Karnataka High Court
Venkatashmaiah vs National Insurance Co Ltd on 26 April, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE N. K. SUDHINDRARAO
MISCELLANEOUS FIRST APPEAL NO.10096 OF 2010
CONNECTED WITH
MISCELLANEOUS FIRST APPEAL NO.2393 OF 2010 (MV)
IN MFA NO. 10096/2010:
BETWEEN:
VENKATASHMAIAH
AGED 33 YEARS,
S/O. THIMMAPPA,
RESIDENT OF VADDARAHALLI,
DASANAPURA HOBLI,
KADABAGERE POST,
BANGALORE NORTH TALUK.
... APPELLANT
(BY SRI R. CHANDRASHEKAR, ADV.)
AND:
1. NATIONAL INSURANCE CO. LTD.
PEENYA DASARAHALLI, NO.911,
DASAPPA COMPLEX, 2ND FLOOR,
T. DASARAHALLI,
BANGALORE,
REPRESENTED BY ITS BRANCH MANAGER.
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2. RAMESH
MAJOR,
S/O. KRISHNAIAH,
RESIDING AT NO.724/2, HEGGANAHALLI CROSS,
MAGADI MAIN ROAD,
BANGALORE - 560021.
... RESPONDENTS
(BY SRI A.N. KRISHNA SWAMY, ADV. FOR R-1; &
NOTICE TO R-2 IS DISPENSED WITH VIDE
ORDER DATED 21-10-2011)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 16-10-2009 PASSED IN M.V.C.
NO.8963 OF 2008 ON THE FILE OF THE XVI ADDITIONAL JUDGE,
M.A.C.T., BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO. 2393/2010:
BETWEEN:
NATIONAL INSURANCE CO. LTD.
PEENYA DASARAHALLI, NO.911,
DASAPPA COMPLEX, II FLOOR,
T. DASARAHALLI,
BANGALORE,
NOW REPRESENTED BY ITS
REGIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE, SUBHARAM COMPLEX,
144, M.G. ROAD,
BANGALORE.
... APPELLANT
(BY SRI A.N. KRISHNASWMAY, ADV.)
3
AND:
1. VENKATASHMAIAH
AGED ABOUT 33 YEARS,
S/O. THIMMAPPA,
RESIDENT OF VADDARAHALLI,
DASANAPURA HOBLI,
KADABAGERE POST,
BANGALORE NORTH TALUK.
2. RAMESH
MAJOR,
S/O. KRISHNAIAH,
RESIDING AT NO.724/2,
HEGGANAHALLI CROSS,
MAGADI MAIN ROAD,
BANGALORE.
... RESPONDENTS
(BY SRI R. CHANDRASHEKAR, ADV. FOR R-1; &
NOTICE TO R-2 BY WAY OF PAPER PUBLICATION
IS ACCEPTED VIDE ORDER DATED 17-9-2013)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 16-10-2009 PASSED IN M.V.C.
NO.8963 OF 2008 ON THE FILE OF THE XVI ADDITIONAL JUDGE,
M.A.C.T., BANGALORE, AWARDING A COMPENSATION OF
RS. 2,60,500/- WITH INTEREST AT 6% P.A. FROM THE DATE OF
PETITION TILL REALISATION.
THESE MISCELLANEOUS FIRST APPEALS ARE COMING ON
FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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JUDGMENT
These appeals are directed against the judgment and award dated 16-10-2009 passed by the Additional Judge and Motor Accident Claims Tribunal, Bangalore, in M.V.C. No.8963 of 2008, wherein the claim petition came to be allowed in part and amount of Rs.2,60,500/- came to be awarded together with interest at the rate of 6% per annum from the date of petition till the date of realisation.
2. M.F.A No.10096 of 2010 is filed by the claimant seeking enhancement of the compensation.
3. M.F.A No.2393 of 2010 is filed by the insurance company seeking to set aside the judgment and award passed in favour of the claimant.
4. In order to avoid confusion and overlapping, the parties hereinafter are referred to as per their rankings before the Tribunal.
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5. The brief facts of the case is that on 29-9-2008 at about 2:30 p.m., the claimant and his sister were proceeding in a motor-cycle at Magadi-Bangalore road. At that time, the rider of motor-cycle, bearing Registration No.KA-41 K-457, being ridden rashly and negligently and dashed against the motor-cycle of the claimant. Due to the impact, the claimant sustained grievous injuries. The claimant filed a claim petition before the Tribunal. By award dated 16-10-2009, the Tribunal has awarded compensation as aforementioned.
