The New Assurance Co. Ltd., Vs Irappa @ Iranna @ Veeranna S/O Ratnappa Lamani

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NC: 2025:KHC-D:9532 MFA No. 22129 of 2012 C/W MFA No. 22208 of 2012

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1^ST DAY OF AUGUST, 2025 BEFORE

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THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MISCELLANEOUS FIRST APPEAL NO. 22129 OF 2012 (MV-) C/W MISCELLANEOUS FIRST APPEAL NO. 22208 OF 2012

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IN MFA NO.22129/2012

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BETWEEN:

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THE NEW ASSURANCE CO. LTD., BY ITS DIVISIONAL MANAGER NEW COTTON MARKET, HUBBALLI, HEREIN REP. BY NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, MOTOR THIRD PARTY HUB OFFICE, SRINATH COMPLEX, 2^ND FLOOR, NEW COTTON MARKET, HUBLI-580029 REP BY ITS ASSISTANT MANAGER.

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…APPELLANT

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(BY SRI. RAVINDRA R. MANE, ADV)

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AND:

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Digitally signed by MOHANKUMARB SHELAR MOHANKUMARB SHELARDate: 2025.08.22 13:00:27 +0530

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IRAPPA @ IRANNA @ VEERANNA S/O RATNAPPA LAMANI AGE: 44 YEARS, OCC: COOLIE, R/O: DEVIKOPPA TANDA, TQ: KALAGHATGI, NOW AT MANTUR ROAD, HUBBALLI.

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SRI. CHIDANAND D. SARIKAR AGE: MAJOR, OCC: OWNER OF VEHICLE BEARING NO.KA-31/1664, SHARADA GALLI R/O: RUPU PAVASKAR BUILDING, SHARADA GALLI, YELLAPUR, UTTAR KANNADA DISTRICT.

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…RESPONDENTS

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(BY SRI. DINESH M. KULKARNI, ADV FOR R1, SRI. D.M. MANJUNATH, ADV FOR R2)

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NC: 2025:KHC-D:9532 MFA No. 22129 of 2012 C/W MFA No. 22208 of 2012

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HC-KAR

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THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 09.01.2012 PASSED IN MVC NO.978/2001 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACT COURT-II, DHARWAD, SITTING AT HUBBALLI, AWARDING THE COMPENSATION OF RS.1,93,400/- WITH INTEREST AT THE RATE OF 6% P.A., UP TO 18.09.2007 AND FROM 06.01.2011 TILL THE DATE OF REALISATION.

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THIS APPEAL, COMING ON FOR FINAL HEARING,

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IN MFA NO.22208/2012

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BETWEEN:

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IRAPPA @ IRANNA @ VEERANNA, S/O RATNAPPA LAMANI, AGE: 43 YEARS, OCC: COOLIE, R/O: DEVIKOPPA TANDA, TQ: KALAGHATGI, NOW AT MANTUR ROAD, HUBBALLI DIST. DHARWAD.

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…APPELLANT

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(BY SRI. DINESH M KULKARNI, ADV)

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AND:

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CHIDANAND D SARIKAR, AGE: MAJOR, OCC: OWNER OF THE VEHICLE, R/O: SHARADHA GALLI, RUPU PAWASKAR BUILDING, YALLAPUR, UTTARA KANNADA DISTRICT.

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THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD., NEW COTTON MARKET, HUBBALLI.

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…RESPONDENTS

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(BY SRI. R.R. MANE, ADV FOR R2, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED:09-01-2001 PASSED IN MVC

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HC-KAR

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NO.978/2001 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-II, DHARWAD, SITTING AT HUBLI, 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 JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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The Miscellaneous First Appeal No.22129/2012 is filed by the Insurance Company, challenging the liability and the claimant has filed an appeal in MFA No.22208/2012, seeking an enhancement of the compensation.

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Both these appeals arise out of the Judgment and award dated 09.01.2001, passed in MVC No.978/2001 by the learned Fast Track Court-II, Dharwad, sitting at Hubballi (for short ‘the Tribunal). Hence, taken together for common discussion to avoid the repetition of facts.

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Brief facts leading rise to the filing of these appeals are as follows:

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HC-KAR

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On 12.05.2001, the claimant boarded a vehicle

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bearing No.KA-31/1664 as a passenger and the said vehicle was driving by the driver in a rash and negligent manner. The said vehicle was moving on the HubballiYellapur road. The driver lost control of the vehicle, and due to that the claimant was thrown out of the said vehicle and sustained grievous injuries. He suffered permanent disability and spent a huge amount towards medical expenses. Hence, the claimant filed a claim petition under Section 166 of the Motor Vehicles Act, seeking compensation for the injuries sustained in the road traffic accident.

