Allowed

Mr Malappa @ Malleshappa v. J v Shivakumar

Karnataka HC5 Jan 2023MFA/2135/2013

Case brief

AI extract

What is this about?

Appeal against Motor Accident Claims Tribunal award. Court found compensation inadequate. Ordered insurance company to indemnify vehicle owner within six weeks, reversing earlier dismissal of insurer liability.

What did the court decide?

Insurance company directed to indemnify vehicle owner and pay compensation to claimant within six weeks; tribunal award otherwise retained.

Mr Malappa @ Malleshappa Vs J v Shivakumar — Motor Accident Claims | Karnataka HC (2023)

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MFA No. 2135 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF JANUARY, 2023 BEFORE

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THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 2135 OF 2013 (MV)

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BETWEEN:

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MR. MALLAPPA @ MALLESHAPPA S/O PARAMESHWARAPPA AGED ABOUT 40 YEARS R/AT SINGAPURA VILLAGE CHITRADURGA TALUK – 577501

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…APPELLANT

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(BY SRI. V.B.SIDDARAMAIAH, ADVOCATE)

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AND:

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J.V. SHIVAKUMAR, S/O J. VEERAPPA AGED ABOUT 45 YEARS OWNER OF TRACTOR BEARING REG. NO.KA-16/TA-1014-15 R/AT SINGAPURA VILLAGE CHITRADURGA TALUK - 577501

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Digitally signed by V KRISHNA Location: HIGH COURT OF KARNATAKA

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DIVISIONAL MANAGER, DIVISIONAL OFFICE UNITED INDIA INSURANCE CO. LTD., MMK COMPLEX, 2^ND FLOOR, AKKAMAHADEVI ROAD P.J. EXTENSION, DAVANAGERE – 577002

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…RESPONDENTS

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(BY SRI. A.N.KRISHNASWAMY, ADVOCATE FOR R2; R1 SERVED & UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DT:15.12.2012 IN MVC NO.85/2011 ON THE FILE OF I ADDL SR. CIVIL JUDGE, MACT, CHITRADURGA, PARTLY ALLOWING THE PETITION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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MFA No. 2135 of 2013

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JUDGMENT

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This appeal is preferred by the claimant challenging the judgment and award dated 15.12.2012 passed by the I Addl. Senior Civil Judge & Motor Accident Claims Tribunal No.V, Chithradurga (for short ‘the Tribunal’) in MVC No.85/2011. This appeal is founded on the premise of awarding meager and inadequate compensation to the injured – claimant.

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Parties to the appeal shall be referred to as per their status before the tribunal.

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3. Brief facts of the case is as under:

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On 28.08.2010 at about 05.00pm the claimant was proceeding on Singapura – Chithradurga road and when he came near Devapuradahatty Cross, the driver of the Tractor and Trailer bearing Registration No.KA-16 TA-1014 & 1015 came in a rash and negligent manner and dashed against the claimant. Due to the said impact claimant sustained grievous injuries. Immediately he was shifted to Government Hospital at Chithradurga where he took treatment as inpatient from 28.08.2010 till 29.09.2010. The claimant undergone operation to the right leg and implants were inserted.

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MFA No. 2135 of 2013

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Due to the occurrence of accident, the claimant expended huge amounts towards medical expenses and incidental expenses and has sustained grievous injuries and became disabled in the accident due to the rash and negligent driving of the driver of the Tractor and Trailer.

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It is stated that prior to occurrence of accident, the claimant was hale and healthy, aged 37 years and was doing agriculture work and working as a Coolie and earning a sum of Rs.10,000/- per month. Due to the said accident and injuries suffered, the claimant is not in position to do his work as he was doing prior to the accident and he is unable to get back to work. Hence, he filed a claim petition before the Tribunal seeking compensation.

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On issuance of notice to respondents, both the respondents were appeared and filed their statement of objections separately. Respondent No.1 – owner of the offending vehicle – Tractor and Trailer vehicle pleaded that the alleged accident taken place due to negligence of the claimant himself. He contended that he is the Owner and RC holder and he got insured the offending vehicle – Tractor and Trailer with

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MFA No. 2135 of 2013

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the respondent No.2 – Insurance Company and the policy at the time of accident was in force. It further pleaded that the claim made by the claimant is exorbitant and denied the age, avocation and income including the injuries as alleged in the claim petition. It further pleaded that the claim made by the claimant is excessive, exorbitant and without any basis. On this basis, sought for dismissal of claim petition.

