Divisional Manager vs Sagar Sukhdev Talwar
2022 Latest Caselaw 10176 Kant

         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

       DATED THIS THE 4TH DAY OF JULY, 2022

                      BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

           M.F.A.NO.101105/2015 (MV-I)

BETWEEN

   DIVISIONAL MANAGER,
   ORIENTAL INSURANCE CO. LTD.,
   D.O. CLUB ROAD, BELAGAVI.
   NOW REPTD., BY ITS
   DEPUTY MANAGER,
   REGIONAL OFFICE, HUBLI.
                                        ...APPELLANT
      (By Sri RAJASHEKHAR S ARANI, ADVOCATE)

AND

1 . SAGAR SUKHDEV TALWAR,
    AGE:23 YEARS,
    OCC: AGRICULTURE
    AND CENTERING NOW NIL,
    R/O: AMBEDKAR GALLI,
    SHINDOLLI, BELAGAVI.

2 . RANJEET BAJIRAO PATIL,
    AGE:36 YEARS,
    OCC:BUSINESS,
    R/O: PLOT NO. 100, SHARAF
    COLONY, TILAKWADI,
    BELAGAVI.
                                       ...RESPONDENTS
      (By Sri : SANJAY S KATAGERI FOR R1, R2-SERVED)

                        ***
                              2



     MFA IS FILED U/S.173(1) OF MV ACT,1988,
AGAINST THE JUDGMENT & AWARD DATED:05.01.2015,
PASSED IN MVC.NO.799/2014, ON THE FILE OF THE
PRESIDING OFFICER, FAST TRACK COURT-I AND MEMBER
ADDITIONAL   MOTOR     ACCIDENT    CLAIM   TRIBUNAL
BELAGAVI, AWARDING COMPENSATION OF Rs.2,16,000/-
ALONG WITH INTEREST AT THE RATE OF 6% P.A. FROM
THE DATE OF PETITION TIL ITS REALIZATION, ETC.,

    THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                         JUDGMENT

This appeal is directed against the judgment and

award dated 05.01.2014 passed by the Fast Track Court-I

and Member Additional M.A.C.T. Belagavi in M.V.C. No.799

/2014 by the Insurance Company. This appeal is

premised on the ground that the Tribunal has committed

gross error in awarding exorbitant compensation to the

claimants.

2. Though this matter is listed for admission, with

consent of learned counsel on both sides, matter is taken

up for final disposal.

3. Parties to the appeal shall be referred to as per

their status before the Tribunal.

4. Brief facts of the case are as under:

On 21.06.2013 at about 03.00pm the claimant was

traveling on a motor cycle bearing Registration No. KA-22

EJ-2087 from Belagavi to Shindholli and when they came

near Bhavani Garage, the rider of the Hero Honda motor

cycle bearing Registration No. KA-22 Q-4880 came in a

high speed and in a rash and negligent manner so as to

endanger human life from Sambra side towards Under

Bridge and dashed against the motor cycle belonging to

the claimant thereby causing accident. Due to the

occurrence of accident claimant sustained grievous injuries

and he was immediately taken to Vijaya Hospital, Belagavi

for treatment. The claimant sustained fracture of left

thigh and other injuries and incurred expenses of more

than one lakh for treatment. In spite of all these the

claimant not completely recovered.

5. The claimant was hale and healthy prior to

accident and was involved in agriculture work and

centering work and earning Rs.15,000/- per month. Due

to the injuries sustained in the accident claimant has lost

his earning capacity which he was able to earn prior to the

accident, thereby he suffered permanent disability. The

accident in question was due to rash and negligent

manner of driving of the rider of the offending vehicle and

therefore, respondents are jointly and severally liable to

pay compensation. Hence, he filed a claim petition

seeking compensation.

6. On notice being issued, respondent No.1

remained absent and was placed exparte. Respondent

No.2 appeared and filed statement of objections, inter alia,

denying the claim and contended that the entire case

foisted by the claimant is false, frivolous and fictitious. It

is also contended that there is violation of terms and

conditions of the insurance policy by the rider of the motor

cycle, who did not have a valid and effective driving

licence as on the date of accident. He further contends

that that the claim petition was also defended on the

ground of non-framing of proper issues and mis-joinder of

necessary parties.

7. On the basis of pleadings, Tribunal framed

relevant issues for consideration.

