Karnataka High Court
The Branch Manager Bajaj Allianz ... vs Kalidas @ Satish S/O Ranganath And ... on 28 June, 2021
Author: S.G.Pandit And M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JUNE 2021
PRESENT
THE HON'BLE MR.JUSTICE S.G.PANDIT
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
M.F.A. NO.31375/2013
C/W
M.F.A. NO.31459/2013
IN MFA NO.31375/2013:
Between:
The Branch Manager
Bajaj Allianz General Insurance Co. Ltd.
2nd Floor, Hashmi Manzil
Madival Arked Club Road, Belgaum
Presently represented by its
The Assistant Manager
Bajaj Allianz General Insurance Co. Ltd.
VA Kalburgi Mansion,
Opp: Municipal Corporation
Lamington Road, Hubli-580 020
... Appellant
(By Sri Sudarshan M., Advocate)
And:
1. Kalidas @ Satish
S/o Ranganath Chandanshive
Aged about 32 years
Occ: Goundi Work
R/o at post Laxmi Takali
Taluk: Pandharpur, Dist. Solapur
2
Now R/at Rajaji Nagar
Bijapur - 586 101
2. Mrs. Savita W/o Kameshwar Singh
Aged about 42 years
Occ: Business & Owner of Truck
No. MH-12-EQ-2508
Taluk: Haveli, Phurasangi
Pune - 412 308
3. Datta S/o Sopan Devakate
Aged about 47 years
Occ: Business and Owner of
Indica Car No.MH-04/BQ-8138
R/o at post Degaon
Taluk: N. Solapur
Dist. Solapur - 412 280
4. Sachin Shankar Salunkhe
Aged about 47 years
Occ: Business
Insured of the Indica Car
No.MH-04/BQ-8138
R/o at post Korti
Taluk: Pandharpur
Dist. Solapur - 412 281
5. The Branch Manager
United India Insurance Company Ltd.
Sangam Building, S.S. Front Road
Bijapur - 586 101
... Respondents
(Sri Sanganagouda V. Biradar, Advocate for R1;
Sri S.B. Pattanshetty, Advocate for R2;
R3 is placed exparte;
R4 - served;
Sri Shivanand Patil Advocate for R5)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988, praying to set aside the
judgment and award dated 16.03.2013 passed in MVC
No.1239/2011 by the Motor Accident Claims Tribunal No.VII at
Bijapur.
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IN MFA NO.31459/2013:
Between:
Kalidas @ Satish
S/o Ranganath Chandanshive
Age: 32 years, Occ: Goundi Work
R/o Atpo-Takali, Taluk: Pandrapur
Dist. Solapur (MH)
Now R/at Rajaji Nagar
Bijapur - 586 101
... Appellant
(Sri Sanganagouda V. Biradar, Advocate
For Sri Sanganabasava B. Patil, Advocate)
And:
1. Mrs. Savita W/o Kameshwar Singh
Age: 42 years, Occ: Business
(Owner of Truck No.MH-12/EQ-2508)
R/o H.No.83, Shewale Wadi
Tq. Haveli, Phurasangi
Pune - 412 308
2. The Branch Manager
Bajaj Allianz General Insurance Co. Ltd.
2nd Floor, Hashmi Manzil
Madival Arked, Club Road, Belgaum
3. Datta S/o Sopan Devakate
Age: 47 years, Occ: Business
(Owner of the Indica Car
No.MH-04/ BQ-8138)
R/o A/p: Degaon, Tq. N. Solapur
Dist. Solapur - 413 001
4. Shri Sachin Shankar Salunkhe
Age: 47 years, Occ: Business
(Owner of Indica Car No.MH-04/BQ-8138)
R/o A/p: Korti, Tq. Pandrapur
Dist. Solapur - 413 001
4
5. The Branch Manager
The United India Insurance Co. Ltd.
