United India Insurance Co. Ltd vs Bhimappa @ Bhimasheppa Kenchappa ...
2021 Latest Caselaw 3679 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

      DATED THIS THE 9 T H DAY OF NOVEMBER, 2021

                         BEFORE

       THE HON'BLE MR.JUSTICE RAVI V.HOSMANI


               M.F.A.No.20632/2011 (MV)

BETWEEN:

UNITED INDIA INS URANCE CO.LTD.,
BRANCH NI PANI,
REP.BY SENI OR DI VISIONAL MANAGER,
UNITED INDIA INS URANCE CO.LTD.,
DIVISIONAL OFFICE, 'SEETA SMRUTI'
2 N D F LOOR, MARUT I GALLI, BELAGAVI .
                                              ... APPELLANT

(BY SRI C.V .ANGA DI, ADV OCATE)

AND

1.    SRI BHIMAPPA @ BHIMASHEPPA
      KENCHAPPA D HARMATTI,
      AGE: N OW ABOUT 48 YEARS ,
      OCC: AGRICULT URE,
      R/O MARAPUR, TQ: MUDHOL,
      DISTRICT: BAGALKOT.

2.    MR.YANKAPPA LAXMAN ARABHANVI,
      AGE: MAJOR, OCC: AGRICULTURE,
      R/O MEERA PURHA TTI, TQ: CHIKODI ,
      DISTRICT: BELA GAVI.
                                           ... RES PONDENTS

(BY SRI SHRINIVA S K.NADAMANI, A DVOCATE FOR
 SRI JA GADISH PA TIL, ADV OCATE FOR R1;
 SRI M.J .PEERJAD E, ADVOCATE F OR R2)
                                         2




       THIS MISC.FIRST APPEAL IS FI LED UNDER SECTION
173(1)       OF    MOTOR        VEHICLES     A CT,    1988,   AGAINST     THE
JUDGMENT AND A WARD DATED 20.09.2010 PA SSED IN MVC
NO.1064/2008 ON THE FILE OF T HE II ADDL. SENIOR CIVIL
JUDGE        AND        AD DL.M.A .C.T .,    GOKAK,         AWARDING      THE
COMPENSATION OF RS.3,21,100/- WITH INTEREST A T THE
RATE OF 6% P.A. FROM THE DAT E OF PETITION TILL THE
DATE OF REALISA TION.


       THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT , DELIVERED THE F OLLOWING:


                                   JUDGMENT

Challenging the judgment and award dated

20.09.2010 passed by II Addl.Senior Civil Judge and

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

No.1064/2008, this appeal is filed.

2. For the sake of convenience, parties

hereinafter will be referred to as per their respective

ranks before the tribunal.

3. Brief facts as stated are that on 03.12.2007

at 3.00 p.m. claimant-Bhimappa was walking by the

side of Yadawad-Gokak road. When he was near

Balobal cross, a tractor bearing registration No.KA-23/

TA-978 came from behind and dashed against him. In

accident, claimant sustained fracture of mandible,

fracture of base of 4 t h and 5 t h metacarpal of left hand

and fracture of 4 t h and 6 t h ribs on left side. He was

admitted to Ganga Surgical and Fracture Clinic, Gokak.

As he did not recover fully and sustained partial

permanent physical disability, he filed claim petition

against owner and insurer of tractor under Section 166

of Motor Vehicles Act, 1988 (for short, 'M.V.Act').

4. Upon entering appearance, 1 s t respondent-

owner admitted accident also that he had agreed to

pay compensation to claimant and consent agreement

was executed between claimant and owner. As per

agreement, claimant was to be paid medical expenses

in lieu of claimant desisting from filing of police

complaint. It was also stated that tractor was being

driven by driver who had valid licence and that tractor

was insured with 2nd respondent. 2nd respondent-

insurer apart from denying claim petition specifically

disputed involvement of insured vehicle in accident. It

was contended that no criminal case was registered

against driver of tractor and even in admission records

of hospital, no medico legal case (MLC) was registered.

