Karnataka High Court
M/S New India Assurance Company Ltd vs Sri Gopalakrishna Naik on 25 November, 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
MISCELLANEOUS FIRST APPEAL NO.8894 OF 2009 (MV)
C/W
MFA CROB NO.90 OF 2010
IN MFA 8894 OF 2009
BETWEEN:
M/S NEW INDIA ASSURANCE COMPANY LTD.,
BRANCH AT ISHWARI COMPLEX,
NO.65, DR.RAJKUMAR ROAD,
RAJAJINAGAR, BENGALURU,
REPRESENTED BY THE REGIONAL OFFICE,
THE NEW INDIA ASSURANCE CO., LTD.,
UNITY BUILDING ANNEXE,
NO.2B, MISSION ROAD,
BENGALURU-560 001.
... APPELLANT
(BY SMT.GEETA RAJ, ADVOCATE)
AND:
1. SRI. GOPALAKRISHNA NAIK,
S/O Sri. U RATHNAKARA NAIK,
AGED ABOUT 29 YEARS,
SRI NAGESH PRASAD,
LADY HILL, MANGALURU TALUK,
DAKSHINA KANNADA-575 001.
2. Sri. ABDUL KALAK
SINCE DEAD BY HIS LRS
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2(a).MRS.SHAKADE BEE,
W/O LATE ABDUL KALAK,
AGED ABOUT 65 YEARS.
2(b).MR.AKRAM ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 49 YEARS.
2(c).MR.AJAMMATH ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 48 YEARS.
2(d).MR.RAHAMMAT ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 46 YEARS.
2(e).MR.JABI ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 42 YEARS.
2(f).MR.NIJMUNISSA,
S/O LATE ABDUL KALAK,
AGED ABOUT 40 YEARS.
ALL ARE RESIDING AT ISLAMPURA,
NELAMANGALA TALUK,
BENGALURU-562 123.
3. SHRI. K.M. HAMEED ALIKHAN,
MAJOR,
NO.149, 6TH MAIN,
BYRASANDRA, JAYANAGAR,
BENGALURU-560 011.
... RESPONDENTS
(BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE FOR R1;
SRI. P.M. SIDDAMALLAPPA, ADVOCATE FOR R2(a) to (f);
NOTICE TO R3 IS DISPENSED WITH)
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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 30TH JULY, 2009 PASSED IN MVC
NO.953 OF 2003 ON THE FILE OF II ADDITIONAL DISTRICT
JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-III,
DAKSHINA KANNADA, MANGALURU, AWARDING COMPENSATION
OF RS.2,70,000/- WITH INTEREST AT 6% PER ANNUM FROM THE
DATE OF PETITION TILL REALISATION.
IN MFA CROB 90 OF 2010
BETWEEN:
SRI. GOPALAKRISHNA NAIK,
AGED 30 YEARS,
S/O SRI. U. RATNAKARA NAIK,
R/O. 'Sri NAGESH PRASAD', LADY HILL,
MANGALURU, D.K.
... CROSS OBJECTOR
(BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE)
AND:
1. THE NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFF: ISHWARI COMPLEX,
NO.65, DR. RAJKUMAR ROAD,
RAJAJINAGAR, BENGALURU.
REP. BY ITS BRANCH MANAGER.
2. ABDUL KALAK
SINCE DEAD BY HIS LRS.
2(a).MRS.SHAKADE BEE,
W/O LATE ABDUL KALAK,
AGED ABOUT 65 YEARS.
2(b).MR.AKRAM ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 49 YEARS.
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2(c).MR.AJAMMATH ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 48 YEARS.
2(d).MR.RAHAMMAT ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 46 YEARS.
2(e).MR.JABI ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 42 YEARS.
2(f).MR.NIJMUNISSA,
S/O LATE ABDUL KALAK,
AGED ABOUT 40 YEARS.
R2 (a) TO (f) ARE RESIDING AT
ISLAMPURA,
NELAMANGALA TALUK,
BENGALURU-562 123.
3. K.M HAMEED ALIKHAN,
MAJOR,
NO.149, 6TH MAIN,
BYRASANDRA,
JAYANAGAR,
BENGALURU-560 011.
... RESPONDENTS
(BY SRI. P.M. SIDDAMALLAPPA, ADVOCATE
FOR R2(a) TO (f); SMT. GEETHA RAJ, ADVOCATE FOR R1)
THIS MFA CROB IN MISCELLANEOUS FIRST APPEAL
NO.8894 OF 2009 IS FILED UNDER ORDER XLI RULE 22 OF
CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND
AWARD DATED 30TH JULY, 2009 PASSED IN MVC NO.953 OF
2003 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL-III, DAKSHINA KANNADA,
MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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THIS MISCELLANEOUS FIRST APPEAL AND CROSS
OBJECTION COMING ON FOR HEARING THIS DAY, THE COURT,
DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal and Cross objection are arising out of the judgment and award dated 30th July, 2009 passed in MVC No.953 of 2003 on the file of the II Additional District Judge and Motor Accident Claims Tribunal-III, Dakshina Kannada, Mangaluru (for short, hereinafter referred to as 'Tribunal').
