Karnataka High Court
The Branch Manager vs Dayanand S/O Balbhim Olekar And Anr on 19 May, 2022
1
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 19TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
MFA.No.201670/2014 (MV)
C/W
MFA.No.201063/2015 (MV)
IN M.F.A.No.201670/2014:
BETWEEN:
THE BRANCH MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
S.S.FRONT ROAD, BIJAPUR
NOW REPRESENTED BY
DIVISIONAL MANAGER
NEW INDIA ASSURANCE CO. LTD.
...APPELLANT
(BY SRI. S.S.ASPALLI, ADVOCATE)
AND
1. DAYANAND
S/O BALBHIMA OLEKAR
AGE: 30 YEARS
OCC: AGRICULTURE
R/O SALAGAR KHURD
TQ: MANGALWADI
DISTRICT: SHOLAPUR
NOW RESIDENT OF JORAPURPET
WATER TANK BIJAPUR - 586 101
2. NAGAPPA
S/O MALLAPPA WADED
AGE: MAJOR
OCC: OWNER OF THE VEHICLE
2
R/O SAMARUDDI NAGAR
GALLI NO.5, SANGALI,
TQ: MIRAJ DIST,
SANGLI - 416 416
...RESPONDENTS
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE FOR C/R1;
R2 SERVICE OF NOTICE IS NOT NECESSARY)
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, 1988 PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 22.07.2014 IN MVC
NO.1664/2011 PASSED BY THE MOTOR ACCIDENT CLAIMS
TRIBUNAL NO.IV BIJAPUR BY ALLOWING THE APPEAL IN THE
INTEREST OF JUSTICE AND EQUITY.
IN M.F.A.No.201063/2015:
BETWEEN:
DAYANAND
S/O BALBHIMA OLEKAR
AGE: 32 YEARS
OCC: AGRICULTURE
R/O SALAGAR KHURD
TQ: MANGALAWADI
DISTRICT: SOLAPUR
(TEMPORARY ADDRESS JORAPUR PETH,
WATER TANK, BIJAPUR - 586 101
(ORIGINAL PETITIONER BEFORE THE
MACT NO.IV BIJAPUR AT BIJAPUR)
... APPELLANT
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
1. NAGAPPA
S/O MALLAPPA WADED
AGE: MAJOR
OCC: OWNER OF THE VEHICLE
R/O SAMARUDDI NAGAR
GALLI NO.5, SANGALI, TQ: MIRAJ
3
DIST: SANGLI - 416 416
(MAHARASHTRA STATE)
2. THE MANAGER
THE NEW INDIA INSURANCE COMPANY LTD
S.S. FRONT ROAD, BIJAPUR-586101
(ORIGINAL RESPONDENTS BEFORE THE
MACT NO.IV BIJAPUR AT BIJAPUR)
... RESPONDENTS
(BY SRI S.S. ASPALLI, ADVOCATE FOR R2
R1 - SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF THE MOTOR VEHICLES ACT, 1988
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
22.07.2014 PASSED IN MVC NO.1664/2011 ON THE FILE OF
THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.IV BIJAPUR AT
BIJAPUR AND ALLOW THIS APPEAL BY ENHANCING THE
COMPENSATION AMOUNT BY RS.8,54,583/- ONLY AS CLAIMED
BY THE APPELLANT BEFORE THIS HON'BLE COURT IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS BEING HEARD AND RESERVED FOR
JUDGMENT ON 12.04.2022, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
These two appeals are arising out of judgment and award dated 22.07.2014 in MVC.No.1664/2011 by which the Tribunal partly allowed the claim petition granting compensation in a sum of Rs.2,45,417/- with interest at 6% p.a. 4
2. While MFA.No.201670/2014 is filed by the Insurance company seeking dismissal of the claim petition, MFA.No.201063/2015 is filed by the petitioner for enhancement of compensation.
3. For the sake of convenience the parties are referred to by their rank before the Tribunal.
4. FACTS: The brief facts leading to filing of claim petition are that on 13.09.2011 (wrongly typed as 14.09.2011 throughout the claim petition as well as in the impugned judgment and award) at about 8.30 p.m., petitioner was travelling as a pillion rider on motor cycle bearing registration No.MH-10/AZ-4213 (hereinafter referred to as offending vehicle) from Umadi to Mangalweda. The rider of the motor cycle rode the same in a high speed, in a rash or negligent manner and near Shiundagi, the motor cycle fell into a ditch, as a result of which petitioner sustained grievous injuries. He was shifted to Ushahkal Nursing Home, Sangli. He has also taken treatment at other hospitals. In all he has spent 5 Rs.2,50,000/- for treatment. At the time of accident, he was doing agriculture and earning Rs.5,000/- p.m. After the accident, he is unable to earn as he used to, due to permanent partial disability. As the owner and insurer of the offending vehicle, respondents are jointly and severally liable to pay the compensation.