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Respondent No.2 – Insurance Company has also filed detailed statement of objections in both the claim petitioners, denying the occurrence of accident, involvement of vehicle, existence of insurance policy and both the drivers not possessing a valid and effective driving license as on the date of occurrence of accident, so also, the age, occupation and income of the deceased. It contended that the insurance policy was issued to the Tractor and Trailer which is meant for using it only for agriculture purpose. The respondent No.1 violated the terms and conditions of the policy and allowed coolie worker to travel in the Tractor and Trailer and hence they are all unauthorized passengers. It also pleaded that the amount of compensation sought for the claimants was highly inflated,

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MFA No. 2135 of 2013

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unreasonable, exorbitant and on these grounds, sought for dismissal of the claim petitions.

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On the basis of pleadings, the Tribunal framed relevant issues for consideration. In order to substantiate the issues and to establish the case, the claimant got examined himself as PW1 and got marked documents as Exs.P1 to P20, whereas respondent No.1 got examined RW3 and 4 and respondent No.2 got examined RW1 & RW2 as witnesses on their behalf. Respondent No.2 – Insurance Company got marked the documents as Ex.R1 and Ex.R6.

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On the basis of material evidence both oral and documentary, the Tribunal awarded compensation of Rs.86,000/- with interest at the rate of 6% per annum from the date of petition till its deposit and directed the respondent No.1 – Owner of the offending vehicle – Tractor and Trailer to pay the entire compensation. The Tribunal dismissed the claim petition as against respondent No.2 – Insurance Company.

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Being aggrieved by the meager compensation amount awarded, the claimant is before this Court seeking enhancement of compensation.

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MFA No. 2135 of 2013

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It is the vehement contention of learned counsel for claimant that the Tribunal has erred in awarding meager compensation and has not taken into consideration the material evidence both oral and documentary thereby causing miscarriage of justice to the claimant. He further contends that the Tribunal has not awarded compensation under the head of loss of amenities and an erroneous order is passed absolving the liability of insurance company and fixing absolute liability on the owner of the offending vehicle. On this basis, he seeks to allow the appeal and to enhance the compensation awarded by the Tribunal and direct the Insurance Company to pay the compensation.

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Per contra , learned counsel for the respondent No.2-Insurance Company vehemently contends that the judgment and award passed by the Tribunal is in accordance with material evidence both oral and documentary and same does not call for interference at the hands of this Court. Learned counsel contends that the Tribunal has awarded just and reasonable compensation based on the injuries sustained by the claimant and interference by this Court is not warranted under the facts and circumstances of the case. On this basis, he

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MFA No. 2135 of 2013

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seeks to dismiss the appeal as same does not merit consideration.

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Having heard the learned counsel for the claimant and learned counsel for respondent No.2 - Insurance Company, the points that would arise for consideration before this Court are:

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i) Whether the claimant is entitled for enhancement of compensation?

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ii) Whether liability is to be fastened jointly on the Insurance Company and owner ?

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iii) What order ?

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Having perused the entire material evidence both oral and documentary and the impugned judgment and award, I am of the opinion that the Tribunal has committed an error in awarding meager compensation thereby point Nos.1, 2 and 3 are answered in the affirmative i.e. in favour of the claimant. Therefore, the claimant would be entitled for marginal indulgence of enhancement of compensation.

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It is not in dispute that the accident occurred on 28.08.2010 at 05.00pm. The involvement of the vehicle, occurrence of accident, injuries having been sustained by the

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MFA No. 2135 of 2013

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claimant are all not disputed. It is also not disputed that a case came to be registered in Crime No.463/2010 for the offences punishable under Sections 279, 337 and 338 of IPC read with Section 187 of the M.V.Act against the driver of the Tractor and Trailer and after investigation the police have also laid charge sheet against him.

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In order to substantiate this aspect and to prove the same, the claimant has produced the documents as Exs.P1 to P7, which are the police records wherein the driver of the Tractor and Trailer has been charged with criminal offence as stated above. Under the circumstances, no contra material has been placed before the tribunal or before this Court to prove the same as invalid or not being genuine. In the absence of such material before the Court and there being no challenge to the charge-sheet by the driver of tractor, the negligence is rightly attributed against the driver of tractor by the Tribunal.

