Karnataka High Court
The Oriental Insurance vs Sakamma on 26 May, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY 2022
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.9686 OF 2018(MV)
BETWEEN:
THE ORIENTAL INSURANCE
COMPANY LIMITED
M H BORAIAH BUILDING
NEAR GANAPATHI TEMPLE
V V ROAD, MANDYA
ALSO AT ORIENTAL INSURANCE
COMPANY LIMITED
TP HUB, REGIONAL OFFICE
LEO SHOPPING COMPLEX
NO.44/46, RESIDENCY ROAD CROSS
BENGALURU-560025
NOW REPRESENTED BY
MANAGER LEGAL
...APPELLANT
(BY SRI ASHOK N PATIL, ADVOCATE)
AND:
1 . SAKAMMA
W/O SREENIVASA
AGED ABOUT 30 YEARS
MALLENAHALLI VILLAGE
DUDDA HOBLI, MANDYA TALUK
MANDYA DISTRICT.
2
2 . SHIVASHANKAR
S/O SUBBARAYAPPA
MAJOR, R/AT NO.76,
3RD MAIN ROAD
CHAMARAJPET
BENGALURU-560018
...RESPONDENTS
(NOTICE TO R1 IS SERVED BUT UNREPERSENTED
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 03.07.2018 PASSED
IN MVC NO.198/2016 ON THE FILE OF THE 1ST
ADDITIONAL SENIOR CIVIL JUDGE & CJM, MANDYA,
AWARDING COMPENSATION OF RS.7,68,476/- WITH
INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL
REALIZATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 173(1) of Motor
Vehicles Act, 1988 (hereinafter referred to as 'the
Act') has been filed by the Insurance Company being
aggrieved by the judgment and decree dated
03.07.2018 passed by I Additional Senior Civil Judge
& CJM, Mandya in MVC No.198/2016.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 12.07.2015 at about 10.30
AM, the claimant along with her sister said to have
boarded a Bus bearing Registration No.KA-08-5727 at
Sunkadakatte to go to Nagamangala. When the Bus
reached near the Chowdanakuppe, the driver of the
said Bus drove the same in a rash and negligent
manner and run over a pot hole on the road. As a
result of the same, the claimant sustained grievous
injuries and was hospitalized.
3. The claimant filed a petition under Section
166 of the Act seeking compensation. It was pleaded
that she spent huge amount towards medical
expenses, conveyance, etc. It was further pleaded
that the accident occurred purely on account of the
rash and negligent driving of the offending vehicle by
its driver.
4. On service of notice, the respondent No.2
appeared through counsel and filed written statement
in which the averments made in the petition were
denied. It was pleaded that the petition itself is false
and frivolous in the eye of law. The driver of the
offending vehicle did not have valid driving licence as
on the date of the accident and did not have the route
permit and fitness certificate. The age, avocation and
income of the claimant and the medical expenses are
denied. It was further pleaded that the quantum of
compensation claimed by the claimant is exorbitant.
Hence, he sought for dismissal of the petition.
The respondent No.1 did not appear before the
Tribunal inspite of service of notice and was placed
ex-parte.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The claimant herself was
examined as PW-1 and Dr. Balaji Prabhu was
examined as CW.1 got exhibited documents namely
Ex.P.1 to Ex.P.12 and Ex.C.1 to Ex.C.4. On behalf of
the respondents, no witness was examined but
exhibited a document namely Ex.R1-Policy copy. The
Claims Tribunal, by the impugned judgment, inter alia,
held that the accident took place on account of rash
and negligent driving of the offending vehicle by its
driver, as a result of which, the claimant sustained
injuries. The Tribunal further held that the claimant is
entitled to a compensation of Rs.7,68,476/- along with
interest at the rate of 9% p.a. and directed the
Insurance Company to deposit the compensation
amount along with interest. Being aggrieved, this
appeal has been filed by the Insurance Company.
6. Sri Ashok N. Patil, learned counsel for the
Insurance Company has contended that the injuries
suffered by the claimant are only two major injuries.
Doctor has been examined as CW.1. In his evidence,
he has categorically stated that the claimant has
suffered permanent disability to her right upper limb
at 35% and he has not assessed the whole body
disability. But the Tribunal has erred in taking the
whole body disability at 50% is on higher side and the
same is contrary to the material available on record.
He further contended that in view of judgment of
the Division Bench of this Court in the case of
MS.JOYEETA BOSE AND OTHERS vs.
VENKATESHAN.V AND OTHERS (MFA 5896/2018 and
connected matters disposed of on 24.8.2020), the
claimants are entitled for 6% interest but the Tribunal
has granted 9% interest is on the higher side. Hence,
he sought for allowing the appeal filed by the
Insurance Company.
7. Respondent was served and unrepresented.
8. Heard the learned counsel for the appellant
and perused the records.
9. It is not in dispute that the claimant has
sustained injuries in the road traffic accident occurred
due to rash and negligent driving of the offending
vehicle by its driver.
Due to accident, the claimant has sustained
laceration of wound 3X2 cms on right fore arm near
elbow part and tenderness and selling over right 1/3rd
fore arm. CW.1, the doctor has stated in his evidence
that the claimant has suffered permanent disability to
her right upper limb at 35%. Considering the evidence
of the doctor and considering the Wound Certificate
Ex.P.5, I am of the opinion that the whole body
disability assessed by the Tribunal is on higher side
and the same can be assessed at 15%. The Tribunal
considering Ex.P.7 - Pay Slip of the claimant, has
rightly taken the monthly income of the claimant as
Rs.7,338/- and rightly taken the multiplier applicable
to her age group as '17'. Accordingly, the claimant is
entitled for compensation of Rs.2,24,543/-
(Rs.7,338*12*17*15%) on account of 'loss of future
income'.
Considering the nature of injuries, the
compensation awarded by the Tribunal under other
head is just and reasonable.
10. Thus, the claimant is entitled to the
following compensation:
As awarded As awarded
Compensation under by the by this
different Heads Tribunal Court
(Rs.) (Rs.)
Pain and sufferings 20,000 20,000
Loss of future income 7,48,476 2,24,543
due to disability
Total 7,68,476 2,44,543
11. In the result, the appeal is allowed in
part. The judgment of the Claims Tribunal is modified.
The claimant is entitled to a total compensation
of Rs.2,44,543/- as against Rs.7,68,476/- awarded
by the Tribunal.
In view of judgment of the Division Bench of this
Court in the case of 'MS.JOYEETA BOSE', the interest
awarded by the Tribunal 9% is scale down to 6%.
The Insurance Company is directed to deposit
the compensation amount along with interest at 6%
per annum from the date of filing of the claim petition
till the date of realization, within a period of six weeks
from the date of receipt of copy of this judgment.
The amount in deposit shall be transmitted to
the Tribunal.
Sd/-
JUDGE
HA/-
