Karnataka High Court
M/S National Insurance Company Ltd vs Mr Anthony @ P S Papachan on 9 March, 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
MFA NO.5902 OF 2017
C/W
MFA NO.5333/2017 (MV)
IN MFA NO.5902 OF 2017
BETWEEN:
M/S NATIONAL INSURANCE
COMPANY LIMITED
DIVISIONAL OFFICE, 1ST FLOOR
VIDYAPOORNA COMPLEX
NEAR HEAD POST OFFICE
UDUPI - 576 101
REP. BY REGIONAL OFFICE
SITUATED AT SUBHARAM COMPLEX
NO.144, MG ROAD
BENGALURU - 560 001
REP. BY C K PARIMALA
ADMINISTRATIVE OFFICER ... APPELLANTS
(BY SMT. GEETHA RAJ, ADVOCATE)
AND:
1. MR. ANTHONY @
P S PAPACHAN
AGED ABOUT 56 YEARS
S/O LATE KESHEVIAR
R/O PUTAN PURAKEL MANE
2
BEESANAPARE
JADKAL VILLAGE
KUNDAPURA TALUK - 576 201
2. MR. JANARDHAN
AGED ABOUT 39 YEARS
S/O MANJUNATHA
R/O SOMESHWARA ROAD
BYANDOOR, KUNDAPURA
TALUK - 576 201 ... RESPONDENTS
(BY SRI. NAGARAJA HEGDE, ADV. FOR R1;
R2 SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988 PRAYING TO CALL FOR
RECORDS AND DISMISS THE CLAIM PETITION SETTING
ASIDE THE JUDGMENT AND AWARD DATED 21.03.2017,
PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND
MOTOR ACCIDENTS CLAIMS TRIBUNAL, KUNDAPURA, IN
MVC NO.202/2015, AND TO PASS SUCH OTHER ORDER OR
ORDERS AS THIS HON'BLE COURT DEEMS FIT UNDER THE
FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING
THE COSTS, IN THE INTERESTS OF JUSTICE AND EQUITY.
IN MFA NO.5333/2017
BETWEEN:
SRI. ANTHONY @ P.S. PAPACHAN
S/O LATE KSHEVIAR
AGED ABOUT 56 YEARS
R/O PUTTAN PURAKEL MANE
BEESANPARE, JADKAL VILLAGE
KUNDAPURA TALUK
UDUPI DISTRICT ....APPELLANT
(BY SRI.NAGARAJA HEGDE, ADV.)
3
AND:
1. SRI. JANARDHAN
S/O MANJUNATHA
AGED ABOUT 39 YEARS
R/O SOMESHWARA ROAD
BYNDOOR, KUNDAPURA
TALUK - 576 201
UDUPI DISTRICT
2. THE NATIONAL INSURANCE
COMPANY LIMITED
DIVISIONAL OFFICE
VIDYAPOORNA COMPLEX
NEAR HEAD POST OFFICE
UDUPI - 576 101
REPRESENTED BY ITS
DIVISIONAL MANAGER ... RESPONDENTS
(BY R-1 SERVED; SMT. GEETHA RAJ, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLE ACT, PRAYING TO CALL FOR THE ENTIRE
RECORDS PERTAINING TO THE PROCEEDINGS IN MVC
NO.202/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND ADDL. MOTOR VEHICLE ACCIDENTS CLAIMS
TRIBUNAL AT KUNDAPURA AND ETC.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The Insurance Company has preferred an appeal in MFA No.5902/2017 questioning the quantum whereas, the claimant has preferred an appeal in MFA No.5333/2017 4 seeking enhancement of compensation, being aggrieved by the judgment and award dated 21.03.2017 in M.V.C.No.202/2015 passed by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Kundapura ('the Tribunal' for short).
2. The facts leading to the top noted case are as under:-
The case of the claimant is that on 25.12.2014 at about 2.00 p.m. when he was proceeding on his motor cycle bearing No.KA-20-EC-0252 from Chittur side towards Kollur side, at that juncture, the driver of the offending Bus bearing No.KA-20-C-2959 came in a rash and negligent manner and dashed against the claimant's motor cycle. In the said accident, claimant suffered grievous injuries. He further contended that prior to the accident, he was hale and healthy and was earning a sum of Rs.15,000/- p.m. by doing agricultural work. On account of accidental injuries, he has suffered permanent 5 disablement. Hence, filed claim petition claiming compensation of Rs.20,00,000/-.
