Karnataka High Court
Bajaj Allianz General Insurance ... vs M K Muralidhar @ Murali on 29 November, 2018
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MFA.No.9861 OF 2012 C/W
MFA.No.2752 OF 2013(MV)
IN MFA.No.9861 OF 2012
BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD.,
NO.105A, CEARS PLAZA, 1ST FLOOR,
136, RESIDENCY ROAD,
BANGALORE-560 025.
BY BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.
REGIONAL OFFICE,
NO.31, GROUND FLOOR,
T.B.R TOWERS, 1ST CROSS,
NEW MISSION ROAD,
BANGALORE-560 024.
BY ITS MANAGER. ... APPELLANT
(BY SRI O MAHESH, ADV.)
AND:
1. M K MURALIDHAR @ MURALI
S/O M.N.KRISHNAMURTHY,
@ MUNIKRISHNAMURTHY,
AGED ABODUT 30 YEARS,
R/A MANJULANAGAR VILLAGE,
YADURA POST, YALADURU HOBLI,
SRINIVASAPURA TALUK,
KOLAR DISTRICT-562 101.
2. THE MANAGING DIRECTOR
K.S.R.T.C DIVISION,
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K.S.R.T.C. K.H.ROAD,
SHANTHINAGAR,
BANGALORE-560 027.
3. N.ASHOK KUMAR
AGED 34 YEARS,
S/O N.NARAYANASWAMY,
R/A NO.53/61. 11TH MAIN,
ITTUMODU, B.D.A LAYOUT,
B.S.K 3RD STAGE,
BANGALORE-560 085. ... RESPONDENTS
(BY SMT G K SREEVIDYA, ADV. FOR
SRI T N VISWANATHA, ADV. FOR R1
SRI K NAGARAJA, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:05.06.2012 PASSED IN MVC NO.978/2009 ON THE
FILE OF THE XII ADDITIONAL SMALL CAUSES JUDGE,
MEMBER, MACT, BANGALORE, AWARDING A
COMPENSATION OF Rs.7,80,000/- WITH INTEREST @ 6%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO 2752 OF 2013
BETWEEN:
SHRI M.K.MURALIDHARA @ MURALI
S/O SRI M N KRISHNA MURTHY @
MUNIKRISHNA MURTHY
AGED ABOUT 30 YEARS
R/AT MANJULA NAGAR VILLAGE
YADURU POST, YALADURU HOBLI
SRINIVASAPURA TALUK
KOLAR DISTRICT. ... APPELLANT
(BY SRI T N VISWANATHA, ADV.)
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AND:
1. THE MANAGING DIRECTOR
K.S.R.T.C. DIVISION, KSRTC
K H ROAD, SHANTHINAGAR
BANGALORE-560 027.
2. M/S BAJAJ ALLIANZ GENERAL
INSURANCE CO LTD
NO. 105-A/107-A
CEARS PLAZA, NO.136
RESIDENCY ROAD
BANGALORE-560 025.
3. SRI ASHOK KUMAR N
S/O SRI N NARAYANA SWAMY
AGED ABOUT 34 YEARS
R/AT NO. 53/61, 11TH MAIN
ITTAMADU, BDA LAYOUT
BANASHANKARI 3RD STAGE
BANGALORE-560 085. ... RESPONDENTS
(BY SRI K NAGARAJA, ADV. FOR R1
SRI O MAHESH, ADV. FOR R2
VIDE COURT ORDER DATED 02.07.2015 NOTICE
DISPENSED TO R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:5.6.2012 PASSED IN MVC NO.978/2009 ON
THE FILE OF THE XII ADDL. SMALL CAUSES JUDGE
AND MEMBER, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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THESE MFAs COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are directed against the impugned judgment and award dated 5.6.2012 passed in MVC.No.978/2009 by the XII Additional Judge-Member, MACT, Bengaluru.
2. In an accident that occurred on 21.11.2008 at about 9.00 a.m., the claimant sustained several head injuries. The claim petition filed by him was contested by the first and second respondents in the claim petition and the third respondent was placed exparte. The Tribunal on appreciation of the oral and documentary evidence on record has awarded total compensation of Rs.7,80,000/- together with interest at the rate of 6% per annum from the date of the petition till its realization and directed the 2nd respondent- insurer to deposit the entire compensation. Being aggrieved by the quantum of compensation awarded, 5 the claimant has preferred MFA.No.2752/2013 and the Insurance Company has preferred MFA.No.9861/2012 questioning the negligence and also the quantum of compensation.
