Karnataka High Court
M/S New India Assurance Company ... vs Sri Gopalakrishna Naik on 25 November, 2021
Bench: E.S.Indiresh
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
MISCELLANEOUS FIRST APPEAL NO.8894 OF 2009 (MV)
C/W
MFA CROB NO.90 OF 2010
IN MFA 8894 OF 2009
BETWEEN:
M/S NEW INDIA ASSURANCE COMPANY LTD.,
BRANCH AT ISHWARI COMPLEX,
NO.65, DR.RAJKUMAR ROAD,
RAJAJINAGAR, BENGALURU,
REPRESENTED BY THE REGIONAL OFFICE,
THE NEW INDIA ASSURANCE CO., LTD.,
UNITY BUILDING ANNEXE,
NO.2B, MISSION ROAD,
BENGALURU-560 001.
... APPELLANT
(BY SMT.GEETA RAJ, ADVOCATE)
AND:
1. SRI. GOPALAKRISHNA NAIK,
S/O Sri. U RATHNAKARA NAIK,
AGED ABOUT 29 YEARS,
SRI NAGESH PRASAD,
LADY HILL, MANGALURU TALUK,
DAKSHINA KANNADA-575 001.
2. Sri. ABDUL KALAK
SINCE DEAD BY HIS LRS
2
2(a).MRS.SHAKADE BEE,
W/O LATE ABDUL KALAK,
AGED ABOUT 65 YEARS.
2(b).MR.AKRAM ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 49 YEARS.
2(c).MR.AJAMMATH ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 48 YEARS.
2(d).MR.RAHAMMAT ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 46 YEARS.
2(e).MR.JABI ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 42 YEARS.
2(f).MR.NIJMUNISSA,
S/O LATE ABDUL KALAK,
AGED ABOUT 40 YEARS.
ALL ARE RESIDING AT ISLAMPURA,
NELAMANGALA TALUK,
BENGALURU-562 123.
3. SHRI. K.M. HAMEED ALIKHAN,
MAJOR,
NO.149, 6TH MAIN,
BYRASANDRA, JAYANAGAR,
BENGALURU-560 011.
... RESPONDENTS
(BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE FOR R1;
SRI. P.M. SIDDAMALLAPPA, ADVOCATE FOR R2(a) to (f);
NOTICE TO R3 IS DISPENSED WITH)
3
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE
JUDGMENT AND AWARD DATED 30TH JULY, 2009 PASSED IN MVC
NO.953 OF 2003 ON THE FILE OF II ADDITIONAL DISTRICT
JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-III,
DAKSHINA KANNADA, MANGALURU, AWARDING COMPENSATION
OF RS.2,70,000/- WITH INTEREST AT 6% PER ANNUM FROM THE
DATE OF PETITION TILL REALISATION.
IN MFA CROB 90 OF 2010
BETWEEN:
SRI. GOPALAKRISHNA NAIK,
AGED 30 YEARS,
S/O SRI. U. RATNAKARA NAIK,
R/O. 'Sri NAGESH PRASAD', LADY HILL,
MANGALURU, D.K.
... CROSS OBJECTOR
(BY SRI. PUNDIKAI ISHWARA BHAT, ADVOCATE)
AND:
1. THE NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFF: ISHWARI COMPLEX,
NO.65, DR. RAJKUMAR ROAD,
RAJAJINAGAR, BENGALURU.
REP. BY ITS BRANCH MANAGER.
2. ABDUL KALAK
SINCE DEAD BY HIS LRS.
2(a).MRS.SHAKADE BEE,
W/O LATE ABDUL KALAK,
AGED ABOUT 65 YEARS.
2(b).MR.AKRAM ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 49 YEARS.
4
2(c).MR.AJAMMATH ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 48 YEARS.
2(d).MR.RAHAMMAT ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 46 YEARS.
2(e).MR.JABI ULLA,
S/O LATE ABDUL KALAK,
AGED ABOUT 42 YEARS.
2(f).MR.NIJMUNISSA,
S/O LATE ABDUL KALAK,
AGED ABOUT 40 YEARS.
R2 (a) TO (f) ARE RESIDING AT
ISLAMPURA,
NELAMANGALA TALUK,
BENGALURU-562 123.
3. K.M HAMEED ALIKHAN,
MAJOR,
NO.149, 6TH MAIN,
BYRASANDRA,
JAYANAGAR,
BENGALURU-560 011.
... RESPONDENTS
(BY SRI. P.M. SIDDAMALLAPPA, ADVOCATE
FOR R2(a) TO (f); SMT. GEETHA RAJ, ADVOCATE FOR R1)
THIS MFA CROB IN MISCELLANEOUS FIRST APPEAL
NO.8894 OF 2009 IS FILED UNDER ORDER XLI RULE 22 OF
CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND
AWARD DATED 30TH JULY, 2009 PASSED IN MVC NO.953 OF
2003 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL-III, DAKSHINA KANNADA,
MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
5
THIS MISCELLANEOUS FIRST APPEAL AND CROSS
OBJECTION COMING ON FOR HEARING THIS DAY, THE COURT,
DELIVERED THE FOLLOWING:
JUDGMENT
This Miscellaneous First Appeal and Cross objection are
arising out of the judgment and award dated 30th July, 2009
passed in MVC No.953 of 2003 on the file of the II Additional
District Judge and Motor Accident Claims Tribunal-III, Dakshina
Kannada, Mangaluru (for short, hereinafter referred to as
'Tribunal').
