Karnataka High Court
M/S. Oriental Insurance Company vs Sri.Jagadeesh Shetty on 17 February, 2020
Bench: Alok Aradhe, Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MFA NO.3552 OF 2014 (MV-I)
C/w
M.F.A.NO. 4475/ 2014 (MV-I)
IN M.F.A.NO.3552/2014:
BETWEEN:
M/s. Oriental Insurance Company,
Lakshmi Towers 200/3, 1st Floor,
R.V. Road, Bengaluru -560 004.
Through its Regional Office,
Leo Shopping Complex,
No.44/45, Residency Road,
Bengaluru -560 025.
Represented by its Regional Manager.
...Appellant
(By Sri. Umesh B.S., Advocate)
AND:
1. Sri. Jagadeesh Shetty,
S/o. D.V. Shetty,
Aged about 43 years,
R/at No.102/1,
22nd Cross, 2nd Main,
BTM Layout,1st Stage,
Bengaluru -560 076.
2. Sri. Suresh S/o. Siddegowda,
Aged Major, exact not
known to appellant,
M/s. Export Shoes, No.34,
2
South End Road,
Near Shanthi Talkies,
Basavanagudi,
Bengaluru -560 004.
...Respondents
(By Sri. Gurudeva Prasad K.D., Advocate for R1;
R2 served & unrepresented.)
This Miscellaneous First Appeal is filed under Section
173(1) of MV act against the judgment and award
dated:10.1.2014 passed in MVC No.6442/2004 on the file of the
VIII Additional Small Cause Judge, & XXXIII ACMM, Member
MACT, Bangalore awarding compensation of Rs.20,62,500/- with
interest at 6% pa.. from the date of petition till realization.
IN MF.A.NO.4475/2014:
BETWEEN:
Sri. Jagadeesh Shetty,
S/o. D.V. Shetty,
Aged about 43 years,
R/at No.102/1, 22nd Cross,
2nd Main, BTM Layout,
1st Stage, Bengaluru -560 076.
...Appellant
(By Sri. Gurudeva Prasad K.D., Advocate)
AND:
1. Sri. Suresh
S/o. Siddegowda,
Aged Major, exact not known to appellant,
M/s. Export Shoes, No.34,
South End Road,
Near Shanthi Talkies,
Basavanagudi,
Bengaluru -560 004.
2. M/s. Oriental Insurance Company,
Lakshmi Towers,
200/3, 1st Floor,
R.V. Road, Bengaluru -560 004.
... Respondents
(By Sri. B.S. Umesh, Advocate for R.2)
(R.1 served and unrepresented)
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This Miscellaneous First Appeal is filed under Section
173(1) of MV act against the judgment and award
dated:10.1.2014 passed in MVC No.6442/2004 on the file of the
VIII Additional Small Cause Judge, & XXXIII ACMM, Member
MACT, Bangalore partly allowing the claim petition for
compensation and seeking enhancement of compensation.
These appeals having been heard and reserved for
judgment on 11.2.2020, this day, RAVI V. HOSMANI J.,
delivered the following:
JUDGMENT
The M.F.A.No.3552/2014 is filed by M/s Oriental Insurance Company Limited, challenging the award dated 10.01.2014 in M.V.C. No.6442/2004 passed by the VIII Additional Small Cause Judge, & XXXIII ACMM, Member MACT, Bangalore (herein after referred to as "the MACT"), on ground of false involvement of the insured vehicle and also on quantum; whereas, the M.F.A. No.4475/2014 against the same award is filed by the claimants seeking for enhancement of the compensation.
2. The brief facts leading to filing of the above appeals are that, on 15.09.2004, the claimant- Jagadeesh Shetty was crossing Bangalore - Tumkuru road, near Dabaspet flyover, at about 9.00 p.m., when a motorcycle bearing registration No.KA-05-V-7639 4 belonging to Suresh s/o Siddegowda and insured with the Oriental Insurance Company Ltd., came in a rash and negligent manner and dashed against the claimant. As a result, the claimant sustained grievous injuries. He was shifted to Sri Tulasi Nursing Home, Dabaspet and thereafter he was shifted to Bharathi Hospital Tumakuru. During treatment, his right leg above knee was amputated. Claiming a compensation of Rs.50,00,000/-, M.V.C.No.6442/2004 came to be filed under Section 166 of the Motor Vehicles Act, 1988.
3. In the claim petition, the first respondent - owner though served, did not file written statement. The 2nd respondent-Insurance Company filed written statement, admitting the issuance of insurance policy in respect of the offending motorcycle, however, liability was denied on account of willful breach of terms and conditions by the insured. Accordingly, dismissal of the claim petition was sought.
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4. In support of the claim petition, the claimant examined himself as P.W.1 and one Dr. Tulasi Ram was examined as P.W.2. Exhibits P.1 to P.26 were marked. On behalf of the respondents one witness was examined as R.W.1 and Exhibits R.1 to R.6 were marked. The MACT vide impugned judgment held that the accident was caused on account of the rash and negligent driving by the rider of the motorcycle and passed an award assessing total compensation of Rs.20,62,500/- with interest at 6% p.a.
