The Senior Divisional Manager vs Malappa S/O Sidappa Dharamatti
2021 Latest Caselaw 5632 Kant

  IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 07 T H DAY OF DECEMBER, 2021

                         BEFORE

        THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


               M.F.A.No.100582/2015 (MV)

BETWEEN:

THE SENI OR DIVIS IONAL MANAGER,
THE ORI ENTAL INS URANCE COM PANY LIMITED,
DIVISIONAL OFFICE, 2ND FLOOR,
MADIWALA ARCAD E, CLUB ROAD , BELAGAVI.
(INSURER OF TAT A ACE NO.KA-49/1669 POLICY
NO.472500/31/ 2013/ 493
VALID FROM 19.5.2012 TO 18.5.2013
REPRES ENTED BY ITS DEPUTY MANAGER,
THE ORI ENTAL INS URANCE COM PANY LIMITED,
AUTHORISED SIGN ATORY,
REGIONAL OFFICE, SUMANGALA COMPLEX,
LAMINGTON ROAD , DHA RWAD.
                                              ... APPELLANT
(BY SRI.G.N .RAICHUR, ADVOCATE)

AND

1 .   SRI.MALAPPA S/ O SIDAPPA DHARMA TTI,
      AGE: 37 YEARS , OCC: A GRICULTURE NOW NIL,
      R/O. MARAPUR, TA L: MUDHOL,
      DIST: BAGALK OTI.

2 .  SRI.MALLAYYA S/O GURUPADAYYA MATHAD,
     AGE: MAJOR, OCC: BUSINESS ,
     R/O. HALLUR, TA L: GOKAK ,
     DIST: BELA GAVI.
                                           ... RES PONDENTS
(BY SRI.N .L.BATA KURKI, ADV OCATE FOR R1)
(BY SRI. HANAMANT R. LATUR, ADV OCATE FOR R2)
                                2




     THIS MISC. FIRS T APPEAL IS        FILED UNDER    SECTI ON

173(1) OF MOTOR VEHICLES ACT , 1988, PRAYING TO CALL FOR

THE RECORDS AN D HEAR THE PARTIES AND SET AS IDE THE

JUDGMENT AND A WARD DATED 12.12.2014 PASSED BY THE III

ADDL. SR CIVIL J UDGE AND M.A .C.T BELAGAVI , BELA GAVI IN

MVC NO. 120/ 2013 BY ALLOWING T HIS APPEAL WITH COST IN

THE ENDS OF JUS TICE AND EQUITY.


     THIS APPEAL COMING ON F OR ADMISSION THIS DAY,
THE COURT , D ELIV ERED THE F OLLOW ING:


                            JUDGMENT

Challenging the judgment and award dated

12.12.2014 passed by III Addl. Senior Civil Judge and

Addl.M.A.C.T., Belagavi (for short, 'the Tribunal') in MVC

No.120/2013, this appeal is filed by the appellant/insurer

challenging the finding of Tribunal insofar as liability as

well as quantum.

2. Though this appeal is listed for admission, with

the consent of learned counsel for parties, it is taken up

for final disposal.

Learned counsel Sri.G.N.Raichur appearing for insurer at

the outset submitted that challenge insofar as liability

would not survive in view of decision of Hon'ble Supreme

Court in the case Mukund Devangan Vs. Oriental Insurance

Company Limited reported in (2017) 14 SCC 663 and also on

the ground that insurer's contention has been rejected in

MFA No.100583/2015 disposed on 09.04.2019 wherein

award in connected claim petition was challenged,

confining his challenge to quantum of compensation in

this case. Learned counsel submitted that in an accident

that occurred on 11.08.2012, when claimant was riding

his motorcycle bearing registration no.KA-48/H-5354 on

Mahalingapur to Siddapur road, driver of Tata ACE goods

vehicle bearing registration no.KA-49/1669 driven by its

driver in rash and negligent manner resulting in injuries

to the claimant. Claimant sustained following injuries:

1. Fracture of right scapula, right clavicle, multiple ribs right side .

2. Fracture co mminuted displaced distal shaft right ulna and right radius.

3. Fracture displace d and shaft right femur, un-displace d fracture neck fe mur.

4. Fracture base 5th metatarsal right foot.

5. Multiple fracture o f facial bones.

3. Claiming compensation for same, claimant had

filed claim petition against owner and insurer of Tata ACE

vehicle.

4. On contest, Tribunal had held that accident

occurred due to rash and negligent driving of goods

vehicle by its driver and assessed compensation of

Rs.12,34,680/- and held appellant/insurer liable to pay

same. Challenging the same, insurer had preferred this

appeal.

5. It was submitted that though claim petition was

a personal injury claim, Tribunal at the time of computing

compensation added future prospects without any

justification and same calls for interference.

6. Learned counsel further submitted that award of

Rs.1,00,000/- towards pain and suffering was excessive

and also award of Rs.20,000/- towards loss of expectation

in life, apart from award of Rs.20,000/- towards loss of

amenities was unsustainable.

7. Learned counsel further submitted that Tribunal

had assessed notional income of claimant at Rs.7,000/-

which was excessive. On above grounds, learned counsel

sought for allowing appeal.

8. On the other hand, Sri.N.L.Batakurki, learned

counsel for claimant/respondent supported award and

opposed insurers appeal. It was submitted that claimant

was an agriculturist aged 35 years owning irrigated

agricultural lands wherein he was growing commercial

crops and was earning more than Rs.25,000/- per month.

