The Oriental Insurance Co.Ltd vs Siddappa S/O Irappa Kambali
2022 Latest Caselaw 799 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 18 T H DAY OF JANUARY, 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

              M.F.A. No.101624/2017 (MV)

BET WEEN

THE ORIENTAL INS URANCE CO.LT D.,
BRANCH OFFICE, MU DHOL,
RANNA CIRCLE, MU DHOL,
DISTR ICT: B AGALKOT,
THROU GH T HE DIVIS IONA L MANAGER,
THE ORIENTAL INS URANCE CO.LT D.,
2 N D FLOOR, MADIWALA ARCADE,
CLUB ROAD, B ELAGAVI, NOW REP.BY
AU THORIZ ED SIGNATORY
DEPU TY MANAGER.
                                           ...APPELLANT
(BY SMT.ARUNA R.DESHPANDE, ADV OCATE)

AND

1.    SIDDAPPA S/O IRA PPA KAMB LI,
      AGE: 37 YEARS,
      OCC: COOLIE,
      R/O GORAVANKO LLA,
      TQ: SAVADATTI,
      DIST: B ELAGAVI.

2.    RAJU T.KALATIP PI,
      AGE: 33 YEARS,
      OCC: BU SINESS,
      R/O KALATIPPA GA LL I,
      AT/POST: TERADAL,
      TQ: JAMKHANDI,
      DIST: B AGALKOT.
                                        ...RESPONDENTS

(BY SRI GU RURAJ R.TU RAMANI, ADVOCATE FOR R1;
                                 2




NOTICE TO R2 DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 31.12.2 016 PASS ED IN
MVC No.1157/ 2015 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MEMB ER, ADDITIONAL MOTOR ACCIDENT
CLAIMS T RIB UNAL, SAU NDAT TI, PART LY ALLOWING THE
CLAIM   PET IT ION FOR  COMPENSAT ION   AND  S EEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:

                          JUDGMENT

The insurer of the offend ing Tata Vista car bearing

registration No.KA-48/M-4824 has preferred this appeal

challenging the judgment and award dated 31.12.2016

passed by the Court of Senior Civil Judge and

Member, Addl. M.A.C.T., Saundatti (hereinafter

referred to as the 'Tribunal', for brevity) in MVC

No.1157/2015 on the ground of liability as well as on

the ground of quantum.

2. Though this appeal is listed for admission,

with the consent of the learned counsels appearing

for the parties, the appeal is taken up for final

disposal. The parties to this appeal are referred to by

their rankings before the Tribunal for the purpose of

convenience.

3. Brief facts of the case that would be

relevant for the purpose of disposal of this appeal

are:

On 26.06.2014, when the claimant was riding his

motorcycle bearing registration No.KA-24/K-867, the

offending car bearing registration No.KA-48/M-4824

had dashed against the motorcycle on Munavalli-

Saundatti road near Timmappanavar Maddi and

caused the accident. In the said accident, the

claimant was grievously injured and he was taken to

Government Hospital, Saundatti, wherein he was

treated as an inpatient. The claimant had filed a

claim petition under Section 166 of the Motor

Vehicles Act, 1988 (for short, the 'Act') claiming

compensation from the owner and insurer of the

offending car in respect of the injury sustained by

him in the accident that had taken place on

26.06.2014. The Tribunal vide its impugned judgment

and award partly allowed the claim petition awarding

the compensation of `5,19,925/- with interest at 9%

per annum from the date of petition till realization.

Since the offending vehicle was duly insured by the

appellant-insurer as on the date of accident, the

liability to pay the compensation amount was saddled

on the insurer. Being aggrieved by the same, the

insurer of the offending car has preferred this appeal.

4. Learned counsel for the insurer submits

that the Tribunal was not justified in attributing the

entire negligence on the driver of the offending car.

She submits that the injured had also contributed to

the accident in question and therefore the Tribunal

ought to have appreciated this aspect of the matter

and held the injured also guilty of contributory

negligence. She submitted that the compensation

awarded by the Tribunal on all heads is on the higher

side. She also submits that the accident had taken

place in the year 2014 and therefore notional income

of the claimant ought to have been taken at `7,500/-

instead of `9,000/-. She submits that the

compensation awarded towards pain and suffering

and towards loss of future amenities is on the higher

side. She submits that the claimant is not entitled for

any future medical expenses. Accordingly, she prays

to allow the appeal.