3. The main grounds taken by the appellant in MFA.No.9861/2012 are that the Tribunal has failed to consider that the accident in question occurred only on account of the negligence on the part of the claimant himself. The finding of the Tribunal on the question of negligence ignoring the factum of sole negligence if not contributory negligence on the part of the injured who was riding a two wheeler with two pillion rider is contrary to law and material evidence on record. The Tribunal has failed to appreciate that the manner of accident alleged in the claim petition, Ex.P1-complaint and tried to be made out during trial was not at all possible considering the damages reported in Ex.P3, IMV report, wherein it is specifically stated that 6 windscreen glass of the bus was broken and front bumper at center dented and motor cycle had 'front right side handle bar slightly bent, right side rearview mirror broken and front both fort slightly bent and the Tribunal ought to have seen that this type of damages to respective vehicle could be possible only if there were to be a head on collusion and not otherwise. The Tribunal failed to consider that the written complaint lodged by one Mr. Venkatesh was on the next day and none of the hospitals which treated the injured choose to report the alleged accident to the jurisdictional police as required and no wound certificate or accident register extract of the hospitals where the claimant was treated were produced by the claimant to prove his theory. Even otherwise, the Tribunal has grossly erred in allowing Rs.5,10,000/- under the head of future loss of earnings taking the income of the claimant at Rs.5,000/- per month and disability at 50% unilaterally in the absence of specific and conclusive evidence in 7 this regard. The Tribunal ought not to have accepted the evidence of P.W.4, neuro-surgeon, since he was not competent to speak both of neuro physical as well as psychological, social and behaviour deficiency/disability as per DGH's guidelines. The Tribunal ought to have seen that the primary onus is on the injured-claimant who claim several disability to establish rather than expecting the otherside to disprove it. Therefore, the counsel has sought for modifying the impugned judgment and award fixing contributory negligence on the claimant and also to reduce the quantum of compensation awarded to the claimant.
4. The main grounds of appeal by the claimant in MFA.2752/2013 are that the trial Court has erred in not awarding adequate compensation towards injury, pain and agony inspite of noticing that the appellant has sustained right fronto temporo parietal extra dural hemorrhage with mass effect bilateral frontal depressed 8 fracture with pneumocephalus. The Court below also failed to appreciate the evidence on record and not awarded just and reasonable compensation under all the heads. The income taken at Rs.5,000/- is on the lower side and the Tribunal has not considered the bank pass book and other documents produced to establish the income of the appellant. Though the Tribunal having noticed that the appellant has developed the whole body disability of 47.68% ought to have taken the functional disability as 100% instead of 50% for quantifying compensation under the head of future loss of earning capacity. Further, having regard to the nature of the injuries sustained and also period of treatment taken and amount spent towards medical expenses, compensation awarded by the Tribunal under all other heads requires to be modified by enhancing the compensation. Further, interest at the rate of 6% p.a. is also on the lower side.
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5. Heard learned counsel for the claimant and also the learned counsel appearing for the KSRTC and also the Insurance Company.
6. The counsel appearing for the Insurance Company in his arguments vehemently contended that the Tribunal has failed to take note of the negligence on the part of the claimant himself and the complainant one Mr. Venkatesh, has not been examined before the Tribunal. The Tribunal has failed to take note of the fact that the claimant was carrying two pillion riders along with him and as such there is clear violation of Section 128 and further contended that he was also not wearing helmet at the time of the accident and also ought to have considered the negligence on the part of the claimant.
7. On the other hand, the counsel appearing that the claimant has contended that the Tribunal in Para 9 of the impugned judgment has discussed 10 regarding accepting of the evidence of P.W.1. The counsel appearing for the Insurance Company has raised for the first time the defence that the claimant was carrying two pillion riders along with him and also not wearing the helmet. Since the said pleadings were not taken before the Tribunal, he cannot be permitted to take up the said contentions in this appeal.
In support of his contention that carrying of two pillion riders on scooter does not tantamount to contributory negligence on the part of scooterist, he has relied on the decisions of the Gujarat High Court reported in the case of Ahmedabad Municipal Corporation .vs. Narendrabhai Lalbhai Shan and others reported in 2010 ACJ 15 paragraphs 7 and 8 and the decision of the Madras High Court in the case reported in 2004 ACJ 1510 [Kattabomman Transport Corporation Limited .vs. Vellai Duraichi and others].
