Karnataka High Court

Sri Nagaraju vs Pradeepa on 14 July, 2022

Bench: J.M.Khazi

                               1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE    14TH DAY OF JULY, 2022

                            BEFORE

             THE HON'BLE MS.JUSTICE J.M.KHAZI

                M.F.A.NO.9146/2017 (MV)
                          C/W
                M.F.A.NO.7407/2017 (MV)

IN M.F.A.NO.9146/2017

BETWEEN:

SRI. NAGARAJU
S/O PUTTEGOWDA
AGED ABOUT 52 YEARS,
RESIDENT OF THOGARAHALLI,
ALUR TALUK,
HASSAN DISTRICT - 573 201
                                             ... APPELLANT
(BY SRI. CHETHAN B, ADVOCATE)

AND:

1.     PRADEEPA,
       S/O KUMARA,
       R/O MANIPURA VILLAGE,
       BYRAPURA POST,
       ALUR TALUK,
       HASSAN - 573 201

2.     THE DIVISIONAL MANAGER,
       NATIONAL INSURANCE COMPANY LTD.,
       D.O.X. HERO MOTOR CROPS,
       VERTICAL 101 - 106, B.M.C.HOUSE,
       KONNAGATTA PALACE,
       NEW DELHI - 110 001
                            2


     REPRESENTED BY
     THE DIVISIONAL MANAGER,
     NATIONAL INSURANCE CO. LTD.,
     OLD BUS STAND ROAD,
     HASSAN - 573 201
                                      ...RESPONDENTS
(BY SRI. O.MAHESH, ADVOCATE FOR R2;
    R1 SERVED & REPRESENTED)

     THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
INDIAN MOTOR VEHICLES ACT, PRAYING TO MODIFY AND
ENHANCE THE COMPENSATION AWARDED IN JUDGMENT AND
AWARD DATED 02.01.2017 PASSED IN MVC NO.725 OF 2015 BY
THE HON'BLE 5TH ADDITIONAL DISTRICT & SESSIONS COURT
AND ADDITIONAL MACT AT HASSAN, AT HASSAN.

IN M.F.A.NO.7407/2017

BETWEEN:

THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
D.O.X HERO MOTOR CROPS,
VERTICAL 101-106, B.M.C. HOUSE,
KONNAGATTA PALACE,
NEW DELHI - 110 001
REPRESENTED BY
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO.LTD.,
OLD BUS STAND ROAD
HASSAN - 573 201
BY NATIONAL INSURANCE CO. LTD.,
REGIONAL OFFICE NO.144,
SUBHARAM COMPLEX,
M.G.ROAD, BANGALORE-560 001
BY ITS MANAGER
                                       ... APPELLANT
(BY SRI. O.MAHESH, ADVOCATE)
                                3


AND:

1.     NAGARAJU,
       AGE 52 YEARS,
       S/O PUTTE GOWDA,
       R/O THOGARAHALLI VILLAGE,
       ALUR TALUK,
       HASSAN DISTRICT - 573 201

2.     PRADEEPA,
       MAJOR,
       S/O KUMARA,
       R/O MANIPURA VILLAGE,
       BYRAPURA POST,
       KUNDURU HOBLI,
       ALUR TALUK,
       HASSAN DISTRICT - 573 201
                                             ...RESPONDENTS
(BY SRI. CHETHAN B, ADVOCATE )

     THIS MFA IS FILED UNDER SECTION 173 (1) OF MV ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
02.01.2017 PASSED BY 5TH ADDITIONAL DISTRICT AND
SESSIONS COURT AND ADDITIONAL MOTOR ACCIDENT CLAIMS
TRIBUNAL, HASSAN IN MVC NO.725 OF 2015 WITH COSTS IN
THE INTERESTS OF JUSTICE AND EQUITY.

     THESE MFAs HAVING BEEN HEARD AND RESERVED ON
23.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

These two appeals are arising out of judgment and award

dated 02.01.2017 in MVC.No.725/2015.

2. While MFA.No.7407/2017 is filed by respondent No.2

Insurance company disputing that the injury alleged to be

sustained by the petitioner was in a motor vehicle accident and

the nature of the injury sustained is consistent with a fall from

the tree and also the quantum of compensation,

MFA.No.9146/2017 is filed by the petitioner seeking

enhancement.

3. Since these two appeals are arising out of the same

judgment and award, they are clubbed together and disposed of

by a common judgment.

