Karnataka High Court
The Branch Manager vs N Puttaraju on 13 April, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.10462/2011(MV)
BETWEEN:
THE BRANCH MANAGER
UNITED INDIA INSURANCE
COMPANY LIMITED
MICRO OFFICE NO.1872
20TH MAIN, 20TH CROSS
MARENAHALLI MAIN ROAD
VIJAYANAGAR, BANGALORE-560 040.
BY
REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
5TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD
HUDSON CIRCLE
BANGALORE-560 001.
BY ITS MANAGER.
... APPELLANT
(BY SRI.O. MAHESH, ADVOCATE (VC))
AND:
1. N. PUTTARAJU
AGE 32 YEARS
S/O NAGALINGAPPA
R/AT NO.32, II FLOOR
1ST CROSS, III MAIN ROAD
ROYAL COUNTY LAYOUT
2
PARAPPANA AGRAHARA
BANGALORE-560 100.
2. SHIVANNA M
MAJOR
S/O MADAIAH, NO.512/2,
I FLOOR, II CROSS
KAVIKA LAYOUT, MYSORE ROAD
BANGALORE-560 026.
... RESPONDENTS
(NOTICE TO R1 IS HELD SUFFICIENT;
NOTICE TO R2 IS DISPENSED WITH)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:23.06.2011 PASSED IN MVC NO.5827/2010 ON
THE FILE OF THE XXI A.C.M.M. & XXIII ADDITIONAL
SMALL CAUSE JUDGE, MACT, COURT OF SMALL CAUSES,
BENGALURU, AWARDING A COMPENSATION OF
RS.1,25,700/- WITH INTEREST @ 6% P.A. EXCLUDING
INTEREST ON FUTURE MEDICAL EXPENSES FROM THE
DATE OF PETITION TILL DEPOSIT.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1), of the Motor Vehicles Act, 1988 by the appellant - insurance company, challenging the judgment and award dated 23.06.2011, passed in MVC No.5827/2010, on the file of MACT & Court of Small Causes, at Bangalore. 3
Brief facts:
2. The averments of the petition in brief are that on 21.07.2010, about 4.00 p.m., the respondent-claimant was crossing the road north-south wise on Uttarahalli-
Kengeri Main Road, Poornapragna Layout, near water tank. At that time the rider of the Hero Honda Splendor motor cycle bearing registration No.KA-02:EX-0163, drove the same with a high speed in a rash and negligent manner from Uttarahalli side east-west wise and dashed against the claimant. Due to which, the claimant fell down and sustained grievous injuries all over the body.
3. Immediately after the accident, he was shifted to St.John's Hospital, Bangalore, wherein he took treatment as an inpatient from 21.07.2010 to 27.07.2010. The x-ray revealed fracture of both bones of right leg. He underwent surgery. After discharge from the hospital, he took follow up treatment regularly as an out-patient and has spent around Rs.75,000/- towards 'medicines, hospitalization and conveyance'. The claimant was aged about 31 years as on the date of the accident and was hale 4 and healthy and was working as a sales Manager in Reliance Life Insurance Company Vijayanagar, Bangalore and he was drawing salary of Rs.19,000/- per month. He was an income tax assessee. Due to the injuries sustained in the accident, he has suffered mental agony and he was unable to do his work as usual and has suffered loss of income. Due to the injuries, he is unable to lift the weight and getting frequent pain. A Crime was registered against the rider of the motor cycle in question.
4. A claim petition was filed by the claimant under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident. The first respondent therein i.e., owner of the vehicle remained absent inspect of service of notice. Hence, he was placed exparte. The second respondent, who is the insurer of the offending vehicle appeared through counsel and filed objections. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.1,25,700/- (60% of Rs.2,09,500), along with interest at 6% per annum, from the date of 5 petition till the date of deposit. The Tribunal held the appellant - insurance company, liable to pay the compensation.