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The counsel for the claimant has also placed reliance on an unreported Division Bench decision of this Court in MFA.No.10768/2010 disposed of on 20.6.2013 in the case of Sri.Anjanappa and another .vs. Sri. Raghavendra and another wherein this Court at Paragraph 11 has referred to the law laid down by the Full Bench of this Court in North East Karnataka Road Transport Corporation .vs. Smt. Vijayalaxmi and others reported in 2012(3) KCCR 1771 interpreting Section 123 of the Motor Vehicles Act, 1988, and has held that merely breach of law or duty would not create a liability to pay damages. Such a breach of law or duty should result in injury. The contributory negligence does not depend upon any breach of duty. The breach of duty should result in injury and consequent losses.
8. In keeping the principles laid down in the decision referred to supra and also the contentions 12 raised by the counsel appearing on both sides, this Court has to appreciate the facts and circumstances of the case on hand. On perusal of the complaint, which is marked as Ex.P1, a specific allegation is made against the driver of the bus that he drove the KSRTC bus in a rash and negligent manner and dashed against the TVS XL Moped, as a result of which the claimant sustained injuries. The complaint is given by Mr. Venkatesh and it is rightly pointed out by the counsel for the Insurance Company that he has not has been examined before the Tribunal. The evidence of the injured P.W.1 is relied upon by the Tribunal and on perusal of Ex.P2-mahazar, it discloses that the place of accident is a mud road measuring 16 ft. and there is a foot path to the extent of 5 ft. and the accident has occurred on the edge of the road and perusal of Ex.P3 IMV report discloses damages to both the vehicles. From the nature of damages caused to the bus i.e., front wind screen glass broken and front bumper at center dented, it is clear that the 13 center portion of the bus came in contact with the two wheeler. It is the contention of the Insurance company that the nature of damages caused to the TVS XL moped also speaks that there is negligence on the part of the claimant. For having taken note of the evidence available on record, it is important to note that in the written statement of the Insurance company did not take the plea that the claimant was proceeding along with two pillion riders and also was not wearing helmet and as rightly pointed out by the claimant's counsel, this plea is taken up for the first time in this appeal. At para 15 of the written statement, it is stated that on the date of the accident, the bus was being driven in a reasonable speed and in a careful manner and there was no rashness or negligence on the part of the driver of the bus. Again, at para 16 it is stated that the accident did not take place in the manner alleged by the claimant and is put to strict proof of the same and the accident in question took place due to the negligence on 14 the part of the claimant himself, who without having proper look out of the vehicular traffic along the road caused the accident. Except this, no specific contentions are raised before the Tribunal. It is further important to note that it is the case of the claimant that he was talking to one Srinivasa by parking vehicle on the left side of the road. At that time, the bus in question came in rash and negligent manner to the extreme side of the road and dashed against him. There is no material before the Tribunal that he was riding the vehicle with two pillion riders. Further, in the cross- examination of P.W.1, the suggestions made by very counsel appearing for the Insurance Company that the moped was a old model and it was not running properly and that he along with two pillion riders was proceeding on the said moped on that day near Jadere Cross in a rash and negligent manner and the bus driver in order to avoid the accident took his bus to the left side and stopped the bus and even then he came with same 15 speed and dashed to the KSRTC bus has been denied by the claimant. Further, the suggestion that the complaint of bus driver was not received by the police and as such he sent the same to the concerned police station by RPAD is denied. However, no documentary evidence is produced in support of the same. Having taken note of the contentions taken before the Tribunal and also the fact that the Insurance company has not stated as to what prevented the driver from lodging the complaint if really the accident was due to the rashness and negligence of the claimant himself and also non- production of the documents in support of the same, the defence of the Insurance Company cannot be accepted. The Tribunal in paragraphs 10 and 11 has in detail discussed with regard to this aspect and has clearly come to the conclusion that the Insurance Company has not probablised its defence by placing any material before the Court and hence, I do not find any force in the contention of the Insurance Company 16 regarding negligence on the part of the claimant. Hence, no grounds are made out to interfere with the said finding of the Tribunal.
