Karnataka High Court
Malleshappa S/O Hanumanthappa vs Dyamappa S/O Siddappa Rattihalli on 21 August, 2014
Author: B.Manohar
Bench: B.Manohar
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR.JUSTICE B.MANOHAR
MFA No.8013/2007 C/W MFA No.3153/2007 (MV)
MFA No.8013/2007
Between:
Malleshappa
S/o Hanumanthappa
32 years, Occ:Coolie
r/o Rattihalli
Tq:Dist:Shimoga. .. Appellant
(By Sri Sri Naveen Chatrad for Sri Mahesh Wadeyar, Advs.)
And:
1. Dyamappa
S/o Shiddappa Rattihalli
Major, Occ:Business
R/o Soulanga
Tq: & Dist:Shimoga.
2. Divisional Manager
New India Assurance Co. Ltd.
Shamanur Bldg.,Chamarajpeth
Davanagere. .. Respondents
(By Shri Ravi G Sabhahit, Adv. for R2)
This appeal is filed under Section 173(1) of the
Motor Vehicles Act, against the judgment and award
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dated 2.1.2007 passed in M.V.C. No.484/2004 on the
file of the Civil Judge (Sr.Dn.) and Addl. MACT,
Ranebennur.
MFA No.3153/2007
Between:
The New India Assurance
Company Ltd., No.2-B
Regional Office, Unity
Buildings Annexe
P Kalinga Rao Road
(Mission Road)
Bangalore-560 027
Represented by its
Regional Manager. .. Appellant
(By Sri Ravi G Sabhahit, Adv.)
And:
1. Malleshappa
S/o Hanumantappa
Age 33 years, Occ:Coolie work
r/o Rattihalli, Taluka Shimoga
Now at Ranebennur
District Haveri.
2. Dyamappa
S/o Shiddappa Rattihalli
Age Major, Occ:Business
R/o Soulanga village in
Shimoga taluka and District. .. Respondents
(By Sri Sri Naveen Chatrad for Sri Mahesh Wadeyar, Advs.)
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This appeal is filed under Section 173(1) of the
Motor Vehicles Act, against the judgment and award
dated 2.1.2007 passed in M.V.C. No.484/2004 on the
file of the Civil Judge (Sr.Dn.) and Addl. MACT,
Ranebennur.
These appeals coming on for hearing this day, the
Court, delivered the following:
JUDGMENT
The appellants in these appeals are challenging the judgment and award dated 2.1.2007 made in MVC No.484/2004 by the Civil Judge (Sr.Dn.) and Addl. MACT, Ranebennur.
2. The claimant, being dissatisfied with the quantum of compensation has filed MFA No.8013/2007 and the insurer, being aggrieved by the judgment and award fastening the liability on it to compensate the claimant has filed MFA No.3153/2007.
3. Since common question of fact is involved in these two appeals and common judgment and award passed by the Tribunal has been challenged in these :4: two appeals, these appeals are clubbed together and disposed of by its common judgment.
4. The claimant filed the claim petition before the MACT, Ranebennur contending that on 27.5.2004 at 3.50 p.m while he was travelling in a goods vehicle as authorized passenger from Rattihalli to Shimoga, in a vehicle bearing Regn. No.KA-14/9732, driven in a rash and negligent manner without following the traffic rules and regulations, near Kunchanahalli-Soulanga road, the driver lost control over the vehicle and toppled down and caused accident. Due to the said impact, claimant and other passengers sustained injuries. Immediately he was shifted to the Government Hospital, Shimoga and taken treatment therein. He contended that he was inpatient in Megan hospital, Shimoga for a period of 26 days. He has spent `20,000/- towards medicines. In the accident, he sustained comminuted fracture of lower 1/3rd of right humerus and other lacerated wounds :5: over the body, hence sought compensation of `2,60,000/-
5. Though the owner of the vehicle served with notice remained exparte. The 2nd respondent/Insurer filed written statement denying the entire averments made in the claim petition and also contended that the claimant was travelling in a goods vehicle viz: Bajaj Tempo Minidor, goods carrying commercial vehicle (open) as unauthorized passenger. Further the driver of the offending vehicle was not having valid and effective driving licence on the date of accident. Hence, the insurer is not liable to compensate the claimant and sought for dismissal of the claim petition.
6. On the basis of the pleadings of the parties, the Tribunal framed necessary issues. However, the issue regarding travelling in a goods vehicle is not framed.
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7. Claimant examined himself as PW1 and the treated doctor was examined as PW4 and documents marked as Exs.P1 to P9. On behalf of respondents, the official of the Insurance Company was examined as RW1 and got marked documents as Exs.R1 to R13.
8. The Tribunal after considering the oral and documentary evidence led in by the parties held that due to the rash and negligent driving of the Bajaj Tempo Minidor, the accident had occurred, hence, the claimant is entitled for compensation.
