Karnataka High Court
Panchalingaiah vs Jayamma on 5 December, 2018
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5th DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
M.F.A.No.3775/2014 C/W
M.F.A.NO.1280/2014 (MV)
IN M.F.A.No.3775/2014
BETWEEN:
PANCHALINGAIAH
S/O GADDENINGAIAH
AGED ABOUT 49 YEARS,
R/O CHOLENAHALLI VILLAGE,
BHEEMANAHALLI POST,
DEVALAPURA HOBLI,
NAGAMANGALA TQ,
MANDYA DISTRICT-571 419. ... APPELLANT
(BY SRI SREENIVASAN M Y, ADV.)
AND:
1. JAYAMMA
W/O HANUMANTHARAYAPPA
AGED ABOUT 49 YEARS,
R/O NO.124, BEHIND GOVT. SCHOOL
DASANAPURA HOBLI
NELAMANGALA TQ,
BANGALORE NORTH-560 065.
2. ICICI LOMBARD GENERAL INSURANCE CO. LTD.,
R/P BY MANAGER,
NO.204, MYTHRI ARCADE,
KANTHARAJE URS ROAD,
2
SARASWATHIPURAM,
MYSORE-570 019. ... RESPONDENTS
(BY SRI B PRADEEP, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:26.12.2013 PASSED IN MVC NO.55/2010 ON THE
FILE OF SENIOR CIVIL JUDGE & MACT, NAGAMANGALA,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO 1280 OF 2014
BETWEEN:
BRANCH MANAGER
ICICI LOMBARD GIC LTD.,
NO.204, TRI ARCADE KANTHARAJ URS ROAD,
S.S.PURAM, MYSORE.
REP. BY ITS MANAGER,
GENERAL MANAGER,
M/S ICICI LOMBARD GIC LTD.,
#89, II FLOOR, SVR COMPLEX,
HOSUR MAIN ROAD,
KORAMANGALA,
MADIVALA
BANGALORE-560 068. ... APPELLANT
(BY SRI PRADEEP B, ADV.)
AND:
1. PANCHALINGAIAH
S/O GADDENINGAIAH,
NOW AGED ABOUT 49 YEARS,
3
R/A CHOLENAHALLI VILLAGE,
BHEEMANAHALLI POST,
DEVALAPURA HOBLI,
NAGAMANGALA TALUK,
MANDYA DISTRICT 571401.
2. SMT JAYAMMA
W/O HANUMANTHARAYAPPA,
NOW AGED ABOUT 49 YEARS,
NO.124 BEHIND,
GOVT.SCHOOL DASANAPUR VILLAGE & POST,
DASANAPUR HOBLI NELAMANGALA TALUK,
BANGALORE NORTH-562 111. ... RESPONDENTS
(BY SRI M Y SREENIVASAN, ADV. FOR R1)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:26.12.2013 PASSED IN MVC NO.55/2010 ON THE
FILE OF THE SENIOR CIVIL JUDGE, & MACT,
NAGAMANGALA, AWARDING COMPENSATION OF
Rs.6,80,000/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL PAYMENT.
THESE MFAs COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though, these matters are listed for admission, with the consent of both the counsels, they are taken up for final disposal.
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MFA.No.3775/2014 is filed by the claimant challenging the quantum of compensation awarded by the Tribunal in MVC No.55/2010 and MFA.No.1280/2014 is filed by the Insurance Company challenging the liability fixed on the Insurance Company and also the quantum of compensation awarded by the Tribunal as excessive.
2. The appellant/claimant has filed a claim petition before the Tribunal contending that on 29.08.2010 at about 3.00 pm., while he as a loader and employee of 1st respondent was traveling in a lorry bearing No.CAA 1258 near Chagatahally Village, Honakere Hobli, Nagamangala Taluk, the driver of the said lorry drove it in a rash and negligent manner, due to which, it was capsized and turned turtle towards right side of the road. As a result of which, the claimant sustained grievous injuries to right leg, right shoulder, 5 right chest, ribs and other parts of the body.
3. In order to substantiate his case, the claimant was examined himself as P.W.1 and marked the documents as Ex.P.1 to P.12 and also examined the doctor through court commissioner as C.W.1 and through C.W.1 marked documents as Exs.C.1 to C.13 and on behalf of the respondents, examined one Bharath who is the legal retainer as R.W.1 and marked the documents as Exs.R.1 to R.3. .
4. The Tribunal after considering both oral and documentary evidence has allowed the petition granting compensation of Rs.6,80,000/- with interest at 6% p.a.
