Karnataka High Court
Lokesh N M vs The Manager on 26 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:29595
MFA No. 5420 of 2021
C/W MFA No. 561 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 5420 OF 2021 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 561 OF 2022(MV-I)
IN MFA NO.5420/2021
BETWEEN:
LOKESH N M
S/O MUDDABASAVAIAH
AGED ABOUT 44 YEARS,
R/AT NO.101, NADAKALAPURA
VILLAGE, KASABA HOBLI,
NANJEGOWDANADODDI POST,
MALAVALLI TALUK
MANDYA DISTRICT
...APPELLANT
Digitally signed by (BY SRI. NAIK KRISHNA VENKATARAMAN, ADVOCATE)
VEDAVATHI A K
Location: High
Court of AND:
Karnataka
1. THE MANAGER
RELIANCE GENERAL INSURANCE CO LTD
NO.3, 1ST FLOOR, MANANDI PLAZA
ST. MARKS ROAD,
BESIDE ST. MARKS HOTEL
BENGALURU-1
2. MR. DINESH KUMAR B M
MAJOR
NO.236/6, BAZAAR STREET
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NC: 2024:KHC:29595
MFA No. 5420 of 2021
C/W MFA No. 561 of 2022
ANEKAL TOWN AND TALUK
BENGALURU-58
...RESPONDENTS
(BY SRI. D.VIJAYAKUMAR, ADVOCATE FOR R1 (VC)
VIDE ORDER DATED:17/01/2024, NOTICE TO R2 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 02.08.2021 PASSED IN MVC NO. 2926/2019
ON THE FILE OF THE MEMBER, MACT, XVI ADDITIONAL
JUDGE, COURT OF SMALL CAUSES, BENGALURU SCCH-14,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.561/2022
BETWEEN:
THE MANAGER
RELIANCE GENERAL
INSURANCE COMPANY LIMITED
NO.3, 1ST FLOOR, MANANDI PLAZA
ST. MARKS ROAD,
BESIDE ST. MARKS HOTEL
BENGALURU- 560001.
REPRESENTED BY ITS MANAGER LEGAL
NO.28, 5TH FLOOR, EAST WING
CENTENARY BUILDING
MG ROAD
BENGALURU 560001.
...APPELLANT
(BY SRI. D.VIJAYAKUMAR, ADVOCATE (VC) )
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NC: 2024:KHC:29595
MFA No. 5420 of 2021
C/W MFA No. 561 of 2022
AND:
1. SRI. LOKESH N M
S/O MUDDABASAVAIAH
AGED ABOUT 45 YEARS,
R/AT NO.101, NADAKALAPURA VILLAGE,
KASABA HOBLI,
NANJEGOWDANADODDI POST,
MALAVALLI TALUK
MANDYA DISTRICT - 571 430.
2. MR. DINESH KUMAR B M
MAJOR
NO.236/6, BAZAAR STREET
ANEKAL TOWN AND TALUK
BENGALURU-58
...RESPONDENTS
(BY SRI. K.V.NAIK, ADVOCATE FOR R1 & R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 02.08.2021 PASSED IN MVC NO. 2926/2019 ON
THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL
CAUSES, BENGALURU SCCH-14, AWARDING COMPENSATION
OF RS.2,42,700/- WITH INTEREST AT 7 PERCENT P.A. FROM
THE DATE OF PETITION TILL REALIZATION.
THESE APPEALS, COMING ON FOR FURTHER HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
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NC: 2024:KHC:29595
MFA No. 5420 of 2021
C/W MFA No. 561 of 2022
ORAL JUDGMENT
MFA No.5420/2021 is filed by the claimant for enhancement of compensation, whereas MFA No.561/2022 is filed by the insurance company by challenging the liability in award passed by MACT, Bengaluru in MVC No.2926/2019 dated 02.08.2021 by the XVI Addl. Judge, Court of Small Causes, Bengaluru, (for short hereinafter referred to as 'Tribunal')
2. Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.1. Issuing notice to respondent No.2 is hereby dispensed with.
3. The appellant in MFA No.5420/2021 was petitioner and the respondents were respondents before the Trial Court. MFA No.561/2022 is filed by the respondent/Insurance company. The status of the parties before the Tribunal is retained for the sake of convenience.
4. The case of the petitioner is that, the petitioner filed petition under Section 166 of Motor Vehicles Act (for -5- NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022 short 'M.V. Act') claiming compensation of Rs.18 lakhs for injury sustained by him on road traffic accident dated 01.05.2019. It is alleged that on the said date at 3.30 p.m., when he was riding the motorcycle bearing Reg.No. KA-05-KK-4961 on Sathanoor pipe line road near Kollari Narayanappa saw mill, Sathanoor Hobli, Kanakapura Taluk, Ramanagar, at that time at that time, a private bus bearing Reg.No.KA-51-A-3139 driven by its driver in rash and negligent manner and dashed to the petitioner, due to which he has fallen down and sustained grievous injuries. Immediately he was shifted to Sathanoor Government Hospital, wherein he took first aid treatment and thereafter shifted to Kanakapura Government Hospital later shifted to NIMHANS hospital then Sanjay Gandhi hospital and took further treatment and was discharged from the hospital, due to the injury he has sustained disability. Hence claiming compensation on various heads.
