Karnataka High Court
Smt Mamatha N vs The Oriental Insurance Co. Ltd., on 31 May, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.3837/2016 (MV)
C/W.
M.F.A.NO.8538/2015 (MV)
IN M.F.A.NO.3837/2016 (MV):
BETWEEN:
SMT. MAMATHA N.,
W/O K. NAVEEN KUMAR
AGED ABOUT 30 YEARS
R/AT NO.33/44, 5TH MAIN
KAPILANADI ROAD
HOSAKEREHALLI
DATTATREYANAGAR
BSK 3RD STAGE
BENGALURU-85
... APPELLANT
(BY SRI H.B.SOMAPUR, ADVOCATE)
AND:
1. THE ORIENTAL INSURANCE CO. LTD.,
BY ITS REGIONAL MANAGER
REGIONAL OFFICE
THIRD PARTY CLAIMS HUB
NO.44/45, LEO COMPLEX
RESIDENCY ROAD CROSS
P.B. NO.25123
BENGALURU-560 025
2
2. SMT. CHANCHAL DEVI
AGE: MAJOR
NO.23, 2ND CROSS
SHANKARPURAM
BENGALURU-560 004
... RESPONDENTS
(BY SRI S.V.HEGDE MULKUND, ADVOCATE FOR R1; R2-IS
SERVED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.06.2015
PASSED IN MVC.NO.3955/2011 ON THE FILE OF THE XXIII
ADDITIONAL SMALL CAUSES JUDGE AND XXI ACMM, MACT,
COURT OF SMALL CAUSES, BENGALURU, ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN M.F.A.NO.8538/2015 (MV):
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.,
NO.44/46, LEO SHOPPING COMPLEX
RESIDENCY ROAD CROSS
BENGALURU-560 025
BY ITS REGIONAL OFFICER ... APPELLANT
(BY SRI S.V.HEGDE MULKUND, ADVOCATE)
AND:
1. SMT. MAMATHA N.,
W/O K. NAVEEN KUMAR
AGED ABOUT 29 YEARS
R/AT HOSAKERE VILLAGE
KOPPA HOBLI
MADDUR TALUK
MANDYA DISTRICT
3
2. SMT. CHANCHAL DEVI
AGE: MAJOR
RESIDING AT NO.23, 2ND CROSS
SHANKARPURAM
BENGALURU-560 004
... RESPONDENTS
(BY SRI H.B.SOMAPUR, ADVOCATE FOR R1; R2-IS SERVED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.06.2015
PASSED IN MVC.NO.3955/2011 ON THE FILE OF THE XXI ACMM,
AND 23RD ASCJ, MACT, COURT OF SMALL CAUSES, BENGALURU,
AWARDING THE COMPENSATION OF Rs.2,56,480/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE
DEPOSIT.
THESE MFA's COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Though the matters are listed for admission today, with
the consent of the learned counsel for both the parties, they are
taken up for final disposal.
These two appeals are filed by the claimant and the
Insurance Company respectively challenging the judgment and
award dated 27.06.2015, passed in M.V.C.No.3955/2011 on the
file of the MACT, Court of Small Causes, Bengaluru ('the
Tribunal' for short) questioning the quantum of compensation
and the liability.
2. The parties are referred to as per their original
rankings before the Tribunal to avoid confusion and for the
convenience of the Court.
3. The factual matrix of the case is that the injured in the
claim petition has contended that on 18.06.2011 at about 1.10
p.m. when he was proceeding near swimming pool, National
College, Shankarapuram, Basavanagudi, Bengaluru, due to rash
and negligent driving of the driver of the Car bearing registration
KA-51-M-6687, the claimant sustained grievous injuries. As a
result, she suffered physical disability. The claimant in the claim
petition has contended that she was working as a Lab Assistant
of Government of Karnataka, Department of Health and Family
Welfare, Bengaluru and was earning an amount of Rs.10,000/-
per month and due to the accident, she is unable to continue
with the work. Respondent-Insurance Company appeared
through the counsel and filed the detailed objections disputing
the accident as well as the nature of injuries, employment and
the income. The claimant, in order to substantiate her claim,
examined herself as P.W.1, the doctor as P.W.2 and another
witness as P.W.3 and got marked the documents at Exs.P1 to
P11. Respondent-Insurance Company examined one witness as
RW.1 and got marked documents at Exs.R1 and R2.
