Karnataka High Court
National Insurance Co. Ltd vs Maruti Rayappa Belur on 20 November, 2024
-1-
NC: 2024:KHC-D:16891
MFA No. 21177 of 2012
C/W MFA No. 25818 of 2011
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.21177 OF 2012 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.25818 OF 2011
IN MFA.NO.21177/2012:
BETWEEN:
GADIGEPPA S/O. MARUTI BELUR,
AGE: 31 YEARS, OCC: NOW NIL,
R/O: KADALIKOPPA, TQ: RAMDURG,
DIST: BELAGAVI.
...APPELLANT
(BY SMT. SHAILA BELLIKATTI, ADVOCATE)
AND:
1. MARUTI S/O. RAYAPPA BELUR,
AGE: MAJOR, OCC: AGRICULTURE/BUSINESS,
R/O: KADALIKOPPA,TQ: RAMDURG,
DIST: BELAGAVI.
2. THE NATIONAL INSURANACE CO. LTD.,
Digitally signed BRANCH ODDICE A.P.M.C.YARD SAUNDATTI,
by SAROJA
HANGARAKI TQ: SAUNDATTI, DIST: BELAGAVI,
Location: High
Court of THROUGH THE DIVISIONAL MANAGER,
Karnataka
THE NATIONAL INSURANCE COMPANY LTD.,
DIVISIONAL OFFICE, RAMDEV GALLI,
BELAGAVI, DIST: BELAGAVI.
...RESPONDENTS
(BY SRI S.S.JOSHI, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO. ALLOW THE APPEAL AND MODIFY THE JUDGMENT AND
AWARD BY ENHANCING COMPENSATION IN M.V.C.NO.1825/2010
DATED 29.08.2011 PASSED BY THE ADDITIONAL SENIOR CIVIL
JUDGE AND ADDITIONAL M.A.C.T RAMDURG AND ETC.,
-2-
NC: 2024:KHC-D:16891
MFA No. 21177 of 2012
C/W MFA No. 25818 of 2011
IN MFA.NO.25818/2011:
BETWEEN:
NATIONAL INSURANCE CO. LTD.,
BRANCH OFFICE, APMC YARD, SAUNDATTI,
TQ: SAUNDATTI, DIST: BELAGAVI,
THROUGH THE DIVISIONAL MANAGER, NATIONAL
INSURANCE CO. LTD., DIVISIONAL OFFICE,
RAMDEV GALLI, BELAGAVI,
REPTED. BY REGIONAL OFFICE,
ADMINISTRATIVE OFFICER,
...APPELLANT
(BY SRI S. S. JOSHI, ADVOCATE)
AND:
1. MARUTI RAYAPPA BELUR,
AGE: MAJOR, OCC: AGRICULTURE/BUSINESS,
R/O: KDALIKOPPA, TQ: RAMDURG,
DIST: BELAGAVI.
2. GADIGEPPA S/O. MARUTI BELUR,
AGE: 30 YEARS, R/O: KDALIKOPPA,
TQ: RAMDURG, DIST: BELAGAVI.
...RESPONDENTS
(BY SMT. SHILA BELLIKATTI, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED BUT UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988,
PRAYING TO CALL FOR RECORDS HEAR PARTIES AND ALLOW THE
APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND
AWARD DATED 29.08.2011 PASSED BY THE SENIOR CIVIL JUDGE
AND ADDITIONAL MACT, RAMADURGA AT RAMADURGA IN MVC
1825/2010 AND ETC.,
THESE APPEALS, COMING ON FOR FURTHER SUBMISSION,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
-3-
NC: 2024:KHC-D:16891
MFA No. 21177 of 2012
C/W MFA No. 25818 of 2011
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) MFA No.25818/2011 is filed by the insurer. MFA No.21177/2012 is filed by the claimant.
2. Both the appeals are filed under Section 173(1) of the Motor Vehicles Act, 19881 challenging the judgment and award dated 29.08.2011 passed in MVC No.1825/2010 by the Senior Civil Judge and Additional MACT, Ramdurg2.
3. The parties will be referred to as per their ranking before the Tribunal for the sake of convenience.
4. The claimant filed a claim petition claiming compensation for the injuries sustained by him in a road traffic accident which occurred on 30.05.2010. It is the case of the claimant that when he was traveling on a Tractor bearing No.KA-24/TA-106 and Trailer bearing 1 Hereinafter referred to as 'Act' 2 Hereinafter referred to as 'Tribunal' -4- NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 No.KA-24/TA-587 which was loaded with stones being driven by its driver and when he was on the said vehicle with an intention to unload the stones in the field and after unloading, when the claimant was returning in the said vehicle, the same was driven in a rash and negligent manner and the claimant who was sitting on the Trailer fell down causing the accident in question. That as a result of the said accident, the claimant sustained injuries.