Sangam Building, S.S. Front Road
Bijapur - 586 101
... Respondents
(Sri Sudarshan M., Advocate for R2;
Sri Shivanand Patil, Advocate for R5
Notice to R1, R3 & R4 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988, praying to set aside the
judgment and award passed by the Motor Accident Claims
Tribunal No.VII at Bijapur in MVC No.1239/2011 dated
16.03.2013 by modifying the impugned order and be pleased to
allow the claim petition by granting the relief as prayed for by the
appellant.
These appeals having been heard and reserved on
15.06.2021 coming on for pronouncement of judgment this day,
S.G.Pandit, J., delivered the following:
JUDGMENT
Both the above appeals are filed under Section
173 (1) of the Motor Vehicles Act (for short 'M.V. Act'),
assailing the judgment and award dated 16.03.2019 in
MVC No.1239/2011 on the file of Motor Accident Claims
Tribunal-VII at Bijapur (hereinafter referred to as 'the
Tribunal' for short). The Bajaj Allianz General Insurance
Co. Ltd. is in appeal in MFA No.31375/2013 challenging
the saddling of liability and the claimant is in appeal in
MFA No.31459/2013 praying for enhancement of
compensation.
2. The claimant-Kalidas filed a claim petition
under Section 166 of the M.V. Act, claiming
compensation for the injuries sustained in a motor
vehicle accident that occurred on 24.08.2011 involving
car bearing No.MH-04/BQ-8138 and lorry bearing
No.MH-12/BQ-2508. The claimant was inmate of the
car and when it was proceeding on Solapur-Pandhrapur
road and reached Degaon village, the car dashed to the
hind side of the lorry which was stationed in middle of
the road without any parking lights negligently and
dangerously, due to which deceased Sanjay Dethe and
Anil Khapale succumbed to the injuries, whereas the
claimant-Kalidas sustained grievous injuries. The
claimant stated that he was doing mason (goundi) work
and earning a sum of Rs.6,000/- per month. As on the
date of accident, the claimant was aged 30 years.
3. On service of notice, respondent No.1-owner
of the lorry filed written statement admitting the
ownership of the truck and further denying the claim
petition averments. Respondent No.2-insurer of the
lorry filed its statement stating that the claim petition
averments are false and vexatious. It also contended
that the Tribunal has no territorial jurisdiction. Further
it also denied the nexus between the accident involving
truck and the injuries sustained by the claimant in the
accident. Further it also contended that the driver of the
truck was not holding valid driving licence to drive the
truck as on the date of accident. The truck was halted
due to technical fault three days prior to the accident.
Therefore, putting indicators does not arise. The
accident occurred solely due to the rash and negligent
driving of the driver of the car. Respondent No.5-insuer
of the car filed written statement stating that the
accident had taken place in Maharashtra and the
Tribunal had no jurisdiction, apart from denying the
claim petition averments.
4. In respect of the accident in question, three
claim petitions had been filed and all the three claim
petitions were clubbed together, tried and common
judgment was passed. In all, PW.1 to PW.5 were
examined and documents Exs.P1 to P17 were marked.
Respondents examined RW.1 to RW.3 and Exs.R1 to R4
documents were marked. The Commissioner's report
was marked as Ex.CR1.
5. The Tribunal, on scrutiny of the material on
record, awarded total compensation of Rs.15,07,600/-
with interest at 6% p.a. from the date of petition till
deposit under the following heads:
1. Towards loss of future earning Rs.6,88,500/-
2. Towards pain and agony Rs.50,000/-
3. Towards medical expenses Rs.5,33,100/-
4. Towards incidental charges Rs.25,000/-
5. Towards attendant charges Rs.25,000/-
6. Towards future medical expenses Rs.50,000/-
7. Towards loss of earning during Rs.36,000/-
laid up period
8. Towards loss of amenities and Rs.1,00,000/-
unhappiness
Total Rs.15,07,600/-
While awarding the above compensation, the
Tribunal assessed the notional income of the claimant
at Rs.4,500/- per month, disability at 75% and applied
17 multiplier. The claimant, not being satisfied with the
quantum of compensation awarded by the Tribunal and
the insurer, questioning the liability, are before this
Court in these appeals.
