Partly allowed

Smt Sannamma v. Sri Kiran Kumar @ Kiran

Karnataka HC28 Oct 2022MFA/3509/2014

Case brief

AI extract

What is this about?

Appeals against a motor vehicle accident compensation award were partially allowed. The High Court enhanced the compensation significantly, corrected interest rates, and established the Insurance Company's liability despite an employee exception in the policy.

What did the court decide?

Affected compensation order modified to grant Rs. 3,52,940/-; interest reduced to 6%; liability fixed on Insurance Company.

Smt Sannamma Vs Sri Kiran Kumar @ Kiran — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^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.3509/2014 (MV-I) C/W. M.F.A.NO.4875/2014 (MV-I)

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IN M.F.A.NO.3509/2014:

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BETWEEN:

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SMT. SANNAMMA W/O. DASAPPA AGED ABOUT 65 YEARS R/AT GOLLARAHATTI, CHOLAMBALLI GULUR HOBLI-572 118 HONNUDIKE POST TUMAKURU TALUK AND DISTRICT.

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…APPELLANT

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(BY SRI V.B. SIDDARAMAIAH, ADVOCATE)

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AND:

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SRI KIRAN KUMAR @ KIRAN S/O. ERAMUDDAIAH AGED ABOUT 20 YEARS R/AT GOLLARAHATTI CHOLAMBALLI GULUR HOBLI- 572 118 HONNUDIKE POST TUMAKURU TALUK AND DISTRICT.

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THE NATIONAL INSURANCE CO. LTD. KASTURI MANSION M.G. ROAD ABOVE CORPORATION BANK TUMAKURU-572 101 REP. BY ITS MANAGER.

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...RESPONDENTS

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(BY SRI PATEL D. KAREGOWDA, ADVOCATE FOR R-1; SRI L. SREEKANTA RAO, ADVOCATE FOR R-2)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.03.2014 PASSED IN MVC NO.504/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, MACT, TUMAKURU, AWARDING COMPENSATION OF Rs.1,22,500/WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN M.F.A.NO.4875/2014:

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BETWEEN:

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KIRAN KUMAR @ KIRAN AGED ABOUT 20 YEARS S/O. ERAMUDDAIAH R/O. CHOLAMBALLI GOLLARAHATTI HONNUDIKE POST GULUR HOBLI TUMKUR TALUK AND DISTRICT.

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…APPELLANT

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(BY SRI PATEL D. KAREGOWDA, ADVOCATE)

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AND:

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SANNAMMA, MAJOR W/O. DASAPPA,

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R/O. GOLLARAHATTI, CHOLAMBALLI, GULUR HOBLI HONNUDIKE POST TUMKUR TQ. & DIST-572 101.

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THE BRANCH MANAGER NATIONAL INURANCE COMPANY LIMITED KASTURI MANSION M.G. ROAD ABOVE CORPORATION BANK

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TUMAKURU-572 101.

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…RESPONDENTS

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(BY SRI L. SREEKANTA RAO, ADVOCATE FOR R2; R1 SERVED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.03.2014 PASSED IN MVC NO.504/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT SESSIONS JUDGE AND MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS 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 appellants and learned

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counsel for the respondents.

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These appeals are filed challenging the judgment and award dated 14.03.2014 passed in M.V.C.No.504/2012 on the

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file of the II Additional District and Sessions Judge and MACT, Tumakuru (‘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 in M.F.A.No.4875/2014 before the Tribunal is that on 03.03.2012, he was traveling in the tractor belonging to respondent No.1 as Coolie and the tractor driver drove the same in rash and negligent manner. As a result, the tractor was capsized and hence, he had sustained injuries and immediately, he was taken to the Hospital, wherein he took treatment as an inpatient.

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In order to claim the compensation, he examined himself as P.W.1 and the Doctor as P.W.2 and so also the owner of the tractor as P.W.3 and got marked the documents as Exs.P1 to P15. On the other hand, the respondent-Insurance Company examined one witness as R.W.1 and got marked the copy of the policy as Ex.R1.

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The Tribunal, after considering both oral and

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documentary evidence placed on record, awarded compensation of Rs.1,22,500/- with interest at 8% per annum and observed that, if the compensation amount is not deposited within 60 days from the said date, it shall carry interest at 9% per annum and fastened the liability on the owner of the vehicle. Hence, the claimant as well as the owner of the vehicle have filed the present appeals.

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The main contention of the appellant in

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M.F.A.No.3509/2014 is that the Tribunal committed an error in fastening the liability on the insured and the fact that the P.W.3, who is the owner of the vehicle has deposed before the Court

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that the injured was working as a Loader and Unloader in the tractor and he was engaged in carrying haystack has not been considered by the Tribunal. The counsel also would submit that the compensation awarded by the Tribunal is on the higher side as there were no fractures and the same has not been proved. Hence, it requires interference of this Court.

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Learned counsel appearing for the claimant in M.F.A.No.4875/2014 would contend that the compensation awarded under all the heads is very meager and the Tribunal failed to consider the disability, while awarding compensation. Hence, it requires interference of this Court.

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Per contra, learned counsel for the respondent-

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Insurance Company would vehemently contend that P.W.3 deposed before the Tribunal admitting that the injured was an employee of him but, not contested the matter by engaging a counsel and not filed any written statement and instead supported the claim of the claimant. The Tribunal taking note of the said fact into consideration, comes to the conclusion that he was a passenger and not a Coolie. Hence, it does not require any interference.

