Raju Mallappa Kamble vs Vinod N Khadarwadkar
2021 Latest Caselaw 2432 Kant

     IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

          DATED THIS THE 28 T H DAY OF JUNE, 2021

                           BEFORE

         THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


                   M.F.A.No.24525/2013
               C/W M.F.A.No.24675/2013 (MV)

IN MFA 24525/2013

BETWEEN

THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO.LTD.,
CLUB ROAD , BELA GAVI,
REP.THROUGH ITS REGI ONAL OFFICE,
2 N D F LOOR, SRINA TH COM PLEX,
NEW COTTON MARKET, HUBBA LLI ,
REP.BY ITS ASSIS TANT MANAGER.
                                              ... APPELLANT
(BY SRI N .R.K UPPELLUR, ADVOCATE)

AND

1.     SRI RAJU MALLA PPA KAMBLE,
       AGE: 35 YEARS , OCC: MASON ,
       GAVANDI, R/O AMBEDKAR GA LLI ,
       KATGALLI, BELAGAVI.

2.     SHRI VINOD N.KHADARWADKAR,
       AGE: MAJOR, OCC: BUSINESS ,
       R/O JIJAMATA GA LLI,
       PARMESHWAR GALLI,
       YALLUR, BELAGAVI .
                                          ... RES PONDENTS
(BY SRI HARISH S .MAIGUR, ADV OCA TE FOR R1;
 SRI C.G.NA GASHETTY, ADVOCAT E F OR R2)
                              2




     THIS M.F.A . IS FI LED UNDER SECTI ON 173( 1) OF MOTOR
VEHICLES A CT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 29.08.2013 PASSED IN MVC NO.3099/2006 ON THE
FILE OF THE I A DDL. S ENIOR CIV IL JUDGE AND M EMBER,
ADDL.MACT, BELA GAVI, AWARDING THE COM PENSAT ION OF
RS.1,49,000/- WI TH INTEREST AT THE RATE OF 6% P.A. FROM
THE DATE OF PETITION TILL ITS REA LIZATION.

IN MFA 24675/2013

BETWEEN

SRI RAJU MALLA PPA KAMBLE,
AGE: 35 YEARS , OCC: MASON , PRES ENT NIL,
R/O AMBEDKAR GA LLI, KATGALLI, BELAGAVI,
TALUK AND DISTRICT: BELA GAVI.
                                              ... APPELLANT
(BY SRI HARISH S .MAIGUR, ADV OCA TE)

AND

1.    VINOD N.K HADARWADKAR,
      AGE: MAJOR, OCC: BUSINESS ,
      R/O JIJAMATA GA LLI,
      PARMESHWAR GALLI,
      YALLUR, BELAGAVI ,
      TAL & DIST: BELA GAVI.

2.    THE DIVISIONAL MANAGER,
      THE NEW INDIA A SSURANCE CO.LTD.,
      CLUB ROAD , BELA GAVI,
      TAL. & DIST: BELA GAVI.
                                          ... RES PONDENTS
(BY SRI C.G.NAGA SHETTY, ADV OCAT E FOR R1;
 SRI N .R.K UPPELLUR, ADVOCATE F OR R2)

     THIS M.F.A . IS FI LED UNDER SECTI ON 173( 1) OF MOTOR
VEHICLES A CT, 1988, AGAINST THE JUDGMENT AND AWARD
DATED 29.08.2013 PASSED IN MVC NO.3099/2006 ON THE
FILE OF THE I A DDL. S ENIOR CIV IL JUDGE AND M EMBER,
ADDL.MACT,   BELAGAVI,      PARTLY  ALLOWIN G    THE   CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATI ON.
                                  3




     THESE APPEA LS HAVING BEEN HEARD AND RESERVED ON
17.06.2021  THIS   DAY,  THE  COURT  PRONOUN CED  THE
FOLLOWING:

                             JUDGMENT

Challenging the judgment and award dated

29.08.2013 passed by I Addl. Senior Civil Judge and Addl.

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

No.3099/2006, these appeals are filed. MFA

No.24525/2013 is filed by the insurer on liability and

quantum while MFA No.24675/2013 is filed by the

claimant seeking for enhancement of compensation.

2. With the consent of the parties, appeal is taken

up for disposal.

3. Brief facts of the claimant's case are that on

04.09.2006, when the petitioner was walking by the side

of congress road near 3 r d railway gate, Tilakwadi at about

10.30 a.m. a motorcycle bearing registration No.KA-22/K-

7791 came in a rash and negligent manner and dashed

against the claimant from backside causing accident. Due

to the same, the claimant sustained grievous injuries and

was shifted to Dr.Motimath Hospital for treatment. Even

after taking treatment including surgery for which he

spent money, he sustained permanent physical disability.