5. The learned counsel for the claimant has contended that the Tribunal has awarded only Rs.6,80,000/- as compensation and failed to take note of the nature of injuries suffered by the claimant, since he has suffered open comminuted facture of proximal 6 and middle third of right tibial fibula with intra articular extension upto right knee, fracture of 4th rib left side of chest. The doctor has stated that injury No.4 is simple in nature and other injuries are grievous in nature. Due to the said injuries, the claimant is not able to stand, walk, run, climb stairs, squat, walk freely. The Tribunal has taken the income at Rs.5,000/- per month, though claimant was earning Rs.6,000/- per month and the doctor has assessed the disability at 75% to the particular limb and 25% to the whole body. The Tribunal has taken the functional disability at 25%. The doctor who has been examined as C.W.1 has deposed in his evidence that it requires Rs.1,50,000/- to Rs.2,00,000/- for future surgery and the Tribunal has awarded only Rs.50,000/- towards future medical expenses. It is further contended that the interest at 6% considered by the Tribunal is also very less and the same ought to have taken at 12%. Hence, the appellant 7 filed the present appeal for enhancement of compensation.
6. On the other head, learned counsel for the Insurance Company has contended that at the time of filing of the complaint driver name is mentioned as Chandini and while filing the charge sheet, name is mentioned as Kiran Kumar @ Chandini, which is marked as Ex.P.2. Hence, the driver has been implicated. The other grounds urged by the Insurance Company is that, if the Court comes to the conclusion that the Insurance Company is liable to pay the compensation, it should be under the Workmen's Compensation Act and not under the MV Act.
7. In reply to the arguments of the Insurance Company, the learned counsel for the claimant contends that the complaint was given by brother of another injured and the name of the village of the driver Chandini is one and the same and the driver has also 8 pleaded guilty after receipt of summons. Ex.P.6 confirms the same. It is further contended that the summons was issued form the criminal court in the name of Kiran Kumar @ Chandini and the Tribunal has given the reasoning while accepting the contention of the claimant.
8. After having heard the arguments of the learned counsel for both the parties in both the appeals and on perusal of the judgment and award, the Tribunal while answering issue No.2 with regard to valid and effective driving licence has discussed in paragraph No.10 of the judgment and assigned the reasons that in Ex.P.1-FIR the name of driver of lorry is shown as Chandini and in the charge sheet, the name of driver is shown as Kiran Kumar @ Chandini and unless there is a cogent evidence to substantiate that Chandini and Kirankumar are the names of different persons, the statement of P.W.1 that as shown in Ex.P.2 the name of driver of 9 lorry is Kirankumar @ Chandini cannot be doubted and further given the reason that Ex.P.6 discloses the name of driver as Kiran Kumar @ Chandini who has pleaded guilty and the fact that the summons issued in the name of Kiran Kumar @ Chandini from the criminal court is not disputed. Though, the Insurance Company disputed that the driver Kiran Kumar is implicated and there was no any nick name of the driver as Chandini, Insurance Company ought to have examined the Investigating Officer, who filed the charge sheet against the driver Kiran Kumar @ Chandini and the same has not been done. The Investigating Officer is a right person to give evidence and reasons as to why nick name is also included in the charge sheet. The other aspect is that the village name of the driver is also not disputed and it is specifically mentioned that he is the resident of Nagasandra. The Insurance Company did not make any efforts to substantiate the contention that the driver is implicated and having considered both oral 10 and documentary evidence, the Tribunal has rightly come to the conclusion that the name of the driver is Kiran Kumar @ Chandini. Normally, in the village a person is called by his/her nick name. Hence, it is noted that the brother of other injured has given the complaint and the learned counsel for the respondent contends that when the claimant was working as a loader, he would be aware of the name of the driver. In the case on hand, the complaint was given by the brother of the injured and not the injured himself. Hence, the said contention cannot be accepted in the absence of any contra evidence to come to conclusion that the driver has been implicated and hence, the contention that the driver has been implicated falsely is not sustainable and hence the Tribunal rightly fastened the liability as the Insurance Company.
9. The other contention with regard to quantum of compensation is concerned, the learned counsel for the 11 claimant contends that the compensation awarded by the Tribunal is on the lower side and the learned counsel for the Insurance Company contends that the compensation awarded by the Tribunal is on the higher side. In view of the said rival contentions, this Court has to examine the quantum of compensation awarded by the Tribunal.
10. As per Ex.P.5-wound certificate, the claimant sustained the following injuries:
"1. Open comminuted fracture of proximal and middle third of right tibial fibula with intra articular extension up to right knee.
2. Fracture of the 4th rib left side of chest.
3. Avulsed lacerated wound over the anterior aspect of the right leg measuring 12cms x 7 cms exposing underlying bones, muscles, and vessels.