5. The respondent No.2 owner of the vehicle was placed ex-parte. Respondent No.1/Insurance company -6- NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022 appeared through counsel and filed statement of objection by denying the rash and negligent driving of the accident in question and the liability. It is also submitted there is delay in lodging the complaint and the vehicle was falsely implicated. The claimant was not wearing any helmet and there is a contributory negligence. Hence, prayed for dismissal of the petition.
6. On the basis of pleadings, the tribunal framed the following issues for consideration:
"ISSUES
1. Whether the petitioner proves that, he sustained grievous injuries in the nature of permanent disablement on 01.05.2019 at about 3.30 p.m. on Sathanoor town, near Pipeline road, Sathanoor Hobli, Kanakapura Taluk, Ramanagara, in an accident arising due to rash and negligent driving of driver of private bus bearing Reg.No.KA-51-A-3139?
2. Whether the petitioner is entitled for compensation? whom? If so, how much and from
3. What Order or Award?"-7-
NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022
7. On behalf of the climant he himself examine as PW1 and examined the doctor as PW2 and totally got marked 15 documents. On behalf of the respondent, the RTO examined as RW1 and marked at Ex.R1. The Insurance Company official examined as RW2 and RW3. After hearing the arguments, the tribunal answered issue Nos.1 in affirmative and issue No.2 partly in affirmative and awarded compensation of Rs.2,42,700/- along with interest, which is challenged by the claimant for enhancement whereas insurance company filed appeal for questioning the liability.
8. Learned counsel for the Insurance Company has vehemently contended that there is delay three days in lodging the complaint and as per the records of the NIMHANS hospital, the petitioner fell down by skidding from the motorcycle, therefore after taking the three days consideration and deliberation they were falsely implicated the bus in order to claim the compensation. Therefore, on the delay and falsely implicating vehicle, the liability -8- NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022 cannot be fixed on the insurance company. Learned counsel further contended the vehicle is permitted to pass on the Bangalore but the vehicle had been driven in the pipeline of Ramanagara, which has no permit to travel on the said route. Therefore, on this ground there is violation of permit and the policy, therefore liable liability cannot be fixed. Learned counsel also contended, the policy itself is a fake policy and therefore prayed for allowing this appeal and dismiss claim petition.
9. Per contra learned counsel for the claimant has supported the fastening the liability on the insurance company contending that the injured was taken to the Kanakapura Government Hospital at that time it is categorically stated the accident occurred due to the dashing of the bus to the claimant and there was some mistake committed by the NIMHANS hospital and the insurance company took the advantage of the same and further contended there is permit as per the evidence of RW1 there is no mentioning in the permit therefore the -9- NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022 liability is rightly passed to the insurance company by the tribunal and also contended that the amount of compensation awarded by the tribunal is very meager and the income considered is also very meager. Hence, prayed for enhancing the same.
10. Having heard the arguments, perused the records, the point that arises for my consideration are,
1. Whether the tribunal is justified in fastening the liability on the insurance company?
2. Whether the appellant is entitled for enhancement of compensation, if so, what is the extent?
11. Upon hearing the arguments and on perusal of records, which reveals the petitioner said to be traveling in the motorbike bearing Reg.KA-05-KK-4961 on 01.05.2019 at 03:30 p.m., near Sathanoor pipe line road near Kollari Narayanappa saw mill, Sathanoor Hobli, Kanakapura Taluk, at that time the bus bearing Reg. KA-51-A-3139 came from opposite direction and dashed to the claimant.
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NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022 Immediately he was taken to the hospital at Sathanoor thereafter shifted to Kanakpura government hospital, then NIMHANS hospital and later to Sanjay Gandhi hospital. Of course the complaint was given by the wife of the claimant, after three days of the accident. The claimant has stated he was admitted to hospital due to head injury and other injuries. Therefore was unable to give complaint, later the wife of the claimant went to the police station and lodged the complaint by giving the number of the bus.
