The Manager vs Sri Yogesh Naik @ Manjunath
2022 Latest Caselaw 13139 Kant

                          1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 18TH DAY OF NOVEMBER, 2022

                       BEFORE

         THE HON'BLE Mr. JUSTICE H.P. SANDESH

            M.F.A NO.5110 OF 2014(MV-I)
                        c/w
             M.F.A NO.3961 OF 2014(MV)

IN M.F.A NO.5110/2014:

BETWEEN:

SRI. YOGESH NAIK @
SRI. MANJUNATH,
S/O THIPPESWAMY,
AGED ABOUT 25 YEARS,
R/AT NO.675, M.K.ROAD,
NO.2, 5TH CROSS, T.B.BUS STOP,
SHUBASHNAGAR, NELAMANGALA,
BENGALURU.

                                         ...APPELLANT
(BY SRI. P. MAHADEVA SWAMY, ADVOCATE)

AND:

1.     THE MANAGER,
       ORIENTAL INSURANCE COMPANY
       LIMITED,
       R.O.NO.44/45, 4TH FLOOR,
       LEO SHOPPING COMPLEX,
       RESIDENCY ROAD CROSS,
       BENGALURU-560025.

2.     H.M.SANTHOSH,
                          2


       S/O MARISWAMY GOWDA,
       AGED ABOUT 28 YEARS,
       HUSKURU VILLAGE,
       MALAVALLI TALUK,
       MANDYA DISTRICT-571430.
                                       ...RESPONDENTS

(BY SRI. S.V.HEGDE MULKHAND, ADVOCATE
FOR R-1; V/O DATED 02.02.2015 NOTICE TO
R-2 IS DISPENSED WITH)

     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
14.02.2014 PASSED IN MVC NO.4627/2012 ON THE FILE
OF THE XXIV ADDITIONAL SMALL CAUSE JUDGE & XXII
ACMM, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION    FOR     COMPENSATION    AND   SEEKING
ENHANCEMENT OF COMPENSATION.

IN M.F.A NO.3961/2014:

BETWEEN:

THE MANAGER,
THE ORIENTAL INSURANCE COMPANY LTD,
REGIONAL OFFICE NO.44/45,
4TH FLOOR, LEO SHOPPING COMPLEX,
RESIDENCY ROAD CROSS,
BENGALURU-560025,
REPRESENTED BY ITS
DEPUTY MANAGER.
                                          ...APPELLANT
(BY SRI. S.V.HEGDE MULKHAND, ADVOCATE)

AND:

1.     SRI. YOGESH NAIK @ MANJUNATH,
       S/O THIPPESWAMY,
       AGED ABOUT 25 YEARS,
                            3


     R/O NO.675, M.K.ROAD NO.2,
     5TH CROSS, T.B.BUS STOP,
     SHUBHASHNAGAR, NELAMANGALA,
     BENGALURU.

2.   H.M.SANTHOSH,
     S/O MARISWAMY GOWDA,
     AGED ABOUT 30 YEARS,
     HUSKURU VILLAGE,
     MALAVALLI TALUK,
     MANDYA DISTRICT-571 430.
                                        ...RESPONDENTS

(BY SRI. P.MAHADEV SWAMY, ADVOCATE
FOR R-1; R-2 IS SERVED AND
UNREPRSENTED)

      THIS M.F.A., IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
14.02.2014 PASSED IN MVC NO.4627/2012 ON THE FILE
OF THE XXII ADDITIONAL SMALL CAUSE JUDGE & XXIV
A.S.C.J, BENGALURU, AWARDING A COMPENSATION OF
RS.4,79,000/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION TILL ITS REALISATION OR DEPOSIT.


     THESE APPEALS COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

Heard the learned counsel appearing for the claimant

and the learned counsel appearing for the Insurance

company.

2. These two appeals are filed by the claimant as

well as the Insurance Company, respectively, challenging

the judgment and award dated 14.02.2014, passed in

M.V.C No.4627/2012 on the file of the learned XXII ACMM

and XXIV A.S.C.J, Bengaluru ('the Tribunal' for short),

questioning the quantum of compensation and the liability.

3. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

4. The factual matrix of the case of the claimant

before the Tribunal is that the claimant met with an

accident on 13.04.2012 when he was riding the

motorcycle, at that time, another offending vehicle came

in a rash and negligent manner and dashed against him,

as a result, he has sustained grievous injuries. It is also

his claim that he was aged 23 years and was earning

Rs.12,000/- per month and on account of disability caused

by the injuries sustained, he is unable to do any work.

