The Manager vs Manju M P
2022 Latest Caselaw 4877 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 16TH DAY OF MARCH, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

 MISCELLANEOUS FIRST APPEAL NO.6039 OF 2019 (MV)


BETWEEN:

THE MANAGER
UNITED INDIA INSURANCE
COMPANY LIMITED
BRANCH OFFICE
RAGHAVENDRA COLONY
B.H.ROAD, TIPTUR
TUMAKURU DISTRICT

NOW REP. BY ITS
REGIONAL OFFICE
6TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD
BENGALURU -560 001
REP.BY ITS MANAGER                       ... APPELLANT

(BY SRI LAKSHMI NARASAPPA FOR
    SRI A.M.VENKATESH, ADVOCATES)

AND:

1.     MANJU M.P
       S/O.PUTTA
       AGED ABOUT 30 YEARS
       R/AT MUNIYAPPANA PALYA
       KASABA HOBLI
       KUNIGAL TALUK - 572 130

2.     GOPAL RAM
       S/O.B.NANJAMARI
       AGED ABOUT 39 YEARS
       R/AT NO.890, MAHALAKSHMI LAYOUT
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      C.N.HALLI
      TUMAKURU CITY-272 214             ... RESPONDENTS

(BY SRI R.SHASHIDHARA, ADVOCATE FOR R-1;
     R-2 IS SERVED)
                        ---
     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD
DATED 14.03.2019 PASSED IN MVC NO.438/2015 BY THE
SENIOR CIVIL JUDGE AND MACT-XV AT KUNIGAL
AWARDING COMPENSATION OF RS.3,99,320/- WITH
INTEREST AT 9% P.A. & ETC.

     THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is directed against the judgment and

award passed by the Senior Civil Judge and MACT-XV at

Kunigal in MVC.No.438/2015 dated 14.03.2019 by the

Insurance Company. This appeal is founded on the ground

of excessive compensation awarded by the tribunal.

2. Though this matter is listed for orders, with

consent of learned counsel on both sides, matter is taken

up for final disposal.

3. Parties to the appeal shall be referred to as per

their status before the tribunal.

4. Brief facts of the case is as under:

On 16.12.2014 at about 11.30 p.m. while the

claimant was travelling as a pillion rider on a bike bearing

registration No.KA-06-ER-3818 which was ridden by one

B.Prasanna Kumar following necessary traffic rules and

regulations, at that time, two wheeler Yamaha model bike

bearing registration No.KA-06-R-9449 came from the

opposite direction ridden by the driver with high speed in a

rash and negligent manner, near Bilakar Palya so as to

endanger human life and safety, dashed against the

claimant's bike. Due to the impact of accident, the claimant

and the rider fell down and sustained injuries. Both of them

were shifted to Gubbi Government Hospital for initial

treatment and thereafter, he was shifted to Sridevi Hospital

and subsequently, to M.S.Ramaiah Hospital for better

treatment. Due to the injuries sustained in the accident,

claimant incurred financial expenditure for treatment and

was admitted in the Hospital for a period of 05 days as

inpatient and due to which, he has lost earning capacity

because of disability suffered by him and so also, income

during the period, he was admitted as inpatient in the

Hospital. For all these reasons, the claimant has preferred a

claim petition before the tribunal seeking compensation for

injuries sustained by him and loss of income.

5. On notice being served to respondents, who

appeared before the Court. Respondent No.2 has filed the

statement of objections who is the Insurer of the first

respondent and pleaded that the accident occurred due to

negligence of the rider of the bike and not due to rider of

offending vehicle. It was also pleaded by the Insurer that

there was a delay of 5 days in registration of FIR which was

also suspicious in nature with regard to involvement of

offending vehicle in question. It is further pleaded that the

injuries sustained by the claimant was due to their own

fault of not wearing protective head gear namely, helmet

and there was contributory negligence on the part of

claimant and rider of the vehicle as against the offending

vehicle. It is also pleaded that the rider of the offending

vehicle did not have valid and effective driving licence and

violated terms and conditions of the insurance policy.

