Karnataka High Court
Mallappa S/O Balappa Gadad vs Annappa S/O Sannabasappa Kotagi on 5 July, 2023
Author: S G Pandit
Bench: S G Pandit
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NC: 2023:KHC-D:7570-DB
MFA No. 101942 of 2016
C/W MFA No. 102410 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
M.F.A. NO.101942 OF 2016 (MV)
C/W M.F.A. NO.102410 OF 2016 (MV)
IN M.F.A. NO.101942 OF 2016
BETWEEN:
MALLAPPA S/O. BALAPPA GADAD,
AGE: 55 YEARS, OCC: RAILWAY POLICE,
R/O: LAXMI EXTENSION GOKAK,
TQ: GOKAK, DIST: BELAGAVI-591307.
...APPELLANT
(BY SRI. BAHUBALI N. KANABARAGI, ADVOCATE)
AND:
1. ANNAPPA S/O. SANNABASAPPA KOTAGI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: BEERANAGADDI, TQ: GOKAK,
JAGADISH DIST: BELAGAVI-591307.
TR
2. THE DIVISIONAL MANAGER,
Digitally signed by
JAGADISH T R THE NEW INDIA ASSURANCE CO.LTD.,
Location: DHARWAD
Date: 2023.07.27 CLUB ROAD, BELAGAVI-591307.
15:53:57 -0700
...RESPONDENTS
(BY SRI. RAVINDRA R. MANE, ADVOCATE FOR R2)
(NOTICE TO R1 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT & AWARD DATED:23.05.2016, PASSED
IN MVC.NO.760/2013 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, GOKAK, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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NC: 2023:KHC-D:7570-DB
MFA No. 101942 of 2016
C/W MFA No. 102410 of 2016
IN M.F.A. NO. 102410 OF 2016
BETWEEN:
NEW INDIA ASSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
CLUB ROAD, BELAGAVI,
INSURED THROUGH GOKAK BRANCH,
HEREIN REPRESENTED BY
NEW INDIA ASSURANCE CO. LTD.,
REGIONAL OFFICE, MOTOR THIRD PARTY
HUB OFFICE, SRINATH COMPLEX,
2ND FLOOR, NEW COTTON MARKET,
HUBLI-580029 REPRESENTED BY ITS
DULY CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI. RAVINDRA R. MANE, ADVOCATE)
AND:
1. MALLAPPA S/O. BALAPPA GADAD,
AGE: ABOUT 55 YEARS,
OCC: RETIRED, RAILWAY POLICE,
R/O: LAXMI EXTENSION, GOKAK,
TQ: GOKAK, DIST: BELAGAVI-591307.
2. ANNAPPA S/O. SANNABASAPPA KOTAGI,
AGE: MAJOR, OCC: AGRICULTURE,
R/O: BEERANAGADDI, TQ: GOKAK,-591307
(OWNER OF TRACTOR No.
KA-23/T-7217 AND TRAILOR-7218)
...RESPONDENTS
(BY SRI. BAHUBALI N. KANABARGI ADVOCATE FOR R1)
(NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 23.05.2016 PASSED IN MVC
NO.760/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
GOKAK, AWARDING COMPENSATION OF Rs.21,17,579/- WITH
INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL ITS
REALISATION.
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NC: 2023:KHC-D:7570-DB
MFA No. 101942 of 2016
C/W MFA No. 102410 of 2016
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
S.G.PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Both the insurer and the injured claimant are in appeals against the judgment and award, dated 23.05.2016, passed in M.V.C. No.760/2013 by the Principal Senior Civil Judge & Additional Motor Accident Claims Tribunal, Gokak (for short, 'the Tribunal'). The injured claimant is in appeal in M.F.A. No.101942/2016 not being satisfied with the quantum of compensation and praying for enhancement of compensation, whereas the insurer is in appeal in M.F.A. No.102410/2016 questioning the liability as well as the quantum of compensation awarded by the Tribunal.
2. Brief facts of the case leading to filing of these appeals are that,
a) The injured claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for the accidental injuries sustained by -4- NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 him in a road traffic accident that occurred on 10.04.2012 involving motorcycle bearing registration No.KA-49/H-8998 and a Tractor and trailor bearing registration No.KA 23/T-7217 & 7218. He claimed that he was aged 50 years as on the date of the accident, he was working as a Railway Police and was receiving salary of Rs.39,808/- per month.
b) On issuance of notice, both the respondents No.1 and 2 appeared before the Tribunal and filed their independent objections. Respondent No.1-owner of the offending vehicle filed objection denying the entire claim petition averments inter alia contending that the vehicle was insured with respondent No.2-insurance company and the policy issued was in force as on the date of the accident. Respondent No.2-insurance company, in its statement of objections denied the claim petition averments and contended that the tractor and trailor was parked on the extreme left side of the road by putting on the indicators, but the claimant lost control -5- NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 over the motorcycle and dashed against the parked tractor, and it was due to sole negligence of the rider of the motorcycle, the accident had taken place. It was also stated that as the charge sheet was filed against both the driver of the tractor and trailor as well as the rider of the motorcycle, hence, contributory negligence ought to have been saddled at 50% each.
