Karnataka High Court
The Oriental Insurance vs C Dhruva Kumar on 4 December, 2018
Bench: L.Narayana Swamy, P.B.Bajanthri
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4th DAY OF DECEMBER, 2018
PRESENT
THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE P.B. BAJANTHRI
M.F.A.No.3770 OF 2014 c/w
M.F.A.No.5857 OF 2014 (MV)
IN M.F.A. NO.3770/2014
BETWEEN:
THE ORIENTAL INSURANCE
COMPANY LTD.,
REPRESENTED IN THIS APPEAL,
BY AUTHORISED SIGNATORY AT
REGIONAL OFFICE, NO.44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BENGALURU - 560 001. ...APPELLANT
(BY SRI. SRISHAILA S., ADVOCATE)
AND :
1. C. DHRUVAKUMAR,
S/O LATE CHALLA SUBBA RAYUDU,
AGED 68 YEARS,
R/AT FLAT NO.402,
GREATER KAILASH PART,
CHURCH STREET, MURUGESH PALYA,
BENGALURU - 560 017.
2. SRI. SUGENDRAN,
2
MAJOR, S/O P. ARUNAN,
NO.13, 4TH MAIN ROAD,
NEW THARAGUPET,
BENGALURU - 560 002. ...RESPONDENTS
(BY SRI. SOPPANNAVAR, ADV. FOR R1;
NOTICE TO R-2 IS HELD SUFFICIENT
V/O DATED 29.11.2018)
THIS MFA IS FILED UNDER SECTION 173 (1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 02.01.2014 PASSED IN MVC NO.8108/2011 ON
THE FILE OF THE XVIII ADDL. JUDGE, COURT OF
SMALL CAUSES, MEMBER, MACT-4, BENGALURU
AWARDING A SUM OF Rs.23,80,000/- WITH INTEREST
AT 6% P.A. FROM THE DATE OF PETITION TILL DATE
OF DEPOSIT.
IN M.F.A. NO.5857/2014
BETWEEN:
SRI. C. DHRUVA KUMAR,
S/O LATE CHALLA SUBBA RAYDU,
AGED ABOUT 68 YEARS,
R/AT FLAT NO.402,
GREATER KAILASH APRT,
CHURCH STREET, MURUGESH PALYA,
BENGALURU - 560 017. ...APPELLANT
(BY SRI. SAPPANNAVAR, ADV.)
AND :
1. SRI. SUGENDRAN, MAJOR,
S/O P. ARUNAN,
NO.13, 4TH MAIN ROAD,
NEW THARAGUPET,
BENGALURU - 560 002.
2. THE MANAGER,
3
THE ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE,
NO.44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BENGALURU - 560 001. ...RESPONDENTS
(BY SRI. S. SRISHAILA, ADV. FOR R-2;
NOTICE TO R-1 IS HELD SUFFICIENT
V/O DATED 13.10.2015)
THIS MFA IS FILED UNDER SECTION 173 (1) OF
THE MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 02.01.2014 PASSED IN MVC NO.8108/2011 ON
THE FILE OF THE 18TH ADDITIONAL JUDGE, COURT
OF SMALL CAUSES, MEMBER, MACT-4, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE M.F.As. COMING ON FOR ADMISSION
THIS DAY, BAJANTHRI J. DELIVERED THE
FOLLOWING:
JUDGMENT
Claimant suffered road traffic accident on 11.07.2010 when he was standing at Site No.74/7, Kaverappa Layout, Panathur Village at Bengaluru by the side of bore point to perform pooja. At that time, the driver of the said borewell lorry started to operate negligently without taking proper care endangering to human life and properties. As a result of the accident, a shaft rod fixed to the borewell machine which came out 4 and fell on the back of the petitioner. He sustained severe injuries and was hospitalized. He filed a claim petition under Section 166 of the Motor Vehicles Act seeking compensation of Rs.2.00 crores on account of the multiple injuries sustained by him in the vacant site. For the purpose of compensation, he claimed that he was doing business as a working partner in Sri Homes and earning Rs.5,62,361/- per annum. The Tribunal by its order dated 02.01.2014 awarded compensation of Rs.23,80,000/- as against claim of Rs.2.00 crores.
2. Feeling aggrieved, Insurance Company questioned the very claim petition and the quantum of compensation, both the insurance company and the claimant have filed independents appeals.
3. The appeal filed by the claimant for enhancement of compensation depends upon the result of the appeal preferred by the insurance company where the main ground raised by the insurance is on the 5 maintainability of the claim petition. Hence, we propose to first consider and dispose the appeal preferred by the Insurance Company.