5. Shri. B.S. Umesh, learned counsel for the appellant in M.F.A. No.3552/2014 submitted that, the MACT had failed to take note of the fact that there is false implication of the vehicle and non-examination of the eye witness to the accident namely, his brother (as stated by him in the complaint) casts a doubt regarding the genuineness of the accident. Reliance has also been placed on the decision of the Hon'ble Supreme Court in the case of "ORIENTAL INSURANCE COMPANY LTD., VS. PREMLATHA SUKLA AND OTHERS, 2007, ACJ 6 1928" in support of submission that the claimant cannot accept only a portion of the contents of the document produced by him while ignoring the other portion. From Exhibit P.4 - the spot mahazar drawn on 16.09.2004, it was shown that, it noted the presence of the injured claimant at the accident spot. However, in his evidence, P.W.2 - Dr. Tulasi Ram has stated that the claimant was admitted in his Nursing Home on 15.09.2004. It was submitted that this was a material contradiction. It was further contended that Dr. Tulasi Ram had admitted in his evidence that normally a patient is kept under observation for 15 days prior to amputation. But, in this case, the amputation was done within one day from the date of the accident and no X-ray was taken prior to amputation. These material contradictions clearly indicated a false claim has been filed against the Insurance Company. In order to discredit the evidence of Dr. Tulasi Ram, reference was also made to a decision of this Court in M.F.A.No.7025/2011, disposed on 09.11.2015, wherein judicial notice of fraudulent claims, being filed was taken.
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6. While referring to the evidence of P.W.1- claimant, it was contended that there was an admission that there was no pedestrian crossing at the accident spot and the road was a national highway. Therefore, there was negligence on the part of the claimant.
7. On quantum, it was contended that the claimant was an income tax assessee and there was no loss of income. However, the income tax returns for the subsequent period are deliberately not produced to claim a higher compensation. It was also contended that though the MACT, on an earlier occasion, awarded only Rs.5,07,200/-, after remand, the MACT had enhanced it to Rs.20,62,500/- without assigning any cogent reasons.
8. On the other hand, Shri. Gurudev Prasad K.T., the learned counsel for the claimant submitted that from the suggestion by the respondent-Insurance Company in the cross-examination of P.W.1-claimant, that the accident was due to the own negligence of the claimant, deemed admission about the accident can be inferred. In 8 any case, as no contrary evidence was led, the MACT had rightly passed the award against it. However, the award was on the lower side and the same requires enhancement.
9. It was submitted that the MACT had erred in taking average of the income mentioned in the income tax returns, instead of taking the income mentioned in the income tax returns for the year 2003-2004 at Rs.2,64,880/- for assessing the compensation.
10. It was also contended that the MACT had not granted compensation towards the prosthetic limb and its maintenance, despite the bill at Exhibit P.13 was produced. It was also contended that no compensation was awarded towards loss of income during laid up period and Rs.50,000/- awarded towards loss of amenities was on the lower side.
11. We have considered the submissions made by the learned counsel for the appellant and have perused the record. With regard to the first contention regarding 9 false involvement of the vehicle and denial of the accident by the Insurance Company, the following suggestions made during the cross-examination of P.W.1 are material. The respondent No.2-Insurance Company has suggested that the claimant was not on the left side of the road. There is also a suggestion that there was no zebra crossing at the accident spot. There is a further suggestion that amputation of leg has not caused any disability in earning the future income of the claimant. In fact, the suggestion made during the cross -examination of P.W.1, that on 07.06.2013, the accident occurred at 9.00 p.m. on National Highway, clinches the issue in favour of the claimant. Thus, it is evident that the Insurance Company has not only admitted the accident, but also admitted amputation, though it denied loss of earning due to amputation of limb. Thus, in the absence of any evidence to the contrary, no interference is called for.
12. The next contention that, the higher compensation has been granted than in the previous award, without assigning any reasons is concerned, it is 10 to be noted that the MACT has to assess 'just compensation' and the earlier award having been set aside and the matter remanded for fresh determination, the only guiding factor for the MACT would be to determine 'just compensation' and there is no requirement for it to give any additional reasons for awarding more compensation. Therefore, the challenge to the award on the ground that higher amount of compensation has been awarded, without assigning any reason cannot be accepted.
13. Coming to the claim for enhancement of compensation, it is noted that the MACT has erred in determining compensation on the basis of the average income. Since the date of the accident is 15.09.2004, the income mentioned in the income tax returns for the year 2003-2004 has to be taken in to account for assessment of income of the deceased. From Exhibit P.18, it is noticed that Rs.2,64,880/- is shown to be the annual income and Rs.70,501/- was paid as income tax. Therefore, the amount income tax which was paid and a 11 further sum of Rs.2,400/- towards professional tax are required to be deducted out of Rs.2,64,880/-, yielding a net income of Rs.1,91,979/-. Since there is assessment of 60% loss of earning capacity by the Doctor, the annual loss of income would be Rs.1,91,979/- x 60% = Rs.1,15,187/-. The multiplier applicable to the age of the claimant would be 16. Hence, the total amount under the head of loss of future earnings would be Rs.1,15,187/- x 16 = Rs.18,42,998/-, which is rounded off to Rs.18,43,000/-.
14. Insofar as the claim for award of compensation towards prosthetic limb, it is seen that the cost of prosthetic limb is already included in the medical bills and has been awarded. However, an appropriate amount for its periodic maintenance and replacement has to be awarded. In the absence of any estimate, a lumpsum of Rs.50,000/- is awarded. The claimant is entitled for interest on the enhanced compensation at 6% per annum from the date of claim petition till the date of deposit. 12
In the result, the award passed by the MACT is modified to the extent indicated above. It is further directed that the amount in deposit in MFA No.3552/2014 is ordered to be transmitted to the MACT for payment.
The MFA No.3552/2014 filed by the Insurance Company is dismissed and the MFA No.4475/2014 filed by the claimant for enhancement is allowed in part.
Sd/-
JUDGE Sd/-
JUDGE Psg