Karnataka High Court
Kumari. Malashree D/O Muttappa ... vs Abdul S/O. Abdulgafar on 23 September, 2019
Author: K.Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
MFA No.20473/2013 (MV)
C/w.
MFA CROB No.960/2013,
MFA No.20474/2013, MFA CROB No.961/2013,
MFA No.20475/2013, MFA CROB No.962/2013,
MFA Nos.20476, 20478, 20479, 20480 & 20477 of 2013,
AND MFA CROB No.963/2013
MFA No.20473/2013 (MV)
BETWEEN :
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO., LTD.,
MARUTI GALLI, BELGAUM,
NOW REP. BY ITS
SR. DIVISIONAL MANAGER
DHARMANANDARAO S.M.
UNITED INDIA INSURANCE CO., LTD.,
DIVISIONAL OFFICE,
MARTUTI GALLI, BELGAUM.
... APPELLANT
(BY SMT : PREETI SHASHANK, ADVOCATE )
AND
1. SHRI CHINNAPPA RAJU JENDEKURABAR
AGE: 40 YEARS, OCC: BUSINESS NOW: NIL,
R/O: MUDALAGI, TQ: GOKAK,
DIST: BELGUAM
2
2. SHRI ABDULSUBAN S/O ABDULGAFAR
AGE: MAJOR, OCC: BUSINESS,
R/O: MUJAWAR MOHALLA,
MULABAGAL, TQ & DIST: KOLAR.
3. SHRI SANTOSH NAGAPPA RAMAPURI
AGE: MAJOR, OCC: BUSINESS,
R/O:H.NO.353, MASTAMARDI,
TQ & DSIT: BELGAUM
... RESPONDENTS
(BY SRI. HANAMANT R LATUR, ADV. FOR R1
R2-NOTICE DISPENSED WITH, R-3 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED:22-11-2012 PASSED IN
MVC NO.1135/2011 ON THE FILE OF PRL.SENIOR CIVIL JUDGE
AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THE
COMPENSATION OF RS.1,59,161/- WITH INTEREST AT THE
RATE OF 6% P.A., FROM THE DATE OF PETITION TILL ITS
REALISATION.
MFA CROB No.960/2013 (MV)
(IN MFA NO.20473/2013)
BETWEEN
SHRI CHINNAPPA
S/O : RAJU JANDEKURABAR
AGE : 40 YEARS,
OCC : BUSINESS, NOW NIL,
R/O : MUDALAGI,
TQ : GOKAK, DIST : BELGAUM
... CROSS OBJECTOR
(BY SRI. HANAMANT R LATUR, ADVOCATE)
AND
1. SRI ABDULSUBAN
S/O : ABDULGAFAR
AGE : 50 YEARS, OCC : BUSINESS,
R/O : MUJAWAR MOHALLA, MULBAGAL
TQ & DIST : BELGAUM
3
2. THE DIVISIONAL MANAGER
UNITED INDIA INS.CO.LTD.
MARUTI GALLI, BELGAUM
3. SHRI SANTOSH S/O : NAGAPPA RAMAPURI
AGE : 45 YEARS, OCC : BUSINESS
R/O : H.NO.353, MASTMARDI
TQ & DIST : BELGAUM.
... RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R-2
R1 AND R3 SERVED)
THIS MFA CROB. IN MFA NO.20473/2013 FILED
U/ORDER.41 RULE 22 OF C.P.C. R/W SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DTD: 22.11.2012
PASSED IN MVC NO.1135/2011 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
MFA No.20474/2013 (MV)
BETWEEN
1. THE DIVISIONAL MANAGER,
UNITED INIDA INSURANCE CO.,LTD.,
MARUTI GALLI, BELGAUM,
NOW REP. BY ITS
SR. DIVISIONAL MANAGER
DHARMANADARAO S.M.,
UNITED INDIA INSURANCE CO., LTD.,
DIVISIONAL OFFICE,
MARUTI GALLI, BELGAUM.
... APPELLANT
(BY SMT : PREETI SHASHANK, ADVOCATE)
4
AND
1. SHRI LAXMAN CHINNAPPA JENDEKURABAR
AGE: 47 YEARS, OCC: BUSINESS NOW:NIL,
R/O: MUGALKHOD,
TQ: RAIBAG, DIST: KOLAR.
2. SHRI ABDULSUBAN S/O ABDULGAFAR
AGE: MAJOR, OCC: BUSINESS,
R/O: MUJAWAR MOHALLA, MULABAGAL,
TQ & DIST: BELGAUM.
3. SHRI SANTOSH NAGAPPA RAMAPURI
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO.353, MASTAMARDI,
TQ & DIST: BELGAUM.
... RESPONDENTS
(BY SRI. HANAMANT R LATUR, ADV. FOR R1
R-2 DISPENSED WITH, R-3 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED:22-11-2012 PASSED IN
MVC NO.1136/2011 ON THE FILE OF PRL.SENIOR CIVIL JUDGE
AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THE
COMPENSATION OF RS.1,59,589/- WITH INTEREST AT THE
RATE OF 6% P.A., FROM THE DATE OF PETITION TILL ITS
REALISATION.
MFA.CROB NO 961 OF 2013
(IN MFA NO.20474/2013)
BETWEEN
SHRI LAXMAN
S/O: CHINNAPPA JENDEKURABAR
AGE: 47 YEARS, OCC: BUSINESS NOW: NIL
R/O: MUGALKOD, TQ: RAIBAG,
DIST: BELGAUM
... CROSS OBJECTOR
(BY SRI. HANAMANT R LATUR, ADVOCATE)
5
AND
1. SRI ABDULSUBAN S/O. ABDULGAFAR
AGE: 50 YEARS, OCC: BUSINESS
R/O. MUJAWAR, MOHALLA, MULBAGAL,
TQ & DIST: BELGAUM
2. THE DIVISIONAL MANAGER,
UNITED INIDA INSURANCE CO.,LTD.,
MARUTI GALLI, BELGAUM.