5. The owner of the vehicle was arrayed as respondent No.1 and the insurer of the vehicle was arrayed as respondent No.2 before the Tribunal. The respondents filed statement of objections and contested the claim proceedings. The claimant examined himself as PW.1. The Doctor who assessed the disability of the claimant was examined as PW.2. Exs.P.1 to P.14 were marked in evidence. The representative of the insurer was examined as RW.1 and Ex.R.1 - policy of insurance was marked in evidence. The Tribunal by its judgment dated -5- NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 29.08.2011, allowed the claim petition and passed the following:
"ORDER Petition filed U/Sec-166 of the M.V.Act is allowed in part with costs and awarded compensation of Rs.1,10,000/-. Out of it, 2nd respondent is liable to pay 50% of the compensation to the petitioner with interest at the rate of 9% p.a. from the date of filing the petition till realisation of entire amount.
Advocate fee of Rs.1000/- is fixed in the case.
Draw award accordingly."
6. Being aggrieved, the above appeals have been filed.
7. Heard the submissions of learned counsel, Sri.S.S.Joshi for the insurer and learned counsel, Smt.Shaila Bellikatti for the claimant.
8. It is the vehement contention of the insurer that the claimant was the representative of the owner of the vehicle and was not a coolie who was employed by its owner. Hence, it is contended that the insurer is not liable -6- NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 to pay the compensation awarded since the risk of the claimant who was traveling in the insured vehicle was not covered under the policy of insurance. It is further contended that the left leg of the claimant was inflicted with Polio since birth and hence the assessment of disability at 50% by the doctor is on the higher side and the Tribunal ought not to have awarded any amount towards disability. It is further contended that the Tribunal ought not to have saddled the insurer with liability to pay the compensation awarded. Hence, learned counsel seeks for allowing of the appeal filed by the insurer and granting of the reliefs sought.
9. Per contra, learned counsel for the claimant contends that the Tribunal ought not to have deducted 50% towards negligence of the claimant who was traveling in the insured vehicle. It is further contended that the assessment of the disability by the Tribunal at 3% is on the lower side. It is further contended that the -7- NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 compensation awarded to other heads is on the lower side and the compensation is required to be enhanced.
10. The submissions of both the learned counsels have been considered and the material on record including the records of the Tribunal have been perused.
11. The Tribunal while considering the aspect regarding negligence of the claimant, has recorded the following findings:
"15. On careful scrutiny of oral and documentary evidence of both side parties, it is observed that, on 30-05-2010 at about 5-30 p.m. petitioner met with an accident and sustained injuries. Petitioner contended that, accident was took place due to negligent driving of the tractor by its driver. 2nd responded contended that accident was took place due to negligence on the part of petitioner. To ascertain the truth, this Court carefully scrutinized admissions made by PW-1 during the course of cross-examination. Wherein, this Court observed that, petitioner not boarded the trailer, immediately after unloading the stones. Driver of that vehicle not aware that petitioner was sat in the trailer. The admission of PW-1 referred -8- NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 supra is sufficient to believe that, driver of that tractor did not aware the presence of petitioner in the trailer. Driver of that tractor drove the same in as usual manner. Petitioner made an attempt to board the trailer when the said tractor was in movement. When the trailer was passing upon a bund petitioner being an handicapped person lost control over himself, as a result he was slipped and fell on the ground. It may be true that, at the time of accident driver of that tractor drove the said tractor on the bund with some negligence, but it cannot be said that, accident was took place due to exclusive negligence on the part of driver of that tractor. In fact, petitioner too contributed for the cause of accident. In my opinion, above mentioned accident was took place due to contributory negligence on the part of driver of the tractor as well as petitioner."
(emphasis supplied)
12. It is clear from a perusal of the complaint (Ex.P.2) that the claimant was traveling in the Trailer and after the said Tractor-Trailer had unloaded the stones while returning, when the said Tractor-Trailer passed over a bund, the accident occurred and the claimant fell down -9- NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 in which he sustained grievous injuries. The Tribunal while considering the aspect of negligence, noticing the testimony of PW.1, has recorded a finding that the driver of the Tractor was not aware of the presence of the claimant in the Trailer and that the driver drove the Tractor in an usual manner. That when the Trailer passed the bund, the claimant who was handicapped person lost control over himself, as a result of which he slipped and fell to the ground. Hence, the Tribunal by held that the driver of the Tractor drove the same with some negligence. However, by recording a finding that the claimant has also contributed to the accident, has held that there was contributory negligence to the extent of 50% each on the driver of the Tractor and the claimant.
