Karnataka High Court
M/S. Hdfc-Ergo General Insurance Co. ... vs Smt. Kantha Mahendra on 28 February, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC:8379
MFA No. 3853 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 3853 OF 2020 (MV-I)
BETWEEN:
M/S. HDFC-ERGO GENERAL
INSURANCE CO. LTD.
NO 25/1, 2ND FLOOR
BUILDING NO 2
SHANKARNARAYANA BUILDING
M G ROAD
BENGALURU - 560 001
...APPELLANT
(BY SRI D.VIJAYAKUMAR.,ADVOCATE)
AND:
1. SMT. KANTHA MAHENDRA
W/O MAHENDRA KUMAR
AGED ABOUT 47 YEARS
R/AT NO 17/2, KATHA 461
KODIGEHALLI MAIN ROAD
SAHAKARANAGAR
Digitally signed
by BENGALURU - 560 092
GAVRIBIDANUR
SUBRAMANYA 2. MR.JAI RAMAN G
GUPTA
SREENATH S/O B.N.G SWAMY
Location: HIGH MAJOR
COURT OF
KARNATAKA R/AT NO 407, M M LAYOUT
3RD CROSS, KAVALBYRASANDRA
R.T.NAGAR
BENGALURU - 560 032 (EX PARTE)
...RESPONDENTS
(BY SRI.BHARATH KUMAR V .,ADVOCATE FOR R-1; NOTICE TO
R-2 IS DISPENSED WITH V.O.D 24.06.2022)
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NC: 2024:KHC:8379
MFA No. 3853 of 2020
THIS MFA IS FILED U/S 173(1) OF MV ACT PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED. 27.02.2020,
PASSED IN MVC NO.1242/2019, ON THE FILE OF THE MEMBER,
MACT, XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
BENGALURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant/insurer questioning the judgment & award dated 27th February, 2020 passed in MVC No.1242/2019 by the XVIII Addl. Judge, Court of Small Causes & MACT, Bengaluru (for short 'the Tribunal). This appeal is founded on the premise that the judgment & award passed by the Tribunal is perverse, arbitrary, illegal and the compensation awarded is exhorbitant and unreasonable.
2. Parties to the appeal shall be referred to as per their status before the Tribunal.
3. Brief facts of the case are as under:
On 30.11.2019 at about 11.00 a.m. when the claimant was crossing the road by observing traffic rules, -3- NC: 2024:KHC:8379 MFA No. 3853 of 2020 all of a sudden a motor cycle bearing Registration No.KA- 04-EK-4143 ridden by its rider in a rash and negligent manner came in a high speed and dashed against the claimant, due to which the claimant sustained grievous injuries all over the body and immediately, she was shifted to Prolife hospital and thereafter to Medstar hospital, where she was admitted as an in-patient. She expended huge amount towards medicine, nourishment, transportation and conveyance.
3.1 It is stated that prior to the occurrence of the accident, the claimant was hale and healthy and working as Proprietor of Bhavani Hardware and Electricals earning Rs.50,000/- per month. In view of the financial loss, physical injury and emotional stress caused by the accident by the rider of the offending motorcycle, the claimant filed a claim petition claiming compensation for the injuries sustained, loss of future income etc., 3.2 On service of notice, respondent No.2 remained absent and he was placed exparte before the Tribunal. -4-
NC: 2024:KHC:8379 MFA No. 3853 of 2020 Respondent No.1 appeared through its counsel and filed the written statement denying the averments made in the claim petition including age, avocation, income and negligence attributed against rider of the motorcycle and contended that the accident occurred due to the sole negligence of the claimant, who crossed the road negligently. On these grounds sought for dismissal of the claim petition.
3.3 On the basis of the pleadings, the Tribunal framed the relevant issues for consideration.
3.4 In order to substantiate the issues and establish the case, the claimant got examined herself as PW.1 and doctor as PW.2 and got marked Ex.P1 to Ex.P18. The respondents did not adduce any evidence nor produce any documents on their behalf.
3.5 Based on the material evidence, both oral and documentary, the Tribunal awarded total compensation of Rs.9,50,000/- alongwith interest at 6% per annum and -5- NC: 2024:KHC:8379 MFA No. 3853 of 2020 directed the respondent No.1/insurer to deposit the compensation within 30 days.
3.6 Being aggrieved by the exhorbitant compensation awarded by the Tribunal, the insurance company is before this Court on the ground that the judgment & award passed by the Tribunal is perverse, arbitrary, illegal and erroneous.