9. The next question is with regard to awarding of compensation by the Tribunal to the claimant. It is also the claim of the claimant that just and reasonable compensation is not awarded by the Tribunal. The contention of the Insurance Company is that the Tribunal has taken 50% disability while considering the future loss of income. The claimant has not surrendered his driving licence and the disability has not been proved. Inspite of the same the Tribunal has relied upon the evidence of P.W.4 who is not a competent person to speak with regard to the disability. On the other hand, the counsel appearing for the claimant in the appeal memorandum has contended that the Tribunal has failed to take note of the nature of injuries i.e. right fronto tempero parieteal extra dural 17 hemorrhage with mass effect bilateral frontal depressed fracture with pneumocephalus and has erroneously taken his income as Rs.5,000/- though document was produced i.e. bank pass book to show that he was earning Rs.40,000/-. However, the claimant has not produced any documentary proof with regard to his avocation except Ex.P3 i.e. the termination of agreement of hire purchase. The accident is of the year 2005. Hence, income taken at Rs.5,000/- is just and reasonable.
With regard to disability is concerned, the claimant has examined the doctor who has been examined as P.W.4- consultant neuro surgeon at Abhaya Hospital, Bengaluru. The contention of the Insurance Company is that he is not a competent witness to assess the disability. P.W.4 has deposed that the claimant had lost consciousness immediately after the accident and remained so since the injury. He also had right ear bleed. He was taken to NIMHANS where a 18 coma score of 9/15 was recorded. CT scan done within two hours of trauma revealed evidence of a right FP acute EDH(blood clot outside the brain but inside the skull) with mass effect(suggesting severe compression and pressure on the brain), bilateral frontal depressed fracture with pneumocephalus(air within the skull). He was initially managed conservatively and a repeat CT scan done six hours later revealed no change in the size of EDH and on 21.11. 2018, he was taken up for craniotomy surgery for the same. The post operative GCS was 9/15. At the time of discharge from NIMHANS on 21.11.2009, he remained unconscious. He was then taken to KIMS hospital, Bengaluru. Thereafter, he was brought to Abbhaya Hospital for further management. His come score was 8/15 at admission with non- reacting pupils. He has further deposed that a detailed neuropsychological assessment was done on 16.11.2009 and the details of the impairment was mentioned in the affidavit. Based on that he found that 19 deficits were consistent with bi-frontal and left temporal lobe involvement consistent with the injuries and conditions described during his hospital stay. Thus he has assessed the neurological disability at 20%, psychological/social/behavioral disability as severe disability as per DGHS guidelines and thus arrived at the cognitive disability as per the guidelines of NIMHANS at 22%. Further, as per the DGHS telescopic sum formula, he has arrived at the final wholebody disability at 47.68%. He was subjected to cross- examination wherein except suggesting that the claimant was not having such disability nothing is elicited. There is no effective cross-examination with regard to the disability is concerned. The suggestion that as per the DGHS guildelines, only psychological, social and behavioral disability should be assessed by the committee consisting of psychiatrist, physician and psychologist is denied. The suggestions made that as per the DGHS guildline neuro surgeon is incompetent to 20 assess post head injury patients and that psychological, social/behavioral disability has to be assessed by the psychiatrist or neuro-psychologist and not neuro- surgeons is denied by him. Thus, from his evidence, it is clear that neuro surgeon also can assess the aforesaid disability.
The Tribunal at Paragraph 17 of the impugned judgment has referred to the evidence of the doctor P.W.4-treated neuro surgeon, who has clearly stated that due to permanent scarring in the brain, the claimant has a life long risk of epilepsy or fits and hence it is risky for him to drive the vehicles. The absence of sense of smell limits is participation in other avocations where smell plays an important role. Thus, it has taken the disability to an extent of 50%.
Having considered the evidence of the doctor P.W.4 and having given anxious consideration to the evidence available on record, the contention of the claimant that he has 100% disability cannot be 21 accepted so also the contention of the Insurance Company that the disability assessed at 50% is on the higher side.
10. Insofar as compensation awarded under other heads is concerned, the contention of the claimant that only Rs.10,000/- is awarded towards loss of amenities of life and Rs.30,000/- towards loss of income during laid up period, which is meager. However, having regard to the income taken at Rs.5,000/- per month and the period of rest for six months, Rs.30,000/- towards loss of income during laid up period is just and reasonable. However, the claimant was aged 27 years at the time of accident. He has to lead rest of his life with the functional disability of 50%. Therefore, Rs.10,000/-towards loss of amenities is on the lower side and the same is enhanced to Rs.50,000/-
In view of the discussions made above, the appeal in MFA.No.9861/2012 filed by the Insurance company 22 is dismissed. The appeal of the claimant in MFA.No. MFA.No.2752/2013 is allowed in part and the impugned judgment and award is modified granting additional compensation of Rs.40,000/- over and above the compensation awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
The amount in deposit is ordered to be transmitted to the Tribunal forthwith.
Sd/-
JUDGE *alb/-.