The New India Assurance Co Ltd., vs Sri Gnanesha T S
2021 Latest Caselaw 2576 Kant

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 2ND DAY OF JULY, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                  M.F.A.NO.5233/2018 (MV)

BETWEEN:

THE NEW INDIA ASSURANCE CO. LTD.,
B.H.ROAD, TUMAKURU
REPRESENTED BY MOTOR THIRD PARTY CLAIMS HUB
MAHALAKSHMI CHAMBERS, NO.9
2ND FLOOR, M.G.ROAD
BENGALURU-560 001
REPRESENTED BY MANAGER.                   ... APPELLANT

            (BY SRI RAVISHANKAR C.R, ADVOCATE)
AND:

1.     SRI GNANESHA T.S.,
       AGED ABOUT 32 YEARS
       S/O SRI SHASHIDHARA MURTHY
       R/O THYAGATUR VILLAGE
       GUBBI TALUK
       TUMAKURU DISTRICT - 572 223

2.     SRI LOKESHA
       AGED MAJOR
       W/O SRI.GURUBASAIAH
       R/AT. TYAGATUR VILLAGE
       NITUR HOBLI, GUBBI TALUK
       TUMAKURU DISTRICT-572 102            ... RESPONDENTS

(BY SRI V.B.SIDDARAMAIAH, ADVOCATE FOR R1 (THROUGH VC)
             R2 - SERVED AND UNREPRESENTED)
                                   2



     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 14.03.2018
PASSED IN MVC.NO.38/2011 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MEMBER, ADDL. MACT-17, GUBBI, AWARDING
COMPENSATION OF Rs.7,87,172/- ALONG WITH INTEREST AT
THE RATE OF 8% FROM THE DATE OF PETITION TILL
REALIZATION.

    THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                          JUDGMENT

Though this matter is listed for admission today, with the

consent of both the learned counsel it is taken up for final

disposal.

2. This appeal is filed by the appellant/Insurance

Company challenging the Judgment and Award dated

14.03.2018 passed in M.V.C.No.38/2011 on the file of Senior

Civil Judge and Additional MACT-17, at Gubbi ('the Tribunal' for

short), questioning awarding of compensation of Rs.7,87,172/-

with 8% interest from the date of petition till realization by the

Tribunal.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The learned counsel appearing for the

appellant/Insurance Company would vehemently contend that

this Court earlier remanded the matter with regard to the short

question involved in the matter i.e., whether the injured has

continued the job or discontinued the job. The respondent has

not adduced any evidence in spite of the matter has been

remanded. Now, he has come up with an application filed under

Order 41 Rule 27 read with Section 151 of CPC, for production of

additional documents and they have not utilized the opportunity

given to him earlier.

5. The learned counsel for the appellant also would

submit that the Tribunal considering the earlier judgment while

answering issue No.2 subsequently vide judgment dated

14.03.2018 considered the earlier calculation made by the

Tribunal. Hence, the present appeal is filed.

6. Per contra, learned counsel appearing for respondent

No.1 would submit that the Insurance Company itself got

clarified from the employer of the claimant that he left the job in

the year 2009 itself and they were under the impression that

when the Insurance Company itself got it clarified that the last

working day of the claimant i.e., 30.09.2009 ought not to have

disputed the same. Hence, they did not lead any evidence before

the Tribunal.

7. Now, an application is filed under Order 41 Rule 27

read with Section 151 of CPC along with the three documents

i.e., original relieving letter dated 28.11.2009, original discharge

summary dated 4.11.2009 and photo copy of the letter dated

27.06.2018 indicating the last working day of the claimant i.e.,

30.09.2009.

8. Having heard the arguments of learned counsel

appearing for the appellant/Insurance Company and the learned

counsel for respondent No.1 and on perusal of the grounds

urged in the appeal and the materials available on record, the

points that would arise for consideration of this Court are:

(i) Whether an application filed by the respondent under Order 41 Rule 27 read with Section 151 of CPC requires to be allowed?

(ii) Whether the Tribunal has committed an error in awarding compensation of Rs.7,87,172/-

with 8% interest from the date of petition till realization by the Tribunal?

