Karnataka High Court

The Branch Manager vs Dayanand S/O Balbhim Olekar And ... on 19 May, 2022

Bench: J.M.Khazi

                            1




IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

        DATED THIS THE 19TH DAY OF MAY, 2022

                        BEFORE

         THE HON'BLE MS. JUSTICE J.M.KHAZI

              MFA.No.201670/2014 (MV)
                        C/W
              MFA.No.201063/2015 (MV)

  IN M.F.A.No.201670/2014:

  BETWEEN:

  THE BRANCH MANAGER
  THE NEW INDIA ASSURANCE CO. LTD.,
  S.S.FRONT ROAD, BIJAPUR
  NOW REPRESENTED BY
  DIVISIONAL MANAGER
  NEW INDIA ASSURANCE CO. LTD.
                                      ...APPELLANT
  (BY SRI. S.S.ASPALLI, ADVOCATE)
  AND

  1.   DAYANAND
       S/O BALBHIMA OLEKAR
       AGE: 30 YEARS
       OCC: AGRICULTURE
       R/O SALAGAR KHURD
       TQ: MANGALWADI
       DISTRICT: SHOLAPUR
       NOW RESIDENT OF JORAPURPET
       WATER TANK BIJAPUR - 586 101

  2.   NAGAPPA
       S/O MALLAPPA WADED
       AGE: MAJOR
       OCC: OWNER OF THE VEHICLE
                               2




       R/O SAMARUDDI NAGAR
       GALLI NO.5, SANGALI,
       TQ: MIRAJ DIST,
       SANGLI - 416 416
                                        ...RESPONDENTS
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE FOR C/R1;
 R2 SERVICE OF NOTICE IS NOT NECESSARY)

     THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, 1988 PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 22.07.2014 IN MVC
NO.1664/2011 PASSED BY THE MOTOR ACCIDENT CLAIMS
TRIBUNAL NO.IV BIJAPUR BY ALLOWING THE APPEAL IN THE
INTEREST OF JUSTICE AND EQUITY.

IN M.F.A.No.201063/2015:

BETWEEN:

DAYANAND
S/O BALBHIMA OLEKAR
AGE: 32 YEARS
OCC: AGRICULTURE
R/O SALAGAR KHURD
TQ: MANGALAWADI
DISTRICT: SOLAPUR

(TEMPORARY ADDRESS JORAPUR PETH,
 WATER TANK, BIJAPUR - 586 101
(ORIGINAL PETITIONER BEFORE THE
MACT NO.IV BIJAPUR AT BIJAPUR)
                                         ... APPELLANT
(BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE)


AND:
1.     NAGAPPA
       S/O MALLAPPA WADED
       AGE: MAJOR
       OCC: OWNER OF THE VEHICLE
       R/O SAMARUDDI NAGAR
       GALLI NO.5, SANGALI, TQ: MIRAJ
                               3




     DIST: SANGLI - 416 416
     (MAHARASHTRA STATE)

2.   THE MANAGER
     THE NEW INDIA INSURANCE COMPANY LTD
     S.S. FRONT ROAD, BIJAPUR-586101

     (ORIGINAL RESPONDENTS BEFORE THE
      MACT NO.IV BIJAPUR AT BIJAPUR)
                                        ... RESPONDENTS
(BY SRI S.S. ASPALLI, ADVOCATE FOR R2
    R1 - SERVED)

      THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF THE MOTOR VEHICLES ACT, 1988
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
22.07.2014 PASSED IN MVC NO.1664/2011 ON THE FILE OF
THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.IV BIJAPUR AT
BIJAPUR AND ALLOW THIS APPEAL BY ENHANCING THE
COMPENSATION AMOUNT BY RS.8,54,583/- ONLY AS CLAIMED
BY THE APPELLANT BEFORE THIS HON'BLE COURT IN THE
INTEREST OF JUSTICE AND EQUITY.

