Karnataka High Court
Divisional Manager vs Smt Pushpalatha S Shetty on 30 July, 2015
Bench: N.K.Patil, Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY 2015
PRESENT
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
MISC. FIRST APPEAL NO.385/2011 (MV)
C/W
MISC. FIRST APPEAL NO.384/2011 (MV)
C/W
MISC. FIRST APPEAL NO.649/2011 (MV)
M.F.A. NO.385/2011 (MV)
BETWEEN:
DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
KRISHNA COMPLEX,
G B PANTH MARG,
UDUPI - 576 101,
NOW SITUATED AT
DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
JEWEL PLAZA, I FLOOR,
MARUTHI VEETHIKA,
UDUPI - 576 101. ...APPELLANT
(BY SRI A.N.KRISHNA SWAMY, ADV.)
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AND:
1. SMT.PUSHPALATHA S. SHETTY
W/O SUBHASH SHETTY
NOW AGED ABOUT 34 YEARS
R/A VIA HALEYANGADI,
MANGALORE
NOW R/A PADUBIDRI,
UDUPI TQ., AND DISTRICT.
2. K.D.HARISH
S/O DHARMANNA
NOW AGED ABOUT 41 YEARS
R/A DODDANAGUDDE,
GUNDIBAILU,
UDUPI TALUK AND DISTRICT. ...RESPONDENTS.
(BY SRI B.S.SACHIN FOR
DHARMASHREE ASSOCIATES, ADVS. FOR R1;
NOTICE TO R2 IS HELD SUFFICIENT
V/O DATED 23/07/2015)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT & AWARD DATED 24.08.2010
PASSED IN MVC NO.893/2009 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, UDUPI, AWARDING
A COMPENSATION OF RS.1,44,140/- WITH INTEREST @ 8%
P.A. FROM THE DATE OF PETITION TILL REALIZATION.
M.F.A. NO.384/2011 (MV)
BETWEEN:
DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
KRISHNA COMPLEX, G B PANTH MARG,
UDUPI - 576 101, NOW SITUATED AT
3
DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
JEWEL PLAZA, I FLOOR,
MARUTHI VEETHIKA,
UDUPI - 576 101. ...APPELLANT
(BY SRI A.N.KRISHNA SWAMY, ADV.)
AND:
1. SUBHASH SHETTY
S/O SHEENA SHETTY
NOW AGED ABOUT 40 YEARS
R/A PADU NEW HOUSE,
HALEYANGADI, MANGALORE,
NOW R/A PADUBIDRI,
UDUPI TQ., AND DISTRICT.
2. K.D.HARISH
S/O DHARMANNA
NOW AGED ABOUT 41 YEARS
R/A DODDANAGUDDE,
GUNDIBAILU,
UDUPI TALUK AND DISTRICT. ...RESPONDENTS
(BY SRI G.N.MAIYA, ADV. FOR R1;
NOTICE TO R2 IS HELD SUFFICIENT
V/O DATED 23/07/2015)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT & AWARD DATED 24.08.2010
PASSED IN MVC NO.510/2009 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, UDUPI, AWARDING
A COMPENSATION OF RS.3,80,000/- WITH INTEREST @ 8%
P.A. ON RS.3,60,000/- FROM THE DATE OF PETITION TILL
REALIZATION.
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M.F.A. NO.649/2011 (MV)
BETWEEN:
SRI SUBHASH SHETTY
AGED ABOUT 40 YEARS
S/O SHEENA SHETTY
RESIDING AT PADU NEW HOUSE,
HALEYANGADI, MANGALORE
NOW RESIDING AT PADUBIDRI,
UDUPI TALUK AND DISTRICT- 576 101. ...APPELLANT
(BY SRI G.N.MAIYA, ADV.)
AND:
1. K.D.HARISH
NOW AGED ABOUT 41 YEARS
S/O DHARMANNA
R/A DODDANAGUDDE,
GUNDIBAILU,
UDUPI TALUK AND DISTRICT - 576 101.
2. THE UNITED INDIA INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
KRISHNA COMPLEX,
G.B.PANTH ROAD,
UDUPI - 576 101. ...RESPONDENTS.
(BY SRI A.N.KRISHNA SWAMY, ADV. FOR R2;
R1 - SERVED AND UNREPRESENTED)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT & AWARD DATED 24.08.2010
PASSED IN MVC NO.510/2009 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL
MOTOR ACCIDENT CLAIMS TRIBUNAL, UDUPI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
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THESE APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 23/07/2015 AND COMING
ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,
RATHNAKALA J., DELIVERED THE FOLLOWING:-
JUDGMENT
M.F.A.Nos.385/2011 and 384/2011 are filed by the Insurance Company, challenging the judgment and award dated 24th August 2010 passed in M.V.C.Nos.893/2009 and 510/2009 whereas, M.F.A.No.649/2011 is filed by the injured claimant aggrieved by the inadequacy of compensation, challenging the judgment and award dated 24th August 2010 passed in M.V.C.No.510/2010 on the file of the Additional Motor Accident Claims Tribunal and Principal Senior Civil Judge, Udupi ('the Tribunal' for short).
