National Insurance Co Ltd vs Sri Shivananda Gowda Patil @
2022 Latest Caselaw 7509 Kant

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 26TH DAY OF MAY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

              M.F.A.NO.7477/2015 C/W
             M.F.A.NO.4244/2017 (MV-I)

IN MFA NO.7477/2015 (MV)


BETWEEN:

NATIONAL INSURANCE CO.LTD.,
REGIONAL OFFICE,
NO.144, 1ST FLOOR,
SHUBHARAM COMPLEX,
M.G.ROAD, BANGALORE-1.
                                         ... APPELLANT

(BY SMT. MANJULA N. TEJASWI, ADVOCATE)


AND:

1.     SRI. SHIVANANDA GOWDA PATIL @
       SHIVANANDA S. PATIL @
       PATIL SHIVANANDA GOWDA,
       AGED ABOUT 39 YEARS,
       R/O NO.1508, 2ND CROSS,
       6TH MAIN, 5TH STAGE,
       1ST PHASE, BEML,
       R.R. NAGARA, BENGALURU-98.

2.     SRI. AMAR SIDDAPPA MAGAVI,
       S/O SIDDAPPA MAGAVI,
       NO.5928, SAPTAGIRI NILAYA,
       NEAR KODAVA SAMAJA,
                           2




       VIJAYANAGARA 2ND STAGE,
       MYSORE-570001.
       (RC OWNER OF MOTOR CYCLE
       NO.KA-09-ES 1682)
                                       ... RESPONDENTS
(BY SRI D. NAGARAJA REDDY, ADVOCATE FOR R1
V/O DTD-26/08/2021 SERVICE OF NOTICE TO R1 IS H/S,
V/O DTD-30/06/2021 NOTICE TO R2 IS D/W)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT    AGAINST     THE    JUDGMENT   AND     AWARD
DATED:24.06.2015 PASSED IN MVC NO.4234/2013 ON
THE FILE OF THE 2ND ADDITIONAL SMALL CAUSES JUDGE
AND    28TH  ACMM,     BENGALURU,  AWARDING     THE
COMPENSATION OF RS.14,44,682/- WITH INTEREST AT
RS.6% P.A., FROM THE DATE OF THE PETITION TILL THE
DATE OF DEPOSIT AND ETC.,

IN MFA NO.4244/2017 (MV-I)

BETWEEN:

SRI. SHIVANANDA GOWDA PATIL,
@ SHIVANANDA S. PATIL,
@ PATIL SHIVANANDA GOWDA,
AGED ABOUT 43 YEARS,
S/O SIDDANA GOWDA PATIL,
R/O NO.1508, 2ND CROSS, 6TH MAIN,
5TH STAGE, 1ST PHASE, BEML,
RR NAGAR, BENGALURU-560 036.
                                          ... APPELLANT

(BY SRI. NAGARAJA REDDY D. ADVOCATE)

AND:

1.     NATIONAL INSURANCE CO., LTD.,
       NO.144, SHUBHARAM COMPLEX,
       MG ROAD, BENGALURU-560 009.
       REP. ITS MANAGER
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2.   SRI. AMAR SIDDAPPA MAGAVI,
     MAJOR,
     S/O SIDDAPPA MAGAVI,
     R/O NO.5928, SAPTHAGIRI NILAYA,
     NEAR KODAVA SAMAJA,
     VIJAYANAGAR, 2ND STAGE,
     MYSORE-571 124.
                                 ... RESPONDENTS

(BY SMT. MANJULA N. TEJASWI, ADV., FOR R1,
V/O DTD-22/03/2022 NOTICE TO R2 IS D/W)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT PRAYING TO ENHANCE THE AWARD AMOUNT WITH
INTEREST AT THE RATE OF 12% P.A., TILL THE
REALIZATION PASSED BY THE HON'BLE II ADDL. SMALL
CAUSES JUDGE AND XXVIII ACMM AT BENGALURU IN
MVC.NO.4234/2012 BY THE JUDGMENT AND AWARD
DATED 24.06.2015 AND ETC.,

     THESE M.F.As. COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                    JUDGMENT

The appeal in MFA No.7477/15 is filed by the

Insurance Company challenging the Judgment and Award

dated 24.06.2015 passed in MVC No.4234/2015 by the II

Addl. Small Causes Judge & XXVIII ACMM, Bengaluru and

P.O., MACT, Bengaluru, challenging the quantum of Award.

