Karnataka High Court
M/S United India Insurance vs Sri Krishna B S on 21 December, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF DECEMBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.268 OF 2017(MV)
C/W
MFA Crob.No.171 OF 2018(MV)
IN MFA 268/2017
BETWEEN:
M/s. United India Insurance
Company Limited,
Branch Office,
J.C.Road, Sagar,
Now Rep. by its
Divisional Office,
B.H.Road, Shivamogga-577411.
Rep by its Divisional Manager.
.... Appellant
(By Sri. B.C.Shivannegowda, Adv. for
Sri.A.M.Venkatesh, Adv.)
AND
1. Sri. Krishna B.S.,
S/o Beerappa,
Aged about 41 years,
2
(R/o PWD Quarters
Neharu Field)
Now R/o Balegundi,
Sagar Taluk-577401.
2. Sri. Ganapathi,
S/o Bangarappa,
Aged about 46 years,
R/o J.C. Road,
Sagar Town-577401.
3. S.G.T.M.T., Co. Ltd.,
Sagar Branch, J.C. Road,
Rep by its Branch Manager,
Sagar-577401.
Respondents
(By Sri. Ganapathi, Adv. for R1:
Vide order dated:28.11.2017
Notice to R2 & R3 are dispensed with)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:01.10.2016
passed in MVC No.165/2011 on the file of the
Additional Senior Civil Judge and JMFC and Additional
MACT., 10, Sagar, awarding compensation of
Rs.27,72,480/- with interest at 6% p.a. from the date
of petition till realization.
IN MFA Crob.No.171/2018
BETWEN
Sri. Krishna B.,
S/o Beerappa,
Aged about 42 years,
(Now R/o PWD Quarters
Nehru Field)
3
R/o Balegundi, Sagar Taluk,
Shivamogga District-577 401.
...Cross Objector
(By Sri. Ganapathi, Adv.)
AND
1. Sri. Ganapathi,
S/o Bangarappa,
Aged about 48 years,
R/o J.C.Road, Sagar Town,
Shivamogga District-577401.
2. S.G.M.T. Co. Ltd., Sagar,
Reptd. By its Manager, Sagar,
Shivamogga District-577401.
3. The Branch Manager,
United India Insurance Co. Ltd.,
J.C.Road, Sagar Town,
Shivamogga District-577401.
...Respondents
(By Sri.B.C.Shivannegowda, Adv. for
Sri. A.M.Venkatesh, Adv. for R3:
Notice not ordered in respect of R2 & R3)
This MFA Crob. is filed under Order 41 Rule 22 of
CPC, against the judgment and award
dated:01.10.2016 passed in MVC No.165/2011 on the
file of the Additional Senior Civil Judge & JMFC,
Additional MACT-10, Sagar, partly allowing the claim
petition for compensation.
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This MFA & MFA Crob. coming on for admission,
through video conference, this day, H.T.Narendra
Prasad J., delivered the following:
JUDGMENT
MFA No.268/2017 is filed by the insurance company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) whereas MFA Crob. No.171/2018 is filed by the claimant under Order 41 Rule 22 of CPC being aggrieved by the judgment dated 29.01.2018 passed by the Motor Accident Claims Tribunal. Since, both, the appeal and the cross-objection arise out of the same accident as well as a common judgment, they were heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeal and the cross objection briefly stated are that on 19.06.2010 at about 10.30 p.m. the claimant was 5 proceeding on his motorcycle bearing registration No.KA-15/Q-0787 towards Sagar side. When he reached near Kowthi bus stand on Sorab road of Sagar, the driver of the bus bearing registration No.KA-15/4696 being driven by its driver at a high speed and in a rash and negligent manner, dashed against the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act on the ground that he was an employee of the PWD department and was earning Rs.9,741/- p.m. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.
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4. On service of notice, the respondent No.3 filed written statement in which the averments made in the petition were denied. It was pleaded that the respondent No.2 had no route permit to ply the passenger vehicle in the spot of the accident and thereby violated the terms and conditions of the insurance policy. It was further pleaded that the rider of the motorcycle drove the same in a rash and negligent manner and thereby fell down and sustained injuries. It was further pleaded that the claimant being the Government employee was having much influence over the concerned police. The age, avocation and income of the claimant and the medical expenses are denied. Hence, he sought for dismissal of the petition. The respondent Nos.1 and 2 did not appear before the Tribunal inspite of service of notice and were placed ex-parte.
