Karnataka High Court

United India Insurance vs Salim Basha on 11 March, 2022

Bench: P.S.Dinesh Kumar, M G Uma

                             1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 11TH DAY OF MARCH, 2022

                       PRESENT

     THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                         AND

         THE HON'BLE MRS. JUSTICE M.G. UMA

            M.F.A NO.1954 OF 2019 (MV-I)

BETWEEN :
UNITED INDIA INSURANCE
COMPANY LIMITED,
GOVINDA KRUPA
J.C.ROAD, SAGAR
SHIVAMOGGA DISTRICT
NOW REP. BY ITS
DIVISIONAL OFFICE
A.A.CIRCLE, B.H.ROAD
SHIVAMOGGA-577 201
REP. BY ITS DIVISIONAL MANAGER         ...APPELLANT

(BY SHRI. LAKSHMI NARASAPPA FOR
    SHRI. A.M. VENKATESH, ADVOCATES)
[THROUGH VIDEO CONFERENCE]

AND :
1.     SALIM BASHA
       S/O SATTAR SAB
       AGED ABOUT 25 YEARS
       R/O KHAJI KERI
       SHIKARIPUARA TOWN
                            2




2.   MOHAN SHETTY
     S/O ANANDA
     AGED ABOUT 31 YEARS
     R/O THIMLAPURA VILLAGE
     SHIKARIPURA TALUK
     (DRIVER-CUM-OWNER OF
     MARUTI OMNI CAR
     BEARING REG KA-22/N-7548)           ...RESPONDENTS

(BY SHRI. D.R. ANANDEESWAR, ADVOCATE FOR R1;
    VIDE ORDER DTD.25.01.2022 NOTICE TO
     R2 IS HELD SUFFICIENT)
                         ....
      THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 10.09.2018, PASSED IN MVC
NO.137/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC.,   AND     AMACT-15,     SHIKARIPURA,    AWARDING
COMPENSATION OF RS.68,67,736/- WITH INTEREST AT 9%
P.A., FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT.


      THIS MFA COMING ON FOR ADMISSION THIS DAY,
P.S. DINESH KUMAR J, DELIVERED THE FOLLOWING:-

                      JUDGMENT

This appeal is filed by the Insurer of the

offending vehicle challenging the Judgment and award

dated September 10, 2018 passed by the Senior Civil

Judge & AMACT-15, Shikaripura, in MVC No.

137/2016.

2. For the sake of convenience, parties shall

be referred to as per their status before the Tribunal.

3. Heard Shri. Lakshmi Narasappa, learned

Advocate for the Insurer and Shri. D.R. Anandeeswar,

learned Advocate for claimant.

4. Brief facts of the case are, on September

26, 2015, claimant, Salim Basha was riding a motor

cycle with his father as a pillion rider from Shikaripur

to Chikkajambur village. A Maruthi Omni Van coming

from the opposite direction, dashed against the motor

cycle. The claimant sustained injuries and he was

initially treated in Government Hospital, Shikaripura;

and later, in Mc. Gann Hospital and Metro Hospital in

Shivamogga.

5. Claimant filed the instant claim petition

seeking compensation, contending inter alia that the

Maruthi Omni Car coming from opposite direction had

dashed against the motor-cycle which he was riding;

that he had sustained injuries to the left ear, right

eye, right leg etc; that he was treated in three

Hospitals; that he had remained as in-patient for one

month and eight days; and that he has suffered

permanent disability.

6. The owner and the insurer of the car

contested the claim petition. According to the owner,

claimant got panicked, lost control over the motor-

cycle and dashed against the Maruti Van and thus,

contributed for the accident.

7. Based on the pleadings, Tribunal has

framed following issues:

1) Whether the petitioner proves that he has sustained injuries in the road traffic accident that occurred on 26-09-2015 at about 4:30 p.m., near Kuskur village, Shikaripura Taluk due to rash and negligent driving of Maruthi Omni bearing No.KA-22/N-7548 by its driver respondent No.1?

2) Whether the petitioner is entitled for compensation? If so, for what amount and from whom?

3. What order or award?

8. Answering issue No.1 in the affirmative and

issue No.2, partly in the affirmative, the Tribunal has

awarded compensation of Rs.68,67,736/- to the

claimant, payable with interest at 9% per annum.

