Karnataka High Court
Tata Aig General Insurance Co., Ltd., vs Shri.Shantaram Arjun Bidkar, on 2 December, 2013
Bench: Dilip B Bhosale, B Manohar
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF DECEMBER 2013
PRESENT
THE HON'BLE MR.JUSTICE DILIP B.BHOSALE
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
M.F.A.No.23453/2011(MV)
C/W
MFA CROB.NO.918/2012
M.F.A. 23453/2011(MV)
BETWEEN:
TATA AIG GENERAL INSURANCE CO.LTD.,
THROUGH ITS MANAGER
AHURA CENTRE, 4TH FLOOR, 82,
MAHAKALI CAVES ROAD,
ANDHERI (EAST), MUMBAI-400 093
REPRESENTED HEREIN BY
TATA AIG GENERAL INSURANCE CO.LTD
2ND FLOOR, JP & DEVI JAMBUKESHWAR ARCADE
69, MILLERS ROAD, BANGALORE-560 052
REPRESENTED BY ITS DULY
CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI. RAVINDRA R MANE, ADVOCATE.)
AND:
SHRI. SHANTARAM ARJUN BIDKAR
AGE: 46 YEARS, OCC: LIC AGENT
2
R/O SAMARTHNAGAR, KHANAPUR
DIST: BELGAUM
...RESPONDENT
(BY SRI. SANJAY S KATAGERI, ADVOCATE )
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
M.V.ACT 1988, AGAINST THE JUDGMENT AND AWARD
DATED 10.05.2011, PASSED IN MVC NO.986/2010 ON THE
FILE OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL AT
KHANAPUR, AWARDING THE COMPENSATION OF
RS.11,24,960/- WITH INTEREST AT THE RATE OF 9% P.A.
FROM THE DATE OF PETITION TILL ITS DEPOSIT.
MFA CROB.NO.918/2012
BETWEEN:
SHRI SHANTARAM ARJUN BIDKAR
AGE:47 YEARS
OCC:LIC AGENT, AT PRESENT NIL
R/OSAMARTHNAGAR, KHANAPUR
DIST: BELGAUM
...CROSS OBJECTOR
(BY SRI. SANJAY . S. KATAGERI, ADVOCATE.)
AND:
1. MRS.SUSHMA KRISHNAJI SHINDE
AGE: 33 YEARS, OCC:NOT KNOWN
R/O, SAGAR SALAM, 813, E WARD,
SHAHAPURI, 5TH LANE, SHAHUPURI
KOLHAPUR-416 001.
MAHARASHTRA
2. THE MANAGER
THE AIG GENERAL INSURANCE COMPANY
LIMITED, AHURA CENTRE
4TH FLOOR, 82, MAHAKALI CAVES ROAD
3
ANDHERI, (EAST)
MUMBAI - 400 093
...RESPONDENTS
(BY SRI. RAVINDRA R MANE, ADV. FOR R2
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA CROB. IN MFA.NO.23453/2011 FILED UNDER
ORDER 41 RULE 22 OF CPC., R/W SEC.173(1) OF MV ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 10-05-
2011 PASSED IN MVC NO.969/2010 ON THE FILE OF THE
MEMBER, MACT-I, KHANAPUR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA AND MFA CROB. ARE COMING ON FOR
HEARING THIS DAY, B.MANOHAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal and the cross-objections are directed against the judgment and award dated 10-05-2011 made in MVC No.986/2010 passed by the Motor Accident Claims Tribunal, Khanapur (for short 'the Tribunal') awarding compensation to the claimant.
2. MFA No.23453/2011 is filed by the TATA AIG Insurance Company Limited being aggrieved by the judgment and award made in MVC No.986/2010 4 challenging the quantum of compensation awarded in favour of the claimant, whereas the claimant who is the cross-objector in Cross Objection No.918/2012 is challenging the very same judgment and award seeking enhancement of compensation.
