Karnataka High Court
United India Insurance Co Ltd vs Smt Roopa Saharan on 15 March, 2010
Equivalent citations: 2011 AAC 222 (KAR), 2010 A I H C 3364, 2010 (3) AIR KANT HCR 126, 2010 (3) AIR KAR R 126, AIR 2010 (NOC) (SUPP) 89 (KAR.), (2011) 4 KANT LJ 104, (2011) 2 TAC 485, (2011) 1 ACJ 515
Author: D.V.Shylendra Kumar
Bench: D.V.Shylendra Kumar
IN THE HIGH COURT or KARNATAKA AT BANGALORE
DATED THIS THE 15%: BAY OF MARCH .
PRESENT
THE I~ION'BLE MR JUSTICE 1) V '
AND
THE HON'?-LE MR JUSTICE K
M.F.A. No 7119 or 2006' §1\mVfif
M.F.A. CROB N0. 193.o12f2oo7' {MW f:
M.F.A. No 7119 of zieréi.-3 _
BETWEEN: '
UNITED INDIA I1';'SURANCE CO LTD
HOSUR . A
THRO[.IGI~{ RE=S1.ONAL OFFISE
NO 25; SHANEiARA1\1AE?A3'..A1'JA_' BUILDINGS
M G ROAD, BANGMORIS-_.53o 001,
REP BY ITS' MANGER, _ "b '
SR1. M GOPINATHA RAG... APPELLANT
- (BY 3pREE:"TH1..§<:OMAR. ADVOCATE. FOR
% v~ff'»1£;sTr%'3~.L3CROsS, B.T.M LAYOUT, BANGALORE
SR1: Br; sE RAO, ADVOCATE )
_ SMT. ROGPTKASAPIARAN
W/O AJAY PRAKASH, AGE: 33 YEARS,
R/VD DOOR NO 1031, 16TH MAIN.
. .. RESPONDENT
° = {BY SMTT INDUMATH1, ADVOCATE FOR SR1. Y. LAKSHMIKANTH REDDY, ADVOCATE] K', é V. THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.12_.2Q05 PASSED IN MVC NO.1371/2004 ON THE FILE-<jO--F"*«THE CHIEF JUDGE, COURT OF SMALL CAUSES,;~'*MEM_BVER;~. PRLMACT, METROPOLITIAN AREA, AWARDING A COMPENSATION OF Rs.7,I6,'f22,fg' w":TH._ INTEREST @ 8% PA FROM THE DATEOR PET1T:OIJ__TjIL:, REALISATION. * S. j M.F.A. CROB No.196/20075;
BETWEEN:
1 ROOPA 0 W/O AJAY PRAKASH' * AGED ABOUT 33VYEARf3__ ; , ;,.
R/O D.NQ§'1.Q31,f167'*?~ ROAD ' 16TH CROSS,' E.T.M_LAYOUTS " "
1 3 0~g..'..CROSS-OBJECTOR {BY S:vIT." iN::,131yIATH:,'ADVOCATE FOR SR1; Y.' LAKSRMTKANTH REDDY, ADVOCATE) 1 '5.,MUN1APEA'A.,._....S/O ANNAMALAI _ AGE ABOUT 33 YEARS A R/O I\T.O".~57/3, KETHUVAI STREET ACDEN1i;A1g~:1,Ts;OTTA1, TAMILNADU. 2 UN'iT.:ED INDIA INSURANCE CO LTD {NSURER CODE 171000 ~ x T MM. REDDY COMPLE V. m__OLD BANGALORE ROAD,HOSUR.