3. SRI SANTOSH S/O. NAGAPPA RAMAPURI
AGE: 45 YEARS, OCC: BUISNESS
R/O. H NO. 353, MASTMARDI
TQ & DIST: BELGAUM.
... RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R2
R-3 SERVED, R-1 DISPENSED WITH)
THIS MFA CROB. IN MFA NO.20474/2013 FILED
U/ORDER.41 RULE 22 OF C.P.C. R/W SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DTD: 22.11.2012
PASSED IN MVC NO.1136/2011 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
MFA No.20475/2013 (MV)
BETWEEN
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO.LTD.
MARUTI GALLI, BELGAUM,
NOW REP. BY ITS SR. DIVISIONAL MANAGER,
DHARMANAANDARAO S.M.
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
MARUTI GALLI, BELGAUM.
... APPELLANT
(BY SMT : SMT PREETI SHASHANK, ADVOCATE)
6
AND
1. SHRI LAXMAN YALLAPPA RAHUT
AGE: 27 YEARS, OCC: BUSINESS NOW: NIL,
R/O: MUDALAGI, TQ: GOKAK,
DIST: BELGAUM.
2. SHRI ABDULSUBAN S/O ABDULGAFAR
AGE: MAJOR, OCC: BUSINESS,
R/O: MUJAWAR MOHALLA, MULABAGAL,
TQ&DIST: BELGAUM.
OWNER OF THE VEHICLE BEARING
NO.KA-03/C-9362.
3. SHRI SANTOSH NAGAPPA RAMAPURI
AGE: MAJOR, OCC: BUSINESS,
R/O: H.NO. 353, MASTAMARDI,
TQ & DIST: BELGAUM.
... RESPONDENTS
(BY SRI.HANAMANT R LATUR FOR R1
R-2 DISPENSED WITH , R-3 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED:22-11-2012 PASSED IN
MVC NO.1137/2011 ON THE FILE OF PRL.SENIOR CIVIL JUDGE
AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THE
COMPENSATION OF RS.1,34,960/- WITH INTEREST AT THE
RATE OF 6% P.A., FROM THE DATE OF PETITION TILL ITS
REALISATION.
MFA.CROB NO 962 OF 2013
(IN MFA NO.20475/2013)
BETWEEN
SHRI LAXMAN S/O. YALLAPPA RAHUT
AGE: 27 YEARS, OCC: BUSINESS NOW:NIL,
R/O: MUGAKHOD, TQ: RAIBAG,
DIST: BELGAUM.
... CROSS OBJECTOR
(BY SRI.HANAMANT R LATUR, ADVOCATE)
7
AND
1. SRI ABDULSUBAN S/O. ABDULGAFAR
AGE: 50 YEARS, OCC: BUSINESS
R/O. MUJAWAR, MOHALLA, MULBAGAL,
TQ & DIST: BELGAUM
2. THE DIVISIONAL MANAGER,
UNITED INIDA INSURANCE CO.,LTD.,
MARUTI GALLI, BELGAUM.
3. SRI SANTOSH S/O. NAGAPPA RAMAPURI
AGE: 45 YEARS, OCC: BUISNESS
R/O. H NO. 353, MASTMARDI
TQ & DIST: BELGAUM.
... RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R2
R-3 SERVED, R-1 DISPENSED WITH)
THIS MFA CROB. IN MFA NO.20477/2013 FILED
U/ORDER.41 RULE 22 OF C.P.C. R/W SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DTD: 22.11.2012
PASSED IN MVC NO.1137/2011 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
MFA NO 20476 OF 2013
BETWEEN
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO, LTD
MARUTI GALLI, BELGAUM
NOW REPRESENTED BY ITS
SENIOR DIVIONSAL MANAGER
DHARMANANDARAO S M
UNITED INDIA INSURANCE COMPANY LIMITED
DIVISIONAL OFFICE, MARUTI GALLI,
BELGAUM.
... APPELLANT
(BY SMT. PREETI SHASHANK, ADVOCATE)
8
AND
1. SMT. GODAVVA CHINNAPPA JENDEKURABAR
AGE : 24 YEARS, OCC : BUSINMESS, NOW NIL
R/O MUDALAGI, TQ: GOKAK,
DISTRICT : BELGAUM
2. SHRI ABDULSUBAN S/O: ABDULGAFAR
AGE : MAJOR, OCC : BUSINESS,
R/O : MUJAWAR MOHALLA, MULABAGAL,
TAL & DISTICT : KOLAR.
3. SHRI SANTOSH NAGAPPA RAMAPURI
AGE : MAJOR, OCC : BUSINESS,
R/O : H NO.353, MASTAMARDI,
TQ & DIST : BELGAUM
... RESPONDENTS
(BY SRI. HANAMANT R LATUR, ADV. FOR R1
R-3 SERVED, R-2 DISPENSED WITH)
THIS MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED:22.11.2012 PASSED IN
MVC NO.1138/2011 ON THE FILE OF PRL.SENIOR CIVIL JUDGE
AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THE
COMPENSATION OF RS.31,585/- WITH INTEREST AT THE RATE
OF 6% P.A., FROM THE DATE OF PETITION TILL ITS
REALISATION.
