United India Insurance Co Ltd vs Mahabala Poojary
2022 Latest Caselaw 8624 Kant

                             1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 13TH DAY OF JUNE 2022

                         BEFORE

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

                 MFA No.32 OF 2018(MV)
                          C/W
      MFA Nos.1822 OF 2018(MV) & 1823 OF 2018(MV)

IN MFA 32/2018
BETWEEN:

United India Insurance Co. Ltd.,
Branch Office: Kundapura,
Sri. Laxmi Narasimha Complex,
Opp: KSRTC Depot,
NH-66, Vaderhobli,
Kundapura.

BY
Divisional Manager,
United India Insurance Co. Ltd.,
Jewel Plaza,1st Floor,
Maruthi Veethika,
Udupi-576 101.                       ... Appellant

(By Sri.O.Mahesh., Advocate)

AND:

1.     Mahabala Poojary,
       Aged about 41 years,
       S/o Ganapa Poorary,
       R/o Huddinabettu,
       Vandse Village,
       Kundapura Taluk-576104.
                               2




2.     Manjunatha,
       Aged 32 years,
       S/o Bhujanga,
       R/o Sulse, Kattebelthur village,
       Kundapura Taluk-576101.            ... Respondents

(By Sri.Nagaraja Hegde, Advocate for R1:
Notice to R2 is served and unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 01.08.2017 passed
in MVC No. 362/2016 on the file of the Senior Civil Judge,
Kundapura and Member, Additional MACT, Kundapura,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.

IN MFA 1822/2018
BETWEEN:

Sri.Mahabala Poojary,
Aged about 42 years,
S/o Ganapa Poorary,
R/o Huddinabettu,
Vandse Village,
Kundapura Taluk-576201.                      ...Appellant

(By Sri. Nagaraja Hegde, Advocate)

AND:

1.     Sri. Manjunatha,
       Aged 33 years,
       S/o Bhujanga,
       R/o Sulse, Kattebelthur village,
       Kundapura Taluk-576201.

2.     United India Insurance Co. Ltd.,
       Branch Office: Kundapura,
                               3



       Sri. Laxmi Narasimha Complex,
       Opp: KSRTC Depot,
       NH-66, Vaderhobli,
       Kundapura.
       Rep. by its Branch Manager.        ... Respondents

(By Sri.O.Mahesh, Advocate for R2:
Notice to R1 is served and unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 01.08.2017 passed
in MVC No. 362/2016 on the file of the Senior Civil Judge,
Kundapura and Member, Additional MACT, Kundapura,
allowing the claim petition for compensation and seeking
enhancement of compensation.

IN MFA 1823/2018
BETWEEN:

Minor Abhijith,
S/o Mahabala Poojary,
Aged about 13 years,
Rep. by his guardian father
Sri. Mahabala Poojary,
Aged about 42 years,
R/o Huddinabeetu,
Vandse Village,
Kundapura Taluk-576201.                     ...Appellant

(By Sri. Nagaraja Hegde, Advocate)

AND:

1.     Sri. Manjunatha,
       Aged 33 years,
       S/o Bhujanga,
       R/o Sulse, Kattebelthur village,
       Kundapura Taluk-576201.
                             4



2.   United India Insurance Co. Ltd.,
     Branch Office: Kundapura,
     Sri. Laxmi Narasimha Complex,
     Opp: KSRTC Depot,
     NH-66, Vaderhobli,
     Kundapura.
     Rep. by its Branch Manager.             ... Respondents

(By Sri.O.Mahesh, Advocate for R2:
Notice to R1 is served and unrepresented)

      This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 01.08.2017 passed
in MVC No. 361/2016 on the file of the Senior Civil Judge,
Kundapura and Member, Additional MACT, Kundapura,
allowing the claim petition for compensation and seeking
enhancement of compensation.

      These MFAs, coming on for admission, this day, this
Court, delivered the following:

                    JUDGMENT

MFA No.32/2018 is filed by the Insurance

Company whereas MFA Nos.1822/2018 and

1823/2018 are filed by the claimants under Section

173(1) of the Motor Vehicles Act, (for short, 'the Act')

being aggrieved by the judgment and award dated

01.08.2017 passed by the MACT, Kundapura in MVC

Nos.361/2016 and 362/2016. Since the challenge is

to the same judgment, all the appeals are clubbed

together, heard and common judgment is being

passed.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 29.11.2015 at about 6.45

p.m., the claimants were proceeding in a motorcycle

bearing registration No.KA-20/S-6542. When they

reached near water tank, Kenchanuru village, at that

time, Tata Ace Goods vehicle bearing registration

No.KA-20/C-1981 being driven by its driver at a high

speed and in a rash and negligent manner, came from

Hemmadi side towards Nempu side and dashed to the

vehicle of the claimants. As a result of the aforesaid

accident, the claimants sustained grievous injuries and

were hospitalized.

