Karnataka High Court
Madhu Chandra vs N B Madhu on 6 March, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A.No.7042/2010
C/W
M.F.A.CROB.No.79/2014(MV)
M.F.A.No.7042/2010:
BETWEEN:
MADHU CHANDRA
S/O S H ANNEGOWDA
AGED 24 YEARS, R/AT, HUNASAVADI
VILLAGE NANDINATHAPURA POST
PERIYAPATNA TALUK
PRESENTLY RESIDING AT
C/O C NINGE GOWDA
HOSABEEDHI, KUMBARAKOPPALU
MYSORE- 16.
...APPELLANT
(BY SRI T.A.KARUMBAIAH, ADVOCATE)
AND:
1. N B MADHU
S/O BOPAIAH, AGED 32 YEARS
BYLAKOPPA VILLAGE & POST
PERIYAPATNA TALUK
MYSORE DISTIRCT.
2
2. A NAGARAJU
S/O ANNEGOWDA
AGED 41 YEARS, No.63
HUNASAVADI VILLAGE AND
POST PERIYAPATNA TALUK
MYSORE DISTRICT.
3. BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LIMITED
No.D-3-63, SHRIHARI COMPLEX
RAMAVILAS ROAD, MYSORE-24
REPRESENTED BY ITS MANAGER.
...RESPONDENTS
(BY SRI H S LINGARAJ, ADVOCATE FOR R-3
R-1 AND R-2 ARE SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:7.01.2010 PASSED
IN MVC No.507/2005 ON THE FILE OF I ADDITIONAL CIVIL
JUDGE (SR.DN.) AND CJM, MYSORE, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
M.F.A. CROB No.79/2014:
BETWEEN:
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LIMITED, BRANCH OFFICE:D-363
SRI HARI COMPLEX, RAMAVILAS ROAD
MYSORE, HEREIN REPRESENTED BY THE
REGIONAL OFFICE, 'GOLDEN HEIGHTS',
4TH FLOOR, No.1/2. 59TH 'C' CROSS
4TH 'M' BLOCK, RAJAJINAGAR'
BANGALORE - 560 010.
BY ITS MANAGER (LEGAL)
...CROSS OBJECTOR
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(BY SRI H S LINGARAJ, ADVOCATE)
AND:
1. MADHUCHANDRA
NOW AGED ABOUT 28 YEARS
S/O S H ANNEGOWDA
R/A HUNASAVADI VILLAGE
NANDINATHAPURA POST
PERIYAPATNA TALUK
MYSORE DISTRICT - 571 107.
PRESENTLY RESIDING AT
C/O C NINGE GOWDA, HOSABEEDHI
KUMBARAKOPPALU, MYSORE- 16.
2. N B MADHU, MAJOR
S/O BOPAIAH,
R/A BYLAKUPPE VILLAGE & POST
PERIYAPATNA TALUK
MYSORE DISTRICT - 571 107.
3. A NAGARAJU, MAJOR
S/O ANNEGOWDA
R/A No.63, HUNASAWADI
VILLAGE & POST, PERIYAPATNA
TALUK- 571 107, MYSORE DISTRICT.
...RESPONDENTS.
(BY SRI T A KARUMBAIAH, ADVOCATE FOR R-1
R-2 AND R-3 SERVED)
THIS MFA CROB. IN MFA No.7042/2010 IS FILED
U/O 41 RULE 22 & 33 OF CPC, R/W SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:07.01.2010 PASSED IN MVC No.507/2005 ON THE
FILE OF THE I ADDITIONAL CIVIL JUDGE (SR.DN) AND
CJM, MACT, MYSORE, AWARDING COMPENSATION OF
RS.3,77,100/- WITH INTEREST @ 6% P.A.
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THESE MFA AND MFA CROB. COMING ON FOR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Appeal and cross objection are directed against the Judgment and award dated 07.01.2010 passed by the learned Member, MACT, Mysuru, in MVC No.507/2005. Hence, they are taken up for common disposal.
2. These are the two appeals which ripe from the Judgment and award passed by the learned Member, MACT in MVC No.507/2005 wherein the learned Member has granted compensation of `3,77,100/- together with interest at rate of 6% p.a.
3. In order to avoid confusions and overlappings the parties hereinafter are referred to as per their rankings before the Tribunal.
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4. The incident that gave rise to filing of claim petition under Section 166 of the Motor Vehicles Act is that on 11.02.2005 the claimant was going to Mutthuraya Swamy Temple as a pillion rider on Bajaj C.T.100 with temporary registration No.KA-09/NT 9823 with his friend who was rider and first respondent. On Periyapatna -Anechowkur Road near Ankanahalli due to rash and negligent riding of respondent No.1 accident occurred and the petitioner sustained injuries. Petitioner took treatment from 11.02.2005 to 21.03.2005. Petitioner would further claim that the remnants of the injuries and disability are still haunting him on the date of presentation of the petition as well. Police registered a criminal case in Crime No.31/2005 for the offence punishable under Sections 279, 337 of IPC.
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5. In this connection, the learned Member adjudicated the matter considering the accident, injuries, medical treatment and disability and granted compensation stated above. It is against the said order Madhu Chandra, the claimant has preferred MFA No.7042/2010 seeking modification and Cross objection No.79/2014 is preferred by Bajaj Allianz General Insurance Company, the respondent No.3 before the Tribunal.
