IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.No.3278 OF 2012 (MV) BETWEEN:
BOJARAJA S/O. RAMAIAH AGED ABOUT 40 YEARS YAGACHIHALLI VILLAGE HULIYARU HOBLI CHIKKANAYAKANAHALLI TALUK TUMAKURU DISTRICT – 573 201.
..APPELLANT (BY SRI.GIRISH B. BALADARE, ADVOCATE) AND:
1. THE DIVISION OFFICE ORIENTAL INSURANCE CO. LTD., DWAARAKA, 6TH FLOOR, 79 OTHTHAMAR GANDHI SALAI CHENNAI TAMILNADU REPRESENTED BY: DIVISION OFFICE ORIENTAL INSURANCE CO. LTD., SUBHASH CHOWK HASSAN – 573 201 2. MOHAMMED JAFAR S/O. ABDUL GHANSAB AGED 66 YEARS D.No.288, 2ND BLOCK SHARIF MOHALLA HULIYARU CHIKKANAYAKANAHALLI TALUK TUMAKURU DISTRICT – 573 201.
... RESPONDENTS (BY SRI. H.S. LINGARAJ, ADVOCATE FOR RESPONDENT No.1 SRI. K.C. SHANTH KUMAR, ADVOCATE FOR RESPONDENT No.2) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 21.10.2011 PASSED IN MVC No.1455/2007 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is before this Court in this appeal not being satisfied with the quantum of compensation and also aggrieved by the fastening of liability on the owner of the offending vehicle, under judgment and award dated 21.10.2011 in MVC No.1455/2007 on the file of the Additional Senior Civil Judge and Additional Motor Accident Claims Tribunal (hereinafter referred to as ‘the Tribunal’), Hassan.
2. The claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries sustained by him in a road traffic accident, which occurred on 15.11.2006. It is stated that on 15.11.2006 at about 11.00 p.m., when the claimant was traveling along with vegetables in the lorry bearing registration No.KA.44-136 on NH.48, B.M. Road, Shiradi Ghat, Sakaleshpur Taluk, driver of the lorry drove the same in a rash and negligent manner and the lorry turtled in Shiradi Ghat due to which the claimant sustained injuries.
3. On issuance of summons, respondent Nos.1 and 2 appeared before the Tribunal and filed objections.
Respondent No.1, owner of the lorry, contended that the claimant has filed false and frivolous petition and also denied that the accident occurred due to the rash and negligent driving of the lorry by its driver.
4. Respondent No.2 – Insurance Company filed its objections denying the claim averments. It further denied that the accident occurred due to the rash and negligent driving of the lorry by its driver.
5. The claimant examined himself as PW.1 and also examined PW.2 - Doctor in support of his case. The claimant also got marked the documents as per Exs.P1 to P8. The Tribunal on scrutiny of the material on record, awarded total compensation of Rs.1,10,700/- with interest at 6% per annum from the date of petition till the date of realization and saddled liability to pay compensation on the owner of the lorry. Aggrieved by the quantum of compensation and saddling the liability on the owner of the lorry, the claimant is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondents.
7. Learned counsel for the claimant - appellant submits that the Tribunal committed an error in saddling liability to pay compensation on the owner of the lorry instead of saddling the liability jointly on both the respondents. It is the case of the claimant that he was traveling along with vegetables in the lorry so as to sell the vegetables in Mangaluru. Therefore, he submits that the claimant was not a gratuitous passenger, but he was traveling with the goods. As such, the insurer is liable to pay the compensation. Further, he submits that the compensation awarded by the Tribunal on various heads is on the lower side.
8. Learned counsels for the respondents would submit that the compensation awarded by the Tribunal is just and proper and the same needs no interference. Further, learned counsel for the insurer submits that the claimant has not produced any evidence to demonstrate that he was traveling along with his goods in the lorry and on the contrary, it has come on evidence that the claimant was a loader with the lorry. Insurance is not covered to the loader. Hence, he prays for dismissal of the appeal.
9. The contention of the appellant is that he was traveling in the offending vehicle along with his goods, but, in his evidence, he has not produced any material to indicate that he was traveling in the lorry with his goods. As such, the Tribunal has rightly saddled the liability to pay compensation on respondent No.1 therein – owner. The Tribunal has awarded compensation of Rs.3,000/- on the head of conveyance, attendant charges, food and nourishment and another Rs.3,000/- on the head of loss of earning during laid-up period, which appears to be on the lower side. Thus, the claimant would be entitled for Rs.10,000/- each on those heads including the compensation awarded by the Tribunal on those heads.
10. Thus, the claimant would be entitled for total compensation of Rs.1,24,700/- as against Rs.1,10,700/- awarded by the Tribunal with interest at 6% per annum from the date of petition till the date of payment. Accordingly, the Appeal is partly allowed.
sma SD/- JUDGE