MFA NO 20478 OF 2013
BETWEEN
THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO, LTD
MARUTI GALLI, BELGAUM,
NOW REPRESENTED BY ITS
SENIOR DIVISINOAL MANAGER
DHARMANANDARAO S M,
UNITED INDIA INSURANCE CO, LTD,
DIVISIONAL OFFICE,
MARUTI GALLI, BELGAUM
... APPELLANT
(BY SMT : SMT PREETI SHASHANK, ADVOCATE)
9
AND
1. SHRI MUTTEPPA SHETTEPPA GOULETHNAVAR
AGE : 30 YEARS, OCC : BUSINESS,
NOW NIL, R/O : MUDALAGI,
TAL : GOKAK, DIST: BELGAUM.
2. SHRI ABDULSUBAN S/O: ABDULGAFAR
AGE : MAJOR, OCC : BUSINESS,
R/O : MUJAWAR MOHALLA, MULABAGAL,
TAL AND DIST: KOLAR.
3. SHRI SANTOSH NAGAPPA RAMAPURI
AGE : MAJOR, OCC : BUSINESS,
R/O : H NO.353, MASTAMARDI,
TAL AND DIST : BELGAUM
... RESPONDENTS
(BY SRI. HANAMANT R LATUR, ADV. FOR R1
R-2 DISPENSED WITH, R-3 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED: 22.11.2012 PASSED IN
MVC NO.1140/2011 ON THE FILE OF PRL.SENIOR CIVIL JUDGE
AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THE
COMPENSATION OF RS.44563/- WITH INTEREST AT THE RATE
OF 6% P.A., FROM THE DATE OF PETITION TILL ITS
REALISATION.
MFA NO 20479 OF 2013
BETWEEN
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO, LTD
MARUTI GALLI, BELGAUM.
NOW REPRESENTED BY ITS
SR. DIVISIONAL MANAGER,
DHARMANANDARAO S M
UNITED INDIA INSURANCE CO, LTD
DIVISIONAL OFFICE, MARUTI GALLI, BELGAUM
... APPELLANT
(BY SMT PREETI SHASHANK, ADVOCATE)
10
AND
1. SMT. LAXMIBAI MUTTEPPA JENDEKURABAR
AGE : 32 YEARS, OCC : BUSINESS
NOW NIL, R/O : MUDALAGI,
TAL : GOKAK, DIST : BELGAUM
2. SHRI ABDULSUBAN ABDULGAFAR
AGE : MAJOR, OCC : BUSINESS,
R/O : MUJAWAR MOHALLA, MULABAGAL,
TAL AND DIST: KOLAR.
3. SHRI SANTOSH NAGAPPA RAMAPURI
AGE : MAJOR, OCC : BUSINESS,
R/O : H NO.353, MASTAMARDI,
TAL AND DIST : BELGAUM
... RESPONDENTS
(BY SRI. HANAMANT R LATUR, ADV. FOR R1
R-2 DISPENSED WITH, R-3 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED:22.11.2012 PASSED IN
MVC NO.1141/2011 ON THE FILE OF PRL.SENIOR CIVIL JUDGE
AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THE
COMPENSATION OF RS.13,218/- WITH INTEREST AT THE RATE
OF 6% P.A., FROM THE DATE OF PETITION TILL ITS
REALISATION.
MFA NO 20480 OF 2013
BETWEEN
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO, LTD
MARUTI GALLI, BELGAUM
NOW REPTD. BY ITS
SR. DIVISIONAL MANAGER
DHARMANANDA RAO S M
UNITED INDIA INSURANCE CO, LTD.
DIVISIONAL OFFICE,
MARUTI GALLI, BELGAUM.
... APPELLANT
(BY SMT. PREETI SHASHANK, ADVOCATE)
11
AND
1. SMT. RAMAWWA BAPU PATIL @ JENDEKURBAR
AGE : 52 YEARS, OCC : BUSINESS, NOW NIL,
R/O : MUDALAGI, TAL : GOKAK,
DIST: BELGAUM.
2. SHRI ABDULSUBAN S/O ABDULGAEFAR
AGE : MAJOR, OCC : BUSINESS,
R/O : MUJAWAR MOHALLA, MULABAGAL,
TAL AND DIST : BELGAUM
3. SHRI SANTOSH NAGAPPA RAMAPURI,
AGE : MAJOR, OCC : BUSINESS,
R/O : H NO.353, MASTAMARDI,
TAL AND DIST : BELGAUM.
... RESPONDENTS
(BY SRI. HANAMANT R LATUR, ADV. FOR R1
R-2 DISPENSED WITH, R-3 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED:22.11.2012 PASSED IN
MVC NO.1142/2011 ON THE FILE OF PRL.SENIOR CIVIL JUDGE
AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THE
COMPENSATION OF RS.10,866/- WITH INTEREST AT THE RATE
OF 6% P.A., FROM THE DATE OF PETITION TILL ITS
REALISATION.
MFA NO 20477 OF 2013
BETWEEN
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE COMPANY LIMITED,
MARUTI GALLI, BELGAUM,
NOW REPRESENTED BY ITS
SR. DIVISIONAL MANAGER,
DHARMANANDARAO S.M,
UNITED INDIA INSURANCE CO, LTD.,
DIVISIONAL OFFICE, MARUTI GALLI, BELGAUM.
... APPELLANT
(BY SMT. PREETI SHASHANK, ADVOCATE)
12
AND
1. KUMARI. MALASHREE
D/O MUTTAPPA GIOULETHANAVAR @ JENDEKURABAR
AGE : 12 YEARS, MINOR
REPRESENTED BY NATURAL FATHER
SHRI MUTTEPPA SHETTEPPA GOULENAVAR,
AGE 30 YEARS, OCC : BUSINESS,
NOW NIL, R/O : MUDALAGI,
TAL : GOKAK, DIST: BELGAUM.