However, policy came to be admitted by the Insurer and

the same was also marked as Ex.R1. Hence, he sought for

dismissal of claim petition. On the basis of these pleadings,

the tribunal has framed relevant issues for consideration.

6. In order to substantiate issues and establish the

case, the claimant got examined himself as PW.1 and also

the Doctor as PW.2 and got marked documents as Exs.P1

to P14 whereas on the other hand, the respondents did not

lead any evidence. However, got marked the Insurance

policy with consent as Ex.R1.

7. It is the vehement contention of learned counsel

for appellant-Insurer that the tribunal has grossly erred in

not considering the material evidence both oral and

documentary and has mechanically passed the order in

assessing the income of the claimant to be at Rs.12,000/-

per month without any material basis and proof. Hence, the

same requires to be reduced. It is further contended by

learned counsel that there is no proof of income produced

by claimant, despite which, the tribunal has assessed the

monthly income of claimant at Rs.12,000/- on the basis of

Exs.P7 and P8, which is erroneous in law for a simple

reason that the claimant has not examined the author of

the said documents-Exs.P7 and P8. He further contends

that the claimant has not produced any material evidence

to show that he was doing agricultural activities and no

proof of income to that effect is also produced.

8. It is further contended by the learned counsel that

claimant relies on certificate of proof of income and the

onus is on the claimant to establish and prove that fact

which is within his knowledge as contemplated under

Sections 102 and 106 of the Indian Evidence Act, 1872. In

the present case on hand, though claimant has produced

Exs.P7 and P8, the same is not established as contemplated

under law by adducing evidence of the author of the said

document. It is also contended that nothing prevented the

claimant from producing the Bank passbook or entries

made in the Bank account with regard to deposit of the

said amount having been paid by the said colleges for

disbursement of income to the same.

9. Learned counsel further contends that the evidence

adduced by the Doctor-PW.2 with regard to disability is on

the higher side and hence, the same is not appropriately

considered commensurate to the injuries sustained by the

claimant. Therefore, the same also requires to be

reconsidered by this Court. Learned counsel further

contends that the tribunal has awarded interest @ 9%

which is also exorbitant and the same requires to be toned

down to 6% as it is not contractual policy and it is only a

statutory policy. He further contends that the maximum

interest that could be awarded is only 6%. Hence, interest

required to be reduced from 9% to 6%.

10. It is also the contention of the learned counsel

for appellant-Insurer that the interest is 6% as

contemplated under Section 149(1) of the Motor Vehicles

Act.

11 Per contra, learned counsel for the claimant

contends that the tribunal has awarded compensation on

the basis of the material evidence both oral and

documentary. Therefore, the tribunal has not committed

any error in assessing the income at Rs.12,000/- per month

as the tribunal has rightly taken into consideration Exs.P7

and P8 wherein the claimant was a guest lecturer for decree

Colleges and was earning Rs.8,000/- from one college and

Rs.6,000/- from another college, wherein by giving guest

lecture for a period of three days in each colleges. The said

documents are marked as Exs.P7 and P8 apart from doing

agricultural work.

12. It is also contended by learned counsel for

claimant that he has examined PW.2-Doctor who has

assessed the permanent physical disability to an extent of

26% and on the basis of same, tribunal has assessed the

disability at 9% to the whole body which would not call for

interference for a simple reasons that tribunal has relied on

expert opinion expressed by the Doctor-PW.2. He further

contends that the under the other heads and even under

the head of loss of income during laid up period, claimant

for having been inpatient for a period of 5 days, tribunal is

just and reasonable in awarding compensation. He further

contends that interest awarded by tribunal is just and

reasonable and there is no curtailment under the Motor

Vehicles Act with regard to interest being capped or fixed at

maximum 6% as canvassed by the learned counsel for

insurer. On the basis of these submissions, learned counsel

for claimant seeks for dismissal of this appeal and affirm

the judgment and award passed by the tribunal.