6. Heard Sri Sudarshan M., learned counsel for
the insurer of the truck i.e., Bajaj Allianz General
Insurance Company Ltd., Sri Sangangouda V. Biradar,
learned counsel for the claimant and Sri Shivanand
Patil, learned counsel for respondent No.5-insurer of the
car, i.e., United India Insurance Company Ltd. Perused
the appeal papers and lower Court records.
7. Sri Sudarshan M., learned counsel for the
insurer of the truck submits that since the accident had
taken place in the State of Maharashtra, the Tribunal at
Bijapur had no jurisdiction to try the claim petition. It is
his submission that the claimant is also residents of
Pune and no part of cause of action has arisen within
the jurisdiction of the Tribunal. The learned counsel
further contended that the driver of the truck by name
Sri Abiman Kengar had no valid and effective driving
licence as on the date of accident. Further he submits
that in the FIR, Sri Abiman Kengar is shown as driver,
whereas while filing the charge sheet, along with
Sri Abiman Kengar, one Sri Nagendrasing is also shown
as driver of the truck. Thus, he submits that as the
driver shown in the FIR had no licence, there is violation
of terms and conditions of the policy. As such, the
insurer is not liable to pay any compensation. Lastly,
the learned counsel contended that the truck was
parked due to mechanical defect and it was parked as
such three days prior to the accident. It was parked on
the left side of the road and the accident occurred solely
due to the rash and negligent driving of the driver of the
car. Thus, there is contributory negligence which the
Tribunal failed to notice. With regard to the prayer of
the claimants for enhancement of compensation, the
learned counsel submits that the compensation
awarded by the Tribunal is just compensation and as
the claimant has not placed on record any material to
establish the income of the deceased, the Tribunal has
assessed the income of the deceased notionally at
Rs.4,500/- per month, which needs no interference.
Thus, he prays for allowing the appeal of the insurer.
8. Per contra, learned counsel for the claimant
submits that the contention with regard to jurisdiction
is no more res integra, as the Hon'ble Apex Court in the
case of Malati Sardar vs. National Insurance
Company Limited and others reported in (2016) 3
SCC 43 has made it clear that there is no bar to a claim
petition being filed at the place where the insurance
company which is the main contesting party has its
business. Further, the learned counsel submits that
Sri Nagendrasing was the driver of the truck and charge
sheet has been filed against Sri Nagendrasing and
Sri Abiman Kengar, cleaner of the truck.
9. Sri Nagendrasing was examined as RW.3
and has admitted in his evidence that he was the driver
of the truck. Further, he submits that the driver of the
truck had valid and effective driving licence which is
marked as Ex.R4 and as such there is no violation of
terms and conditions of the policy. He also invites
attention of this Court to evidence of PW.3 to state that
the truck was parked in the middle of the road. With
regard to enhancement of compensation he submits
that the income assessed by the Tribunal at Rs.4,500/-
per month is on the lower side and the Tribunal ought
to have assessed the income of the injured at
Rs.6,000/- per month. Further, the learned counsel
would submit that the injured is unable to sit, walk and
stand. The Tribunal has assessed the disability at 75%
even though the doctor has deposed that the injured
suffers from 100% disability. Further the doctor has
also stated that the patient would not recover from
disability. As the claimant would not be in a position to
move and stand, he would be entitled for compensation
on the head of future prospects and in this regard, the
counsel for the claimant banks upon the decision of the
Hon'ble Apex Court in the case of Kajal vs. Jagdish
Chand and others reported in (2020) 4 SCC 413. The
claimant was inpatient for treatment for nearly 150
days at different intervals. As the claimant is unable to
move or stand without the assistance of attendant, the
claimant would be entitled for compensation on the
head of attendant charges. It is also submitted that the
compensation awarded on the head of future medical
expenses and on other heads are also on the lower side.
Thus, he prays for enhancement of the compensation.
10. Sri Shivanand Patil, learned counsel for the
insurer of the car submits that rightly no liability is
fixed on the insurer of the car and the accident had
taken place solely due to the negligent parking of the
truck in the middle of the road. Thus, he supports the
findings of the Tribunal.