2. The appeal in MFA No.4244/2017 is filed by the

claimant seeking for enhancement of compensation.

3. The brief facts of the case are that on

13.07.2013, at about 4.00 p.m., when the petitioner was

riding motorcycle bearing Registration No. KA-16/J-3064

along with a pillion rider on Nehru Main Road,

Rajarajeshwari Nagara, Bengaluru, the rider of motorcycle

bearing Registration No. KA-09/ES-1682 came in a high

speed and dashed against the petitioner's motorcycle and

due to the impact, the petitioner sustained grievous

injuries and suffered disability. Hence, he preferred the

claim petition in MVC No.4234/2015 against the rider of

the offending motorcycle and the Insurance Company.

The Tribunal has awarded compensation to the claimant

awarding a sum of Rs.14,44,682/- with interest at 6% per

annum from the date of petition till deposit and directing

the Insurance Company to deposit the entire compensation

amount.

4. Learned counsel appearing for the Insurance

Company submitted that there is no evidence produced by

the claimant to show that he had suffered loss of future

earning and the claimant has not produced his bank

passbook / statement subsequent to the month of June,

2013. Further, even after the accident, to show that the

claimant is not working in any other company and he has

sustained loss of earning, he has not produced the bank

passbook for the month of July, 2013. The bank passbook

produced by the claimant is only upto 29.06.2013.

Therefore there is no evidence from the claimant's side to

show that he has suffered loss of future earning. Learned

counsel further submitted that Exhibit P20 is the bank

statement of the Company in which the claimant was

working and it is upto 07.06.2013. It does not reflect the

salary of Rs.60,000/- was given to the claimant. Therefore

it is doubtful that the claimant was receiving salary of

Rs.60,000/- per month before the accident. Under the

circumstances, the salary slip exhibits P17 and P20 cannot

be believed.

5. Learned counsel submitted that in order to

prove loss of future earning, claimant has not produced

any evidence much less the bank passbook of July, 2013

to show that he had lost the job or he left the job and

therefore did not receive any salary. Therefore in the

absence of any evidence, the award of compensation

under the head " Future loss of earning" by the Tribunal is

not correct.

6. Learned counsel for the Insurance Company

further submitted that the claimant admitted in his

evidence that he has got insurance coverage for medical

expenses but he has not produced any certificate from any

Insurance Company stating that he the claimant has not

received insurance amount towards his medical expenses.

Therefore she submitted that if the claimant has received

some insurance amount towards medical expenses and

also received medical expenses from the company which

would result in double claim towards medical expenses and

the same cannot be permitted and thus, prayed for

rejecting the compensation awarded towards medical

expenses.

7. To substantiate her contentions, learned

counsel for the Insurance Company relied upon two

Judgments of this Court in "Balakrishna N. Shetty and

Others Vs. B.K. Ibrahim and Others" reported in ILR 2003

KAR 3801 and in "United India Insurance Co. Ltd. Vs. D.C.

Rajanna & Another" reported in ILR 2000 KAR 3443.

8. On the other hand, learned counsel for the

claimant in MFA No.4244/17 submitted that the claimant

was working as a Project manager in AN Prakash

Construction Project Management Consultants (P) Ltd.,

Jayanagar, Bengaluru and was receiving a salary of

Rs.60,000/- per month and due to the accident, the

claimant is not able to do any other work in any other

company and therefore he has lost future earnings.