3. The insurance company on receipt of notice has filed written statement and stoutly denied the entire averments made in the claim petition. Insurance Company has specifically contended in the written statement that the driver of the offending bus was not at all negligent. On the contrary, it is the specific case of insurance company that accident took place on account of negligence of the claimant. The insurance company specifically contended that the driver of the offending bus was not holding valid and effective driving license. It also disputed the age, avocation and income of the claimant. Hence, it prays for dismissal of claim petition.
4. The Tribunal based on the rival contention has formulated the following issues:-
1. Whether the petitioner proves that he had sustained injuries in a road traffic accident alleged to have taken place on 25.12.2011 at 6 about 2.00 p.m., near Gothe Cross, Idoor Kunjadi Village, Kundapura Taluk, due to the rash and negligent driving of the driver of the Bus bearing Reg. No.KA-20-C-2959?
2. Whether the respondent No.2 proves that the accident has taken place due to the contributory negligence of the rider of the Motor cycle bearing Reg.No.KA-20-EC-0252?
3. Whether the 2nd respondent proves that the driver of the said Bus bearing Reg.No.KA-20-C-
2959 had no valid and effective driving license at the time of the accident?
4. Whether the petitioner is entitled for compensation? If so, what is the quantum? From whom?
5. What Order and Award?
5. The claimant in support of his contention examined himself as PW-1 and examined the Orthopedic surgeon as PW-2. The claimant also examined the Neurosurgeon through Court Commissioner as CW-1. The insurance company by way of rebuttal evidence only produced a copy of insurance policy and did not choose to lead any oral evidence in support of its contention. 7
6. The Tribunal having examined the oral and documentary evidence assessed the income of the claimant at Rs.8,000/- p.m. and by taking disability at 30% to the whole body, the Tribunal has proceeded to award a sum of Rs.2,59,200/- towards loss of future earning. The Tribunal in all has awarded a sum of Rs.6,21,460/-.
7. The learned counsel for the insurance company in MFA No.5902/2017 would vehemently argue and contend before this Court that the finding of the Tribunal on issue No.1 suffers from infirmities and the same is contrary to evidence on record. While marshalling her arguments, the learned counsel appearing for the insurance company would vehemently argue and submit to this Court that claimant in fact has come and dashed against the bus from hind side and this aspect is not at all considered by the Tribunal. She would urge this Court to reverse the finding of Tribunal. She would contend before this Court that claimant has lost control and dashed against the bus from 8 the hind side and in this background, she would submit to this Court that claimant was also equally negligent in causing the accident.
8. Per contra, learned counsel appearing for the claimant would support the finding of the Tribunal. He would vehemently argue and contend before this Court that he has placed cogent and clinching evidence on record to demonstrate that driver of the offending bus was alone negligent and contributed to the accident.
9. On re-appreciation of oral and documentary evidence, this Court would find that driver of the offending bus was charge sheeted. The insurance company has not chosen to examine the driver of the offending bus and in absence of rebuttal evidence, this Court cannot interfere with the finding of the Tribunal on issue No.1. Accordingly, the contention of the insurance company that claimant has also contributed to the accident and was equally negligent is not tenable and the said contention is rejected. 9
10. The learned counsel appearing for insurance company would vehemently argue and contend before this Court that the Tribunal was not at all justified in taking the disability of the claimant at 30%. She would vehemently argue and contend before this Court that the Neurosurgeon was examined as CW-1 who has not at all stated in detail and no explanation is forth coming in his evidence for having arrived at a conclusion that claimant has suffered 43.75% disability. She would further vehemently contend before this Court that the Tribunal has not at all assigned any reasons to come to the conclusion that claimant has suffered 30% disability to the whole body. Hence, she prays to modify the judgment and award passed by the Tribunal. While marshalling, her arguments she would submit to this Court that Ex.P.3 wound certificate and treatment certificate at Ex.P.10 does not indicate any injury to the upper limb.