3. In the claim petition, the claimant has contended that on 10-12-2009 at about 8.45 p.m., while he was proceeding along with his son on his Hero Honda motor cycle bearing registration No.KA-22/EA-6064 to drop his son to Vivekananda English Medium School, near Khanapur Bus stand on Belgaum-Goa Road, a truck bearing registration No.MH-09/BC-5203 came from opposite direction being driven in a rash and negligent manner and dashed against the motor cycle. Due to the accident, the son of the claimant died on the spot. The claimant suffered grievous injuries. He had taken treatment. He has undergone seven operations. He was aged about 45 years as on the date of accident. Prior to 5 the accident, he was working as a Senior LIC Agent at Khanapur Branch and getting an income of Rs.4,00,000/- per annum and he is a member of the Zonal Membership Club. In view of the accident, he has to spend more than Rs.4,50,000/- towards the treatment and he cannot move about and he was physically disabled to discharge the work as a LIC Agent. Therefore, he sought for compensation of Rs.40,00,000/-.
4. Though the first respondent was served with the notice, he remained unrepresented. The second respondent-Insurance Company filed statement objections denying the entire averments made in the claim petition and contended that due to rash and negligent riding of the motor cycle, the accident had occurred. The claimant is not the resident of the said Area and he cannot maintain the claim petition. The driver of the offending vehicle violated the conditions of the Policy. Hence, Insurance Company is not liable to compensate the claimant. The 6 compensation claimed is also exorbitant and sought for dismissal of the claim petition.
5. The claimant in order to prove his case examined himself as P.W.1, he also examined the doctor who treated him as P.W.2. The Development Officer of Life Insurance Corporation was examined as P.W.3 and got marked the documents as Ex.P1 to Ex.P.294. On behalf of the second respondent-Insurer, nobody was examined and no document was marked.
6. The Tribunal, after considering the oral and documentary evidence adduced by the parties and taking into consideration the copy of FIR, spot panchanama, MVI report and charge sheet, held that due to the rash and negligent driving of the offending vehicle by its driver, the accident had occurred. The Police had registered a case against the driver of the truck. The offending vehicle is covered by the insurance. Hence, the second respondent is liable to compensate the claimant. With regard to 7 quantum of compensation, the Tribunal noticed that, in the accident the claimant has sustained fracture of upper end of left tibia and fibula with displaced fracture fragments and with intra articular extension resulting in permanent physical disability. Even after four years of the accident, he is unable to walk. He has undergone seven operations to the left leg, it has almost become useless. The Tribunal, taking into consideration the wound certificate at Ex.P.285 and taking the income of the claimant at Rs.2,50,000/- to Rs.3,00,000/- per annum awarded a sum of Rs.5,00,000/- compensation towards future loss of income, Rs.1,00,000/- towards pain and suffering, Rs.1,00,000/- towards the loss of amenities; Rs.3,49,960/- towards medical expenses, Rs.25,000/- towards conveyance, nourishment and attendant charges, Rs.50,000/- towards loss of income during the laid up period. In all, a sum of Rs.11,24,960/- with interest at 9% p.a. from the date of petition till realization, however, no interest has been awarded towards the compensation 8 awarded future loss of income. The Insurer being aggrieved by the quantum of compensation awarded by the Tribunal, filed MFA NO.23453/2011. The claimant being not satisfied with the quantum of compensation awarded by the Tribunal, has filed Cross-Objection No.918/2012 seeking enhancement of compensation.
7. Sri.Ravindra R. Mane, learned Counsel appearing for the appellant-Insurance Company contended that the compensation awarded by the Tribunal is on higher side. The injuries sustained by the claimant resulted in disability of 60% of the lower limb, which as per the established practice would be 20% in relation to the whole body. The claimant being a LIC Agent, will get commission as soon as the Premium is paid by the Policy holder. Even after the accident he earns money. Hence, awarding of Rs.5,00,000/- towards future loss of income is exorbitant. The compensation awarded under heads, pain and suffering, loss of amenities and loss of income during the 9 laid up period is also on the higher side and sought for modification of the same.