4. I have heard learned counsel for the parties.
5. It is the vehement contention of learned counsel for the appellant/insurer that the Tribunal failed to appreciate that the claimant crossed the highway negligently where there was no zebra crossing or signal lights and contributed to the occurrence of the accident. The Tribunal failed to attribute contributory negligence as against the claimant and erroneously fastened the entire liability against rider of the motorcycle which was insured with the appellant. Secondly, the Tribunal has committed gross error in assessment of the income for computation -6- NC: 2024:KHC:8379 MFA No. 3853 of 2020 of the compensation. The Tribunal assessed the income on the higher side and erroneously taken the entire income as mentioned in Ex.P14/Income Tax Returns ignoring the fact that the claimant was working as Proprietor of Bhavani Hardware and Electricals prior to the accident and pursuant to the accident, her son is running the business in the same proprietary concern and therefore, there is no stoppage of income and the business has not been stooped or closed down. Therefore, it is appropriate to take the notional income as per the Karnataka State Legal Services Authority chart for assessment of compensation. Further, it is also contended that the disability assessed by the Tribunal is on the higher side and the compensation awarded under all the heads is exhorbitant and unreasonable and the same requires to be drastically reduced.
6. Per contra, learned counsel for respondent No.1/claimant contends that there is no error, illegality or perversity in the impugned judgment and award passed by -7- NC: 2024:KHC:8379 MFA No. 3853 of 2020 the Tribunal. He contends that the police records clearly depict registration of the FIR and laying of the charge sheet against rider of the motorcycle and there is no case made out by the Police against the claimant with regard to violation of any of the Motor Vehicles Rules. He contends that the claimant crossed the road at the zebra crossing and further at that time there was traffic signal light at the spot and the red light was blinking and due to the rash and negligent riding of the motorcycle by its rider, he dashed against the claimant leading to occurrence of the accident. He also contends that the claimant is a Proprietor of Proprietary concern of Hardware and Electricals and there is a drastic reduction of income due to the injuries sustained by the claimant and the Tribunal rightly assessed the income as per Ex.P14/Income Tax return as the claimant is an income tax assessee and same does not call for interference. He also contends that the Tribunal rightly assessed the disability based on the evidence of the doctor and other materials on record. The Tribunal awarded just and reasonable compensation under -8- NC: 2024:KHC:8379 MFA No. 3853 of 2020 all heads, in accordance with the material evidence, both oral and documentary and the same does not call for interference. On these grounds, he seeks to dismiss the appeal.
7. I have given my thoughtful consideration to the arguments advanced by learned counsel for parties and the perused the entire material on record including the original records.
8. The occurrence of accident, involvement of vehicle, injuries sustained by the claimant and the accident occurred due to the negligence of the rider of the offending vehicle are established by the evidence adduced and documents produced as per Exs.P1 to P18. Exs.P1 to P6 are the Police records, which clearly depict registration of FIR and laying of charge sheet against rider of the motorcycle, which has not been disputed or challenged. Hence, the negligence is rightly attributed as against rider of the motorcycle.
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NC: 2024:KHC:8379 MFA No. 3853 of 2020
9. The point that arises for consideration is whether the income taken by the Tribunal is correct and whether the contributory negligence is required to be fastened on the claimant and if so, to what extent ?
10. Coming to the aspect of age, avocation and income and disability, the Tribunal has taken the income of the claimant to be Rs.49,023/- and rounded off to Rs.49,000/- by taking into consideration Ex.P14/Income Tax Returns. I am afraid the same may not be the correct way to calculate the income in a case of proprietary concern. It is the case of the learned counsel for the insurer that the income of the claimant assessed by the Tribunal requires to be reduced to Rs.14,000/- per month in consonance with the notional income stipulated by the Legal Services Authority chart for the accident of the year 2019, whereas learned counsel for the claimant contends that the income taken by the Tribunal is correct. It is apparently seen and evidently true that the claimant was a proprietor of the Proprietary concern as per Ex.P13 and
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NC: 2024:KHC:8379 MFA No. 3853 of 2020 she is an income tax assessee as per Ex.P14. However, the entire income as per Ex.P14 cannot be taken for the simple reason that she is proprietor of Proprietary concern of Hardware and Electricals and it is also proved in the evidence that pursuant to the accident, the business has been continued and her son is running the business in the same proprietary concern and therefore, there is no stoppage of income and the business has not been stopped or closed down. Under the circumstances reasonable amount would have to be taken as the contribution of the claimant towards the proprietary concern of hardware business. Ex.P17 is a document produced by the claimant, in which her income is shown as Rs.20,000/- per month. Considering the totality of the facts and circumstances of the case, I deem it appropriate to assess the income of the claimant to be Rs.20,000/- per month.
11. The doctor has opined the disability to be 26% to the whole body and the Tribunal considering the injuries
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NC: 2024:KHC:8379 MFA No. 3853 of 2020 sustained by the claimant as well as the treatment taken and also the evidence of the doctor, rightly assessed the disability to be 10% and the same does not call for interference.