2. Miscellaneous First Appeal No.8894 of 2009 is filed by
the Insurance Company challenging the impugned judgment and
award on the ground of quantum of compensation; and Cross
Objection No.90 of 2010 is filed by the claimant seeking
enhancement of compensation.
3. For the sake of convenience, the parties in this appeal
and Cross objections, shall be referred to in terms of their status
and ranking before the Tribunal.
4. The relevant facts of the case for adjudication of this
appeal and Cross Objections are that on 29th March, 2003 at
around 2.00 to 2.30 p.m., the claimant was proceeding as a
pillion rider in a Fiero Suzuki TVS Motorcycle bearing registration
No.KA-01/U-7900 from Benglauru to Devarayana Durga Temple
at Tumakuru and when he reached near Kodage Halli cross, at
that time, a lorry bearing registration No.KA-02-7902 driven by
its driver in a rash and negligent manner dashed to the said
Motorcycle. Due to the said impact, the claimant has sustained
grievous injuries. It is the case of the claimant that, on account
of the injuries sustained by him in the said Road Traffic accident,
he suffered monetarily and physically and as such, filed MVC
No.953 of 2003 on the file of the Tribunal, seeking compensation.
5. On service on notice, respondents 1 and 2 have entered
appearance and filed detailed written statement denying the
averments made in the claim petition. The Tribunal, after
considering the pleadings on record, has formulated issues for its
consideration. In order to prove the claim petition, the claimant
has examined three witnesses as PW1 to PW3 and produced
twenty two documents and same were got marked as Exhibits P1
to P22. On the other hand, no oral evidence has been made by
the respondents. However, Insurance Company has marked
Exhibit D1-copy of Insurance Policy.
6. The Tribunal, after considering the material on record,
by its judgment and award dated 30th July, 2009, allowed the
claim petition in part and awarded compensation of
Rs.2,70,000/- with interest at the rate of 6% per annum from the
date of petition till realisation. Being aggrieved by the award
made by the Tribunal with regard to Medical expenses and
Hospitalisation charges wherein the claimant has got
reimbursement of same from the employer, the Insurance
company has preferred Miscellaneous First Appeal No. 8894 of
2009 and the claimant filed Cross objection stating that the
award made by the Tribunal is megre and seeks enhancement of
compensation.
7. I have heard Smt. Geetha Raj, learned counsel
appearing for the Insurance Company; Sri. Pundikai Ishwara
Bhat, learned counsel appearing for the claimant; and Sri.
P.M.Siddamallappa, learned counsel appearing for respondent
No.2 (a) to (f).
8. Smt. Geetha Raj, learned counsel appearing for the
Insurance Company contended that, the claimant has got
reimbursement of Medical expenses and Hospitalisation charges
in an extent of Rs.1,10,000/- from the employer and therefore,
awarding of the very same amount by the Tribunal is contrary to
law and therefore, she placed reliance on judgment of this Court
in the case of BINUP KUMAR R Vs PRABHAKAR H.G. AND
ANOTHER reported in 2010 ACJ 2742; and another judgment of
Division Bench of this Court in the case of NEW INDIA
ASSURANCE COMPANY LIMITED Vs. MANISH GUPTA reported in
(2013) 1 KLJ 624. Referring to the aforementioned judgments,
she contended that the award of compensation under the head
Medical expenses and Hospitalistion charges awarded by the
Tribunal requires revisitation in this appeal.
9. Per contra, Sri. Pundikai Ishwara Bhat, learned counsel
appearing for the claimant referring the judgment in the case of
HELLEN C REBELLO Vs. MAHARASHTRA STATE ROAD TRANSPORT
CORPORATION reported in AIR 1998 SC 3191 and Judgment of
this Court in the case of SHAHEED AHMED Vs.
SHANKARANARAYANA BHAT AND ANOTHER reported in ILR 2008
KAR 3277, contended that, though the Medical expenses and
Hospitalisation charges are reimbursed by the claimant from his
employer, however, considering the nature of injuries sustained,
the claimant is entitled for compensation under the very same
head and therefore, he refuted the contentions made by Smt.
