Allowed

B.S.Krushi v. Badhruddin

Karnataka HC17 Oct 2022MFA/3501/2013

Case brief

AI extract

What is this about?

In a special memory minority appeal against an Motor Accidents Claim Tribunal award, the High Court allowed the appeal in part. It held that the appellant was not an unauthorized passenger, exonerating the vehicle owner and fastening liability on the insurer. The court enhanced the compensation to Rs. 1,23,440/- with interest. (Note: Subjects array contains erroneous generic values due to input sc

What did the court decide?

The appeal is allowed in part; the award is modified granting Rs. 1,23,440/- payable by the Insurance Company with interest.

B.S.Krushi Vs Badhruddin — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17^TH DAY OF OCTOBER, 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.3501/2013 (MV)

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BETWEEN:

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B.S.KRUSHI S/O. B.J.SURENDRA, AGED ABOUT 38 YEARS, OCCUPATION: COFFEE PLANTER, BAGHAMANE ESTATE, BYRAVALLI GRAMA, MALLANDUR POST, CHIKMAGALUR TALUK AND DISTRICT. … APPELLANT

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(BY SRI VINOD GOWDA, ADVOCATE)

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AND:

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1 . BADHRUDDIN

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S/O. NOOR AHMED, AGED ABOUT 49 YEARS, R/O. NEAR ANUPAMA TALKIES ROAD, TIPPUNAGAR, CHIKMAGALUR CITY-577 001

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2 . SURENDRA SHETTY S/O. SEENA SHETTY, AGED ABOUT 54 YEARS, R/O. SOWRABHA, 2^ND CROSS, CHRISTIAN COLONY, CHIKMAGALUR-577 001.

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3 . THE NEW INDIA ASSURANCE CO. LTD., NEAR ANDE CHATRA, I.G.ROAD CROSS, CHIKMAGALUR CITY-577 001. ... RESPONDENTS

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(BY SRI E.I.SANMATHI, ADVOCATE FOR R3; SRI B.S.SACHIN, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH VIDE COURT ORDER DATED 05.06.2015)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.02.2013 PASSED IN MVC NO.722/2009 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE, MEMBER MACT, CHIKMAGALUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR FINAL 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 learned counsel appearing for respondent Nos.2 and 3.

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This appeal is filed challenging the judgment and

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award dated 02.02.2013 passed in M.V.C.No.722/2009 on the file of the Additional District Judge and MACT at Chikmagalur (‘the Tribunal’ for short).

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case of the claimant before the Tribunal is that on 01.07.2006 at about 5.00 p.m., when he was traveling in a lorry along with the timber, the driver of the lorry drove the same in a rash and negligent manner and capsized the lorry. As a result, he sustained fracture on his left lateral end clavicle and left acromascarist and he was inpatient for one day.

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In order prove his claim, he examined himself as P.W.1 and examined the Doctor as P.W.2, who assessed the disability at 20% to the left shoulder and clavicle and 10% to whole body. However, the Tribunal has taken the disability at 6% and awarded compensation of Rs.60,080/- and fastened the liability on the owner of the vehicle, in coming to the conclusion that the claimant was an unauthorized passenger. Hence, the present appeal is filed by the claimant questioning the quantum of compensation fastening the liability on the owner-insured.

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The main contention of the claimant before this

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Court is that, in the complaint itself, the claimant has stated that he was proceeding along with timber in the lorry. On the other

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hand, though it is contended by the learned counsel for the respondent No.3-Insurance Company that he was an unauthorized passenger, no document is placed before the Court and the witness, who has been examined as R.W.1 has admitted the same. Inspite of the same, the Tribunal comes to the conclusion that he was an unauthorized passenger. Hence, it requires interference of this Court. The counsel also would submit that the disability taken at 6% by the Tribunal is very meager and hence, it has to be revisted and just and reasonable compensation is to be awarded.