8. In order to substantiate the issues and to

establish the case, claimant got himself examined as PW1

and got marked Ex.P1 to 60, whereas respondent did not

step into witness box, however, got marked Ex.R1 - Copy

of the Insurance Policy with consent.

9. On the basis of pleadings, evidence both oral

and documentary, the tribunal awarded the total

compensation of Rs.2,16,000/- along with interest @ 6%

p.a. and held respondent would be jointly and severally

liable to pay the compensation.

10. Being aggrieved by the said Judgment and

Award passed by the Tribunal, appellant-insurer is before

this Court in appeal.

11. It is vehement contention of the learned

counsel for appellant-Insurer that the Tribunal has totally

erred in passing the impugned judgment and award, which

is contrary to the material evidence both oral and

documentary and the admissions made by the claimant in

cross examination, thereby it deserves to be set aside. He

further contends that the accident has not occurred due to

any negligence of the rider of the Offending vehicle,

whereas the accident occurred due to rash and negligent

driving of the claimant himself.

12. It is also vehemently contended by the learned

counsel for Insurer that the Tribunal has grossly erred in

assessing permanent disability at 8%, which is erroneous

in view of the fact that claimant has not examined any

medical expert or doctor to establish or opine with regard

to disability. He further contends that there is delay in

filing the complaint as such the case foisted by the

claimant is fictitious and concocted and on this ground also

it deserves to be rejected. On the basis of these

submissions he seeks to allow the appeal and set aside the

judgment and award passed by the Tribunal and

consequently dismiss the claim petition filed by the

claimant.

13. Per contra, learned counsel appearing for

claimant vehemently contends that the judgment and

award passed by the Tribunal is in accordance with

material evidence both oral and documentary and the

same is well reasoned Judgment passed after considering

the facts and circumstances and so also the applicable law

as on date. He further contends that the occurrence of

accident and involvement of both vehicles in question, are

not disputed and the same is established by production of

Rs.P1 to P6, which are police records. These police

records have not been controverted by the rider of the

offending vehicle and hence occurrence of accident,

liability on the rider of the offending vehicle by way of

filing of the charge sheet to the jurisdictional police, has

been rightly considered by the Tribunal by fixing liability

and awarding compensation, which is correct and needs

no interference by this Court.

14. Learned counsel for claimant further contends

that though there is some error committed in cross-

examination of the claimant, who examined as PW1, in

stating that he was riding the vehicle, would not absolve

the liability of the rider of the offending vehicle, so also all

other material evidence has been placed before Court with

regard to occurrence of accident , police records at Ex.P1

to P6, so also the wound certificate at Ex.P7, which clearly

establish the fact that the accident occurred on

21.06.2013. Hence, it cannot be said that the case filed

by the complainant is fabricated or concocted.

15. He further contends that the argument of the

learned counsel for Insurer with regard to non-

examination of Doctor to establish the disability is not

correct and claimant placed relevant material on record to

assess the disability suffered by him. Hence, he seeks to

dismiss the appeal and to confirm the order passed by the

Tribunal.

16. It is seen from the records that Ex.P1 to P6

that the accident occurred between two vehicles, namely,

two motor cycle stated hereinabove, and due to the

occurrence of accident claimant has suffered injuries as

mentioned in the wound certificate at Ex.P7. Police

records at Ex.P1 to P6 are not seriously disputed as no

contra material is placed on record. However, learned

counsel has brought to the notice of this Court about the

complaint placed by the claimant to show that there is

delay of 15 days, which is to be taken into consideration

before this Court. He further contends that even in the

complaint the claimant has stated that offending vehicle

came from hind portion and dashed against his vehicle,

which is contrary to the material on record both oral and

documentary as there is divergent opinion and it should

not be and cannot be believed that a fictitious and false

case is foisted.

17. On examination of all these records, it is seen

that charge sheet is filed against the rider of the offending

motor cycle. If it is the case of the rider of the offending

vehicle that the offending vehicle was not involved in the

accident, nothing prevented him to challenge the charge

sheet and criminal proceedings. On the contrary, the rider

of the offending vehicle pleaded guilty before the

Magistrate, which is produced at Ex.P8. Therefore, it

cannot be argued that the rider of the offending vehicle

was not involved in the accident despite there being few

days delay in filing the complaint. Otherwise, also delay

cannot be countered by the learned counsel for appellant

because the wound certificate itself would show the date

of accident. Under these circumstances, the occurrence of

accident, liability on the rider of the offending vehicle and

involvement of these two vehicle and causation of

accident, cannot be ruled out.