12. The claimant being 46 years as on the date of accident, the appropriate multiplier would be '13', which is rightly applied by the tribunal and the same does not call for interference.
13. In view of the above, the loss of future income due to disability would be Rs.3,12,000/- (Rs.20,000 x 12 x 13 x 10%) as against Rs.6,37,000/- awarded by the Tribunal.
14. The tribunal awarded Rs.40,000/- towards pain and suffering, which does not call for interference and the same is retained.
15. The Tribunal awarded Rs.76,000/- towards medical expenses on the basis of the actual bills produced by the claimant, which does not call for interference.
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NC: 2024:KHC:8379 MFA No. 3853 of 2020
16. The Tribunal awarded Rs.1,47,000/- towards loss of income during the period of treatment, which is on the higher side. Considering the magnitude of injuries suffered by the claimant, atleast three months is required to recuperate and get back to normal day to day activities. In view of this Court reducing the income to Rs.20,000/- per month, Rs.60,000/- (Rs.20,000 x 3) is awarded under this head.
17. The tribunal awarded Rs.10,000/- towards food, nourishment and attendant charges, which does not call for interference and the same is retained.
18. The tribunal awarded Rs.40,000/- towards loss of future amenities and happiness and the same is retained.
19. In view of the above, the claimant would be entitled to total compensation of Rs.5,38,000/-.
20. Coming to the aspect of contributory negligence, the records show that FIR and charge sheet have been laid
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NC: 2024:KHC:8379 MFA No. 3853 of 2020 against rider of the motorcycle for rash and negligent driving. It is the case of the learned counsel for the appellant/insurer that the claimant crossed the highway negligently where there was no zebra crossing or signal lights and contributed to the occurrence of the accident. However, it is the case of learned counsel for the claimant that claimant crossed the road at the zebra crossing and further at that time there was traffic signal light at the spot and the red light was blinking and the accident occurred due to the rash and negligent riding of the motorcycle by its rider. On perusal of Ex.P3/sketch, it is seen that there was zebra crossing, but it is not clearly stated as to where exactly zebra crossing was there. In the complaint registered by son of the complaint, he has stated that there was signal light at the spot and when such light was blinking, the claimant crossed the road. But, no cogent material is placed before the Court to demonstrate the same by the claimant. However, the fact remains that while crossing he road, the accident has occurred leading to the injuries and in view of lack of
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NC: 2024:KHC:8379 MFA No. 3853 of 2020 material evidence, some amount of contributory negligence deserves to be fastened against the claimant. On consideration of the oral and documentary evidence on record and the arguments advanced by learned counsel for the parties, I deem it appropriate to fasten 10% contributory negligence against the claimant for occurrence of the accident.
21. In view of the above discussion, appellant/insurer is liable to pay 90% of the compensation amount i.e, 90% of Rs.5,38,000/-, which would be Rs.4,84,000/- with interest at 6% per annum, as mentioned in the table below:
Sl. Head of compensation Amount of
No. compensation
awarded
1 Loss of future income due to Rs.3,12,000-00
disability
2 Pain and suffering Rs. 40,000-00
3 Medical expenses Rs. 76,000-00
4 Loss of income during laid up Rs 60,000-00
period
5 Towards food, nourishment Rs. 10,000-00
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NC: 2024:KHC:8379
MFA No. 3853 of 2020
and attendant charges
6 Loss of future amenities and Rs. 40,000-00
happiness
Total Rs.5,38,000-00
Less: Contributory negligence
of 10% attributed against the
claimant
(Rs.10% of Rs.5,38,000/-) Rs. 53,800-00
Compensation to which the
claimant is entitled for Rs.4,84,200-00
i.e., 90% of Rs.5,38,000/-
22. Accordingly, I pass the following:
ORDER
i) The appeal is allowed in part.
ii) The impugned judgment & award dated 27th February, 2020 passed by the Tribunal in MVC No1242/2019, is modified.
iii) The respondent No.1/claimant would be entitled to reduced compensation of Rs.4,84,200/- (Rupees four lakhs eighty-four thousand two hundred only) as against Rs. 9,50,000/- awarded by the Tribunal alongwith interest at 6% per annum.
iv) The balance amount of compensation, if any shall be deposited by the appellant/insurer within a period of four weeks from the date of receipt of copy of this judgment. However, in case insurer has already deposited the excess amount, if any
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NC: 2024:KHC:8379 MFA No. 3853 of 2020 the same shall be refunded in favour of the appellant/insurer.
v) The amount in deposit, if any before this Court shall be transferred to the jurisdictional Tribunal.
vi) The compensation amount shall be released in favour of the respondent No.1/claimant as per the terms of the Tribunal upon proper identification.
vii) Registry is directed to transmit the original records to the Tribunal forthwith Sd/-
JUDGE GSS List No.: 1 Sl No.: 44