13. Having heard the submissions of the learned

counsel for appellant-Insurer and the learned counsel for

claimant, the points that would arise for consideration

before this Court are:-

"(i) Whether tribunal has awarded excessive compensation to the claimant

considering the facts and circumstances of the case?

      (ii)    Whether tribunal has erred in awarding
              excess     interest    @     9%    instead    of
              awarding @ 6%? and

(iii) Whether the order of the tribunal calls for interference?"

14. It is not in dispute that the accident occurred on

16.12.2014 at about 11.30 p.m. while the claimant was

travelling as a pillion rider with his friend, when Yamaha

model bike bearing registration No.KA-06-R-9449 came

from opposite direction with high speed in a rash and

negligent manner and dashed against the bike ridden by

the friend of claimant leading to the injuries suffered by the

claimant. To evidence this fact, claimant has got marked

EXs.P1 to P6. These are the Police records which are

produced pursuant to the investigation and enquiry

conducted by Investigating Agency. These documents are

admittedly not challenged and not disputed by the

appellant-Insurer or the rider of motor bike. When this

being fact of the case and there being no challenge to these

Police records and criminal case having been registered as

against rider of the motor bike and no contra evidence

having been produced by the respondent-Insurer either

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before the tribunal or before this Court, it can be safely

concluded that there was rashness and negligent riding on

the part of rider of the Yamaha model bike which lead to

the accident, in which the claimant sustained injuries to

himself and incurred financial expenditure.

15. Now coming to the aspect of income assessed by

the tribunal for computation of compensation, admittedly,

in the present case on hand, claimant has not produced any

specific material proof of income to show that he was

earning Rs.12,000/- per month as income both from

agricultural activities and also as a guest lecturer. No

doubt, the claimant has produced Exs.P7 and P8, which are

two service certificates issued by two colleges which says

that the claimant was working as a guest lecturer and

earning Rs.8,000/- and Rs.6,000/- per month respectively

in two colleges by attending three days in each of the

Colleges in a week. On the basis of Exs.P7 and P8, the

tribunal has assessed the monthly income of the claimant

at Rs.12,000/- per month for computation of compensation.

It is vehement contention of learned counsel for appellant-

Insurer that when there is no material evidence with regard

to proof of income, the tribunal has committed an error in

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assessing the income at Rs.12,000/- per month whereas

tribunal ought to have taken notional income chart for

reference, the income on the basis of the chart provided

which ought to have been is Rs.5,800/- for the accident

occurred in the year 2014.

16. Though at the first blush, the arguments of the

learned counsel for the appellant-Insurer looks very

attractive and appealing, but I am afraid the same cannot

be sustained for a simple reason that on the basis of

material documents produced, it is apparent that claimant

was working as a guest lecturer in two colleges for three

days in each of the colleges and earning income of

Rs.8,000/- and Rs.6,000/- respectively, apart from what is

stated that he was doing agricultural work. Even for the

agricultural work, no material has been produced by

claimant and the income is not added to what is already

produced at Exs.P7 and P8. On the face value of Exs.P7 and

P8 prima facie, the income would come to Rs.14,000/- per

month only as a guest lecturer. Admittedly, there is no

dispute that claimant was working as a guest lecturer. In

the evidence adduced by the Insurance Company while

cross examining PW.1, it is not disputed and no question or

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suggestion has been put-forth to claimant-PW.1 that he

was not working as a guest lecturer and that he was not

qualified to work as a lecturer to provide such an income.

In the absence of such contra material, tribunal was left

with no other alternative, but to accept Exs.P7 and P8

despite claimant having not examined the author of Exs.P7

and P8 to establish and to prove Exs.P7 and P8.

17. However, in the present case on hand, where

injuries are sustained in the motor vehicle accident, it is

trite law that motor vehicles legislation is a beneficial

legislation which is made for the welfare of a person having

suffered the injuries in the course of accident. The benefit

of doubt will always have to go in favour of the injured-

victim. If a person has to be a guest lecturer in any of the

Colleges, he should have atleast completed his Post

Graduate degree to become a lecturer in a degree college.

