Partly allowed

B.S. Mallikarjuna v. Hanumanthappa

Karnataka HC23 Feb 2021MFA/11071/2011

Case brief

AI extract

What is this about?

Two miscellaneous first appeals filed challenging a Motor Accident Claims Tribunal award of ₹1,06,200. The owner appellant contested liability while the claimant appellant sought enhancement. The High Court allowed both appeals in part, re-calculating quantum based on updated income guidelines and enhanced compensation to ₹1,57,900 payable by the insurer.

What did the court decide?

Enhanced compensation of Rs. 1,57,900 with interest at 7% per annum from date of claim petition till realization, payable by the insurer within one month.

B.S. Mallikarjuna Vs Hanumanthappa — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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M.F.A. NO.11071 OF 2011 (MV)

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C/W

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M.F.A. NO.11550 OF 2011 (MV)

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IN M.F.A NO.11071/2011:

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BETWEEN:

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B.S. MALLIKARJUNA S/O SIDDAVEERAPPA, AGED ABOUT 44 YEARS OWNER OF BUS BEARING REG NO.KA-16/A-6566 BILICHODU VILLAGE, JAGALUR TALLUK-577553.

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...APPELLANT

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(BY SRI. M.R. HIREMATHAD, ADVOCATE)

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AND:

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HANUMANTHAPPA S/O BASAPPA, AGED ABOUT 42 YEARS, BUS AGENT, R/O TUMBIGERE, DAVANGERE TALUK-577001.

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BASAVARAJU S/O BORAPPA, AGED ABOUT 45 YEARS, DRIVER OF BUS BEARING REG. NO.KA-16/A-6566,

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BILICHODU VILLAGE, JAGALUR TALUK-577553.

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BAJAJ ALLIANZ GENERAL INSURANCE CO., LIMITED, REPRESENTED BY ITS BRANCH MANAGER SRI MURUGHARAJENDRA COMPLEX, JAYADEVA CIRCLE, DAVANGERE-577001.

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…RESPONDENTS

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(BY SRI. G.M. CHANNABASAIAH, ADVOCATE FOR RESPONDENT NO.2;

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SRI. O. MAHESH, ADVOCATE FOR RESPONDENT NO.3; VIDE COURT ORDER DATED 12.11.2014 APPEAL AGAINST RESPONDENT NO.1 IS DISMISSED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 18.04.2011 PASSED IN MVC NO.169/2009 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL-V, DAVANAGERE, AWARDING A COMPENSATION OF RS.1,06,200/WITH INTEREST AT 7% PER ANNUM FROM THE DATE OF PETITION TILL REALIZATION.

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IN M.F.A NO.11550/2011:

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BETWEEN:

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HANUMANTHAPPA S/O BASAPPA, AGED ABOUT 42 YEARS, BUS AGENT, R/O TUMBIGERE, DAVANAGERE TALUK.

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...APPELLANT

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(BY SRI. JAGADEESH GOUD PATIL, ADVOCATE)

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AND:

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BASAVARAJ S/O BORAPPA, AGED ABOUT 45 YEARS, DRIVER OF BUS BEARING REG NO.KA-16-A-6566, BILICHODU VILLAGE, JAGALURU TALUK.

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B.S. MALLIKARJUNA S/O SIDDAVEERAPPA, AGED ABOUT 42 YEARS OWNER OF BUS BEARING REG NO.KA-16-A-6566 BILICHODU VILLAGE, JAGALUR TALLUK.

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BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED REPTD., BY ITS BRANCH MANAGER SRI MURUGHARAJENDRA COMPLEX, JAYADEVA CIRCLE, DAVANAGERE.

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…RESPONDENTS

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(SERVICE OF NOTICE TO RESPONDENT NO.1 IS DISPENSED WITH VIDE COURT ORDER DATED 17.01.2014; SRI. M.R. HIREMATHAD, ADVOCATE FOR RESPONDENT NO.2; SRI. H.S.LINGARAJ, ADVOCATE FOR RESPONDENT NO.3)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 18.04.2011 PASSED IN MVC NO.169/2009 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND MACT-V, DAVANAGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 01.12.2020 AND COMING ON FOR

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PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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M.F.A. No.11071/2011 has been admitted in terms

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of the order dated 23.01.2017 passed by a coordinate Bench of this Court. MFA No.11550/2011, which has come up for admission, is taken up for final disposal with the consent of the learned counsel for the parties.

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MFA No.11550/2011 is filed by the claimant seeking enhancement of the compensation awarded by the I Additional Senior Civil Judge and Motor Accident Claims Tribunal – V, Davanagere, (henceforth referred to as the ‘Tribunal’) in M.V.C No.169/2009.

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MFA No.11071/2011 is filed by the owner of the bus bearing registration No.KA.16/A-6566 (henceforth referred to as the ‘offending vehicle’) challenging the liability imposed upon him to pay part of the compensation awarded by the Tribunal in MVC No.169/2009.

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The appellant in MFA No.11550/2011

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(respondent No.1 in MFA No.11071/2011), will henceforth be referred to as the ‘claimant’. The appellant in MFA No.11071/2011, who is respondent No.2 in MFA No.11550/2011, will henceforth be referred to as the owner of the offending vehicle. The common respondent No.3 in both the appeals will henceforth be referred to as the ‘insurer’ of the offending vehicle.

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The claim petition discloses that the claimant

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was an agent, who was authorized to collect fares from passengers in the offending vehicle on stage-wise basis. It is contended that on 14.11.2008, when he was conducting the offending vehicle as an agent, the driver drove it dangerously and caused an accident due to which, the claimant suffered injuries. The claimant was taken to a hospital where he was admitted for 15 days. He contended that the injuries had left him disabled and that he was not able to attend to his routine activities. He therefore filed a claim petition under Section 166 of the

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Motor Vehicles Act, 1988, claiming compensation of a sum of Rs.5,00,000/-.