12. Learned counsel for the insurer has vehemently contended the bus has been falsely implicated after the due deliberation and delay of three days and the certificate was issued by the NIMHANS hospital reveals by skidding and falling down by the claimant by himself the injury is occurred. On perusal of the Ex.P.13, the just of the record available in the Ex.P13 the certificate or reference letter of the NIMHANS hospital where it is stated two-wheeler rider skidded and fallen down. In this regard, counsel for the
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NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022 claimant has stated it is a wrong entry mentioned by the hospital authorities by the NIMHANS hospital, whereas at first point of time he was admitted to the Kanakpura government hospital where it is clearly mentioned, the accident occurred due to the dashing of the bus. Therefore, during the pendency of the appeal, learned counsel for claimant produced certificate copy of the accident register extract. The counsel for the insurance company disputed the document. Therefore, this court summoned the Accident Register of the Kanakapura Government Hospital. Accordingly, the clerk of the Government Hospital Kanakapura by name Prajwal brought the accident register and produced before the court this court. This court after verifying in the open court and it was found there is entry on 1.5.2019, the injured was taken to the Kanakapura hospital due to the accident occurred by the bus. This document is the entered in the register of the Government Hospital Kanakpura on 1.5.2019 at an undisputed time. Subsequently, he was shifted to the NIMHANS hospital due
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NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022 to head injury, where there was mentioning in the record of the NIMHANS hospital. Later he was shifted to the Sanjay Gandhi hospital as impatient where it was clearly mentioned that the bus was hit to the two-wheeler and injury sustained. Therefore, the contention of the learned counsel for the Insurance Company cannot be acceptable that the bus was falsely implicated by the claimant after three days of the accident. On the other hand on the at the undisputed time, it is mentioned the accident register that the accident was occurred or caused by the bus. Of course the bus number was not mentioned by the hospital authorities. But later it was mentioned by the wife of the claimant.
13. As regards to the another contention raised by the Insurance Company that the permit is only for Banglore not to the Kanakpura, in this regard they examined RW1. The RW1 RTO office also has stated that the permit was given only to the Bangalore and vehicle cannot ply to Kanakapura Taluk, Satnur police station
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NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022 limit. However, in the cross examination, he has admitted regarding the route is mentioned in the book maintained by them in the RTO office and he has not brought the book and he has orally stated the permit is only for Bangalore. Therefore, the tribunal has held, when there is no document produced by the RTO to show the vehicle is permitted only to ply on the Bangalore and not to Kanakapura Taluk. Therefore the tribunal rightly fastened the liability on the insurance company, as there is no violation of permit. Therefore, I am of the view the accident occurred due to the rash and negligent driving of the bus and due to which, the claimant has sustained injury and there is no violation of any permit or license. Such being the case, the insurance company is liable to pay compensation and the finding of the tribunal does not require for any interference.
14. As regards to the computation of compensation in the claimants appeal, where the injured sustained grievous injury of 21% to the whole body. However, the
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NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022 tribunal taken only 10%. The income of the claimant was considered as Rs.10,000 for the accident occurred in 2019, normally the notional income should be taken Rs.14 000/- instead of Rs.10,000. However, the injury on he forehead and he was admitted for 22 days in the hospital and undergone surgery considering the facts and circumstances, I propose to take 15% of disability to the whole body instead of 10%. Accordingly, if Rs.14,000/- is income 12 x 14 x 15 % = Rs.3,52,800/- is the loss of future income.
15. The pain and agony tribunal awarded only Rs.20,000/- which is very less, therefore I propose to award Rs.50,000/- towards the pain and agony.
16. Medical expenses of Rs.14,640/- awarded is retained.
17. The loss of laid up charges of is granted for one month which is not correct for 42 days he was admitted therefore, at least two months laid up charges should to
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NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022 be paid hence Rs.14000 x 2 months = Rs.28000/- towards loss of laid up charges.
18. The loss of amenities, awarded for Rs.20,000/- is enhanced to Rs.30,000/-.
19. The food, nourishment etc awarded by the tribunal is only Rs.10,000 the claimants are from Mandya district and have taken treatment Sanjay Gandhi hospital, NIMHANS and various hospital. Therefore, they could have spent lot of amount towards food, nourishment, and other charges, therefore I propose to award Rs.30,000/- for food, nourishment and attendant charges.
20. The components awarded by this court are as below,
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NC: 2024:KHC:29595
MFA No. 5420 of 2021
C/W MFA No. 561 of 2022
Particulars Amount
in Rs.
Pain and suffering 50,000
Loss of future income 3,52,800
Food nourishment 30,000
Medical expenses 14,640
Loss of laid up 28,000
Loss of amenities 30,000
Total 5,05,440
21. Accordingly, I pass the following:
ORDER i. The appeal filed by the insurance company in MFA No.561/2022 is hereby dismissed. ii. The appeal filed by the claimant in MFA No.5420/2021 is allowed in part. iii. The judgment of the tribunal dated MVC No.2926/2019 dated 02.08.2021 by the XVI Addl. Judge, Court of Small Causes, Bengaluru, is hereby modified.
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NC: 2024:KHC:29595 MFA No. 5420 of 2021 C/W MFA No. 561 of 2022 iv. The claimant is entitled to a total compensation for a sum of Rs.5,05,440/- instead of Rs.2,42,640/- granted by the tribunal.
v. The enhanced compensation amount shall be paid by the respondent-Insurance Company with interest @ 6% per annum, within a period of two months from the date of receipt of a copy of this order; vi. The entire award amount is ordered to be released to the claimant.
vii. Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay; and viii. Draw award accordingly.
Sd/-
(K.NATARAJAN) JUDGE AKV_List _CT:SK