Insurer also sought permission under Section 170 of

M.V. Act.

5. Based on pleadings, Tribunal framed

following issues:

1. Whether the petitioner proves that on 03.12.2007 at about 3.00 p.m. when the petitioner was walking on Yadwad-

          Gokak Road near Balobal cross on the
          side of the road, the tractor bearing
          No.KA-23/TA-978             came       and     it    was
          driven    by    its   driver      in   a     rash     and
          negligent      manner       and    dashed       to    the
          petitioner      and     caused         accident,       by

which petitioner has sustained injuries as alleged?

2. Whether the respondent proves that the vehicle was properly insured and the

driver was having valid driving license at the time of accident and the petitioner is bad for non-joinder of Insurance Company?

3. Whether the petitioner is entitled for compensation? If so, to what amount?

4. What order/award?

6. In order to establish his case, claimant was

examined as PW1, Dr.M.G.Umarani as PW2 and

Parasappa Laxmappa Awaradi of Balobal was examined

as PW3. Exhibits P1 to P66 were marked. On behalf of

respondents, owner of vehicle was examined as RW1.

Exhibits R1 to R3 were marked.

7. On consideration, Tribunal answered issues

No.1 and 2 in the affirmative and issue No.3 by

assessing compensation of Rs.3,27,100/- with interest

at 6% per annum and holding insurer liable to pay the

same. Aggrieved by award, insurer is in appeal.

8. Sri C.V.Angadi, learned counsel for

appellant-insurer firstly submitted that impugned

award passed by Tribunal was erroneous and contrary

to evidence on record. It was submitted that no police

complaint was given by claimant immediately after

accident and no case is registered by police in

pursuance of alleged MLC intimation given by hospital.

But only on the basis of alleged agreement between

insured and claimant as per Ex.P1 Tribunal held that

accident was proved. It was further submitted that

even on quantum, Tribunal awarded excessive

compensation. Claimant had sustained fracture of two

metacarpal and two ribs which normally would not lead

to any loss of earning capacity. However, taking loss of

earning capacity at 50% Tribunal awarded excessive

compensation. On above grounds, learned counsel

sought for setting aside award and absolve insurer.

9. On the other hand, Sri Shrinivas

K.Nadamani, advocate appearing for Sri Jagadish Patil,

learned counsel for respondent No.1-claimant

supported award and opposed insurer's appeal. It was

submitted that police complaint was not given in view

of agreement between owner and claimant executed in

the presence of witnesses to the effect that if claimant

desisted from filing police complaint, owner would

reimburse medical expenses to claimant. It was further

submitted that said agreement was established not

only by producing it but also by examining one of the

witnesses as PW3. Attention of this Court was also

drawn to medical records namely Ex.P5-discharge card,

Ex.P6 and P7-disability certificates, Ex.P8-CT scan

report, Ex.P9 to P41-medical bills, prescriptions/

receipts. Ex.P42 to P53-x-ray films; medical admission

card etc., as Ex.P54 to P65 copy of MLC intimation

issued by hospital to police station was also marked as

Ex.P66. In addition, RW1-owner of tractor admitted

accident and agreement in his written statement. It

was submitted that even evidence of RW1 was in

consonance with claim petition. Therefore, Tribunal

rightly held that accident occurred due to rash and

negligent driving of tractor by driver and claimant

sustained injuries in it. It was further submitted that

award passed under other heads was meager.