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Respondent No.1 filed a statement of objections, denying the averments made in the claim petition. It was denied that the accident occurred due to the rash and negligent driving of the Omni Bus bearing No.KA-31/1664 by its driver. It was contended that the

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driver of the offending vehicle was holding a valid driving license at the time of the accident. Hence, in case the

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NC: 2025:KHC-D:9532 MFA No. 22129 of 2012 C/W MFA No. 22208 of 2012

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HC-KAR

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claimant is held entitled to compensation, the respondent No.2-Insurance Company is liable to pay the

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compensation.

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Respondent No.2-Insurance Company filed a

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written statement contending that the claimant was sitting on the roof of the vehicle and it was contended that when

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the vehicle was parked, the claimant had climbed on the roof of the vehicle to remove the luggage without the knowledge of the driver of the vehicle. The driver of the vehicle, without the knowledge moved the vehicle and thus the claimant fell off from the roof of the vehicle. He submits that there was no negligence on the part of the driver of the vehicle. Hence, the Insurance Company is not liable to pay the compensation as claimed by the claimant in the claim petition and prays to dismiss the claim petition.

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The Tribunal, based on the pleadings of the parties, framed the issues.

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HC-KAR

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The claimant, to substantiate his case examined himself as PW-1 and two other witnesses as PW-2 and 3 and marked 86 documents as Ex.P1 to P86. An official of the respondent was examined as RW-1 and marked one document as Ex.R1. The Tribunal, after considering the evidence on record, allowed the claim petition in part and held that the claimant is entitled to a total compensation of Rs.1,93,400/-. It is also held that the respondents are jointly and severally liable to pay the compensation amount and directed the Insurance Company to deposit the compensation amount with accrued interest within three months from the date of the Judgment. The Insurance Company, being aggrieved by the finding on liability, filed MFA No.22129/2012. The claimant, being dissatisfied with the quantum of compensation awarded by the Tribunal, filed an appeal in MFA No.22208/2012.

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Heard the arguments of the learned counsel for the Insurance Company and the claimant.

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HC-KAR

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Learned counsel for the Insurance Company

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submits that the claimant, without the knowledge of the driver of the offending vehicle, climbed on the roof of the vehicle to remove his luggage. At that time, the driver of the vehicle, without knowledge, moved the vehicle. It is contended that there was negligence on the part of the claimant in climbing on the roof of the offending vehicle. He submits that there was no negligence on the part of the driver of the offending vehicle. The said aspect was not considered by the Tribunal. Therefore, the Tribunal has committed an error in fastening the liability on the Insurance Company. Hence, on these grounds he prays to allow the appeal filed by the Insurance Company and prays to dismiss the claim petition filed by the claimant.

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Per contra, learned counsel for the claimant submits that there was no negligence on the part of the claimant and that the accident occurred due to the negligence on the part of the driver of the offending vehicle. He submits that a charge sheet has been filed

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HC-KAR

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against the driver of the vehicle on the ground that there

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was a negligence on the part of the driver of the offending vehicle. He submits that the compensation awarded by the Tribunal is on the lower side. Hence, on these grounds, he

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prays to dismiss the appeal filed by the Insurance Company and prays to allow the appeal filed by the claimant.

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Perused the records and considered the

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submissions of the learned counsel for the parties.

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The points that arise for consideration are with regard to liability and the quantum of compensation.

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Regarding liability:

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There is no dispute that the claimant was traveling in the offending vehicle and the claimant met with an accident and the charge sheet is filed against the driver of the offending vehicle. The charge sheet is marked as Ex.P6. From the perusal of the Ex.P6, it discloses that the accident occurred due to the rash and negligent

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HC-KAR

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driving of the driver of the offending vehicle. The Tribunal was justified in answering issue No.1 in the affirmative. Hence, I do not find any grounds to interfere with the finding recorded by the Tribunal on issue No.1.

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Though the Insurance Company has contended that the claimant has fallen from the roof of the offending vehicle. It was the duty of the driver to take care and drive the vehicle cautiously. Admittedly, the claimant was on the roof of the vehicle to remove the luggage. The driver of the offending vehicle drove the vehicle without due caution. Thus, there was a negligence on the part of the driver of the offending vehicle.

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Further, the Tribunal rightly placed reliance on the Judgment of the Division Bench of this Court in the case of New India Assurance Company, Bangalore vs. Jayashree alias Laxmi and others reported in 2009

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(5) Kant. LJ 654 (DB), wherein when a person falls from

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the roof of the vehicle, in which the claimant was traveling and there is no positive evidence to indicate that neither

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HC-KAR

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the driver nor the conductor of the bus objected the deceased to go on the roof of the bus. In view of the definition of “passenger” under the Karnataka Motor Vehicles Rules, the Court held that ‘deceased also a passenger traveling in bus - no positive prohibition of travel of such passenger or positive banning of covering of such risk of passenger who travel on roof of bus – Appeal dismissed.’

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Admittedly, in the instant case, the Insurance Company has not placed any positive evidence to establish that the driver objected to the claimant going on the roof of the vehicle. Further, the Insurance Company has not examined the driver of the offending vehicle. The Tribunal, considering the proposition laid down by the Division Bench of this Court in the case of Jayashree alias Laxmi and others (supra), held that the Insurance Company is liable to pay the Compensation.

