Karnataka High Court
The Branch Manager vs M Nagappa S/O : Veerabhadrappa on 28 June, 2022
Bench: P.Krishna Bhat
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MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MISC. FIRST APPEAL NO. 24592 OF 2010 (MV-I)
C/W
MISC. FIRST APPEAL NO. 24896 OF 2010(MV-I)
BETWEEN:
THE BRANCH MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD
BELLARY HEREIN REP. BY BAJAJ ALLIANZ
GENINSURANCE CO.LTD. 4TH FLOOR, V A
KALBURGOPP. MUNCIPAL CORPORATION LAMINGTON
ROAD HUBLI REP. BY ITS AUTHORIZED SIGNATORY
...APPELLANT
(BY SRI. RAVINDRA R MANE, ADVOCATE)
AND:
1. M NAGAPPA S/O : VEERABHADRAPPA
AGE ABOUT 44 YEARSOCC : HOTEL KEEPER CUM
AGRICULTURISTR/O : KAKKABEVINAHALLI TQ and
DIST : BELLARY
2. M NAGARAJ S/O : BASAVANA GOUDA
Digitally signed
by JAGADISH T AGE : 30 YEARS OCC : DRVIER CUM OWNER OF
R
Location: HIGH
COURT OF
AUTO BEARING REG. NO.KA-34/8236 R/O :
KARNATAKA,
DHARWAD
Date: 2022.06.30
KARCHEDU VILLAGETQ and DIST :BELLARY
09:52:44 +0530
...RESPONDENTS
(BY SRI. Y LAKSHMIKANT REDDY, ADV. FOR R1) (R2-SERVED)
THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DTD:11-06-2010
PASSED IN MVC.NO.524/2008 ON THE FILE OF THE MEMBER,
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MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
MACT-X, BELLARY, AWARDING THE COMPENSATION OF
RS.3,40,000/- WITH INTEREST AT THE RATE OF 6% P.A.,
FROM THE DATE OF PETITION TILL REALISATION.
IN MFA NO.24896/2010
BETWEEN:
SRI. M. NAGAPPA S/O VEERABHADRAPPA
AGED ABOUT 44 YEARS,
HOTEL KEEPER CUM AGRICULTURIST,
R/O KAKKABEVINAHALLI,
BELLARY DISTRICT.
...APPELLANT
(BY SRI. Y. LAKSHMIKANT REDDY, ADVOCATE)
AND
THE BRANCH MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
BELLARY TALUK, BELLARY DISTRICT.
....RESPONDENT
(BY SRI. RAVINDRA R MANE, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
11.6.2010 PASSED ON THE FILE OF THE MACT-X AT BELLARY
IN MVC NO.524/2008 AND PASS SUCH OTHER ORDER OR
ORDERS AS THIS HON'BLE COURT DEEMS FIT IN THE
CIRCUMSTANCES, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR HEARING THIS DAY.
THE COURT DELIVERED THE FOLLOWING.
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MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
JUDGMENT
These appeals are at the instance of the Insurance
Company and the claimant calling in question the
correctness of the judgment and award dated 11.6.2010 in
MVC No.524/2008 passed by the learned MACT-X, Bellary
(for short, 'Tribunal').
2. Brief facts insofar as the same are relevant for
the purpose of adjudicating these appeals are that on
11.09.2007, the claimant-Nagappa was traveling in a
passenger Auto-rickshaw bearing registration No.KA-
34/8236 from Bagewadi village to Kakkabevinahalli via
Tekkalakote and at about 11 a.m., while said Auto-
rickshaw was passing near K.E.B. Grid on SH-19 road, on
account of rash and negligent driving of the driver of Auto-
rickshaw, it capsized and fell into a ditch on the left side of
the road, resulting in grievous injuries to the claimant.
3. On claim petition being filed, respondent No.1
and 2 namely owner-insured of the vehicle and Insurance
Company appeared through their respective counsel and
MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
respondent No.2-insurer filed its detailed statement of
objections.
4. During trial, claimant examined himself as PW1
and one Orthopedic Surgeon was examined as PW4 and
Exs.P1 to P166 were marked for the claimants.
Respondent/Insurance Company examined one of its
officials as RW1 and Ex.R1 to R5 were marked.
5. After hearing the learned counsel on both sides
and perusing the records, the learned Tribunal allowed the
claim petition in part awarding a compensation of
Rs.3,40,000/- with interest thereon at 6% per annum from
the date of petition till date of payment.