10. From above submissions it is noted that the

very accident is disputed by insurer. Even computation

of compensation is also disputed. Therefore, points

that arise for consideration in this appeal are:

1. Whether Tribunal is justified in its finding on issue No.1?

2. Whether assessment of compensation by Tribunal is justified?

11. Insofar as point No.1, claimant has produced

Ex.P1-agreement executed by respondent No.1 in the

presence of witnesses. Immediately after accident,

claimant admitted to hospital for treatment. In order to

establish the same, claimant has produced medical

records. Ex.P5 bears MLC intimation. It is corroborated

by intimation letter written by hospital to the police

station as per Ex.P66. Dr.M.G.Umarani is examined as

PW2. Though PW2 is cross-examined, nothing

worthwhile is elicited from PW2 in respect of Ex.P66.

Apart from above, claimant also examined PW3, one of

the witnesses to Ex.P1 agreement, who deposed about

circumstances under which Ex.P1 was executed. There

is sufficient evidence in the form of oral evidence of

PW1 to PW3, admission of respondent No.1 in written

statement as well as MLC endorsement in Ex.P5 and

MLC intimation as per Ex.P66. Based on such evidence,

Tribunal held accident is duly established by claimant.

Said finding on by proper appreciation of evidence on

record. There are no good grounds to interfere.

12. Insofar as quantum of compensation,

admittedly claimant sustained fracture of mandible,

fracture of base of 4 t h and 5 t h , metacarpal of left hand,

fracture of 4 t h and 6 t h ribs on left side, degloving injury

over left popliteal fossa etc. as per wound certificate.

Ex.P6-disability certificate corroborates the same. After

examining claimant PW2 deposed that claimant

sustained 55% permanent disability to whole body.

However, the basis for such assessment is not

mentioned either in disability certificate or explained

during evidence. Normally fracture of metacarpal,

fracture of mandible and fracture of ribs do not result

in loss of earning capacity to such extent. But,

considering occupation of claimant which is agriculture,

same would affect claimant to some extent, but not

50% as considered by Tribunal. The said finding would

be contrary to evidence on record, if not perverse. It

would be just and proper to consider loss of earning

capacity at 10%. But, it is seen that while computing

future loss of income, Tribunal considered monthly

income at Rs.3,000/-. As per norms adopted by the

Karnataka Legal Services Authority for settlement of

cases before Lok Adalath, notional income for the year

2007 is Rs.4,000/-. Considering the said income and

applying multiplier of '13', future loss of income would

be Rs.4,000 x 10% x 12 x 13 = Rs.62,400/- as against

Rs.2,34,000/- awarded by Tribunal. Considering

duration of inpatient treatment, Tribunal awarded loss

of income during laid up period at Rs.4,500/-,

Rs.10,000/- towards food, nourishment and other

incidental charges, which appear just and proper.

Claimant sustained minor fractures. Tribunal has

awarded a sum of Rs.25,000/- towards pain and

suffering. Same do not appear to be either excessive or

unjustified. Considering medical bills produced,

Tribunal has awarded a sum of Rs.48,600/- towards

complete reimbursement. As same is justified by

medical bills, there is no scope for reduction. Insofar

as amenities, Tribunal awarded meager sum of

Rs.5,000/-. Considering fracture of metacarpal,

mandible ribs and compensation would be inadequate.

It would be just and proper to award Rs.15,000/-

instant. Thus, total compensation would be

Rs.1,70,500/- as against Rs.3,27,100/- awarded by

Tribunal. Point No.2 is answered partly in favour of

appellant as above.

13. In the result, I pass the following:

ORDER

i. Appeal is allowed in part. The compensation is reduced from Rs.3,27,100/- to Rs.1,70,500/-.

      ii.    The   claimant       would           be     entitled    to
             interest at the rate of 6% per annum
             from date of petition till deposit.

      iii.   The   directions          issued           by   Tribunal
             regarding      proportion            of    deposit     and
             release     shall        apply        to    reassessed
             compensation also.

      iv.    Tribunal is directed to refund excess
             amount, if any, deposited by insurer

after deducting compensation payable to claimant.

      v.     Amount in deposit is ordered to be
             transmitted         to         the        Tribunal     for
             disbursement.




                                                               Sd/-
                                                              JUDGE

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