Karnataka High Court
Manager vs K Govinda Bhat on 9 March, 2022
Author: Pradeeep Singh Yerur
Bench: Pradeeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR.JUSTICE PRADEEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.2861 OF 2019
C/W
MISCELLANEOUS FIRST APPEAL NO.8441 OF 2018
IN MFA NO.2861 OF 2019
BETWEEN:
SRI. K. GOVINDA BHAT
AGED ABOUT 60 YEARS,
R/AT. HOSAMANE,
NIDLE POST AND VILLAGE,
BELTHANGADY,
D.K.DISTRICT
NOW R/AT. C/O. VENKATAKRISHNA M.N,
BANGARADKA HOUSE,
ARYAPU POST AND VILLAGE ,
PUTTUR TALUK D.K. DISTRICT
PIN CODE -574 201.
...APPELLANT
(BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE )
AND:
1. SRI. SURESH M.
AGED ABOUT 45 YEARS,
S/O. LATE MANJUNATHA SHETTY,
R/AT. DEVASA, DODMANE,
MANUR POST AND VILLAGE,
UDUPI TALUK AND DISTRICT
PIN CODE - 576 101.
2
2. SMT. SUPRIYA
AGED ABOUT 33 YEARS,
W/O. PRADEEP SHETTY,
R/AT. PATEL HOUSE,
MANUR VILLAGE,
UDUPI TALUK AND DISTRICT.
PIN CODE-576 101.
3. THE MANAGER
THE IFCO TOKIO GENERAL
INSURANCE CO. LTD.,
REGD. OFFICE IFFCO SADAN,
C1 DIST, CENTRE, SAKET,
NEW DELHI -110 017 .
...RESPONDENTS
(BY SRI. B. PRADEEP, ADVOCATE FOR R3;
SRI. T.HAREESH BHANDARY, ADVOCATE FOR R1 AND
R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 02.04.2018 PASSED IN MVC NO.275/2016
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
A.C.J.M. AND MEMBER, MACT, PUTTUR, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OFCOMPENSATION.
IN MFA NO.8441 OF 2018
BETWEEN:
MANAGER
IFFCO TOKIO GIC LTD.,
REGD. OFFICE IFFCO SADAN,
C1 DISTRICT, CENTRE, SAKET,
NEW DELHI - 110017,
LEGAL MANAGER,
IFFCO TOKIO GIC LTD.
CUSTOMER SERVICE CENTER,
SRI. SHANTHI TOWERS,
5TH FLOOR, NGEF LAYOUT,
3
KASTURBANAGAR,
BANGALORE 560 043.
...APPELLANT
(BY SRI. PRADEEP.B., ADVOCATE )
AND:
1. K. GOVINDA BHAT
AGED ABOUT 60 YEARS
S/O. K. ISHWARA BHAT,
R/AT. HOSAMANE,
NIDLE POST AND VILLAGE,
BELTHANGADY TALUK D.K.
NOW R/AT. C/O. VENKATAKRISHNA M.N
BANGARADKA HOUSE,
ARYAPU POST AND VILLAGE,
PUTTUR TALUK.D.K. -574 201
2. SURESH M.
AGED ABOUT 47 YEARS,
S/O. LATE MANJUNATHA SHETTY,
R/AT. DEVASA, DODMANE,
MANUR POST AND VILLAGE,
UDUPI TALUK AND DISTRICT - 576 101
3. SMT. SUPRIYA
AGED ABOUT 35 YEARS,
W/O. PRADEEP SHETTY,
R/AT. PATEL HOUSE,
MANUR VILLAGE,
UDUPI TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI. RAJARAM SOORYAMBAIL, ADVOCATE FOR R1
SRI. T.HAREESH BHANDARY, ADVOCATE FOR R3 AND
R2)
----
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED: 02/04/2018, PASSED IN MVC NO.275/2016,
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE &
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ADDITIONAL CHIEF JUDICIAL MAGISTRATE AND MEMBER,
MACT, PUTTUR, AWARDING COMPENSATION OF
RS.2,76,000/- WITH FUTURE INTEREST AT THE RATE OF 6%
P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE APPEALS COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are preferred by the claimant as well as insurance company being aggrieved by the impugned judgment and award passed by the Principal Senior Civil Judge and ACJM and MACT at Puttur in MVC No.275/2016 dated 02.04.2018.
2. The claimant has preferred the appeal on the ground of inadequacy of compensation awarded by the tribunal, therefore, he sought for enhancement of compensation. The insurer has preferred the appeal seeking to set aside the impugned judgment and award passed by the tribunal on the ground that the compensation awarded by the tribunal is excessive and also on the ground that the rider of the motor cycle did not possess valid driving license as on the date of accident and hence, fixing the liability against the insurer is arbitrary.
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3. For the sake of convenience, the parties will be referred as per their respective status before the tribunal.