Therefore the Tribunal has awarded compensation.

9. Further submitted that Ex.P.11 is the salary

certificate produced by the claimant and Ex.P.17 is the pay

slip produced by P.W.3 - HR Executive to prove that the

claimant was receiving salary of Rs.60,000/- per month.

Therefore, the Tribunal has correctly held the monthly

salary of the claimant and accordingly, awarded

compensation by holding that the claimant had suffered

13% of physical disability and thus, the compensation

awarded by the Tribunal under the head "loss of future

earnings" is correct.

10. Further submitted that, just because, the bank

pass book from July, 2013 onwards is not produced that

cannot be said that the claimant was not earning income of

Rs.60,000/- immediately before the accident. Therefore,

Ex.P.9-bank pass book reflects the receipt of salary by the

claimant from the company coupled with Ex.P.11 -salary

certificate and Ex.P.17- pay slip which proves the fact that

the claimant was receiving gross salary of Rs.60,000/- per

month and accordingly, the Tribunal has assessed the

quantum of compensation under the head "loss of future

earnings" and accordingly, awarded the compensation,

which needs no interference. Therefore, prays for dismissal

of the appeal.

11. Further, learned counsel for the claimant

submitted that the amount of compensation awarded by

the Tribunal under various heads are not correct and

inadequate. Therefore, prays for enhancement of the

compensation by allowing MFA.No.4244/2017.

12. The Tribunal in all awarded compensation

under various heads as follows:

Injury pain and sufferings Rs.40,000/-

Loss of future earnings Rs.12,53,702/-

      Medical Expenses                   Rs.1,06,880/-
      Loss of amenities                    Rs.20,000/-
      Conveyance, nourishment,
                                            Rs.9,100/-
      food and attending charges
      Future medical expense              Rs.15,000/-
                            Total     Rs.14,44,682/-

13. Ex.P.9 is the copy of the bank pass book which

shows that the salary amount of Rs.60,000/- was credited

to the account of the claimant. Ex.P.11 is the salary

certificate of the claimant which shows that the claimant's

salary was Rs.60,000/- per month. Further P.W.3 who is

the HR Executive of the Company deposed in his evidence

that the claimant was working as a Project Manager

(Electrical) and the company was giving salary of

Rs.60,000/- per month to the claimant. Considering the

submission made by the learned counsel for the Insurance

Company that Ex.P.20 is the company bank statement

upto June, 2013, which does not reflect the payment of

salary to the account of the claimant. Therefore, the salary

of Rs.60,000/- is doubtful one. The submission is

considered along with the depositions made in the cross-

examination of P.W.3. P.W.3 had stated in the cross-

examination that Ex.P.20 pertains to the company bank

statement and do not disclose the salary amount of

Rs.60,000/- credited to the account of the claimant.

Further it is pertinent to mention here that the amount

reflected is pertaining to the salary of all the employees.

Therefore, just because, in Ex.P.20 - company bank

statement, if there is no inclusive or disclosure of crediting

the salary of Rs.60,000/- to the account of the claimant, it

does not mean that the company was not giving salary of

Rs.60,000/- to the claimant.

14. Further more, it is pertinent to mention here

that, as per the evidence of P.W.3, the amount reflected in

Ex.P.20 is pertaining to the salary of all the employees,

which is categorically stated in the cross-examination of

P.W.3. Further more, Ex.P.9-copy of bank pass book,

Ex.P.11-salary certificate, Ex.P.17-pay slip of claimant

prove the fact that the claimant was receiving salary of

Rs.60,000/- per month from the company and just

because, the claimant has not produced the bank

statement from July, 2013, it does not mean that the

claimant was not earning Rs.60,000/- per month. In this

regard, I do not find any merit in the submission made by

the learned counsel for the Insurance Company.