11. Having heard the learned counsel for the
parties and on perusal of the material on record, the
question that arise for consideration is with regard to
liability of the insurer of the truck and the entitlement
of the claimant for enhancement of compensation.
12. The accident that occurred on 24.08.2011
involving car bearing No.MH-04/BQ-8138 and truck
bearing No.MH-12/EQ-2508 and the injuries sustained
by the claimant are not in dispute in these appeals. The
insurer of the truck is before this Court questioning the
saddling of liability on it and the claimant is in appeal
praying for enhancement of compensation.
13. The insurer of the truck contended that as
the accident had taken place at Maharashtra, the
Tribunal at Bijapur had no jurisdiction to try the claim
petition filed under Section 166 of the M.V. Act. This
question, as submitted by the learned counsel for the
claimant is not in res integra.
14. The Hon'ble Apex Court in the case of
Malati Sardar (Supra), noting Section 166(2) of the
M.V. Act and the judgment in Mantoo Sarkar v.
Oriental Insurance Co. Ltd. [(2009) 2 SCC 244] at
para 14 has held as follows:
"14. We are thus of the view that in the
face of the judgment of this Court in Mantoo
Sakar, the High Court was not justified in
setting aside the award of the Tribunal in the
absence of any failure of justice even if there
was merit in the plea of lack of territorial
jurisdiction. Moreover, the fact remained that
the Insurance Company which was the main
contesting respondent had its business at
Kolkata."
15. In the instant case also, even though the
accident had taken place in the State of Maharashtra,
both respondent Nos.2 and 5 - insurers of the truck and
car respectively are having Branch Office at Bijapur and
they are carrying on their business within the
jurisdiction of the Tribunal. Hence, the contention of the
insurer that the Tribunal had no jurisdiction to try the
claim petition fails and accordingly the same is rejected.
16. The insurer of the truck contended that the
driver of the truck had no valid and effective driving
licence as on the date of the accident, as such there is
violation of terms and conditions of the policy. It has
come on record in the evidence that Sri Nagendrasing
was the driver of the truck and Sri Abiman Kengar was
cleaner of the truck. It has also come on record in the
evidence that Sri Nagendrasing (RW.3) was not at the
spot when the accident had taken place. While drawing
the Mahazar, the cleaner of the lorry Sri Abiman Kengar
was on the spot and his name was shown as driver in
the FIR. After investigation, at the time of filing the
charge sheet, charge sheet was filed against both the
driver and cleaner of the truck. Nagendrasing-diver was
examined as RW.3 and in his evidence he has admitted
that on the date of the accident, he was driving the lorry
and he was not at the spot of accident, as he had repair
work of the truck. He also stated in his evidence that as
Abiman Kengar was at the spot, police mentioned him
as driver of the truck. Moreover, RW.3-Sri Nagendrasing
has placed on record Ex.R4-copy of driving licence so as
to establish that he had valid and effective driving
licence as on the date of accident. Thus, the contention
of the insurer that there is violation of conditions of the
policy is rejected.
17. The insurer lastly contended that the truck
was parked on the left side of the road, it was stationed
for three days prior to the date of accident and solely
due to the rash and negligent driving of the driver of the
car, accident had taken place. It is an admitted fact that
the truck was parked without any parking lights and it
was stationed for three days prior to the date of
accident. It is also an admitted fact that the accident
had taken place at 9.00 p.m. in the night. PW.3 -
Sri Balasaheb Ramachandra Ghadage has deposed that
the truck was parked in the middle of the road. PW.3
was having his house near the accident spot. He was
the person rushed to the spot immediately on
occurrence of the accident. He also states that the truck
was parked for more than two days and he had advised
the driver, who parked the truck in the middle of the
road to park the lorry on the left side. Ex.P3-spot
mahazar indicates that the truck was parked on the tar
road facing towards Pandrapur. On evaluation of
evidence of PW.3, RW.3 and Ex.P3-spot panchanama,
we are of the view that the truck was parked in the
middle of the road obstructing the movement of
vehicles. Thus, it could be safely held that the accident
had taken place solely due to the negligent parking of
the truck in the middle of the road.