11. Per contra, learned counsel appearing for the claimant would support the finding of the Tribunal. The 10 learned counsel for the claimant would vehemently argue and contend before this Court that in fact the Tribunal erred in taking disability at 30% and submitted that medical evidence on record would demonstrate that the claimant cannot use his left hand and in this context, he would urge this Court to take permanent disability more than 30%.
12. Having heard the learned counsel for the claimant and respondents on disability and on reappreciating the oral and documentary evidence, this Court is of the view that the assessment of disability by the Tribunal is based on clinching medical evidence on record. The relevant portion of Neurosurgeon who is examined as CW-1 is skulled out for brevity:-
"I have examined the petitioner on 05.03.2016. On examination he had gross weakness of left upper limb along with significant weakness of left hand grip. He also had numbness on lateral aspect of left upper limb. Because of this it will be difficult for him to use the left hand for daily activities as well 11 as manual work. Because of above infirmities I have issued disability of 43.75% applicable to his whole body and is permanent in nature.
At this juncture, the witness has
produced disability certificate of petitioner
which is received by Court Commissioner. The same is marked as Exhibit C-1 and signature of witness is marked Exhibit C-1 (a)."
13. If this medical evidence is taken note of, then it is absolutely clear that on account of injury to the left upper limb, the claimant is virtually unable to use left hand even for daily activities. This is the opinion of Neurosurgeon and nothing is elicited by the Insurance Company in the cross-examination and as such, the medical evidence on record is credible and Tribunal has rightly accepted and proceeded to hold that the claimant has suffered 30% disability. This Court would not find any justifiable reason to disturb the above said reasoning of the Tribunal in arriving at and assessing the disability of the claimant to the tune of 30%.
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14. The Tribunal in absence of clinching evidence indicating the actual income, however, erred in assessing the income of the claimant notionally at Rs.8,000/-. This Court is of the view that the same is on the lower side. This Court by relying on the chart issued by the Legal Services Authority would take the income of the claimant at Rs.8,500/- and by taking 30% disability, the income of the claimant is assessed at Rs.2,550/-. Hence, the compensation payable under the head "future loss of earning" works out to Rs.2,75,400/- (2,550x12x9).
15. The Tribunal while awarding compensation towards laid up period has, however, proceeded to assess the loss of income for a period of 10 months which does not appear to be just and proper. This Court would modify the same and on examination of medical evidence, this Court would award compensation towards laid up period for 5 months by taking notional income at Rs.8,500/-. If the same is assessed for a period of five months, the same comes to Rs.42,500/- and accordingly, the same is 13 awarded under the head loss of income during laid up period. Towards attendance, conveyance and other incidental expenses a sum of Rs.10,000/- is awarded. The compensation determined under the other heads are in accordance with law and would not warrant any interference. Hence, the reassessed compensation determined by this Court is as under:
Sl. Heads Amount No. 1. Pain and Suffering Rs.75,000/- 2. Medical expenses Rs.1,52,260/-
3. Loss of income during laid up Rs.42,500/-
period
4. Loss of future earning Rs.2,75,400/-
5. Loss of amenities Rs.40,000/-
6. Future medical expenses Rs.15,000/-
7. Attendance, conveyance and other Rs.10,000/-
incidental expenses
Total Rs.6,10,160/-
16. On reassessment of oral and documentary evidence, the compensation determined by this Court 14 comes to Rs.6,10,160/- as against Rs.6,21,460/- awarded by the Tribunal.
17. Accordingly, the appeal filed by the Insurance Company in MFA.No.5902/2017 is allowed in part. The judgment and award dated 21.03.2017 passed in M.V.C.No.202/2015 by the Senior Civil Judge and Member, Additional Motor Accident Claims Tribunal, Kundapura is modified. The appeal filed by the appellant in MFA.No.5333/2017 is disposed of and the appellant is entitled to compensation of Rs.6,10,160/- with interest at the rate of 6% p.a. from the date of petition till the date of deposit.
The amount in deposit in MFA.No.5902/2017 may be transmitted to the Tribunal to enable the claimant to withdraw the same.
Sd/-
JUDGE MH/CA