IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 Before The Hon’ble Mr.JusticeB.M.Shyam Prasad Miscellaneous First Appeal No.6043 of 2011 C/W Miscellaneous First Appeal Crob No. 186 of 2011 IN MFA NO. 6043 OF 2011 Between:
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED 1/82, BRANCH OFFICE, NANZAMMA’S COMPLEX I FLOOR, THUDILUR MITTAPALAM ROAD, NEXT TO HDFC BANK LIMITED, COIMBATORE,HEREIN REPRESENTED BY REGIONAL OFFICE, T.B.R. TOWERS, NEW MISSION ROAD, ADJACENT TO JAIN COLLEGE, BENGALURU – 560 002.
BY ITS ASST VICE PRESIDENT (LEGAL) ... APPELLANT (BY SRI.H S LINGARAJ, ADVOCATE) And:
1. U. H SHAHAJAHAN AGED 22 YEARS, SON OF U.H. SULAIMAN RESIDENT OF SULAFA COMPLEX, NATEKALLU ASAI GOLI POST, MANJANADY GRAMA MANGALORE TALUK, DAKSHINAKANNADA DISTRICT.
2 . M. ABDUL RAHIMAN MAJOR, SON OF K.M MOHAMMAD DOOR NO.4/95, MANJANADY GRAMA BHANDASALE, MANGALORE TALUK, DAKSHINA KANNADA DISTRICT.
... RESPONDENTS (BY SRI. T.SANDESH SHETTY, ADVOCATE FOR R2;
NOTICE TO R1 HELD SUFFICIENT VIDE ORDER DATED 07.08.2019) THIS MISCELLENEOUS FIRST APPEAL IS FILED UNDER SEC.173(1) MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.03.2011 PASSED IN MVC NO. 792/2008 ON THE FILE OF II ADDITIONAL DISTRICT JUDGE & MEMBER, MACT-III, DAKSHINA KANNADA, MANGALORE, AWARDING A COMPENSATION OF RS. 2,09,710/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
IN MFA CROB NO.186/2011 BETWEEN:
MR U. H. SHAHAJAHAN SON OF U.H. SULAIMAN AGED 23 YEARS, RESIDING AT SULAFA COMPLEX, NATEKALLU ASAIGOLI POST, MANJANADYGRAMA, MANGALORE TQ. D.K. DISTRICT – 574 199.
... CROSS OBJECTOR (BY SRI SANDESH SHETTY. T., ADVOCATE) AND:
1. MR M. ABDUL RAHIMAN SON OF K.M. MOHAMMAD, ADULT, RESIDING AT DOOR # 4/95, MANJANADY, BHANDASALE, MANGALORE TALUK D.K – 574 199.
2. THE BAJAJ ALLIANZ INSURANCE CO.LTD 1/82, BRANCH OFFICE: NANZAMMAS COMPLEX, 1ST FLOOR, THUDILUR,MITTAPALAM ROAD, NEXT TO HDFC BANK LTD., COIMATORE-641 045 REPRESENTED BY ITS BRANCH MANAGER.
... RESPONDENTS (SRI H.S. LINGARAJ, ADVOCATE FOR R2; NOTICE TO R1 IS HELD SUFFICIENT VIDE ORDER DATED 07.08.2019) THIS MISCELLENEOUS FIRST APPEAL CROB IN MFA NO.6043/2011 FILED U/O 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 31.03.2011 PASSED IN MVC NO. 792/2008 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE, MEMBER, MACT-III, DAKSHINA KANNADA, MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLENEOUS FIRST APPEAL AND MISCELLENEOUS FIRST APPEAL CROB. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the appellant- insurer and the learned counsel for the claimant- respondent No.1, and perused the appeal memorandum, cross objections and the impugned judgement and award dated 31.03.2011 in M.V.C. No.792/2008 on the file of the II Additional District Judge & Member MACT-III, D.K.Mangaluru (for short, the tribunal). The tribunal has partly allowed the claim petition filed by the claimant-injured granting a total sum of Rs.2,09,710/- along with interest at the rate of 6% p.a from the date of petition till realization holding that the insurer-appellant and the owner of the goods tempo bearing registration No. KA-19-B-5738 would be jointly and severally liable to pay the compensation and the interest.The amount of Rs.2,09,710/- is awarded under the following heads:-
1 Pain and Suffering Rs.30,000/-
2 Attendant, Food, Extra nourishment diet expenses Rs.5,750/-
3 Medical expenses Rs.54,560/-
4 Loss of income Rs.12,000/-
5 Loss of future earning capacity Rs.86,400/-
6 Future unhappiness and loss of amenities 7 Conveyance, transportation and incidental expenses Rs.15,000/- Rs.6,000/-
Total Rs.2,09,710/- Rounded off Rs.2,09,710/-
2. The learned counsel for the Insurer and the injured-claimant do not dispute that the injured- claimant met with a road accident on 11.11.2007 when he was travelling in goods auto bearing registration No.KA-19/B.5738 (for short, the offending vehicle). The injured-claimant was travelling along with the driver of the goods vehicle, when it turned turtle because the driver-respondent No.2 was rash and negligent. The injured-claimant suffered fracture in his right lower limb, and that the goods vehicle was insured with the Insurer under a package policy.