Geetha Raj, learned counsel appearing for the Insurance
Company. Insofar as the Cross Objection is concerned, learned
counsel appearing for the claimant claimed for enhancement of
compensation and he submitted that the award of compensation
under the head pain and suffering is on lower side looking into
injuries sustained by the claimant in the said accident. He also
submitted that, award of incidental charges is also on lower side
which requires to be enhanced in this appeal. Further, he
contended that, the Tribunal has not awarded any compensation
towards loss of amenities and therefore requested this court to
award just compensation under the head loss of amenities. He
further submitted that, on account of the injuries sustained by
the claimant, he is unable to prosper in life, so also the
promotion avenues to the claimant has become bleak and same
is looked into and just compensation be awarded.
10. In light of the submission made by the learned counsel
appearing for the parties, insofar as the quantum of
compensation awarded by the Tribunal under the head Medical
expenses and Hospitalisation charges is concerned, it is not in
dispute that the clamant was working as Design Engineer at
Texas Instruments (India) Pvt. Ltd. at Bengaluru and drawing a
salary of Rs.38,154.25 per month. Perusal of the record would
clearly indicate that claimant availed Medi-claim policy and
claimed amount of Medical expenses and Hospitalisation charges
from the Medi-claim policy. In this regard, though the learned
counsel appearing for the claimant referred the law declared by
the Apex Court in the case of HELLEN C REBELLO (supra), the
very judgment has been considered by the Division Bench of this
Court in the case of MANISH GUPTA (supra), wherein it is
observed that, if once the amount incurred on medical expenses
is reimbursed by the employer or the same is made good by the
Medi-claim policy, the same cannot be claimed in claim petition.
The observation made by the Division Bench in the said judgment
at paragraph 24 reads as under:
"In the case on hand, the facts are almost
similar. It is not dispute that in all the claim petitions,
the claimants had taken the Mediclaim policies and
they have claimed the amount under the policy. We
are of the view that the question of the claimants
claiming compensation in the claim petitions, which is
filed under the Act for the amount expended by them
for the treatment, certainly cannot be granted. The
medical expenses as observed, is classified as a
pecuniary loss. Pecuniary loss in its context means
that the actual amount, which is expended by the
claimant for treatment. If the said amount has been
paid by the Insurer under the Mediclaim policy, the
question of the claimant claiming the very same
amount for the very same purpose, which is inclusive
of the expenses, which are incurred by him for
hospitalisation and for his treatment does not arise.
Undoubtedly, if the amount, which is received by the
claimant under the Mediclaim policy fails short of the
actual expenses expended by him, it is always open
for him to claim the difference of amount spent from
the Tribunal. But however, he cannot claim
compensation under both the Mediclaim policy as well
as the claim petition filed under the Act. The decision
of the Apex Court in Hellen C. Rebello's case was in
respect of the Life Insurance Policy and not in respect
of a Mediclaim policy and therefore the said decision
is distinguishable."
(emphasis supplied)
11. I have also noticed from the record that the
claimant has received amount from the Medi-claim Policy
with regard to Hospitalisation charges and therefore
following the law declared by Division Bench of this Court
in the case of Manish Gupta referred to supra, I am of the
view that the submission made by the learned counsel
appearing for the Insurance Company is to be accepted for
deducting Rs.1,10,000/- from the total compensation
amount which is awarded towards Medical expenses and
Hospitalisation charges.
12. Insofar as the enhancement of compensation is
concerned, looking into account injuries sustained by the
claimant as per the Exhibit P3-Wound Certificate, I am of
the view that the claimant is entitled for compensation of
Rs.30,000/- towards pain and suffering; Rs.40,000/-
towards incidental charges. Perusal of the record would
clearly indicate that the claimant has sustained grievous
injuries of fracture of L1, 2, 3, 4 bone and he was in I.C.U.
for a period of 10 days. Taking into consideration the
avocation and the Income wherein, it has come on
evidence of the claimant that there is no deduction of
salary for the period which had taken leave for treatment,
I am of the view that the claimant is not entitled for
compensation towards the same. However, taking into
consideration loss of prosperity is concerned and the
nature of work by the claimant in the aforementioned
establishment, I am of the view that amount awarded
towards loss of prosperity is on the lower side. Looking
into age of the claimant, in my considered opinion,
claimant is entitled for Rs.2,00,000/- towards loss of
prosperity. Further, considering the discomfort the
claimant has to undergo for the lifetime, I intend to award
Rs.25,000/- towards loss of amenities. Accordingly,
claimant is entitled for compensation as under:
HEAD AMOUNT(Rs.)
Pain and suffering 30,000-00
Incidental charges 40,000-00
Loss of prosperity 2,00,000-00
Loss of amenities 25,000-00
TOTAL 2,95,000-00
In result I pass the following:
ORDER
1. Miscellaneous First Appeal No.8894 of 2009 and
MFA Crob. No.90 of 2010 are allowed in part;
2. The compensation is enhanced to Rs.2,95,000/-
in lieu of Rs.2,70,000/- awarded by the Tribunal;
3. The enhanced compensation shall carry interest
at the rate of 6% per annum from the date of
petition till realisation;
4. Amount in deposit be transmitted to the Tribunal
forthwith for disbursement to the claimant.
Sd/-
JUDGE
ARK