* RESPONDENTS (BEYEMISS. PREETHI KOMAR, ADV. FOR SR1 B C SE RAO, AD'/., R~1 : NOTICE DISPENSED VVITH) 3 THIS CROSS--OBJECTION IN MFA NO.71I9/2006 FILED IS FILED UNDER ORDER 41 RULE 22 OF CPC R/W SEC 173(1) OF MV ACT, AGAINSTQPTHE JUDGEMENT AND AWARD DATED 31.12.2005 IN MVC NO.I37I/2004 ON THE FILE OF MACT & CHIEF JUDGE, COURT OE _ BANGALORE, SCCH--1, PARTLY ALLOWING '?'IfHE*-CIJAIM PETITION FOR COMPENSATION ANDv---._:f_v.SEE]E{}NG = ENHANCEMENT OF COMPENSATION." « g_ THIS MFA ADONG COMING ON FOR HEARING 'THIS f_DAY.,..__K.r N. . * KESHAVANARAYANA, J., DELIVERED THE F:oL'I,OWING:
JUDGMEN$ " I In the Claim petitiorI"fiIe-dtj'Section 166 of the Motor VChiCle:f;« in MVC NO. 1371/ A Conipevnsation for personal Road Traffic Accident that occurred about on 06.01.2003 as 3.' result of bearingv registration No. TN-'74--C--4383 colliding g"\fif';_'t::l"Iv_ILI1§%"fix,:($::V'iVh€€l€I' ridden by her, the Chief Judge, of Causes and Principal MACT, Bangalore, 'x__has qnantified the totai compensation payabie to the A ":EI'_c1ai"r'n_ant at Rs.8,95,902/-- under different heads as
1. Pain and sufferings Rs. 50,000/w
2. Towards Medical expenses, Rs. 1.50.000/-
3. Transportation Rs. 2,030»/--
4. Disability Rs. K
5. Loss of earning Rs. p
6. Loss of Marital life o_ I,Rs;. .AiV:5o,o0o/§"'.
7. Expenses while inpatient _ In the hospital V AQ_2'.8,6(l3O/l--
. pp 'A Rs. 8'95,9o2/_ 2} -------- 'by....the said judgment and awardl'~.of" Insurance Company has presented't--hisv.aVppealv 'co:ri'1plaining that the compensation aw_arded'by the"*Tr,jbunal under various heads is on the higher the percentage of contributory negligence attributedit-l'fEoVfthe claimant at 20% is on the lower side, having lllregard to the evidence on record. The claimant it lffbeirig diswsatisfled with the quantum of compensation ' awarded by the Tribunal, has filed crosswobjection after it the receipt of notice of the appeal. 5* counsel appearing for the appe1lant/insuranceppfifontpany?V and Miss. Indirnathi, learned counsela: for:
3} We have heard Miss. Preethi Komar, learned respondent/claimant, and perusedthe' records. 4] Miss. Preethi "t_Ko_vmarl,'v. xleanietzifwcounsel appearing for the appellanfllnsurance' ~.t_C:ompany, in support of the appeal
1) A'-.ii}._= Though; - the 7on'«. ndicates that the accident"_ncc-ui*_:ted.:_soVlely to the negligence of the clain1an_t"'herself__while' crossing the main road, the held that the accident was d1A1e_t'o"of the driver of the motor cab Vand the V'con'trihuto1"uy negligence on the part of the ~ Which' is quantified at 20%;
to the evidence on record, the negligence on the part of the claimant could not H u .ha\{e.Vheen as low as 20%, when the claimant herself V * was negligent in riding the two Wheeler carelessly and navigating to the right side of the road without due care and caution.
iii] Though even according to the claimant, she had lost her salary only for five months, the Tribuna'I-has committed error in awarding loss of income period of E8 months and 24 days.
Rs.50,000/~ towards loss of unwarranted and duplicaticlint the awarded Rs.2,00,000/~p tovtfarcii-sigh"disability,«. also covers the loss of l!1_éUi"i,tal life,' if .award 2 L' of interest at 8% p.a., onlthe compensation} amount is improper optposeidg the hwlellwsettled principles of law;
5) On" tiie:l1'o1'he_r learned counsel appeariiligv for claimant sought to justify:¥__the-- support the cross~objection, would submit as=~.1r'1c1e;:;f= ' Grosiswexarriiiratvion of PW.i indicates that there was ~r1eg'l'igence on the part of the claimant and in A same, the Tribunal has erroneously attrihuted contributory negligence to the claimant " to?-an extent of 20%.