6. Sri. R R Mane, learned counsel appearing for
the appellant/Insurance Company in support of his appeal
vehemently contended that the Insurance Company is not
liable to pay compensation amount and the award passed
by the learned Tribunal to the said extent is erroneous
inasmuch as there was violation of the material terms of
policy of insurance as the Auto-rickshaw in question was
MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
plying in violation of permit condition and also there was
overloading of passengers in the said Auto-rickshaw at the
time of the accident. He submitted that even the quantum
of compensation awarded in a sum of Rs.3,40,000/- is on
the higher side and therefore, appeal filed by the
Insurance Company is required to be allowed by
dismissing the appeal of the claimant.
7. Per contra, learned counsel appearing for the
appellant/claimant in support of his appeal contended that
even if Auto-rickshaw is plied in violation of permit
condition, the Insurance Company cannot be absolved
from liability to pay compensation and therefore, effective
order to be passed is for "Pay and Recover" in view of
decision of the Hon'ble Apex Court in Amrit Paul Singh &
Another Vs. Tata AIG General Insurance Company
Ltd. & Others1. He also submitted that even in cases of
'overloading', the Hon'ble Apex Court in United India
Insurance Company Limited Vs. K.M. Poonam &
(2018) 7 SCC 558
MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
Others2 has held that Auto-rickshaw being passenger
auto, the insurance company is liable to pay compensation
in respect of permitted number of passengers to be carried
in the said vehicle and in regard to excess number of
passengers, the Insurance Company is liable to pay
compensation in the first instance and recover the same
from the insured. Further, learned counsel for the
claimant contended that the compensation awarded is on
the lower side inasmuch as the claimant had suffered
comminuted condyler fracture of left humerus resulting in
permanent disability. He submitted that on the heads of
compensation like pain and suffering, conveyance charges,
nourishing food and loss of earning capacity, the
compensation awarded is on the lower side and same is
required to be enhanced.
8. I have carefully considered the submissions
made on both sides and perused the records.
(2015) 15 SCC 297
MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
9. The factum of claimant/Nagappa suffering
injuries in the alleged accident is not in question.
10. Learned counsel for the appellant/Insurance
Company has seriously contended that the insured Auto
was plying beyond permit granted to it, and therefore, the
insurance company is not liable to pay compensation. The
said contention of the learned counsel for insurer is not
sustainable in view of decision of the Hon'ble Apex Court
in Amrut Paul Singh's3 case, where the vehicle in
question was not even having any permit, the Hon'ble
Apex Court has held that the Insurance Company is liable
to pay compensation in the first instance and recover the
same from the owner of the vehicle in the same
proceedings.
11. Insofar as 'overloading' as contended by the
learned counsel for the Insurance Company is concerned,
the same is also no longer res-integra. The Hon'ble Apex
(2018) 7 SCC 558
MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
Court in K.M. Poonam's4 case has made it clear that in
regard to passengers covered under the policy of
insurance, the insurance company is wholly liable to
reimburse the compensation and insofar as those who are
not covered under the policy of insurance, the insurance
company is not entitled to disclaim liability and it is liable
to pay compensation in the first instance and thereafter
recover the same from the insured person in the same
proceedings. Therefore, the said contention of the learned
counsel for the insurance company is not entitled to be
upheld and it is accordingly, rejected.
12. In view of the contention of learned counsel for
the insurance company that the compensation awarded is
on the higher side and contrary submission made on
behalf of the claimant that the award made is on the lower
side, it is appropriate to have a revisit on the
compensation awarded by the learned Tribunal. The case
of the claimant is that he has suffered functional disability
(2015) 15 SCC 297
MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
on account of injury suffered, he being a small time hotel
businessman and agriculturist. Ex.P4 is Wound Certificate
issued by Medical Officer, PHC, Tekkalakote and Ex.P144 is
Discharge Summary issued by the Hosmat Hospital on
01.10.2007. Ex.P4 shows that the claimant had suffered
comminuted fracture of left humerus. Ex.P144-Discharge
Summary shows the following:
DISCHARGE SUMMARY
NAME: Mr. Nagappa AGE: 42 years SEX: Male
HOSPITAL NO.183057 IP NO.38419 WARD:HSSH
DATE OF ADM.: 11.09.2007 DATE OF DISCHARGE: 01.10.2007
CONSULTANT SURGEON: Dr. Prabhu C. B.
