The evidence of PW.2 reveals that there is a mal-united fracture of tibia and fibula warranting few medical interventions. Considering the same, a sum of Rs.20,000/- is awarded under the head future medical expenses.
21. The tribunal has awarded a sum of Rs.12,000/- towards loss of income during laid up period, which requires to be enhanced to Rs.18,000/-. 14
22. Thus the claimant is held entitled for a total compensation of Rs.2,85,340/- instead of Rs.1,54,100/- awarded by the Tribunal as under;
Sl. Heads By By
No. Tribunal this Court
1 Pain and suffering Rs.35,000/- Rs.50,000/-
2 Medical bills Rs.48,660/- Rs.48,660/-
3 Loss of future income Rs.43,200/- Rs.1,03,680/-
4 Loss of income Rs.12,000/- Rs.18,000/-
during laid up period
5 Conveyance, Rs.10,000/- Rs.20,000/-
Attendant charges &
extra nourishment
6 Future medical --- Rs.20,000/-
expenses
7 Loss of amenities Rs.5,000/- Rs.25,000/-
Total Rs.1,54,100/- Rs.2,85,340/-
23. Adverting to the issue with regard to the liability, the Apex Court in the case of Shivaraj Vs. Rajendra, stated (Supra) dealing with the case involving the appellant therein traveling in a tractor as a coolie bearing identical facts and circumstance of 15 the case at paragraph Nos.9 and 10 has held as under:
"9. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is 16 unexceptionable in the fact situation of the present case.
10. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors.1, Mangla Ram Vs. Oriental Insurance Co. Ltd.2, Rani & Ors. Vs. National Insurance Co. Ltd. & Ors.3 and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others.4 In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the 1 (2004) 3 SCC 297 2 (2018) 5 SCC 656 3 2018 (9) 17 SCALE 310 4 (2017) 4 SCC 796 appellant with liberty to recover the same from the tractor owner (respondent No.1)."
24. Thus the Apex Court though has held traveling in a tractor as passenger amounts to breach of terms of policy, however directed the insurance company to pay the compensation and thereafter recover the same.
25. Learned counsel for the respondent- Insurance Company relying upon the judgment of the full bench of this Court submitted that judgment of full bench of this Court being the subsequent judgment which does not provides for the provisions of pay and compensation, the Insurance Company should be exonerated completely.
26. It is necessary to see that there is no contradictions in the law laid down by the Apex Court 18 in Shivaraj's case stated (Supra) as well as the full bench of this Court with regard to breach of policy conditions by allowing a person to travel on tractor un-authorizedly. The only distinction between both the judgments is that the Apex Court in addition has directed the Insurance Company to pay the compensation at first instance and to recover thereafter. The Apex Court at paragraph No.10 of the judgment has referred to various judgments passed by it with respect o principles of pay and recover. The full bench of this Court has not referred to the said judgments of the Apex Court to the extent of pay and recover. Therefore, there being no contradictions in the principles of law enunciated by the full bench of this Court, to the extent of direction to respondent No.2 to pay and recover, this Court considers it just and proper to rely upon the judgment of the Hon'ble 19 Apex Court. For the foregoing reasons, I proceed to pass the following:
ORDER
a) The appeal is allowed in part.
b) The appellant/claimant is entitled for total compensation of Rs.2,85,340/- instead of Rs.1,54,100/- awarded by the Tribunal.
c) The aforesaid compensation shall be paid by respondent No.2 - insurance company with interest @ 6% p.a. from the date of claim petition till the date of realization and thereafter to recover the same from respondent No.1 in accordance with law
d) The order of the Tribunal is modified accordingly.20
e) It is made clear that the appellant-claimant shall not be entitled for interest for the period of delay of 462 days in filing the appeal.
Sd/-
JUDGE msr