     THESE APPEALS BEING HEARD AND RESERVED FOR
JUDGMENT ON 12.04.2022, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-

                      JUDGMENT

These two appeals are arising out of judgment and

award dated 22.07.2014 in MVC.No.1664/2011 by which

the Tribunal partly allowed the claim petition granting

compensation in a sum of Rs.2,45,417/- with interest at

6% p.a.

2. While MFA.No.201670/2014 is filed by the

Insurance company seeking dismissal of the claim petition,

MFA.No.201063/2015 is filed by the petitioner for

enhancement of compensation.

3. For the sake of convenience the parties are

referred to by their rank before the Tribunal.

4. FACTS: The brief facts leading to filing of claim

petition are that on 13.09.2011 (wrongly typed as

14.09.2011 throughout the claim petition as well as in the

impugned judgment and award) at about 8.30 p.m.,

petitioner was travelling as a pillion rider on motor cycle

bearing registration No.MH-10/AZ-4213 (hereinafter

referred to as offending vehicle) from Umadi to

Mangalweda. The rider of the motor cycle rode the same in

a high speed, in a rash or negligent manner and near

Shiundagi, the motor cycle fell into a ditch, as a result of

which petitioner sustained grievous injuries. He was shifted

to Ushahkal Nursing Home, Sangli. He has also taken

treatment at other hospitals. In all he has spent

Rs.2,50,000/- for treatment. At the time of accident, he

was doing agriculture and earning Rs.5,000/- p.m. After

the accident, he is unable to earn as he used to, due to

permanent partial disability. As the owner and insurer of

the offending vehicle, respondents are jointly and severally

liable to pay the compensation.

5. Respondent No.1 has filed written statement

disputing that in the accident petitioner sustained injuries

resulting in permanent partial disability and that he has

spent Rs.2,50,000/- for treatment at Ushahkal Nursing

Home and other hospitals. Petitioner has filed this petition

to make wrongful gain. In the event of granting

compensation, respondent No.2 may be directed to pay

the same, as at the time accident the vehicle was duly

covered by a valid policy issued by it.

6. Respondent No.2 has filed written statement

disputing that the Tribunal is having territorial jurisdiction

to decide the matter. It has also denied the involvement of

the offending vehicle in the alleged accident. The offending

vehicle was not covering the risk of pillion rider. The rider

of the offending vehicle was not holding a valid and

effective license. The liability if any of respondent No.2 is

subject to the terms and conditions of the policy. The

compensation claimed under various heads is highly

exorbitant, imaginary and without any basis and has

sought for dismissal of the claim petition.

7. Based on these pleadings, the Tribunal has

framed the necessary issues.

8. In support of his case, petitioner has examined

himself as PW-1, the Doctor as PW-2 and the head

constable of the jurisdictional police station as PW-3. He

has relied upon Ex.P1 to 17.

9. On behalf of respondent No.2, RW-1 is

examined and Ex.R1 is marked.

10. Vide the impugned judgment and award, the

Tribunal has partly allowed the claim petition and granted

compensation in a sum of Rs.2,45,417/- with interest at

6% p.a by holding that petitioner is injured in the motor

vehicle accident involving the offending vehicle and as

owner and insurer of the same respondent Nos.1 and 2 are

jointly and severally liable to pay the compensation. The

details of the compensation granted by the Tribunal is as

detailed below:

                     Heads                         Amount
                                                    In Rs.
     For Pain and sufferings                             45,000
     For extra nourishment                                 3,000
     For attendant charges                                 4,500
     For conveyance                                        5,000
     For medical expenses                              1,19,157
     For loss of earning/permanent                       53,760
     disability
     For loss of amenity                                   10,000
     For future medical expenses                            5,000
     TOTAL                                              2,45,417


        11.    Respondent     No.1   has    not    challenged        the

impugned judgment and award.