18. Now coming to the age, avocation and income

of the claimant, the Tribunal has taken the notional

income of Rs.6,000/- for the accident having occurred in

the year 2013, which is lesser than the notional income

chart prescribed by the Karnataka Legal Services

Authority. The claimant is aged 28 years and the proper

multiplier is taken at 17, which is rightly adopted by the

Tribunal.

19. Further coming to the aspect of disability

assessed by the Tribunal which is opposed by the learned

counsel for appellant and the same requires consideration

in view of the fact that claimant has not examined the

medical expert or doctor to establish his case with regard

to disability having suffered by him in the accident. No

material evidence is placed before the Court with regard to

disability. Though it is contended by the learned counsel

for claimant that the claimant is from the lower strata of

society, uneducated, poor and not having knowledge of

doctor to depose in the case. However, this cannot be

accepted as claimant has prosecuted his case and

appeared before Court and in this appeal he seeks higher

compensation. This argument of the learned counsel for

the claimant is hard to believe and the same is negatived

as it is not accepted.

20. However, it is seen from the wound certificate

at Ex.P7 that claimant has sustained fracture of left femur

and it is also see that there is deformity as per the would

certificate, though claimant has not examined the doctor

Tribunal has assumed itself the role of expert opinion and

assessment by the doctor, which is incorrect and cannot

be accepted, because the Courts are not experts to get

into the shoes of an Expert Doctor and assess the

disability.

21. Be that as it may, the accident is of the year

2013, it does not make sense in remanding the matter

back to the Tribunal for examination of the doctor, who

assessed the disability, as already parties have spent

almost more then a decade in the present case. Keeping

above into consideration and the wound certificate,

wherein it is shown that there is deformity and fracture of

femur to the claimant, this Court, as a special case, takes

on itself to assess the disability, which would have taken

into consideration by the doctor while assessing disability

in a case where deformity and fracture of femur. In the

circumstances, I deem it proper to assess the disability at

5% instead of 8% disability assessed by the Tribunal.

22. All other terms and conditions stipulated in the

judgment and award of the Tribunal with regard to age,

multiplier, income are quite reasonable and the same does

not call for interference. Accordingly, the only interference

that could be drawn in the specific case on hand is

towards loss of future earning capacity, which is assessed

at Rs.61,200/- as against Rs.97,920/- awarded by the

Tribunal. The other compensation awarded under the

head are reasonable and the same are not interfered.

Hence, the claimant is entitled to total compensation as

mentioned in the table below:

SL.                 HEAD                       AMOUNT
NO.
01.    PAIN AND SUFFERING                RS.   30,000/-
02.    FUTURE AMENITIES                  RS.   15,000/-
03.    LOSS OF EXPECTANCY                RS.   10,000/-
04.    MEDICAL EXPENSES                  RS.   30,000/-

05. CONVEYANCE, NOUORISHMENT RS. 10,000/-

ATTENDANT CHARGES

06. FUTURE MEDICAL EXPENSES RS. 5,000/-

07.     LOSS OF INCOME DURING                     RS. 18,000/-
        LAID UP PERIOD
08.     LOSS OF FUTURE INCOME                     RS. 61,200/-
                            TOTAL                 RS.1,79,200/-

23. Accordingly, I pass the following;

ORDER

(1) Appeal is partly allowed.;

(2) The judgment and award dated 05.01.2014

passed by the Fast Track Court-I and

Member Additional M.A.C.T. Belagavi in

M.V.C. No.799 /2014, is modified.;

  (3)    The claimants are entitled to compensation

         in   a   sum     of    Rs.1,79,200/-      as   against

Rs.2,16,000/- awarded by the Tribunal.;

(4) The respondent - Insurer shall deposit the

compensation awarded within six weeks

from the date of receipt of the copy of the

order along with interest before the

jurisdictional Tribunal.;

(5) All other terms and conditions stipulated by

the Tribunal is retained.;

(6) The amount in deposit before this Court

shall be transmitted to the jurisdictional

M.A.C.T forthwith.

SD/-

JUDGE

VK