Karnataka High Court
Manager vs Sri Ramakrishnegowda on 14 December, 2023
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MFA No. 7047 of 2017
C/W MFA No. 6488 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 7047 OF 2017 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6488 OF 2017 (MV-I)
IN M.F.A. NO. 7047 OF 2018
BETWEEN:
MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD.,
FIRST FLOOR, KRUTHIKA ARCADE,
M.P.L.S.A.S. NO. 329, 331,
NEAR N.R.CIRCLE,
H.N.PURA ROAD,
HASSAN-573211.
REP. BY ITS REGIONAL MANAGER,
NO.28, EAST WING, 5TH FLOOR,
CENTENARY BUILDING, M.G.ROAD, BANGALORE-560001.
...APPELLANT
(BY SRI D. VIJAYAKUMAR, ADVOCATE)
Digitally signed by
VIJAYALAKSHMI B AND:
N
Location: High
Court of Karnataka 1 . SRI RAMAKRISHNEGOWDA,
S/O LATE EREEGOWDA,
AGED ABOUT 62 YEARS,
PERMANENTLY R/AT.
D. KALENAHALLI VILLAGE,
ADAGURU POST, KASABA HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573116.
2 . SMT. NINGAJAMMA,
W/O BOJEGOWDA,
AGED ABOUT 57 YEARS,
-2-
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MFA No. 7047 of 2017
C/W MFA No. 6488 of 2017
R/AT D. CHIKKAGONDANAHALLI VILLAGE,
KASABA HOBLI, CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573131.
...RESPONDENTS
(BY SRI M.B. CHANDRA CHOODA, ADVOCATE FOR R1;
R2 IS SERVED BUT UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGIANST THE
JUDGMENT AND AWARD DATED 06.05.2017 PASSED IN MVC
NO. 1390/2015 ON THE FILE OF THE 4TH ADDITIONAL
DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT (SIT AT
CHANNARAYAPATNA) AWARDING COMPENSATION OF
RS.8,05,000/- WITH 9% INTERST FROM DATED OF PETITION
TILL REALIZATION.
IN M.F.A. NO. 6488 OF 2017
BETWEEN:
SRI RAMAKRISHNEGOWDA
S/O LATE EREEGOWDA,
AGED ABOUT 62 YEARS,
PERMANENTLY R.AT
D. KALENAHALLI VILLAGE,
ADAGURU POST, KASABA HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTRICT-573116.
...APPELLANT
(BY SRI M.B. CHANDRA CHOODA, ADVOCATE)
AND:
1 . SMT. NINGAJAMMA
W/O SRI. BOJEGOWDA,
AGED ABOUT 57 YEARS,
R/ AT D. CHIKKAGONDANAHALLI VILLAGE,
KASABA HOBLI,
CHANNARAYAPATNA TALUK,
HASSAN DISTTRICT-573116.
2 . THE MANAGER,
RELIANCE GENERAL INSURANCE CO. LTD.,
-3-
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MFA No. 7047 of 2017
C/W MFA No. 6488 of 2017
FIRST FLOOR, KRUTHIKA ARCADE,
M.P.L.S.A.S. NO.329, 331,
NEAR N.R. CIRCLE, H.N.PURA ROAD,
HASSAN-573201.
...RESPONDENTS
(BY SRI D.VIJAYAKUMAR, ADVOCATE FOR R2;
SRI D.T.NANJESHGOWDA, ADVOCATE FOR R1)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.05.2017 PASSED IN MVC
NO. 1390/2015 ON THE FILE OF THE 4TH ADDITIONAL
DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT (SIT AT
CHANNARYAPATNA), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THROUGH VIDEO CONFERENING AT
KALABURGI, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are filed by the claimant-
petitioner and the respondent No.2-Reliance General
Insurance Company aggrieved by the judgment and award
in MVC.No.1390/2015 dated 06.05.2017 passed by the
learned IV Addl. District and Sessions Judge, and MACT
Hassan sitting at Channarayapatna.