6. In the claimant's appeal the injured Madhu Chandra has preferred appeal against respondent No.1 N.B.Madhu, A.Nagaraju-owner -respondent No.2, Insurance company-respondent No.3. Madhu Chandra, the injured and pillion rider according to the appellant but the rider according to insurance company. The bone of contention is that according to insurance company the person who was riding the vehicle was claimant in MVC No.507/2005. However, 7 according to claimant, the rider of the vehicle was N.B.Madhu, respondent No.1.
7. Learned counsel Sri.Lingaraju H.S., would submit it is a calculated effort of cheating by impersonation by claimant for compensation. As being epicenter of negligence and accident which hatched injuries petitioner was otherwise not entitled to claim compensation. He would further fortify his submission submitting the complaint that was lodged was by N.B.Madhu respondent No.1. However complainant Madhu, S/o Boppaiah is the complainant. Learned counsel for insurance company would submit that FIR reflects the true position regarding rider and it is invariably Madhu Chandra who claimed compensation as it is under Section 154 of Cr.P.C.
8. Per contra, learned counsel for the claimant would submit that after investigation the final report 8 was submitted against the petitioner Madhu-claimant. Insofar as injuries and disability have played their part and injured was not in a position to come to the police station. According to the complainant-informant Madhu would mention that claimant Madhu Chandra had sustained head injuries. In the circumstances of the case the moot question that would arise is whether the claimant -Madhu Chandra suppressed the fact, played impersonation, made false claim in addition to escaping liability to pay compensation.
9. In this connection, FIR would become a substantial evidence when it contains information regarding cause of death when it relates to dying declaration. Otherwise may reveal case registered against whom based on prima facie materials. It is the final report submitted under Section 173 of Cr.P.C that would reflect the position regarding the accused, 9 offence, effect of injury or otherwise. Thus, the contention of learned counsel for insurance company to the effect that claimant Madhu Chandra was estopped from making claim for compensation is not acceptable. In this connection, it is necessary to mention that whenever liability is fastened more particularly monetary liability it is going to fall on the shoulders of such person who ventures or make efforts to avert compensation. In the circumstances, the matter has to be adjudicated on the premise that petitioner was the pillion rider and not the rider. Going back to the facts and circumstances of accident, injuries sustained by the claimant are fracture of left parietal bone with small EDH which increased in size, compressed the left hemisphere resulting in right sided subfalcine herniation.
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10. Learned Member has not mentioned the details of the injuries in a proper form in the entire Judgment and this is not proper. However, injuries are reflected in the wound certificate. It is to be observed that it would be duty of the Presiding Officer before the Tribunal to mention injuries sustained by the claimant at one place in the light of identification. Commenting on the injuries straightaway regarding compensation would only cause consuming of time factor in the appellate court. In this connection the disability to the whole body is considered at 30%.
11. The total compensation awarded by the Tribunal is as under:
SL.NO. DESCRIPTION AMOUNT
1. Medical expenses ` 99,042.00
2. Pain and suffering ` 65,000.00
3. Future medical expenses ` 50,000.00
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4. Future unhappiness and ` 50,000.00
loss of amenities
5. Loss of marriage ` 25,000.00
prospects
6. Loss of academic year ` 25,000.00
7. Shortening of life span ` 25,000.00
on account of injuries
8. Extra nourishment and ` 5,000.00
transportation
9. Attendant charges ` 3,000.00
Total `3,77,100.00
12. It is necessary to mention that the learned Member considered the compensation on the area of marriage prospects and granted `50,000/- that was not required and has given a go by to `loss of future income'. It is stated that injured is aged 19 years and a student. For the purpose of just compensation at this stage it appears just and proper to consider the notional income at `6,000/-.
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13. In the circumstances, considering the total compensation on this point at `2,00,000/- learned counsel for claimant would submit that the total amount requires to be increased reasonably as the present income would very much be insufficient in the light of the injuries sustained by the claimant. Insofar as liability is concerned, the operative portion of the order has been framed just mentioning liability being fastened on respondent No.2-Nagaraju the owner of the vehicle. It is well settled rule that the operative portion is the sum and substance of finding in any given order.
14. There is no mention of the outcome with precision and the liability being saddled or excluded justifiably by learned Member to just mention liability of the respondent No.2 who is said to be owner of the vehicle and closed the order. It would have been 13 further meaningful had he mentioned exclusive liability accordingly in his appreciation of evidence. However, it is made clear that the liability is saddled on respondents jointly and severally.
15. In the circumstances, I am of the firm finding that just and reasonable compensation payable by the insurance company under joint and several liability is `4,77,100/- including enhanced compensation of `1,50,000/-.
Compensation granted
by Tribunal ` 3,77,100.00
Less: amount awarded
towards marriage
prospects ` 25,000.00
----------------
` 3,27,100.00
Enhancement ` 1,50,000.00
----------------
` 4,77,100.00
=========
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Hence, the following:
ORDER
1. M.F.A.No.7042/2010 is partly allowed.
2. M.F.A. Crob. No.79/2014 is dismissed.
3. Judgment and award dated 07.01.2010 passed in MVC No.507/2005 is modified by granting an additional compensation of `1,50,000/- with interest @ 6% p.a.
4. Insurance company is directed to deposit compensation amount with interest 6% p.a. within four weeks from the date of receipt of certified copy of this order.
5. Amount in deposit be transmitted to the jurisdictional Tribunal forthwith.
Sd/-
JUDGE SBN