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The main ground urged in this appeal is that the Tribunal has faltered in awarding meager and inadequate compensation under various heads and an erroneous order is passed absolving the liability of Insurance Company and fixing

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MFA No. 2135 of 2013

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9;absolute liability on the owner of the offending vehicle - Tractor and Trailer.

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It is vehement contention of the learned counsel Sri A.N. Krishna Swamy appearing for respondent No.2 – Insurance Company that question of any law on the Insurance Company would not arise in this case for the reason that Policy of Insurance with regard to offending vehicle does not cover the risk of the claimant as the Policy was issued for agricultural purpose, but admittedly the vehicle was used to transport some commercial goods and it is in breach of terms and condition of the Policy and Policy does not show any premium to cover the risk of the passenger in question and Tribunal is right in dismissed the claim petition as against Insurance Company.

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This Court is of the opinion that the contention of the learned counsel for Insurance Company cannot be accepted to absolve the Insurance Company of the liability to make payment for the reason that the Hon’ble Apex Court has held in catena of judgments that even if the claimant is a passenger and if the owner is held liable to pay the compensation to the claimant, since the Policy of the offending vehicle is in force as

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MFA No. 2135 of 2013

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on the date of occurrence of accident, it is the duty of the Insurance Company to satisfy the award and recover the same from the owner of the offending vehicle.

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Admittedly, in the present case on hand the claimant was traveling as passenger sitting on the top of the cement bricks, he is a gratuitous passenger in the said vehicle and sustained injuries. The Tribunal held that even though the offending vehicle – Tractor and Trailer is insured with respondent No.2 – Insurance Company, the respondent No.1 allowed and used the tractor as goods carrier and at the time of accident cement bricks were loaded in the trailer. Hence, there is breach of terms and conditions of the Policy and the risk of the claimant is not covered in the policy.

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Be that as it may, the Insurance Company cannot be absolved of payment of the compensation in view of the principles laid down in the case of MANUARA KHATUN AND OTHERS vs RAJESH KUMAR SINGH AND OTHERS reported in (2017) 4 SCC 796. This is a fit case to invoke the principle of pay and recovery. The liability is to be fastened on the owner of the offending vehicle, in this case it is Tractor and Trailer and

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MFA No. 2135 of 2013

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it is also not the case of the claimant that he was carrying any goods as employee or the person who was traveling along with the goods in the offending vehicle. Hence, the liability cannot be fastened on the Insurance Company and the liability would be fastened only on the owner of the offending vehicle, but the insurance company would have to pay first & would be at the liberty to recover from the owner of the tractor. In view of the above discussion, the question formulated in this appeal is answered accordingly.

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Therefore, I proceed to pass the following order.

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ORDER

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i) Appeal is partly allowed.

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ii) The judgment and award dated 15.12.2012 passed by the I Addl. Senior Civil Judge & Motor Accident Claims Tribunal No.V, Chithradurga (for short ‘the Tribunal’) in MVC No.85/2011, is modified.

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iii) The award of compensation determined by the Tribunal in favour of the claimant in a sum of

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MFA No. 2135 of 2013

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Rs.86,000/- with interest @ 6% per annum from the date of petition till its realization, is retained and not disturbed.;

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iv) The award of the Tribunal with regard to dismissing the claim petition as against the respondent No.2 – Insurance Company is set aside.;

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v) The award of the Tribunal with regard to holding that the respondent No.1 – Owner of the offending vehicle is retained and not disturbed.;

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vi) In view of the fact that the Insurance Policy is in force as on the date of occurrence of accident, the respondent No.2 – Insurance Company is directed to indemnify the respondent No.1 – owner of the offending vehicle by paying the entire compensation amount to the claimant within a period of six weeks from the date of receipt of the copy of this order.;

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MFA No. 2135 of 2013

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vii) The respondent No.2 – Insurance Company is at liberty to recover the same from the respondent No.1 - owner of the offending vehicle.

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viii) The entire compensation amount awarded by the Tribunal shall be released in favour of the claimant.

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Sd/JUDGE

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VK List No.: 1 Sl No.: 71

Mr Malappa @ Malleshappa v. J v Shivakumar

Case brief

What is this about?

What did the court decide?

Mr Malappa @ Malleshappa v. J v Shivakumar

Case brief

What is this about?

What did the court decide?

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