18. On behalf of the claimant, his wife deposed
before the Tribunal as PW.4. In her evidence, she stated
that her husband-claimant was doing mason work and
was earning Rs.6,000/- per month. But, to substantiate
her contention, no documents were placed on record.
The notional income of the claimant at Rs.4,500/- per
month as assessed by the Tribunal is on the lower side.
The accident is of the year 2011. Normally, while
settling the accidental claims of the year 2011, this
Court and Lok Adalaths would assess the notional
income at Rs.6,000/- per month based on the chart
prepared by the Karnataka State Legal Services
Authority. Hence, taking note of the same, we deem it
appropriate to assess the income of the claimant at
Rs.6,000/- per month.
19. Ex.P13 is the wound certificate. The
claimant has suffered diffuse axonal injury right
humerus fracture, injury to left temporal region and
right upper limb fracture. The claimant was admitted to
hospital initially on 25.08.2011 and he was discharged
on 21.11.2011. Subsequently also he was impatient
totally for 147 days. PW.5-doctor has deposed that
claimant has tracheostomy needs feeding through the
ryles tube and he is unable to sit, walk and stand. The
doctor has also deposed that the claimant is unable to
take care of himself and suffers permanent disability of
100%. In the cross-examination to a specific suggestion
that the claimant would be recovered, PW.5-doctor has
stated that 'I do not expect him to recover from his
present condition.' PW.4-Swati, the wife of claimant
Kalidas in her evidence has stated that her husband is
semi conscious and he would not recognize anyone.
Further she stated that there is no body movement and
food is to be fed by pipe. He is also not able to speak.
20. The Tribunal had appointed Court
Commissioner for recording the evidence of the claimant
and the Court Commissioner filed his report stating that
looking to the condition of the claimant, he could not
record evidence. The relevant portion of the report reads
as follows:
"On asking the name of petitioner he was
unable to say his name and he is unable
respond for the same. But he is just opening his
both eyes & closing the same after some time.
Further he is sleeping on bed as the movements
of his both upper & lower limbs are restricted
and his left hand fingers closely tight & are
completely restricted.
Further said injured was applied with
urine cathetra bag for passing urine and one
instrument was affixed on front portion of his
neck for providing liquid food to injured and one
more plastic pipe has been inserted in right
nasal portion. So looking to his present
condition he is unable to talk and to give his
evidence at this stage. Hence under these
circumstances I have not recorded the evidence
of the above named petitioner. Hence I have
noticed above referred conditions of the said
patient which are found to me in visible
manner."
21. The above evidence of PW.5-doctor, PW.4-
wife of the claimant and the commissioner report clearly
establishes that the claimant is not in a position to
move, unable to sit, he is to be fed through ryles pipe
tubes and he is unable to take care of himself.
According to PW.5-doctor, the above disabilities are due
to accidental injuries. PW.5 is treated doctor. Therefore,
on cumulative reading of the evidence, we are of the
considered opinion that the claimant-injured suffers
from 100% disability and the Tribunal committed an
error in assessing the disability of the claimant at 75%
to entire body. Thus, we assess the total body disability
at 100%.
22. The Hon'ble Apex Court in the case of
Jagdish vs. Mohan and Others reported in (2018) 4
SCC 571 while dealing with an appeal where the
appellant who was working as carpenter had lost both
his hands observed that a loss of hands is a complete
deprivation of the ability to earn. The relevant
paragraphs 13 and 14 reads as follows:
"13. In the judgment of the Constitution
Bench in National Insurance Co. Ltd. v.
Pranay Sethi, (2017) 16 SCC 680, this Court
has held that the benefit of future prospects
should not be confined only to those who have
a permanent job and would extend to self-
employed individuals. In the case of a self-
employed person, an addition of 40% of the
established income should be made where the
age of the victim at the time of the accident
was below 40 years. Hence, in the present
case, the appellant would be entitled to an
enhancement of Rs.2400 towards loss of
future prospects.