3. The claimants filed petitions under Section

166 of the Act seeking compensation. It was pleaded

that they 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.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The age, avocation and income of the

claimants and the medical expenses are denied. It

was pleaded that the petitions itself are false and

frivolous in the eye of law. It was further pleaded that

the accident was due to the rash and negligent riding

of the vehicle by the claimant himself. 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 quantum of compensation

claimed by the claimant is exorbitant. Hence, he

sought for dismissal of the petition.

The respondent No.1 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.Dinesh Kumar Shetty 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 document namely Ex.R1. 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 claimants sustained injuries.

The Tribunal further held that the claimants are

entitled to compensation of Rs.1,35,000/- and

Rs.6,71,494/-, respectively, along with interest at the

rate of 6% p.a. and directed the Insurance Company

to deposit the compensation amount along with

interest. Being aggrieved, this appeal has been filed.

6. Sri O.Mahesh, the learned counsel for the

Insurance Company has raised the following

contentions:

Firstly, the finding of the Tribunal on the issue of

negligence suffers from illegality and infirmity since it

failed to consider the negligence of the injured in the

light of his admission that accident in question was in

the center of the road and the road was down gradient

with a curve and there was sufficient space on his left.

Secondly, the Tribunal ought to have seen that

the claimant who was riding the motorcycle has also

contributed to the accident wherein RW-1 in his

evidence has stated that insured vehicle was towing a

vehicle and injured while riding his motorcycle has

dashed against the vehicle being towed and not to his

vehicle.

Thirdly, in MVC No.362/2016 the Tribunal has

grossly erred in awarding a compensation of

Rs.3,68,600/- under the head 'loss of future income'

by assessing the income of the claimant as

Rs.10,000/- per month without any specific, cogent,

corroborative and conclusive evidence of his employer

and further holding that injured has suffered 22%

disability and further allowing Rs.1,10,880/- towards

future prospects.

Fourthly, in respect of MVC No.361/2022, at the

time of the accident the claimant was aged about 11

years and the injuries suffered by the claimant are

minor in nature. Even if whole body disability is

assessed, it cannot be more than 5%. Therefore,

considering the age of the claimant and injuries

suffered by him, the overall compensation awarded by

the Tribunal is just and reasonable. Hence, he sought

for allowing the appeal filed by the Insurance

Company.

7. On the other hand, Sri Nagaraja Hegde, the

learned counsel appearing for the claimants has raised

the following contentions:

Firstly, the respondent has examined the driver

of the offending vehicle. In his evidence he has

categorically admitted that the car which was going

through repair was tied on the right side of the Tata

Ace and the same came to right side all of a sudden

and at the alleged time, place of the accident the

motorcycle was dashed. Therefore, it is very clear

that the driver of the offending vehicle is negligent in

causing the accident. It is also very clear from the

sketch, mahazar.

Secondly, the police has also registered the case

against the driver of the offending vehicle. Even in the

criminal case he has pleaded guilty of the alleged

offence. Therefore, the Tribunal is justified in

fastening the liability on the driver of the offending

vehicle.

IN MVC No.362/2016:

Firstly, the claimant is a driver by profession.

Due to the injuries suffered to his left leg he was

unable to do his day today work. Hence, the Tribunal

instead of assessing functional disability at 100% has

assessed the whole body disability as 22% which is on

the lower side.

Secondly, due to the accident the claimant has

suffered grievous injuries, he was inpatient for a

period of 13 days. He has suffered lot of pain during

treatment and he has to suffer the disability and

unhappiness throughout his life. The compensation

awarded by the Tribunal under the heads 'pain and

sufferings', 'loss of amenities' and other incidental

expenses is on the lower side.

IN MVC No.361/2016:

At the time of the accident the claimant was a

minor aged about 11 years. He has examined the

doctor and the doctor has assessed the disability as

14%. Since he is a minor, the compensation has to be

granted by applying the law laid down by the Hon'ble

Apex Court in the case of MALLIKARJUN -vs-

DIVISIONAL MANAGER, NATIONAL INSURANCE

COMPANY LIMITED AND ANOTHER reported in

(2014) 14 SCC 396. The overall compensation

awarded by the Tribunal is on the lower side. Hence,

he sought for allowing the appeals filed by the

claimants.