4. Brief facts of the case.
On 23.08.2015 at about 10:00 p.m., when the claimant was walking on the left side mud road portion by the side of NH 66 i.e., Thekkatte to Kota road and when he reached a place near Nadikeshwara Temple Cross road, Manur Village, Udupi Taluk, the rider of the motorcycle bearing registration No.KA-20-EG-2724 rode the same with high speed in a rash and negligent manner so as to endanger to the human life and infact without observing relevant traffic rules and regulations came to the left side of the road and dashed against the claimant. As a result of the said accident, the claimant suffered injuries all over his body. Thereafter, the claimant was shifted to KMC Hospital, Manipal, where he took treatment as an inpatient and underwent surgery on various parts of the body. Thereafter, he was discharged from the hospital and advised to take bed rest for the surgery having conducted on him.
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5. It is stated that prior to the date of accident, the claimant was aged about 58 years, he was hale and healthy and was working in Sri. Dharmastala Manjunatheshwara Kripaposhitha Yakshagana Mandali as a lead Yakshagana artist, a teacher and a Yakshagana troupe owner/an agriculturist and earning a sum of Rs.30,000/- per month.
4. It is stated that pursuant to the accident, the claimant has suffered disability and he is unable to perform his regular work as he was able to do earlier to the accident. He is unable to walk and climb steps and due to the accident, claimant has suffered physical disability, undergone pain and suffered mental agony. It is stated that the accident occurred solely due to the negligence on the part of the rider of the motor cycle, in view of that the claimant has suffered serious injuries and incurred medical expenses for his treatment. Hence, he filed a claim petition seeking compensation before the tribunal.
5. On notice being served to the respondents, who are the driver, owner and insurer of motorcycle, the respondent No.3 appeared through its counsel. Respondent 7 Nos.1 and 2 namely, rider and owner of the motorcycle remained absent and they were placed exparte. However, the insurer/respondent No.3 filed statement of objections denying the claim made by the claimant and disputed the accident which is having occurred due to the negligent riding of the rider of the motor cycle and also pleaded that the rider of the motor cycle did not possess valid and effective driving license as on the date of the accident. In view of the same, the insurer pleaded that insurance company would not be liable to pay the compensation to the claimant and the same would have to be saddled on the owner of the motorcycle.
6. On the basis of the pleadings, the tribunal framed relevant issues.
7. In order to substantiate and to establish the case, the claimant got examined himself as PW.1 and got marked documents as per Exs.P1 to P14. On the other hand, no evidence was adduced by the respondent-insurer except getting marked the insurance policy at Ex.R1 with consent.
8. On hearing the respective counsel for the parties and on analysing the entire material evidence both oral and 8 documentary, the tribunal came to the conclusion that the claimant is entitled to total compensation of Rs.2,76,000/- with interest at 6% per annum and the liability was fixed on respondent No.3/insurer.
9. I have heard the submissions of learned counsel for the claimant as well as learned counsel appearing on behalf of insurer and perused the original records including documents which were got marked before the tribunal.
10. Therefore, the point that arise for consideration would be:
"1. Whether the compensation awarded by the tribunal is just and reasonable?
2. Whether any enhancement is required to be made on the basis of claim made by claimant and whether compensation awarded by the tribunal is excessive or not as canvassed by learned counsel for insurer."
11. It is not in dispute that on 23.08.2015 at about 10:00 p.m. the claimant who was walking on the left side mud road portion of NH.66 road, he met with an accident, 9 due to the rash and negligent manner riding of the motorcycle bearing - KA-20-EG-2724 by its rider.
12. In order to prove the same, the claimant got marked documents as per Exs.P1 to 14. On perusal of these documents, it is not in dispute that the police have conducted the investigation and on enquiry registered a criminal case as against rider of the motorcycle and the same is not disputed by the respondents and no challenge is made to the said registration of criminal case against the rider of motor cycle namely, respondent No.1 by respondent No.3. In view of the same, when there is no dispute with regard to the registration of criminal case and thereafter, filing the final report as against the rider of the motor cycle, it can be safely concluded that rashness and negligent is attributed against rider of the motor cycle.
12. In order to establish the income of the claimant, no doubt, the claimant has stated that he is a Yakshagana Artist working in Sri Dharmastala Manjunatheshwara Kripaposhitha Yakshagana Mandali and along with that he is doing agricultural activity.
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13. However, admittedly no document has been produced to prove his income before the tribunal or even before this Court. In the absence of any such document of prove of income, the tribunal has left with no other option but to make a guess work with regard to avocation of the claimant and assessed the income based on the skill and nature of work which claimant is involved.
14. In the present case on hand, on the basis of Exs.P11 to 13, the tribunal has assessed the income of the claimant at Rs.15,000/- per month on the ground that the claimant is a Senior Artist and along with it, he is doing agricultural work. Though the claimant has claimed his income at Rs.30,000/- per month, the tribunal has assessed the same at Rs.15,000/- per month. This aspect of the matter is denied by learned counsel for Insurer and seeks for rejection of the same as there is no basis for awarding Rs.15,000/- per month as his income.