5. The claimant in order to substantiate his case, he

has examined himself as PW.1, doctor is examined as

PW.2 and one witness examined as PW.3 and got marked

documents at Exs.P.1 to P.19. On the other hand, the

respondent No.1 examined its official as R.W.1 and got

marked the documents at Exs.R1 to R5 and respondent

No.2- owner cum rider of the motorcycle neither examined

any witness nor produced any documents.

6. The Tribunal after considering both oral and

documentary evidence placed on record, allowed the

petition in-part, awarded an amount of Rs.4,79,000/- @

6% interest. Being aggrieved by the judgment and award,

the Insurance company as well as the claimant have filed

these two appeals.

7. The main contention of the Insurance Company in

the appeal MFA No.3961/2014 is that the Tribunal has

committed error in fastening the liability on the Insurance

Company, in spite of specific defence was taken. The

driver was not having a valid Driving License to drive the

vehicle and notice was also issued to the owner cum driver

and the same was acknowledged at Ex.R3 and Ex.R4.

Though he was represented through his counsel, he did

not produce driving license before the Tribunal, in spite of

it, the Tribunal has fastened the liability on the Insurance

company.

8. The learned counsel for the respondent/claimant

submits that the Tribunal has committed error in taking

the income at Rs.6,000/- p.m. and also committed error

by taking disability only to the extent of 17%, in spite of

the doctor deposed 46% of disability in respect of upper

limb and lower limb and the evidence of doctor has not

been appreciated and the compensation awarded on all

other heads are very meager, hence, it requires

interference of this Court.

9. Having heard the arguments of the respective

counsel and on perusal of the grounds urged in the appeal

and the materials available on record, the points that

would arise for consideration of this Court are:

(i) Whether the Tribunal has committed an error in fastening the liability on the Insurance Company, in spite of no driving license to the offending rider?

(ii) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and whether it requires an interference of this Court?

(iii) What order?

Point No.(i):

10. Having heard the respective counsel and on

perusal of the material available on record, the very

contention of the Insurance company is that rider of the

offending vehicle was not having driving license and in

support of his contention, he has examined RW.1 official

witness and also produced copy of policy, copy of notice,

postal acknowledgment and copy of charge sheet at

Exs.R2 to Ex.R5. Ex.R3 is the copy of the notice wherein

the Insurance company has given the notice in order to

produce the driving license and also other documents and

the same was produced through Ex.R4-postal

acknowledgment and also police have filed the charge

sheet against the rider of the motorcycle and that he was

not having driving license and the same is marked at

Ex.R5. In the case on hand, the respondent No.2-

Insured(owner) represented through his counsel, but in

spite of it, he has not produced driving license. Notice has

been issued and same has been acknowledged and also

filed the charge sheet and the same is not denied by the

owner. Under these circumstance, the Tribunal ought not

to have fastened the liability on the Insurance company

and ought to have fixed the liability on the owner. Having

perused the material available on record the claimant is a

third party. When he is a third party the Tribunal ought to

have directed the insurance company to pay the amount

and recover from the insured and it requires interference

of this Court. Hence, I answer point No.(i) accordingly.

Point No.(ii):

11. With regard to the quantum of compensation is

concerned, the claim of the claimant before the Tribunal,

as a result of accident that he has sustained permanent

disability and in order to prove the nature of injuries, the

claimant relied upon the document at Ex.P15 and produced

wound certificate at Ex.P15 and also produced out patient

record of Victoria Hospital and one X-ray film at Ex.P.17;

case sheet with one X-ray film at Ex.P.19 and also

discharge summaries at Ex.P.6 and 7. He took the

treatment twice for a period of one month. Having

considered the nature of injuries as per wound certificate

at Ex.P.15, he had sustained six injuries. Out of that, the

main injuries are fracture of right orbit and nasal bone;

right brachial plexux injury, total paralysis and loss of

sensation of the limb; laceration contusion wounds over

the face (beneath right eye); Grade-III outpatient fracture

of shaft of right femur in the distal thirds; Grade 3 open

injury of right knee joint with open comminuted fracture of

patella and irregular laceration of extensor mechanism and

hyper extension injury of cervical spine and all these

injuries are grievous in nature.

12. The doctor has been examined as PW.2, but he

is not a treated doctor and he individually assessed the

disability. The Tribunal in detail discussed the evidence of

the doctor also, however, failed to take note of the gravity

of the injuries and nature of the injuries and also loss of

sensation of the limb. Hence, the doctor deposed that

there is 33% of disability to the right upper limb, same is

not accepted only on the ground that he has not obtained

X-ray in respect of disability assessed by him and the

doctor in his evidence clearly deposed that there is 100%

disability to the right upper limb and taken disability of

13% to the whole body in respect of the right lower limb.

The Tribunal while considering the disability to quantify the

compensation, only taken disability of 10% to the whole

body in respect of right lower limb and 7% to the right

upper limb, only for the reason that X-ray is not produced.

