Karnataka High Court
The Divisional Manager vs Bhimagouda Shankar Jagadev on 27 January, 2022
Bench: S G Pandit, Anant Ramanath Hegde
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JANUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
M.F.A.NO.103004 OF 2015 (MV)
C/W
M.F.A. CROB.NO.100050 OF 2019 (MV)
IN M.F.A.NO.103004 OF 2015 (MV)
BETWEEN
THE DIVISIONAL MANAGER,
SHRIRAM GENERAL INSURANCE COM LTD.,
E-8, EPIP, RIICO,
SITAPUR, JAIPUR, RAJASTHAN - 302022.
NOW AT SHRIRAM GENERAL INS COM LTD.,
NO.5/4, 3RD FLOOR, S.V. ARCADE,
BELEKAHALLI MAIN ROAD,
OFF. BENNURUGHATA ROAD, IIMB POST,
BANGALURU. RPTD BY
AUTHORIZED SIGNATORY.
... APPELLANT
(BY SRI N. C. KOLLORI, ADVOCATE)
2
AND
1. BHIMAGOUDA SHANKAR JAGADEV,
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O: NAGANUR P.K., TQ: ATHANI,
DIST: BELAGAVI - 590 002.
2. SANJAY SHANAKARAPPA RATHOD,
AGE: MAJOR, OCC: BUSINESS,
A/P: DHARANGUTTI, TQ: SHIROL,
DIST: KOLHAPUR - 563 101.
... RESPONDENTS
(BY SRI SANJAY S. KATAGERI, ADVOCATE FOR R1
R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 05.06.2015
PASSED IN MVC NO.636/2014 ON THE FILE OF THE IX
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL AT BELAGAVI,
AWARDING THE COMPENSATION OF RS.10,10,000/- ALONG WITH
SIMPLE INTEREST AT THE RATE OF 9% P.A. FROM 03.04.2014 TILL
REALIZATION AND RS.20,000/- WHICH SHALL BE DEPOSITED
BEFORE THE TRIBUNAL WITHIN ONE MONTH FROM THE DATE OF
THIS ORDER.
IN M.F.A. CROB.NO.100050 OF 2019
BETWEEN
SRI BHIMAGOUDA SHANKAR JAGADEV,
AGE: 27 YEARS, OCC: AGRICULTURE ( NOW NILL),
R/O: NAGANUR PK., TAL: ATHANI,
DIST: BELAGAVI - 591 240.
... PETITIONER
(BY SRI SANJAY K. KATAGERI, ADVOCATE)
AND
1. SRI SANJAY SHANKARAPPA RATHOD,
AGE: MAJOR, OCC: BUSINESS,
R/O: AT:POST: DHARANGUTTI, TAL: SHIROL,
DIST: KOLHAPUR - 416 102.
2. THE DIVISIONAL MANAGER,
SHRIRAM GENERAL INSURANCE COMPANY LTD.,
E-8, EPIP, RIICO, SATAPURA, JAIPUR,
RAJASTHAN - 302 022.
... RESPONDENTS
(BY SRI N. C. KOLLORI, ADVOCATE FOR R2,
NOTICE TO R1 IS SERVED)
THIS MFA. CROB IN MFA NO.103004/2015 IS FILED UNDER
SECTION 41 RULE 22 OF CRC. R/W SECTION 173(1) OF THE
MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 05.06.2015 PASSED IN MVC NO.636/2014 ON THE
FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE
AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE MFA's COMING ON FOR FINAL HEARING,
ANANT RAMANATH HEGDE, J DELIVERED THE FOLLOWING:
COMMON JUDGMENT
The judgment and award in MVC No.636/2014 passed by
the IX Additional District and Sessions Judge & Additional MACT,
Belagavi in terms of which, the compensation of
Rs.10,10,000.00 along with simple interest at the rate of 9%
from 03.04.2014 till realization of the award passed against the
respondent, made the insurer (2nd respondent before the
Tribunal) to assail the correctness of the same on the ground
that the compensation is on the higher side and accordingly the
appellant in MFA No.103004/2015 has sought for reduction of
the compensation. The petitioner before the claims Tribunal is
the first respondent in this appeal filed by the insurer.