c) The claimant, in support of his case, examined himself as P.W.1 and three other witnesses as P.Ws.2 to 4, apart from marking Exs.P.1 to Ex.P.301, whereas respondent examined two witnesses as R.W.1 and R.W.2 and marked Exs.R1 to R.34. The Tribunal, on the material available on record, awarded total compensation of Rs.21,17,579/-, with interest at the rate of 9% per annum, under the following heads:
1 Pain and suffering Rs. 75,000/-
2 Medical expenses Rs. 4,44,453/-
3 Food and attendant charges Rs. 11,200/- 4 Miscellaneous expenses Rs. 10,000/- 5 Loss of future earnings Rs. 15,76,926/-
Total Rs. 21,17,579/ -6- NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 While awarding the above compensation, the Tribunal has assessed the monthly income of the injured claimant at Rs.36,050/-, deducted income tax, applied multiplier '13', and assessed the whole body disability at 30%. The Tribunal has apportioned the negligence to the extent of 10% on the claimant and 90% on the driver of the Tractor and trailor.
3. Heard learned counsel Sri. Bahubali N.Kanabaragi, for the claimant and learned counsel Sri. Ravindra R.Mane, for the insurer. Perused the Tribunal records and the appeal papers.
4. Learned counsel for the claimant would submit that the Tribunal committed an error in assessing the monthly income of the claimant who was working as a Railway Police. He submits that the injured claimant was getting salary of Rs.39,808/- as indicated in Ex.R.24 which the Tribunal failed to appreciate properly. Further, the learned counsel would submit that the claimant was aged 50 years as on the date of the accident. He further submits -7- NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 that due to the injuries sustained in the accident in question, the claimant was made to retire voluntarily even before he attained the age of superannuation and since the claimant was made to retire before the age of superannuation, the claimant suffered loss of future income due to functional disability. Therefore, he submits that the Tribunal failed to award compensation considering functional disability taking note of the claimant's premature retirement.
5. Learned counsel for the claimant would submit that the Tribunal committed a grave error in assessing the disability of the claimant at 30% as against the evidence of the doctor who deposed that the claimant suffers 100% disability, which ought to be considered as functional disability to the said extent. The learned counsel would submit that the claimant has suffered fracture of right humerus and fracture of left patella apart from clavicle fracture. He further submits that the petitioner has lost his left eye and as such, the doctor had assessed the whole -8- NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 body disability at 100%. It is his submission that the Tribunal taking note of the evidence of P.W.3 and P.W.4 and also on proper appreciation of the medical records ought to have taken the whole body disability at 100%.
6. It is submitted that the claimant injured was inpatient for more than 57 days and the compensation awarded on other heads are on lower side. The learned counsel would also submit that no compensation is granted on the head 'loss of amenities' as well as 'future medical treatment'.
7. Further, the learned counsel with regard to the contributory negligence would submit that the accident had taken place around 8.30 p.m. on 10.04.2012; the offending vehicle tractor and trailor was parked on the middle of the road without any indicator or parking lights;
the offending vehicle was not visible in the night and as the claimant could not notice the offending vehicle, he dashed to the tractor and trailor which resulted in claimant sustaining grievous injuries. Therefore, learned counsel -9- NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 submits that as the tractor was parked in the middle of the road without any indicators or parking lights, the Tribunal was not justified in saddling 10% of the contributory negligence on the claimant-appellant, and therefore, learned counsel prays for setting aside the said finding. Thus, he prays for allowing the appeal filed by the claimant.
8. Per contra, learned counsel Sri Ravindra R.Mane for the insurance company would submit that the Tribunal committed an error in saddling 90% of the liability on the tractor and trailor and 10% on the rider of the motorcycle. He submits that the tractor and trailor was parked on the extreme left side of the road with indicator lights, but the claimant-rider of the motorcycle came in a rash and negligent manner and dashed to the parked tractor, and as such the accident had occurred due to sole negligence of the rider of the motorcycle. Therefore, he submits that the Tribunal ought to have saddled contributory negligence on the claimant at least to an extent of 50%. Thus, he prays
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NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 for modification to the contributory negligence assessed by the Tribunal.