4. For the sake of convenience, the parties are referred

to by their rank before the Tribunal.

5. FACTS: The facts leading to the filing of the claim

petition are that on 17.03.2015 at 7.00 p.m, the petitioner was

proceeding on his motor cycle bearing registration No.KA-46-E-

2198 with his wife as a pillion rider from Alur bus stand to go to

his village. When they were in front of Sri.Basaveshwara High

School, a motor cycle bearing registration No.KA-46-J-3407

(hereinafter referred to as offending vehicle), ridden by its rider

in a rash or negligent manner came and dashed against the

motor cycle of the petitioner from its back side. As a result of the

accident, petitioner and his wife fell from the motor cycle and

sustained injuries.

6. Both petitioner and his wife were shifted to the

Vathsalya Hospital, Hassan and after preliminary treatment they

were shifted to JSS Hospital, Mysuru. Inspite of prolonged

treatment including surgery, petitioner is not completely cured.

7. Before the accident, petitioner was doing agriculture

and business. He was earning Rs.50,000/-p.m. After the

accident, petitioner is not able to do the work as he used to and

as such suffering loss of income. He has engaged two workers to

help him by paying Rs.10,000/- each.

8. As on the date of accident, the offending vehicle was

duly insured with respondent No.2. As the owner and insurer

both respondent Nos.1 and 2 are jointly and severally liable to

pay the compensation and hence the petition.

9. After due service of notice both respondents have

appeared.

10. Respondent No.1 has filed objections admitting the

ownership of the offending vehicle and that it was duly insured

with respondent No.2. However, he has denied that accident

occurred due to the rash or negligent driving by the rider of the

offending vehicle and that in the said accident petitioner

sustained grievous injuries resulting in permanent partial

disability affecting his income. He has denied the age,

occupation, nature of the injury sustained, disability suffered and

loss of income. In the event of allowing the petition, the

respondent No.2 being the insurer is liable to indemnify

respondent No.1 and prays to dismiss the petition.

11. Respondent No.2 has also filed written statement

denying and disputing the involvement of the offending vehicle

in the accident. It has alleged that the offending vehicle is not

involved and in collusion with respondent No.1 to claim

compensation from respondent No.2 the offending vehicle is

falsely implicated. The liability if any of respondent No.2 is

subject to the terms and conditions of the policy. Respondent

No.2 has also denied the age, occupation, income of the

petitioner, nature of injury sustained, period of treatment,

medical expenses incurred and the alleged disability suffered by

the petitioner resulting in permanent loss of income. The rider of

the offending vehicle was not having a valid driving license at

the time of accident and as such respondent No.2 is not liable to

pay the compensation. Petitioner has contributed towards the

accident.

12. Based on the pleadings, the Tribunal has framed

necessary issues.

13. Since the wife of the petitioner has also filed petition

seeking compensation in MVC.No.726/2015, which is arising out

of the same accident, the Tribunal has clubbed both cases and a

common enquiry was held.

14. In support of his case, petitioner has examined

himself as PW-1 and the Doctor who treated him as CW-1. He

has relied upon Ex.P1 to 13 and Ex.C1 & 2.

15. Vide the impugned judgment and award, the

Tribunal has granted compensation in a sum of Rs.4,35,000/-

with interest at 9% p.a and directed respondent No.2 to pay the

same. The details of the compensation granted are as detailed

below:

                   Heads                   Amount
                                            In Rs.
      Pain and suffering                        25,000
      Medical expenses                        1,07,000
      Loss of amenities                         25,000
      Loss of future income                   2,77,000
      Attendant charges                          1,000
      TOTAL                                  4,35,000

16. During the course of arguments, the learned counsel

representing respondent No.2 argued that the Tribunal has not

appreciated the fact that the mandatory provisions of Section

143(C) and 158 (6)of the MV Act are not complied with by the

insured and the concerned police and there is one day delay in

filing the complaint. If really the accident occurred prescribed by

the petitioner, then the wife of the petitioner would have

suffered more injuries than the petitioner. The petitioner has not

examined any independent witnesses and intentionally failed to

produce IMV report. The medical certificate produced by the

petitioner indicates that the injury suffered by the petitioner to

his neck is consistent with a fall from the tree. The compensation

granted is highly exorbitant and without any basis. The

percentage of disability taken is on the higher side.

