Sri Rangaraju vs Sri Venkatesh S.L. and The United India Insurance Co. Ltd.

S.N. Satyanarayana, J.—The claimant in MVC. No. 7374/04 is challenging the judgment and award dated 27.1.2006 passed by the MACT, Bangalore, on the ground; that while allowing the claim petition filed by the claimant the court below has not awarded just and proper compensation and failed to fasten liability to pay compensation both on owner and as well as insurer of the offending vehicle.

Brief facts leading to this appeal are:

On 10.10.04 the claimant was traveling in tempo bearing registration No. KA-02/7111 from Hesaragatta to Krishanandanagar. At about 7.45 p.m., the said tempo met with an accident due to rash and negligent driving by its driver. Immediately after the accident claimant was shifted to Maruthi Nursing Home, Hesaragatta main road where he was inpatient for a period of one month for the injuries suffered in the said accident. It is his case that in the said accident he suffered fracture of right tibia.

Subsequently he filed a claim petition seeking compensation for the aforesaid injuries from the owner and insurer of the offending vehicle in which he was traveling. In the said petition he contended that at the relevant time he was traveling in the tempo as a cleaner. In the said proceedings though 1st Respondent owner was served, he did not enter appearance, it is only 2nd Respondent insurance company which contested the matter.

The claimant lead evidence in support of his case and produced and marked in all 10 documents as Exs.P1 to P10. He also examined a Doctor by name Shivaprakash as PW.2 in support of his case. The Doctor who has given evidence states that the fracture suffered by claimant is fully united. However, the said fracture has caused disability to right lower limb to an extent of 44% which comes to about 15% to the whole body. The court below on appreciation of the oral and documentary evidence available on record proceeded to award compensation in a sum of Rs. 84,000/- payable with interest at 6% p.a., from the date of petition till date of realization. However, while fastening liability to pay compensation the same is fastened on 1st Respondent owner of the vehicle and liability of the 2nd Respondent insurance company was exonerated.

The claimant being aggrieved by the same has come up in this appeal on the ground that since he has pleaded and proved that he was working as a cleaner in the offending tempo at the relevant time and the insurance company having not produced any evidence to discredit the same, the court below ought to have fastened liability against the owner and also against the insurer of the offending vehicle.

In this proceedings the entire record of the court below is secured. On going through the same and also the finding of the court below it is seen that in the cross-examination claimant has stated that he is not aware of the fact that who is the owner of the offending vehicle in which he was traveling. When the claimant himself is not aware of the name and address of owner of vehicle, the question of accepting him as a cleaner in the said vehicle does not arise. The court below after going through the evidence of claimant and other relevant documents has rightly come to the conclusion that claimant has failed to establish that there is relationship of employer and employee between himself and 1st Respondent. In the absence of acceptable evidence court below has proceeded to hold that claimant is only a fare paying passenger in the offending vehicle at the relevant time and has refused to accept his contention that he was traveling in the said vehicle as cleaner.

This Court on reappreciation of the evidence available on record and the finding given by the court below is of the opinion that the finding of the court below in holding that the claimant was not working as cleaner in the vehicle of 1st Respondent, owner of the offending vehicle is just and proper. Therefore, this Court find that there is no justifiable reason to interfere with the well reasoned judgment passed by the court below in fastening liability to pay compensation only on the owner of vehicle, lst Respondent.

Now coming to second ground of appeal that is the compensation awarded by the court below is on lower side, is also not acceptable for the reason that claimant has suffered only one fracture ie., fracture of right femur and the evidence of Doctor clearly discloses that said fracture is totally united. There is no evidence on record to show that because of the accident there is loss of earning capacity or disability to the claimant, which has resulted in his loss of income. Under the circumstances, the compensation awarded by the court below is just and proper.

In the result this Court is of the opinion that the claimant has not made put any good ground to interfere with the well reasoned judgment of the court below. Hence, the appeal of the claimant is dismissed without any order as to costs.