Hence, it can be inferred that the claimant was qualified PG

by education. Exs.P7 and P8 would go to show that he was

earning Rs.14,000/- as a guest lecturer, tribunal though

has not taken entire amount, has assessed the income at

Rs.12,000/- per month. Coming to the aspect of

considering the notional income chart for assessing the

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income and there being no proof of income, it is not in

dispute that when there is absolutely no proof of income

produced by claimant, then Courts will have to rely upon

notional income chart prescribed by the Legal Services

Authority as a guess work to assess the income of claimant.

18. In the present case on hand, when admittedly,

the claimant is a Post Graduate and Lecturer in degree

College, he cannot be relegated to the level of coolie or

unskilled worker to rely on notional income chart for

assessing the income. The tribunal has rightly considered

EXs.P7 and P8 and oral and documentary evidence and

assessed the income at Rs.12,000/- per month, keeping in

mind the avocation and education of claimant. Hence, I do

not find any legal infraction or illegality in the tribunal

assessing the income at Rs.12,000/- for PG educated

person teaching in degree Colleges as a guest lecturer.

19. Claimant has got examined the Doctor as PW.2

who has deposed before the Court and has stated on oath

that claimant sustained injuries and he has sustained 26%

permanent physical disability and necessary document to

that effect and exhibits are produced. On the basis of these

medical records, the tribunal has assessed disability to the

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whole body at 9%, which I do not find any legal infirmity or

infraction as tribunal has relied on the basis of the expert

opinion expressed by the Doctor-PW.2. It is not in dispute

that claimant was aged 26 years as on the date of accident

and accordingly, tribunal has taken appropriate multiplier of

'17' which is as per the judgment of the Hon'ble Apex Court

in the case of Sarla Verma (Smt) and others vs. Delhi

Transport Corporation and another reported in

(2009) 6 Supreme Court Cases 121. This also does not

call for interference. Tribunal has awarded Rs.36,000/-

under the head of loss of income during laid up period

assessing the income at Rs.12,000/- which also does not

call for any interference. The tribunal has also awarded

Rs.15,000/- each under the head of travel expenses and

special diet which also does not call for interference at the

hands of this Court. The tribunal on the basis of medical

records produced at Exs.P9 to P14 awarded Rs.81,000/-

under the head of medical expenses, which also does not

call for interference by this Court.

20. The other points seriously canvassed and urged

by the learned counsel for appellant-Insurer is the interest

@ 9% awarded by tribunal to be on the higher side Learned

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counsel for the appellant has relied on the judgment of the

Division Bench in MFA.No.5896/2018 wherein the Division

Bench of this Court has considered aspect in awarding

interest in the motor vehicles case and held that the

interest will have to be considered on the basis of Section

34 of CPC and reduced the rate of interest from 8% to 6%.

I am in agreement with contention put-forth by learned

counsel for appellant-Insurer that interest awarded by the

tribunal is on the higher side and same requires to be

reduced from 9% to 6%. I am not convinced with the

contention of learned counsel that there is a cap for grant

of interest under Section 149(2) of Motor Vehicles Act,

1988. However, the interest portion is covered under

Section 34 of CPC which prescribes 6% interest.

21. In view of the discussions made above and on

the basis of contentions of learned counsel on both sides, I

pass the following:

ORDER

i) The appeal is allowed-in-part;

  ii)     The judgment and award passed by the Senior

          Civil   Judge   and    MACT-XV    at    Kunigal   in

MVC.No.438/2015 dated 14.03.2019 is modified;

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iii) The compensation awarded by the tribunal at

RS.3,99,320/- is affirmed;

iv) The interest awarded at 9% is toned down to 6%

from the date of petition till the date of payment;

v) The balance amount of compensation shall be paid

by the appellant-Insurer within a period of four

weeks from the date of receipt of a certified copy

of this order, as 50% of the amount has already

been deposited before the Court;

vi) The amount in deposit made before this Court shall

be transmitted to the concerned tribunal forthwith.

Pending application, if any, does not survive and the

same shall stand consigned to records.

Sd/-

JUDGE

LB