16.1 On the other hand, learned counsel representing the

petitioner submitted that the compensation granted under

various heads is on the lower side. The Tribunal has not properly

assessed the disability suffered by the petitioner. The income of

the petitioner taken into consideration by the Tribunal is also on

the lower side and prays to enhance the compensation.

17. Heard arguments of both sides and perused the

record.

18. Thus, respondent No.2 has challenged the impugned

judgment and award contending that in some of the medical

records, the cause of injury is stated to be fall from the tree and

to make unlawful gain, petitioner has fraudulently implicated the

offending vehicle and as such the impugned judgment and award

is liable to be set aside.

19. On the other hand, petitioner has challenged the

impugned judgment and award seeking enhancement of the

compensation. It is pertinent to note that according to the

petitioner on the date of incident i.e., 17.02.2015, he was

proceeding on his motor cycle bearing registration No.KA-46-E-

2198 with his wife Pushpa as pillion rider and in the accident

both of them have sustained injuries.

20. In fact the wife of the petitioner Smt.Pushpa has

filed MVC.No.726/2016 seeking compensation. By a common

judgment and award, the Tribunal has allowed the petition filed

by the wife of the petitioner and granted compensation in a sum

of Rs.35,000/- and directed respondent No.2 to pay the same

with interest at 6% p.a. Petitioner therein as well as respondent

No.2 who is common in both petitions have not challenged the

said judgment and award so far as directing it to pay

compensation to the wife of the petitioner who is injured in the

same accident. Keeping this aspect in mind, it is to be examined

whether petitioner was injured in a motor vehicle accident

involving the offending vehicle or it is a case of fall from the

tree.

21. It is also relevant to note that the incident took place

at 7.30 p.m. and immediately both petitioner and his wife were

shifted to Government Hospital, Alur and from there he was

taken to Vathsalya Hospital, Hassan and thereafter he has taken

further treatment at J.S.S. Hospital, Mysuru. Consequently, on

the next day at 2.30 p.m., one Umesh lodged the complaint.

Therefore, it cannot be said that there is inordinate delay in filing

the complaint. When the petitioner was admitted to Government

hospital, Alur, the history of injury is given as road traffic

accident and the name of rider of the offending vehicle Pradeep

was noted in the hospital records, when the petitioner was

admitted to the hospital at 8.00 p.m. Within a period of half an

hour, at the earliest available opportunity, the name of the rider

of the offending vehicle is disclosed. It is pertinent to note that

after conducting investigation, the concerned police have filed

charge sheet against the said Pradeep for causing injuries to the

petitioner and his wife in a motor vehicle involving the offending

vehicle.

22. PW-3 Dr (Col.) T.S. Vasan who has treated the

petitioner at JSS Hospital, Mysuru has admitted that in the in-

patient record at Page No.7, the history of injury is given as fall

from tree. However, at the same time he has explained that in

the remaining records, the cause of injury is given as road traffic

accident. As already noted in the same accident, the wife of the

petitioner is also injured and she has also filed claim petition

against the same respondents and after contest it was allowed in

part granting compensation in a sum of Rs.35,000/-. The said

judgment and award is not challenged by respondent No.2. If

the petitioner had sustained injuries due to fall from tree, then

there is no explanation for respondent No.2 as to how his wife

also sustained injury on the same day. It appears by some

mistake or inadvertence, the history of injury pertaining to

petitioner is given as fall from tree. Having regard to the nature

of injury sustained by the petitioner and also his wife

Smt.Pushpa who is petitioner in MVC.No.726/2015, I have no

hesitation to hold that both of them were injured in a road traffic

accident and rightly the Tribunal has come to the said

conclusion.

23. Now coming to the quantum of compensation

granted and whether there is any scope of enhancement or

reduction as claimed by the petitioner and respondent No.2. In

all the medical records, the age of petitioner is given as 55 years

and therefore, the Tribunal has taken his age as 55 years and

multiplier as 11. However, during his cross-examination

petitioner who is examined as PW-1, with regard to his age,

when suggested that now he is 60 years old, but intentionally in

hospital record, his age is given as 55 years, he has replied

saying that the persons who accompanied him have given his

age as 55 years. When questioned his date of birth, PW-1 has

specifically replied that he was born on 01.12.1957. As per his

date of birth, as on the date of accident, his age was 60 years.

Therefore, the appropriate multiplier to be taken is 9, but the

Tribunal has wrongly taken as 11. Now, with the age of the

petitioner as 60 years and multiplier 9, it is to be examined

whether the compensation paid is adequate and reasonable or

there is any scope for interference.