4. The grounds urged by the insurance company is as follows:
(i) The allegation is that the accident is outside the purview of the motor vehicle policy. The accident is due to the negligence of the operator of the borewell drilling machine in not fixing the shaft rod properly and the owner of the drilling machine has a vicarious liability for the irresponsibility of his operator to claim and such a claim is not maintainable, since the Act does not provides for the same.
(ii) The Tribunal had failed to note that the alleged accident has occurred in a private site belonging to the claimant where the public has no right to access and therefore, the claim petition filed is not maintainable. 6
(iii) In support of his claim, learned counsel for the insurance referred to Section 2(34) for the definition of "public Place". It is the submission of the insurance that the place in which the claimant suffered injury though it is an injury which is not an injury suffered in a road traffic accident and further Section 2(34) which defines the 'public place which excludes the site where the accident has taken place. In view of these facts, learned counsel submitted that the Tribunal had no jurisdiction to award compensation since the injury is not a road traffic accident.
(iv) In order to claim compensation, the burden is on the claimant to allege rash and negligent act on the part of the driver in handling the insured vehicle. The pleading and evidence is a material legal requirement to maintain a claim under Section 166 of the Motor Vehicles Act.
The Tribunal has wrongly accepted the submissions of the claimant and held the accident was due to the negligence of the driver of the borewell lorry which was stationed and not in operation.
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(v) The claimant falsely made a complaint as per Ex.P.7 and after investigation charge sheet has been filed as per Ex.P.6, mahazar as per Exs.... Though it was not the case of the complainant that by virtue of the rash and negligent driving, the accident has taken place but the charge sheet has been filed against the driver of the vehicle has if he has committed an act of negligence on the part of the operator, whose driver was negligent in fixing the rod and not taking proper precaution and not on account of the rash and negligent act of the driver of the lorry. The complaint made to the police was registered. The case was registered in Crime No... for the offence punishable under Sections 336 and 337 IPC and not under Section 297 IPC which deals with rash and negligent driving of the driver of the vehicle. In order to make a false claim, it has been averred in the claim petition, the driver of the lorry moved the lorry without taking proper care and caused him accidental injury for which he filed a case.
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(vi) The Tribunal committed serious error in holding that use of motor vehicle would apply even if it is standing etc. The award passed by the Tribunal results in miscarriage of justice.
(vii) The grounds taken by the insurance is that on account of the injuries suffered by the claimant, the compensation awarded is excessive under almost all heads. The partnership firm is still continuing, hence, there is no loss of future income and also the fact that claimant is an aged person.
5. On the basis of the pleadings, the Tribunal has framed 3 issues which reads as under:
(i) Whether the petitioner proves that he sustained injuries in an accident, occurred on 11.07.2010 at about 11.20 a.m. on site No.74/7, Kaverappa Layout, Panathur Village which was due to rash and negligent driving of the borewell lorry bearing No.KA-01-MF-3342 by its driver?
(ii) Whether the petitioner is entitled for compensation?
If so, at what amount and from whom?
(iii) What order?
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6. It is the case of the insurance that Tribunal has presumed rash and negligence driving of the lorry by its driver. It is undisputed that the lorry was stationed, it was on the site belonging to the claimant. TI was stationed for the purpose of drilling. Under these circumstances, it was not proved that the accident was due to the rash and negligent driving since it was stationed and also because of negligent driving of the driver of the lorry.
7. Per contra, learned counsel for the claimant vehemently contended that claim petition is maintainable under Section 166 of Motor Vehicles Act before MACT for the reasons that even though accident is arising out of lorry attached with borewell drilling unit which was to be operated on the claimant's site, it is a private place at the same time one cannot ignore the fact that borewell drilling machine unit cannot be dismantled with the motor vehicle/lorry. Therefore, drilling machines fell on the claimant in a private place would be accident with reference to stationing of 10 borewell drilling lorry. In support of this contention, learned counsel for the claimant cited the following decisions:
(1) RAMLA vs NATIONAL INSURANCE COMPANY LIMITED (2018 SCC Online SC 2616) (2) VIMLA DEVI vs NATIONAL INSURANCE COMPANY LIMITED (2018 SCC Online SC 2458) It was further contended that the contention of the insurance company that MACT has awarded exorbitantly is not made out in the absence of necessary proof/material. In fact, MACT has not appreciated nature of injuries suffered by the claimant to the extent of 100% below lower limb 50% of the whole body and future medical expenses. That part, the income criteria in respect of working partnership has not been appreciated. Therefore, the MACT has awarded lesser compensation. In fact, the claimant has filed an independent appeal for enhancement.
8. Heard counsel for the parties.
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9. The contentions urged by the parties give raise to the following questions:
(i) Whether the claim petition is
maintainable or not?
(ii) If the claim petition is maintainable,
whether the claimant is entitle to
compensation on the higher side or not?