Therefore, Tribunal was justified in taking his monthly

income at Rs.7,000/-. It was submitted that claimant had

sustained several grievous fractures and considering

same, award towards pain and suffering and amenities

was appropriate and no interference was called for.

9. Learned counsel further submitted that as per

evidence of doctor/PW.4, there were implants which are

removable or require replacement and no amount was

granted towards future medical expenses. Learned

counsel strenuously submitted that claimant had sustained

severe physical disability and was unable to pursue his

occupation and therefore, award of future prospects was

also justified.

10. From above submissions, occurrence of

accident due to rash and negligent driving of Tata ACE

goods vehicle driver is not in dispute. Issuance of

insurance policy and its validity as on date of accident and

liability of insurer to pay compensation due to dismissal of

insurer's appeal in connected claim petition is also not in

dispute. Only dispute is regarding assessment of

compensation. Therefore, point that arises for

consideration is "Whether compensation assessed by

Tribunal requires modification as sought for?"

11. In order to establish injuries and disability,

claimant has produced wound certificate as Exhibit P.6,

laboratory report, admission records, CT-scan reports and

X-ray films, discharge summary etc. as Exhibits P.6, P.8

to P.39. In order to establish occupation and income,

claimant produced record of rights of lands belonging to

him. Exhibit P.45 is disability certificate produced by

claimant issued by PW.4/Dr.A.B.Patil. Claimant has also

examined author of disability certificate. PW.4/doctor has

deposed that

13. "claimant was treated by operative manage ment of right fe mur and conse rvative manage ment of o ther fractures. He has stated that the pe titione r has complained o f pain in right lower limb, difficulty fo r walking/standing on right lower limb and pain in right uppe r limb. He has stated that muscle wasting right le g 0.5cm, right thigh 1.00 cm, right forearm 0.5m and right arm 1.0 c.m. and there is shortening of right lower limb by 2.5 cms. He has stated that on clinical e xamination right shoulder jo int move ment flexition / extentio n-

restricte d by 25 degree, right shoulder jo int move ment adductio n/abductio n restricted by 30 degree , and right writ jo int movement palamar fle xion/ dorsal fle xio n re stricte d by 25 degree. The patient has suffered with standing for lo ng time on affected le g painful, walking and squatting painful and restriction o f right sho ulder movements. HE has state d that he has take n the X-ray on 11.09.2013. P.W .4 has stated that he has o bserved the functional disability as under:

1. Restriction o f right hip mo veme nts

2. Restriction of right shoulder and wrist jo int move ments.

3. Muscle wasting o f right thigh, leg, forearm and arm present.

4. Shorte ning o f right lo wer limb.

14. P.W.4 has stated conside ring the clinical and radio lo gical finding, acco rding to his opinion, the petitio ner go t permane nt physical disability amount to 40% to right lo wer limb and 30% to right upper limb.

12. Taking note of disability certificate issued by

PW.4 and the medical evidence on record, Tribunal

assessed loss of earning capacity at 23%. Considering

nature of injuries sustained, assessment of functional

disability at 23% by Tribunal appearance to be just and

proper and no interference is called for. Claimant was an

agriculturist, aged about 35 years owning agricultural

lands. Exhibit P.46 indicates that claimant was cultivating

land belongs to others on crop sharing basis. The

accident occurred on 11.08.2012, the notional income for

said period is Rs.6,500/-. As there is some evidence

regarding occupation of claimant, consideration of

Rs.7,000/-as monthly income on notional basis cannot be

said to be high or excessive or without any justification.

Therefore, no interference would be called for. Age of

claimant was 35 years, multiplier applicable would be 16.

However, Tribunal has added future prospects to the

income of claimant while computing compensation. As

this is a personal injury claim and disability assessed is

not substantial, calling for addition of future prospects,

Tribunal would not be justified in adding future prospects.

Therefore, future loss of income reassessed would be as

follows:

Rs.7,000 X 23% X 12 X 16= Rs.3,09,120/-

as against Rs.4,63,680/- awarded by Tribunal.

13. Claimant has sustained several grievous

fractures and minor fractures. PW.4/doctor has assessed

limb disability of 40% to right lower limb and 30% to right

upper limb. Considering same award of Rs.20,000/-

towards loss of amenities would be inadequate. At the

same time, award of Rs.20,000/- towards loss of

expectation of life though, under normal circumstances

would be unjustified, in the facts and circumstances of

this case, if it is considered as compensation towards loss

of amenities in addition to amount awarded, same would

not call for interference. Therefore, total re-assessed

compensation would be as follows: Rs.10,83,120/- as

against Rs.12,34,680/-.

14. Point for consideration answered partly in

affirmative as above.

15. In the result , I pass following:

ORDER

Appeal is allowed in part.

Compensation is reduced from

Rs.12,34,680/- to Rs.10,83,120/-.

Claimant would be entitled for

interest at 6% per annum from date of

claim petition till deposit.

Amount in deposit is ordered to be

transmitted to Tribunal for disbursement.

Appellant/insurer is directed to deposit

balance compensation with interest

before Tribunal within six weeks.

On deposit, Tribunal is ordered to

release 75% of compensation in favour of

claimant and keep 25% with accrued

interest in fixed deposit for a period of 5

years.

Sd/-

JUDGE

H MB