Karnataka High Court
United India Insurance Co. Ltd vs G. V. S. Balaji on 21 June, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.No.148/2018 C/W
M.F.A.Nos.9456/2017, 9457/2017 &
M.F.A.No.147/2018 (MV-I)
IN M.F.A.NO.148/2018:
BETWEEN:
G. V. S. BALAJI
S/O G. SUBRAMANYAM
AGED ABOUT 34 YEARS
RESIDING AT NO.86, 8TH CROSS
BOMMANAHALLI, BANGALORE.
NATIVE ADDRESS:
NO.3-31/2 MAIN ROAD,
THAGGUVARIPALLI
BANGARUPALYAM
CHITTOOR DISTRICT, A P.
... APPELLANT
(BY SRI SREENIVASAIAH A., ADVOCATE)
AND:
1. M/S. SMOOTH LOGISTICS PVT. LTD.
NO.702, PEARL BEST HEIGHT-1
NETAJI SUBHASH PLACE
PITAMPURA DISTRICT
NORTH WEST DELHI
DELHI-110 034.
2
2. THE MANAGER
UNITED INDIA INSURANCE CO. LTD.
R/O. NO.18, 5TH FLOOR,
KRUSHI BHAVAN, HUDSON CIRCLE
BANGALORE-560 001.
... RESPONDENTS
(BY SRI JANARDHAN REDDY, ADVOCATE FOR R2;
R1 - NOTICE DISPENSED WITH V/O. DATED 21.03.2018)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 03.07.2017 PASSED IN MVC
NO.895/2016 ON THE FILE OF THE XIX ADDITIONAL SCJ, MACT
AND XLI ACMM AT BENGALURU PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN M.F.A.NO.9456/2017:
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE,
#18, 5TH AND 6TH FLOOR,
KRISHIBHAVAN, HUDSON CIRCLE,
BANGALORE-560 001,
REP. BY ITS MANAGER.
... APPELLANT
(BY SRI JANARDHAN REDDY, ADVOCATE)
AND:
1. G. V. S. BALAJI
S/O. G. SUBRAMANYAM,
AGED ABOUT 34 YEARS,
R/AT NO.86, 8TH CROSS,
BOMMANAHALI,
BANGALORE-560068.
NATIVE ADDRESS:
NO.3-31/2, MAIN ROAD,
THAGGUVARIPALLI,
3
BANGARUPALYAM,
CHITTOOR DISTRICT,
A.P. DISTRICT.
2. M/S. SMOOTH LOGISTICTS PVT. LTD.,
NO.702, PEARL BEST HEIGHT-1,
NETAJI SUBHASH PLACE,
PITAMPURA DISTRICT,
NORTHWEST DELHI,
DELHI-110 034.
(OWNER OF THE LORRY NO.HR-74-7610)
...RESPONDENTS
(BY SRI A.SREENIVASAIAH, ADVOCATE FOR C/R1;
R2 - NOTICE DISPENSED WITH V/O. DATED 11.01.2018)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 03.07.2017 PASSED IN MVC
NO.895/2016 ON THE FILE OF THE XIX ADDITIONAL SMALL
CAUSES JUDGE, & XLI ACMM, MACT, BANGALORE, (SCCH-17),
AWARDING COMPENSATION OF RS.2,35,498/- WITH INTEREST
@ 7.5% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A. NO.9457/2017:
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE,
#18, 5TH AND 6TH FLOORS,
KRISHIBHAVAN,
HUDSON CIRCLE,
BANGALORE-560 001,
REP. BY ITS MANAGER.
... APPELLANT
(BY SRI JANARDHAN REDDY, ADVOCATE)
AND:
1. T. S. NAGARJUNA
S/O. LATE RAGHU,
AGED ABOUT 28 YEARS,
4
R/AT NO.86, 8TH CROSS,
BOMMANAHALLI,
BANGALORE.
NATIVE ADDRESS:
NO.3-209, MANIKYAM STREET,
THAGGUVARIPALLI,
BANGARUPALYAM,
CHITTOR DISTRICT,
A.P. DISTRICT.