5. Respondent No.1 has filed written statement disputing that in the accident petitioner sustained injuries resulting in permanent partial disability and that he has spent Rs.2,50,000/- for treatment at Ushahkal Nursing Home and other hospitals. Petitioner has filed this petition to make wrongful gain. In the event of granting compensation, respondent No.2 may be directed to pay the same, as at the time accident the vehicle was duly covered by a valid policy issued by it.
6. Respondent No.2 has filed written statement disputing that the Tribunal is having territorial jurisdiction to decide the matter. It has also denied the involvement of the offending vehicle in the alleged accident. The offending 6 vehicle was not covering the risk of pillion rider. The rider of the offending vehicle was not holding a valid and effective license. The liability if any of respondent No.2 is subject to the terms and conditions of the policy. The compensation claimed under various heads is highly exorbitant, imaginary and without any basis and has sought for dismissal of the claim petition.
7. Based on these pleadings, the Tribunal has framed the necessary issues.
8. In support of his case, petitioner has examined himself as PW-1, the Doctor as PW-2 and the head constable of the jurisdictional police station as PW-3. He has relied upon Ex.P1 to 17.
9. On behalf of respondent No.2, RW-1 is examined and Ex.R1 is marked.
10. Vide the impugned judgment and award, the Tribunal has partly allowed the claim petition and granted compensation in a sum of Rs.2,45,417/- with interest at 6% p.a by holding that petitioner is injured in the motor 7 vehicle accident involving the offending vehicle and as owner and insurer of the same respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. The details of the compensation granted by the Tribunal is as detailed below:
Heads Amount
In Rs.
For Pain and sufferings 45,000
For extra nourishment 3,000
For attendant charges 4,500
For conveyance 5,000
For medical expenses 1,19,157
For loss of earning/permanent 53,760
disability
For loss of amenity 10,000
For future medical expenses 5,000
TOTAL 2,45,417
11. Respondent No.1 has not challenged the
impugned judgment and award.
12. Respondent No.2 has filed
MFA.No.201670/2014 contending that motor cycle bearing registration No.MH-10/AZ-4213 is not at all involved in the accident. There is inordinate delay of 27 days in filing the complaint and the same is not properly explained. As per Ex.P8 the discharge card, the date of accident is 8 13.09.2011, whereas according to the claim petition and all other documents including the evidence, the incident took place on 14.09.2011. As per Ex.P4 and 4(a) no damage is caused to the offending vehicle which clearly goes to show that the said vehicle is not at all involved in the accident. The compensation granted under various heads is on the higher side and sought for dismissal of the claim petition by allowing the appeal.
13. In this regard respondent No.2 has relied upon the following decisions:
(1) (2009) 1 Karnataka Accidents Claims Journal 500 Veerappa and another Vs. Siddappa and another.
(2) MFA.No.32075/2012 (MV) Akkanagamma and Ors. Vs. Siddanna and Ors.
(3) MFA.No.31112/2010 (MV) Mahadevi Vs. Devindra @ Devendrappa and 2 Ors.
14. On the other hand petitioner has filed MFA.No.201063/2015 contending that even though PW-2 Dr.Ajit Modak has assessed the disability of the right lower limb at 25% and whole body at 12.5%, the Tribunal has 9 erred in considering the whole body disability as only 7%. The Tribunal has also erred in considering the income of the petitioner at Rs.4,000/- as against Rs.5,000/- pleaded by him. The compensation granted under various heads is on the lower side and prays to enhance the same.
15. In support of his claim petition, petitioner has relied upon the following decisions:
(1) 2011 AIR SCW 1530
Ravi Vs. Badrinarayana and Ors.
(2) MFA.No.31539/2011 (MV)
Srishaila Dundappa Teli Vs. Mallinath and another (3) MFA.No.31627/2012 (MV) Sithawwa Bhimappa Madar Vs. Siddanna and Another (4) MFA.No.24953/2011 (MV) Kumar Shubham Vs. Siddalingappa and another
16. Heard arguments of both sides and perused the record.
17. It is pertinent to note that throughout the claim petition and during the entire trial before the Tribunal, the petitioner has pleaded and contended that 10 the incident took place on 14.09.2007. However, for the first time during the testimony of PW-3, he has taken up a plea that the accident occurred on 13.09.2011, but by mistake in the charge sheet the date of the accident is noted as 14.09.2011. In fact he has chosen to examine PW-3 only to establish the said fact. However, respondent No.2 has chosen to cross-examine PW-3 at length as to whether the Investigating Officer has taken any steps to correct the charge sheet by specifying the date of accident as 13.09.2011 instead of 14.09.2011. Now, it is to be examined whether the accident has taken place on 13.09.2011 or 14.09.2011.