13. It is relevant to note that undisputedly after the Tractor-Trailer had proceeded to unload the stones in the agricultural field and while returning, the accident occurred. Although certain statements of PW.1 as to the manner of the accident is sought to be relied upon and it is
- 10 -
NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 sought to be contended by the insurer that the claimant not being a coolie, the insurer is not liable to pay the compensation awarded, it is clear and further forthcoming that the insured vehicle which is insured as a miscellaneous and special type of vehicle and was being used in the course of agricultural operations for the purpose of unloading the stones and returning from the agricultural field. It is further undisputed that the Trailer is also insured as it is forthcoming from the policy of insurance (Ex.R.1). It is further forthcoming from Ex.R.1 that the premium is collected as "agricultural tractor".
14. Although it is forthcoming from the material on record that the claimant also had suffered from Polio, had lost balance when the Tractor was being driven by its driver and although the Tribunal has noticing the testimony of PW.1, recorded a finding that the driver might not have aware that the claimant was traveling along with the Tractor-Trailer, upon a re-appreciation of the oral and documentary evidence on record, it is just
- 11 -
NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 and proper that the negligence that can be attributed to the driver of the Tractor-Trailer in causing the accident in question be reassessed at 75% and the negligence attributable to the claimant be reassessed at 25%.
15. With regard to the contention that the vehicle belongs to the family of the claimant and hence the insurer is not liable to pay the compensation awarded, having regard to the fact that the claimant has sustained injuries due to the accident caused by the insured vehicle which was being used for agricultural purposes, the said contention of the insurer is liable to be rejected.
16. The Tribunal while assessing the disability of the claimant, has recorded the following findings:
"24. Based upon admission made by PW-1 & PW-2 referred supra, this Court comes to a conclusion that, petitioner is handicapped person by birth due to polio to his left leg is very weak from his birth. As per the admission made by PW-1 himself, prior to accident he was suffering from permanent physical disability to his left lower limb to an extent of 40% and the same was declared in his
- 12 -
NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 application form also. As per the opinion of PW-2 petitioner is suffering permanent physical disability to his left lower limb to an extent of 50%. After deducting earlier permanent physical disability of 40%, petitioner has sustained further permanent physical disability to his left lower limb to an extent of 10% more. It is Indeed relevant to note that, due to accidental fracture caused to the left femur of the petitioner he had sustained permanent physical disability to his left lower limb 10% more than what he had suffered earlier. To that extent petitioner entitled for compensation. It is well settled principle of law that while assessing the whole body disability, Court has to assess only 1/3rd of the permanent physical disability caused to the individual limbs. In the instant case petitioner has sustained permanent physical disability 10% due to accidental fracture. 1/3rd of it comes to 3.33% rounded off to 4%. As per the medical records produced by the petitioner at the time of accident petitioner was aged around 28 to 29 years. The relevant multiplier applicable to his age is 17. At the time assessing the compensation under the head loss of earning during the course of treatment, this Court assessed the monthly income of petitioner at Rs.3000/- per month."
(emphasis supplied)
- 13 -
NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011
17. It is clear from the aforementioned that the Tribunal has assessed the income of the claimant at ₹3,000/- p.m. Having regard to the fact that the claimant has not produced any documents to prove his income, it is just and proper that the income of the claimant be reassessed as per the chart utilized by the Legal Services Authority for settlement of cases in Lok-Adalath and having regard to the date of the incident, the income is reassessed at ₹5,500/- per month.
18. The age of the claimant has been assessed as between 28-29 years and the multiplier applied is 17, which is just and proper.
19. It is forthcoming from the discharge card (Ex.P.3), medico legal certificate (Ex.P.6), certificate issued by the doctor (Ex.P.8), medico legal certificate (Ex.P.13) as well as the testimony of the doctor PW.2 that the claimant has sustained comminuted fracture of shaft of the left femur and other injuries. The said fracture was treated by a surgical procedure and the claimant was
- 14 -
NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 treated as an inpatient from 30.05.2010 to 07.06.2010, i.e. for a period of 8 days. Apart from the fracture, the claimant has sustained other simple injuries. PW.2 - doctor is not the treated doctor and has only assessed the disability of the claimant. PW.2 has deposed that the claimant has disability of 50% of the left lower limb. However, PW.2 in the cross-examination has admitted that the claimant was suffering from Polio since his birth. It is forthcoming that PW.2 in his evidence by way of examination-in-chief, has not deposed regarding the disability by his specific reference to the left leg being inflicted by Polio.
