IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE K. SOMASHEKAR MISCELLANEOUS FIRST APPEAL NO.1773/2015 (MV) BETWEEN THE MANAGER, THE NEW INDIA ASSURANCE CO., LTD., 1ST FLOOR, PREMA COMPLEX, B H ROAD, BHADRAVATHI 577 301.
(BY SRI K N SRINIVASA, ADVOCATE) ... APPELLANT AND 1. SADIQ HUSSAIN S/O LATE AHAMED HUSSAIN AGED ABOUT 38 YEARS MUSLIM DRIVER OF THE TIPPER LORRY BEARING NO. REG. NO. AP 12/U 4597 R/O 2ND CROSS ANWAR COLONY BHADRAVATHY 577301 2. RANGANATHGIRI S/O NARAYAN GIRI AGED ABOUT 49 YEARS OWNER OF TIPPER LORRY REG NO. AP 12/U 4597 R/O BABALLI VILLAGE BHADRA COLONY POST BHADRAVATHI TQ - 577301 3. BADE SAB S/O IMAM SAB HARTHI AGED ABOUT 48 YEARS CLEANER BY PROFESSION R/O BADALLI VILLAGE BHADRA COLONY POST, BHADRAVATHI TQ - 577301 PERMANENT ADDRESS: HANCHITAGERE VILLAGE KARWAR ROAD HUBLI TALUK DHARWAD DISTRICT - 580020 ... RESPONDENTS (BY SRI B.S. PRASAD, ADVOCATE FOR R1;
SRI B.K. MANJUNATH, ADVOCATE FOR R2;
SRI M.V. MAHESWARAPPA, ADVOCATE FOR R3) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:25.11.2014 PASSED IN MVC NO.682/2012 ON THE FILE OF THE FAST TRACK AND ADDITIONAL MACT(V), BHADRAVATHI, AWARDING A COMPENSATION OF RS.3,34,900/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION(EXCLUDING RS.10,000/- AWARDED UNDER THE HEAD OF FUTURE MEDICAL EXPENSES).
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is by the Insurance Company against the judgment and award dated 25.11.2014 passed in MVC No.682/2012 on the file of the Fast Track Court and Addl. MACT (V), Bhadravathi (for short ‘the Tribunal’), whereby the Tribunal awarded the compensation in a sum of Rs.3,34,900/- with 6% interest per annum from the date of petition till realization (excluding interest on the amount awarded towards future medical expenses). The same has been challenged under this appeal by urging various grounds.
2. The factual matrix of this appeal is as under:
The 3rd respondent herein filed a claim petition before the Tribunal contending that on 14.11.2011 he being the Cleaner in the Tipper Lorry bearing registration No.AP-12/U-4597 after loading the tar mixed jelly at Stock-yard of Baballi started destination to delivery point at Honnalli Road, Shimoga, while going to near Govt. Prinmay School, Malavagoppa on B.H. Road, Shimoga at about 9.30 a.m., the driver of the Tipper Lorry drove the same in rash and negligent manner with high speed and dashed against the school compound, then the house of Deekya Naika and again to electric pole. Due to the impact, he sustained grievous injuries. Immediately he was taken to Mc. Gann Hospital, Shimoga and as per the advice of doctor he was shifted to K.M.C. Hospital, Manipal for better treatment, wherein initially debridement was done and on examination it was noticed that the claimant sustained the following injuries:
(1) Laceration over right arm (2) Open right humorous fracture (3) Left Ulna fracture (4) Right femur fracture (5) Right quadriceps tendon rupture (6) Long suture wounds over both knee He underwent skin grafting, rod was inserted in right humorous, left ulna, right femur and on 26.11.2011 he was discharged with advise to attend the hospital for review in O.P.D. after two weeks and regular dressing as per the advise of the hospital. He was again admitted as inpatient from 19.12.2011 to 24.12.2011 and taken follow up treatment. As the accident was caused by the negligence of driver of offending vehicle, which is owned by respondent No.2 and insured with the appellant herein, the claim petition was filed before the Tribunal seeking compensation by urging various grounds.
3. On receipt of notice, the appellant and 1st and 2nd respondents herein appeared through their counsel and resisted the claim petition. They denied the age, income, occupation and treatment taken as an inpatient and out patient by the claimant-3rd respondent and prayed for dismissal of the claim petition.
