Karnataka High Court
The Divisional Manager United India ... vs Dnyanoba S/O Ambadas Kavade & Anr on 19 March, 2018
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19thDAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
MFA NO.200838/2015 (MV)
C/W
MFA NO.201157/2015 (MV)
MFA NO.200838/2015 (MV)
BETWEEN:
The Divisional Manager
United India Insurance Co. Ltd.,
S.S. Front Road, Sangam Building, Vijayapur
... Appellant
(By Sri Sanjay M.Joshi, Advocate)
AND:
1. Dnyanoba S/o. Ambadas Kavade
Age: 50 years, Occ: Business,
R/o. Aryachanakya Nagar, Solapur,
Now residing at KHB Colony, Solapur Road,
Bijapur - 586101.
2. Smt. Jamila Bano W/o. Basheer Khan
Aged about 47 years, Occ:Business,
R/o. Near Nahar, Swarup Ganj
Tq. Pindwara, Dist. Sirohi,
State,:Rajasthan - 307022.
... Respondents
2
(By Sri Basavaraj R.Math, Advocate for R1;
N/R2 D/w. V/o 09-03-2018 is held sufficient)
This MFA filed under Section 173 (1) of MV Act
praying to, call for the records set aside the judgement
and order dated:18.02.2015 passed by the MACT No.VI
Bijapur in MVC No.337/2013, awarding compensation
Rs.3,53,517/- and allow the appeal.
MFA NO.201157/2015(MV)
BETWEEN:
Dnyanoba S/o. Ambadas Kavade
Age: 50 years, Occ: Business,
R/o. Aryachanakya Nagar, Solapur,
Now residing at KHB Colony, Solapur Road,
Bijapur - 586101.
... Appellant
(By Sri Basavaraj R.Math, Advocate);
AND:
1. Smt. Jamila Bano W/o. Basheer Khan
Aged about 47 years, Occ:Business,
R/o. Near Nahar, Swarup Ganj
Tq. Pindwara, Dist. Sirohi,
State,:Rajasthan - 307022.
2. The Divisional Manager
United India Insurance Co. Ltd.,
S.S. Front Road, Sangama Building,
Bijapur - 586101
... Respondents
(By Sri Sanjay M.Joshi, Advocate for R-2)
(Notice to R-1 dispensed with V/o dated: 26-11-2015.
3
This MFA filed under Section 173 (1) of MV Act
praying to, call for the records and modify the impugned
judgement and award dated:18.02.2015 passed by the
MACT No.VI Vijayapur in MVC No.337/2013.
These appeals coming are on Admission this day,
the Court delivered the following:
JUDGMENT
These two appeals are filed by appellant-Insurance Company for reduction of compensation and the claimant for enhancement of the compensation against the judgment and award dated 18.02.2015 made in MVC.No.337/2013 on the Member MACT.No.VI, Vijayapura awarding compensation of Rs.3,53,517/- with interest at the rate of 6% per annum from the date of petition till the date of realization.
2. The facts of the case are:-
It is the case of the claimants hat on 29-07-2012 in the morning the claimant was proceeding towards 4 Arusha Chowk from Sairala of Solapur on his motor cycle bearing Reg. No.MH-13-Z-9549 in slow and moderate speed. Though he was on the extreme left side of the road at 8.00 a.m., on Solapur Bijapur road, infront of Jaisantoshi Mata Enterprises, a truck bearing Reg. No.MH-13-R-3627 was proceeding infront of the petitioner and the Truck bearing Reg. No.RJ-24/GA- 0785 came in a high speed in rash and negligent manner and dashed to the other truck. The planks of the said truck broken and hit the petitioner on his head and right leg. The accident took place due to rash and negligent driving by the driver of the lorry RJ-24-GA- 0785 came in a high speed rash and negligent manner. The police have registered a criminal case against the said driver of the truck. Due to the said accident, the claimant has sustained fracture of right inter condyler, right tibia, grievous injuries to head, forehead and injuries all over the body. The claimant was shifted to Dantakale hospital solapur, and shifted to Dr.Sanjay 5 Khairnar's hospital Solapur. He was taken treatment as in patient, underwent so many investigations, tests and operations. Inplants are put and medical treatment was given. He has spent more than Rs.1,00,000/- for medical treatment. Even after treatment he has not recovered and suffering from pain and follow up treatment is necessary. It requires more than Rs.75,000/- for such treatment. The claimant was 48 years, doing sand business and earning Rs.10,000/- per month due to the accident he is unable to do any work. The accident took place due rash and negligent driving of the truck driver. Therefore sought for compensation of Rs.14,45,000/- with interest as claimed.