As on the date of accident, he was a 28 years old mason

earning Rs.5,000/- per month and due to the disability

sustained he had lost earning capacity. Hence, he filed

claim petition under Section 166 of M.V. Act against the

owner and insurer of the offending motorcycle.

4. On receipt of summons, respondent No.1-owner

though admitted the accident, denied rash and negligence

on the part of the motorcycle rider. It was stated that

rider of the motorcycle was having valid driving licence

and the motorcycle was duly insured with respondent No.2

and the award if any, may be passed against respondent

No.2.

5. Respondent No.2-insurer at the outset denied

the accident and alleged that the claim petition was

fraudulent. Violation of policy conditions by the insured

was also alleged. On said grounds, the claim petition was

sought to be dismissed.

6. Based on pleadings, Tribunal framed following

issues:

1. Whether the petitioner proves that the alleged accident was occurred due to rash and negligent riding of the rider of Hero Honda No.KA-22/K-7991 and in the said accident he sustained bodily grievous injuries?

2. Whether the petitioner is entitled for compensation? If so, for what amount and from whom?

3. What order or award?

7. In order to prove case, claimant examined

himself as PW1 and Dr.S.H.Motimath as PW2 and an

eyewitness to the accident was examined as PW3. Exhibits

P1 to P18 were marked. On behalf of respondents,

insurance policy was marked with consent. No oral

evidence was led.

8. On consideration, the Tribunal answered Issue

No.1 in the affirmative, Issue No.2 partly in the

affirmative and Issue No.3 allowing the claim petition in

part, holding the claimant entitled for total compensation

of Rs1,49,000/- from respondent Nos.1 and 2 under the

following heads.

            1     Pain and suffering           Rs.30,000/-
            2     Medical expenses             Rs.10,000/-
            3     Loss of income during         Rs.3,000/-
                  treatment
            4     Conveyance,     food   and    Rs.5,000/-
                  attendant charges
            5     Loss of future earnings      Rs.86,000/-
            6     Loss of amenities            Rs.15,000/-
                  Total                      Rs.1,49,000/-

Aggrieved by the award, both the claimant and the insurer

have filed their respective appeals.

9. Sri N.R.Kuppellur, learned counsel for

appellant-insurer in MFA No.24525/2013 and counsel for

respondent No.2 in MFA No.24675/2013 submitted that

the appeal filed by the insurer was both on liability as well

as on quantum. It was submitted that the claim petition

was fraudulent and though no such accident as alleged

had occurred, by implicating the insured vehicle in

collusion with the owner and the police, a false claim

petition was sought to be foisted against the insurer.

10. Elaborating the same, learned counsel drew the

attention of this court to the delay of 40 days in filing the

complaint. The accident as alleged occurred on

04.09.2006 at 10.30 a.m. whereas Ex.P2-complaint was

registered at 2.00 p.m. on 15.10.2006, that too without

any explanation for the delay. Further Ex.P3-spot

panchanama was also conducted on 15.10.2006. The

Motor Vehicle Inspector's report at Ex.P4 did not indicate

any visible damage to the insured vehicle. It was further

submitted that though in Ex.P5-wound certificate, 'MLC'

endorsement is shown; no records for intimating the

police were produced. Ex.P18, the discharge summary of

the claimant showed clear attempt of tampering with

records by erasing certain entry. Though Dr.S.H.Motimath,

the doctor who treated the claimant was examined, he did

not offer any acceptable explanation for the corrections

made to the discharge summary. Even PW3, the

eyewitness stated in his cross-examination that within 15

minutes, the claimant's relatives came to the spot and

took him to hospital for treatment. Some time thereafter

police came to the spot, but did not enquired with PW3

about the accident. It was submitted that the above

material clearly established that no such accident as

alleged had occurred and a false claim petition was filed

by planting the insured vehicle.

11. Without prejudice to above contentions, learned

counsel submitted that even on quantum, the award

passed by the Tribunal was excessive and sought for

reduction.

12. On the other hand, Sri Harish S.Maigur, learned

counsel for claimant-appellant in MFA No. 24675/2013 and

counsel for respondent No.1 in MFA No.24525/2013

submitted that admittedly the accident occurred on

04.09.2006 in which claimant suffered grievous injuries.