it The finding of the Tribunal that there was contributory negligence on the part of the claimant is erroneous and contrary to the evidence on /.-' $512 if???' In iii} 7 record, as, in this regard, the Tribunal has faiied to consider the fact that the jurisdictionai police after investigation filed charge sheet against the driver of the motor cab, therefore, the Tribunal ought to,_have held that the accident was solely due_'...t;o.,<'_:the negligence of the driver of the motor cab._f*---- .' _. S _._ é The evidence of PW.1 readas a wh;ole*,----ie'stahli'she.s' that for 17 months she could not 'atte,nd_to_ her._wo,r,k:' and she was on leave, therefore, the satisfactorily proved th;,:1te..Vshe has 's}iffjered""losjs of V leave for a total period___Vof_ 12 months if her employer had ~«t_he period of 12 months during the -l].eave'lperiod,i.si,nce she had lost :'thhel'l'ea§f¢, the loss of leave for 12 llmonths for 5 months, as such, thee-'l'ribunal'is' 3-nhstified in awarding loss of earning v for a total' period 16 months 24 days and there is no ground 'tointerfere with the said award passed * " it T b_y*the j"i'rribunal.
my :
evidence on record .
"ilhe.V--V',j'a.t*£rard of Rs.50,0GO/~ towards the loss of zriantal pleasure in addition to physical disability of R-e".2,0o,ooo/-- is justified, regard being had to the The award of interest at 8% pa, having regard to the facts and circumstances of the case, is justified and it does not cail for interference.
V) Deduction of Rs.2.77,450/-- from out ofthe V' expenses based on an unmarked d.ocume;1t"'is_Unoet ii"
justified and the Tribunal (')t!Lgh'£d ':..paa§e.' deducted the said surnrwrnerely. pain. the contents of "
unmarked document without there'being"any"h'asis it that the Company has _rr1edi"cal_e:gp§enses to that extent. V A ' vi} The T1j3.b'un'_aJ up vtoij' the evidence on record .. suffered permanent disab'i1ity1ieadingw functidnal disability, ought to :,have_Aav§ra.rded I"L1tLufe loss of earning. 6} VVP'reet.hiV.:I;§'.omar, further contended that in thefzbseieicve of"any___acceptable evidence that the claimant
--accoi1nt,'tof._ the disability was unable to Work, the ]=fi'i5~,jnai "--.'."Ij1;_;;1V§=Vv'r*ight1y not granted any compensation towardseioss of future earning.
K"?
7) We have bestowed our serious consideratioriigto the submissions made on both sides. perused the.
and judgment under appeal.
8] From the records, it islhevideiit are not in dispute with regard to the--accidentlorccuriringlas V a result of collision between tfivogwheellelr the claimant and the of the claimant that the due to the negligence of However, the Tribunal the contents of the sketch has been marked as Ex.P4, "reco1<dedfAth_e' that the accident was due to the riegligence of bothlzthe claimant and the driver of the and thellllribunal has assessed the contributory I part of the claimant at 20%. The Ins'i1rar;'cc.VdA(f3'olmpany is aggrieved by this finding on the gifounduthat the accident was solely due to the negligence it 'the claimant herself in riding the two wheeler. 10
9) It is the contention of the learned counsel for the Insurance Company that the claimant who was proceeding from North to South on her two wheeler.,l_:
taking right turn towards the West to go . road on the Western Side of the it "
to the other side of the median.'withoutvstoriping'-.her: vehicle at the opening of the.rn~edianl"ond.witho€,it'v-loolting r L' for the oncoming vehicle >S_ouvthern' -Sidéésltowards North on the other side the fIi1ediafh..,gl'li*aished on to the Western Side of the roadfasla .re.su_lt,V'th:erelWas a collision between the wheeler. Thus, according "to thelleamedgcoairisel, the accident was solely due to the negligen_ce._o'fV claimant. _;'10}. Asicoulld be seen from Ex.P4, the road at the oifliaccident was running from North to South with a The width of the road on either side is 30 fe-:_et. v The actual collision between two vehicles took it please ata distance of 15 feet from the median towards the it 'Wes't of the road. This indicates that the claimant while 11 taking a turn. to her right side i.e., Western side of the road, proceeded at the opening of the median stopping at the entrance of the opening . covered about 15 feet on the Westerr1__slde'.of' rnedian K"