3. The first respondent remained absent and placed exparte. The second respondent, Insurance Company appeared and filed written statement denying all the averments made in the claim petition and 6 contended that goods carriage permit is issued covering the package police. It is issued subject to terms and conditions. It was contended that the claimant is permanent resident of Solapur, the offending vehicle's insurance company is at Rajasthan. Therefore the Tribunal has no jurisdiction. It was denied that, accident took place near Solapur city due to rash and negligent driving of the truck, the accident was only due to rash and negligent riding of the motor cycle and another truck bearing Reg. No.MH-13-R-3627 without following traffic rules, it is driven. The allegations with regard to accident, date, place, age, income and occupation of the claimant are denied and further contended that the claim made by the claimant is exorbitant, high rate of interest is claimed. Therefore unless and until R.C., F.C., and permit are produced the respondent No.2 is not liable to pay the compensation and sought for dismissal of the claim petition.
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4. Based on the aforesaid rival pleadings, the Tribunal framed the following issues;
01. Whether the petitioner proves that, he has sustained injuries in a Motor Vehicle Accident that was taken place on 29-07-2012 at about 8.00 a.m., infront of Atar Nagar, Sindhu Vihar road, on Solapur to Bijapur road, only due to rash and negligent riding of the Truck bearing Reg. No.RJ-
24/GA-0785 by its rider as alleged?
02. What is just and reasonable compensation amount for which petitioner is entitled for? If so, what amount, what interest and from whom it is recoverable?
03. What Order?
5. In order to establish the case of the claimant, the claimant examined PW.1 and marked documents Ex.P.1 to 14. On the other hand respondent examined RW.1 and got marked 'R' series. 8
6. Tribunal considering the entire material on record, recorded a finding that due to the accident claimant has sustained fracture of right inter condyler, right tibia, grievous injuries to head, forehead and other injuries over the body due to rash and negligent driving by the driver of the truck bearing No.RJ/24-GA-0785 by impugned judgment and award dated 18.02.2015 awarded compensation of Rs.03,53,517/- with 6% interest from the date of petition till realization of compensation amount. Hence, the MFA.No.200838/ 2015 is filed by the Insurance Company for reduction of compensation and MFA No.201157/2015 filed by claimant for enhancement.
7. I have heard learned counsel for the parties to the lis.
8. Sri.Sanjay M.Joshi learned counsel for the Insurance Company vehemently contended that the Tribunal has no jurisdiction to proceed with the claim 9 petition since the claimant is resident of Solapur (Maharashtra State) and accident took place in Solapur and the respondent No.1 is resident of Rajasthan. Therefore the Tribunal has no jurisdiction to try the claim petition. He would further contend that, the Tribunal while considering the compensation with regard to imputation has taken into consideration loss of earning capacity for another 20 to 23 years under the Workmen's Compensation Act and taken disability to the extent of 25% of the whole body by fixing the same at Rs.1,75,500/- is incorrect and without any basis. He would further contend that, the amputation was not because of the accident, therefore the Tribunal was not justified in taking 25% to the whole body. He would further contend that, it is not the case of the claimant before the Tribunal that, he was suffering from gangrene alongwith diabetic foot and after the accident took place the right leg below the knee amputation because of the diabetic. In the absence of any material 10 document produced, the Tribunal was not justified in holding 25% of amputation because of the diabetic is not correct. He would further contend that, the impugned Judgment and award passed by the Tribunal awarding Rs.3,53,517/- is contrary to the material on record and highly exorbitant and liable to be reduced by allowing the appeal filed by the Insurance Company and to dismiss the appeal filed by the claimant.
9. Per contra Sri.Basavaraj R.Math, learned counsel for the claimant also filed appeal for enhancement and contended with regard to jurisdiction there is no bar to entertain the claim petition in view of the dictum laid down by the Hon'ble Supreme Court of India in the case of Malati Sardar V/s National Insurance Company Ltd., & others reported in 2016 AIAR (Civil) 161. He would futher contend that, PW.1 specifically stated on oath that he was suffering from diabetic even five years prior to the accident and he was 11 and due to the accident occurred and his right leg below knee was amputed because of gangrene. Therefore the amputation was made out of the accident occurred. He would further contend that, Ex.P.6 discharge card issued by Khairnar hospital, Solapur dated: 01-08-2012 clearly reveals that, petitioner was a diabetic and therefore insulin was given. He would further contend that, when the Tribunal ought to have taken 50% for the amputation. He would further contend that, the award made in respect of other heads is on the lower side. Therefore, he sought to allow the appeal by enhancing the compensation as prayed for and dismiss the appeal filed by the Insurance Company.