14. In making the computation in the
present case, the court must be mindful of the
fact that the appellant has suffered a serious
disability in which he has suffered a loss of
the use of both his hands. For a person
engaged in manual activities, it requires no
stretch of imagination to understand that a
loss of hands is a complete deprivation of the
ability to earn. Nothing-at least in the facts of
this case-can restore lost hands. But the
measure of compensation must reflect a
genuine attempt of the law to restore the
dignity of the being. Our yardsticks of
compensation should not be so abysmal as to
lead one to question whether our law values
human life. If it does, as it must, it must
provide a realistic recompense for the pain of
loss and the trauma of suffering. Awards of
compensation are not law's doles. In a
discourse of rights, they constitute
entitlements under law. Our conversations
about law must shift from a paternalistic
subordination of the individual to an assertion
of enforceable rights as intrinsic to human
dignity."
23. As the evidence on record establishes that
the claimant is not in a position to move and unable to
sit, walk and stand, the claimant would not be in a
position to earn his livelihood. When he is not in a
position to work as he was doing earlier and when he
suffers 100% disability, the claimant would be entitled
for future prospects. As the claimant is aged 30 years,
he would be entitled for adding 40% of the established
income towards compensation on the head of future
prospects. As the claimant would not be in a position to
attend to his daily needs and as he needs an attendant,
claimant would be entitled for attendant charges at the
rate of Rs.100/- per day.
24. The Tribunal has awarded Rs.1,00,000/-
under the head of loss of amenities. The same would be
on the lower side when compared to the disability
suffered by the claimant and looking to the condition of
the claimant. Therefore, we deem it appropriate to
enhance the same to Rs.2,00,000/-.
25. The Tribunal has awarded a sum of
Rs.25,000/- each towards incidental charges and
attendant charges during treatment. As the claimant
was impatient for more than 147 days at different
intervals, the compensation awarded on the said heads
are on the lower side. Hence, we enhance the same to
Rs.50,000/- each on the said heads. The claimant
would be entitled for a sum of Rs.1,00,000/- on the
head of pain and suffering looking to the injuries
sustained, treatment taken and present condition of the
claimant. The compensation awarded by the Tribunal
on the head of medical expenses and future medical
expenses are not disturbed. Further, the Tribunal has
awarded Rs.36,000/- towards loss of income during laid
up period, which the claimant would not be entitled
since he is not in a position to sit, walk or to attend any
work.
26. Thus, the appellant-claimant would be
entitled for the modified compensation as follows:
1. Towards loss of future earning Rs.17,13,600/-
capacity including future
prospects (Rs.6,000 + Rs.2,400
(40% of the income) = Rs.8400 x
12 x 17)
2. Towards pain and suffering Rs.1,00,000/-
3. Towards loss of amenities Rs.2,00,000/-
4. Towards incidental charges and Rs.1,00,000/-
attendant charges (Rs.50,000 x 2)
5. Towards future attendant charges Rs.6,12,000/-
(Rs.3000 x 12 x 17)
6. Towards medical expenses Rs.5,33,100/-
7. Towards future medical expenses Rs.50,000/-
Total Rs.33,08,700/-
Thus, the claimants would be entitled for total
compensation of Rs.33,08,700/- with interest at 6% p.a.
as against compensation of Rs.15,07,600/- awarded by
the Tribunal. Thus, the claimants would be entitled for
enhanced compensation of Rs.18,01,100/-.
27. Accordingly, MFA No.31459/2013 filed by
the claimant is allowed in part. The impugned judgment
and award dated 16.03.2013 in MVC No.1239/2011
passed by the Tribunal is modified. The appellant-
claimant is entitled for the enhanced compensation of
Rs.18,01,100/- with interest at 6% p.a. The deposit
shall be as ordered by the Tribunal.
28. Consequently, MFA No.31375/2013 filed by
the Insurance Company is dismissed. The amount in
deposit by the Insurance Company be transmitted to
the concerned Tribunal.
Sd/-
JUDGE
Sd/-
JUDGE
LG