5. The learned counsel appearing for the appellant - insurance company submitted that the Tribunal has held that the claimant-respondent No.1 has contributed 40% negligence towards accident. Since the claimant was crossing the road, where he was not supposed to cross the road, the accident has happened due to negligence of the claimant. Therefore, the entire negligence ought to have been attributed on respondent No.1 himself. Further, submitted that atleast higher degree of negligence ought to be attributed on respondent No.1. Therefore, prays for allowing the appeal.
6. Further, the learned counsel for the appellant- insurance company submits that the amount of compensation awarded for injuries, pain and sufferings at Rs.1,00,000/- is on higher side, considering the nature of injuries sustained by the appellant as he has sustained fracture of tibia and fibula only. Therefore, prays for 6 modification of the quantum of compensation in this regard.
7. Further, submitted the compensation determined under the head 'Disability' at Rs.40,000/- is not based on any calculation and respondent No.1- claimant has continued in service and there is no 'loss of earning capacity due to disability'. Therefore, the compensation under this head ought not to have been granted. Therefore, prays for modification of the award.
8. Further, submitted that under the head 'Future Medical Expenses' there are no supportive evidence produced by the appellant. Therefore, prays for modification of compensation under this head.
9. Further, the Tribunal has granted Rs.15,000/- towards 'loss of leave', which is not supported by any documentary evidence. Therefore, granting compensation under the said head is not correct. Therefore, prays for modification of the judgment and award by making reduction of compensation quantum. Hence, prays to allow 7 the appeal and modify the judgment and award passed by the Tribunal.
10. The respondents are served but they have remained unrepresented.
11. The Tribunal has awarded compensation under various heads as follows:
1. Pain and Suffering : Rs. 1,00,000/-
2. Medical Expenses : Rs. 2,000/-
3. Disability : Rs. 40,000/-
4. Loss of Amenities in Life : Rs. 40,000/-
5. Future Medical Expenses : Rs. 10,000/-
6. Loss of Leave (Rs.15,000 x 1) : Rs. 15,000/-
7. Attendant Charges : Rs. 2,000/-
8. Conveyance : Rs. 500/-
TOTAL : Rs. 2,09,500/-
12. Exhibit-P7 is the wound certificate which reveals respondent No.1 - claimant had sustained the following injuries:
"i. Tenderness, swelling and deformity over lower third of right leg with an abrasion over right knee measuring 4 cms x 3cms.
ii. X-Ray right leg - fracture both bones right leg." 8
13. Therefore, considering the nature of injuries sustained by the appellant sustained, fracture of both bones i.e., tibia and fibula of right leg, the compensation amount awarded under the head 'injuries, pain and suffering' at Rs.1,00,000/- is on the higher side and the same needs to be modified. Accordingly, Rs.50,000/- is awarded under the head 'injuries, pain and suffering'.
14. Accordingly, considering the submissions of the learned counsel for the appellant-insurance company that the medical reimbursement was made to the first respondent. Hence, the amount of compensation of Rs.2,000/- towards 'Medical Expenses' is not correct. But the quantum of the compensation awarded under the head is Rs.2,000/- only and not larger amount. Furthermore, it is the factual aspect that the claimant was working as a Sales Manager in a company, where he has got reimbursement. This also is to be taken into consideration. Therefore, considering all these aspects, the amount awarded towards Medical Expenses at Rs.2,000/- is kept in tact.
9
15. As discussed above, the appellant has sustained injuries of fracture of tibia and fibula bones of right leg and the first respondent - claimant was working as a Sales Manager and had sustained disability at 10% towards whole body. But the Tribunal has awarded compensation of Rs.40,000/- under the head 'Loss of future income / disability' without making any calculation of percentage of disability and taken consideration monthly income of respondent No.1-claimant. But this is not challenged by respondent No.1-claimant. Therefore, considering the avocation of respondent No.1-claimant and nature of injuries sustained by claimant and evidence of doctor-PW-2 that respondent No.1 had sustained 10% permanent disability towards whole body, due to fracture of tibia and fibula of right leg. Therefore, the amount of compensation of Rs.40,000/- awarded by the Tribunal under the head 'loss of future income / disability' is not to be disturbed and the same is kept in tact. 10
16. Further, the amount of compensation awarded at Rs.40,000/- towards 'loss of amenities in life' is correct in view of the nature of injuries sustained, as respondent No.1 had suffered 'discomfort, inconvenience in life, mental agony etc. Therefore, the same is kept in tact.