20. The Tribunal by considering the same, has taken into account the factor the claimant was receiving handicapped pension of ₹400/- per month on the basis that he is suffering 40% disability. By considering the said aspect, the Tribunal has deducted 40% from the disability of 50% assessed by the doctor to the left lower limb and thereafter deducting 1/3rd, assessed the disability at 4%.
- 15 -
NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011
21. Although it is the vehement contention of the learned counsel for the claimant that the disability assessed is on the lower side, keeping in mind the relevant fact situation and the assessment made by the doctor with regard to the restriction in the movement and other disabilities, it is just and proper that the disability for the purpose of assessing the loss of earning capacity be reassessed at 5%.
22. Keeping in mind the aforementioned, the compensation awarded by the Tribunal is reassessed as follows:
i. The Tribunal has awarded compensation of ₹20,000/- towards pain and suffering and ₹5,000/- towards mental agony and depression.
Having regard to the nature of injuries sustained, the said compensation of ₹25,000/- awarded by the Tribunal towards pain, suffering, mental agony and depression is just and proper;
- 16 -
NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 ii. The Tribunal has awarded a sum of ₹30,000/-
towards medical expenses, which is just and proper;
iii. The Tribunal has assessed the laid up period as two months and awarded a sum of ₹6,000/-
towards loss of income. Hence, the said compensation is reassessed by awarding compensation of ₹11,000/- [₹5,500 (income) x 2 (months)];
iv. The Tribunal has awarded a sum of ₹9,000/-
towards conveyance, attendant charges and special diet. Having regard to the nature of injuries sustained and the period of treatment, the said compensation is reassessed as ₹15,000/-;
v. The Tribunal has awarded a sum of ₹15,000/-
towards loss of amenities. Keeping in mind the nature of injuries, the loss of amenities is reassessed at ₹25,000/-;
- 17 -
NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 vi. The future loss of income is reassessed at ₹56,100/- [₹5,500 (income) x 12 (months) x 17 (multiplier) x 5% (disability)] as against ₹25,000/- awarded by the Tribunal.
23. Hence, the compensation is reassessed as follows:
Heads Amount Amount
reassessed by awarded by
this Court the Tribunal
Pain and suffering and ₹25,000/- ₹25,000/-
mental agony and
depression
Medical expenses ₹30,000/- ₹30,000/-
Loss of earning laid up ₹11,000/- ₹6,000/-
period
Conveyance, attendant ₹15,000/- ₹9,000/-
charges and special diet
Loss of amenities ₹25,000/- ₹15,000/-
Future loss of income ₹56,100/- ₹25,000/-
Total ₹1,62,100/- ₹1,10,000/-
- 18 -
NC: 2024:KHC-D:16891
MFA No. 21177 of 2012
C/W MFA No. 25818 of 2011
24. Having regard to the finding on negligence, respondent No.2-insurer is liable to pay 75% of the amount awarded.
25. In view of the aforementioned, the following:
ORDER i. The above appeals are partly allowed;
ii. The judgment and award dated 29.08.2011 passed in MVC No.1825/2010 by the Senior Civil Judge and Additional MACT, Ramdurg is modified to the extent of holding that the insurer shall pay the claimant a total compensation of ₹1,21,575/- (75% of ₹1,62,100/-) along with interest at 6% p.a. from the date of petition till realisation of the amount. The award of the Tribunal in all other respects shall remain un-altered;
iii. The amount deposited by the appellant in MFA No.25818/2011 shall be transmitted to the Tribunal for disbursement in terms of the award of the
- 19 -
NC: 2024:KHC-D:16891 MFA No. 21177 of 2012 C/W MFA No. 25818 of 2011 Tribunal. The appellant - insurer in MFA No.25818/2011 shall deposit the balance compensation within eight weeks of receipt of a copy of this judgment;
iv. Modified award to be drawn accordingly;
v. Records to be sent to the Tribunal forthwith.
Sd/-
(C.M. POONACHA) JUDGE SH/CT-ASC List No.: 1 Sl No.: 40