Karnataka High Court
Branch Manager vs G T Basavaraj on 11 August, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
-1-
MFA No. 7781 of 2016
C/W MFA No. 6582 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO. 7781 OF 2016 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6582 OF 2016 (MV-I)
IN M.F.A.NO.7781 OF 2016
BETWEEN:
SRI G T BASAVARAJ
S/O THIPPESWAMY,
AGED ABOUT 41 YEARS
RESIDING AT CHIKKENAHALLI VILLAGE,
CHITRADURGA TALUK AND DISTRICT - 577 501
...APPELLANT
(BY SRI SHIVAKUMARAPPA, ADVOCATE FOR
SRI B.M.SIDDAPPA, ADVOCATE)
AND:
1. SRI NIRANJAN
S/O SAHEL,
Digitally
AGE:MAJOR,
signed by OWNER OF VEHICLE NO.KA-35/S-3873,
KIRAN
KUMAR R R/AT SIRIGERE,
Location: High CHITRADURGA TALUK AND DIST-577501
Court of
Karnataka 2. THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO.LTD.,
VIJAYASHREE,OPP:NANJUNDESHWARA
PETROL BUNK,
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MFA No. 7781 of 2016
C/W MFA No. 6582 of 2016
DAVANAGERE ROAD,
CHITRADURGA -577 501
...RESPONDENTS
(BY SRI A.N.KRISHNA SWAMY, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH VIDE ORDER DATED
14.07.2021)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.06.2016 PASSED IN MVC
NO.182/2014 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE, & ADDITIONAL MACT, CHITRADURGA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION AND ETC.
IN M.F.A.NO.6582 OF 2016
BETWEEN:
BRANCH MANAGER
NEW INDIA ASSURANCE CO LTD
VIJAYASHREE OPP: NANJUNDESHWARA
PETROL BUNK,
DAVANAGERE ROAD
CHITRADURGA-577 501
NOW REPRESENTED BY ITS REGIONAL MANAGER
NEW INDIA ASSURANCE CO LTD
REGIONAL OFFICE, 2-B,
UNITY BUILDING ANNEXE
P.KALINGA RAO ROAD
BANGALORE-560 027
...APPELLANT
(BY SRI A.N.KRISHNA SWAMY,ADVOCATE)
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MFA No. 7781 of 2016
C/W MFA No. 6582 of 2016
AND:
1. SRI G T BASAVARAJ
S/O LATE THIPPESWAMY
NOW AGED ABOUT 41 YEARS
SUPERVISOR IN JOHN MINES,
R/O CHIKKENAHALLI VILLAGE
CHITRADURGA TALUK-577535
2. NIRANJAN
S/O SOHEL
MAJOR
OWNER OF MOTORCYCLE
R/O SIRIGERE
CHITRADURGA TALUK-577501
...RESPONDENTS
(BY SRI SHIVAKUMARAPPA, ADVOCATE FOR
SRI B.M.SIDDAPPA, ADVOCATE FOR R1;
R2 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.06.2016 PASSED IN MVC
NO.182/14 ON THE FILE OF THE 1ST ADDITIONAL SENIOR
CIVIL JUDGE & ADDITIONAL MACT, CHITRADURGA, AWARDING
COMPENSATION OF RS.1,29,800/- WITH INTEREST AT 7.5%
P.A. FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 7781 of 2016
C/W MFA No. 6582 of 2016
JUDGMENT
M.F.A.No.6582/2016 is by the insurer challenging the finding recorded by the Tribunal that the insured vehicle was actually involved in the accident.
2. M.F.A.No.7781/2016 is by the claimant seeking for enhancement.
3. It is the case of the insurer that the claimant was actually riding his own motorcycle, which did not have insurance and therefore, he had implicated the motor cycle owned by respondent No.1 only to claim compensation.