2. SHRI ABDULSUBAN S/O ABDULGAFAR
AGE : MAJOR, OCC : BUSINESS,
R/O : MUJAWAR MOHALLA, MULABAGAL,
TAL & DIST : BELGAUM
3. SHRI SANTOSH NAGAPPA RAMAPURI
AGE : MAJOR, OCC : BUSINESS,
R/O : H NO. 353, MASTAMARDI,
TAL & DIST : BELGAUM
... RESPONDENTS
(BY SRI. HANAMANT R LATUR, ADV. FOR R1
R-2 DISPENSE WITH, R-3 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD DATED:22.11.2012 PASSED IN
MVC NO.1139/2011 ON THE FILE OF PRL.SENIOR CIVIL JUDGE
AND MEMBER, ADDL. MACT, BELGAUM, AWARDING THE
COMPENSATION OF RS.69,953/- WITH INTEREST AT THE RATE
OF 6% P.A., FROM THE DATE OF PETITION TILL ITS
REALISATION.
MFA.CROB NO 963 OF 2013
(IN MFA NO.20477/2013)
BETWEEN
KUMARI. MALASHREE
D/O MUTTEPPA GIOULETHANAVAR
AGE : 12 YEARS, MINOR,
R/O : MUDALAGI, TAL : GOKAK,
13
DIST: BELGAUM.
SINCE MINOR R/ BY HER NATURAL FATHER
SHRI MUTTEPPA SHETTEPPA GOULENAVAR,
AGE 30 YEARS, OCC : BUSINESS,
NOW NIL, R/O : MUDALAGI, TAL : GOKAK,
DIST: BELGAUM.
... CROSS OBJECTOR
(BY SRI. HANAMANT R LATUR, ADVOCATE)
AND
1. SRI ABDULDUBSN
S/O. ABDULGAFAR
AGE: 50 YEARS, OCC: BUSINESS
R/O. MUJAWAR MOHALLA,
MULBAGAL
TQ & DIST: BELGAUM
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE COMPANY LIMITED,
MARUTI GALLI, BELGAUM.
3. SHRI SANTOSH
S/O. NAGAPPA RAMAPURI
AGE: 45 YEARS, OCC: BUSINESS
R/O. H NO. 353, MASTMARDI
TQ & DIST: BELGAUM
... RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R2)
THIS MFA CROB. IN MFA NO.20477/2013 FILED
U/ORDER.41 RULE 22 OF C.P.C. R/W SEC.173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DTD: 22.11.2012
PASSED IN MVC NO.1139/2011 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
BELGAUM, 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:
14
JUDGMENT
Though these cases are listed for admission, with the consent of both the counsel, they are heard finally.
M.F.A.Nos.20473/2013, 20474/2013, 20475/2013, 20476/2013, 20478/2013, 20479/2013, 20480/2013, and 20477/2013 are filed by the Insurer whereas MFA Crob Nos.960/2013, 961/2013, 962/2013 and 963/2013 are filed by the claimants assailing the judgment and award dated 22.11.2012 passed by the Prl. Senior Civil Judge & Addl. MACT, Belgaum, (hereinafter referred to as 'the Tribunal', for short) in MVC Nos.1135/2011 to 1142/2011, in all total eight claim petitions.
2. Heard the arguments of the learned counsel for both the parties.
15
3. For the convenience, the rankings of the parties before the Tribunal are retained.
4. The claimants in their respective petitions have filed claim petitions under Section 166 of Motor Vehicles Act (for short 'the Act') claiming compensation as under; MVC No.1135/2011 Rs.2,50,000/-
MVC No.1136/2011 Rs.5,00,000/-
MVC No.1137/2011 Rs.3,50,000/-
MVC No.1138/2011 Rs.2,50,000/-
MVC No.1139/2011 Rs.2,50,000/-
MVC No.1140/2011 Rs.2,50,000/-
MVC No.1141/2011 Rs.2,10,000/-
MVC No.1142/2011 Rs.2,00,000/-
Interalia contending that on 23.10.2010 at about 10.00 a.m., these claimants while proceeding in a truck bearing registration No.KA-03/C-9362, along with their goods in order to go to Kakkeri village to attend the village fair. Due to the rash and negligent driving of the truck driven by its driver, the 16 vehicle was met with an accident, all these claimants were sustained grievous injuries and they have taken to the hospital, took treatment and have spent huge amounts towards medical expenses. Hence, they filed claim petitions claiming compensations on various heads.
5. In pursuance to the notice, the respondent No.1, said to be the previous owner of the vehicle remained ex-parte. The respondent No.2 appeared through their counsel and filed separate objections to each claim petitions by denying all the averments made in the petitions as false. Further denied the age, occupation and income of the claimants as false including the disability and taken specific contention that the driver of the truck was not holding valid and effective driving license as on the date of the accident and thereby violated the terms and 17 conditions of the policy. Further the vehicle is medium goods vehicle insured with insurance company under the goods carrying other than three wheeler public carrier-package policy and that the insured has paid the premium towards own damages, legal liability in respect of driver and personal accident cover under Section II for owner/driver and that the policy covers legal liability of three employees of the insured including one driver. The policy does not cover the risk of paid passenger or owners of the vehicles carrying in the truck and there is no special premium collected by the insurer to cover the paid passengers. Hence, prayed for dismissal of the claim petitions.
