Karnataka High Court
Smt Rudramma vs M/S Komitla Services on 17 November, 2020
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
M.F.A. NO.1702/2019
C/W
M.F.A. NO.1703/2019, M.F.A. NO.934/2019 &
M.F.A. NO.935/2019 (MV)
M.F.A. NO.1702/2019
BETWEEN:
SMT. RUDRAMMA
W/O SANNAMARIYAPPA
AGED ABOUT 54 YEARS
R/AT. 215, 5TH MAIN ROAD
RAVI KIRLOSKAR LAYOUT
CHIKKABIDARAKALLU
NAGASANDRA POST
BANGALORE-560078.
... APPELLANT
(BY SMT. K.G. NALINAKUMARI, ADV., FOR
SRI. B.C. THIPPESWAMY, ADV.,)
AND:
1. M/S. KOMITLA SERVICES
REPT. BY K. SATYANARAYANA REDDY
R/AT. NO.15, 4TH CROSS
INDUSTRIAL LAYOUT
2
5TH BLOCK, KORAMANGALA
BANGALORE-560034.
2. THE REGIONAL MANAGER
REGIONAL OFFICE
THE UNITED INDIA INSURANCE CO., LTD.,
6TH FLOOR, KRISHI BHAVAN
HUDSON CIRCLE, NRUPATHUNGA ROAD
BANGALORE-560001.
... RESPONDENTS
(BY SRI. L. SREEKANTA RAO, ADV., FOR R2
R1 SERVED & UNREPRESENTED)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.09.2018 PASSED IN
MVC NO.4556/2015 ON THE FILE OF THE I ADDITIONAL SMALL
CAUSES JUDGE & MACT, BENGALURU (SCCH-11), PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
M.F.A. NO.1703/2019
BETWEEN:
SRI. S.M. VIJAYA KUMAR
S/O S.B. SANNAMARIYAPPA
AGED ABOUT 37 YEARS
R/AT. 215, 5TH MAIN ROAD
RAVI KIRLOSKAR LAYOUT
CHIKKABIDARAKALLU
NAGASANDRA POST
BANGALORE-560073.
... APPELLANT
(BY SMT. K.G. NALINAKUMARI, ADV., FOR
SRI. B.C. THIPPESWAMY, ADV.,)
AND:
1. M/S. KOMITLA SERVICES
REPT. BY K. SATYANARAYANA REDDY
R/AT. NO.15, 4TH CROSS
INDUSTRIAL LAYOUT
3
5TH BLOCK, KORAMANGALA
BANGALORE-560034.
2. THE REGIONAL MANAGER
REGIONAL OFFICE
THE UNITED INDIA INSURANCE CO., LTD.,
6TH FLOOR, KRISHI BHAVAN
HUDSON CIRCLE, NRUPATHUNGA ROAD
BANGALORE-560001.
... RESPONDENTS
(BY SRI. L. SREEKANTA RAO, ADV., FOR R2
R1 SERVED & UNREPRESENTED)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.09.2018 PASSED IN
MVC NO.4558/2015 ON THE FILE OF THE I ADDITIONAL SMALL
CAUSES JUDGE & MACT, BENGALURU (SCCH-11), PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
M.F.A. NO.934/2019
BETWEEN:
M/S. UNITED INDIA INSURANCE COMPANY LIMITED
REGIONAL OFFICE
6TH FLOOR, KRUSHI BHAVAN
HUDSON CIRCLE, NRUPATHUNGA ROAD
BANGALORE-560002
REP. BY ITS MANAGER
S. VENKATA KRISHNA.
... APPELLANT
(BY SRI. L. SREEKANTA RAO, ADV.,)
AND:
1. RUDRAMMA
W/O SANNAMARIYAPPA
AGED ABOUT 59 YEARS
R/AT. 215, 5TH MAIN ROAD
RAVI KIRLOSKAR LAYOUT
CHIKKABIDARAKALLU
4
NAGASANDRA POST
BANGALORE-560073.
2. M/S. KOMILTA SERVICES
REPT. BY K. SATHYANARAYANA REDDY
R/AT. NO.15, 4TH CROSS
INDUSTRIAL LAYOUT
5TH BLOCK, KORAMANGALA
BANGALORE-560034.