        12.    Respondent            No.2          has              filed

MFA.No.201670/2014 contending that motor cycle bearing

registration No.MH-10/AZ-4213 is not at all involved in the

accident. There is inordinate delay of 27 days in filing the

complaint and the same is not properly explained. As per

Ex.P8 the discharge card, the date of accident is

13.09.2011, whereas according to the claim petition and

all other documents including the evidence, the incident

took place on 14.09.2011. As per Ex.P4 and 4(a) no

damage is caused to the offending vehicle which clearly

goes to show that the said vehicle is not at all involved in

the accident. The compensation granted under various

heads is on the higher side and sought for dismissal of the

claim petition by allowing the appeal.

13. In this regard respondent No.2 has relied upon

the following decisions:

(1) (2009) 1 Karnataka Accidents Claims Journal 500 Veerappa and another Vs. Siddappa and another.

(2) MFA.No.32075/2012 (MV) Akkanagamma and Ors. Vs. Siddanna and Ors.

(3) MFA.No.31112/2010 (MV) Mahadevi Vs. Devindra @ Devendrappa and 2 Ors.

14. On the other hand petitioner has filed

MFA.No.201063/2015 contending that even though PW-2

Dr.Ajit Modak has assessed the disability of the right lower

limb at 25% and whole body at 12.5%, the Tribunal has

erred in considering the whole body disability as only 7%.

The Tribunal has also erred in considering the income of

the petitioner at Rs.4,000/- as against Rs.5,000/- pleaded

by him. The compensation granted under various heads is

on the lower side and prays to enhance the same.

15. In support of his claim petition, petitioner has

relied upon the following decisions:

      (1)     2011 AIR SCW 1530
              Ravi Vs. Badrinarayana and Ors.
      (2)     MFA.No.31539/2011 (MV)

Srishaila Dundappa Teli Vs. Mallinath and another

(3) MFA.No.31627/2012 (MV) Sithawwa Bhimappa Madar Vs. Siddanna and Another (4) MFA.No.24953/2011 (MV) Kumar Shubham Vs. Siddalingappa and another

16. Heard arguments of both sides and perused

the record.

17. It is pertinent to note that throughout the

claim petition and during the entire trial before the

Tribunal, the petitioner has pleaded and contended that

the incident took place on 14.09.2007. However, for the

first time during the testimony of PW-3, he has taken up a

plea that the accident occurred on 13.09.2011, but by

mistake in the charge sheet the date of the accident is

noted as 14.09.2011. In fact he has chosen to examine

PW-3 only to establish the said fact. However, respondent

No.2 has chosen to cross-examine PW-3 at length as to

whether the Investigating Officer has taken any steps to

correct the charge sheet by specifying the date of accident

as 13.09.2011 instead of 14.09.2011. Now, it is to be

examined whether the accident has taken place on

13.09.2011 or 14.09.2011.

18. The earliest version of the accident is

forthcoming in the medical records. Ex.P5 is the medico

legal certificate issued by Ushahkal Nursing Home, wherein

it is stated that the petitioner i.e., patient was admitted on

14.09.2011 at 5.00 a.m. and the cause of the injuries is

given as road traffic accident on 13.09.2011 at 8.30 p.m.

and immediately, he has taken treatment at a private

hospital, Umadi and thereafter he was brought to the

hospital at 5.00 a.m. of 14.09.2011. If the petitioner was

admitted to the Ushahkal Nursing Home at 5.00 a.m. on

14.09.2011 in respect of the injuries sustained by him on

the previous night at 8.30 p.m, necessarily the incident

has taken place on 13.09.2011. It appears because he was

admitted to the hospital at 14.09.2011, by mistake in the

complaint which is given by a relative i.e., uncle of the

petitioner, he has stated the date of accident as

14.09.2011 and consequently, in all the police records the

date of accident is noted as 14.09.2011.

19. It appears in the claim petition also the

advocate who has drafted it and which is based on the

documents produced by the petitioner mainly the police

records, by mistake the date of accident is repeated as

14.09.2011 instead of 13.09.2011. This appears to be on

account of human error. It is nobody's case that the

petitioner was injured on 14.09.2011 at 8.30 p.m. because

by 5.00 a.m. of that day he was already admitted to the

hospital. Moreover, before the Tribunal the respondents

have not raised any objection with regard to the date of

incident being 13.09.2011 and not 14.09.2011. In fact

PWs-1 and 2 have not been cross-examined on this aspect.