The respondent No.3, owner of the vehicle, in view of impleaded as party, he also filed objections to the claim petitions by resisting the claims of the petitioners as false and further 18 contended that the vehicle was insured with respondent No.2, the driver had valid license for the vehicle in question to driver the vehicle and if any liability the same shall be fastened on the insurer.
Based upon the rival pleadings, the tribunal framed the common issues as false;
(1) Whether the petitioner proves that alleged accident in question was occurred due to rash and negligent driving of vehicle bearing No.KA-03/C-9362 and the petitioner sustained injuries as alleged?
(2) Whether the said vehicle bearing No.KA-03/C-9362 was insured with the respondent No.2 and the driver of the vehicle bearing No.KA-03/C-9362 was holding valid and eff ective D.L. on the date of alleged accident?
19(3) Whether the petitioner is entitled for compensation? If so, f or what amount and f rom whom?
(4) What award or order?
To substantiate their contention, the claimants have examined almost eight witnesses as PWs.1 to 8 and also examined one doctor Sri A.B.Patil, as PW.9 and got marked 62 documents as Exs.P1 to 62. On behalf of respondent- Insurer its Senior Divisional Manager, has been examined as RW.1 and got marked Exs.R1 and R2. The respondent No.3 not let in any evidence. After considering the evidence on record, the tribunal answered issue No.1 and 2 in the affirmative and allowed the petitions in part granting compensation as under;
MVC No.1135/2011 Rs.1,59,161/-
MVC No.1136/2011 Rs.1,59,589/-
MVC No.1137/2011 Rs.1,34,960/-
MVC No.1138/2011 Rs.31,585/-
20
MVC No.1139/2011 Rs.69,953/-
MVC No.1140/2011 Rs.44,563/-
MVC No.1141/2011 Rs.13,218/-
MVC No.1142/2011 Rs.10,866/-
Assailing the judgment and award passed by the tribunal fastening the liability on the Insurer, the insurance company filed these eight appeals whereas the claimants filed MFA Crob Nos.960/2013, 961/2013, 962/2013 and 963/2013 and they are claimants in MVC Nos.1135/2011, 1136/2011, 1137/2011 and 1139/2011 have filed cross objections for enhancement of compensation.
6. Learned counsel appearing for the Insurer strenuously argued that the Tribunal has committed an error in fastening the entire liability on the Insurer as the insurance coverage was only in respect of 2-3 employees i.e. two workers or coolies and one driver but there is no coverage for the risk of paid 21 passengers or the coolie in the truck which is a goods vehicle. Therefore, fastening the liability on the Insurer requires interference by this Court and liable to be set aside and the owner is liable to pay the compensation.
The learned counsel alternatively argued that even if the owner of the goods is considered as passenger traveled along with goods only two persons are permissible to carry the goods which is covered under the policy but not more than two excluding the driver. Therefore, prayed for allowing these appeals. Further, he contended that even on perusal of the spot panchanama and other documents, it is nowhere stated that the claimants were carried the goods in the vehicle. Even the respondent No.3 the owner denied the carrying of goods. Such being the case, the case of the claimants that cannot be considered as owners carrying the goods in the 22 vehicle and they should be consider as gratuitous passengers. Hence, prayed for allowing the appeals.
7. Per contra, learned counsel appearing for respondents-claimants in all the appeals supported the judgment and award passed and fastening the liability on the insurer and contended that as per Rule 100 of the Karnataka Motor Vehicle Rules, 1989 (hereinafter referred to as 'the KMV Rules', for short), 6 coolies can be permitted to travel in the vehicle which is vehicle being the goods vehicle more than 990 Kgs, required to be carried one person or one owner of the goods vehicle. If it is LMV not more than three and any other goods vehicle not more than seven. Therefore, the Tribunal has rightly fastened the liability on the Insurance Company and prayed for dismissing the appeals filed by 23 the Insurance Company. Learned counsel further contended in respect of cross objections, that the Tribunal has considered only Rs.3,000/- per month as income of the injured persons even though they have claimed Rs.6,000/- per month and they are the persons carrying the goods along with them to sell it in the village fair. The Tribunal ought to have considered the notional income at Rs.5,500/- since the accident has occurred in the year 2010. Therefore, prayed for enhancement of the same.
8. Upon hearing the arguments of the learned counsel for both the parties and on perusal of the records the points that arise for my consideration are;
i. Whether the Tribunal is not justified in f astening the entire liability on 24 the Insurer, which call f or interf erence?
ii. Whether the claimants are entitled for enhancement of compensation?
iii. What order?
9. The claimants have established the
factum of accident that occurred on 23.10.2010 at 10.00 pm, when they are traveling in the truck bearing registration No.KA-03/C-9362 and due to the rash and negligent driving of the driver of the vehicle, the truck met with an accident near Kaundal village in Khanapur- Nandagad road. All the claimants have sustained injuries and were taken to the hospital and treated as in-patients. A complaint also came to be lodged against the driver of the truck. The police after investigation have filed the charge sheet against him. It is also not in dispute that the documents at Exs.P1 to P12, 25 P16 to P19, P21 to P26, P28 to P46, P48 to P62 go to show that the accident was occurred due to the rash and negligent driving of the driver of the truck. The controversy in these appeals is that, the Insurer has taken a specific contention that the vehicle in question was a medium goods vehicle weighing less than un-laden weight of 12000 kg which was permitted to carry only three employees i.e., the driver and two workers/labours which was covered under the policy Ex.R2. There is no evidence to show that the persons carrying the goods are all owners of the goods. There is no extra premium collected to the the owners of the goods in the vehicle. In this regard, the learned counsel relied upon Ex.R2 - the Insurance Policy, which shows that the policy has covered the vehicle in question and as on the date of accident the policy was in force. Though the policy does not reveal the 26 sitting capacity, but it shows only the un-laden weight of the vehicle as 9600 kgs; but the premium received by the Insurer goes to show that, Rs.50,00 has been collected for WC to employee and Rs.100.00 has bee collected for Compulsory PA to owner-driver and for third party risk Rs.5,920/- has been collected as premium. As per the policy conditions, the sitting capacity is 2+1, which is not in dispute.
