United India Insurance Co Ltd vs Shiva Kumar
2022 Latest Caselaw 10207 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 4TH DAY OF JULY 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.3917 OF 2019(MV)
BETWEEN:

United India Insurance Co. Ltd.,
No.266, Gangadarappa Complex,
Sunkadakatte,
Magadi Main Road,
Vishwaneedam Post,
Bangalore-560 091,
Rep. by its Manager.                         ... Appellant

(By Sri.Janardhana Reddy., Advocate)

AND:

1.     Shiva Kumar,
       S/o Gopal Bhovi,
       Aged about 29 years,
       Dyavalingadanapalya,
       Hejjala Village,
       Bidadi Hobli-562101,
       Ramanagara Taluk and District.

2.     Hanumanthaiah M.,
       S/o Ramanna,
       Major in age,
       R/at No.46, 9th Main Road,
       Near Pipeline Road, Srinivasanagar,
       Sunkadakatte, Bangalore-560 091. ... Respondents

(By Sri.H.S. Santhosh., Advocate for R1:
Sri. Mahadevaswamy, Advocate for R2)
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      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated:02.02.2019 passed
in MVC No.4492/2017 on the file of the XXI ACMM & XXIII
Additional Small Causes Judge and MACT, Bengaluru
(SCCH-25) awarding compensation of Rs.3,09,200/- along
with interest at 8% p.a. from the date of petition till the
date of depositing the amount.

      This MFA, coming on for hearing, this day, this
Court, delivered the following:

                     JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the Insurance Company being

aggrieved by the judgment and decree dated

02.02.2019 passed by the Motor Accident Claims

Tribunal Court of Small Causes at Bengaluru (SCCH-

25) in MVC No.4492/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 09.07.2016 at about 8.35

p.m., the claimant was crossing the road in front of

the car bearing registration No.KA-04/MM-8543 which

was stopped near Hejjala Gate 'U' turn, Bangalore -

Mysore road. At that time, an Ashok Leyland Tanker

lorry bearing registration No.KA-08/3696 being driven

by its driver at a high speed and in a rash and

negligent manner, dashed to the rear side of the car

and in turn the said car hit the claimant on his left leg.

As a result of the aforesaid accident, the claimant

sustained grievous injuries and was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.1

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The age, avocation and income of the

claimant and the medical expenses are denied. It was

pleaded that the petition itself is false and frivolous in

the eye of law. It was further pleaded that the driver

of the offending vehicle did not have valid driving

licence as on the date of the accident. It was further

pleaded that the liability is subject to terms and

conditions of the policy. It was further pleaded that

the petition is bad for non-joinder of necessary

parties. It was further pleaded that the quantum of

compensation claimed by the claimant is exorbitant.

Hence, he sought for dismissal of the petition.

The respondent No.2 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and Dr.K.M.Gopinath was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P22. On behalf of the

respondents, one witness was examined as RW-1 and

got exhibited documents namely Ex.R1 to Ex.R3. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash

and negligent driving of the offending vehicle by its

driver, as a result of which, the claimant sustained

injuries. The Tribunal further held that the claimant is

entitled to a compensation of Rs.3,09,200/- along with

interest at the rate of 8% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. Sri Janardhan Reddy, the learned counsel

for the Insurance Company has raised the following

contentions:

Firstly, the offending vehicle is not involved in

the accident. The car bearing registration No.KA-

04/MM-8543 dashed against the claimant. Due to the

impact, he fell down and sustained injuries.

Immediately after the accident he has been shifted to

Rajarajeswari Medical College, Kambipura, Kengeri,

Bangalore. The MLC extract has been produced as

Ex.R3. In that it is very clearly mentioned that the

claimant is hit by a car. He has been brought to the

hospital by one Manjunath. On the basis of his

statement it has been written that "RTA hit by car

while crossing". Therefore, it is very clear that the

offending vehicle is not involved in the accident.

Secondly, even the owner or the insurer of the

car are not made as parties to the petition.

Thirdly, it is very clear from the MLC extract that

and IMV report that the front part of the car has been

damaged. Therefore, the contention of the claimant

that the lorry dashed the rear portion of the car and

the car hit the claimant, cannot be accepted.

Fourthly, the accident occurred on 09.07.2016

and the complaint has been lodged on 10.07.2016.

There is a delay of one day in lodging the complaint.

The Tribunal has failed to consider all these aspects of

the matter.

Fifthly, even though the claimant claims that he

was earning Rs.25,000/- per month, he has not

produced any documents to establish his income.

Therefore, the notional income assessed by the

Tribunal at Rs.8,000/- is on the higher side.

Sixthly, the claimant has not produced any

document to show that he has been removed from the

service. Therefore, the compensation awarded by the

Tribunal towards 'loss of income during laid-up period'

is on the higher side.

Seventhly, the injuries suffered by the claimant

are minor in nature. The doctor has assessed the

whole body disability as 17.37% without assessing the

limb disability and the whole body disability assessed

by the Tribunal at 9% is on the higher side.