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5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1, wife of the claimant as PW-2 and Dr.A.Raja as PW-3 and got exhibited 6 documents namely Ex.P1 to Ex.P6 and produced 7 documents namely Ex.C1 to C7. On behalf of the respondents, neither any witness was examined nor got marked any documents. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.27,72,480/- along with interest at the rate of 6% p.a. and directed the insurance company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed. 8
6. The learned counsel for the insurance company has raised the following contentions:
Firstly, it is not in dispute that after the accident the claimant has continued in his service and there is no loss of income due to the disability, the Tribunal is not justified in granting future prospects at Rs.9,35,136/-.
Secondly, the Tribunal has granted Rs.11,52,000/- for attendant charges without any basis and contrary to the oral and documentary evidence available on record.
Thirdly, the compensation awarded by the Tribunal at Rs.5,00,000/- under the head 'pain and suffering' is on the higher side.
Fourthly, the compensation awarded by the Tribunal under other heads are on the higher side. Hence, he sought for allowing the appeal filed by the insurance company.9
7. On the other hand, learned counsel for the claimant has raised the following counter-contentions:
Firstly, due to the accident the claimant has suffered grievous injuries. He has examined the doctor as PW-3, who, in his deposition has stated that the claimant has suffered right sided paralysis of hand and leg, he was not able to walk without any support and his speech was cerebral. The Tribunal taking into consideration the aforesaid aspects has rightly granted compensation of Rs.5,00,000/- under the head 'pain and sufferings'.
Secondly, even though claimant has been continued as Second Division Clerk in the PWD department, he is unable to do his day to day work, he has suffered 100% disability, he has to visit the office with the support of an attender. Therefore, the Tribunal, considering the evidence of the doctor and 10 also the claimant has rightly granted Rs.11,52,000/- under the head 'attendant charges'.
Thirdly, since the claimant has suffered 100% disability, there is loss of future earnings. Therefore, the Tribunal rightly granted compensation of Rs.9,35,136/- under the head 'future prospects'.
Fourthly, the compensation awarded by the Tribunal on the other heads are on the lower side. Hence, he sought for enhancement of compensation.
8. We have considered the submissions made by the learned counsel for the parties and have perused the records.
9. It is not in dispute that the accident has occurred due to rash and negligent driving of the offending vehicle by its driver. Due to the accident the claimant has suffered the following injuries:
(1) Head injury, waist 11 (2) fracture of both the thighs. (3) fracture of right hand (4) Lost site of right eyes.
(5) Right side hand and leg paralysis.
As on the date of the accident, he was working as a Second Division Clerk in the PWD Department and was earning Rs.9,741/- per month. It is not in dispute that after the accident he has continued in his service. Therefore, there is no loss of income due to disability. The claimant has examined the doctor as PW-3, who has deposed that due to the accident claimant has suffered paralysis of right side hand and leg. The claimant was unable to walk without any support and his speech was cerebral and he has taken two years treatment, he has neurological problem. Taking into consideration the evidence of the doctor and considering the age and avocation of the 12 claimant, the compensation awarded by the Tribunal under the head 'pain and suffering' is just and proper.
The claimant has suffered lot of pain during the treatment, he has taken treatment for more than two years and he has to suffer the disability and unhappiness throughout his life. Therefore, the claimant is entitled to compensation of Rs.5,00,000/- under the head 'loss of amenities'.
The Tribunal is not justified in awarding a sum of Rs.9,35,136/- towards future prospects, since, admittedly, after the accident claimant has continued in service as Second Division Clerk in PWD Department and getting a salary of Rs.9,741/- per month and therefore, there is no loss of future income. Hence, the compensation granted under the said head is disallowed.
The claimant has examined the doctor as PW-3. He has deposed that claimant has suffered right side 13 paralysis of the hand and leg, he was unable to walk without any support and his speech was cerebral and he has suffered neurological problem. The claimant in his deposition has stated that he needs an attendant to attend the office, he has to sustain the same throughout his life. Taking into consideration the evidence of the doctor and the claimant, we are of the opinion that the compensation awarded under the head 'attendant charges' has to be reduced from Rs.11,52,000/- to Rs.6,00,000/-.
The compensation awarded by the Tribunal under other heads remains unaltered.
10. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 5,00,000 5,00,000 Attendant charges 11,52,000 6,00,000 Loss of income during 1,65,344 1,65,344 14 laid up period Loss of amenities - 5,00,000 Disability 9,35,136 -
Conveyance, special 20,000 20,000
food
Total 27,72,480 17,85,344
The claimant is entitled to a total compensation of Rs.17,85,344/-.
The Insurance Company is directed to deposit the compensation amount along with interest within a period of four weeks from the date of receipt of copy of this judgment.
Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
The amount in deposit is ordered to be transmitted to the Tribunal, forthwith. 15
Accordingly, the appeal filed by the insurance company is allowed in part and the cross-objection filed by the claimant is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Cm/-