Sri Hareesh Krishna Naik vs S S S Associates
2022 Latest Caselaw 170 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 5th DAY OF JANUARY, 2022

                            BEFORE

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                M.F.A.No.4440/2019 (MV, I)
                           C/W
                 M.F.A.CROB.No.140/2019

IN M.F.A.No.4440/2019

BETWEEN:

UNITED INDIA INSURANCE CO. LTD.,
KUNDAPURA BRANCH, S.L.V. COMPLEX,
VADERHOBLI, KUNDAPURA.
REP.BY ITS BRANCH MANAGER,
REP. BY ITS DIVISIONAL MANAGER,
PIN-576101.                      ...APPELLANT

[BY SRI. RAVISH BENNI, ADV. (VC)]

AND:

1.     HAREESH KRISHNA NAIK,
       S/O KRISHNAPPA NAIK,
        AGED ABOUT 27 YEARS,
       R/O HOSAMANE, MUNDALLI,
       BHATKAL TALUK,
       U.K. DISTRICT,
       PIN-581320.

2.     S.S.S. ASSOCIATES,
       MUNAMBAM,
       PALLIPORT POST,
       ERNAKULAM, KERALA,
       PIN-683515.                     ...RESPONDENTS

[BY SRI. NAGARAJA HEGDE, ADV. FOR R1;
 NOTICE TO R2 DISPENSED WITH V/O/D:11.06.2019]
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     THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED.
05.03.2019, PASSED IN MVC NO.1004/2017, ON THE FILE OF
THE ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT,
UDUPI (SITTING AT KUNDAPURA), AWARDING COMPENSATION
OF RS.7,49,300/- WITH INTEREST AT THE RATE OF 6 PERCENT
P.A., ON RS.7,19,300/- (EXCLUDING RS.30,000/- FUTURE
MEDICAL EXPENSES) FROM THE DATE OF PETITION TILL THE
DEPOSIT OF PAYMENT.

IN M.F.A.CROB.No.140/2019

BETWEEN:

HAREESH KRISHNA NAIK,
S/O KRISHNAPPA NAIK,
AGED ABOUT 27 YEARS,
R/O HOSAMANE, MUNDALLI,
BHATKAL TALUK,
U.K. DISTRICT,
PIN-581320.                         ...CROSS OBJECTOR

[BY SRI. NAGARAJA H.R.., ADVOCATE (VC)]

AND


1.    S.S.S. ASSOCIATES,
      MUNAMBAM,
      PALLIPORT POST,
      ERNAKULAM-683515,
      KERALA.

2.    UNITED INDIA INSURANCE CO. LTD.,
      KUNDAPURA BRANCH, S.L.V. COMPLEX,
      VADERHOBLI, KUNDAPURA-576101.
      REP.BY ITS BRANCH MANAGER.        ... RESPONDENTS

[BY SRI. RAVISH BENNI, ADV. (VC)]


      MFA CROB IN MFA NO.4440/2019 FILED U/O.XLI RULE
22(1) R/W SEC.173(1) OF MV ACT AGAINST THE JUDGMENT
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AND AWARD DT.05.03.2019 PASSED IN MVC NO.1004/2017 ON
THE FILE OF THE COURT OF ADDITIONAL DISTRICT JUDGE AND
ADDITIONAL      MACT,    UDUPI,       (SITTING   AT   KUNDAPURA),
KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION         AND      SEEKING        ENHANCEMENT         OF
COMPENSATION.


      THESE MFA AND MFA CROB COMING ON FOR ORDERS
THIS DAY, THE COURT, DELIVERED THE FOLLOWING:


                         JUDGMENT

Challenging the judgment and award dated 05.03.2019

passed by the Motor Accident Claims Tribunal, Udupi, (sitting at

Kundapura) Kundapura ('tribunal' for short), in MVC

No.1004/2017, these appeal and Cross objections are filed under

Section 173(1) of the Motor Vehicles Act, ('M.V. Act' for short)

and Order XLI rule 22 of Code of Civil Procedure, 1908

respectively.

2. Brief facts as stated are that on 08.05.2017 at about

1.45 p.m. claimant was driving Bolero pick-up goods bearing

registration no.KA-20-D-3742 from Bhatkal towards Kannur.