3. The learned counsel for the Insurer submits that the evidence on record establishes that the injured- claimant was travelling as a “gratuitous passenger” in the goods vehicle, and it is settled that a gratuitous passenger in a goods vehicle will not be statutorily covered. The tribunal, despite the evidence on record which established that the injured-claimant was travelling as a gratuitous passenger, has concluded that it will have to be deemed that the injured-claimant had hired the goods vehicle for transporting the refrigerator. As such, the claimant was not a gratuitous passenger and the Insurer would be liable. The tribunal’s finding that the injured-claimant had hired the goods vehicle to transport refrigerator for repair is totally extraneous to the evidence on record, and in any event the Insurer would not be liable if it is established that the person who claims to have hired the vehicle for transporting the goods was in fact not travelling in the vehicle with such goods. He relies upon the decision of the Hon’ble Supreme Court in the case National Insurance Co. Ltd., Vs. Kaushalaya Devi and others reported in 2008 ACJ 2144.
4. On the other hand the learned counsel for the injured-claimant, who has filed cross objections seeking enhancement in the compensation, argued that the Insurer has collected an additional premium of Rs.25/- towards the “limited liability of operation/maintenance”. Therefore, the Insurer cannot dispute its liability even if it could be argued that the injured-claimant was travelling only as a passenger. The learned counsel also argued that the tribunal’s finding that the injured-claimant had hired the vehicle for transporting refrigerator for repair is founded on proper appreciation of the evidence on record. It is settled that evidence in a claim for compensation for injury suffered in a road accident should be construed liberally in favour of the claimants because the provisions of the Motor Vehicle Act, 1988 are provisions for social benefit. Therefore, there would be no justification for any interference at the instance of the appellant.
5. Insofar as enhancement in the compensation, the learned counsel for the injured- claimant argued that the injured-claimant has suffered multiple fracture injuries. Despite the same, the tribunal has granted only a sum of Rs.30,000/- towards the pain and suffering. The compensation towards pain and suffering should be much higher. The tribunal has taken the income of the injured-claimant at Rs.4,000/- per month though the evidence on record is that he was earning Rs.5,000/- per month, and if the income is taken as Rs.5,000/- per month, the injured-claimant would be entitled for enhanced compensation awarded towards the loss of future earning capacity. The learned counsel also argued that the injured-claimant ought to have been granted a higher sum towards food, nourishment and conveyance charges.
6. In the light of the rival submissions, the questions that arises for consideration in this appeal are:-
a) Whether the tribunal’s finding that the injured-claimant had hired goods tempo (a goods vehicle) for transporting refrigerator for repair is justified in the light of the evidence on record, and if the tribunal’s finding in this regard is not justified, what would be the appropriate order?
b) Whether the injured-claimant is entitled for any enhancement in the compensation awarded by the tribunal.
7. The injured-claimant has stated both in the claim petition and in his evidence that he was employed with the owner of a petrol bunk as an assistant. He was acquainted with the owner of the goods vehicle- respondent No.1, who visited the petrol bunk to fill fuel. He hired the goods vehicle to transport his refrigerator, and as such, he was travelling with the driver of the goods vehicle to his residence to load the refrigerator and transport the same for repairs. The injured- claimant has been cross examined, and he has only reiterated the same in the cross examination. The injured-claimant has not examined any body other than him to establish his employment with the owner of the petrol bunk as an assistant or that he had hired the goods vehicle to transport his refrigerator for repairs. If only the injured-claimant had examined concerned witnesses and placed documentary evidence to corroborate his assertion, the claimant’s contention could be accepted as credible and believed. In the absence of such evidence/corroboration, his assertion would only be a self serving testimony. In the absence of such evidence, the tribunal has erred in concluding that it would be appropriate to deem that the injured- claimant had hired the goods vehicle for transportation of refrigerator for repair. There is no provision in law for deeming any fact in this regard. The injured-claimant must establish every such fact as would be necessary to sustain a claim against an Insurance company. The tribunal’s finding is therefore not justified and accordingly, the first question is answered.
8. Further, because this Court has concluded, on re-appreciation of evidence, that the injured- claimant had not hired the goods vehicle to transport his refrigerator for repair, the submission by learned counsel for the Insurer that the Insurer would not be liable is accepted and the Insurer absolved of the liability to compensation/interest to the injured- claimant. The first question is answered accordingly.
9. The injured-claimant has examined the doctor who treated him as PW.2, and the doctor has deposed that the injured-claimant has suffered 10% to 12% disability because of the injuries suffered in the accident. In the light of this evidence the tribunal has concluded that the injured-claimant has suffered 10% permanent disability. The tribunal’s conclusion being based on the doctor evidence does not call for any interference. Though the injured-claimant has contended that he was being paid Rs.5,000/- per month as salary, he has not placed any evidence. The notional income is according to the schedule evolved for settlement in Lok-Adalath would be Rs.4,000/- per month. The tribunal, in the absence of definite evidence as regards the actual income, has taken the notional income which would be on par with the notional income as per the schedule evolved for settlement in Lok- Adalath in the case of the accidents in the year 2007. As such, no interference is called for even on this count. The tribunal has determined appropriate compensation. For the foregoing, the following order:-
The appeal by the Insurer is allowed, and the impugned judgement and award in MVC No.792/2008 on the file of the II Additional District Judge & Member, MACT- III, D.K.Mangaluru is modified holding that the Insurer-appellant will not be liable to pay compensation as awarded by the tribunal to the claimant and the cross objector who shall be entitled to receive compensation and interest as awarded only from the respondent No.1. The amount in deposit in this appeal be returned to the insurer – appellant.
*MFA CROB No. 186/2011 is dismissed.
Sd/- Judge KPS *Inserted vide Court order dated 12.02.2020.