4. In order to establish this contention, reliance is placed on the evidence of PW.1-Basavaraja. In the deposition, PW.1 has stated as follows:
''2. C¥ÀWÁvÀzÀ ¢£À ªÉÄÊ£ïì PÉ®¸ÀPÉÌ ºÉÆÃVzÉÝ ¹jUÉgÉAiÀÄ §¸ï¸ÁÖöåAqï¤AzÀ ªÉÄÊ£ïì §¸ï £ÀªÀÄä£ÀÄß ºÀwÛ¹PÉÆAqÀÄ ªÉÄÊ£ïì ¥ÀæzÉñÀPÉÌ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄvÀÛzÉ. CzÉà jÃw vÀAzÀÄ ©qÀÄvÀÛzÉ. £ÀAvÀgÀ ¹jUÉgÉ §¸ï¸ÁÖöåAqï¤AzÀ £Á£ÀÄ £À£Àß ¨ÉÊPï ªÉÄÃ¯É ªÀÄ£ÉUÉ ºÉÆÃUÀÄvÉÛãÉ.
3. £Á£ÀÄ ªÀÄvÀÄÛ MAzÀ£Éà JzÀÄgÀÄzÁgÀ UɼÉAiÀÄgÉAzÀgÉ ¤d. C¥ÀWÁvÀ §½PÀ £Á£ÀÄ ¹jUÉgÉ D¸ÀàvÉæUÉ ºÉÆÃVzÉÝ. C°è ªÉåzÀågÀÄ EgÀzÀ PÁgÀt zÁªÀtUÉgÉAiÀÄ ¨Á¥ÀÆf D¸ÀàvÉæUÉ ºÉÆÃVzÉÝ.
ªÉåzÀåjUÉ £À£ÀUÉ UÁAiÀÄUÀ¼ÀÄ ºÉÃUÉ DVªÉ JAzÀÄ ªÉåzÀåjUÉ ºÉýzÉÝ. -5- MFA No. 7781 of 2016 C/W MFA No. 6582 of 2016 CªÀjUÉ 1£Éà JzÀÄgÀÄzÁgÀ£À ¨ÉÊPï ªÉÄÃ¯É £Á£ÀÄ »AzÉ PÀĽvÀÄ ¥ÀæAiÀiÁt¸ÀÄwÛzÁÝUÀ MªÉÄä¯Éà gÀ¸ÉÛAiÀÄ°è ºÀ¸ÀÄ CqÀØ §A¢zÀÝjAzÀ CzÀPÉÌ rQÌ ºÉÆqÉzÀÄ C¥ÀWÁvÀªÁV £À£ÀUÉ UÁAiÀÄUÀ¼ÁVªÉ JAzÀÄ ºÉýzÉÝ. £Á£ÀÄ ªÉÊzÀåjUÉ ºÀ¸ÀÄ £ÀªÀÄä ¨ÉÊPïUÉ rQÌ ºÉÆqÉzÀÄ C¥ÀWÁvÀªÁVzÉ JAzÀÄ ºÉýzÉÝãÉAzÀgÉ ¸ÀļÀÄî. ¨Á¥ÀÆf D¸ÀàvÉæAiÀÄ EAnªÉıÀ£ï£À°è §gÉzÀ «µÀAiÀÄ vÀ¥ÁàVzÉ JAzÀÄ £À£Àß Cfð ªÀÄvÀÄÛ ¥ÀæªÀiÁt¥ÀvÀæzÀ°è §gɹ®è. ¥ÉÆðøÀgÀÄ ¨Á¥ÀÆf D¸ÀàvÉæUÉ §A¢gÀ°®è. ¥ÉÆðøÀgÀ£ÀÄß PÀgɸÀ®Ä ªÉÊzÀåjUÉ £Á£ÀÄ ºÉý®è."
5. Learned counsel for the insurer contends that the averments made in paragraph 2 amounts to a clear admission on the part of the claimant that he was riding his own motor cycle. However, if the succeeding paragraph is read, it is clear that the claimant clearly stated that he was traveling as a pillion rider in the motor cycle owned by respondent No.1.
6. It is to be stated here that respondent No.1 herein got himself examined as RW.2-(Niranjan) and he categorically admitted that the claimant was a pillion rider.
7. In the light of this stand taken by the rider of the motor cycle that the claimant was a pillion rider, the finding of the Tribunal that the claimant was a pillion rider cannot be found fault with.