2. M/S. SMOOTH LOGISTICTS PVT. LTD.,
NO.702, PEARL BEST HEIGHT-1,
NETAJI SUBHASH PLACE,
PITAMPURA DISTRICT,
NORTHWEST DELHI,
DELHI-110 034,
(OWNER OF THE LORRY NO.HR-74-7610)
...RESPONDENTS
(BY SRI A. SREENIVASAIAH, ADVOCATE FOR C/R1;
R2- NOTICE DISPENSED WITH V/O. DATED 11.01.2018)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 03.07.2017 PASSED IN MVC
NO.894/2016 ON THE FILE OF THE 19TH ADDITIONAL SMALL
CAUSE JUDGE, MACT & XLI ACMM, BENGLAURU, AWARDING
COMPENSATION OF RS.3,02,360/- WITH INTEREST AT 7.5%
P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN MFA NO.147 OF 2018:
BETWEEN:
T.S.NAGARJUNA
S/O LATE RAGHU,
AGED ABOUT 28 YEARS.
RESIDING AT NO.86,
8TH CROSS, BOMMANAHALLI,
BANGALORE.
5
NATIVE ADDRESS :
NO.3-209, MANIKYAM STREET,
THAGGUVARIPALLI,
BANGARUPALYAM,
CHITTOOR DISTRICT, A.P
...APPELLANT
(BY SRI SREENIVASAIAH A., ADVOCATE)
AND:
1. M/S. SMOOTH LOGISTICS PVT. LTD.
NO.702, PEARL BEST HEIGHT-1
NETAJI SUBHASH PLACE,
PITAMPURA DISTRICT,
NORTH WEST DELHI
DELHI-110034.
2. THE MANAGER
UNITED INDIA INSURANCE CO.LTD.,
R.O.NO.18, 5TH FLOOR,
KRUSHI BHAVAN,
HUDSON CIRCLE,
BANGALORE-560001.
... RESPONDENTS
(BY SRI JANARDHAN REDDY, ADVOCATE FOR R2;
R1 - NOTICE DISPENSED WITH V/O. DATED 22.03.2018)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 03.07.2017 PASSED IN MVC
NO.894/2016 ON THE FILE OF THE XIX ADDITIONAL SCJ, MACT
AND XLI ACMM AT BENGALURU. PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THESE M.F.As. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
6
JUDGMENT
M.F.A. No.148/2018 is filed by the claimant
challenging the judgment and award dated
03.07.2017 passed in M.V.C. NO.895/2016 on the file
of the XIX Additional SCJ, MACT and XLI ACMM at
Bengaluru and sought for enhancement of the
compensation.
2. M.F.A. No.9456/2017 is filed by the
insurance company challenging the quantum of
compensation and liability.
3. M.F.A. No.9457/2017 is filed by the
Insurance Company challenging the quantum of
compensation and liability.
4. M.F.A. No.147/2018 is filed by the claimant
challenging the judgment and award dated
03.07.2017 passed in M.V.C. NO.894/2016 on the file
of the XIX Additional SCJ, MACT and XLI ACMM at
Bengaluru and sought for enhancement of the
compensation.
5. The learned counsel for Insurance
Company in all the appeals submitted that the rider of
the two wheelers had consumed alcohol and dashed
the lorry bearing No.HR-74-7610 under the influence
of alcohol. Therefore, the rider of the motor cycle had
contributed his negligence, but the Tribunal had not
considered the degree of contributory negligence on
the part of the rider of the two wheeler and prays to
consider the same. It is further submitted that the
quantum of compensation awarded under each head is
correct and needs no interference. Therefore, the
learned counsel prays for dismissing the appeal filed
by the claimants and allow the appeals filed by the
insurance company by fixing some contributory
negligence on the part of the rider of the motor cycle.
6. On the other hand, the learned counsel
appearing for the claimants submitted that there is no
contributory negligence on the part of the claimants in
the present case and as per the records the entire
negligence is on the part of the driver of lorry.
Therefore, the Tribunal has correctly held the same
and has accordingly awarded the compensation. It is
further submitted that the amount of compensation
under each head is not correct and is meagre.
Therefore, he prays for enhancement of the
compensation.
Regarding Contributory Negligence :
7. In the present case, the accident is
between the motor cycle bearing No.KA-01/K-7387
and Lorry bearing No.HR-74-7610. The Tribunal had
negatived the contention of the Insurance Company
regarding the contributory negligence as it is
contended that the rider of the motor cycle had
consumed alcohol and under the influence of alcohol,
the accident has occurred and therefore, attributed
100% of contributory negligence on the Insurance
Company. To substantiate the contention, the learned
counsel for the Insurance Company has relied on
Ex.P.8-Discharge Summary, in which, it is stated that
the rider of the motor cycle has met with an accident
when he was under the influence of alcohol. The said
document has been produced by the claimant himself.