4. The Tribunal, after considering both oral and
documentary evidence, allowed the claim petition in part by
granting the compensation of Rs.2,56,840/- along with interest
at the rate of 6% per annum from the date of petition till the
date of depositing the amount. Being aggrieved by the
judgment and award of the Tribunal, the present appeals are
filed by the claimant and the respondent-Insurance Company
regarding the quantum of compensation and liability
respectively. The respondent-Insurance Company contended
that the vehicle has been falsely implicated in the case and there
was delay in lodging the complaint and also that the
compensation awarded by the Tribunal is on the higher side.
5. Learned counsel appearing for the appellant/claimant
would vehemently contend that the Tribunal has committed an
error in awarding lesser compensation and the same is
inadequate. The Tribunal has committed an error in taking the
income of the injured at Rs.6,000/- per month and has
erroneously awarded the interest at the rate of 6% per annum.
The Tribunal failed to take note of the linear fracture of lateral
malleolus right ankle and also failed to take note of the evidence
of the doctor, who deposed that the injured has suffered physical
disability to the extent of 31.33% to the right lower limb and
suffered the disability to the whole body to the extent of
15.665%. Hence, it requires interference of this Court.
6. Per contra, learned counsel appearing for the
respondent -Insurance Company would vehemently contend that
the Tribunal has not given proper findings with regard to the
delay in lodging the complaint. There was 6 days delay in
loading the complaint and the same has not been properly
explained by the claimant. Learned counsel also would
vehemently contend that in order to substantiate the claim of
the claimant that she was working as a Lab Assistant, no
document is placed before the Tribunal and also when she has
continued the job, the question of awarding the compensation
under the head of 'future loss of income' does not arise. Thus,
the Tribunal has committed an error in awarding the
compensation on the head of 'future loss of income'. Hence, it
requires interference of this Court.
7. Having heard the arguments of the learned counsel
for the appellant in both the appeals, the points that would arise
for the consideration of this Court are:
(i) Whether the Tribunal has committed an
error in not awarding the just and
reasonable compensation and whether it
requires interference of this Court ?
(ii) Whether the Tribunal has committed an
error in awarding the exorbitant
compensation and whether it requires
interference of this Court ?
(iii) Whether the Tribunal has committed an
error in fastening the liability on the
Insurance Company by coming to the
conclusion that the vehicle has been
involved in the accident ?
(iv) What order ?
Points No.1 and 2:-
8. These two appeals are filed in respect of the
quantum of compensation. The learned counsel for the claimant
would vehemently contend that the Tribunal failed to award the
just and reasonable compensation whereas the Insurance
Company would vehemently contend that the compensation
awarded by the Tribunal is exorbitant.
9. Having perused the materials available on record,
the claimant has produced the document i.e., wound certificate
which is marked as Ex.P9, which clearly discloses that the
claimant has suffered linear fracture of lateral malleolus right
ankle and took the conservative treatment but not as an
inpatient. However, the claimant examined the doctor as
P.W.2. The doctor, who has been examined as P.W.2 deposed
that there was disability of 31.33% to the particular limb and
15% to the whole body. The Tribunal has considered the
evidence of P.W.2 and taken the disability at 15%. It is to be
noted that the claim of the claimant is that she was working as a
Lab Assistant under Government of Karnataka. In order to
substantiate the same, no document has been placed before the
Court. Though she claims that she was earning Rs.10,000/- per
month, no document is placed to substantiate the same. Hence,
the Tribunal has taken the income of the claimant at Rs.6000/-
per month. It is to be noted that the accident had taken place
in the year 2011. When no document is placed in proof of the
income of the claimant is concerned, the Tribunal has to consider
the notional income. The notional income for the year 2011 is
Rs.6,500/- per month. No document is produced to show that
she is working as Lab Assistant and also no material to show
that she continued the job as contended by the Insurance
Company.