... RESPONDENTS
(BY SMT K.G. NALINAKUMARI, ADV., FOR
SRI. B.C. THIPPESWAMY, ADV., FOR R1
R2 SERVED & UNREPRESENTED)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.09.2018 PASSED IN
MVC NO.4556/2015 ON THE FILE OF THE I ADDITIONAL SMALL
CAUSES JUDGE & MACT, BENGALURU (SCCH-11), AWARDING
COMPENSATION OF RS.14,49,527/- WITH INTEREST @ 6% P.A. FROM
THE DATE OF PETITION TILL REALIZATION.
M.F.A. NO.935/2019
BETWEEN:
M/S. UNITED INDIA INSURANCE COMPANY LIMITED
REGIONAL OFFICE
6TH FLOOR, KRUSHI BHAVAN
HUDSON CIRCLE, NRUPATHUNGA ROAD
BANGALORE-560002
REP. BY ITS MANAGER
S. VENKATA KRISHNA.
... APPELLANT
(BY SRI. L. SREEKANTA RAO, ADV.,)
AND:
1. S.M. VIJAYA KUMAR
S/O S.B. SANNAMARIYAPPA
AGED ABOUT 38 YEARS
R/AT. NO.215, 5TH MAIN ROAD
5
RAVI KIRLOSKAR LAYOUT
CHIKKABIDARAKALLU
NAGASANDRA POST-560073.
2. M/S. KOMILTA SERVICES
REPT. BY K. SATHYANARAYANA REDDY
R/AT. NO.15, 4TH CROSS
INDUSTRIAL LAYOUT
5TH BLOCK, KORAMANGALA
BANGALORE-560034.
... RESPONDENTS
(BY SMT K.G. NALINAKUMARI, ADV., FOR
SRI. B.C. THIPPESWAMY, ADV., FOR R1
R2 SERVED & UNREPRESENTED)
---
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.09.2018 PASSED IN
MVC NO.4558/2015 ON THE FILE OF THE I ADDITIONAL SMALL
CAUSES JUDGE & MACT, BENGALURU (SCCH-11), AWARDING
COMPENSATION OF RS.5,68,440/- WITH INTEREST @ 6% P.A. FROM
THE DATE OF PETITION TILL REALIZATION.
THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
M.F.A.No.1702/2019 and M.F.A.No.1703/2019 have been filed by the claimants seeking enhancement of the amount of compensation, whereas, M.F.A.No.934/2019 and M.F.A.No.935/2019 have been filed by the insurance company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) against 6 the judgment dated 28.09.2018 passed by the Motor Accident Claims Tribunal (hereinafter referred to as 'the tribunal' for short). Since, both the appeals arise out of the same accident and from the same judgment, they were heard analogously and are being decided by this common judgment.
2. Facts giving rise to the filing of these appeals briefly stated are that on 18.01.2015, the claimants Rudramma and S.M.Vijaya Kumar were traveling in a car bearing registration No.KA-02-MD-634. When they reached near Vemu Institute of Technology, a Volvo bus bearing registration No.KA-01-AD-6847, which was being driven by its driver in a rash and negligent manner came from the opposite direction and dashed against the car of the claimants. As a result of the aforesaid accident, the claimants sustained grievous injuries and were shifted to SVRRG Hospital, Tirupathi for treatment. 7
3. The claimant Rudramma in M.F.A.No.1702/2019 thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the claimant was aged about 50 years at the time of accident and was employed as an agriculturist and used to work as LIC Agent and was earning a sum of Rs.2,00,000/- per month. It was further pleaded that accident took place solely on account of rash and negligent driving of the bus by its driver. The claimants claimed compensation to the tune of Rs.75,00,000/- along with interest.
4. The claimant S.M.Vijaya Kumar in M.F.A.No.1703/2019 thereupon filed a petition under Section 166 of the Act claiming compensation on the ground that the claimant was aged about 34 years at the time of accident and was employed as a Building Contractor and was earning a sum of Rs.2,00,000/- per month. It was further pleaded that accident took place solely on account of 8 rash and negligent driving of the bus by its driver. The claimants claimed compensation to the tune of Rs.50,00,000/- along with interest.
5. The insurance company filed its written statement, in which inter alia the mode and manner of the accident was denied. It was further pleaded that the accident occurred solely on account of negligence of the driver of the car. It was averred that the petitions are bad for non-joinder of necessary parties as owner and the insurer of the car were not impleaded. The age, avocation and income as well as the injuries suffered by the claimants were also denied and it was pleaded that the claim of the claimants is exorbitant and excessive.
6. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants examined themselves as PW1 (Rudramma), PW2 (SM Vijaya Kumar), Dr.Anoop Pothen 9 John (PW3) and Dr. Pradeep Kumar and got exhibited documents namely Ex.P1 to Ex.P32. The respondents examined R.Vijayalakshmi as RW1 and got exhibited documents namely Ex.R1 to Ex.R3. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the Vovlo bus by its driver. It was further held, that as a result of aforesaid accident, the claimants sustained grievous injuries. The Tribunal further held that the claimant in M.F.A.No.1702/2019 and M.F.A.No.1703/2019 were entitled to compensation of Rs.14,49,527/- and Rs.5,68,440/- along with interest at the rate of 6% per annum. Being aggrieved, these appeals have been filed.
7. Learned counsel for the claimants submitted that the Tribunal has grossly erred in assessing the income of the claimants as Rs.8,500/- per month and in any case, the same ought to have been taken as per the guidelines framed by the Karnataka State Legal Services Authority. It 10 is further submitted that the Tribunal grossly erred in assessing the disability of the claimant in M.F.A.No.1703/2019 at 10% despite the evidence of Dr. Anoop Pothan John (PW3) who in his evidence has clearly stated that the claimant has suffered disability to the whole body to the extent of 19%. It is also submitted that in M.F.A.No.1703/2019, the compensation awarded under the head future medical expenses has to be enhanced in light of evidence of Dr.Anoop Pothan John (PW3) to Rs.4,50,000/-. It is also urged that the sums awarded under the other heads of compensation are on the lower side and deserve to be enhanced suitably.
8. On the other hand, learned counsel for the insurance company submits that there is an inordinate delay of 7 days in filing the complaint by the claimants. It is further submitted that the claimants have not produced any documentary evidence to prove that the claimants have taken treatment during the aforesaid period of delay. It is 11 also submitted that the claimants had failed to produced any credible evidence such as spot sketch or IMV Report, to prove the negligence of the driver of the Volvo Bus in causing the accident. It is also urged that in M.F.A.No.1702/2019 , the Tribunal has wrongly assessed the age of the claimant as 50 years despite the admission of the claimant in her cross examination that she was aged about 56-57 years at the time of the accident.
9. We have considered the submissions made by learned counsel for the parties and have perused the record. The Supreme Court in 'MANGAL RAM VS. ORIENTAL INSURANCE CO.', (2018) 5 SCC 656 has held that the proceeding under the Act has to be decided on the basis of preponderance of probabilities and claimant is not required to prove the accident beyond reasonable doubt. The court reiterated the principles laid down in DULCINA FERNANDES V. JOAQUIM XAVIER CRUZ, (2013) 10 SCC 646 and held that non 12 examination of witness per se cannot be treated as fatal to the claim set up before the tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the test of preponderance of probabilities. It was held that it was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The court restated that the settled principle is that the evidence of the claimants ought to be examined on the touchstone of preponderance of probabilities and certainly the standard of proof beyond reasonable doubt could not be have been applied. The Supreme Court in 'RAVI VS.
BADRINARAYAN AND OTHERS', (2011) 4 SCC 693 has held that delay in lodging the First Information Report cannot be a ground to doubt the claimants case in genuine cases. It has further been held that in Indian conditions it is not expected that a person who would rush to police station 13 after the accident and the treatment of the victim is given priority over lodging of the First Information Report.
10. In the instant case, the claimants in order to prove the negligence of driver of the Volvo Bus have examined themselves as eye witnesses and have testified about the manner, in which the accident has taken place and have also produced Ex.P1, First Information Report, Ex.P2- Complaint, Ex.P3-Chargesheet, Ex.P4-Witness Statement, Ex.P5-Wound Certificate and Ex.P6 Discharge Summary. The insurance company has examined its officer and produced Ex. R3 Sketch to prove that the driver of the car was negligent, thereby, causing the accident. It is pertinent to note that the insurance company has not examined the driver of the bus or any other witnesses to prove its version of the accident. The delay of 7 days in lodging of the FIR is of no avail to the insurance company in view of the law laid down by the Supreme Court in RAVI V. BADRINATH (SUPRA). The Tribunal has on meticulous 14 appreciation of evidence on record and on the touchstone of preponderance of probabilities has rightly held that the accident occurred on account of rash and negligent driving of the Volvo Bus by its driver.