2. The Tribunal vide its common judgment and award dated 24.8.2010 has allowed the petitions filed by the claimants in M.V.C.Nos.893/2009 and 510/2009, awarding compensation of Rs.1,44,140/- and Rs.3,80,000/- respectively. 6
3. The case of the owner of the Maxi Cab/petitioner in M.V.C.No.893/2009 was that, on 21.8.2008 while Subhash Shetty/the driver of the Maxi Cab bearing registration No.KA- 20/6873 near Kothalkatte, Uliyaragoli Village, Udupi Taluk, the offending lorry bearing registration No.KA-42/574 driven by its driver in a rash and negligent manner without following the traffic rules and regulations, by overtaking another vehicle dashed against the Maxi Cab. Due to the said impact, the body of the Maxi Cab was damaged. Subhash Shetty/driver of the Maxi Cab suffered grievous injuries. He was shifted to the hospital. He was aged 38 years as on the date of the accident and was earning Rs.10,000/- per month by working as a Driver. Because of the accidental injuries, he has suffered financial loss. Towards damage to the Maxi Cab, the petitioner of M.V.C.No.893/2009 claimed compensation of Rs.1,44,140/- and the victim of the accident/petitioner of M.V.C.No.510/2009 claimed compensation of Rs.20 lakhs with interest @ 12% per annum towards medical 7 expenses, loss of future income due to permanent disability suffered by him, etc. Both cases were contested by the driver and insurer of the offending vehicle.
After holding enquiry and on overall consideration of the matter, the Tribunal allowed both petitions. Petitioner of M.V.C.No.893/2009 (owner of Maxi Cab) is awarded compensation of Rs.1,44,140/-. Petitioner of M.V.C.No.510/2009 (driver of the Maxi Cab) is awarded compensation of Rs.3,80,000/-; interest @ 8% per annum is payable by both the respondents jointly and severally.
4. It is the submission of Sri.A.N.Krishna Swamy, learned Counsel appearing for the insurer in both the appeals that, Subhash Shetty/driver of Maxi Cab is none other than the husband of the owner of Maxi Cab. Knowing fully well that the permitted seating capacity of the Maxi Cab is 12 only, he was carrying excess passengers, numbering 48 in clear violation of the permit condition. 8 In view of the judgment of the Apex Court in National Insurance Co.Ltd. -vs- Prembai Patel & Others reported in 2005 ACJ 1323, the claimants in both cases, who are owner and driver of the vehicle, at the same time, husband and wife, cannot take benefit of their own wrong and the Tribunal failed to notice the above aspect of the matter. At the least, contributory negligence to an extent of 50% ought to have been fastened against the driver of the Maxi Cab. The aspect of the contributory negligence having not been considered by the Tribunal, the impugned judgment and award is erroneous. The claim petitions are not maintainable, since each one of the inmates of the vehicle has contributed for occurrence of the accident.
Sri.Krishna Swamy further submits that the interest awarded @ 8% per annum is excessive and prays to modify the award of the Tribunal, taking into consideration the above aspects.
5. Sri.G.N.Maiya, learned Counsel appearing for the appellant in M.F.A.No.649/2011 submits that the appellant/injured 9 has suffered as many as six injuries. Injury Nos.1 and 2 were grievous in nature. He was hospitalized for 42 days. He was aged 38 years as per the medical evidence. He had sustained 40% permanent disability. Since he is unable to work as driver anymore, the loss of his earning capacity is 100%; he is not in a position to attend to his routine activities. The compensation awarded is inadequate. Hence, the award of the Tribunal may be modified by awarding just and reasonable compensation.
6. In the light of the above submissions and on perusal of the common impugned judgment and award, the following points arise for our consideration:
1. Whether violation of permit condition disentitles claimants from seeking compensation?
2. Whether the compensation awarded in favour of the claimant in M.V.C.No.510/2009 warrants enhancement?
7. The vehicular accident dated 21.8.2008 at about 3.45 p.m., involving the Maxi Cab bearing registration No.KA-20/6873 and lorry bearing registration No.KA-42/574, near Kothalkatte, 10 Uliyaragoli village, Udupi Taluk, is not in dispute. It is also a fact that the Maxi Cab was carrying passengers beyond the limit under its permit. A case was registered against the driver of the lorry and after investigation, charge sheet is filed against him. The investigation papers demonstrate that, because of the rash and negligent driving of the driver of the lorry, the accident has taken place. Rightly the Tribunal has held that, accident has not occurred because of the driver of the Maxi Cab carrying excess passengers beyond the permit condition and the insurer has not placed any record to show that because of violation of the permit condition, the accident has occurred. The Tribunal on consideration of the above matter has negatived the contention of the insurer to absolve it from the liability to answer the claim. In that view of the matter, there is no merit in the grounds urged for the Insurance Company in M.F.A.Nos.385/2011 and 384/2011.