Ex.P.8-Discharge Summary proves the fact that the
claimant was admitted to the hospital with an alleged
history of road traffic accident under the influence of
alcohol. Therefore, Ex.P.8-Discharge Summary has
been produced by the claimant himself, which proves
the fact that he being the rider of the motor cycle had
consumed alcohol while riding the motor cycle.
Therefore, some percentage of contributory
negligence has to be attributed on the rider of the
motor cycle also. Even though, in the complaint, it is
alleged that the driver of the lorry was entirely rash
and negligent and also in the charge sheet, the entire
allegation is made against the driver of the lorry, but
the medical evidence discloses that the rider of the
motor cycle had consumed alcohol and met with an
accident when he was under the influence of alcohol.
Therefore, it is appropriate to hold that the rider of
the motor cycle has also contributed his negligence
towards the cause of the accident by consuming
alcohol and therefore, 10% of contributory negligence
has to be attributed on the part of the rider of the
motor cycle. Since, the rider of the motor cycle has
consumed alcohol, in this regard, the findings of the
Tribunal is to be modified by holding that the rider of
the motor cycle has attributed 10% of contributory
negligence by consuming alcohol and the driver of the
lorry has attributed 90% of contributory negligence
towards the cause of the accident. Accordingly, the
contributory negligence is apportioned as discussed
above.
8. In MFA.No.147/2018 (MVC.No.894/2016),
the claimant has sustained following injuries:
"Fracture shaft of right femur Head
injury fracture right frontal Bone with CSF leak
mild hypoxia and other multiple injuries."
9. In Ex.P.3-Wound Certificate it is stated that
the appellant/claimant had sustained grievous injuries
and the claimant had suffered grievous injuries as
reveled from X-ray report. Therefore, considering the
nature of injuries sustained by the appellant, the
compensation awarded towards attendant charges,
extra nutritious, food and conveyance expenses,
unhappiness and future medical expenses are correct.
The Tribunal has considered the notional income at
Rs.7,000/- per month. The appellant was doing cooli
work. Therefore, in the absence of proof of income,
since the accident has occurred in the year 2015, the
notional income of Rs.9,000/- is to be taken into
consideration as per the Notional Income Chart
recognized by the Karnataka State Legal Service
Authority. The Tribunal has taken physical disability at
12% and the appellant was aged 27 years as on the
date of the accident. Therefore, the appropriate
multiplier is "17". Therefore, loss of future earning
capacity due to disability is calculated and quantified
as follows:
Rs.9,000/- x 12% x 17 x 12 =Rs.2,20,320/-
10. Further the Tribunal has awarded
compensation of Rs.21,000/- under the head loss of
income during laid up period by considering the
notional income of the appellant/claimant at
Rs.7,000/- for three months. As discussed above, the
notional income is taken at Rs.9,000/- per month.
Therefore, the compensation under the head loss of
income during laid up period comes to Rs.27,000/-
(Rs.9,000/- x 3 months). The amount of
compensation awarded under other heads is correct,
which needs no interference. Further another sum of
Rs.10,000/- is awarded under the head loss of future
amenities and happiness, in addition to what has been
awarded by the Tribunal.
11. The appellant/claimant is entitled to the
modified compensation as follows:
1 Towards pain and suffering Rs. 50,000/-
2 Towards attendant charges Rs. 20,000/-
3 Towards Medical expenses NIL
4 Towards Loss of income during laid Rs.
27,000/-
up period
5 Towards loss of future income due Rs.
2,20,320/-
to permanent disability
6 Towards loss of future amenities & Rs.
30,000/-
happiness
7 Towards future medical expenses Rs. 20,000/-
Total 3,67,320/-
12. Since the appellant/claimant has also
contributed his negligence to the extent of 10%, he is
entitled to only 90% out of the total compensation
amount of Rs.3,67,320/-. Hence, the
appellant/claimant is entitled to compensation of
Rs.3,30,588/- (Rs.3,67,320/- x 90%) with the rate
of interest at 6% per annum from the date of petition
till the date of realization.