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Further, the Division Bench, considering Section 147(1)(b) of the Motor Vehicles Act, held that, there is no

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HC-KAR

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positive prohibition on such travels or positive banning of covering of such risk of the passengers, to travel on the roof of the bus. The only indication under Section 147(1)(b) is that any passenger of a public service vehicle is covered whenever there is death or bodily injury to such passenger during the accident, arising out of the use of vehicle in a public place. In the strict sense of Section 147 (1) (b) of the M.V.Act, the deceased or the injured was a passenger, traveling in a public transport and died or injured in an act, arising out of the use of the such vehicle, in the public place.

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Admittedly, in the instant case, the claimant sustained injuries in an accident occurred during the use of the vehicle in the public place. The Tribunal was justified in fastening the liability on both, Insurance Company and the owner of the vehicle. I do not find any error in fastening the liability on both, owner of the offending vehicle and the Insurance Company.

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NC: 2025:KHC-D:9532 MFA No. 22129 of 2012 C/W MFA No. 22208 of 2012

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HC-KAR

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Regarding quantum of compensation

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Insofar as the quantum of compensation is concerned, it is contended that the claimant was working as a Mason on contract basis and was earning Rs.4,500/per month. To substantiate the income proof, the claimant has not produced any records. The Tribunal has taken the notional income at Rs.3,000/- per month. As the accident is of the year 2001, the Tribunal was justified in taking the notional income of the claimant at Rs.3,000/- per month.

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The claimant, to prove the disabilities, examined Dr.Suresh Duggani as PW-3. He deposed that he is the Neuro Consultant qualified with M.S. M.Ch. in Neuro surgery from NIMHANS, having experience in the field for above 20 years and he has treated the claimant, who was seriously injured in a road traffic accident on 12.05.2001, and after taking First Aid treatment in KIMS, Hospital Hubballi, the claimant was brought to Shivakrupa Hospital, Hubballi on 14.05.2001 and the claimant was discharged on 10.07.2001 and he deposed that the claimant was

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NC: 2025:KHC-D:9532 MFA No. 22129 of 2012 C/W MFA No. 22208 of 2012

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HC-KAR

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unable to do any work as he was doing earlier and he has

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stated that the claimant has suffered minimal sensorineural hearing loss in the right ear and severe mixed hearing loss in left ear. The defects are permanent in nature and which are added to 22% to 30% physical disability and in neurological aspect at 45% to 50% and thus the total disability is 75% to 80%. The Tribunal, after considering the evidence of PW-3 has assessed the disability to the extent of 15%, which is on the lower side. Though PW-3 has contended that the claimant has suffered the disability to the extent of 75%, even if 1/3^rd is taken it comes to 25%. Considering the evidence of PW-3 and the medical records, this Court reassesses the compensation under the following heads:

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1	Towards pain and suffering	Rs.40,000/-
2	Towards medical expenses	Rs.40,000/-
3	Towards attendant, nourishment and conveyance charges	Rs.25,000/-
4	Loss earning during treatment period (Rs.3,000/-x 5)	Rs.15,000/-

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HC-KAR

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5.	Loss of future earning capacity due to disability [Rs.3,000+1,200(40% of Rs.3,000/-) x 12 x 16 x 25%]	Rs.2,01,600/-
6	Loss of amenities	Rs.25,000/-
	Total	Rs.3,46,600/-

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Thus, in all the claimant is entitled to a total

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compensation of Rs.3,46,600/- as against Rs.1,93,400/-.

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In view of the above discussion, I do not find any grounds to entertain the appeal filed by the Insurance Company and the claimant has made out a ground for enhancement of compensation. Accordingly, I proceed to pass the following:

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ORDER

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(i) The appeal in MFA No.22129/2012 filed by the Insurance Company, is hereby dismissed.

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(ii) The appeal in MFA No.22208/2012, filed by the claimant, is allowed in part.

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(iii) The Judgment and award dated 09.01.2001 passed in MVC No.978/2001

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NC: 2025:KHC-D:9532 MFA No. 22129 of 2012 C/W MFA No. 22208 of 2012

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HC-KAR

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by the learned Fast Track Court-II Dharwad sitting at Hubballi, is modified.

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(iv) The claimant is entitled to an enhanced compensation amount of Rs.1,53,200/with an interest at the rate of 6% per annum from the date of petition till its realisation.

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(v) The Insurance Company is directed to deposit the enhanced compensation amount with accrued interest within eight weeks from the date of receipt of copy of this Judgment.

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(vi) The office is directed to transfer the amount in deposit, and records to the Tribunal forthwith.

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Sd/(ASHOK S. KINAGI) JUDGE

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RHR/CT: BSB List No.: 1 Sl No.: 5

The New Assurance Co. Ltd., v. Irappa @ Iranna @ Veeranna S/O Ratnappa Lamani

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The New Assurance Co. Ltd., v. Irappa @ Iranna @ Veeranna S/O Ratnappa Lamani

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