2. Miscellaneous First Appeal No.8894 of 2009 is filed by the Insurance Company challenging the impugned judgment and award on the ground of quantum of compensation; and Cross Objection No.90 of 2010 is filed by the claimant seeking enhancement of compensation.
3. For the sake of convenience, the parties in this appeal and Cross objections, shall be referred to in terms of their status and ranking before the Tribunal.
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4. The relevant facts of the case for adjudication of this appeal and Cross Objections are that on 29th March, 2003 at around 2.00 to 2.30 p.m., the claimant was proceeding as a pillion rider in a Fiero Suzuki TVS Motorcycle bearing registration No.KA-01/U-7900 from Benglauru to Devarayana Durga Temple at Tumakuru and when he reached near Kodage Halli cross, at that time, a lorry bearing registration No.KA-02-7902 driven by its driver in a rash and negligent manner dashed to the said Motorcycle. Due to the said impact, the claimant has sustained grievous injuries. It is the case of the claimant that, on account of the injuries sustained by him in the said Road Traffic accident, he suffered monetarily and physically and as such, filed MVC No.953 of 2003 on the file of the Tribunal, seeking compensation.
5. On service on notice, respondents 1 and 2 have entered appearance and filed detailed written statement denying the averments made in the claim petition. The Tribunal, after considering the pleadings on record, has formulated issues for its consideration. In order to prove the claim petition, the claimant has examined three witnesses as PW1 to PW3 and produced twenty two documents and same were got marked as Exhibits P1 to P22. On the other hand, no oral evidence has been made by 7 the respondents. However, Insurance Company has marked Exhibit D1-copy of Insurance Policy.
6. The Tribunal, after considering the material on record, by its judgment and award dated 30th July, 2009, allowed the claim petition in part and awarded compensation of Rs.2,70,000/- with interest at the rate of 6% per annum from the date of petition till realisation. Being aggrieved by the award made by the Tribunal with regard to Medical expenses and Hospitalisation charges wherein the claimant has got reimbursement of same from the employer, the Insurance company has preferred Miscellaneous First Appeal No. 8894 of 2009 and the claimant filed Cross objection stating that the award made by the Tribunal is megre and seeks enhancement of compensation.
7. I have heard Smt. Geetha Raj, learned counsel appearing for the Insurance Company; Sri. Pundikai Ishwara Bhat, learned counsel appearing for the claimant; and Sri. P.M.Siddamallappa, learned counsel appearing for respondent No.2 (a) to (f).
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8. Smt. Geetha Raj, learned counsel appearing for the Insurance Company contended that, the claimant has got reimbursement of Medical expenses and Hospitalisation charges in an extent of Rs.1,10,000/- from the employer and therefore, awarding of the very same amount by the Tribunal is contrary to law and therefore, she placed reliance on judgment of this Court in the case of BINUP KUMAR R Vs PRABHAKAR H.G. AND ANOTHER reported in 2010 ACJ 2742; and another judgment of Division Bench of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED Vs. MANISH GUPTA reported in (2013) 1 KLJ 624. Referring to the aforementioned judgments, she contended that the award of compensation under the head Medical expenses and Hospitalistion charges awarded by the Tribunal requires revisitation in this appeal.
9. Per contra, Sri. Pundikai Ishwara Bhat, learned counsel appearing for the claimant referring the judgment in the case of HELLEN C REBELLO Vs. MAHARASHTRA STATE ROAD TRANSPORT CORPORATION reported in AIR 1998 SC 3191 and Judgment of this Court in the case of SHAHEED AHMED Vs. SHANKARANARAYANA BHAT AND ANOTHER reported in ILR 2008 KAR 3277, contended that, though the Medical expenses and 9 Hospitalisation charges are reimbursed by the claimant from his employer, however, considering the nature of injuries sustained, the claimant is entitled for compensation under the very same head and therefore, he refuted the contentions made by Smt. Geetha Raj, learned counsel appearing for the Insurance Company. Insofar as the Cross Objection is concerned, learned counsel appearing for the claimant claimed for enhancement of compensation and he submitted that the award of compensation under the head pain and suffering is on lower side looking into injuries sustained by the claimant in the said accident. He also submitted that, award of incidental charges is also on lower side which requires to be enhanced in this appeal. Further, he contended that, the Tribunal has not awarded any compensation towards loss of amenities and therefore requested this court to award just compensation under the head loss of amenities. He further submitted that, on account of the injuries sustained by the claimant, he is unable to prosper in life, so also the promotion avenues to the claimant has become bleak and same is looked into and just compensation be awarded.