9. Learned counsel, Sri. Ravindra R.Mane would submit that the income assessed by the Tribunal is on the higher side. He would submit that the Tribunal assessed the income of the claimant at Rs.39,808/- without any deductions. Taking note of Ex.R.24, the monthly income of the claimant needs to be reassessed. Further, the learned counsel would justify the assessment of disability at 30%. Learned counsel would submit that the claimant has not suffered any loss of income due to the injuries suffered by him in the accident. He submits that the accident had taken place on 10.04.2012, the claimant took voluntary retirement, on his own and retired voluntarily on 08.12.2014. Thus, he submits that when the claimant had worked for more than two years even after retirement, he cannot claim that the voluntary retirement is due to the accidental injuries and thereby he suffered loss of future income. Learned counsel would submit that the age of the
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NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 claimant is to be taken as 52 years. He submits that Ex.P.286 indicates the date of birth of the claimant as 01.12.1960 and as such as on the date of the accident, he was aged 52 years. The Tribunal committed an error in taking the age of the claimant as 50 years. Thus, he prays for taking the age of the claimant at 52 years. Further the learned counsel would submit that the medical expenses awarded by the Tribunal is on the higher side, and that the medical expenses should be awarded on the basis of the original bills produced by the claimant. He also submits that the compensation awarded on the other heads are proper and correct which needs no interference.
10. Learned counsel for the insurance company would also submit that the Tribunal has erred in granting interest on the compensation at the rate of 9% per annum.
11. Having heard the learned counsel for the parties and on perusal of the appeal papers and the records of the Tribunal, the following points would arise for consideration,
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NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016
i) Whether the Tribunal is justified in assessing the disability of the injured claimant at 30%?
ii) Whether the claimant would be entitled for enhanced compensation?
12. The answers to the above points are in the affirmative and negative respectively for the following reasons:
a) The accident that took place on 10.04.2012 involving motorcycle bearing registration No.KA-49/H-8998 and a Tractor and tailor bearing registration No.KA 23/T-7217 & 7218 and the resultant injuries suffered by the claimant is not in dispute in this appeal. The wound certificate is placed on record as Ex.P3 which would indicate the following injuries sustained by the claimant:
1) unconscious head injury, (L) eye absent.
2) (L) Ear bleeding.
3) (L) Clavicle fracture.
4) (R) Arm swelling fracture (R) Humerous
b) P.W.3 is the doctor who treated the claimant initially and advised for further treatment at WIINS Hospital at
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NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 Kolhapur. The claimant has taken follow-up treatment with P.W.4. P.W.3, in his evidence, has deposed that the claimant has suffered permanent physical impairment of 30% to head and vision, 40% to right upper limb and 35% to left lower limb. P.W.4 is also a doctor, a consulting eye specialist. In his evidence, P.W.4 has deposed that the claimant has got permanent physical disability of 40% to left eye and he has also stated that the functional disability is the same to the whole body. In his cross-examination, he has stated that the has determined disability to the extent of 30% to vision and 10% to disfigurement of face. When the evidence of the doctors-P.Ws.3 and 4 and the medical records are cumulatively assessed, we are satisfied that the Tribunal has correctly assessed whole body disability at 30% which needs no interference.
c) The Tribunal has assessed the income of the claimant at Rs.36,050/-. Ex.R.24 is the payslip of the claimant which indicates Net salary of Rs.36,050/- after deduction of
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NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 Rs.3,758/- from the gross salary of Rs.39,808/-. Deductions in a sum of Rs.3,758/- are towards PF, VPF, CGIS-C and LIC. These amounts could not have been deducted from the gross salary. From the total salary of Rs.39,808/- per month, only income tax at the rate of 10% and professional tax of Rs.2,400/- is to be deducted. If the salary of the claimant is taken at Rs.39,808/- per month, his annual income would come to Rs.4,77,696/- (Rs.39,808/- x 12) and out of the total annual salary if 10% of salary towards income tax and a sum of Rs.2,400/- towards professional tax is deducted, the claimant's annual salary would be Rs.4,27,526/-. The Tribunal has taken the age of the claimant appellant at 50 years, But the document at Ex.P.286 indicates the date of birth of the claimant as 01.12.1960. If the claimant's date of birth is taken as 01.12.1960, the age of the claimant would be 52 years as on the date of the accident i.e., 10.04.2012. Thus, the Tribunal committed an error in taking the age of the claimant at 50 years. Taking note of Ex.P.286, we take the age of the claimant
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NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 as 52 years. If the age of the claimant is taken at 52 years, the multiplier would be '11'.