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Having heard the respective counsel and also on perusal of the material available on record, particularly, while answering issue No.1 in Para No.13 discussed in detail regarding the evidence available on record and also taken note of the fact that the owner of the tractor has stated that the petitioner was

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Coolie and he was engaged as Coolie to bring haystack and the Tribunal has also observed that, as could be seen from the records, in the instant case, there is nothing on record to show that petitioner was traveling as Coolie in the tractor-trailer on that particular day and comes to the conclusion that, at the most, it can be said that the petitioner was traveling in the tractor as a passenger and except examining R.W.1 as witness, nothing is placed on record before the Tribunal by the Insurance Company to show that the petitioner was a passenger.

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On perusal of the document Ex.P1, copy of the FIR,

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it is categorically mentioned that the petitioner was a Coolie. In order to controvert the said document, no cogent evidence is placed before the Court. When such being the case, the Tribunal ought not to have presumed that he was a passenger, in the absence of any documentary evidence or any cogent evidence. Hence, the Tribunal committed an error in coming to the conclusion that he was a passenger without any basis. Therefore, it requires interference and there is a force in the

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contention of the learned counsel for the appellant/insured that the Tribunal committed an error.

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Now coming to the quantum of compensation is concerned, it was the accident of the year 2012 and the claimant in the appeal vehemently contend that the Tribunal committed an error in awarding Rs.20,000/- on the head of pain and agony when the injured had sustained both bone fracture. It is also contended that the income taken at Rs.4,500/- per month for awarding compensation towards loss of income during laid up period is very meager and the notional income would be Rs.7,000/- per month. It is further contended that no compensation is awarded on the head of loss of future income on account disability. Hence, it requires interference.

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Having heard the respective counsel and also on perusal of the material available on record, the claimant was inpatient for a period of 5 days and the Tribunal awarded a sum of Rs.5,000/- towards conveyance and Rs.5,000/- towards attendant charges, food and nourishment and I do not find any error committed by the Tribunal in awarding the same.

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The Tribunal has awarded a sum of Rs.20,000/towards pain and agony. It was the accident of the year 2012 and when the claimant had sustained both bone fracture, the Tribunal ought to have taken note of the same. Hence, it is appropriate to award Rs.40,000/- as against Rs.20,000/awarded by the Tribunal.

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The Tribunal awarded a sum of Rs.38,500/- towards medical expenses, based on the documentary evidence and it does not require any interference.

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The Tribunal awarded a sum of Rs.9,000/- towards loss of income taking the income at Rs.4,500/- per month for a period of two months. When the claimant had sustained both bone fracture, it requires minimum 5 months for uniting fracture and rest. Hence, taking the notional income at Rs.7,000/- per month for a period of 5 months, a sum of Rs.35,000/- is awarded towards loss of income.

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The Tribunal awarded a sum of Rs.20,000/- towards

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discomfort and loss of amenities. The claimant is aged about 18

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years and he has to lead rest of his life with the disability. Hence, it is appropriate to award Rs.30,000/- as against Rs.20,000/- awarded by the Tribunal.

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The Tribunal awarded a sum of Rs.25,000/- towards future medical expenses and the same is just and reasonable and it does not require any interference.

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The Tribunal failed to award any compensation towards loss of future income when the claimant had sustained disability at 10% as per the evidence of the Doctor and having considered the nature of injury i.e., Grade-1 compound fracture of both bones and Ex.P9-X-ray also discloses the same, the Tribunal ought to have taken note of the same. Hence, it is appropriate to assess the disability at 12% as against 10% taken by the Tribunal and assess the compensation towards loss of future income. Having considered the income at Rs.7,000/- per month, disability at 12% and relevant multiplier ’18’, a sum of Rs.1,81,440/- is awarded towards loss of future income. Hence, in all, the claimant is entitled for compensation of Rs.3,52,940/as against Rs.1,22,500/- awarded by the Tribunal.

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The Tribunal has awarded interest at 8% per annum

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and in case of default in payment of amount within 60 days, ordered to pay the amount with interest at 9% per annum. Having taken note of the fact that the matter is of the year 2012 and disposed of in the year 2014, the interest awarded is on the higher side and the same is reduced to 6% per annum as against split interest of 8% and 9% per annum.

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The learned counsel for the respondent-Insurance Company would vehemently contend that, under Rule 100 of the Karnataka Motor Vehicles Rules, 1989, the company cannot be held liable to pay the compensation. However, on perusal of the policy, it is seen that an amount of Rs.25/- is collected towards WC to Employee 1. Hence, when a Coolie is carried in a tractortrailer which was used for transportation of haystack, the very contention of the Insurance Company that the company is not liable to pay the compensation cannot be accepted.

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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 14.03.2014 passed in M.V.C.No.504/2012 is modified granting compensation of Rs.3,52,940/- as against Rs.1,22,500/- with interest at 6% per annum, instead of split interest of 8% and 9% from the date of petition till deposit.

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(iii) The liability is fastened on the Insurance Company to pay the compensation 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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Smt Sannamma v. Sri Kiran Kumar @ Kiran

Case brief

What is this about?

What did the court decide?

Smt Sannamma v. Sri Kiran Kumar @ Kiran

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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