Hence, this appeal.

9. Shri. Lakshmi Narasappa, for the Insurer

urged four grounds:

Firstly that the Tribunal has erred in computing

the correct future loss of income. According to him the

Tribunal has erred in considering claimant's salary as

Rs.19,200/-. Tribunal has relied upon the Salary slip

as per Ex.P.11 in which arrears of CCA and HRA have

also been added. Therefore, Ex.P11 does not depict

the actual salary.

Secondly, that claimant was also negligent while

riding his motor cycle. The Tribunal has erred in not

considering the contributory negligence.

Thirdly, that the Tribunal has erred in

considering the functional disability as 100%.

Fourthly, that interest at 9% p.a. awarded by

the Tribunal is on higher side and this Court has been

consistently awarding interest at 6% p.a.

10. Shri. D.R. Anandeeswar, learned Advocate

for the claimant opposing the appeal, submitted that

Tribunal has rightly considered claimant's income as

Rs.19,200/-, as per the details found at Ex.P11. With

regard to contributory negligence, he submitted that

driver of the Omni Van has been charge-sheeted. The

owner and the insurer have not led in any evidence.

With regard to the functional disability, he submitted

that the Doctor who has treated claimant has given

unambiguous Certificate that claimant's functional

disability is 100%. With these submissions, he prayed

for dismissal of the appeal.

11. We have carefully considered rival

contentions and perused the records.

12. In the light of the contentions urged by the

learned Advocates for the insurer and the claimant,

the point that arises for consideration is, whether any

interference is called for in this appeal?

13. The first ground urged by Shri. Lakshmi

Narasappa is that, salary slip as per Ex.P11 does not

depict the actual salary. We have carefully perused

the same. It is for the period 01.08.2015 to

31.08.2015. Claimant was working as Junior Wind

Mechanic with M/s. Wind World India Ltd.

14. Shri. Lakshmi Narasappa is partly right in

his submission that the salary slip includes the arrears

of HRA and CCA. It is relevant to note that the

summary of Form-16 is also found in the very salary

slip and it reads as follows:

"Form 16 Summary

Gross Salary 216,024.80 Exemption U/S.10 19,200.00 Balance 196,824.80 Empmnt tax (Prof Tax) 2,400.00 Aggrg Deduction 2,400.00 Incm under Hd Salary 194,424.80 Gross Tot Income 194,424.00 Agg of Chapter VI 7,260.00 Total Income 187,165.00

Take Home Pay 19,200.00"

15. The employer has clearly mentioned the

gross salary and the deductions. The total take-home

salary is Rs.19,200/-. The Tribunal has rightly

considered the said amount as the monthly salary.

16. The second ground urged by Shri. Lakshmi

Narasappa is, that claimant was also negligent and

therefore, the Tribunal ought to have considered the

contributory negligence on his part.

17. We have perused Ex.P14, the charge sheet,

Ex.P15, Mahazar, Ex.P16, the sketch and Ex.P17,

photographs.

18. Admittedly, the charge sheet has been filed

against the driver of the Omni car. No witness has

been examined on behalf of the insurer. Except

suggesting to the claimant in the cross-examination

that the accident has occurred due to negligence on

his part, there is no other evidence on record to hold

that claimant has contributed to the accident. Hence,

appellant's contention in this behalf is untenable.

19. The third ground urged by Shri. Lakshmi

Narasappa is that, the Tribunal has erred in

considering claimant's disability as 100%. He argued

that the physical disability certified by the Doctor,

P.W.2 is 75%. Therefore, the Tribunal ought not to

have considered the disability as 100%.

20. Dr. Madhusudhan, the Consultant Neuro

and Spine Surgeon of Metro United Healthcare

Hospital has issued Certificate as per Ex.P8 and it

reads as follows:

TO WHOM SO EVER IT MAY CONCERN

This is to certify Mr.Saleem Basha aged 27 years/Male had severe diffuse axonal injury following road traffic accident on 26/09/2015. Now, he is gradually recovering. He presently has severe ataxia of all 4 limbs (amounting to 75% physical disability according to DGHS guidelines) and weakness of left upper and lower limb amounting to 25% physical disability (according to DGHS guidelines). Total physical disability is 100%. He also has neurobehavioral disability of 55% (according to DGHS) as assessed by Psychiatrist.