11. Now we may advert to the quantum of compensation in M.F.A.No.1702/2019. Admittedly, the claimant has not produced any evidence with regard to her income. Therefore, the notional income of the claimant is assessed as per the guidelines issued by the Karnataka Legal Services Authority which is quantified at to Rs.9,000/- per month. The claimant in her cross-examination has admitted that she was 56-57 years of age at the time of accident. The tribunal has assessed the permanent disability to the whole body to an extent of 4%. Therefore, the claimant is entitled to as sum of Rs.38,880/- (Rs.9,000 x 12 x 4% x 9) towards loss of future earning capacity. The claimant has remained inpatient for a period of 45 days and the claimant would not have been in a position to discharge 15 her work as an agriculturist and LIC agent for at least three months. Therefore, the claimant is entitled to a sum of Rs.27,000/- towards loss of income during laid up period. The claimant has suffered head injury with right orbital fracture with supra orbital laceration extending upto the scalp. The claimant remained inpatient for a period of 45 days and permanently suffers from restriction of movement of the right eye, facial scars and loss of field of vision to the extent of 20% in the right eye. Therefore, the claimant is held entitled to a sum of Rs.30,000/- towards pain and suffering, Rs.30,000/- towards loss of amenities and sum of Rs.25,000/- towards conveyance, attendant charges and food and nourishment expenses. The amount of compensation granted under the remaining heads is maintained. Therefore, the claimant is held entitled to a sum of Rs.14,94,349/- in all.
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12. We may now deal with the claim of the claimant for compensation in MFA No.1703/2019. Admittedly, the claimant has not produced any evidence with regard to his income. Therefore, the notional income of the claimant is assessed as per the guidelines issued by the Karnataka Legal Services Authority, which is quantified at to Rs.9,000/- per month. The evidence of PW3-Dr.Anoop Pothen John has stated in his evidence that claimant has suffered disability to the whole body to an extent of 19%. The Tribunal is therefore, not justified in assessing the disability of the claimant contrary to the opinion rendered by an expert viz., the Doctor. Thus, the disability suffered by the claimant is taken at 19% to the whole body. The claimant is 34 years of age. Therefore, the claimant is entitled to a sum of Rs.3,28,320/- towards loss of future earning capacity. The claimant has suffered comminuted fracture right aceabulum, bilateral pubic ramus, pubic bone, fracture S5 vertebra which is grievous in nature and other 17 simple injuries. The claimant has remained inpatient for a period 16 days. PW3 Dr Anoop Pothen John has stated that the would experience difficulty in walking long distance, climbing stairs and it would not be possible to for the claimant to sit cross legged, squat or kneel. The claimant has remained inpatient for a period of 16 days and would have been unable to discharge his work as a building contractor for a period of at least 6 months in view of the injuries sustained by him. Therefore, the claimant is entitled to a sum of Rs.54,000/- towards loss of income during laid up period. The claimant is also held entitled to a sum of Rs.50,000/- towards pain and suffering, Rs.50,000/- towards loss of amenities and an compensation of Rs.25,000/- towards conveyance, attendant charges and food and nourishment expenses. PW3 Anoop Pothen John has stated in his evidence that the claimant needs to undergo a surgery of implant removal with total hip replacement in the future, which would cost about 18 Rs.4,50,000/-. However, in his cross-examination he has stated that the fractures of the claimant have been united. Further, he states that the claimant can continue without surgery and removal of implant would arise only if any problems with regard to the implants surface. Therefore, the claimant is held entitled to a sum of Rs.1,00,000/- On account of future medical expenses. The amount of compensation granted under the remaining heads is maintained. Therefore, in all, the claimant is held entitled to a total compensation of Rs.9,29,060/-.
Needless to state that the compensation granted in M.F.A.No.1702/2019 and M.F.A.No.1703/2019 shall carry interest at the rate of 6% from the date of filing of the petition till the date of realization of the amount of compensation. To the aforesaid extent, the judgment of the Claims Tribunal id modified.The amount in deposit shall be transmitted to the claims tribunal for disbursement. 19
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE ss