(iii) What order?

Point No.(i):

9. Having considered the grounds urged in the affidavit

filed along with an application-IA No.1/2019, it reveals that the

relieving letter was issued on 28.11.2009 and also the Insurance

Company got clarified vide letter dated 27.06.2018 that the last

working day of the claimant is 30.09.2009. Also, the earlier

order discloses that the matter was only remanded to know

about whether the claimant continued the job or left the job.

10. On perusal of these documents, it is clear that the

last working day of the claimant is 30.09.2009. Under the

circumstances, no need to remand the matter again. The

Insurance Company got it clarified the same vide letter dated

27.06.2018 and question of re-adducing the evidence and

remanding the matter does not require. Hence, I.A.No.1/2019 is

allowed.

Point No.(ii):

11. Having considered the material on record earlier also

compensation has been awarded Rs.7,87,172/- with 8% interest

from the date of petition till realization by the Tribunal.

Subsequent to the remand also, the claimants have not lead any

evidence. Hence, the order has been passed in the year 2018

reiterating the earlier compensation awarded. The dispute is only

with regard to whether he continued the job or discontinued.

The Tribunal also assessed the compensation on the head of loss

of future income taking the disability. The disability is also taken

to the extent of the Doctor as deposed while calculating the loss

of future income. In spite of remand made by this Court, further

evidence has not been adduced by the claimant. Now, the

documents produced before this Court are very clear that the

last working day of the claimant is 30.09.2009 and the same has

been got it clarified by the Insurance Company and the

supporting document is produced before the Court. Hence, the

compensation assessed by the Tribunal to the tune of

Rs.7,87,172/- is based on the material. Hence, I do not find any

reason to interfere with the findings of the Tribunal with regard

to the quantum of compensation is concerned. The learned

counsel for the appellant/Insurance Company also not dispute

the fact of discontinuation of the job.

12. The learned counsel for the appellant would

vehemently contend that the matter was earlier remanded at the

instance of the claimant only vide order dated 07.11.2017 and

no evidence has been adduced before the Tribunal and

ultimately, the Tribunal passed an order on 14.03.2018

reiterating the same, the same has been questioned before this

Court. The company is not liable to pay any interest during that

period. Hence, there is a force in the contention of the learned

counsel for the appellant that the claimant is not entitled for the

interest from the date of remand till the disposal of MVC

No.38/2011 for the reason that the matter got remanded at the

instance of the claimant.

13. The learned counsel for the appellant would

vehemently contend that the Company is not entitled to pay the

compensation till filing of application filed under Order 41 Rule

27 read with Section 151 of CPC. The said contention cannot be

accepted for the reason that the Insurance Company also aware

of the fact that the claimant discontinued the job from

30.09.2009 and the same has been clarified vide letter dated

27.06.2018 in terms of document No.3 addressing the said letter

to the Insurance Company. Hence, the very contention of the

learned counsel for the appellant cannot be accepted.

14. Having perused the material on record, the Tribunal

awarded interest at the rate of 8% p.a. and the same has to be

reduced to 6% p.a. as the matter of the year 2011; for one or

the other reason, the matter is also remanded and again re-

considered. Hence, interest at the rate of 6% p.a. is awarded by

this Court modifying the same.

Point No.(ii):

15. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal is allowed in part.

(ii) The Judgment and Award dated 14.03.2018 passed in M.V.C.No.38/2011 on the file of Senior Civil Judge and Additional MACT-17, at Gubbi, is modified reducing the interest from the rate of 8% per annum to 6% per annum from the date of petition till

realization unaltering the quantum of compensation.

(iii) It is made clear that the claimant is not entitled for the interest from the date of remand i.e., 07.11.2017 to 14.03.2018 (till disposal of MVC No.38/2011).

(iv) The Insurance Company is directed to pay the compensation amount within six weeks from today.

(v) The amount in deposit, if any, is ordered to be transmitted to the concerned Tribunal, forthwith.

      (vi)    The Registry is directed to transmit the
              records       to      the       concerned   Tribunal,
              forthwith.




                                                             Sd/-
                                                            JUDGE

cp*