He has lost sensation in respect of the limb and he was

paralysed. PW.2 in his evidence has deposed 33%

disability to the right upper limb and also 13% disability

assessed to the whole body and obtained X-ray in respect

of right lower limb. For having sustained Grade-III fracture

of shaft of right femur in the distal thirds, Grade 3 open

injury of right knee joint with open comminuted fracture of

patella and irregular laceration of extensor mechanism,

when said fractures are found and he was inpatient for a

period of thirteen days in NIMHANS hospital, the Tribunal

ought not to have reduced the disability. Hence, it is

appropriate to accept the disability assessed by the doctor

to the extent of 46%.

13. Now, coming to the quantum of compensation, it

was an accident of the year 2012, there are no documents

with regard to qualification, income of the claimant, who

was working as a supervisor and in the absence of the

evidence, the income considered at Rs.6,000/- p.m. The

Tribunal ought to have taken the notional income of

Rs.7,000/-. Though the claimant was working and salary

certificate also produced at Ex.P.5 and the same is not

taken as proof of income. No doubt, that the Tribunal has

not rightly accepted Ex.P5, but ought to have taken

notional income of Rs.7,000/- and it is the case of the

disability to the extent of 46%, in view of the decision of

the Hon'ble Apex Court in the case of Erudhaya Priya Vs.

State Express Transport Corporation Limited reported

in 2020 SCC online SC 601, the Apex Court held that

future prospectus has to be added. Hence, 40% has to be

added towards future prospectus, hence, it comes to

Rs.9,73,728/- (Rs.9,800 X12X18X46/100) awarded on

the head of 'loss of future earning capacity'.

14. The Tribunal has awarded an amount of

Rs.50,000/- under the head of 'pain and suffering', having

taken note of the injuries which are grievous in nature. He

was inpatient for a period of twenty five days in both the

hospitals and has suffered injuries of Grade 3 open injury

of right knee joint with open comminuted fracture of

patella and irregular laceration of extensor mechanism.

The compensation awarded by the Tribunal under the head

of pain and sufferings is on lesser side. Hence, it is

appropriate to award compensation of Rs.1,00,000/- on

the head of 'pain and suffering'.

15. The Tribunal has awarded an amount of

Rs.40,000/- towards 'loss of amenities and unhappiness',

which is on the lesser side. Having considered the age of

the claimant and disability to the extent of 46%, it is

appropriate to enhance the compensation on the head of

'loss of amenities and unhappiness' to Rs.75,000/- as

against Rs.40,000/- awarded by the Tribunal.

16. The Tribunal awarded an amount of

Rs.1,12,000/- on the head of 'medical expenses' which is

based on documentary evidence and the same does not

require any interference.

17. The Tribunal awarded an amount of Rs.25,000/-

on the head of 'incidental and attendant charges' and he

was inpatient for a period of twenty five days on two

occasions, which in my opinion, is just and proper.

18. The Tribunal only awarded an amount of

Rs.24,000/- on the head of 'loss of earnings during laid-up

period'. The accident has taken place in the year 2012 and

the Tribunal has taken income of Rs.6,000/- for a period of

three months. Having taken the income of Rs.7,000/- per

month and also he had suffered grievous injuries including

fractures Grade 3 open injury of right knee joint with open

comminuted fracture of patella and irregular laceration of

extensor mechanism and he has to lead rest of his life with

the disability of 46% to the whole body. The Tribunal

ought to have taken the loss of income for a period of six

months, at Rs.7000/- p.m., which comes to Rs.42,000/-

(Rs.7,000X6).

19. The Tribunal awarded an amount of Rs.8,000/-

on the head of 'future medical expenses' The PW.2-doctor

who deposed the claimant needs one more surgery for

removal of implants which costs around Rs.10,000/-.

Hence, it is appropriate to award Rs.10,000/- under the

head 'future medical expenses' as against Rs.8,000/-.

20. In all, the claimant/appellant is entitled for a

sum of Rs.13,37,728/- as against Rs.4,79,000/- awarded

by the Tribunal.

21. In view of the discussions made above, I pass

the following:

ORDER

i. The appeals are allowed in-part.

ii. The impugned judgment and award of the Tribunal dated 14.02.2014, passed in M.V.C No.4627/2012 on the file of the learned XXII ACMM and XXIV A.S.C.J, Bengaluru, is hereby modified granting compensation of Rs.13,37,728/- as against Rs.4,79,000/- awarded by the Tribunal with interest at 6% per annum from the date of petition till the date of deposit.

iii. The Insurance company is directed to pay compensation within six weeks from today and recover the same from the insured.

iv. The amount in deposit, if any, be transmitted to the concerned Tribunal, forthwith.

v. The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

Sd/-

JUDGE

SKS