10. Having heard learned counsel for the parties, it is undisputed fact that the claimant has sustained fracture of right inter condyler, right tibia, grievous injuries to head, forehead and other injuries over the body on account of rash and negligent driving by the 12 driver of the truck bearing Reg. No.RJ-A24-GA/0785. The jurisdictional police have registered a criminal case against him. The same is evidenced by the oral evidence of PW.1 and material documents Ex.P.1 to Ex.P.3, statement of claimant, spot mahazar, Ex.P.5 medical certificate, Ex.P.6 discharge card and Ex.P.7 Charge sheet. The Insurance company has not challenged the adverse finding recorded by the Tribunal with regard to the accident occurred due to rash and negligent driving of the truck bearing Reg. No.RJ-24- GA-0785. PW.1 has specifically stated on oath that, he was aged about 48 years and he was earning Rs.10,000/- per month, but no documents were produced. Taking into consideration the accident occurred on 29-07-2012, the age of the claimant was 48 years, the Tribunal ought to have taken income of the claimant at Rs.6,500/- per month in the absence of any material document as recorded in the Lok-Adalat chart. 13
11. Sri.Sanjay M.Joshi learned counsel appearing for respondent No.2/Insurance Company vehemently contended that, the Tribunal at Vijayapur has no jurisdiction to try the claim petition since the accident occurred on 29-07-2012 at Solapur (Maharashtra State) and the claimant is resident of Solapur cannot be accepted in view of the dictum laid down by the Hon'ble Supreme Court of India in the case of Malati Sardar V/s National Insurance Company Ltd., & others reported in 2016 AIAR (Civil) 161.
3. Rash and negligent driving by the driver of the bus having been established, the Tribunal, applying the multiplier of 13 on account of age of the appellant being 47 years, and taking into account the income of the deceased and other relevant factors, fixed compensation of Rs.16,12,200/- with interest at the rate of 6% p.a. from the date of filing of claim petition vide its Award dated 7th February, 2012.
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4. The respondent company preferred an appeal before the High Court on the only ground of lack of territorial jurisdiction of the Tribunal. The objection of the respondent was that the accident took place at Hoogly and the claimant resided at Hoogly. Office of the respondent being at Kolkata did not attract jursdiction of the Kolkata Tribunal. Reliance was placed on the decisions of this Court in Union of India vs. G.S.Grewal 2014)7 SCC 303 and Jagmittar Sain Bhagar vs. Director, Health Service, Haryana(2013) 10 SCC 136 apart from the High Court judgements. The appellant supported the award by placing reliance on judgement of this Court in Mantoo Sarkar vs. Oriental Insurance Company Limited (2009) 2 SCC 244 apart from other judgements.
5. The High Court upheld the objection of the respondent and allowed the appeal of the respondent company and directed refund of the amount deposited/paid, if any, to the respondent company. It was observed.
"In the instant case admittedly the accident took place in Hoogly. The owner, 15 the respondent, too resides at Hooghly. Hoogly, no doubt, is beyond the territorial jurisdiction of the Tribunal at Kolkata. The argument of the respondent-claimant that the Kolkata Tribunal exercises jurisdiction since the regional office of the insurance company is situated within its territorial limits cannot be accepted as the last option under section 166(2) cannot be construed to mean the residential address of the company as a company can have a business or an office address and not a residential address. Therefore, the Tribunal at Kolkata had no jurisdiction to entertain the claim petition. In this regard we follow the principles of law laid down in New India Assurance Company Limited vs. Kustiwar Pramanik (supra) [2010(1) T.A.C.405(Cal), in Nirmala Devi Agarwal (supra) [2013(3) CLJ (Cal)] and in the unreported judgement delivered on 18th July, 2012 in FMA 724 of 2008 with C.O.T. 22 of 2008 (The New India Assurance Col. Ltd., vs. Silpi Dutta & 16 ors.) and we respectfully disagree with the judgement in FMA 1454 of 2013 (National Insurance Company Ltd. vs. Alpana Jana & ors.)
6. We have heard learned counsel for the parties.
7. Learned counsel for the appellant submitted that the High court was in grave error in holding that the Kolkata Tribunal could not exercise jurisdiction on the ground that registered office of the insurance company was within its territorial limits. Jurisdiction was available under Section 166(2) if the defendant/respondent in a claim petition was residing within the jurisdiction of the Tribunal. The residence in the case of juristic person included its Principal office. In any case, the view taken by the High Court is directly in conflict with the law laid down by this Court in Mantoo Sarkar (supra) under which the High Court could interfere in such cases only if three was failure of justice. The decisions of this Court could interfere in such 17 cases only if there was failure of justice. The decisions of this Court in G.S. Grewal and Jagmittar Sain Bhagat have no application to the fact situation at hand.