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The driver of the offending vehicle did not contest the claim petition. The owner of the offending vehicle though entered appearance, did not file any statement opposing the claim. The insurer of the offending vehicle contested the claim petition by filing its objections and denied the accident, the injuries sustained by the claimant, employment status of the claimant etc.

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Based on these rival contentions, the Tribunal

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framed issues and set down the case for trial.

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The claimant was examined as PW.1 and a Doctor was examined as PW.2 and they marked documents as Exs.P1 to P50. The insurer on the other hand examined a Doctor as RW.1 and marked two documents as Exs.R1 and R2. Based on the oral and documentary evidence, the Tribunal held that the claimant had suffered permanent disability to an extent of 10% and since the claimant did not produce any proof of income,

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the Tribunal considered the notional income of the claimant at a sum of Rs.3,500/- per month and awarded the following compensation:

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Sl. No.	Heads of compensation	Amount in Rupees
1	For pain and suffering	25,000/-
2	Medical expenses, nourishment, diet and attendant charges	15,000/-
3	Loss of income during laid up period	10,000/-
4	Loss of future income on account of permanent physical disability	46,200/-
5	Loss of amenities and enjoyment of life	10,000/-
	TOTAL	1,06,200/-

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The Tribunal awarded interest on the aforesaid compensation at the rate of 7% per annum from the date of the claim petition till the date of realization.

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In so far as the liability to pay the compensation is concerned, the Tribunal held that the insurer of the offending vehicle was liable to pay compensation only to the extent of the disability as

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provided under the Workmen’s Compensation Act, 1923 (hereinafter referred to as the ‘Act of 1923’) i.e., a sum of Rs.24,000/- with interest at 7% per annum from the date of the petition till the date of realization and directed the owner of the offending vehicle to pay the remaining compensation with proportionate interest.

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Feeling aggrieved by the quantum of compensation awarded by the Tribunal and terming it as inadequate, the claimant has filed appeal in MFA No.11550/2011. The owner of the offending vehicle has also filed appeal in MFA No.11071/2011 challenging the liability imposed upon him by the Tribunal to pay part of the compensation.

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The learned counsel for the owner of the offending vehicle contended that the Tribunal committed an error in imposing liability on him to pay part of the compensation since the offending vehicle was admittedly covered by a commercial package policy in terms of which, the claimant was fully covered and therefore, the Tribunal

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ought to have imposed the entire liability upon the insurer of the offending vehicle to pay the compensation.

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Per contra, the learned counsel for the claimant contended that the Tribunal had awarded an inadequate compensation by considering the notional income of the claimant at a sum of Rs.3,500/- per month. He also contended that the evidence of PW.2 - Doctor clearly disclosed the injuries sustained and the disability suffered by the claimant. Therefore, the Tribunal ought to have awarded adequate compensation towards medical expenses, future medical expenses, etc.

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We have considered the submissions made by the learned counsel for the parties.

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We have also perused the records of the Tribunal as well as its judgment and award.

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It is not in dispute that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle. The finding of the Tribunal regarding the negligence of the driver of the offending vehicle is not

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challenged and therefore, it has become final. It is also not in dispute that the claimant was an agent in the Bus and therefore, the Tribunal could not have considered the claimant as a conductor of the offending vehicle and therefore, could not have employed the provisions of the Act of 1923. The Tribunal ought to have considered the claimant as an injured and not as a ‘workman’ under the Act of 1923. In that view of the matter, the Tribunal ought not to have fastened the liability to pay compensation on the owner of the offending vehicle.

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In so far as the claim for enhancement of compensation is concerned, having regard to the fact that the accident occurred in the year 2008, the Tribunal ought to have considered the notional income of the claimant at a sum of Rs.4,500/- as prescribed by the Karnataka State Legal Services Authority and having regard to the permanent physical disability suffered by the claimant which was assessed at 10% by the Tribunal, the

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compensation to which he was entitled to, had to be reasonable.

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In that view of the matter, the compensation

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to which the claimant is entitled to, is re-determined as follows:

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Heads of Compensation Amount in
Rupees
Pain and suffering 25,000/-
Loss of income due to 59,400/-
disability
(Rs.4500/- x 12 x 11 x
10%)
Loss of income during the 13,500/-
period of treatment
Loss of amenities and 25,000/-
enjoyment of life
Future medical expenses 10,000/-
Medical expenses, 25,000/-
nourishment, diet and
attendant charges
Total 1,57,900/-

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In view of the above, the appeal – MFA

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No.11071/2011 filed by the owner of the offending vehicle

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as well as the appeal – MFA No.11550/2011 filed by the claimant are allowed in part. In modification of the impugned Judgment and Award passed by the Tribunal in MVC No.169/2009, the compensation to which the claimant is entitled to is enhanced from Rs.1,06,200/- to Rs.1,57,900/-, which is payable by the insurer of the offending vehicle along with interest at the rate of 7% per annum from the date of the claim petition till the date of realization, to the claimant.

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The insurer shall deposit the compensation

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along with interest as stated above within a period of one month from the date of receipt of a certified copy of this judgment.

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The amount in deposit shall be released to the owner of the offending vehicle.

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sma

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Sd/JUDGE

B.S. Mallikarjuna v. Hanumanthappa

Case brief

What is this about?

What did the court decide?

B.S. Mallikarjuna v. Hanumanthappa

Case brief

What is this about?

What did the court decide?

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