The learned counsel for the Insurer also relied upon the judgment of the Hon'ble Apex Court in the case of National Insurance Co. Ltd., Vs. Anjana Shyam and Ors. reported in 2007 AIR SCW 5237, wherein the Hon'ble Apex Court has clearly held that, the Insurance Company can be made liable to pay compensation in respect of the permissible capacity covered under the policy and for 27 remaining claims shall recover from the owner of the vehicle.
10. The learned counsel for the respondents/claimants Sri. H. R. Latur brought to the notice of this Court that, as per Rule 100 of the KMV Rules, though in light transport goods vehicle having laden weight of less than 990 kgs, one person can be allowed to carry goods, whereas three persons are permitted in light transport goods vehicle and seven persons are permitted in any goods vehicle. In this regard, the learned counsel also relied upon the judgment of the coordinate bench of this Court in MFA No.21854/2012 and connected matters dated 05.12.2016 in the case of Somappa Vs. Imamsab and another. In the said case, the Coordinate Bench of this Court considered the judgments of the Hon'ble Apex 28 Court in Anjanashyam's case (supra) and in the case of National Insurance Co. Ltd., Vs. Cholleti Bharatamma reported in 2008(1) SCC 423 and held that, in terms of Rule 100 of KMV Rules, the Insurer is liable to indemnify the owner in as much as three persons carried in the goods vehicle along with their goods other than the driver and the liability is fastened on the Insurer. For the purpose of convenience para 18 of the said judgment is extracted as under:
"18. Admittedly, the offending vehicle in question was a light tr ansport goods vehicle having registered laden weight more than 990 kgs. In terms of Rule 100 of Karnataka motor Vehicles Rules, it is settled legal position that the Insurer is liable to indemnify the owner in much as three persons carried in the goods vehicle along with their goods other than the driver. The claim in the present case is with respect to three persons. The 29 liability of the Insurer being conf ined to three persons, the Insurer cannot be aff orded to eschew f rom the liability."
11. Sub-rule(1) of Rule 100 of the Rules reads as under:
"100. Carriage of persons in goods vehicle.
(1) sub jec t to the prov isions of th is rule, no person shall be carried in a goods vehicle:
Prov ided th at the o wner or the h irer or a bon a f ide e mployee of the o wne r of the hirer of the veh icle carried f ree of charge or a police off icer in unif orm tr aveling on duty may be carried in a goods vehicles, the to tal nu mber of persons so c arr ied.-
(i) in light transport goods vehicle having regis tered laden we ight less th an 990 kgs. Not more th an one;
(ii) in any other light tr ansport goods vehicle no t more th an three; and
(iii) in any goods vehicle no t more than seven:
Provided th at th e provis ions of sub- clauses (ii) and (iii) of the above proviso 30 shall not be applic able to the vehicles plying on inter-State routs or the vehicles carrying goods f rom one c ity to another city. (2) xxxxxxxxxxx (3) xxxxxxxxxxx"
12. Though sub-section (21) of Section 2 of the Motor Vehicles Act, 1988 refers to 'light motor vehicle' means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of which, does not exceed 7500 kilograms, as per Section 2(17) of the Act, 'heavy passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12000 kilograms.
31
13. Here in this case, as per the Insurance Policy, the unladen weight of the vehicle is 9600 kgs. Admittedly this vehicle do not fall under neither LMV nor HMV, but it is a medium goods vehicle. However, the Insurance Policy though covers two or three coolies, but there is no coverage in respect of the goods carrying passengers in the vehicle. Rule 100 of KMV Rules clarifies whether the person is allowed to board with goods in the goods vehicle. Rule 100 itself states about carriage of persons in goods vehicle subject to the provisions of the rule, that no person shall be carried in a goods vehicle:
provided that the owner or the hirer or a bona f ide employee of the owner or the hirer of the vehicle carried free of charge or a police officer in uniform traveling on duty may be carried in a goods vehicle, the total number of persons so carried. It is also clarified that, one person can 32 be carried with the vehicle, the laden weight less than 990 kgs and three persons in the light transport goods and seven persons in any other goods vehicle. But the Rule 100 does not say whether these persons are either coolies or employees. But the Rule specifically says the person who carried the goods or the owner or hirer or the bona f ide employees of that owner or hirer of the vehicle carried free of charge. However, as per Rule 100 of KMV Rules, it never says whether it is medium goods vehicle or heavy goods vehicle. Proviso (iii) to sub-rule (1) of the Rule 100 says any goods vehicle not more than seven. That means, the medium goods or heavy goods vehicle which is other than the light transport goods in proviso (ii) to sub-rule (1) of Rule 100.33
14. Therefore, the contention taken up by the Insurance Company that only three persons shall be carried in the vehicle which is a medium goods vehicle can be acceptable. On the other hand, Proviso (iii) to Sub-Rule(1) of Rule 100 never distinguished or differentiate the medium goods vehicle or heavy goods vehicle. It says any goods vehicle other than the light transport vehicle, which can carry seven persons. Therefore, the contention raised by the learned counsel for the respondent/claimants is acceptable and agreeable. Therefore, fastening the liability shall be only for 7 persons on the Insurance Company, whereas the Tribunal has fastened the liability of eight persons which is not permissible even as per the judgment of the Hon'ble Apex Court in Anjanasham's case (supra). As per the judgment of the Hon'ble Apex Court, the permissible limit excluding the 34 driver is six persons and not eight persons. Therefore, the Insurance Company is liable to pay the compensation in seven cases including the driver and not eight persons as held by the Tribunal. Therefore, point No.1 is answered partly in favour of the Insurer and partly in favour of the claimants.