10. In light of the submission made by the learned counsel appearing for the parties, insofar as the quantum of 10 compensation awarded by the Tribunal under the head Medical expenses and Hospitalisation charges is concerned, it is not in dispute that the clamant was working as Design Engineer at Texas Instruments (India) Pvt. Ltd. at Bengaluru and drawing a salary of Rs.38,154.25 per month. Perusal of the record would clearly indicate that claimant availed Medi-claim policy and claimed amount of Medical expenses and Hospitalisation charges from the Medi-claim policy. In this regard, though the learned counsel appearing for the claimant referred the law declared by the Apex Court in the case of HELLEN C REBELLO (supra), the very judgment has been considered by the Division Bench of this Court in the case of MANISH GUPTA (supra), wherein it is observed that, if once the amount incurred on medical expenses is reimbursed by the employer or the same is made good by the Medi-claim policy, the same cannot be claimed in claim petition. The observation made by the Division Bench in the said judgment at paragraph 24 reads as under:
"In the case on hand, the facts are almost similar. It is not dispute that in all the claim petitions, the claimants had taken the Mediclaim policies and they have claimed the amount under the policy. We are of the view that the question of the claimants 11 claiming compensation in the claim petitions, which is filed under the Act for the amount expended by them for the treatment, certainly cannot be granted. The medical expenses as observed, is classified as a pecuniary loss. Pecuniary loss in its context means that the actual amount, which is expended by the claimant for treatment. If the said amount has been paid by the Insurer under the Mediclaim policy, the question of the claimant claiming the very same amount for the very same purpose, which is inclusive of the expenses, which are incurred by him for hospitalisation and for his treatment does not arise. Undoubtedly, if the amount, which is received by the claimant under the Mediclaim policy fails short of the actual expenses expended by him, it is always open for him to claim the difference of amount spent from the Tribunal. But however, he cannot claim compensation under both the Mediclaim policy as well as the claim petition filed under the Act. The decision of the Apex Court in Hellen C. Rebello's case was in respect of the Life Insurance Policy and not in respect of a Mediclaim policy and therefore the said decision is distinguishable."
(emphasis supplied)
11. I have also noticed from the record that the claimant has received amount from the Medi-claim Policy with regard to Hospitalisation charges and therefore 12 following the law declared by Division Bench of this Court in the case of Manish Gupta referred to supra, I am of the view that the submission made by the learned counsel appearing for the Insurance Company is to be accepted for deducting Rs.1,10,000/- from the total compensation amount which is awarded towards Medical expenses and Hospitalisation charges.
12. Insofar as the enhancement of compensation is concerned, looking into account injuries sustained by the claimant as per the Exhibit P3-Wound Certificate, I am of the view that the claimant is entitled for compensation of Rs.30,000/- towards pain and suffering; Rs.40,000/- towards incidental charges. Perusal of the record would clearly indicate that the claimant has sustained grievous injuries of fracture of L1, 2, 3, 4 bone and he was in I.C.U. for a period of 10 days. Taking into consideration the avocation and the Income wherein, it has come on evidence of the claimant that there is no deduction of salary for the period which had taken leave for treatment, I am of the view that the claimant is not entitled for compensation towards the same. However, taking into 13 consideration loss of prosperity is concerned and the nature of work by the claimant in the aforementioned establishment, I am of the view that amount awarded towards loss of prosperity is on the lower side. Looking into age of the claimant, in my considered opinion, claimant is entitled for Rs.2,00,000/- towards loss of prosperity. Further, considering the discomfort the claimant has to undergo for the lifetime, I intend to award Rs.25,000/- towards loss of amenities. Accordingly, claimant is entitled for compensation as under:
HEAD AMOUNT(Rs.)
Pain and suffering 30,000-00
Incidental charges 40,000-00
Loss of prosperity 2,00,000-00
Loss of amenities 25,000-00
TOTAL 2,95,000-00
In result I pass the following:
ORDER
1. Miscellaneous First Appeal No.8894 of 2009 and MFA Crob. No.90 of 2010 are allowed in part;
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2. The compensation is enhanced to Rs.2,95,000/-
in lieu of Rs.2,70,000/- awarded by the Tribunal;
3. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till realisation;
4. Amount in deposit be transmitted to the Tribunal forthwith for disbursement to the claimant.
Sd/-
JUDGE ARK