and the motor cab which was coiiiing: fronil'the_.Soiit:1*ief'n_:
side of the main road collided. Le two which r L' confronted with the motor cab-~a:t"gvthe..niiddieipoint of the right side of the road proper side of the motor cab. admits the correct.i'1es_s__V In fact, the to support her contentionr' learned counsel for the respondent! " contended that the accident 'ope_1_'iing of the median while the claimant gwas-. crossing the road by placing her legs on "either Vehicle, the sketch--i3x.P.4 do not support thehulsaildi contention. That was not even her say in the eVxlainination--in--chief filed by way of affidavit. On the hand, the cursory look of the contents of Ex.P4 indicates the negligence on the part of the claimant. / / / / 12 Nevertheless, it cannot be said that there was no negligence on the part of the driver of Motor Cab, the contents of Ex.P4, it is clear that the two wThe'ele1j _ covered almost 15 feet from median it 'w Therefore, the driver of Motor C'.,;ip wheeler fairly from a longer ciistancel to 1 have brought the Motor Cab fact that he collided with 'i2vheelor:l'indicates that he could not control the:.*vehi:cle.:- he was also negligent K} "'T4*'l"~l*3:fg'l.F--'ll1x§V(:Jl"resp0nsible for the acciderit__,__Vvlginuithié; the Tribunal has rightlyi'he1ri' =co1itr*ibutory negligence on the part of the._l claimant'.w..._ll..'tHowever, in our opinion, the has lwrongly assessed the percentage of the 'corittibvntoryelnegligence on the part of the claimant only at 20°/0,» it was much more.
a li) Having regard to facts and circumstances of ll case and the contents of EX.P4--, we are of the opinion
-«that the contributory negligence on the part of the 17 W, 13 claimant has to assessed at 50%. Thus, the contributory negligence on the part of either side would be To this extent. the finding of the. Tribunal requires' modified and it is accordingly modified.
12) It is in the evidence on""recorjcl..gth;atllio1'_ period of 16 months and 24V the claimant could not attend toliher work; ll herself has stated in her' evidenCe:l:that.._she has 'li)ee11 paid salary up to the end and for five months she fnotigg I The Tribunal, however, awa19ded_.of Rsl4,15,302/-» towards loss of earningllforlaygperiodic? :_41'5]iie1onths and 24» days at the rate of /--u'wh.ilchTwas her monthly salary.~ Having factwthat the claimant has received the it months from her employer during the period of treatment'; it was for the claimant to have proved that J's:hc_ had; the facility of accumulating the leave and l soul'-rendering the same for encashment. However, the ~»vc-laimant has not produced any evidence in this regard.
/3 14 Even in her examinationdn-chief filed by Way of affidavit, the claimant has not stated that as per the terrr.s'f«and conditions of employment, she was entitled ~ the leave for any period an.d~~h.ad of 'Au surrendering the leave and get thie;sal_ary for _that Thus, there is no evidence to__linVdicat'e,tliatVthe._;C'l'airnant * V has suffered loss of leave. 'ahsenlclevof such evidence, in our 0pinion,l_,hthet_ not justified in awarding loss of 16 months and 24 days"; salary from her emplo3'eir; during this period, though"*._A learned counsel for the appellant,lmad.evlargument to contend that the ._V_ela.i:Ifsan_t did lolst-«rrxorietary benefit for the said period as she--w1a's4VCo:m:jelled to utilise all her accumulated leave for about 12 Therefore, the claimant is entitled only for a..su1{n.V4of Rs.1,23,360/- being the loss of pay for a A gieriod of live months as against Rs.4,15,802/-- awarded the Tribunal.
aw"
15
13) No doubt, the Tribunal in the judgment under appeal, after referring to the medical bills though found that the claimant has .