8. Heard the learned counsel for the parties.

Perused the judgment and award and the original

records.

9. The case of the claimants is that on

29.11.2015 at about 6.45 p.m., the claimants were

proceeding in a motorcycle bearing registration

No.KA-20/S-6542. When they reached near water

tank, Kenchanuru village, at that time, Tata Ace

Goods vehicle bearing registration No.KA-20/C-1981

being driven by its driver at a high speed and in a

rash and negligent manner, came from Hemmadi side

towards Nempu side and dashed to the vehicle of the

claimants. As a result of the aforesaid accident, the

claimants sustained grievous injuries and were

hospitalized. To prove their case, the first claimant

has been examined as PW-1 and produced 11

documents. He has reiterated the averments made in

the claim petition. The respondent has examined the

driver of the offending vehicle as RW-1. In his cross-

examination he has admitted that the car which was

under repair was tied on the right side of the Tata

Ace. But all of a sudden, at the alleged time, place of

the accident motorcycle dashed against right side of

the Tata Ace. It is also not in dispute that the

complaint has been lodged against the driver of the

offending vehicle. The police after thorough

investigation have filed charge sheet. In the criminal

case RW-1 admitted that he has pleaded guilty of the

charge before the jurisdictional JMFC Court and he has

paid the fine.

10. I have gone through the original records. It

is very clear from the spot panahcanama - Ex.P6 and

spot sketch - Ex.P11 that the driver of the offending

vehicle was negligent in causing the accident. The

Tribunal is justified in answering issue No.1 in the

affirmative.

Re.quantum in MVC No.362/2016:

11. Due to the accident the claimant has

suffered lacerated wound 10 X 6 cms. exposing the

patella, fracture patella left knee, laceration right leg,

CLW left ear, avulsion of left pinna. PW-2, the doctor

has stated in his evidence that the claimant has

suffered disability of 22% left limb. He has deposed

that due to the injury there is severe pain in the

injured limb and the stability of left knee and

movement of the left knee is reduced. The claimant is

not able to stand for a long time on his left leg, not

able to walk for a long time and not able to climb up

and down, not able to fold the left leg. Considering

the evidence of the doctor and considering the injuries

suffered by him and his age and occupation as a

driver, I am of the opinion that the whole body

disability can be assessed as 18%. Since there is no

evidence to prove that there is loss of future earning

capacity, therefore, he is not entitled for addition of

future prospects. The Tribunal has rightly assessed

the monthly income of the claimant as Rs.10,000/-

since he was a driver. The claimant was aged about

41 years at the time of the accident and multiplier

applicable to his age group is '14'. Thus, the claimant

is entitled for compensation of Rs.3,02,400/-

(Rs.10,000*12*14*18%) on account of 'loss of future

income' as against Rs.4,80,480/- awarded by the

Tribunal.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

Re.quantum in MVC No.361/2016:

12. The claimant was a minor aged about 11

years. Even though the doctor has assessed 14%

disability to particular limb, he has not assessed the

whole body disability. Even if it is assessed, it would

be less than 10%. As per the judgment of the

Hon'ble Apex Court in the case of MALLIKARJUN

(supra), if the disability is less than 10%

Rs.1,00,000/- has to be awarded for 'pain and

suffering, inconvenience, etc', Rs.25,000/- for

'discomfort and loss of earning to the parents' and

Rs.25,000/- towards 'medical expenses'. In all,

claimant is entitled to compensation of Rs.1,50,000/-

as against Rs.1,35,000/- awarded by the Tribunal.

13. In the result, the appeals are disposed of.

The judgment of the Claims Tribunal is modified.

The claimant in MVC No.361/2016 is entitled to a

total compensation of Rs.1,50,000/- as against

Rs.1,35,000/- awarded by the Tribunal and the

claimant in MVC No.362/2016 is entitled to a total

compensation of Rs.4,93,414/- as against

Rs.6,71,494/- awarded by the Tribunal.

The Insurance Company is directed to deposit

the compensation amounts 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 claimants are not entitled to interest for the

delayed period of 104 days in filing the appeals.

The amount in deposit is ordered to be

transferred to the Tribunal forthwith.

Sd/-

JUDGE

Cm/-