18. The earliest version of the accident is forthcoming in the medical records. Ex.P5 is the medico legal certificate issued by Ushahkal Nursing Home, wherein it is stated that the petitioner i.e., patient was admitted on 14.09.2011 at 5.00 a.m. and the cause of the injuries is given as road traffic accident on 13.09.2011 at 8.30 p.m. and immediately, he has taken treatment at a private 11 hospital, Umadi and thereafter he was brought to the hospital at 5.00 a.m. of 14.09.2011. If the petitioner was admitted to the Ushahkal Nursing Home at 5.00 a.m. on 14.09.2011 in respect of the injuries sustained by him on the previous night at 8.30 p.m, necessarily the incident has taken place on 13.09.2011. It appears because he was admitted to the hospital at 14.09.2011, by mistake in the complaint which is given by a relative i.e., uncle of the petitioner, he has stated the date of accident as 14.09.2011 and consequently, in all the police records the date of accident is noted as 14.09.2011.
19. It appears in the claim petition also the advocate who has drafted it and which is based on the documents produced by the petitioner mainly the police records, by mistake the date of accident is repeated as 14.09.2011 instead of 13.09.2011. This appears to be on account of human error. It is nobody's case that the petitioner was injured on 14.09.2011 at 8.30 p.m. because by 5.00 a.m. of that day he was already admitted to the 12 hospital. Moreover, before the Tribunal the respondents have not raised any objection with regard to the date of incident being 13.09.2011 and not 14.09.2011. In fact PWs-1 and 2 have not been cross-examined on this aspect. Only after PW-3 was examined to clarify the date of accident, in the appeal memo respondent No.2 has taken up a defence with regard to the date of accident.
20. The next point of dispute raised by respondent No.2 is the delay in filing the complaint. The petitioner has relied upon the decisions referred to at para-15, wherein having regard to the facts and circumstances therein this Court has come to the conclusion that the delay is properly explained. In the light of the principles enunciated in these decisions, it is necessary to examine whether the petitioner has given a plausible explanation for the delay in filing the complaint.
21. It is relevant to note that on 13.09.2012 at 8.30 p.m. petitioner has sustained severe injuries which include injuries to his head, face, right hip, right thigh, 13 right knee and right leg. He was unconscious for a short time. He has taken treatment as in-patient from 14.09.2011 to 04.10.2011 for a period of 20 days. He has also undergone surgery. It appears even after discharge from the hospital, he was not in a position to move around and his relative has chosen to file a complaint on 10.10.2011. Taking into consideration the above aspects, the Tribunal has rightly accepted the explanation given for delay in filing the complaint and proceeded with the matter. He has not been cross-examined seriously on the aspect of delay. A suggestion is made to PW-1 that earlier he had filed another complaint and after concealing the said fact, he has chosen to file this complaint.
22. If at all petitioner had filed earlier complaint with a different version, it would be with the concerned police. It was not difficult for respondent No.2 to get the information of the said complaint and place the said version before the Court. Without undertaking the said exercise, respondent No.2 is simply disputing that the offending vehicle is not at all involved in the accident. In 14 fact as admitted by RW-1, respondent No.2 Insurance company has not made any independent investigation with regard to the said case. In the absence of placing any contrary material, it is not open to the respondent No.2 to dispute the fact of involvement of the offending vehicle. Thus, from this discussion I hold that the petitioner has properly explained the delay in filing the compliant.
23. So far the defence of the respondent No.2 regarding the Tribunal not having territorial jurisdiction, though the respondent No.2 in the written statement has taken up such a contention, PW-1 is not cross-examined on this aspect. Moreover, the office of respondent No.2 is situated at Bijapur (Vijayapura). Consequently, I hold that the Tribunal is having territorial jurisdiction to decide the matter. In the result appeal filed by the respondent No.2 fails.
24. So far as the decisions relied upon by respondent No.2 - Insurance company are concerned, having regard to the facts and circumstances therein it was 15 held that the said claims were fraudulent and consequently, the appeals filed by petitioners therein were dismissed upholding the judgment and award by the Tribunal. However, in the present case, respondent No.2 has failed to establish that the claim of the petitioner is fraudulent and therefore, these decisions are not applicable to the case on hand.
25. Now, coming to the appeal filed by the petitioner challenging the quantum of compensation granted under the following various heads.
26. Pain and suffering: The Tribunal has granted compensation in a sum of Rs.45,000/- under the head pain and suffering. As evident from the testimony of PW-2 and the medical records, petitioner has suffered (1) fracture of lower pole of petila (Rt) (2) comminuted displaced fracture of neck of femur (Rt) (3) comminuted displaced fracture of upper 1/3rd shaft of femur (Rt) and there were multiple abrasions over the face, head, nostril, right leg and various parts of the body. He was in-patient for 20 days and has 16 also taken further treatment. Taking into consideration these aspects, I hold that the compensation granted in a sum of Rs.45,000/- under this head is just and reasonable and it does not call for interference.
