Partly allowed

Vijaykumar v. the Manager

Karnataka HC21 Nov 2022MFA/2268/2014

Case brief

AI extract

What is this about?

The court allowed two Motor Accidents Appeals in part. It held the lower Tribunal erred by fixing liability on the insured instead of the Insurance Company, confirming the claimants were carriage sugarcane passengers. Compensation enhancement was rejected due to lack of medical proof.

What did the court decide?

Amended award fixing liability on Insurance Company; directed to pay compensation with 6% interest within six weeks.

Vijaykumar Vs the Manager — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.2185/2014 (MV-I) C/W M.F.A.NO.2268/2014 (MV-I)

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M.F.A.NO.2185/2014:

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BETWEEN:

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CHANDRASHEKAR, S/O SWAMY, AGED ABOUT 25 YEARS, R/O KALENAHALLYKAVLU, HALEKOTE HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT-523201.

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...APPELLANT

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(BY SRI GIRISH B. BALADARE, ADVOCATE)

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AND:

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THE MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., 1^ST FLOOR, MYSORE TRADE CENTER, OPP. KSRTC BUS STAND, MYSORE-570001.

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VINAY, S/O RAMANNA, AGED ABOUT 36 YEARS, R/O SHANTHIGRAMA VILLAGE & POST, TEMPLE ROAD,

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...RESPONDENTS

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SHANTHIGRAMA HOBLI, HASSAN TALUK AND DISTRICT-573201.

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(BY SRI H.S. LINGARAJ, ADVOCATE FOR R1, SRI LAKSHMAN MURTHY, ADVOCATE FOR MURTHY AND ASSOCIATES FOR R2)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD 20.12.2013 PASSED IN MVC NO.628/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE &J.M.F.C, MACT, HOLENARASIPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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M.F.A.NO.2268/2014:

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BETWEEN:

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VIJAYKUMAR, S/O RAMALINGAIAH, AGED ABOUT 33 YEARS, R/O KALENAHALLY KAVLU, HALEKOTE HOBLI, HOLENARASIPURA TALUK, HASSAN DISTRICT-523201.

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...APPELLANT

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(BY SRI GIRISH B. BALADARE, ADVOCATE)

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AND:

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THE MANAGER, RELIANCE GENERAL INSURANCE CO. LTD., 1^ST FLOOR, MYSORE TRADE CENTRE, OPP KSRTC BUS STAND, MYSORE-570001.

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VINAY, S/O RAMANNA, AGED ABOUT 36 YEARS, R/O SHANTHIGRAMA VILLAGE & POST

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TEMPLE ROAD, SHANTHIGARAMA HOBLI, HASSAN TALUK AND DISTRICT-573201.

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...RESPONDENTS

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(BY SRI H.S. LINGARAJ, ADVOCATE FOR R1, SRI LAKSHMAN MURTHY, ADVOCATE FOR R2)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD 20.12.2013 PASSED IN MVC NO.627/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & J.M.F.C, MACT, AT HOLENARASIPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE M.F.As. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard the learned counsel for the appellant and the learned counsel for respondent Nos.1 and 2.

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These two appeals are filed by the claimants challenging the judgment and award dated 20.12.2013, passed in M.V.C.Nos.628/2012 and 627/2012, respectively, on the file of the Senior Civil Judge and J.M.F.C., Holenarasipura (‘the Tribunal’ for short).

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The main contention of the learned counsel for the claimants is that the compensation awarded is very meagre and the Tribunal committed an error in fastening the liability on the

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insured instead of the Insurance Company. No doubt, there is a discrepancy in mentioning the vehicle number, but the vehicle was seized and also found damages in respect of the vehicle, which was involved in the accident. The learned counsel submits that the compensation awarded is very meagre because the claimant in M.V.C.No.628/2012 sustained fracture of 3^rd rib and swelling on left parietal region and the claimant in M.V.C.No.627/2012 suffered tenderness contusion over left face and head injury and hence it requires interference of this Court.

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The learned counsel for the Insurance Company submits that the Tribunal has taken note of the mahazar, which is marked as Ex.P.3. On perusal of Ex.P.3, nowhere it is mentioned that the claimants were carrying the sugarcane and the Tribunal comes to the conclusion that they were the passengers travelling in the goods vehicle. Hence, the liability of the Insurance Company is exonerated and it does not require any interference of this Court.

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The learned counsel for respondent No.2/owner would contend that the insured was not represented before the Tribunal and not filed the written statement and might have

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taken the signature in the police station. The learned counsel would contend that no summons was served on the insured. Apart from that, no treatment was given to the claimants in the hospital on the date of the accident and only on the next day, they went to the hospital and took the treatment as inpatient and hence the liability fastened on the insured has to be set aside.