DIAGNOSIS: Operated complaints of fracture distal humerus left with
bractial A injury
PROCEDURE:
1. Vascular repair, Thrombectomy, Brachial a Repair and external
fixator application left humerus on 12.09.07.
2. Wound debridment SSG left humerus on 18.09.07.
3. Wound inspection under Anaesthesia and unsuccessful attempt of
close reduction attempt internal fixation left humerus done on
26.09.07. Since reduction was not possible it was left alone.
HISTORY: Complaints of pain in left upper limb, bleeding from left upper
limb. Inabilities to move left upper limb, alleged history of road traffic
accident while traveling auto on Bellary and trauma to left elbow. The
patient is not able to move this non left upper limb given then. No history of
loss of consciousness/ vomiting/ consciousness.
On Examination: - 42 years old male moderately built and nourished,
Pulse - 88/min BP - 120/90mnr PR 24/h.
Local examination upper limb normal upper limb operated, vascular repair
and with soakage + external fixation in situ.
INVESTIGATION: Reports enclosed.
HOSPITAL COURSE: Patient god admitted for operated, progressed well
and discharged.
TREATMENT GIVEN: IV Supacef (19mg), IV Amikacin (500mg) Mero, IV
Rantac, Inj, Fraciparine, Syp. Haemup.
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MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
13. Ex.P144 discloses that even though the accident
had occurred on 11.09.2007, as on 01.10.2007, Expert in
Hosmat Hospital found that the claimant was not able to
close reduction of left humerus and it was left alone.
Records show that the claimant had also taken treatment
in VIMS Hospital, Bellary which had issued Ex.P8-Out
Patient Book. Apart from the same, PW4 examined before
the learned Tribunal who is one Dr. Venkateshulu,
Professor of Orthopedic Surgery in VIMS Hospital, Bellary.
He had issued Ex.P9-Disability Certificate. Since the
fracture suffered is a comminuted one of left humerus,
I am of the view that under the head of pain and suffering,
Rs.40,000/- is required to be awarded. Learned Tribunal
upon consideration of the medical bills has awarded a sum
of Rs.1,50,000/- under the head of medical expenses
and that requires to be maintained. Since the claimant
had undergone treatment in VIMS Hospital, Bellary and
also Hosmat Hospital, Bengaluru, he being a resident of
Bellary, he would have spent considerable amount under
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C/W MFA No. 24896 of 2010
the head of conveyance charges, attendant's expenses,
nourishing food as he was in hospital for about three
weeks as inpatient in Bangalore. Therefore, under the
head of conveyance charges, it is necessary to award a
sum of Rs.20,000/- and towards nourishing food and
attendant charges, a sum of Rs.20,000/- is required to
be awarded.
14. The next important question to be decided is,
the compensation to be awarded under the head of loss of
earning capacity which should take care of loss of future
prospects as well in view of decisions of Hon'ble Apex
Court in Jagadish Vs. Mohan & Others5, Sandeep
Khanuja Vs. Atul Dande6, Erudhaya Priya Vs. State
Express Transport Corporation Limited7 and also
decision of Division Bench of this Court in New India
Assurance Company Ltd. Vs. Abdul M Tahasildar8.
The claimant was aged about 42 years at the time of the
(2018) 4 SCC 571
(2017) 3 SCC 351
2020 SCC Online SC 601
MFA 103807/2016 & MFA 103835/2016, dated 27.05.2022
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MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
accident and therefore, appropriate multiplier applicable to
his age is 14. Notional income of the claimant is fixed at
Rs.4,000/- per month following the chart prepared by the
Karnataka State Legal Services Authority which is
generally followed in compensation cases throughout the
State of Karnataka. 25% of the established income is
required to be added towards loss of future prospects.
Because of serious fracture suffered by the claimant to the
left humerus, he would not have been able to do any
gainful work at least for a period of six months.
Therefore, a sum of Rs.24,000/- is required to be
awarded towards loss of earning during laid up period
(Rs.4,000x 6 months).
15. In regard to the functional disability suffered by
the claimant, as already noticed, relevant medical reports
are Ex.P4-Wound Certificate, Ex.P8-Out Patient Book,
Ex.P9-Disability Certificate and Ex.P144-Discharge
Summary. Learned Tribunal has also placed on record the
evidence of PW4-Professor of Orthopedic Surgery, VIMS
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MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
Hospital, Bellary. He has stated in his evidence that he
had perused Ex.P4-Wound Certificate and other relevant
records from Hosmat Hospital, where the claimant had
undergone surgery on two occasions. He also stated that
after two surgeries, the claimant used to take follow-up
treatment under him. He has also stated as follows:
"On my examination I found broad, tender,
puckered scar over volar aspect of left elbow and forearm.