(iii) Whether the Tribunal erred in taking multiplier at 5?
10. The alleged incident, namely, the lorry carrying borewell machine and shaft rod falling on the claimant, which has caused multiple injuries of 100% to the lower limb and 50% to the whole body, would amount to motor vehicle accident or not is one of the question, which is answered by the Supreme Court in the case of SHIVAJI DAYANU PATIL & ANOTHER vs VATSCHALA UTTAM MORE reported in 1991(3) SCC 530, wherein the Apex Court had an occasion to consider certain provisions of the Motor Vehicle Act, like sub-section 34 & 18 of Section 2 and Section 9 & 2(a), which are relating to motor vehicle and its use. 12 Stationing of the vehicle, which is involved in the accident, irrespective of whether it is in public or private place amounts to motor vehicle accident. Therefore, the contentions of the Insurance Company that the claim petition of the claimant is not maintainable, is hereby rejected.
11. Having regard to the answer relating to the claim petition maintainability is up held, consequently, whether claimant is entitle to enhanced compensation or contention of the Insurance Company counsel that compensation is on the higher side, is required to be determined with reference to the income, age as well as percentage of disability of the claimant. The Tribunal has failed to take note of the income of the petitioner to the extent that he was Partner of a business firm called 'Sri Homes'. So also, he was also working Partner. At the same time, for non production of form No.16, it was reluctant to take Ex.P22, claim at 25% Partnership share has been 13 taken note of. That apart, claimant had produced Income Tax returns of his own and not the firm.
12. The claimant has also sought for future medical expenses. Perusal of the records, it is evident, so also, the claimant who was present in Court and his personal appearance, who was on wheel chair with the assistance of attendant with regard to his disability, it was evident that he needs day to day attention from the attender. Thus, he is entitled to future medical expenses, which has not been considered by the Tribunal.
13. In so far as, the age of the claimant as on the date of accident is 65 or 66 is in dispute. Claimant has not produced any material about his date of birth to take his age as 65 as on the date of alleged accident. On the other hand, Ex.P5 reveals that his age is 66. At the same time, the other documents which are exhibited reveal that the claimant is aged about 65 years. In other words, the age of 66 has 14 been shown only in Ex.P5. Therefore, one has to draw inference that claimant is aged about 65 years at the time of alleged accident.
14. The Insurance Company has not made out a case for reducing the compensation. The only contention raised is that the claimant has not produced Form No.16. In view of these facts and circumstances of the case, the claimant is entitled to enhanced compensation. Income of the claimant is required to be taken at Rs.20,000/- with reference to IT returns of 2008-09, whereas the date of accident is of the year 2010. Hence, the previous year's income is required to be taken for consideration and to enhancement of compensation. Thus, the claimant is entitled to compensation for a sum of Rs.8,40,000/- (20000/2 X 12 X 7) towards loss of future earning.
15. Considering the facts and circumstances of the case, the claimant is entitle to loss of amenities at Rs.1,00,000/-. The claimant is also entitled to future 15 medical expenses at Rs.2,52,000/- (3000 X 12 X 7). Towards pain and suffering the claimant is entitled to Rs.2,00,000/- and he is entitled to Rs.15,50,000/- towards medical and incidental charges. Considering the period of hospitalization, the claimant is entitled to Rs.30,000/- towards loss of earning during laid up period. The claimant has suffered the injuries out of the accident in question, which is grievous. Hence, he has to be taken care by two of the attendants for remaining life span. Thus, towards attendant charges for two attenders is calculated at Rs.8,40,000/- (10000 X 12 X 12) and the claimant is entitled to the said amount.
16. Thus, the Claimant is entitled for the following compensation:
1) Pain and suffering Rs. 2,00,000/-
2) Medical & incidental expenses Rs.15,50,000/-
3) Towards loss of amenities Rs. 1,00,000/-
4) Loss of earning during laid
Up period Rs. 30,000/-
5) Loss of future earnings
(Rs.20000/2X12X7) Rs. 8,40,000/-
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6) Future Attendant charges
-Two persons(10000X12X7) Rs.
8,40,000/-
7) Future medical expenses
(3000X12X7) Rs. 2,52,000/-
__________
Total Rs.38,12,000/-
Less compensation awarded by the
Tribunal Rs.23,80,000/-
Additional Compensation Rs.14,32,000/-
17. Accordingly, the appeal is allowed in part.
The judgment and award passed by the Tribunal is modified and the claimant is entitled for additional compensation of Rs.14,32,000/- with interest at 6% per annum from the date of claim petition till the date of realization.
The respondent No.1 - Insurance company is directed to deposit the additional compensation with interest.
The amount in deposit before this Court shall be transmitted to the Tribunal.
Draw the award, accordingly.
17No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE Brn/VK