IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO. 2889 OF 2010 (MV) BETWEEN:
SRI PUTTASWAMAIAH SON OF LATE SRI. CHOOLURAIAH AGED ABOUT 52 YEARS RESIDNENT OF VADDARAHALLI VILLAGE KAILANCHA HOBLI RAMANAGARA TALUK RAMANAGARA DISTRICT.
(BY SRI.ABHINAV ANAND, ADVOCATE FOR SRI. C. NAGESH, ADVOCATE) ... APPELLANT AND:
1. SRI. SHIVANNA SON OF SRI. SIDDAPPA AGED ABOUT 47 YEARS SINCE DEAD BY IN LR.
1(a) MASTER YOGESH SON OF SRI. SHIVANNA AGED ABOUT 9 YEARS RESIDING AT ANEKEMPANAHALLI VILLAGE MADBAL HOBLI MAGADI TALUK RAMANAGARA DISTRICT BEING MINOR REPRESENTED BY HIS NATURAL MOTHER AND GUARDIAN.
2. SMT. SOWBHAGAYA WIFE OF SRI. SHIVANNA AGED ABOUT 38 YEARS.
BOTH RESIDENTS OF AMELEMPANAHALLI VILLAGE, MADBAL HOBLI, MAGADI TALUK RAMANAGARA DISTRICT.
... RESPONDENTS (BY SRI. B.N. GOPALA KRISHNA, ADVOCATE FOR RESPONDENT 1 AND 2 , ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.02.2010 PASSED IN MVC NO.7496 OF 2007 ON THE FILE OF I ADDITIONAL SCJ AND MACT, BENGALURUR, AWARDING A COMPENSATION OF RS.1,80,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALISATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the owner of the Tractor- trailer bearing Registration No. KA-42-T15021/1503, who by the impugned judgment and award dated 5.2.2010 is called upon to pay compensation of Rs.1,80,000/- along with interest at the rate of 6% p.a from the date of petition till the date of deposit. The Insurance Company is able to avoid its liability as the Tractor-trailer was not insured as on 24.4.2009, the date of accident. However, the claimants, who are the parents of the deceased 8 year old boy who died because of the injuries suffered in the accident involving the aforesaid Tractor-trailer, filed a claim petition arraigning the appellant as well as M/s ICICI Lombard General Insurance Company Limited. In view of the undisputed position that the Insurance Policy issued by this Insurance Company had expired as of the date of the accident, the Insurance Company was deleted from the array of parties vide order dated 24.9.2009.
2. The respondent No.2, the mother of the deceased young boy, examined herself in support of the claim petition, and marked Exhibits P.1 to P.12 which included Police records. The appellant examined himself as RW.1. The Tribunal, on appreciation of the respective cases, concluded that the accident was because of rash and negligent driving of the driver of the Tractor-trailer, and because the deceased was a 8 year old, the Tribunal awarded a global sum of Rs.1,80,000/- as compensation.
3. The learned counsel for the appellant, while submitting that the appellant had in compliance with the interim orders granted by this court, has deposited a sum of Rs.90,000/- submitted that the appellant with the passage of time is in further dire financial constraints. The Tractor-trailer has been seized and sold by the financial institution which had extended loan for the purchase of the Tractor-trailer and the appellant is eking out his livelihood working as a labourer. These subsequent events will have to be considered and the compensation awarded by the Tribunal be reduced accordingly.
4. Difficult as the situation could be for the appellant, it does not command itself for consideration by this court in the light of evidence on record that the demise in the accident was brought about by the rash and negligent driving of the Tractor-trailer owned by the appellant. The Police records corroborate the claim insofar as actionable negligence on the part of the said driver, and further the appellant has not placed any evidence to dislodge the evidence by the claimants. In fact, the appellant is categorical in his evidence that he was not even a witness to the accident.
5. As regards compensation, the learned counsel for the claimants (who are the mother of the deceased and the deceased’s younger brother brought on record as one of the legal representatives of the deceased father) relies upon the decision of the Hon’ble Supreme Court in Kishan Gopal and another, (2014) 1 SCC 244. and contends that the compensation awarded by the Tribunal is on the lower side, and in terms of the aforesaid decision, the compensation ought to have been on the higher side. There is considerable force in this contention and therefore, no interference is called for even on the quantum of compensation. Accordingly, the appeal is dismissed. The deposit made by the appellant in this case along with accrued interest, if any, be transferred to the Tribunal for disposal in terms of its award.
SD/- JUDGE nv