There is absence of lower 1/3rd of left arm and upper ½
forearm muscles in volar aspect. Left hand grip is below >
70%, there are no active movements at elbow, passive
movements are painful with bony crepctures. Left
shoulder and hand muscles are wasted. There is evidence
of partial median and ulnar nerve palsy. Is having
abnormal painful sensation distal to left elbow. Patient is
not able to do any kind of activity with his left upper limb
effectively.
Considering the above findings I am of the opinion
that the individual has to bear permanent parital physical
disablement of 65% (Sixty Five Percent) only with respect
to left upper limb."
During his cross-examination, it was elicited that he
had not treated the claimant immediately after the
accident and he had stated that the claimant had lost 30%
of grip of left hand. It was further elicited that if artificial
elbow joint or allograft is done, there are chances of
claimant improving his hand grip. He had denied the
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C/W MFA No. 24896 of 2010
suggestion that the claimant was not suffering any bony
crepetus. The evidence of PW4 clearly shows that the left
hand grip is below 70% and the claimant is having
difficulty in moving his elbow and his left shoulder and
hand muscles are wasted and he is also suffering from
partial median ulnar nerve palsy. His evidence clearly
shows that on account of injuries suffered by the claimant
in the accident in question, he would not be able to do any
kind of activities with his left upper limb. On an entire
appreciation and evaluation of the same, the learned
Tribunal had fixed functional disability of the claimant at
25%. Even though the evidence is not very clear as to
whether the claimant was doing hotel business or doing
agricultural work, it is evident that his sustenance clearly
depended on his physical labour and once it is found that
the claimant has lost effective use of his left upper limb,
his ability to earn as labourer is taken away nearly
completely. An useful observation in this behalf is found in
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C/W MFA No. 24896 of 2010
the decision of Hon'ble Apex Court in JAGDISH v.
MOHAN AND OTHERS9 which reads as under:
"14. ......But the measure of compensation must reflect a
genuine attempt of the law to restore the dignity of the
being. Our yardsticks of compensation should not be so
abysmal as to lead one to question whether our law
values human life. If it does, as it must, it must provide a
realistic recompense for the pain of loss and the trauma
of suffering. Awards of compensation are not law's doles.
In a discourse of rights, they constitute entitlements
under law. Our conversations about law must shift from a
paternalistic subordination of the individual to an
assertion of enforceable rights as intrinsic to human
dignity."
16. Therefore, keeping in view the above
observations made by the Hon'ble Apex Court, I am of the
view that the functional disability of the claimant is
required to be taken at 50%. In that view of the matter,
loss of earning capacity is required to be recomputed as
under:
Rs.4,000 + 25% x 12 x 14 x 50/100= Rs.4,20,000/-
17. Thus, in all, the claimant would be entitled to
total compensation under the following heads:
(2018) 4 SCC 571
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MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
Pain and suffering = Rs. 40,000
Medical expenses = Rs.1,50,000/-
Conveyance Charges = Rs. 20,000/-
Nourishing Food & Attendant
Charges = Rs. 20,000/-
Loss of earning during laid-up
period for six months = Rs. 24,000/-
Loss of earning capacity = Rs.4,20,000/-
-------------------
Total Rs.6,74,000/-
-------------------
18. The appellant/claimant shall be entitled to total
compensation of Rs.6,74,000/- as against Rs.3,40,000/-
awarded by the learned Tribunal. Thus, the claimant would
be entitled to enhanced compensation of Rs.3,34,000/-
which shall carry interest at 6% per annum from the date
of petition till date of payment.
19. Hence, the following:
ORDER
a) Both the appeals are disposed off to the
above extent.
b) In modification of the impugned award, the
claimant shall be entitled to enhanced
compensation of Rs.3,34,000/- which shall
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MFA No. 24592 of 2010
C/W MFA No. 24896 of 2010
carry interest at 6% per annum from the
date of petition till date of payment.
c) Appellant-Insurance Company shall deposit
the enhanced compensation amount with
accrued interest within a period of six weeks
from today before the learned Tribunal.
d) Amount in deposit, if any, before this Court
shall be transmitted to the learned Tribunal
along with TCR forthwith.
e) No order as to costs.
f) Pending applications, if any, do not survive
for consideration and accordingly, they are
disposed off.
Sd/-
JUDGE
JTR