13. In MFA.No.148/2018 (MVC.No.895/2016),
the claimant has sustained injuries:
"Right hand crush injury with open
fracture of 4th, 5th metacarpal base, 3rd
metacarpal neck & index finger proximal
phalanx & other injuries"
14. In Ex.P.7-Wound Certificate, it is stated
that the appellant/claimant had sustained grievous
injuries and the claimant had suffered grievous
injuries as reveled from X-ray report. Therefore,
considering the nature of injuries sustained by the
appellant, the compensation awarded towards
attendant charges, extra nutritious, food and
conveyance expenses are correct. Further the Tribunal
has considered the notional income at Rs.7,000/- per
month. The appellant was doing cooli work. Therefore,
in the absence of proof of income, since the accident
has occurred in the year 2015, the notional income of
Rs.9,000/- is to be taken into consideration as per the
Notional Income Chart recognized by the Karnataka
State Legal Service Authority. The Tribunal has taken
physical disability at 8% and the appellant was aged
33 years as on the date of the accident. Therefore, the
appropriate multiplier is "16". Therefore, loss of future
earning capacity due to disability is calculated and
quantified as follows:
Rs.9,000/- x 8% x 16 x 12 =Rs.1,38,240/-
15. Further the Tribunal has awarded
compensation of Rs.21,000/- under the head loss of
income during laid up period by considering the
notional income of the appellant/claimant at
Rs.7,000/- per month for three months. As discussed
above, the notional income is taken at Rs.9,000/- per
month. Therefore, the compensation under the head
loss of income during laid up period comes to
Rs.27,000/- (Rs.9,000/- x 3 months). The amount of
compensation awarded under other heads is correct,
which needs no interference. Further another sum of
Rs.10,000/- is awarded under the head loss of future
amenities and happiness, in addition to what has been
awarded by the Tribunal.
16. The appellant/claimant is entitled to the
modified compensation as follows:
1 Towards pain and suffering Rs. 50,000/-
2 Towards attendant charges Rs. 5,000/-
3 Towards Medical expenses 38,698/-
4 Towards Loss of income Rs.
27,000/-
during laid up period
5 Towards loss of future Rs.
income due to permanent 1,38,240/-
disability
6 Towards loss of future Rs.
30,000/-
amenities & happiness
7 Towards future medical Rs.
NIL
expenses
Total 2,88,938/-
17. Hence the appellant/claimant is entitled to
compensation of Rs.2,88,938/- with the rate of
interest at 6% per annum from the date of petition till
the date of realization.
18. In MVC.No.894/2016 (MFA.No.147/2018),
the Tribunal has awarded the compensation of
Rs.3,02,360/-, but the appellant/claimant is entitled
to total compensation of Rs.3,30,588/-. Hence, the
appellant is entitled to enhanced compensation of
Rs.28,228/- (Rs.3,30,588/- - Rs.3,02,360/-).
Therefore, the appellant/claimant is entitled to
enhanced compensation of Rs.28,228/- along with
interest at the rate of 6% per annum from the date of
petition till the date of realization.
19. In MVC.No.895/2016 (MFA.No.148/2018),
the Tribunal has awarded the compensation of
Rs.2,35,498/-, but the appellant/claimant is entitled
to total compensation of Rs.2,88,938/-. Hence, the
appellant is entitled to enhanced compensation of
Rs.53,440/- (Rs.2,88,938/- - Rs.2,35,498/-).
Therefore, the appellant/claimant is entitled to
enhanced compensation of Rs.53,440/-
Rs.53,440/- along with interest at the rate of 6% per
annum from the date of petition till the date of
realization.
20. Accordingly, I pass the following :
ORDER
MFA.Nos.147/2018 and 148/2018 filed by the
appellants/claimants are allowed-in-part.
MFA.Nos.9456/2017 and 9457/2017 filed by the
Insurance Company are allowed in part.
The appellant in MFA.Nos.148/2018 is entitled to
enhanced compensation of Rs.53,440/- along with
the rate of interest at 6% per annum from the date of
petition till the date of realization, in addition to what
has been awarded by the Tribunal.
The appellant in MFA.Nos.147/2018 is entitled to
enhanced compensation of Rs.28,228/- along with
the rate of interest at 6% per annum from the date of
petition till the date of realization, in addition to what
has been awarded by the Tribunal.
The judgment and award dated 03.07.2017
passed in M.V.C.Nos.894/2016 and 895/2016 on the
file of the XIX Additional SCJ, MACT and XLI ACMM at
Bengaluru, is modified as stated above.
The amount deposited in MFA.Nos.9456/2017
and 9457/2017 shall be transmitted to the Tribunal
along with TCR and copy of this order forthwith.
The appellants in MFA.Nos.147/2018 and
148/2018 are not entitled to interest for the delayed
period.
Draw award accordingly.
No order as to costs.
Sd/-
JUDGE
HNM/PB