8. On the other hand, Sri.Sanjay S.Katageri, learned Counsel appearing for the cross-objector contended that the compensation awarded by the Tribunal is on the lower side. In view of the accident, the claimant has become permanently disabled and cannot work as an agent, as he was doing prior to the accident. As per the conditions of the agency, he has to introduce new policy holders and bring the minimum number of policies per year. If he fails to do so, he may lose the agency code, even though he would get the commission. The claimant had taken Rs.11,00,000/- loan from the Syndicate Bank, Khanapur on 16-5-2008 for construction of the house and he has to pay the monthly installment of Rs.11,730/- p.m. The outstanding loan as on 1-1-2011 is Rs.10,54,200/- including interest and sought for enhancement of compensation.
10
9. We have carefully considered the arguments addressed by the parties, perused the judgment and award and the oral and documentary evidence adduced by the parties.
10. The records clearly disclose that the claimant had sustained injuries in the road traffic accident occurred on 10-12-2009 due to the actionable negligence on the part of the driver of the truck bearing registration No.MH-09/BC- 5203. The occurrence of the accident, age of the claimant, injuries sustained, rash and negligent driving of the truck by its driver is not disputed by the Insurance Company. The dispute is only with regard to the quantum of compensation. The claimant was working as an agent of Life Insurance Corporation at Khanapur Branch for the last 12 years. He was a member of the Zonal Club on the basis of the business he has given. He was an income tax assessee for the year financial years 2001-02 to 2009-10. Immediately after the accident he was admitted to the 11 hospital and he had undergone seven operations from 19-12-2009 to 11.01.2011. He had been in the hospital for more than two months from 10-12-2009 to 11-01-2011 for different period. In the accident, he has sustained the fracture of upper end of left tibia and fibula with displaced fracture fragment and with intra-articular extension. Even after seven operations, his knee is fused and no movement is possible and permanent physical disability of left lower limb is more than 60%. The doctor who has treated him in his evidence has deposed that the left leg of the claimant has almost become useless and he cannot touch the ground, stand, walk and sit cross-legged. He cannot fold the left leg. He cannot stand without the support of others throughout his life. He has lost amenities in life.
11. P.W.3 the Development Officer in his evidence has deposed that the claimant may lose the agency code in case, if he fails to bring the new business in a year. 12 Considering the disability suffered by the claimant it is not possible to the claimant to continue his agency in future.
12. The Tribunal, taking into consideration the medical bills awarded Rs.3,49,600/- and that the claimant has undergone seven operations within a period of one year and he was inpatient in the hospital for a period of more than two months, further considering the pain and suffering he has undergone, awarded compensation of Rs.1,00,000/- towards pain and suffering and a sum of Rs.1,00,000/- towards loss of amenities. We find no infirmity or irregularity in awarding of the said amount. A sum of Rs.50,000/- awarded towards the loss of earning during the laid up period and Rs.25,000/- towards the attendant and conveyance. The same is also in accordance with law. The compensation awarded towards future loss of income is on the lower side. The claimant was working as a Senior LIC Agent and was a member of Zonal Membership Club and his income was more than 13 Rs.3,00,000/- per annum. He had obtained loan from the Syndicate Bank for construction of the house and paying monthly installment of Rs.11,730/-. He was an LIC agent and a member of the Zonal Club. He had suffered fracture resulting in long hospitalization; and also that he had undergone seven operations during the period from 19-12-2009 to 11-01-2011. He was aged about 45 years at the time of accident. He has to suffer permanent disability throughout his life and might have spent considerable amount of expenses towards his treatment. Taking into consideration all these aspects of the matter, we are inclined to enhance compensation towards future loss of income by awarding another sum of Rs.2,50,000/-. In all other respects, the judgment and award passed by the Tribunal remains undisturbed. In view of enhancement of compensation, the appeal filed by the Insurance Company is liable to be dismissed. Accordingly, we pass the following:
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ORDER MFA No.23453/2011 filed by the Insurance Company challenging the judgment and award dated 10-05-2011 passed in MVC No.986/2010 by the MACT, Khanapur is dismissed. Cross-Objection No.918/2012 filed by the claimant seeking enhancement of compensation is allowed in part. The claimant/cross-objector is entitled to enhanced compensation of Rs.2,50,000/-.
SD/-
JUDGE SD/-
JUDGE mpk/-*