8. Coming to the case of the claimant of M.F.A.No.649/2011, as on the date of the accident, he was aged 38 years and a driver by profession. He was treated as inpatient for 42 11 days. Though he claims that he was earning more than Rs.10,000/- per month, in the absence of corroborating documentary proof, the Tribunal has worked out the compensation by assuming his notional income as Rs.5,000/- per month. However, having regard to the date of the accident and his avocation, we hold that his income was not less than Rs.6,500/- per month. He was hospitalized for totally 42 days and had suffered following six injuries:
1. Grade III (Gustillo) Fracture compound both bone left leg junction of middle and lower 3rd with loss of piece of bone;
2. Grade I (Gustillo) fracture both bone right leg;
3. 3" sized lacerated wound (R1) temporal region;
4. 2" size lacerated wound (Rt) temporal region 2 in No.;
5. 2" size lacerated wound over scalp and
6. Abrasion right side face.
Out of six injuries, two are grievous in nature.
9. The Tribunal has awarded Rs.40,000/- towards pain and suffering which, in our opinion, shall be enhanced to Rs.60,000/-. Rs.80,000/- is awarded towards medical expenses, which does not 12 call for interference. Towards loss of income during laid up period as against Rs.30,000/- awarded, we hold he is entitled for Rs.39,000/- @ Rs.6,500/- for six months. Towards conveyance, nourishment and attendant charges, Rs.15,000/- is awarded, which needs to be enhanced to Rs.30,000/-, having regard to the period of hospitalization and the treatment undergone by him. Towards discomfort and loss of amenities, Rs.15,000/- awarded is on the lower side. Having regard to the nature of permanent disability, which will endure for the rest of his life, we deem it fit to award Rs.30,000/-. Towards loss of income arising out of his permanent disability, as per the medical evidence, he has suffered 40% disability and the Tribunal has quantified the disability at 20% to the whole body, which in our opinion, is appropriate. The appropriate multiplier to work out the loss of future income consequent upon his permanent disability as per the judgment of the Apex Court in the case of Smt.Sarla Verma and others -vs- Delhi Transport Corporation and another (2009 ACJ 1298), in reference to his age of 38 years, is '15'. Accordingly, compensation 13 towards loss of future income comes to Rs.2,34,000/- (Rs.6,500/- x12x20x15/100) as against Rs.1,80,000/- worked out by the Tribunal. Towards future medical expenses, Rs.20,000/- is awarded, which we do not incline to interfere. In all, he is entitled for compensation of Rs.4,93,000/- with interest @ 8% per annum on the enhanced compensation, the breakup of which is as under:
1. Pain and suffering Rs. 60,000/-
2. Medical Expenses Rs. 80,000/-
3. Loss of income during Rs. 39,000/-
laid up period
4. Conveyance, Rs. 30,000/-
nourishment and
attendant charges
5. Discomfort and loss of Rs. 30,000/-
amenities
6. Loss of future income Rs.2,34,000/-
7. Future medical Rs. 20,000/-
expenses
TOTAL Rs.4,93,000/-
Accordingly, the appellant in M.F.A.No.649/2011 is entitled for total compensation of Rs.4,93,000/- as against Rs.3,80,000/- with interest @ 8% per annum from the date of petition till realization.
Hence, there would be enhancement of Rs.1,13,000/-. 14
For the discussion supra, M.F.A.Nos.385/2011 and 384/2011 filed by the Insurance Company are dismissed.
M.F.A.No.649/2011 filed by the appellant/claimant is allowed in part.
The judgment and award dated 24th August 2010 passed in M.V.C.No.510/2008 on the file of the Additional Motor Accident Claims Tribunal and Principal Senior Civil Judge, Udupi, is hereby modified.
The appellant/claimant is entitled for enhanced compensation of Rs.1,13,000/- with interest at the rate of 8% p.a. on the enhanced compensation from the date of claim petition till the date of deposit.
The second respondent / insurer in M.F.A.No.649/2011 is directed to deposit the enhanced compensation amount along with proportionate interest within 3 weeks from the date of receipt of the copy of this judgment and award.
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Out of the enhanced compensation amount, Rs.50,000/- with proportionate interest shall be invested in the name of the appellant in Fixed Deposit in any Nationalized/Scheduled/Grameena Bank of his choice for a period of ten years renewable for another ten years, with liberty to the appellant to withdraw the interest accrued on it, periodically.
Remaining Rs.63,000/- with proportionate interest shall be released in favour of the appellant on deposit made by the second respondent.
The statutory amount in deposit shall be transmitted to the jurisdictional Tribunal.
Office to draw the award, accordingly.
Sd/-
JUDGE Sd/-
JUDGE KNM/-