5. Per contra, learned counsel appearing for

the claimant submits that there is no evidence placed

on record by the insurer or the owner of the vehicle

to prove that the claimant was also guilty of

contributory negligence. He submits that the charge

sheet has been filed against the driver of the

offending vehicle and therefore there is no

justification on the part of insurer in contending that

the injured was also required to be held liable for

contributory negligence. He submits that the

compensation awarded by the Tribunal is just and

proper and needs no interference. Accordingly, he

prays to dismiss the appeal.

6. I have carefully appreciated the arguments

addressed on both sides and also perused the

material evidence available on record.

7. The accident in question is not in dispute,

so also the involvement of the offending car bearing

registration No.KA-48/M-4824 which was duly insured

by the appellant-insurer as on the date of accident.

The police after investigation have filed a charge

sheet against the driver of the offending car. Though

the learned counsel for the insurer has submitted

that the rider of the motorcycle was also guilty of

contributory negligence, there is absolutely no

material placed on record in this regard. No evidence

has been led either by the owner or by the insurer to

prove that the injured claimant was also guilty of

contributory negligence. Under the circumstances,

there is no merit in the contention urged by the

insurer that the injured claimant was also guilty of

contributory negligence.

8. Insofar as the quantum of compensation

awarded by the Tribunal is concerned, on

re-appreciation of the oral and documentary evidence

available on record, I am of the considered view that

the Tribunal has awarded higher compensation

considering the injuries suffered by the claimant and

the treatment undergone by him. The claimant is an

agricultural coolie and in the absence of any

substantive evidence to prove his income, the

Tribunal ought to have considered the notional

income of the claimant at `7,500/- having regard to

the year of accident in view of the income chart

maintained by the Karnataka Legal Services Authority

for the purpose of disposal of motor accident cases in

the Lok Adalath. Having regard to the age of the

claimant, the applicable multiplier would be '16' and

the whole body disability suffered by the claimant

has been rightly taken up by the Tribunal at 14%. If

the notional income is taken at `7,500/-, the

claimant would be entitled for a sum of `2,01,600/-

towards loss of future earning capacity due to the

disability as against `2,41,920/- awarded by the

Tribunal.

9. The claimant had suffered one fracture

injury and four other simple injuries. Therefore,

towards pain and suffering, the claimant would be

entitled for a sum of `35,000/- as against `80,000/- .

Towards attendant, extra nourishment and

conveyance charges having regard to the period of

treatment undergone by the claimant, he is entitled

for a sum of `10,000/- as against `32,000/- awarded

by the Tribunal. Towards loss of income during laid

up period, the claimant would be entitled for a sum of

`22,500/- as against `36,000/- awarded by the

Tribunal. Towards loss of amenities, the claimant

would be entitled for a sum of `30,000/- as against

`80,000/- awarded by the Tribunal. Having regard to

the fact that the claimant was treated in a

government hospital and he had not incurred any

expenses, there is no justification in awarding

`50,000/- towards future medical expenses in the

absence of any medical evidence to the said effect.

Therefore, the claimant would not be entitled for any

amount towards future medical expenses. Overall the

claimant would be entitled for a total compensation

of `2,99,000/- as against `5,19,925/- awarded by the

Tribunal which would be as follows:

1 Loss of future earning `2,01,600/-

capacity 2 Pain and suffering `35,000/-

    3      Attendant,           extra       `10,000/-
           nourishment            and
           conveyance charges
    4      Loss of income during laid       `22,500/-
           up period
    5      Loss of amenities                 `30,000/-
           Total                           `2,99,100/-

10. As rightly contended by the learned counsel

for the insurer, the Tribunal was not justified in

awarding rate of interest at 9% per annum and in my

considered view the Tribunal ought to have been

awarded the interest at 6% per annum which is being

awarded consistently by this Court. Accordingly, the

following:

ORDER

The Miscellaneous First Appeal is allowed in part.

The claimant is entitled for a compensation of `2,99,100/- as against the amount of `5,19,925/- awarded by the Tribunal. The compensation amount awarded shall carry interest at 6% per annum.

The appellant-insurer is directed to deposit the compensation amount awarded by this Court with interest before the tribunal within a period of six weeks from the date of receipt of certified copy of this order.

The amount in deposit before this Court is directed to be transferred to the Tribunal for the purpose of disbursement.

The order passed by the Tribunal with regard to disbursement and deposit etc., shall remain unaltered.

SD/-

JUDGE

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