He was immediately shifted to hospital for treatment from

04.09.2006 to 12.09.2006. His admission into the hospital

was with history of road traffic accident and therefore

'MLC' was endorsed on his admission. After discharge, and

verifying that no complaint was registered, without any

further delay, claimant filed complaint. It was submitted

that the claimant was under impression that police had

registered case against the owner and insurer based on

'MLC' intimation. Relying upon the decision of the Hon'ble

Supreme Court in the case of Ravi V/s Badrinarayan

and others reported in (2011) 4 SCC 693 submitted that

mere delay in lodging the FIR cannot be a ground to doubt

the claimant's case. Relying upon the decision in the case

of Saroj and others V/s Het Lal and others reported in

(2011) 1 SCC 388, submitted that an admission in

pleadings would bind the party and without specific

explanation regarding the admission and leading evidence

to the contrary, the effect of the admission cannot be

overcome. In the case on hand, the owner had admitted

the accident unequivocally in its objection. Drawing

attention of this court to Ex.P17, certified copy of the

order sheet in C.C.No.1513/2006, it was submitted that

the motorcycle rider had pleaded guilty and paid the fine

amount imposed by the court. Thus, the criminal

proceedings had ended in conviction of the rider for

causing the accident resulting in injuries to the claimant,

which established the claimant's case beyond reasonable

doubt. Thus, there was no substance in the insurer's

challenge.

13. It was further submitted that the insurer

despite taking a stand that a false claim was filed, did not

lead evidence and merely chose to mark the insurance

policy with consent. Thus, the finding of the Tribunal

regarding accident occurring due to the negligence of the

rider of the insured vehicle was fully justified and no

interference was called for.

14. Learned counsel further sought indulgence of

this court for enhancement of compensation. It was

submitted that the claimant was aged about 28 years and

working as mason. Ex.P6-certificate substantiated the

same. As per Ex.P6, the daily income of the claimant was

Rs.130/-. But the Tribunal assessed monthly income on

notional basis at Rs.3,000/- only. The same required

enhancement. It was further submitted that the multiplier

applicable would be '17', but Tribunal had applied

multiplier of '16'. Even the assessment of disability by the

Tribunal at 15%, though PW2-Doctor assessed it at 40%

to the right lower limb, was on the lower side. Even the

award towards pain and suffering, loss of income during

laid up period, incidental expenses and amenities were

meager and sought enhancement. On the above grounds,

learned counsel sought for dismissal of the insurer's

appeal and for allowing the claimant's appeal for

enhancement.

15. From the above, it is seen that there is dispute

about the manner of occurrence of the accident,

involvement of the insured vehicle as well as the injuries

and disability caused due to the accident. Even the

assessment of compensation is also under dispute. Hence,

the following points arise for consideration in these

appeals:

(1) Whether the finding of the Tribunal on Issue No.1 calls for interference?

(2) Whether the assessment of compensation by the Tribunal calls for modification?

16. In order to consider the contentions of the

respective parties, I have gone through the exhibits

carefully. Ex.P1 is the FIR, Ex.P2 is the complaint. In the

complaint, the manner of occurrence of the accident,

place of accident and the involvement of the insured

vehicle is clearly mentioned. Based on said complaint, the

Ex.P1-FIR is registered. Thereafter Ex.P3-spot

panchanama is conducted. The Motor Vehicle Inspector

has examined the vehicle and submitted his report as per

Ex.P4. The motorcycle is seized as per Ex.P14-

panchanama and the sketch of the accident spot is drawn

as per Ex.P15. After investigation, the police filed charge

sheet-Ex.P16-charge sheet. The accused, i.e., rider of the

motorcycle, appeared in the criminal proceedings and

pleaded guilty not only to the charge of rash and

negligent driving but also causing injury to the claimant.

Ex.P17 is the order sheet of the proceedings of the

criminal case. Moreover the insured in its objections

before the Tribunal also unequivocally admitted about the

occurrence of the accident as alleged and involvement of

the insured vehicle. Therefore, the challenge of the

insurer to the finding of the Tribunal regarding occurrence

of the accident is more vocal than substantive. Mere delay

in registration of complaint/FIR would not be fatal as held

in Ravi V/s Badrinarayan's case and even the ratio in

Saroj V/s Het Lal would also come into play in view of

admission by rider of motorcycle in criminal proceedings

and by the insured in its pleading before the Tribunal.

Therefore, in the absence of any specific evidence led by

insurer, the challenge would be only to cast doubt than

establishing that accident in question did not occur as

alleged and insured vehicle was not involved. Thus, Point

No.1 is answered in the negative.

17. Insofar as quantum of compensation, Ex.P5-

wound certificate indicates that the claimant sustained

three injuries, namely (1) swelling, pain, tenderness over

head of fibula and lateral condyle of right tibia; (2)

abrasions and cut lacerated wounds over right side of

forehead; (3) abrasions cut lacerated wounds over right

elbow. As per the opinion of the doctor, injury No.1 was

grievous in nature. Ex.P18 is the discharge summary of

the claimant. It indicates fracture of lateral condyle of

right tibia and fracture of head of fibula and that claimant

underwent operation on 06.09.2006. Ex.P12-disability

certificate dated 19.11.2007 apart from stating the above,

indicates the observations during clinical examination

namely, old fracture head fibula and lateral condyle.