2. The first respondent is also taking exception to the
judgment and award referred above by filling
MFA.CROB.No.10005/2019. The cross objector is praying for the
enhancement of the compensation.
3. Both the cases are taken up together. The learned
counsel for both parties is heard extensively. This Court has
perused the impugned judgment and award and also the
evidence placed before the Tribunal.
4. The occurrence of an accident involving the Tractor
bearing registration No.KA23/TA-7468 attached to the Trailer
bearing registration No.KA-23/T-1562, with the vehicle and the
truck bearing registration No.MH-42/B-7143 is not in dispute.
The Lorry in question bearing registration No.MH/42/B-7143 is
owned by the first respondent and insured by the second
respondent. This fact is also not in dispute. The charge sheet is
filed against the driver of the Lorry and based on the charge
sheet and other materials on record, the Tribunal concluded that
the driver of the Lorry is responsible for the accident in question.
5. The finding of the Tribunal on negligence on the part
of the driver of the lorry is not questioned by the appellant. Even
otherwise, there is no material to hold that the driver of the lorry
was not negligent and is not the cause of the accident. The
respondent owner of the lorry, the driver of the lorry or the
insurer have not led any evidence to dispute the allegations of
negligence levelled against the driver of the lorry.
6. Under these circumstances, the question required to
be answered is,
"Whether the judgment and award passed by
the Tribunal require any interference and if so to
what extent?"
7. The claimant before the Tribunal was aged 22 years
and claimed to be an agriculturist. It is alleged that the claimant
suffered fractures of the neck of the right femur and fracture of
the Ilium. The Tribunal has taken the income of the deceased at
Rs.7,000.00 per month for want of proof regarding the income.
The Tribunal has also taken into account 30% disability while
calculating future loss of income. And based on other materials
on record has awarded compensation under the following heads.
SL. CALCULATION
HEADS
NO. RS.
1. Pain and Sufferings RS.70,000.00
2. Future loss of happiness and amenities Rs.1,00,000.00
Loss of income during the period of
3. Rs.32,500.00
treatment
4. Incidental charges Rs.35,000.00
5. Medical expenses Rs.3,51,300.00
6. Loss of future income Rs.4,21,200.00
7. Future medical expenses Rs.20,000.00
TOTAL COMPENSATION AWARDED Rs.10,30,000.00
8. Add interest at the rate of 9% is also awarded on the
said amount.
9. The learned counsel for the appellant would urge the
following contentions;
a) The tribunal could not have taken functional
disability at 30% for calculating loss of future
income.
b) The award of compensation of Rs.70,000.00
under the head of pain and suffering and
award of compensation Rs.1,00,000.00 under
the head for the loss of amenities are on the
higher side.
c) It is also urged that the interest of 9% could
not have been granted considering the present
rate of interest awarded by the Nationalized
Banks.
Based on these contentions appellant urged before this
Court to modify and reduce the compensation.
10. The learned counsel for the claimant/ respondent
opposing the appeal for a reduction of the compensation and
supporting cross objection for enhancement of compensation
makes the following submissions.
a) Considering the permanent disability incurred
by the claimant the Tribunal should have taken
functionally disability at 50% as against 30%
taken by the Tribunal.
b) Considering the fact that the claimant was
inpatient for 76 days and had undergone
surgery the compensation of Rs.70,000.00
under the head of pain and suffering is on the
lower side.
c) Assessment of income of Rs.7,500.00 per
month is on the lower side and same should be
taken at Rs.10,000.00 per month and 40% is
to be added towards loss of future prospects.
d) It is also urged that award of compensation for
loss of income during the laid-off period is also
on the lower side and considering the fact that
the claimant was inpatient for 76 days the
Tribunal should have awarded income for 9
months.
11. We have considered contentions raised in the bar
and peruse the materials on record.
[
12. The records placed before the Tribunal would
demonstrate that the petitioner has undergone two surgeries for
fractures sustained by him and he was inpatient for 76 days.
Given the fracture and the long duration of treatment he has
undergone as an inpatient, the award of compensation at
Rs.70,000.00 under the head pain and suffering is on the lower
side and needs to be enhanced to Rs.1,00,000.00.