9. With regard to quantum of compensation, Tribunal held that in view of the accident, the claimant sustained lacerated wounds all over the body apart from the fracture of lower 1/3rd right humerus. The treated doctor in his evidence deposed that the claimant has undergone surgery and further deposed that v-nail was done on 11.6.2004. The claimant has suffered disability to an extent of 35% of particular limb. The Tribunal :7: taking into consideration Ex.P4 awarded compensation of sum of `25,000/- towards pain and suffering and a sum of `5,000/- towards treatment. In all, a sum of `30,000/- has been awarded by the Tribunal.
10. With regard to the liability to pay compensation, the Tribunal held that as on the date of accident, the offending vehicle was insured with the respondent/Insurance Company and it was valid from 19.3.2004 to 18.3.2005. Hence, the insurer is liable to pay compensation with interest at 6% p.a.
11. The claimant being not satisfied with the quantum of compensation has filed MFA No.8013/2007 seeking enhancement of compensation. Further the Insurance Company being aggrieved by the judgment and award fastening the liability on the Insurance Company to pay the compensation has filed MFA No.3153/2007 contending that the claimant was travelling in a goods vehicle as unauthorized passenger. :8: As far as the insurance policy issued in respect of the offending vehicle is concerned, it covers the risk of driver, cleaner and owner of the vehicle and therefore fastening the liability on the insurance company is contrary to law.
12. I have carefully considered the arguments addressed by the learned counsel for the parties and perused the judgment and award and oral and documentary evidence adduced by the parties.
13. The records clearly disclose that due to the rash and negligent driving of the goods vehicle by its driver, the road traffic accident had occurred on 27.5.2004 near Kunchanahalli-Soulanga road. The appellant sustained comminuted fracture of lower 1/3rd of right humerus and other lacerated wounds over the body. He was working as coolie and earning more than `5,000/- p.m. He sustained permanent disability to an extent of 35% towards particular limb. Ex.P4, wound :9: certificate, clearly discloses that he sustained five injuries, out of that, fracture of lower 1/3rd of right humerus is grievous injury. Ex.P5, discharge card, clearly discloses that the appellant has undergone surgery. The treated doctor has deposed that the appellant has sustained permanent disability to an extent of 35%. In view of that, I am of the opinion that `25,000/- awarded towards pain and suffering and `5,000/- awarded towards treatment, both are on the lower side. The Tribunal has not awarded any compensation with regard to the permanent disability, loss of income during the laid up period, food and nourishment and attendant charges. X-ray shows united fracture of 1/3rd of right humerus with callus formation and v-nail with ring on situ and sustained 35% of the total permanent disability.
14. Taking into consideration the age of the claimant, suffering undergone by him and expenditure : 10 : incurred, I am of the opinion that it is a fit case to enhance compensation on the heads of pain and suffering, loss of income during laid up period, attendant charges and amenities of life, in all, a sum of `65,000/- apart from a sum of `30,000/- awarded by the Tribunal with 6% p.a. interest.
15. With regard to liability to pay the compensation, the records clearly disclose that the claimant and other persons were travelling in a goods vehicle i.e. Bajaj Tempo Minidor, goods carrying commercial vehicle (open). The insurance policy produced by the appellant in MFA No.8013/2007 clearly disclose that the policy covers the risk of the driver, cleaner and owner of the goods vehicle and not covered the passengers travelling in the goods vehicle.
16. Admittedly, the offending vehicle is a goods vehicle and it can not carry passengers. The 1st respondent violated the conditions of policy and carried : 11 : the passengers in the goods vehicle. Hence, the Insurance Company cannot be held liable to compensate the claimant. Therefore, the 1st respondent is liable to compensate the claimant. The judgment and award passed by the Tribunal fastening the liability on the Insurance Company is contrary to law. Though a specific contention was taken by the Insurance Company with regard to the nature of vehicle and also coverage of the policy, no finding has been given by the Tribunal on the said issue. Taking into consideration the category of the vehicle in which the appellant was travelling and coverage of insurance policy, I am of the view that the liability fastened on the Insurance Company is contrary to law. Hence, the liability to pay the compensation is to be fastened on the 1st respondent. Accordingly, I pass the following: : 12 :
ORDER MFA No.8013/2007 is allowed in part. The judgment and award dated 2.1.2007 passed in M.V.C. No. 424/2004 on the file of the Civil Judge and Addl.MACT, Ranebennur is modified. The claimant is entitled to compensation of `65,000/- with interest at 6% p.a. in addition to the compensation awarded by the Tribunal. The 1st respondent, owner of the vehicle shall compensate the claimant.
MFA No.3153/2007 is allowed. The judgment and award dated 2.1.2007 passed in M.V.C. No. 424/2004 on the file of the Civil Judge and Addl.MACT, Ranebennur is set aside insofar as fixing the liability on the appellant is concerned. The liability is fastened on the 2nd respondent to compensate the claimant.: 13 :
The amount in deposit by the appellant in MFA No.3153/2007 is returned to the appellant/Insurance Company.
Sd/-
JUDGE bkm