15. Per contra, learned counsel for claimant seeks enhancement of the same on the basis of Exs.P11 to P13 and the fact that the Insurer has not denied the avocation of 11 claimant being a Senior Artist in Yakshagana troop and being a teacher. In the absence of any material evidence being produced with regard to proof of income, the tribunal as well as this Court has left with no other option but to take a guess work and while doing this guess work, it is needless to mention that a reasonable approach will have to be adopted by this Court to arrive at and assess the income of the claimant based on his avocation which would be on the pleadings made by the claimant, so also, if there is any material evidence placed before this Court and on the basis of evidence of parties. In the present case on hand, the avocation of the claimant though is not in dispute, however, no cogent material evidence has been placed by the claimant to show his income is Rs.30,000/- per month and there is not even a piece of document to produce to show that he was earning even Rs.15,000/- which has been assessed by the tribunal. However, in the absence of such material evidence to decide and assess the income, it becomes difficult for this Court to accept the version of the claimant and so also the assessment made by the tribunal. In view of the fact that the insurer has also challenged the impugned judgment and 12 award on the ground of excessive income, I deem it appropriate to assess the income of the claimant at Rs.10,000/- per month, as per the legal services authority, the notional income chart prescribed for the accident year 2015 is Rs.9,000/-. In the present case on hand, though claimant has not produced any cogent evidence with regard to proof of income, in view of the fact that his avocation is that of Yakshagana Artist and a teacher, the same can be taken as a work of skill and income is to be marginally enhanced than the notional income prescribed by the legal services authority. Accordingly, the income is assessed at Rs.10,000/- as against Rs.15,000/- as assessed by the tribunal. It is also seen that the claimant has not examined the Doctor to show the loss of future income or any disability having occurred to the claimant which would affect his earning capacity in the future. Therefore, based on the same, the tribunal has rightly not awarded any income with regard to loss of future earning capacity. I am in agreement with the submissions and contentions canvassed by learned counsel for Insurer that the compensation under such heads would not arise, in view of non-examination of the Doctor and no 13 material evidence produced with regard to disability of loss of future earning capacity. The tribunal has awarded a sum of Rs.45,000/- under the head pain and suffering. Admittedly, the claimant has undergone (1) Pncenuacephalus with acute subdural Haemorrhage; (2) Lefort's type I and II on left side and III on right side and (3) Left distal 1/3rd Ulna fracture. Hence, I deem it appropriate that in the facts and circumstances, the compensation is on the lower side and same requires to be enhanced by Rs.10,000/- amounting to Rs.55,000/-.
16. The tribunal has awarded medical expenses at Rs.1,07,000/- as per the medical bills produced by the claimant as per Ex.P14 containing 39 medical bills and same is not interfered with as the actual amount is awarded by the tribunal. Under the head of loss of amenities, the tribunal has awarded Rs.25,000/-, I deem it appropriate to enhance the compensation by Rs.10,000/- amounting to Rs.35,000/-. Under the head of loss of earning during treatment period, the tribunal has awarded a sum of Rs.30,000/-. On consideration of the income at Rs.10,000/- per month, the same is proper and is not interfered with. It is not in dispute 14 that the claimant was admitted as inpatient for a period of 08 days and accordingly, the tribunal has awarded Rs.9,000/- towards attendant charges, conveyance and food and nutrition/nourishment charges and the same is also not interfered as it is proper and correct. The tribunal has also awarded future medical expenses at Rs.60,000/-. This aspect of the matter is vehemently disputed by learned counsel for the insurer on the ground that no medical evidence has been produced to prove or to establish that the claimant would require further medical treatment and that claimant has also not examined the Doctor to substantiate the same. However, learned counsel for claimant brings to notice of this Court Ex.P10-Certificate issued by KMC Hospital. Though author of the said document is not examined, however, the contents of the same cannot be ignored for the purpose of considering that the claimant has to undergo open reduction and internal fixation with LCP plate, which is quantified at Rs.60,000/-. However, I deem it appropriate that some amount would certainly be required for claimant to undergo surgery of open reduction and internal 15 fixation with LCP plate. Therefore, a sum of Rs.40,000/- is awarded as against Rs.60,000/- awarded by the tribunal.
17. Sri T.Hareesh Bhandary, learned counsel for rider and owner of two wheeler has filed a memo furnishing driving licence of rider of motor cycle which clearly establishes that as on date of occurrence of accident, the rider of motor cycle had valid and effective Driving Licence. As per Ex.P4, notice is issued by the RTO wherein the Driving Licence number is mentioned. In view of the same, it cannot be said that as on the date of occurrence of the accident, the rider of the motor cycle did not possess a valid driving licence.
18. In view of the above discussions and on hearing the erudite submissions of learned counsel for Insurer, claimant and rider-cum-owner of the motor cycle, I am of the opinion no cogent evidence is produced to show the loss of future income. Hence, the same cannot be enhanced. For the aforesaid reasons, I pass the following:
ORDER
i) Both the appeals are disposed of, as per the modification made above;16
ii) All other terms and conditions stipulated by the tribunal shall stand intact;
iii) The amount in deposit shall be transmitted to the concerned MACT for releasing of the same in favour of claimant, as per terms of the tribunal;
iv) Registry to return the records to the tribunal forthwith.
Pending application, if any, does not survive and the same shall stand consigned to records.
Sd/-
JUDGE HJ/LB