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2019 Supreme(Kar) 813
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
K. NATARAJAN, J.
Ninganagouda - Appellant
Versus
Sanju - Respondent
Miscellaneous First Appeal No. 102828 of 2014
Decided On : 13-08-2019
Girija S. Hiremath, Adv., S.K. Kayakamath, Adv., B.M. Patil, Adv.
Headnote:
Motor Vehicles Act - Section 166 - FIR - -appellant - Pay compensation - Whether tribunal is not justified in fastening liability only on respondent by exonerating insurer which calls for interference - Whether appellant or claimant is entitled for enhancement of compensation - What order –Held, Case contention taken by Insurer cannot be acceptable empty LPG Gas Cylinder is neither prohibited nor hazardous goods which require a special permission or special endorsement in driving license- Hence court hold tribunal has wrongly held that vehicle in question was carried prohibited goods at time of accident and not justified in absolving insurance company from its liability- Therefore fastening liability alone on respondent is liable to be modified and shall be fastened both jointly and severally on respondent - Hence court answer point in favour of claimant and as against insurer claimant has suffered four injuries and injury fracture of right radius and other three injuries are simple injuries - Therefore court propose to award against towards pain and suffering conveyance attendants charges food and nourishment tribunal has awarded which is sufficient and hence same is retained tribunal has also awarded towards loss of amenities in life and happiness and frustration in my view same is sufficient and need not require for any enhancement tribunal has not awarded any compensation towards loss of income during laid-up period and spent more than for medical and other incidental expenses and claimant has suffered loss of income for six months however there is no documents produced and in absence of any documents court propose to consider only two months towards loss of income during laid up period- Hence is awarded towards loss of income during laid up period - Order accordingly
JUDGMENT :
K. Natarajan, J.
Though this appeal came up for admission, with the consent of the learned counsel for the parties, it is heard finally.
2. This appeal is filed by the claimant assailing the judgment and award dated 16.09.2014 in MVC No.77/2013 passed by the Prl. Senior Civil Judge & Addl. MACT, Haveri (for short 'the Tribunal).
3. I have heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.2/Insurance Company.
4. For convenience, the ranks of the parties before the Tribunal are retained.
5. The clamant who is petitioner before the tribunal filed claim petition under Section 166 of Motor Vehicles Act (for short 'the Act') claiming compensation of Rs.12,00,000/- inter-alia contending that on 26.02.2012 around 2.45 p.m. when the petitioner was going on his motor cycle bearing registration No.KA-27/W-5193 towards Haveri, when he came near agricultural office at Devihosur, at that time, a lorry bearing registration No.KA-02/D-8393, came from Haveri side and driven by its driver in a high speed by rash and negligent manner, endangering to human life, without following traffic rules and dashed to motor cycle of petitioner. Due to the accident, the petitioner suffered fracture of right radius and other multiple grievous injuries as well as simple injuries on his foot, wrist, shoulder and other parts of the body. He was shifted to Government Hospital, Haveri and after first aid and he has referred to Mudri Hospital, Ranebennur, wherein he has spent more than Rs.70,000/- for medical and other incidental expenses. He was advised to take bed rest for five months and due to the injuries, he is suffering from disability and he lost the earning capacity. Hence, claiming the compensation on various heads.
6. In pursuance to the notice, the respondent No.1, who is owner of the vehicle filed statement of objections by denying the averments made in the petition in respect of rash and negligent driving, injury, occupation and income of the petitioner as false and also taken the contention that the rider of the motor cycle was not followed the rules and regulations and due to his negligent riding, the accident was occurred. Hence, respondent No.1 is not liable to pay any compensation. However, it is stated that the vehicle was insured with respondent No.2 at the time of accident, if any liability, the same may be fastened on the insurance company. Hence, prayed for dismissal of the claim petition.
7. The respondent No.2-Insurer also appeared through the counsel and filed separate statement of objections taking similar contention by denying the rash and negligent driving, accident, occupation and income of the claimant as false and further contended that the claim of the petitioner is exorbitant and excessive and further contended that the vehicle was insured with the respondent and the policy was valid but said policy was issued subject to various terms and conditions and limitations of the policy. As on the date of the accident, the said lorry was transporting liquefied petroleum gas cylinders (L.P.G fuel). The respondent No.1 did not take the policy for the said lorry under the Public Liability Insurance Act, 1991 as the said lorry was carrying the dangerous or hazardous goods. There was no contract between respondent No.1 and 2 to indemnify the respondent No.1. The permit issued to offending lorry to carry the "General Goods except prohibited" therefore the said lorry had no permit to carry such dangerous or hazardous goods. Therefore, the petition is hit by Section 147(2) (a)(i) (a) and 149(4) of M.V. Act. Therefore, violated the terms and conditions of the said policy. Hence, prayed for dismissal of the claim petition as against respondent No.2.
8. Based upon the rival pleadings, the tribunal framed the following issues;
1. Whether the petitioner proves that, on 26.2.2012 at about 2.45 PM