15. As regards computation of compensation in MFA Crob.960/2013 (MVC No.1135/2011), the claimant contended that he was earning Rs.6,000/- per month. But the Tribunal has considered only Rs.3,000/-, which is meager. Even this Court used to consider Rs.5,500/- as notional income for the accidents occurs during the year 2010. Therefore, the income considered by the Tribunal at Rs.3,000/- per month enhanced to Rs.5,500/- p.m. As regards the disability, the claimant examined 35 PW9 - Dr. A. B. Patil, who has assessed the disability as 30% to the upper limb and the Tribunal has rightly considered 10% disability to the whole body. If Rs.5,500/- is considered as income, 10% would be Rs.550 x 12 x 15 (appropriate multiplier for the age group of 35 years) = Rs.99,000/- which would be the compensation towards 'loss of future earning capacity due to disability'. The Tribunal has awarded Rs.40,000/- towards 'pain and suffering' and Rs.40,000/- towards 'loss of amenities', which is sufficient and retained as it is. The Tribunal has awarded Rs.16,161/- towards medical expenses which is also retained. As regards compensation towards 'loss of income during treatment period', the Tribunal has awarded Rs.9,000/- by calculating for three month. But there is no proper documents to show for how many months the injured person 36 has took treatment. Therefore, I propose to consider two months as laid up period instead of three months. Hence, the compensation towards 'loss of income during treatment period' would be Rs.11,000/- (Rs.5,500 x 2). Therefore, the claimant is entitled for the re-assessed compensation as under:
Amount (Rs.) Pain and Suffering 40,000.00 Medical and ancillary expenses 16,161.00 Loss of income during 11,000.00 treatment period Loss of future earning capacity 99,000.00 due to disability Loss of amenities 40,000.00 Total 2,06,161.00
16. As regards computation of compensation in MFA Crob.961/2013 (MVC No.1136/2011), the claimant contended that he 37 was earning Rs.6,000/- per month. But the Tribunal has considered only Rs.3,000/- per month, which is meager. Even this Court used to consider Rs.5,500/- as notional income for the accident occurred during the year 2010. Therefore, the income considered by the Tribunal at Rs.3,000/- per month is meager which requires to be enhanced. As regards the disability, the claimant examined PW9 - Dr. A. B. Patil, who assessed the disability as 30% to the upper limb and the Tribunal has rightly considered 10% disability to the whole body. If Rs.5,500/- is considered as income, 10% would be Rs.550 x 12 x 13 (appropriate multiplier for the age group of 50 years) = Rs.85,800/- which would be the compensation towards 'loss of future earning capacity due to disability'. The Tribunal has awarded Rs.40,000/- towards 'pain and suffering' and Rs.40,000/- towards 'loss of 38 amenities', which is sufficient and need not be interfered with. The Tribunal has awarded Rs.23,789/- towards 'medical and ancillary expenses' which is also retained. As regards compensation towards 'loss of income during treatment period', the Tribunal has awarded Rs.9,000/- by considering the laid up period as three months. But there is no proper documents to show for how many months the injured person has took treatment. Therefore, I propose to consider two months as laid up period instead of three months. Hence, the compensation towards 'loss of income during treatment period' would be Rs.11,000/- (Rs.5,500 x 2). Therefore, the claimant is entitled for the re-assessed compensation as under:
Amount (Rs.) Pain and Suffering 40,000.00 39 Medical and ancillary expenses 23,789.00 Loss of income during 11,000.00 treatment period Loss of future earning capacity 85,800.00 due to disability Loss of amenities 40,000.00 Total 2,00,589.00
17. As regards computation of compensation in MFA Crob.962/2013 (MVC No.1137/2011), the claimant contended that he was earning Rs.6,000/- per month. But the Tribunal has considered only Rs.3,000/- per month, which is meager. Even this Court used to consider Rs.5,500/- as notional income for the accident occurred during the year 2010. Therefore, the income considered by the Tribunal at Rs.3,000/- per month is meager which requires to be enhanced. As regards the disability, the claimant examined PW9 - Dr. A. 40 B. Patil, who assessed the disability as 20% to the upper limb and the Tribunal has rightly considered 6% disability to the whole body. If Rs.5,500/- is considered as income, 6% would be Rs.330 x 12 x 18 (appropriate multiplier for the age group of 21-25 years) = Rs.71,280/- which would be the compensation towards 'loss of future earning capacity due to disability'. The Tribunal has awarded Rs.30,000/- towards 'pain and suffering' and Rs.35,000/- towards 'loss of amenities', which is sufficient and need not be interfered with. The Tribunal has awarded Rs.22,080/- towards 'medical and ancillary expenses' which is also retained. As regards compensation towards 'loss of income during treatment period', the Tribunal has awarded Rs.9,000/- by considering the laid up period as three months. But there is no proper document to show for how many months the injured 41 person has took treatment. Therefore, I propose to consider two months as laid up period instead of three months. Hence, the compensation towards 'loss of income during treatment period' would be Rs.11,000/- (Rs.5,500 x 2). Therefore, the claimant is entitled for the re-assessed compensation as under:
Amount (Rs.) Pain and Suffering 30,000.00 Medical and ancillary expenses 22,080.00 Loss of income during 11,000.00 treatment period Loss of future earning capacity 71,280.00 due to disability Loss of amenities 35,000.00 Total 1,69,360.00
18. As regards computation of compensation in MFA Crob.963/2013 (MVC No.1139/2011), the claimant is a minor. The Tribunal has awarded Rs.20,000/- towards 'pain 42 and suffering', Rs.9953/- towards 'medical and ancillary expenses' and not awarded any compensation towards 'loss of earning capacity', since the claimant is a minor aged about 10 years. Learned counsel for the claimant has contended that the claimant is represented by her father, who was traveling along with him in the vehicle carrying the goods. Therefore, the minor cannot be considered as either passenger or owner of the goods. Even if it is considered that she was accompanied with her father, that is permissible in the vehicle.