4. Abrasion over the right thigh 6cm x 4 cm.
5. Fracture of the right clavicle medial aspect".12
11. The doctor was examined as C.W.1 through the Court Commissioner and produced the documents at Exs.C1 to C6-case sheets and C7 to C13-X-rays. The case sheets discloses that the claimant was inpatient for a period of 223 days and the claimant was subjected to prolonged treatment and the doctor has assessed the disability at 75% to the right leg and 25% to the whole body. The Tribunal has awarded Rs.1,95,000/- towards loss of future income. As the accident is of the year 2010 and considering the nature of job as a loader and considering the minimum wages for the year 2010 is Rs.8,000/-, it is just and proper to take the income of the claimant at Rs.6,000/-. Taking functional disability at 25%, the appropriate multiplier applicable to his age group is 13 and the nature of injuries sustained by the claimant, the compensation comes to Rs.2,34,000/- (Rs.6,000/- x 12 x 13 x 25%) and the same has been awarded under loss of future income.
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12. Regarding medical expenses is concerned, the Tribunal taking into consideration the documentary evidence, which is produced before the Court at Exs.P.10 & P.11 -215 medical receipts and 131 medical prescriptions has awarded Rs.1,50,500/- under the head medical expenses. Hence, I do not find any ground to interfere with the compensation awarded under the said head.
13. With regard to future surgery is concerned, the doctor has assessed the surgery cost of Rs.1,50,000/- to Rs.2,00,000/-. However, the Tribunal taking into consideration the cost of surgery and as there is no documentary evidence except the evidence of C.W.1, has awarded a sum of Rs.50,000/- towards future medical expenses. Hence, I do not find any ground to interfere with the same.
14. The Tribunal has awarded Rs.1,00,000/- towards pain and suffering. The claimant has suffered 14 open comminuted facture of proximal and middle third of right tibial fibula with intra articular extension upto right knee, fracture of 4th rib left side of chest, avulsed lacerated wound over the anterior aspect of the right leg measuring 12cms x 7 cms exposing underlying bones, muscles, and vessels, abrasion over the right thigh 6cm x 4 cm and fracture of the right clavicle medial aspect and was admitted in the hospital as inpatient for a period of 223 days. Hence, the compensation awarded by the Tribunal under the head pain and suffering is just and proper, since he was in prolonged treatment and I do not find any reason to interfere with the same. Under the head loss of amenities, future unhappiness and discomforts the Tribunal has awarded Rs.1,00,000/-, which is exorbitant and the same has been reduced to Rs.75,000/- as against Rs.1,00,000/- awarded by Tribunal.
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15. Under the head loss of income during treatment and laid up period Rs.60,000/- is awarded by the Tribunal. It appears the compensation awarded by the Tribunal is on the lower side as the claimant was in the hospital as inpatient for a period of 223 days. The Tribunal ought to have considered the same for a period of one year, since he has taken rest even after the treatment. Taking the income at Rs.6,000/- per month, it comes to Rs.72,000/- and the same has been awarded under the head loss of income during treatment and laid up period. The Tribunal has awarded Rs.24,500/- towards attendant, conveyance charges and miscellaneous expenses. The claimant has incurred the expenses during his treatment for food and nourishment, conveyance, attendant and other incidental expenses as he was in the hospital for a period of 223 days, the same is enhanced to Rs.50,000/- and the same is awarded under the head attendant, conveyance charges and miscellaneous 16 expenses. After reconsidering the compensation, the claimant is entitled for compensation of Rs.7,31,500/- as against Rs.6,80,000/- awarded by the Tribunal.
16. Now, the question is with regard to whether the compensation to be awarded under the Workmen's Compensation Act or under the MV Act. The counsel for the appellant contended that the compensation must be awarded under Workmen Compensation Act and not under Motor Vehicles Act. Admittedly, the claimant was working as a loader and unloader and this Court has not taken the income under the Minimum Wages Act and considered only cost of living and his nature of job as loader. Hence, I do not find any ground to accept the contention of the Insurance Company and the income taken is on the lower side and not even under the Minimum Wages Act. Hence, there is no ground to interfere with the order passed by the Tribunal. 17
17. In view of the above said discussion, MFA.No.3775/2014 filed by the appellant/claimant is partly allowed and MFA.1280/2014 filed by the Insurance Company is dismissed. The judgment and award passed by the Tribunal is modified. The compensation of Rs.7,31,500/- with interest at 6% per annum is awarded as against Rs.6,80,000/- awarded by the Tribunal. The Insurance Company is directed to deposit the amount with interest at 6% per annum within a period of six weeks.
Amount in deposit be transmitted to the Tribunal for withdrawal of the amount by the claimant.
Sd/-
JUDGE PB