When he reached near Chemmanadu Village, Kasaragod Taluk, a

lorry bearing registration no.KL-42-J-492 came from opposite

side driven by its driver in a rash and negligent manner and

dashed against Bolero vehicle. Due to said accident, claimant

sustained grievous injuries and was admitted to Government

Hospital, Kasaragod. He was shifted to Wenlock Hospital,

Mangalore and later to Highland Hospital, Mangalore, wherein he

took treatment. Despite treatment he did not recover fully and

sustained permanent physical disability. Alleging loss of earning

capacity due to the same, he filed claim petition against owner

and insurer of offending Lorry.

3. Despite service of summons, respondent-owner did

not contest and was placed ex-parte. Second respondent-insurer

filed objections denying claim petition averments that accident

was not due to negligence of driver of lorry. Though issuance and

validity of insurance policy was admitted, violation of terms and

conditions of policy was alleged. Age, occupation, income and

disability of claimant were also denied.

4. Based on pleadings tribunal framed following issues.

1. Whether the petitioner proves that he suffered injuries in RTA that occurred on 08.05.2017 at about 1.45 hours near Chemmanad Village, due to rash and negligent driving by the driver of lorry bearing Reg.No.KL-42-J-492?

2. Whether the petitioner is entitled for compensation? If so, what is the quantum and from whom?

3. What order or award?

5. In support of his case, claimant got himself examined

as PW-1 and doctor as PW-2. Exhibits P.1 to P.20 were marked.

Respondents did not enter witness box but got marked one

document as Ex.R1. during confrontation.

6. On consideration, tribunal answered issue no.1 in the

affirmative, issue no.2 partly in affirmative and issue no.3 by

allowing claim petition in part and awarding compensation of

Rs.7,49,300/- against owner and insurer with interest at 6% per

annum. Aggrieved by the same, insurer has filed MFA

No.4440/2019 challenging finding on negligence and also

quantum of compensation. The claimant has filed MFA Crob.

No.140/2019 seeking enhancement of compensation.

7. Sri. Ravish Benni, learned counsel for insurer

contended that claimant suffered fracture of right leg and

fracture of right ankle and other grievous injuries. He examined

Dr. Suresh Kumar as PW-2, who did not treat claimant, but

issued disability certificate in his letterhead. Learned counsel

further contended that though PW-2 is not an orthopedic

surgeon, he assessed 35% permanent physical disability but not

assessed functional disability. Instead of applying 1/3rd limb

disability as whole-body disability rule, tribunal erred in taking

'½' which was against AIMCO guidelines and Gazette Notification

dated 13.06.2001 issued by Ministry of Social Justice and

Empowerment, Government of India. Learned counsel further

contended that whole body disability could not have been

assessed at more than 10%. It was further contended that, even

award towards pain and sufferings, future medical expenses, loss

during bed rest and future earning capacity were also excessive

and require reduction. He further submitted that insurer has

deposited entire amount of compensation awarded by tribunal

with interest on 30.07.2019 and prayed that excess amount may

be directed to be refunded and for a direction denying interest

from 30.07.2019.

8. On the other hand, Sri. Nagaraja H.R., learned

counsel for respondent-claimant and cross-objector submitted

that Tribunal awarded Rs.60,000/- towards pain and suffering,

which was gravely inadequate, as injuries and disability

sustained by claimant were not considered. Even award of only

Rs.9,000/- towards loss of earning during laid up period was on

lower side. And tribunal erred in taking only Rs.9,000/- as

monthly income of claimant even though claimant was working

as driver in 2017 and earning Rs.20,000/- per month as per

Ex.P8 - salary certificate. Further Rs.15,000/- awarded towards

conveyance, nourishment and attendant charges also required

enhancement as claimant treatment for 28 days as inpatient. It

was submitted that no compensation was granted towards loss of

amenities. Tribunal failed to consider loss of marriage

prospectus. On above grounds, learned counsel sought for

dismissal of insurer's appeal and allowing cross objection.

9. From above submissions, occurrence of accident due

to rash and negligent driving of insured vehicle by its driver and

claimant sustaining injuries in said accident are not in dispute.

Issuance of insurance policy by insurer and its validity on date of

accident are also not in dispute. The insurer has filed appeal

challenging quantum, while claimant seeking for enhancement of

compensation. Therefore, only point that arise for consideration

in these matters are:

"Whether the award passed by tribunal requires modification as sought for?"