Only after PW-3 was examined to clarify the date of

accident, in the appeal memo respondent No.2 has taken

up a defence with regard to the date of accident.

20. The next point of dispute raised by respondent

No.2 is the delay in filing the complaint. The petitioner has

relied upon the decisions referred to at para-15, wherein

having regard to the facts and circumstances therein this

Court has come to the conclusion that the delay is properly

explained. In the light of the principles enunciated in these

decisions, it is necessary to examine whether the

petitioner has given a plausible explanation for the delay in

filing the complaint.

21. It is relevant to note that on 13.09.2012 at

8.30 p.m. petitioner has sustained severe injuries which

include injuries to his head, face, right hip, right thigh,

right knee and right leg. He was unconscious for a short

time. He has taken treatment as in-patient from

14.09.2011 to 04.10.2011 for a period of 20 days. He has

also undergone surgery. It appears even after discharge

from the hospital, he was not in a position to move around

and his relative has chosen to file a complaint on

10.10.2011. Taking into consideration the above aspects,

the Tribunal has rightly accepted the explanation given for

delay in filing the complaint and proceeded with the

matter. He has not been cross-examined seriously on the

aspect of delay. A suggestion is made to PW-1 that earlier

he had filed another complaint and after concealing the

said fact, he has chosen to file this complaint.

22. If at all petitioner had filed earlier complaint

with a different version, it would be with the concerned

police. It was not difficult for respondent No.2 to get the

information of the said complaint and place the said

version before the Court. Without undertaking the said

exercise, respondent No.2 is simply disputing that the

offending vehicle is not at all involved in the accident. In

fact as admitted by RW-1, respondent No.2 Insurance

company has not made any independent investigation with

regard to the said case. In the absence of placing any

contrary material, it is not open to the respondent No.2 to

dispute the fact of involvement of the offending vehicle.

Thus, from this discussion I hold that the petitioner has

properly explained the delay in filing the compliant.

23. So far the defence of the respondent No.2

regarding the Tribunal not having territorial jurisdiction,

though the respondent No.2 in the written statement has

taken up such a contention, PW-1 is not cross-examined

on this aspect. Moreover, the office of respondent No.2 is

situated at Bijapur (Vijayapura). Consequently, I hold that

the Tribunal is having territorial jurisdiction to decide the

matter. In the result appeal filed by the respondent No.2

fails.

24. So far as the decisions relied upon by

respondent No.2 - Insurance company are concerned,

having regard to the facts and circumstances therein it was

held that the said claims were fraudulent and

consequently, the appeals filed by petitioners therein were

dismissed upholding the judgment and award by the

Tribunal. However, in the present case, respondent No.2

has failed to establish that the claim of the petitioner is

fraudulent and therefore, these decisions are not

applicable to the case on hand.

25. Now, coming to the appeal filed by the

petitioner challenging the quantum of compensation

granted under the following various heads.

26. Pain and suffering: The Tribunal has granted

compensation in a sum of Rs.45,000/- under the head pain

and suffering. As evident from the testimony of PW-2 and

the medical records, petitioner has suffered (1) fracture of

lower pole of petila (Rt) (2) comminuted displaced fracture

of neck of femur (Rt) (3) comminuted displaced fracture of

upper 1/3rd shaft of femur (Rt) and there were multiple

abrasions over the face, head, nostril, right leg and various

parts of the body. He was in-patient for 20 days and has

also taken further treatment. Taking into consideration

these aspects, I hold that the compensation granted in a

sum of Rs.45,000/- under this head is just and reasonable

and it does not call for interference.

27. Medical Expenses: Based on the medical bills

produced by the petitioner, the Tribunal has rightly

granted compensation in a sum of Rs.1,19,157/- under

this head and there is no scope for interference.