The learned counsel relied upon the judgment of the Hon'ble Apex Court in the case of Mallikarjun V. Divisional Manager, National Insurance Co. Ltd., reported in 2013 ACJ 2445, wherein the Hon'ble Apex Court has held, while considering the computation of compensation in respect of minor children for 43 having sustained injuries, if the disability is above 10% and up to 30% to the whole body, Rs.3,00,000/- is required to be awarded, up to 60% Rs.4,00,000/- is required to be awarded, up to 90% Rs.5,00,000/- is required to be awarded and above 90% Rs.6,00,000/- is required to be awarded. For permanent disability up to 10% it should be Rs.1,00,000/- unless there are exceptional circumstances to take different yardstick.
Here in this case, admittedly, the minor has suffered fracture to 7 t h , 8 t h and 9 t h rib left side chest and as per the doctor's evidence, he has suffered 25% disability to the right upper limb. If we consider 1/3 r d , it comes to 10% to the whole body. As per the judgment of the Hon'ble Apex Court in Mallikarjun's case (supra), the award shall be Rs.1,00,000/- if the permanent disability is up to 10%. However, the Hon'ble 44 Apex Court stated that, it should be Rs.1,00,000/- unless there are exceptional circumstances to take diff erent yardstick. Here in this case, though the claimant traveled along with her father who had had carried the goods, but she has only accompanied her father and sustained injuries in the accident and she cannot be compared on par with either the owner of the goods or the labors who carried the goods in the vehicle. Therefore, in my considered opinion, the judgment relied upon by the learned counsel in the case of Mallikarjun (supra) cannot be made applicable to the case of the claimant in this case. Therefore, the award passed by the Tribunal in respect of awarding Rs.69,953/- does not call for any interference and the claimant is not entitled for Rs.1,00,000/- as per the judgment of the 45 Hon'ble Apex Court in Mallikarjun's case (supra).
19. In view of my findings in the above paras, the appeals filed by the Insurance Company regarding fastening of the liability required to be modified. However, as per the judgment of the Hon'ble Apex Court in Anjanashyam's case (supra), wherein the Hon'ble Apex Court held that the Insurance Company is liable to pay the compensation awarded to the extent of number of passengers covered under the Insurance Policy and as per the findings of this Court under Rule 100 of KMV Rules, six persons can be permitted to travel along with the goods excluding the driver. Therefore, the Insurance Company is liable to pay the compensation in six cases, wherein this Court awarded more compensation, whereas in 46 other cases, the owner i.e., respondent No.3 is liable to pay the compensation.
20. In the facts and circumstances of the case, the learned counsel for the claimants stated that the Insurance Company be made liable to satisfy the compensation and then recover from the owner of the vehicle and in this regard relied upon the judgment of the Hon'ble Supreme Court in the case of Anu Bhanvara etc., Vs. Iffco Tokio General Insurance Co. Ltd., & Ors. passed in Civil Appeal Nos.6231- 6232 of 2019 (arising out of S.L.P.(C) Nos.19090-19092 of 2019) dated 09.08.2019.
21. I have perused the judgment of the Hon'ble Apex Court. In paragraph 11 of the said judgment, the Hon'ble Apex Court has clearly stated that; "keeping in view the peculiar f acts and circumstances of this case, we are of the 47 considered view that the principle of 'pay and recover' should be directed to be invoked in the present case'.
A bare reading of the judgment of the Hon'ble Apex Court goes to show that, the Court has exercised the power under Section 142 of the Indian Constitution and therefore, this judgment is not applicable to all other cases except in the said case. Therefore, the contention raised by the learned counsel for the claimant that the Insurance Company shall be made liable to satisfy the award and then recover the same from the owner of the vehicle in two claim petitions cannot be acceptable.
22. In view of the same, the appeals filed by the Insurance Company are allowed in part and MFA Crob. Nos. 960, 961 and 962 are allowed in part and MFA Crob.No.963/2013 is 48 dismissed. The claimants in respective cross- objections are entitled for the compensation as under:
Amount Enhanced MFA awarded by MVC No. Amount CROB. the (Rs.) Tribunal(Rs.) 1135/2011 960/2013 1,59,161/- 2,06,161/- 1136/2011 961/2013 1,59,589/- 2,00,589/- 1137/2011 962/2013 1,34,960/- 1,69,360/-
The Insurance Company is liable to satisfy the award for six claim petitions excluding MVC No.1139/2011 which was of the minor claimant and MVC No.1142/2011 and the compensation the said cases are liable to be recovered from the owner of the vehicle - respondent No.3.
The amount in deposit be transmitted to the Tribunal along with LCRs forthwith except in MVC Nos.1139/2011 and 1142/2011. The amount in deposit in these two appeals is 49 ordered to be refunded to the Insurance Company.
In view of disposing of the main appeals, all pending I.As. are dismissed.
Sd/-
JUDGE msr/gab