Tenderness present over right knee. Moderate restriction

of right knee joint movements, 0 to 80 degrees flexion

possible and there was wasting of muscles of right thigh.

The permanent physical disability was assessed at 40%

and the particulars of the assessment is also mentioned.

The assessment is supported by x-ray films and

examination of the doctor who treated the claimant as

PW2. Nothing material is elicited during the cross-

examination of the doctor regarding disability except

eliciting that the x-ray and x-ray report taken at the time

of treatment are not produced. A suggestion that the

injuries mentioned in Ex.P18 were due to some other

cause than the accident, is denied. Considering the fact

that the claimant was working as a mason and there is

restriction of flexion of right knee beyond 80 degrees, the

claimant would have difficulty in performing his job while

sitting, squatting. Loss of muscle in right thigh is also

noted. Considering the same, in the light of the avocation

of the claimant, the assessment by the Tribunal of

functional disability at 15% taking into account the

assessment of permanent physical disability to the extent

of 40% to right lower limb does not appear to be either

excessive or unjustified. It is just and reasonable. Hence,

the same does not call for interference.

18. Insofar as monthly income, the accident had

occurred in the year 2006. The claimant though produced

certificate issued by Pooja Constructions (Ex.P6) about his

employment as mason on daily wage of Rs.130/-, the

author of the document is not examined. No other

document to corroborate the same is produced. Thus the

Tribunal was justified in assessing monthly income on

notional basis. However, the Tribunal assessed it at

Rs.3,000/-. As per the notional income adopted for

settlement of cases before Lok Adalath for the year 2006

is Rs.3,750/-, the monthly income taken by the Tribunal is

not commensurate. It is required to be taken at

Rs.3,750/-.

19. Considering the age of claimant at 28 years, the

multiplier applicable would be '17' as per decision in the

case of National Insurance Company Limited V/s

Pranay Sethi and others, reported in AIR 2017 SC

5157. Therefore, the Tribunal committed error in applying

'16' multiplier. In view of the above, the compensation

towards loss of future earning would be

Rs.3,750 x 15% x 12 x 17 = Rs.1,14,750/-.

The same is awarded to the claimant.

20. Apart from loss of future earning, the Tribunal

has awarded sum of Rs.30,000/- towards pain and

suffering. Admittedly claimant suffered two fractures.

Hence, the award would be on lower side. It would be just

and proper to award a sum of Rs.40,000/- towards the

same.

21. Considering the total amount for which medical

bills were produced, Tribunal has awarded Rs.10,000/-

towards medical expenses. There is no scope for

enhancement.

22. As the claimant took inpatient treatment for

about 10 days and might have been out of employment for

three months, he would be entitled to sum of Rs.3,750 x 3

= Rs.11,250/- towards loss of income during laid up

period and a sum of Rs.10,000/- towards incidental

charges.

23. Considering the young age of the claimant and

the loss of flexion of right knee beyond 80 degrees and

wasting of muscle mass in his right leg, sum of

Rs.15,000/- awarded towards loss of amenities would be

on lower side especially considering that the claimant

suffered two fractures which were malunited. Hence, a

sum of Rs.25,000/- is deemed just and proper. Thus, the

total compensation would be as follows:

          1        Pain and suffering             Rs.40,000/-
          2        Medical expenses               Rs.10,000/-
          3        Conveyance,       attendant    Rs.10,000/-
                   charges,    nutrition   and
                   other incidental charges
          4        Loss of earning during         Rs.11,250/-
                   treatment
          5        Loss of earning due to Rs.1,14,750/-
                   disability
          6        Loss of amenities              Rs.25,000/-
                                          Total Rs.2,11,000/-

Point No.2 for consideration is answered as above.

24. For the foregoing reasons, I pass the following:

ORDER

MFA No.24675/2013 filed by the claimant is allowed in part with costs, the compensation is enhanced to Rs.2,11,000/- as against Rs.1,49,000/- awarded by the Tribunal. The enhanced compensation shall carry interest at the rate of 6% per annum from date of claim petition till deposit.

Out of the enhanced compensation with interest, a sum of Rs.40,000/- is ordered to be kept in fixed deposit for a period of three years in any nationalized bank or postal deposit earning highest rate of interest. The balance amount shall be released to the claimant on proper identification.

MFA No.24525/2013 filed by the insurer is dismissed. The amount in deposit is ordered to be transmitted to the Tribunal for payment.

            The    insurer   is    directed       to    deposit       the
      balance     compensation      with     interest         within   a

period of six weeks from date of receipt of certified copy of this judgment.

SD JUDGE CLK