In view of the above dictum, the contention of the learned counsel Sri.Sanjay M.Joshi appearing for respondent No.2 Insurance Company cannot be accepted. Accordingly the same is rejected.
12. Insofar as other contention of the Insurance Company that the amputation was not because of the accident, but due to because of the treatment taken for more than one year later for some other reason it has been amputed, the same cannot be accepted for the simple reason that, the Insurance Company has not adduced any contra evidence to the evidence of PW.1 Though the PW.1 was cross-examined by the learned counsel appearing for respondent No.2/Insurance Company at length on 01-10-2013, he stood the fact 18 that was suffering diabetic and the amputation was made after the accident caused. In the cross- examination he has specifically stated that, he has stated about the history and particulars of the accident. It is true that, he has in-patient in Raut Hospsital and Dhanraj hospital after one year from the date of first discharge. There was no history of RTA mentioned in discharge card issued by Khairnar hospital Solapur. It is true that the Doctors from Raut hospital and Dhanraj hospital have issued certificates pertaining to my diabetic and gangrene. I have been suffering from diabetic since 5 years as per say of doctors. The statement made by PW.1 in his cross-examination on 01-10-2013 the accident is occurred on 29-07-2012, he was suffering from Diabetic in the year 2009. He further stated that, amputation to his right leg was not made due to accident, but it is on account of gangrene due to diabetic, the same is not in dispute. He further 19 stated that, it is false to suggest that he has created medical bills for compensation.
13. In view of the above, it is clear that amputation of right leg upto keen was amputed because of the diabetic after the accident. In the absence of any contra material produced by the Insurance Company to show that the amputation was made not because of the accident, because of the diabetic. The contention of the learned counsel for the Insurance Company cannot be accepted. One more circumstances as per Ex.P.6 discharge card issued by Khairnar Hospital on 01-08- 2012 clearly indicates that, as on the date of admission and discharge the claimant was suffering from diabetic. Therefore insulin injection was administered to PW.1 by the concerned Doctor i.e., from that date he was suffering from diabetic even before the accident automatically it was made to amputate right upto knee. Therefore the Tribunal ought to have taken into 20 consideration 50% as per serial No.20 of Schedule 1 Part II of the employees Compensation Act 1923 and the percentage to the loss of earning capacity would be 50%. Therefore the Tribunal ought to have taken 50% of the disability.
14. Insofar as the contention taken by the learned counsel appearing for the claimant that the income of the claimant was taken Rs.4,250/- when he was earning Rs.10,000/- per month. Taking into consideration the accident occurred on 29-07-2012, age of the claimant was 48 years the income of the claimant should be taken as Rs.6,500/- per month. Rs.6,500/- X 12 X 13 X 50% = Rs.5,07,000/- would be loss of future earning capacity.
15. The contention of the learned counsel appearing for the claimant that the Tribunal has proceeded to award compensation on other conventional heads is on the lower side has to be accepted after 21 verifying the impugned Judgment and award passed by the Tribunal.
16. After considering the entire oral and documentary evidence on record, the Insurance Company has not made out any ground to interfere with the impugned Judgment and award passed by the Tribunal. Accordingly, the appeal filed by the Insurance Company in MFA No.200838/2015 is dismissed.
17. In view of the aforesaid circumstances after re-assessing the entire material on record, the claimant is entitled to just compensation as under;
01. Loss of future earning Rs.5,07,000/-
02. Towards Pain and suffering Rs. 30,000/-
03. Towards Loss of amenities Rs.30,000/-
04. Towards laid up period Rs.6,500 X 4 Rs.26,000/-
05. Towards artificial leg Rs.25,000/-
06. Food, nourishment, transportation Rs.15,000/- Etc., 22
07. Medical bills Rs.1,28,767/-
Total Rs.7,61,767/-.
18. Thus the claimant is entitled to total
compensation of Rs.7,61,767/- as against
Rs.3,53,517/- awarded by the Tribunal.
19. For the reasons stated above, the appeal No.2011567/2015 filed by the claimant is allowed in part. The impugned judgment and award dated 18-02- 2015 made in MVC.No.337/2013 on the file Member MACT.No.VI, Vijayapur is modified holding that the claimant is entitled to total compensation of Rs.7,61,767/- as against Rs.3,53,517/- awarded by the Tribunal. The enhancement of compensation is Rs.4,08,250/- with interest 6% per annum from the date of petition till the date of realization. 23
Office is directed to transmit the amount in deposit made by the appellant-company to the jurisdictional Tribunal forthwith.
Sd/-
JUDGE MWS.