10. Claimant stated that he was aged about 26 years and

earning Rs.20,000/- per month. But he did not produce any

evidence to substantiate the same. Therefore, tribunal would be

justified in assessing income on notional basis. As notional

income adopted by Karnataka State Legal Services Committee

for settlement of cases before Lok Adalath for the year 2017 is

Rs.11,000/-, same has to be taken. PW-2 assessed limb

disability of claimant at 35%. The claimant sustained fracture of

talus bone of right leg and fracture of lateral malleolus. While

assessing functional disability, tribunal has not assigned any

reasons and not considered nature of disability vis-a-vis

occupation of claimant. The said method would be erroneous and

requires interference. Claimant was driver. He sustained

disability to his right leg. The same would affect his earning

capacity. In the facts and circumstances of this case, it would be

reasonable to consider 12% as loss of earning capacity. As per

medical records, age of claimant is 26 years. Multiplier applicable

would be '17'. Hence, future loss of income would be:

Rs.11,000 x 12% x 12 x 17 = Rs.2,69,280/-.

11. Tribunal has awarded Rs.60,000/- towards injury,

pain and sufferings. As claimant sustained two fractures, same

would be justified and does not call for interference.

12. Tribunal has awarded Rs.30,000/- towards medical

expenses in complete reimbursement of bills produced.

Therefore, there is no scope for interference. As per PW2,

claimant requires one more surgery, therefore award of

Rs.30,000/- towards future medical expenses does not call for

interference. Tribunal has awarded Rs.9,000/- towards loss of

earning during treatment and Rs.63,000/- towards loss of bed

rest. Normally fractures take three months to heal. As award by

tribunal would be excessive, it requires to be reduced to three

months, which would be Rs.11,000/- x 3 = Rs.33,000/-. Tribunal

awarded Rs.15,000/- towards conveyance, nourishment and

attendant charges, which appears to be adequate. However,

tribunal has not awarded compensation towards loss of

amenities. Considering disability sustained by claimant to his

right leg, it would be just and proper to award Rs.30,000/-

towards loss of amenities. Thus, reassessed award would be as

follows:

Sl.                             As per award             As
             Particulars
No.                              of tribunal       re-determined
1.    Pain and sufferings             Rs.60,000         Rs.60,000
2.    Medical expenses               Rs.2,50,988      Rs.2,50,988

3.    Future Medical Expenses         Rs.30,000         Rs.30,000
      Loss of earning during
4.                                     Rs.9,000
      treatment                                         Rs.33,000
5.    Loss of bed rest                Rs.63,000
      Loss of future earning
6.                                   Rs.3,21,300      Rs.2,69,280
      capacity
      Conveyance, nourishment
7.                                    Rs.15,000         Rs.15,000
      and attendant charges
8.    Loss of amenities                      ---        Rs.30,000
                Total            Rs. 7,49,288        Rs.6,88,268

Point for consideration is answered partly in affirmative as

above.

Insofar as submission of learned counsel for appellant for

eschewing liability of insurer to pay interest after 30th of July

2019, it is seen that the award amount was not deposited before

the tribunal. In fact, appellant-insurer deposited the award

amount in pursuance of conditional interim order granted by this

Court on 11.06.2019. The said deposit appears to be made

without giving notice of deposit to claimant as required under

Order XXI Rule 1(2) of CPC. As per Rule 1(4) of Order XXI,

interest would cease to run from the date of service of notice

under Rule 1(2). Unless deposit of decreetal amount is in

compliance of above rules, such submission cannot be acceded

to. Hence, the following:

ORDER

i) MFA No.4440/2021 filed by insurer and MFA Crob.

No.140/2019 filed by claimant are allowed in part.

ii) The total compensation awarded by the Tribunal is modified. It is held that claimant would be entitled for a total compensation of Rs.6,68,268/- (Rupees Six Lakhs Sixty-Eight Thousands Two Hundreds and Sixty-Eight only) as against Rs.7,49,288/- awarded by tribunal, with interest at the rate of 6% per annum from the date of filing claim petition till the date of deposit. There is reduction of compensation by Rs.81,020/-.

iii) The entire award amount including amount in deposit (with accrued interest thereon) shall be transmitted to tribunal for disbursement. After disbursing award amount to claimant, excess amount shall be refunded to insurer.

Sd/-

JUDGE

JS/-