28. Extra nourishment, attendant charges and

conveyance: Under these three heads, the Tribunal has

granted compensation in a sum of Rs.12,500/- in total.

I find no reason to interfere with this also.

29. Future medical expenses: The Tribunal has

granted compensation in a sum of Rs.5,000/- under this

head. The evidence of PW-2 establish the fact that

petitioner requires a further surgery for removal of the

implants and having regard to the nature of the injury

sustained, it would be appropriate to enhance

compensation under the future medical expenses to

Rs.10,000/- as against Rs.5,000 granted by the Tribunal.

However, petitioner is not entitled for the interest on this

amount.

30. Loss of amenities: The Tribunal has granted

compensation in a sum of Rs.10,000/- under this head.

Having regard to the nature of the injuries sustained which

includes three fractures and period of treatment, I am of

the considered opinion that it would be appropriate to

enhance the compensation under this head to Rs.20,000/-

as against Rs.10,000/- granted by the Tribunal.

31. Loss of future earnings: Though petitioner has

claimed that he was earning Rs.5,000/-p.m., he has not

produced any evidence to establish the said fact. In the

absence of documentary evidence, the Tribunal has rightly

taken his notional income as Rs.4,000/- and having

regarding to his age, it has rightly taken the multiplier as

16. During the course of his evidence, PW-2 Dr.Ajit Modak

has deposed that petitioner has suffered 25% disability of

the lower limb and it works out to 12.5% of the whole

body. In case of disability of any particular limb, the whole

body disability is to be taken at 1/3rd and therefore, the

Tribunal has rightly taken the whole body disability at 7%.

31.1 However, the Tribunal has not granted any

compensation towards loss of future prospects. As per the

decision of the Hon'ble Supreme Court in Magma General

Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram &

Ors1, in case of permanent partial disability, loss of future

prospects is to be calculated. Since the age of petitioner

was 35 years as on the date of accident i.e., his age was

less than 40 years and he was an agriculturist, the loss of

future prospects is to be calculated at 40% of the income.

40% of Rs.4,000/- comes to Rs.1,600/-. Therefore, the

notional income is required to be taken at Rs.5,600/- with

the 16 multiplier and 7% disability and Rs.5,600/- as the

notional income, the loss of future earnings is 5,600 x 12

x 16 x 7% = Rs.75,262/- as against Rs.53,760/- granted

by the Tribunal.

(2018) 18 SCC 130

32. Compensation for laid up period: The Tribunal

has not granted any compensation under this head. Having

regard to the nature of the injury sustained and the

treatment taken, it would be reasonable to expect that

petitioner was under treatment for a period of two months

and therefore, under this head he is entitled for

compensation at the rate of Rs.4,000/- for a period of two

months which works out to Rs.8,000/- and accordingly the

same is granted.

33. Thus, in all petitioner is entitled for

compensation in a sum of Rs.2,81,919/- as against

Rs.2,45,417/- granted by the Tribunal as detailed below:

Heads Amount granted by Amount granted by the Tribunal (In Rs.) this Court (In Rs.) For Pain and sufferings 45,000 45,000 For extra nourishment 3,000 3,000 For attendant charges 4,500 4,500 For conveyance 5,000 5,000 For medical expenses 1,19,157 1,19,157 For loss of 53,760 75,262 earning/permanent disability For loss of amenity 10,000 20,000 For future medical 5,000 10,000 expenses TOTAL 2,45,417 2,81,919

34. Of course the petitioner is entitled for interest

at 6% as granted by the Tribunal. To this extent the

appeal filed by the petitioner deserves to be allowed in

part.

ORDER

(i) MFA.No.201670/2014 is filed by the Insurance

company is dismissed.

(ii) MFA.No.201063/2015 is filed by the petitioner

is allowed in part.

(iii) Petitioner is entitled for total compensation in a

sum of Rs.2,81,919/- as against Rs.2,45,417/-

granted by the Tribunal together with interest