4. Based upon the pleadings of the parties, the Tribunal has framed issues and given findings by assigning reasons keeping in view the evidence of the claimant as PW1 and documents at Exs.P1 to P14 marked on behalf of claimant and evidence of RWs.1 and 2 and documentary evidence marked at Exs.R1 to R5 on behalf of respondents and allowed the claim petition in part by awarding compensation as stated above. Being aggrieved by the same, the Insurer is before this Court in this appeal seeking modification of the impugned judgment and award.
5. Heard learned counsel for the appellant and also learned counsel for the Respondents. Perused the records.
6. Learned counsel for the appellant firstly contends that the Tribunal erred in fastening the liability on the appellant-Insurance Company, since the evidence on record clearly disclosed that the claimant was neither a Cleaner nor a workman in the offending vehicle, but he was a passenger in the goods vehicle as he himself admit in the cross-examination to the effect that he was sitting by the side of the Cleaner in the cabin. He further contended that as per Ex.R1 the statement made by the claimant before the Police Officer who investigated the case the claimant was working as in charge of workers at N.R.G. Company a tar road construction Company. Therefore, the claimant not being a workman in respect of the offending Tipper Lorry he was not insured by the policy issued by the appellant. Therefore, he prays for intervention of the impugned judgment and award passed by the Tribunal.
7. Per contra, the learned counsel Sri M.V. Maheshwarappa for the 3rd respondent-claimant has taken me through the evidence of claimant at PW1 and also the documents marked at Exs.P1 to P14 and submits that the Tribunal after appreciation of the entire material available on record has rightly awarded the compensation by fastening the liability on the Insurance Company to satisfy the award amount and it does not call for any intervention. Hence, he prayed for dismissal of the appeal being devoid of merits.
8. Having gone through the contentions taken by the learned counsel for the appellant-Insurance Company and as well as the claimant, there is no dispute with regard occurrence of accident on 14.11.2011 resulting injuries to the claimant. The dispute is only with regard to claimant working as Cleaner in the said vehicle.
9. The 2nd respondent has taken the contention that as on the date of accident the 1st respondent was driver of the offending vehicle and the injured-claimant was said to be Cleaner in the said vehicle. The Insurance Company had relied upon the case laws of the Apex Court to prove its defence before the Tribunal.
(1) AIR 2013 (Supreme Court page 1064 (Manager, National Insurance Co., Ltd., Vs. Saju P. Paul and another));
(2) AIR 2006 Supreme Court, page 1576 (United Insurance Co., Ltd., Shimla Vs. Tilak Singh and others); and (3) AIR 2004 Supreme Court, 1340 (M/s. National Insurance Co. Ltd., Vs. Baljit Kaur and others) 10. The observations made in the above case laws relied upon by the appellant in support of its case, in the light of present facts and circumstances of case the Tribunal held that it is clear that the appellant- Insurance Company disputed the factum of alleged traveling of claimant in the offending vehicle as a Cleaner. But, this fact is probablised by the evidence of RW2 who has clearly deposed before the Tribunal that as on the alleged date of R.T.A., the claimant was working as Cleaner in the lorry. Since, nothing worth while has been elicited in the cross-examination of RW1 to disprove the said fact, under these circumstances, the defence taken by the appellant that claimant was not Cleaner and was a gratuitous passenger is having no merits, thereby the Tribunal has held that the observation made in the above case laws do not attract to the case in hand, whereas, the view taken in the case law of Hon’ble Supreme Court reported in 2004 (1) Supreme 243, wherein the summary findings given therein are taken into consideration with regard to the nature of the claim of the 3rd respondent in the claim petition, which would help to the claimant to probablize his case rather than the Insurance Company. Further, the Tribunal has observed that as per Ex.P1 police notice 1st respondent was holding valid and effective Driving Licence as on the date of alleged accident and offending vehicle was duly insured with the appellant and there is a policy coverage to the offending vehicle as on the date of accident. Thus, the Tribunal held the owner and insurer jointly and severally liable to pay the compensation along with interest. These are all observations made by the Tribunal while rendering the judgment and award in the claim petition made by the 3rd respondent seeking compensation. Therefore, there is no substance in the contention taken by the appellant for intervention of the judgment and award rendered by the Tribunal. Accordingly, this appeal suffers devoid of merits and deserves to be rejected. Accordingly, appeal is hereby dismissed. Consequently, the impugned judgment and award passed by the Tribunal in MVC No.682/2012 on 25.11.2014 is hereby confirmed.
The amount in deposit shall be transferred to the concerned Tribunal along with LCR.
Sbs* SD/- JUDGE