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Learned counsel for the respondent Nos.2 and 3 would vehemently contend that the Tribunal rightly comes to the conclusion that the claimant was an unauthorized passenger and no document is placed to show that he was having timber along with him in the lorry and the compensation awarded is also just and reasonable and it does not require any interference.

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Having heard the respective counsel and also on

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perusal of the material available on record, the accident has occurred on 01.07.2006 and the complaint was given on the

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very same day. When the accident took place, with regard to whether timber was loaded in the lorry or not, nothing is mentioned in the spot mahazar, except the fact that the lorry was capsized at the spot. It has to be noted that the P.W.1 in his evidence and also in the claim petition has stated that he was traveling along with timber in the lorry and in the complaint also, it is stated that, at the time of the accident, there was timber in the lorry. Merely because the same is not mentioned in the spot mahazar, the same cannot be a ground to arrive at a conclusion that there was no timber. No doubt, the Insurance Company also examined one witness as R.W.1, he also reiterates their contention. But, in the cross-examination, he admits that, in order to transport silver tree, no permit is required. Apart from that, he also admits that, in order to come to an conclusion that he was an unauthorized passenger, nothing is placed on record. When such admission is available before the Court and in the immediate document of complaint which was given on the same day it is specifically mentioned that at the time of the accident, he was proceeding along with the timber, the Tribunal ought not to have accepted the contention of the Insurance Company, in

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the absence of any cogent evidence. Hence, it requires interference of this Court in exonerating the liability of the Insurance Company.

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With regard to the quantum of compensation is concerned, the Tribunal has taken the income at Rs.4,000/- per month and it was the accident of the year 2006. Hence, I do not find any error in taking the income. But, the fact is that the claimant has sustained fracture on his left lateral end clavicle and left acromascarist and the Doctor has assessed the disability at 20% to the left shoulder and the clavicle and 10% to the whole body. But, the Tribunal has taken the disability at 6%. Having considered the evidence of P.W.2, it is clear that fracture is malunited and hence, the Tribunal ought to have taken the disability at 8%. Hence, taking the income at Rs.4,000/- per month, multiplier ‘16’ and the disability at 8%, the loss of future income comes to Rs.61,440/-.

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The compensation awarded towards medical expenses in a sum of Rs.5,000/- does not require any interference since, the same is awarded based on the records.

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The Tribunal has awarded a sum of Rs.4,000/towards loss of income during laid up period. Considering the nature of injuries sustained, taking the laid up period as 3 months, a sum of Rs.12,000/- (4,000 x 3) is awarded towards loss of income during laid up period.

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The Tribunal has awarded a sum of Rs.5,000/-

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towards food and nourishment and the same does not require any interference.

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Having considered the hospitalization of the claimant, the Tribunal has not awarded any compensation towards loss of amenities. It is the accident of the year 2006 and taking the disability at 8%, it is appropriate to award Rs.15,000/- on the head of loss of amenities since, the claimant was aged about 34 years at the time of the accident.

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The Tribunal has not awarded any compensation towards pain and suffering and having taken note of the nature of injuries i.e., fracture on his left lateral end clavicle and left acromascarist and taking note of the fact that it is the accident

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of the year 2006, it is appropriate to award a sum of Rs.25,000/towards pain and suffering. Hence, in all, the claimant is entitled for compensation of Rs.1,23,440/- as against Rs.60,080/awarded by the Tribunal.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is allowed in part. (ii) The impugned judgment and award of the Tribunal dated 02.02.2013 passed in M.V.C.No.722/2009 is modified granting compensation of Rs.1,23,440/- as against Rs.60,080/- with interest at 6% per annum from the date of petition till deposit.

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(iii) The liability is fastened on the Insurance Company exonerating the liability on the owner of the vehicle.

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(iv) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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

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(vi) In other respects, the order of the Tribunal remains undisturbed.

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Sd/JUDGE

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B.S.Krushi v. Badhruddin

Case brief

What is this about?

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B.S.Krushi v. Badhruddin

Case brief

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