Karnataka High Court

Lokesha vs The Manager on 7 January, 2021

Author: H T Prasad

                        1



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.
                        2




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.)
                        3



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

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

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.

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

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

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.

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

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

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

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%.

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:

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.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

The amount in deposit before this Court, is