15. Just because, the claimant has not produced

the bank statement from July, 2013 onwards, it does not

mean that the claimant was doing job in some other

company and earning some salary. But it is the fact that

the claimant was working as a Project Manager (Electrical)

in the company and was earning salary of Rs.60,000/- per

month as it is proved by the documentary evidence

coupled with the evidence of P.W.3. Therefore, the

Tribunal in this regard has considered this aspect and held

the income of the claimant at Rs.53,557/- after deducting

the payment made towards income tax and professional

tax, which does not require any interference by this Court.

16. Further the claimant had suffered fracture of

shaft of right tibia with fracture head of fibula and

accordingly, the claimant has produced Ex.P.3 - wound

certificate, Ex.P-13- case sheet and P.W.3- doctor has

deposed that the claimant has suffered 13.8% of physical

disability. Therefore, the Tribunal considering the nature of

injuries sustained by the claimant and considering the

avocation of the claimant that he was working as a Project

Manager (Electrical), which requires working in the field,

has considered the physical disability at 13% and

accordingly, awarded compensation under the head "loss

of future earnings", which does not call for interference.

The Tribunal has considered the multiplier "15" according

to the age of the claimant as he was 39 years as on the

date of accident and it is also found to be correct and

therefore, the amount of compensation awarded by the

Tribunal under the head "loss of future earnings" is found

to be correct, which needs no interference. What the

Tribunal held was that the claimant had suffered functional

disability at 13% only and accordingly, awarded

compensation under the head "loss of future earnings",

considering the monthly income of the claimant at

Rs.53,557/-. Therefore, the observations and findings

made by the Tribunal in this regard are correct, which

needs no interference.

17. Further considering the submission made by

the learned counsel for the claimant for seeking

enhancement of compensation, but considering the nature

of injuries sustained by the claimant, the amount of

compensation awarded by the Tribunal under the heads

"Injury, pain and sufferings, loss of amenities, conveyance,

nourishment, food and attending charges" etc., are all

correct, which needs no interference.

18. Further considering the submission made by

the learned counsel for the Insurance Company that the

claimant had purchased the Medical Insurance Policy,

therefore, he might have received the compensation under

the head "Medical Expenses" from the Medical Insurance

Company and therefore, whatever the amount awarded by

the Tribunal under the head "Medical Expenses" is the

amount to be claimed. Hence, prays for

deduction/reduction of the same.

19. But after considering the submission, the

claimant has produced the original medical bills of

Rs.1,18,230/- before the Tribunal. If at all the claimant

has received the insurance amount from the Medical

Insurance Company, then the claimant must have

produced the original medical bills, but the original medical

bills were produced before the Tribunal. Therefore, it

shows that the claimant has not received the medical

expenses from the Medical Insurance Company. For

claiming reimbursement of medical expenses from the

Medical Insurance Company, the original bills and receipts

must be produced before the Company, but the medical

bills and receipts were produced before the Tribunal, which

shows that the claimant has not received the medical

reimbursement from the Medical Insurance Company. In

this regard, whatever amount awarded by the Tribunal

under the head "Medical Expenses" at Rs.1,06,880/- is

correct, which needs no interference.

20. Therefore, the Tribunal has awarded just and

proper compensation under each head, which needs no

interference. Further more, the appeal filed by the

claimant for enhancement of compensation is liable to be

rejected for the reason that the amount awarded by the

Tribunal under various heads are all correct. Therefore,

both the appeals are liable to be dismissed for the reason

discussed above. Hence, I proceed to pass the following

ORDER

MFA.No.7477/2015 filed by the Insurance Company

and MFA.No.4244/2017 filed by the claimant are

dismissed.

The judgment and award dated 24.06.2015 passed

in MVC.No.4234/2015 by the II Addl. Small Causes Judge

& XXVIII ACMM, Bengaluru, are hereby confirmed.

I.A.No.1/2015 does not survive for consideration and

it is also dismissed.

Sd/-

JUDGE

SAC/PB