13. The Tribunal while awarding the compensation
under the head of disability has accepted the functional disability
at 30%. However, it is to be noted that the Doctor has not
referred to 30% disability as a functional disability. As per
Ex.P.12, the disability assessed by the Doctor is a disability to
the whole body and said disability cannot be termed as 30%
functional disability. Since the Doctor has opined that the hip
movement is at 90 degrees, and given the fact that the claimant
is an agriculturist, the Tribunal should have taken 1/3rd of the
disability to the whole body as the functional disability which
comes to 10%.
14. The accident occurred in 2013 the Tribunal has taken
the income of the deceased at Rs.6,500.00 per month. There is
no evidence placed on record to prove the income of
Rs.5,00,000.00 p.a. claimed by the claimant. In the absence of
proof relating to income, the Court has to consider the notional
income of the claimant with reference to the year of the
accident. In such a scenario, the chart prepared by the
Karnataka State Legal Services Authority would be the guiding
factor to determining national income. As per the said chart Rs.,
7,000.00 would be the notional income for in respect of accident
which occurred in the year 2013. Thus, loss of income on
account of disability would be Rs.7,000.00. There is no dispute
over the age of the deceased. Hence, the multiplier would be 18.
Thus compensation under this head of loss of future prospect
would be Rs.7000.00 + Rs.2,800.00 (40% future prospects) X
12 (months) X 18 (Multiplier) X 10% (disability) Total
Rs.2,11,680.00.
15. Under these circumstances the claim for higher
compensation under the head of loss of future income by the
claimant/cross objector is not sustainable and the
insurer/appellant is justified in seeking reduction of
compensation under the head of loss of future income.
16. The contentions of the insurer that award of 9%
interest on the compensation awarded by the Tribunal being on
the higher side also needs consideration given the present rate
of interest prevailing in the nationalized bank interest has to be
reduced from 9% p.a. to 6% p.a.
17. Learned counsel for the cross objector in support of
his contentions, has placed on reliance on the following
judgments of the Hon'ble Apex Court.
i) Syed Sadiq Etc., V/S Divisional Manager United India Ins.
Co. (2014) 1T.A.C. 369 SC.
ii) Erudhaya Priya V/s State Express Transportation
Co. Ltd., AIR (2020) SC 4284.
iii) Kajal V/s Jagadish, (2020) 4 SCC 413.
18. Placing reliance on the above said judgments,
learned counsel for cross objector would urge that the Tribunal
should have taken 50% functional disability while calculating the
income on the head of loss of income owing to disability. None of
the above said cases would come to the rescue of the cross
objector to seek higher compensation on the ground of disability
as the above-referred cases are rendered on different factual
contexts where the claimants suffered a higher percentage of
functional disability than the present cross objector. The
appellant has failed to establish functional disability about the
injury sustained by him.
19. Under these circumstances, the appeal filed by the
insurer is allowed in part and the compensation awarded by the
Tribunal is reduced as under.
SL. CALCULATION
HEADS
NO. RS.
1. Pain and Sufferings RS.1,00,000.00
Future loss of happiness and
2. Rs.1,00,000.00
amenities
Loss of income during the period of
3. Rs.32,500.00
treatment
4. Incidental charges Rs.35,000.00
5. Medical expenses Rs.3,51,300.00
6. Loss of future income Rs.2,11,680.00
7. Future medical expenses Rs.20,000.00
TOTAL COMPENSATION AWARDED Rs.8,50,480.00
ROUND OFF TOTAL Rs.8,50,500.00
20. Interest at the rate of 6% p.a. on Rs.8,50,500.00 is
awarded from the date of the petition till the date of actual
payment.
Hence, the following,
ORDER
For the aforesaid reasons, MFA No.103004/2015 is allowed
in part.
The MFA.CROB.No.100050/2019 is dismissed. The
judgment and award passed dated 05.06.2015 passed by the IX
Additional District and Sessions Judge & Additional MACT,
Belagavi is set aside and respondents are jointly and severally
liable to pay compensation of Rs.8,50,500.00 along with interest
at 6% p.a. from the date of the petition till the date of
realization.
Sd/-
JUDGE
Sd/-
JUDGE
SSP