-6-MFA No. 7781 of 2016 C/W MFA No. 6582 of 2016
8. As stated earlier, it was the contention of the insurer that the claimant was driving his own motor cycle when the accident occurred. However, the insurer has not even chosen to suggest the registration number of the motor cycle owned by the claimant and the fact that the motor cycle did not posses a valid insurance. If the insurer was aware of the fact that the motor cycle of the claimant had met with an accident, the onus was upon the insurer to summon the motor cycle or subject the motor cycle to examination in order to determine whether it had met with an accident. The insurer had to establish that the particular motor cycle did not posses valid insurance on that particular date. In the absence of any effort made by the insurer that the claimant was riding his own motor cycle and it is that motor cycle that met with an accident, the finding of the Tribunal requires to be affirmed. It is also contended in the MLC report, which has been recorded as under:-
"Alleged HO R.T.A. in the form of fall from a Bike when an ox came in the way and he hits the bike at around 6.45 pm on 28.10.2013 at Sirigere Road."-7- MFA No. 7781 of 2016 C/W MFA No. 6582 of 2016
9. Learned counsel for the insurer contends that a correct reading of the said statement would indicate that the claimant admitted that he had hit the bike. Firstly, in order to accept this contention, the author of the MLC ought to have been examined which has not been done in the present case. Secondly, a reading of the statement would also give an indication that the ox came in the way of the motor cycle and the ox hit the bike. Since there is a distinct possibility that the author intended to state that the ox hit the bike, it would be unsafe to rely upon the MLC report alone to come to the conclusion that the claimant was riding his own motor cycle. As stated above, no effort has been made by the insurer to establish that the motor cycle involved in the accident was actually the motor cycle owned by the claimant.
10. The finding of the Tribunal therefore cannot be found fault with, consequently, the appeal of the insurer, M.F.A.No.6582/2016 is dismissed.
11. As far as the claim for enhancement is concerned, the Tribunal has assessed the notional income at Rs.6000/- per month.
-8-MFA No. 7781 of 2016 C/W MFA No. 6582 of 2016
12. Learned counsel for the claimant contends that a wage slip has been produced to indicate that the claimant was earning Rs.10,605/- per month. The wage slip produced indicates that the slip was given by the contractor and the said contractor has not been examined. It would therefore be unsafe to accept the wage slip as true monthly income of the claimant. Since there is no credible evidence with regard to the income of the claimant, it would be appropriate to adopt the notional income determined by the Karnataka State Legal Services Authority, which, for the year 2014, is Rs.8,500/-.
13. The Tribunal has assessed the disability at 6%. Based on the evidence of the doctors, in my view the assessment of the disability is just and proper and is affirmed.
14. Consequently, the claimant is entitled to a sum of Rs.91,800/- (Rs.8,500/- x 12 x 15 x 6%) towards loss of future income. The Tribunal has awarded Rs.40,000 towards pain and suffering, Rs.20,000/- towards medical expenses and sum of Rs.5000 towards diet, attendant charge and traveling expenses. In my view, the sum awarded by the Tribunal in this -9- MFA No. 7781 of 2016 C/W MFA No. 6582 of 2016 regard are just and proper and do not call for any enhancement.
15. The evidence on record indicates that the claimant was in inpatient for 7 days and in that view of the matter, it would be appropriate to enhance the compensation towards diet, attendant charge and traveling expenses from Rs.5,000/- to Rs.15,000/-.
16. Consequently, the claimant is held entitled for compensation as follows:
Sl.No. Particulars Amount
1. Towards loss of future income Rs.91,800/-
2. Towards pain and suffering Rs.40,000/-
Towards diet, attendant charge
3. Rs.15,000/-
and traveling expenses
4. Towards medical expenses Rs.20,000/-
Total Rs.1,66,800/-
i. The appeal-M.F.A.No.7781/2016 filed by the
claimant is allowed-in-part.
ii. The claimant is entitled for total
compensation of Rs.1,66,800/- with
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MFA No. 7781 of 2016
C/W MFA No. 6582 of 2016
interest at 6% per annum from the date of
petition till its realization.
iii. The Insurance Company is directed to
deposit the amount of compensation
awarded within two months from the date of receipt of a certified copy of this judgment. iv. The amount in deposit, if any, shall be transmitted to the Tribunal for disbursement in terms of the award.
SD/-
JUDGE KPS List No.: 1 Sl No.: 39