d) The learned counsel for the claimant submitted that due to accidental injuries, the claimant was made to prematurely retire and he was asked to take voluntary retirement. The said contention cannot be accepted since the claimant appellant worked for more than two years from the date of the accident. The accident had taken place on 10.04.2021, whereas the claimant took voluntary retirement on 08.12.2014. When the claimant has worked for more than two years, the contention that he was forced to take voluntary retirement cannot be accepted and as contended by virtue of voluntary retirement his income is reduced and the same is to be treated as functional disability cannot be accepted. Thus, the claimant would be entitled for modified compensation under the loss of future earnings at Rs.14,10,836/-[Rs.4,27,526/- (annual salary) x 30% (disability) x 11 (multiplier) ]:
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e) The claimant was inpatient for more than 57 days, has undergone two surgeries and has taken treatment at more than two hospitals. Taking note of the injuries suffered, treatment taken and surgeries undergone, we are of the view that the compensation awarded on the other heads are on the lower side. In the facts and circumstances of the case and taking note of the injuries and the treatment taken, we are of the view that the claimant would be entitled for another sum of Rs.50,000/- in addition to Rs.75,000/- awarded by the Tribunal under the head pain and suffering; Rs.25,000/-
in addition to Rs.11,200/- on the head of food and attendant charges; Rs.10,000/- in addition to Rs.10,000/- awarded under the miscellaneous expenses.
f) The Tribunal has failed to award any compensation on the head loss of amenities. Since the claimant has lost vision to an extent of 40%, we award a sum of Rs.1,00,000/- on the head of loss of amenities.
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g) The Tribunal has saddled liability of 90% on the driver of the tractor and trailer and 10% on the rider of the motorcycle i.e., the claimant. The learned counsel for the insurer contended that since the charge sheet is filed against both, the driver of the tractor and trailor and rider of the motorcycle; and as the tractor trailor was parked on the extreme left side, the accident occurred solely due to the negligence of the rider of the motorcycle. But the same cannot be appreciated in the facts and circumstances of the case. Mere filing of charge sheet is not a determining factor to saddle the contributory negligence. It is an admitted fact that the tractor was parked on the road without any indicator and parking lights and it is also an admitted fact that the accident had taken place in the night at 8.30 p.m. The police records placed on record would indicate that the tractor and trailor was parked causing inconvenience to the passers on the road. The insurance company has not examined any other independent witness to prove its contention that the tractor and trailor was parked on the
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NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 extreme left side of the road with indicator and parking light. But, the other evidence on record would show that the tractor and trailor was parked on the middle of the road without indicators or parking lights. The claimant who is examined as P.W.1, in his examination-in-chief, has stated that he was riding the motorcycle; another motorcycle came from the opposite direction; and while trying to avoid the oncoming motorcycle, he dashed to the stationed tractor. Taking note of the evidence and the material on record, we are of the view that the Tribunal is justified in saddling the liability to an extent of 90% on the driver of the Tractor and trailor and 10% on the rider of the motorcycle.
h) The Tribunal has awarded medical expenses in a sum of Rs.4,44,453/-. The learned counsel for the insurance company submitted that compensation awarded towards medical expenses is on the higher side, as some bills are duplicate and created one. Thus, he prayed for granting the medical expenses based on the original bills. The learned counsel for both the parties, on re-calculation of
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NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 the original medical bills made by them, would submit that total medical expenses would be in a sum of Rs.2,92,030/-. Hence the claimant would be entitled to a sum of Rs.2,92,030/- only towards medical expenses.
13. Thus, the injured claimant would be entitled for modified compensation as under:
1 Pain and suffering Rs. 1,25,000/-
2 Medical expenses Rs. 2,92,030/-
3 Food and attendant charges Rs. 36,200/- 4 Miscellaneous expenses Rs. 20,000/- 5 Loss of future earnings Rs. 14,10,836/- 6 Loss of amenities Rs. 1,00,000/-
Total Rs. 19,84,066/-
Thus, the claimants would be entitled to total compensation of Rs.19,84,066/- instead of Rs.21,17,579/- awarded by the Tribunal.
14. The Tribunal has committed an error in awarding interest on the compensation at the rate of 9% per annum. Normally, this Court would award interest on the compensation at rate of 6% per annum taking into consideration the present interest on Bank deposits. The
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NC: 2023:KHC-D:7570-DB MFA No. 101942 of 2016 C/W MFA No. 102410 of 2016 compensation reassessed by this Court shall carry interest at the rate of 6% from the date of claim petition till the date of deposit.
15. Hence, we pass the following:
ORDER
a) The appeal in M.F.A. No.101942/2016 filed by the claimant is dismissed and the appeal in M.F.A. No.102410/2016 filed by the insurer is allowed in part.
b) The impugned judgment and award of the Tribunal is modified to the extent that the claimant is entitled to total compensation of Rs.19,84,066/- instead of Rs.21,17,579/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of claim petition till date of realization.
c) The appellant-Insurance Company, shall deposit the 90% of the compensation assessed by this Court i.e., Rs.17,85,659/- with accrued interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment.
d) Apportionment, deposit and disbursement of the enhanced compensation shall be made as per the award of the Tribunal.
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e) Draw modified award accordingly.
Registry to transmit the records to the Tribunal forthwith.
The amount in deposit made by the appellant- insurance company shall be transmitted to Tribunal concerned.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE KMS List No.: 1 Sl No.: 41