27. Medical Expenses: Based on the medical bills produced by the petitioner, the Tribunal has rightly granted compensation in a sum of Rs.1,19,157/- under this head and there is no scope for interference.
28. Extra nourishment, attendant charges and conveyance: Under these three heads, the Tribunal has granted compensation in a sum of Rs.12,500/- in total. I find no reason to interfere with this also.
29. Future medical expenses: The Tribunal has granted compensation in a sum of Rs.5,000/- under this head. The evidence of PW-2 establish the fact that petitioner requires a further surgery for removal of the implants and having regard to the nature of the injury sustained, it would be appropriate to enhance compensation under the future medical expenses to 17 Rs.10,000/- as against Rs.5,000 granted by the Tribunal. However, petitioner is not entitled for the interest on this amount.
30. Loss of amenities: The Tribunal has granted compensation in a sum of Rs.10,000/- under this head. Having regard to the nature of the injuries sustained which includes three fractures and period of treatment, I am of the considered opinion that it would be appropriate to enhance the compensation under this head to Rs.20,000/- as against Rs.10,000/- granted by the Tribunal.
31. Loss of future earnings: Though petitioner has claimed that he was earning Rs.5,000/-p.m., he has not produced any evidence to establish the said fact. In the absence of documentary evidence, the Tribunal has rightly taken his notional income as Rs.4,000/- and having regarding to his age, it has rightly taken the multiplier as
16. During the course of his evidence, PW-2 Dr.Ajit Modak has deposed that petitioner has suffered 25% disability of the lower limb and it works out to 12.5% of the whole 18 body. In case of disability of any particular limb, the whole body disability is to be taken at 1/3rd and therefore, the Tribunal has rightly taken the whole body disability at 7%.
31.1 However, the Tribunal has not granted any compensation towards loss of future prospects. As per the decision of the Hon'ble Supreme Court in Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram & Ors1, in case of permanent partial disability, loss of future prospects is to be calculated. Since the age of petitioner was 35 years as on the date of accident i.e., his age was less than 40 years and he was an agriculturist, the loss of future prospects is to be calculated at 40% of the income. 40% of Rs.4,000/- comes to Rs.1,600/-. Therefore, the notional income is required to be taken at Rs.5,600/- with the 16 multiplier and 7% disability and Rs.5,600/- as the notional income, the loss of future earnings is 5,600 x 12 x 16 x 7% = Rs.75,262/- as against Rs.53,760/- granted by the Tribunal.
1 (2018) 18 SCC 130 19
32. Compensation for laid up period: The Tribunal has not granted any compensation under this head. Having regard to the nature of the injury sustained and the treatment taken, it would be reasonable to expect that petitioner was under treatment for a period of two months and therefore, under this head he is entitled for compensation at the rate of Rs.4,000/- for a period of two months which works out to Rs.8,000/- and accordingly the same is granted.
33. Thus, in all petitioner is entitled for compensation in a sum of Rs.2,81,919/- as against Rs.2,45,417/- granted by the Tribunal as detailed below:
Heads Amount granted by Amount granted by the Tribunal (In Rs.) this Court (In Rs.) For Pain and sufferings 45,000 45,000 For extra nourishment 3,000 3,000 For attendant charges 4,500 4,500 For conveyance 5,000 5,000 For medical expenses 1,19,157 1,19,157 For loss of 53,760 75,262 earning/permanent disability For loss of amenity 10,000 20,000 For future medical 5,000 10,000 expenses TOTAL 2,45,417 2,81,919 20
34. Of course the petitioner is entitled for interest at 6% as granted by the Tribunal. To this extent the appeal filed by the petitioner deserves to be allowed in part.
ORDER
(i) MFA.No.201670/2014 is filed by the Insurance company is dismissed.
(ii) MFA.No.201063/2015 is filed by the petitioner is allowed in part.
(iii) Petitioner is entitled for total compensation in a sum of Rs.2,81,919/- as against Rs.2,45,417/- granted by the Tribunal together with interest at 6% p.a. on 2,71,919/- (i.e., petitioner is not entitled for interest on Rs.10,000/- future medical expenses) from the date of petition till realization.
(iv) Respondent No.2 is directed to pay the compensation together with interest at 6% p.a. 21 from the date of petition till realization (minus the compensation already paid/deposit) within a period of six weeks from the date of this order.
(v) The registry is directed to transmit the trial Court record along with copy of this order to the Tribunal.
Sd/-
JUDGE RR