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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.6708 OF 2013(MV)
C/W
MFA No.4624 OF 2012(MV)
IN MFA 6708/2013
BETWEEN:
LOKESHA
S/O PUTTAYYA
AGED ABOUT 23 YEARS
DODDAMEDOORU VILLAGE
KASABHA HOBLI, BELUR TALUK
HASSAN DISTRICT-573 201.
... APPELLANT
(BY SRI.GIRISH B.BALADARE ADV. )
AND
1. THE MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
T.A.P.C.M.S. COMPLEX
K.M. ROAD, P.B. NO.68
CHIKMAGALRU.
REPRESENTED BY LOCAL OFFICE
THE ORIENTAL INSURANCE CO. LTD.,
S.S. COMPLEX, SUBHASH CIRCLE
HASSAN-573201.
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2. YOGESH
S/O VENKATAIAH
AGED ABOUT 31 YEARS
YAMASANDHI VILLAGE AND POST
KASABA HOBLI, BELUR TALUK
HASSAN DISTRICT-573 201.
... RESPONDENTS
(BY SMT. HARINI SHIVANDA, ADV. FOR R1:
R2 IS SERVED & UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:06.01.2012 PASSED IN MVC NO.105/2010 ON
THE FILE OF THE SENIOR CIVIL JUDGE, MACT,
BELUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSTION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA 4624/2012
BETWEEN
THE ORIENTAL INSURANCE CO. LTD.,
T.A.P.C.M.S. COMPLEX
K.M. ROAD, P.B. NO.68
CHIKMAGALRU-577101.
NOW REPRESENTED BY ITS
REGIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.,
SUMANGALA COMPLEX
2ND FLOOR, OPP:HDMC
LAMINGTON ROAD, HUBLI.
... APPELLANT
(BY SMT. HARINI SHIVANANDA, ADV.)
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AND
1. SRI. LOKESHA
22 YEARS
S/O PUTTAIAH
DODDAMEDUR GRAMA
KASABHA HOBLI, BELUR TALUK
HASSAN DISTRICT.
2. SRI. YOGESHA
30 YEARS
S/O VENKATAIAH
R/O YAMASANDI GRAMA POST
KASABA HOBLI, BELUR TALUK
HASSAN DISTRICT.
...RESPONDENTS
(BY SRI. GIRISH B BALADARE, ADV. FOR R1:
R2 IS SERVED AND UNREPRESENTED)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED:06.01.2012 PASSED IN MVC NO.105/2010 ON
THE FILE OF THE SENIOR CIVIL JUDGE, MACT.
BELUR, AWARDING A COMPENSATION OF RS.94,000/-
WITH INTEREST @ 8% P.A..
THESE MFAs COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.6708/2013 is filed by the claimant whereas MFA.4624/2012 is filed by the Insurance 4 Company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short). Since, both the appeals 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 appeals briefly stated are that on 20.02.2010 at about 4 p.m., claimant was proceeding by walk near Kandavara Village, at that time, motorcycle bearing Reg.No.KA- 17/W-7434, being driven by its rider at a high speed and in a rash and negligent manner, dashed against 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 working as a 5 coolie and was earning Rs.5,000/- per month. 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.
4. On service of notice, even though respondent No.1 appeared through his counsel, but not filed any written statement. The respondent No.2 appeared through its counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the driver of the offending vehicle was not holding valid and effective driving licence as on the date of accident. It was further pleaded that issuance of policy, if any, is subject to terms and conditions of the policy. Hence, he sought for dismissal of the petition. 6
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 and got exhibited 9 documents namely Ex.P1 to Ex.P9. Dr.K.P.Hebbar was examined as CW-1 and exhibited 4 documents through Court commissioner as Exs.C1 to C4. On behalf of the respondents, officer of the Insurance Company was examined as RW-1 and got exhibited 1 document namely Ex.R1. 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 rider, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.94,000/- along with interest at the rate of 8% p.a. and directed the Insurance Company to deposit the 7 compensation amount along with interest. Being aggrieved, this appeal has been filed.
6. The learned counsel for the Insurance Company has raised the following contentions.
Firstly, the vehicle involved in the accident in question was No.KA-17/W-7434. The claimant has implicated the vehicle bearing Reg.No.KA-17/U-743 to just claim compensation.
Secondly, the officer of the Insurance Company has been examined as RW.1, who has specifically stated that insured vehicle bearing No.KA-17/U-743 is not involved in the accident. In MLC register, subsequently the vehicle number is overwritten as KA- 17/W-7434 and also owner of the offending vehicle has been mentioned as 'hit by Yogesh', instead of 'Yogendra'. Therefore, it is very clear that claimant has implicated another vehicle to just claim compensation. The Tribunal without considering the 8 evidence of RW.1 and MLC register has wrongly fastened liability on the Insurance Company, which is contrary to materials available on record.
