Karnataka High Court
M/S Oriental Insurance Company. Ltd., vs Renducherla Bhimappa @ Boyabhimappa, on 11 February, 2013
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 11th DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
MISCELLANEOUS FIRST APPEAL NO.23928/2012(MV)
BETWEEN:
M/S ORIENTAL INSURANCE COMPANY LTD.,
BY ITS DIVISIONAL MANAGER, BELLARY.
...APPELLANT
(By SMT. ARUNA R. DESHPANDE, ADV.)
AND:
1. RENDUCHERLA BHIMAPPA
@ BOYABHIMAPPA
ALIAS BHIMAPPA, S/O SANJEEVAPA,
AGE 38 YRS., OCC: COOLIE
R/O MURADI VILLAGE,
TQ. RAIDURG, PRESENTLY
R/O MILLERPET DIST. BELLARY
2. SACHIN NAMDEO,
S/O KAMAL NAMDEO
DRIVER OF THE CAR BEARING
NO. MP 20 CA 0420 (ENGINE
NO.31E22007 AND CHASSIS
NO.MA 6A B6G765H J22050)
R/O PATALESHWAR, NEAR HANUMAN
MANDIR, NEAR RAVI KIRANA STORES
CHINDEWARA, MADHYA PRADESH.
3. SATHENDRA PETER, S/O ANIL PETER,
OWNER OF THE CAR BEARING
REGISTRATION NO. MP 20 CA 0420
(ENGINE NO.31E22007 AND CHASSIS
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NO.MA 6A B6G765H J22050)
R/O HOUSE NO.219 NEAR CMS CHURCH
COMPOUND, JABALPUR, MADHYA PRADESH
...RESPONDENTS
(BY SRI. MANJUNATH G. PATIL, ADV. FOR R1. R2 AND R3 ARE
SERVED AND UNREPRESENTED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT
AND AWRD DATED 02.07.2012 PASSED IN MVC NO.207/2012
ON THE FILE OF THE MEMBER, MACT-IX BELLARY, AWARDING
THE COMPENSATION OF RS.1,95,300/- WITH INTEREST AT THE
RATE OF 6% P.A. FROM THE DATE OF PETITION TILL THE DATE
OF DEPOSIT.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the insurer, assailing the judgment and award passed in MVC No.207/2012, dated 02/07/2012.
2. The relevant facts of the case are that on 31/10/2011, the first respondent claimant on completion of his work was proceeding near Gutturu village along with other coolie workers on the side of the road, at that time driver of the car bearing registration No.MP 20/CA 0420 came from Penagonda side and dashed against the 3 petitioner from behind. As a result, he fell down and sustained grievous injuries. He was admitted to Government Hospital, Penagonda. Thereafter, he took treatment at a private hospital also. Contending that he had sustained permanent disability, he filed the claim petition seeking compensation on various heads. The claim petition was contested by the respondent/insurance company as well as the owner of the vehicle. In support of his case, the claimant examined himself as PW-1 and examined Doctor Ashwini Kumar Singh J. as PW-2. He produced 34 documents which were marked as Exs.P-1 to P-34 while the respondent/insurance company did not let in any evidence except getting the copy of the policy marked as Ex.R-1. On the basis of the said evidence, the Tribunal held that the driver of the car was negligent in causing the accident and awarded compensation of Rs.1,95,300/- with interest @ 6% per annum excluding Rs.15,000/- towards future medical treatment. Being aggrieved by the said award, the insurance company is in appeal.
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3. I have heard the learned counsel for the appellant and the learned counsel for the respondent claimant and perused the material on record as well as the lower court records.
4. Two contentions are raised on behalf of the appellant. It is firstly contended that in the absence of there being any charge sheet against the driver of the vehicle, no negligence can be attributed to him. Therefore, the vehicle was not involved in the accident. It is next contended that the award of compensation is on the higher side and therefore the quantum of compensation has to be scaled down in this appeal.
5. Per contra, learned counsel for the respondent/claimant supporting the judgment and award has stated that there is no merit in this appeal.
6. Having regard to the rival contentions, the only point that arises for my consideration is as to whether the judgment and award of the Tribunal calls for any 5 interference in the light of the contentions raised by the appellant's counsel.
7. So far as fastening of liability on the driver of the car is concerned, The Tribunal has taken into consideration Ex.P-1-FIR, Ex.P-1(a) translated copy of the complaint, Ex.P-2-wound certificate, Ex.P-3 IMV report. These records have been perused by me. They categorically point out to the fact that the driver of the vehicle hit the respondent/claimant from behind and caused the accident. Therefore, even in the absence of any charge sheet being filed against the driver of the vehicle, the evidence on record is sufficient to come to the conclusion that the vehicle was involved in the accident and that the driver was negligent in driving the vehicle in a rash and negligent manner and thereby causing the accident. Therefore, the Tribunal was right in fastening the liability on the driver as well as the owner of the insurer of the vehicle.
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8. So far as the award of compensation is concerned, as per Ex.p-2, which is a wound certificate, it is noted that there is fracture of tibia and fibula on the left leg and fracture of calcanium bone on the right side. The opinion expressed is that the fracture to the left leg are grievous in nature. PW-2 is the doctor who has been examined. He has spoken about the disability sustained by the first respondent/claimant and also the nature of treatment which has been given. He has stated that in respect of these fractures, the respondent/claimant had undergone surgery and that there were implants in situ in the left leg. There was difficulty in movement of the ankle. That there is gross malunited left leg fracture of tibia and fibula and there is disability to an extent of 22%. The Tribunal has, however, assessed the whole body disability at 15%. It has assessed notional income of the claimant @ Rs.4,500/- per month as the accident has occurred in October 2011 and has awarded compensation of Rs.1,05,300/- on the head of loss of future earning 7 capacity. The award of the compensation on the various heads are as follows:
1. Pain and suffering 45,000/-
2. Towards medical expenses 10,000/-
3. Attendant charges 3,000/-
4. Towards nursing and nourishment charges 3,000/-
5. Loss of earning during the treatment period. 9,000/-
6. Compensation towards loss of future earnings 1,05,300/-
7. compensation amenities 5,000/-
8. Compensation towards future medical treatment 25,000/-
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total 1,95,300/-
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9. Having regard to the nature of the injuries sustained(3 fractures), the award on pain and suffering is just and proper. In fact, the award on the head of loss of income during treatment period, loss of amenities and also compensation towards future medical treatment are on the lower side. Therefore, the insurance company cannot have any grievance with regard to the quantum of compensation awarded by the Tribunal.
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In the result, there being no merit in this appeal, it is dismissed. The amount in deposit to be transmitted to the Tribunal.
SD/-
JUDGE kmv