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Having heard the respective learned counsel and also

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on perusal of the material available on record, the points that arise for the consideration of this Court are:

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(i) Whether the Tribunal committed an error in fastening the liability on the insured instead of the Insurance Company as contended by the claimants.

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(ii) Whether the Tribunal has committed an error in not awarding just the reasonable compensation?

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(iii) What order?

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Point No.(i):

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Having heard the respective learned counsel and also

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on perusal of the material available on record, P.W.1 and P.W.2,

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who are the injured witnesses have claimed in the affidavit evidence that both were travelling in the lorry carrying the sugarcane and the driver of the lorry went and dashed against the electric pole as a result, they sustained injuries. P.W.1 was subjected to cross-examination and in the cross-examination he says that he was sitting by the side of the driver and they were carrying the sugarcane to Chintamani and the sugarcane was purchased from Somanna. It is suggested that they were traveling as passengers and the same was denied. It is also admitted that on the next day they went and took the treatment in the hospital. P.W.2 in his evidence claims that accident occurred at 6.30 p.m. on 17.05.2009 and in the crossexamination he deposed that he was carrying the sugarcane to Chintamani. He denies that they were proceeding as passengers and he claims that they went to Government hospital and took the treatment as an inpatient, but not subjected to any surgery.

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On the other hand, the respondent examined one witness as R.W.1, who is the Deputy Manager of the Insurance Company and in his evidence he claims that the complaint was given on the next day and history was given as RTA lorry upside and the vehicle number is mentioned as KA-15-5161 and the

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vehicle involved in the accident is KA-13-5166 and nowhere in the mahazar it is mentioned that they were carrying sugarcane. He was subjected to cross-examination and in the crossexamination he admits that he gave details of the vehicle KA-155161. It is suggested that vehicle KA-13-5166 was involved in the accident and the same was denied. He admits that the police have filed the charge-sheet against the driver of the vehicle KA-13-5166 and the same is not questioned. He submits that in Ex.P.7 wound certificate the vehicle number is mentioned. In the cross-examination he admits that on the date of the accident, the claimants were carrying sugarcane in the lorry.

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9. Having heard the respective learned counsel and also

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on perusal of the evidence of P.W.1 and P.W.2, they specifically deposed that they were carrying sugarcane in the vehicle. On perusal of Ex.P.1 complaint, which was recorded in the hospital, they have stated that they were carrying sugarcane in the lorry. The police have also investigated the matter and filed the charge-sheet. In the charge-sheet accusation is made that they were carrying the sugarcane in the lorry. R.W.1 admits that police have investigated the matter and filed the charge-sheet

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against the vehicle KA-13-5166 and no doubt, there was a discrepancy in mentioning the vehicle number. But the fact is that the charge-sheet was filed against the driver of the lorry KA-13-5166 and the same is admitted and the same is not questioned. The respondent is not disputing the fact that KA-135166 vehicle met with an accident and took the vehicle to his custody. When such being the material available on record, when there is an admission on the part of R.W.1 in the crossexamination that P.W.1 and P.W.2 were carrying sugarcane in the lorry, the Tribunal committed an error in not noticing the admission elicited from the mouth of R.W.1 and when there is an admission, the same need not to proved. Hence, the Tribunal committed an error in fastening the liability on the insured instead of the Insurance Company. Hence, point No.(i) is answered in the affirmative.

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Point No.(ii):

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Now coming to the quantum of compensation is concerned, admittedly the injured persons were not taken to the hospital. Though they claim that they went to the Government Hospital on the date of the accident, no such document is placed before the Court and the documents which have been placed

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before the Court i.e., wound certificate of respective claimants clearly discloses that they went to the hospital on the next day. Though they claim that there was a fracture of femur and also sustained head injury, no x-ray is produced before the Court. Having taken note of the injuries mentioned in the wound certificate, the Tribunal rightly awarded compensation of Rs.18,000/- and 15,000/- respectively and no grounds are made out in the appeal to enhance the compensation by producing any additional documents before the Court to show that they have suffered the fracture. In the absence of the same, I do not find any merit in the appeal to enhance the compensation. Accordingly, point No.(ii) is answered.

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Point No.(iii):

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In view of the discussions made above, I pass the following:

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ORDER

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(i) The appeals are allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 20.12.2013, passed in M.V.C.Nos.628/2012 and 627/2012, is modified setting aside the liability fastened on

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the insured and the liability is fastened on the Insurance Company.

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(iii) The Insurance Company is directed to pay the compensation amount with interest at the rate of 6% per annum within six weeks from today.

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(iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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Vijaykumar v. the Manager

Case brief

What is this about?

What did the court decide?

Vijaykumar v. the Manager

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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