Eighthly, considering the injuries sustained by

the claimant and considering the age and avocation of

the claimant, the overall compensation awarded by

the Tribunal is on the higher side.

Lastly, in view of the law laid down by a Division

Bench of this Court in the case of MS.JOYEETA BOSE

AND OTHERS vs. VENKATESHAN.V AND OTHERS

(MFA 5896/2018 and connected matters

disposed of on 24.8.2020), the rate of interest

awarded by the Tribunal at 8% p.a. is on the higher

side. Hence, he sought for dismissal of the appeal.

7. On the other hand, the learned counsel

appearing for the claimant has raised the following

contentions:

Firstly, the case of the claimant is that the lorry

hit the car when the claimant was crossing the road in

front of the car and the car hit the claimant and he

suffered injuries. He was not in a position to give any

statement and one Manjunath who is not an

eyewitness to the accident has given a statement that

the claimant has been hit by a lorry. In fact,

complaint has been lodged specifically stating that the

driver of the lorry has caused the accident. Even the

police have registered FIR and filed charge sheet

against the driver of the offending vehicle and the

same has not been disputed by the owner of the

offending vehicle. Even the Insurance Company has

not examined the driver of the lorry to disprove the

case of the claimant. Hence, is Tribunal is justified in

holding that the driver of the lorry was negligent in

causing the accident.

Secondly, at the time of the accident the

claimant was earning Rs.25,000/- per month. Due to

the injuries he was not able to do his day today work.

Considering the same, the Tribunal has awarded just

and reasonable compensation. Hence, he prays for

dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award and the original

records.

9. The case of the claimant is that on

09.07.2016 at about 8.35 p.m., the claimant was

crossing the road in front of the car bearing

registration No.KA-04/MM-8543 which was stopped

near Hejjala Gate 'U' turn, Bangalore - Mysore road.

At that time, an Ashok Leyland Tanker lorry bearing

registration No.KA-08/3696 being driven by its driver

at a high speed and in a rash and negligent manner,

dashed to the rear side of the car and in turn the said

car hit the claimant on his left leg. As a result of the

aforesaid accident, the claimant sustained grievous

injuries and was hospitalized.

10. To prove his case the claimant has examined

himself as PW-1. In his evidence he has reiterated the

averments made in the claim petition. In addition to

that he has produced 22 documents. Immediately

after the accident on 09.07.2016 at about 8.35 p.m.

he was shifted to Rajarajeshwari Hospital. There, one

Manjunath who is not an eyewitness has given a

statement that the claimant has been hit by car. In

fact, on 10.07.2016 at about 14.00 hours one Krishna

who is the relative of the claimant has given a police

complaint. He has categorically stated that lorry

dashed to the car at the rear side and the car in turn

hit the claimant. On the basis of the complaint police

have registered FIR against the driver of the car and

after thorough investigation have filed charge-sheet.

The owner of the lorry has not challenged the same

before any court of law. Even he has not appeared

before the Tribunal and denied the involvement of the

vehicle. The following are the damages to the vehicle

as per Ex.P8 IMV report:

KA-08/3696:

1) Front bumper damaged.

2) Radiator grill damaged.

KA-04/MM-8543:

1) Engine bonnet damaged.

2) Right side head light damaged.

3) Front bumper damaged.

4) Front right side fender damaged.

5) Rear wind screen glass damaged.

6) Dicky door damaged.

7) Rear bumper damaged.

8) Rear left side tail lamp and indicator

damaged.

It is very clear from the same that the lorry

dashed to the rear side of the car and backside of the

car is also damaged. Therefore, it is very clear that

the lorry dashed to the car and in turn car dashed to

the claimant. Due to the impact, he fell down. To

disprove the case of the claimant the respondents

have not examined any witnesses much less the driver

of the lorry, who is the best witness. Therefore, the

Tribunal has rightly answered issue No.1 in the

affirmative.

Re.quantum:

11. The claimant claims that he was earning

Rs.25,000/- per month. He has not produced any

documents to prove his income. Even the respondent

has not established that he has continued in his job.

Therefore, the Tribunal has rightly assessed the

monthly income.

Due to the accident, the claimant has suffered

type II open fracture proximal 1/3rd left tibia and

fibula. He has examined the doctor as PW-2. He has

assessed the limb disability. After assessing the limb

disability he has deposed that the whole body

disability is 17.37%. Considering the evidence of the

doctor and considering the injury suffered by the

claimant, the Tribunal has rightly assessed the whole

body disability as 9%.

Considering the nature of injuries, the overall

compensation awarded by the Tribunal is just and

reasonable.

12. In the result, the appeal is allowed in part.

The judgment of the Claims Tribunal is modified.

The quantum of compensation awarded by the

Tribunal is just and reasonable.

In view of the law laid down by a Division Bench

of this Court in the case of JOYEETA BOSE (supra),

the rate of interest awarded by the Tribunal is reduced

from 8% p.a. to 6% p.a.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from

the date of receipt of copy of this judgment

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-