Thirdly, the fractures are reunited. The claimant has not made out a case that he has suffered loss of income due to disability. Considering the evidence of doctor and materials available on record, the Tribunal has rightly awarded just and reasonable compensation.
Fourthly, compensation awarded by the Tribunal under other heads is just and reasonable. Hence, he sought for allowing the appeal filed by the Insurance Company and dismissing the appeal filed by the claimant.
7. On the other hand, the learned counsel for the claimant has raised the following contentions.
Firstly, it is not in dispute that the owner of the vehicle is Yogesh, which is mentioned in MLC register. 9 While writing the vehicle number, by mistake the last number of the vehicle '4' has not been written and instead of 'W' it has been written as 'U'. After considering evidence of the parties and after perusal of MLC report-Ex.C1, the Tribunal has rightly held that vehicle involved in the accident number is KA-17/W- 7434.
Secondly, due to the accident, the claimant has suffered grievous injuries. He has examined doctor, who has assessed disability to the particular limb at 22.25% and whole body disability at 10%, the Tribunal has granted only Rs.20,000/- under the head of 'loss of income due to disability' which is on the lower side.
Thirdly, due to accident claimant has suffered injuries and he was inpatient for a period of 12 days. He has suffered lot of pain during treatment and he has to suffer with the disability and unhappiness 10 throughout his life. The compensation awarded by the Tribunal on other heads are on lower side. Hence, he sought for allowing the appeal filed by the claimant and dismissing the appeal filed by the Insurance Company.
8. Heard the learned counsel for the parties and perused judgment and award of the claims Tribunal and original records.
9. It is not in dispute that claimant has suffered injuries in a road traffic accident occurred due to rash and negligent driving of the offending vehicle by its driver. Due to accident, claimant has suffered fracture of left humerus and other simple injuries.
The specific case of claimant is that while he was coming from Belur to Kandavara village, rider of the motorcycle bearing Reg.No.KA-17/W-7434 ridden the same in a rash and negligent, at a high speed and hit 11 the claimant, due to which, claimant sustained injuries. Immediately, he was shifted to hospital. To prove his case, he has examined himself as PW.1 and has produced 9 documents. The Tribunal after considering evidence of claimant and considering Ex.P2-FIR and Ex.C1-MLC register has held that while writing vehicle number in the hospital record, instead of writing 'W' it has been written as 'U' and by mistake, the last digit number of vehicle '4' has been missed out. It is also not in dispute that name of owner of the vehicle has been mentioned as 'Yogesh' and further there is no dispute regarding vehicle involved in the accident i.e., motorcycle. Only difference is that last number of the vehicle has been missed out in the MLC register. It is also not in dispute that the police have registered FIR against driver of the vehicle bearing Reg.No.KA-17/W-7434 and charge sheet has been filed against driver of the 12 motorcycle bearing Reg.No.KA-17/W-7434. Taking into consideration the materials available on record, the Tribunal has rightly held that vehicle bearing Reg.No.KA-17/W-7434 was involved in the accident.
In respect of quantum of compensation is concerned, the specific contention of claimant is that he was earning Rs.5,000/- per month by doing coolie work. Taking into consideration the evidence of PW.1, the monthly income of claimant has been assessed as Rs.5,000/-.
Due to accident, claimant has suffered fracture of left humerus. He has examined Dr.K.P.Hebbar as CW.1, who has deposed that claimant has suffered disability at 22.05% to the left upper limb and 10% to the whole body. Taking into consideration the evidence of Dr.K.P.Hebbar-CW.1, I am of the opinion that whole body disability can be assessed at 7%. 13
At the time of accident, claimant was aged about 20 years and multiplier applicable to his age group is '18'. Thus, claimant is entitled for compensation of Rs.75,600/- (Rs.5,000*12*18*7%/100) on account of 'loss of future income' instead of Rs.50,000/- which has been awarded by the Tribunal.
In view of monthly income of claimant has been assessed at Rs.5,000/- and since the claimant was inpatient for a period of 12 days, and considering evidence of the doctor and wound certificate-Ex.P4, I am of the opinion that he is entitled for Rs.15,000/- (Rs.5,000*3) under the head of 'loss of income during laid up period'.
The compensation awarded by the Tribunal under other heads is just and reasonable.
10. Thus, the claimant is entitled to the following compensation:
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As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 25,000 25,000 Medical expenses 5,000 5,000 Food, nourishment, 5,000 5,000 conveyance and attendant charges Loss of income during 9,000 16,500 laid up period Loss of future income 50,000 75,600 Total 94,000 1,27,100 The claimant is entitled to a total compensation of Rs.1,27,100/-.
The Insurance Company is directed to deposit the compensation amount along with interest at 8% p.a. from the date of petition till the date of realization, within a period of four weeks from the date of receipt of copy of this judgment excluding interest for the delayed period of 484 days in preferring the appeal.
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To the aforesaid extent, the judgment of the Claims Tribunal is modified.
The amount in deposit before this Court, is ordered to be transmitted to the Tribunal, forthwith.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Mkm/-