17. Further, the learned counsel for the appellant submitted that under the head 'future medical expenses' a sum of Rs.10,000/-, is awarded but there is no supportive documents produced. Therefore, prays for modification of the award. But considering the nature of injuries as respondent No.1, suffered i.e., fracture injuries above stated, the respondent No.1 might require future medical expenses atleast to some extent and it has only awarded Rs.10,000/- (Ten Thousand only) towards medical expenses. Considering the practical aspects involved the compensation under the future medical expenses is not disturbed and the same is kept in tact.
18. The Tribunal has awarded Rs.10,000/- towards 'loss of leave and loss of income during laid 11 up period'. Respondent No.1 was working as sales manager in a private company and must have taken leave for atleast one month due to fracture of injuries. Therefore, he has lost salary for that month, even if in this regard the respondent has produced Exhibit-P14, Leave Certificate, the author is not examined but that cannot be made a ground to reject Exhibit-P14 also considering the practical aspect for private company if worker do not work they are not paid remuneration / salary. Therefore, the same is kept in tact.
19. Further, the amount awarded by the Tribunal towards 'attendant charges' at Rs.2,000/- is meager one which needs no disturbance.
20. Therefore, the Tribunal has awarded correct amount of compensation under all heads except for the head 'injuries, pain and suffering' as discussed above. Therefore, respondent No.1-claimant is entitled for total compensation under various heads as follows:
1. Pain and Suffering : Rs. 50,000/-
2. Medical Expenses : Rs. 2,000/-
3. Disability : Rs. 40,000/-12
4. Loss of Amenities in Life : Rs. 40,000/-
5. Future Medical Expenses : Rs. 10,000/-
6. Loss of Leave (Rs.15,000 x 1) : Rs. 15,000/-
7. Attendant Charges : Rs. 2,000/-
8. Conveyance : Rs. 500/-
TOTAL : Rs. 1,59,500/-
21. Considering the submissions made by the learned counsel for the appellant - insurance company that the respondent No.1-claimant was crossing the road, where there was no zebra crossing, therefore prays to hold atleast 50% negligence on the part of respondent No.1.
Just because respondent No.1 was not crossing on zebra crossing of the road, but at the same time the rider of the motorcycle was also supposed to ride the motorcycle cautiously. But he has not ridden the motorcycle cautiously. Therefore, the rider of the motor cycle has also contributed higher degree of negligence and that is correctly assessed by the Tribunal at 60% on the part of the rider of the motor cycle. Therefore, attributed 60% negligence on the part of the rider of the motor cycle is correct which needs no interference. Therefore, the appeal is liable to be allowed in part on the aspect of reducing the compensation towards 'injuries pain and suffering' as 13 discussed above. Therefore, the appeal is liable to be allowed in part by attributing 40% negligence on the part of the respondent No.1-claimant. Hence, the respondent no.1-claimant is entitled for total compensation as follows:
Rs.95,700/- (60% of Rs.1,59,500/-)
22. Accordingly, I proceed to pass the following:
ORDER i. The appeal is dismissed.
ii. The judgment and award dated 23.06.2011, passed in MVC No.5827/2010, on the file of MACT & Court of Small Causes, at Bangalore is hereby modified to the above extent.
iii. The respondent no.1-claimant is entitled for total compensation of Rs.95,700/- (60% of Rs.1,59,500/-), along with interest at 6% from the date of petition till the date of deposit.
iv. The amount of Rs.72,000/- deposited by the appellant - insurance company is ordered to be transferred 14 to the Tribunal forthwith, along with TCR and a certified copy of this order.
v. Draw award accordingly.
Sd/-
JUDGE
JJ