24. As per the evidence of PW-3, having regard to the

nature of injury sustained, treatment taken he has assessed the

whole body disability of the petitioner at 35%. Except suggesting

that the disability calculated by him is on the higher side, the

respondent No.2 has not seriously challenged the evidence of

PW-3. Consequently, the Tribunal has rightly considered the

disability at 35%. Taking into consideration these aspects, the

Tribunal has granted compensation in a sum of Rs.25,000/-

under the head pain and suffering, which in my opinion is on the

lower side and therefore, it is enhanced to Rs.30,000/-.

However, compensation granted in a sum of Rs.25,000/- under

the head loss of amenities is correct and there is no scope for

interference with that. Similarly, based on the medical bills, the

Tribunal has correctly granted compensation in a sum of

Rs,1,07,000/- under the head medical expenses. Therefore, I am

not inclined to interfere with the same.

25. The Tribunal has granted compensation in a sum of

Rs.1,000/- under the head attendant charges. Having regard to

the nature of injury sustained by the petitioner and having

regard to his age, it would be reasonable to expect that he was

under treatment for a period of two months. Therefore, the

compensation under the head attendant charges is enhanced to

Rs.10,000/-.

26. The petitioner has not produced any documents to

show that as on the date of accident, he was having income of

Rs.50,000/- p.m. In the absence of such evidence and also

having regard to the age of the petitioner, the Tribunal has

rightly taken his income as Rs.6,000/-. However, the Tribunal

has not granted any compensation under the head laid up

period. As noted earlier, it would be reasonable to expect the

petitioner to be under treatment for a period of two months and

at the rate of Rs.6,000/-p.m, he is entitled for compensation in a

sum of Rs.12,000/- under the head laid up period.

27. Now coming to the compensation under the head

loss of future income. As noted earlier, the age of the petitioner

was 60 years at the time of accident and therefore the

appropriate multiplier is 9. The disability suffered by the

petitioner is 35%. However, the Tribunal has not added any

amount towards loss of future prospects. Having regard to the

age of petitioner as 60 years and he being in a private

employment, as per the decision of Hon'ble Supreme Court in

Magma General Insurance Co.Ltd. case 10% is required to be

added towards loss of future prospects. 10% of Rs.6,000/- is

Rs.600/- and therefore the income of the petitioner is to be

taken at Rs.6,600/- p.m. With the multiplier 9 and disability at

35%, the loss of future income is 6600 x 12 x 9 x 35% =

Rs.2,49,480/-.

28. Thus, in all petitioner is entitled for compensation in

a sum of Rs.4,33,480 and the same is rounded of to

Rs.4,35,000/-. In the result, even though the multiplier is taken

as 9, having regard to the fact that 10% of his income is added

and there is slight enhancement for compensation under the

head pain and suffering, under the head attendant charges and

also additional sum of Rs.12,000/- is granted under the head laid

up period, in the net result, the compensation payable to the

petitioner remains the same i.e., Rs.4,35,000/- as granted by

the Tribunal. The details of compensation is as under:

                 Heads          Amount granted by          Amount granted by
                                  the Tribunal                this Court
                                     In Rs.                     In Rs.
    Pain and suffering                    25,000                      30,000
    Medical expenses                        1,07,000                1,07,000
    Loss of amenities                         25,000                  25,000

    Loss of future income                   2,77,000                2,49,480

    Attendant charges                             1,000               10,000

    Loss of income during                   -                         12,000
    laid up period
                                                4,35,000            4,33,480
                                                                 Rounded of to
                                                                    4,35,000

29. However, the Tribunal has granted interest at the

rate of 9% without any basis. Having regard to the interest

granted by the nationalized Banks, I hold that petitioner is

entitled for interest at the rate of 6% p.a. To this extent, the

appeal filed by respondent No.2 succeeds and accordingly, I

proceed to pass the following:

ORDER

(i) MFA.No.7407/2017 filed by respondent No.2 is allowed in part.

(ii) MFA.No.9146/2017 filed by the petitioner is dismissed.

(iii) Appellant/Petitioner is entitled for compensation in a sum of Rs.4,35,000/- with interest at 6% p.a. from the date of petition till realization.

(iii) Respondent No.2 Insurance Company is directed to pay the compensation (minus the amount already paid/deposited) within a period of six weeks from the date of this order.