10. While calculating the compensation under the head
of 'future loss of income', the Tribunal has committed an error in
taking the disability at 15%. First of all no treatment is taken by
the claimant as an inpatient and apart from that the doctor who
gave the evidence says that the whole body disability is at
15.665% and 31.33% to the particular limb. When such being
the case, the disability taken by the Tribunal cannot be accepted
and only 1/3rd of the disability to the whole body is to be
considered. Though 31% disability is deposed by the doctor,
taken note of the linear fracture of lateral malleolus right ankle,
it is appropriate to take the disability at 8% instead of 15%
taken by the Tribunal. If the income of the claimant is taken at
Rs.6,500/-, by applying the relevant multiplier as 18 and
disability at 8% i.e., (Rs.6,500x12x18x8%=Rs.1,12,320/-), the
loss of future income would come to Rs.1,12,320/-.
11. The Tribunal has awarded an amount of Rs.15,000/-
on the head of 'pain and sufferings', which is on the lower side
and having taken note of linear fracture of lateral malleolus right
ankle, it is appropriate to award an amount of Rs.30,000/- on
the head of 'pain and sufferings'. Accordingly, an amount of
Rs.30,000/- is awarded under the head of 'pain and sufferings'.
12. The Tribunal also awarded an amount of Rs.19,440/-
towards 'loss of amenities and happiness'. Taking note of the
disability at 8%, the age of claimant, the claimant has to suffer
the disability through out her life, it is appropriate to award an
amount of Rs.20,000/- as against Rs.19,440/- under the head of
'loss of amenities and happiness'.
13. The Tribunal has assessed the loss of income for a
period of three months by taking the income at Rs.6,000/- per
month. When this Court has re-assessed the income of the
claimant at Rs.6,500/- per month, the loss of income for three
months would come to (Rs.6,500x3=Rs.19,500/-) Rs.19,500/-.
Accordingly, an amount of Rs.19,500/- is awarded under the
head of 'loss of income during the laid up period'.
14. The Tribunal further awarded an amount of
Rs.10,000/- towards 'attendant charges', which is at par.
Hence, I do not find any reason to interfere with the
compensation awarded towards the other incidental expenses by
the Tribunal. Hence, by revisiting the compensation awarded
under the different heads, the same would come to
Rs.1,91,820/-. Accordingly, I answer point No.1 in the negative
and point No.2 in the partly affirmative.
Point No.3:-
15. The main contention of the learned counsel for the
Insurance Company is that the vehicle has been falsely
implicated in the case though the said vehicle is not involved in
the accident. It is not in dispute that the driver of the vehicle
pleaded guilty and paid the fine amount. The same has not been
disputed by adducing any rebuttal evidence before the Tribunal.
The Insurance Company also examined an official of the
Insurance Company, who is not an eye witness to the accident.
It is also not in dispute that the charge sheet is filed against the
driver of the offending vehicle. When the Insurance Company
has not rebutted the said fact by adducing evidence either by
examining the Investigating Officer with regard to the
implication of the vehicle or by producing any substantial
material before the Tribunal, I do not find any error committed
by the Tribunal in fastening the liability on the Insurance
Company by coming to the conclusion that the offending vehicle
has been involved in the accident. The very contention of
the Insurance Company that there was no explanation on the
part of the claimant with regard to the involvement of the
vehicle and the delay in lodging the complaint, cannot be
accepted for the above reasons and the Tribunal has not
committed any error in coming to the conclusion that the said
vehicle has been involved in the accident, in the absence of any
rebuttal evidence. Hence, point No.3 is answered in the
negative.
16. In view of the discussion made above, I pass the
following:-
ORDER
(i) The appeal filed by the claimant in MFA
No.3837/2016 is dismissed.
(ii) The appeal filed by the Insurance
Company in MFA No.8538/2015 is allowed in part.
(ii) The judgment and award passed by the
Tribunal is modified by granting the compensation of
Rs.1,91,820/- with interest at the rate of 6% per
annum from the date of petition till realization as
against Rs.2,56,840/-.
(iii) The amount in deposit made by the
Insurance Company before this Court is ordered to
be transmitted to the Tribunal, forthwith. If any
difference amount to be deposited by the Insurance
Company, the same shall be deposited within six
weeks from today.
(iv) In view of the reduction of the
compensation amount awarded by the Tribunal, the
50% of the award amount shall be released, on
proper identification, in favour of the appellant and
remaining 50% of the amount shall be kept in FD in
any scheduled bank/nationalized bank for a period of
three years.
Sd/-
JUDGE
PYR