6. Mr. A.N. Krishna Swamy, the learned counsel for the insurance company, submits that entire claim petition is engineered at the behest of the claimant to wangle compensation amount. Insurance company has also lodged a complaint to the Police to take action against wrong representation. It is submitted that Panacea hospital maintains the record of medico legal cases and same reflects that the history was narrated as a self fall, 6 after getting down from the bus and it has been gradually transformed to one against the T.V.S. moped rider in order to suit the claim for claiming compensation. Injuries suffered by the claimant are as under:
i. Fracture of left mandible;
ii. Fracture of hard palate;
iii. Fracture alveolar process of maxilla;
iv. Bilateral xygomatic complex all walls;
v. Fracture of bilateral zygomatic complex;
vi. Fracture of both nasal bones;
vii. Fracture of right exterior auditory;
viii. Right TM joint dislocation;
ix. Fracture of naso-frontal junction with
depression;
x. Fracture of sphenoid and ethmoid bones; and
xi. Pneumocephalus.
7. Sri R. Chandrashekar, the learned counsel for the claimant, would submit that the claim for compensation was never made without basis or to earn money. The injuries sustained by the claimant are not 7 disputed. On the other hand, upon all contentions, the claimant agitates and asserts that it was result of the accident due to the negligence of the moped rider. In the circumstances of the case, the records are produced.
8. Learned Member perused the oral evidence of P.W.1 and documentary evidence. Out of the available documents, the contents of medical records would suggest that claimant has taken treatment in Panacea hospital. Ex.R-6 relied by the insurance company, which reads as under:
"Alleged h/o. self fall after getting down from bus on to a stone at around 2.30 pm on 29/908 in Segalli Gate, Chennenahalli.
c/o. nasal bleeding after the incident c/o. pain in the oral cavity & face. Patient was initially taken to Ashraya hospital, Sunkadakatte. Inj. TT O'5CC' im, Inj. Inac 8 Iamp im stat, IVF Rl given and now brought here for further management. xxx xxx xxx."
9. Thus, the insurance company relied upon the medical documents said to have been issued by Panacea hospital, wherein it is mentioned as self fall, after getting down from the bus. It is directly contrary to one claimed by the claimant that the injuries sustained is due to the accident that occurred because of the rash and negligent riding of the T.V.S. moped. However, a case came to be registered against moped rider and filed a report, where the same is not challenged by the insurance company.
10. Another document filed by the insurance company is the letter head of the Ashraya hospital, which is almost covering letter for the document, which is part of Ex.P.6, reads as under:
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To Facial Maxillo Surgeon & ENT Prestine Hospital Bangalore xxx xxx "I am referring the patient Mr. Venktatashamaiah, aged 35/M is h/o. RTA and sustained injuries to face and nose xxx. Please admit & do the needful .
Thanking you, Sd/-
(Doctor)
11. The above contents are not disputed. When the history of accident was informed in writing by Ashraya hospital to Prestine hospital, and that document was produced before the Panacea hospital, it is rather surprising factor that how a detailed version, more 10 particularly, crucial terms such as history of self fall, after getting down from the bus on to a stone at around 2:30 p.m. is mentioned.
12. Having regard to the fact, the said mentioning invariably goes to show that the documents are filed at the instance of the insurance company. Thus, in the light of the said documents and its contents in addition to non- challenging of the final report are the cognizance of the criminal case, I do not find that the contentions of the insurance company is acceptable and on the other hand, it is liable to be rejected.
13. The observation or finding of the learned Member that the disability does not cause loss of future income is not acceptable, as the amount of disability suffered cannot be said that he would be of same fit and enough in the post accident period. Thus, learned Member erred in not considering the compensation under 11 the head 'loss of future income'. Thus, a same requires to be added. The income of the injured is assessed at Rs.3,500/- per month, permanent disability suffered by him is 31.25% and considering the age of the injured as 31 years, multiplier applicable is '16'. Thus, loss of further income would be Rs.2,08,320/- (Rs.3,500/- X 31% x 12 x 16).
14. Compensation granted under other heads be maintained. Thus, claimant shall be entitled for enhanced compensation of Rs.2,08,320/-.
15. Accordingly, I pass the following:
ORDER i. M.F.A. No. 10096 of 2010 filed by the claimant is partly allowed and M.F.A No.2393 of 2010 filed by the insurance company is rejected; 12 ii. The impugned judgment and award dated 16-10-2009 in M.V.C. No.8963 of 2008 passed by the Additional Judge and Motor Accident Claims Tribunal, Bangalore, is hereby set aside to modify the same by enhancing the compensation by Rs.2,08,320/- (Rupees two lakh eight thousand and three hundred and twenty only) with interest at the rate of 6% per annum from the date of claim petition till the date of realisation;
iii. Insurance Company is directed to deposit the compensation amount including the enhanced compensation with interest before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of a certified copy of this judgment;13
iv. Amount in deposit, if any, shall be transmitted to the jurisdictional Tribunal, forthwith; and v. Lower Court records shall be dispatched to the jurisdictional Tribunal.
Sd/-
JUDGE kvk