expenditure of Rs.3,98,57 8/ -- towar_ds ls"
Tribunal noticing the contents of an un--riiari:.ed _docu:nierit:
produced by the claimant, was a .ietterA¥_1"rom--'; her 2 L' employer, found that the emplo_'yer"..of has paid a sum of :t;he_Vtreatment and medical View that the claimant this fact and sum of Rs.2,7"7,450/-
from out incurred by her and has awarded uVa._gsu1n._ of "R:s;1,21,128/-- towards medical expenses and.ib'y.adding some amount towards food and 'n,ourishmentt"eXpenses, awarded a totai compensation of this head. Before this Court, Smt. induinatihi sought to contend that though initially the is Cfonipany had paid an amount of Rs.2,77,450/~ towards the medical expenses, subsequently, the Company has recovered the amount from the claimant. In support of . '% 16 this contention, the claimant also sought to produce some additional documents along with a memo, hefore:"«.this Court. Of course, the additional documents\--';Vcanr'io:'t i. produced along with a memo a_sg...and when it"
wishes, more so in appeal. Even 'wellook into"the this letter. according to '"xcvopyA"'of this the v C' Company has Waivedaoff the medical expenses and sought to recoxirer amount of Rs. 1 ,36,500/--" monthly' 5R§.5,oo0/-- from has not produced any before this Court to indicate "C Rs.1,36,500/-- has been recoveredlxbyulherllemployer from out of her monthly salary. Thereforle, in theabsence of any such evidence, in our 'dpi11i,or:I.,'"thell'fifibunal is justified in deducting a sum of out of the medical expenses incurred by tlheleplaimant. Therefore, the award of Rs.i,50,000/~ A toiv'a.rds medical expenses is sustainable, and the rest of the amount cannot be allowed.
52* ?:$/'/ 17 14] The claimant in her oral evidence has clearly stated that after the treatment, she resumed her; from June 2004 and worked in the said ~ indicates that in spite of some disability b3,f_'hVer-.V_V 2"
the claimant continued to work in;"the?bSlaiVd claimant has not produced any acc'cptab_le, ev.id'enc*e to = 2' show that on account this_y.dilsability, --s.alary was in any way reduced by evidence was produced to prospects in the said Compariy_i<._V document now sought~~to an application for production' " evidence indicates that the claimant job w.e.f 318" March 2007 for thefseaslonp best"i»:nowvn to her, since no reason has been said letter dated 02.02.2007 for resigning "er"}'lob.l is no evidence on record placed by the claiinant; show that she left the job on account of A diséibility incurred. Therefore, in the absence of any evidence indicating that the disability incurred by the claimant has come in the Way of discharging her duties, in 20 circumstances of the case, is just and reasonable and do not call for any interference by this Court.
17) The award of interest at the rate_o£._ though appears to be little on the.Jhig_,her found that the claimant has also conielup by cross-- I objection in this appeal lp"'inade'quacy of compensation awardedijjpby being not able to make hand, the Insurance succeed to a iytélof affairs, We do not proposellturthei.f~i compensation that has become"ayailable:lto'A'thé-gclaiinant by reducing the rate of inte1jest.pA Therefore, llwevleave the rate of interest at 8% I ayvarded the Tribunal, undisturbed. It is for reason. Ware reject the submission of Miss. Preethi Kotnar,V___v'i'carned counsel for the Insurance Company to it Ieducethe rate of interest.
18) In View of the above, the compensation 'quantified by the Tribunal at Rs.8,95,902/-- gets reduced 21 to Rs.6,03,960/-- which is rounded off to Rs.6,04,000/--.
Out of this amount, Rs.3,02,000/-- is liable to be deducted towards contributory negligence on the part of__ the claimant and she is entitled to receive Rs.3,02,000/frorn the owner and insurer of the Motor Cab.
19) Accordingly, the appea_l,..fi1ed by''the:'i:ns'u:rance'' "" it Company} is allowed in part.
the respondent/ claimant is 'd_i_s1riissedv-. In nioditicvaition of a L' the judgment and award of thVe__:"VIi'iibu=nai, "is:Vord_e~red that the contributory negiigence part of the Respo1vident/ .._to_ the extent of 50%. The compensation 'the Tribunal at Rs.8,95,902/-- is 'reduced Rs;0Ei,04,000/--. After deducting towards the contributory negligence of the I is entitled to receive Rs.3,02,000/-- with int'e1*est__v p.a. from the date of petition to the date of Vdtpayrnentidfrom the owner and insurer of Motor Cab jointly. 'Hov.xrever, the appe11ant--Insurance Company is directed to 22 deposit the said amount with interest, if already not deposited, within six weeks from today. The statutory deposit, if any, made before~-..this'~C'ourt=:
is ordered to be transmitted to the the Tribunal is directed to di.sburse'*--tiie compensation the claimant only to the extent'Viqt.iantified~.iIi"tiiis jzidgment and if there is any ordered to be refunded to the Insuraneev"t'Co1njoa:ny'."~-,V.' ' d Kare A