IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.11302/2012 (MV) BETWEEN:
SRI RAJAPPA S/O. MALLAPPA AGED ABOUT 45 YEARS R/AT. BACHAHALLI VILLAGE GUNDLUPET TALUK CHAMARAJANAGAR DISTRICT …APPELLANT (BY SRI H.V.BHANUPRAKASH, ADVOCATE) AND:
1. SRI B.V.MAHADEVAPPA AGED ABOUT 37 YEARS R/AT. BACHAHALLI VILLAGE GUNDLUPET TALUK CHAMARAJANAGAR DISTRICT (OWNER OF THE GOODS AUTO BEARING NO.KA-10-1987) – 571313 2. THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD. TEJAS COMPLEX, SAYYAJIRAO ROAD MYOSRE – 570010 (INSURER OF THE GOODS AUTO BEARING NO.KA-10-1987) ... RESPONDENTS (BY SRI S.V.HEGDE MULKHAND, ADVOCATE FOR R2; R1 SERVED AND UNREPRESENTED) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.11.2011 PASSED IN MVC NO.33/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, KOLLEGAL, SITTING AT CHAMARAJANAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the judgment and award dated 29.11.2011 passed in MVC No.33/2010 on the file of Fast Track Court and Motor Accident Claims Tribunal, Kollegal, sitting at Chamarajanagar, the claimant has preferred this appeal seeking enhancement of compensation and also challenged the saddling of liability on respondent No.1/Owner.
2. The claimant/injured filed claim petition under Section 166 of MV Act, praying for grant of compensation for the injuries suffered by him in a road traffic accident. It is stated that on 03.12.2006, when the claimant was traveling in a Goods Auto bearing registration No.KA-10-1987, the driver of the said goods auto driven the same in a rash and negligent manner, as a result of which, the auto turtled and collapsed. Due to the impact, the claimant sustained grievous injuries to his both legs, hands, shoulders and other parts of the body. Immediately, he was shifted to BGS Apollo Hospital, Mysore, wherein, he took treatment as an inpatient for a period of one month. It is stated that the claimant is aged about 44 years, he is an agriculturist and earning Rs.6,000/- per month. Second respondent- Insurance company filed its objections and contended that when the accident took place, there was no goods in the goods auto and the claimant was traveling as a passenger, which is not permissible. The claimant examined himself as PW.1 and got marked documents as Exs.P1 to P17. The respondent-insurance company examined RW.1 and marked Ex.R1 on their behalf. The tribunal on analyzing the material on record by its impugned judgment and award granted compensation of Rs.1,60,000/- with interest at 6% p.a. under the heads pain and suffering and medical expenses. Further, saddled the liability on the owner of the offending vehicle to compensate the claimant since the claimant was traveling in the goods auto as a passenger which is not permissible. Aggrieved by the said judgment and award, not being satisfied with the quantum of compensation and also saddling the liability on respondent No.1/owner, the claimant is before this Court in this appeal.
3. Heard the learned counsel for the appellant and learned counsel for respondent-Insurance company. Even though respondent No.1/Owner was served, he remained unrepresented. Perused the entire records.
4. Learned counsel for the appellant submits that the claimant was traveling in a goods auto along with the goods i.e., beans. It is the case of the claimant that he grows vegetables i.e., beans which he was carrying along with him in the goods auto and at that time, the accident had occurred. He was not traveling as a passenger, but he was traveling along with his goods. As such, saddling the liability on respondent No.1 is incorrect. He further submits that the tribunal has not granted compensation under the head ‘loss of amenities’ and ‘Conveyance, attendant charges and nourishment’ which the claimant would be entitled, since he has taken treatment as an inpatient for a period of 30 days. Thus, he prays for enhancement of compensation.
5. Per contra, learned counsel for the Insurance Company/respondent No.2 submits that there is no material to show that the claimant was traveling in the goods auto along with goods. The claimant has produced RTC extracts as per Exs.P16 and P17 to support his claim which indicates that he was growing Sunflower and cotton. The same would not indicate growing any vegetables. The statement of the claimant that he was traveling along with the goods, is not supported by any documents or any other evidence. Hence, he prays for dismissal of the appeal.
6. Having heard the learned counsel for the parties and on perusal of the entire records, the following two questions arise for consideration:
a) Whether the tribunal was justified in saddling the liability on respondent No.1/owner?
b) Whether the claimant would be entitled for enhancement of compensation?
7. Answer to the above questions are in the affirmative for the following reasons:
It is not in dispute that the accident had occurred due to the negligence of the driver of the goods auto bearing No.KA- 10-1987 and in view of the said accident, the claimant suffered accidental injuries. The claimant is before this Court in this appeal challenging the quantum of compensation and also against fastening liability on the respondent No.1/owner.
8. On perusal of the claim petition, it is seen that the claimant was traveling in the goods auto bearing No.KA-10-1987 from Terakanambi towards Bachahalli village on Shivapura – Bachahalli road. No where in the claim petition, the claimant has stated that he was traveling in the goods auto along with the goods or vegetables. Only at the time of evidence, the claimant has come up with the contention that he was traveling along with vegetables i.e., Beans in the goods auto. PW.1 in his examination-in-chief, has stated that he was traveling with vegetables in the goods auto. The claimant in his cross- examination, has stated that in his land he had grown Beans and produced RTCs as per Exs.P16 and P17, which would not indicate growing of vegetables. On the contrary, the RTCs would indicate that the claimant had grown Johar, Sunflower and Cotton. The claimant has not examined any other witness to corroborate his version that he was traveling along with vegetables in the goods auto. Ex.P2 is the complaint given by one Nataraj. In his complaint he has stated that the claimant was traveling in Goods auto along with Beans. But the said Nataraj has not examined as witness and he would have been the best witness to say whether the claimant was traveling with the goods in the goods auto. There is no iota of evidence or material, except the statement of the claimant to demonstrate that the claimant was traveling in goods auto along with vegetables.
9. Thus, I find that the tribunal rightly saddled the liability on respondent No.1/Owner. The claimant has suffered grievous injuries i.e., fracture of mexilla, fracture of nasal bone and fracture of mandible body left side. Ex.P5 is the wound certificate and Ex.P12 is the discharge card. In order to prove the injuries suffered by him and the treatment he has undergone, the claimant has not examined the Doctor who has treated him. The claimant states that he took treatment as an inpatient for more than one month. The tribunal has awarded compensation of Rs.1,00,000/- under the head ‘pain and suffering’ and Rs.60,000/- towards ‘medical expenses’. But the tribunal has failed to award any compensation towards ‘loss of amenities’ and towards ‘conveyance, nourishment and attendant charges’, which the claimant would be entitled to. Looking to the injuries suffered which is apparent from Ex.P5 wound certificate and the treatment taken as inpatient as per Exs.P10 to P12. Thus, a sum of Rs.20,000/- each is awarded towards ‘loss of amenities’ and ‘conveyance, attendant and nourishment charges’. Therefore, the judgment and award passed by the tribunal is modified and the claimant is entitled for enhanced compensation of Rs.40,000/- in addition to Rs.1,60,000/- awarded by the tribunal along with interest at 6% per annum.
Accordingly, the appeal is allowed in-part.
Sd/-
JUDGE HJ