2. The petitioner approached the Tribunal
contending that on 16.01.2015 at about 2.00 p.m. while
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he was riding his TVS Victor bike bearing No.KA-13/R-
7111, a tractor trailer bearing No.KA-13/TA-2019 and KA-
13/TA-2020 owned by respondent No.1 and insured by
respondent No.2 was driven by its driver in a rash and
negligent manner and collided against the two wheeler of
the petitioner. It was contended that the petitioner
sustained multiple grievous injuries in the said accident
and he was immediately taken to the Government General
Hospital, at Channarayapatna and after first aid, he was
referred to Kempegowda Institute of Medical Sciences,
i.e., KIMS, Bengaluru. He was diagnosed to have sustained
fracture of the shaft of right humorous, communited
fracture of upper 1/3rd of left tibia, diasthesis of pubic
symphysis and subluxation of left sactoiliac joint with a
lacerated wound over right occipital region, left knee and
also restriction of movement of the left lower limb. It is
contended that the petitioner underwent treatment and
surgery on five occasions as indoor patient at KIMS
Hospital, Bengaluru and had spent huge amount for the
treatment. Since the petitioner was from
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Channarayapatna, he had spent considerable amount for
conveyance and transportation and also attendant
charges. It was contended that the petitioner was aged
about 60 years at the time of accident and earning
Rs.1,15,000/- per month from his travel business under
the name and style 'Satish Travels', from the business of
Rashmi Cable Network and agricultural income. It was
contended that the petitioner is unable to work and he has
suffered permanent disability on account of the injuries
sustained in the accident and therefore, the owner and
insurer of the tractor trailer unit are jointly and severally
liable to pay compensation. He also stated that a case had
been registered at Channarayapatna Town Police Station
and a chargesheet has been laid against the driver of the
tractor trailer.
3. On issuance of notice, respondent No.1 who is
owner of the tractor and trailer did not appear and placed
ex-parte. The respondent No.2-who is the insurer of the
offending tractor and trailer appeared and filed written
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statement. It contended that the complaint has been
lodged after 33 days of the accident and the delay shows
that a collusive claim has been made by the petitioner in
order to make wrongful gain. It was contended that the
accident was not as contended by the petitioner but it was
on account of his own fall. It is contended that the terms
and conditions of the policy were violated by the owner of
the tractor trailer unit and therefore, the respondent No.2
is not liable to indemnify the risk of the owner of the
vehicle.
4. On the basis of the above contentions, the
Tribunal framed appropriate issues:
"1. Whether the petitioner proves that the accident
occurred due to the actionable negligence on the
part of the driver of the Tractor and Trailer bearing
Reg.No.KA-13/TA-2019 and KA-13/TA-2020 and in
the said accident petitioner sustained injuries?
2. Whether the petitioner is entitled for the
compensation? If so, what is the quantum and from
whom?
3. What order?"
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5. The petitioner was examined as PW.1 and the
Doctor who treated the petitioner was examined as PW.2
and his son was examined as PW.3. Exs.P1 to 44 and
Exs.C1 to C16 were marked and received in evidence. The
respondent No.2 examined its official as RW.1 and Exs.R1
and R2 were marked in evidence.
6. After hearing the arguments by both the sides,
the Tribunal has awarded compensation of Rs.8,05,000/-
under the following heads:
Amount
Head of Compensation
(In Rs.)
Pain and suffering 90,000/-
Medical Expenses 3,75,000/-
Attendant, nourishment, diet,
transportation and conveyance 1,00,000/-
charges and etc.
Loss of income during laid up 90,000/-
period
Loss of amenities and etc. 1,50,000/-
Total 8,05,000/-
7. Being aggrieved by the said judgment and
award, the petitioner has approached this Court in
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MFA.No.6488/2017 and the insurer has approached this
Court in MFA No.7047/2017.
8. The petitioner in his appeal contends that the
compensation awarded by the Tribunal is meager and the
income of the petitioner has not been properly assessed
by the Tribunal. He contends that he was a businessman
working at Channarayapatna and has sufficient income
from his cable network business as well as travels and he
also owned the agricultural lands and therefore, the
movement of the petitioner having been impaired on
account of the injuries sustained in the accident, there was
functional disability to him and the same has not been
properly assessed by the Tribunal.
9. Learned counsel for the Insurance Company
contended that there is delay of 33 days in filing the FIR
and this clearly shows that the said tractor was not
involved in the accident and a false claim has been made
by the petitioner and this aspect was not properly
appreciated by the Tribunal. In other words, the Insurance
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Company has disputed its liability to pay the
compensation.
10. Before this Court, both the appeals were
clubbed and the notice was issued to the owner of the
tractor trailer unit. In MFA.No.6488/2017, though he
appeared through his counsel, he did not appear in
MFA.No.7047/2017.
11. The Tribunal records have been secured and the
arguments by both the sides are heard.
12. Learned counsel appearing for the petitioner
submits that the Tribunal has not properly assessed the
functional disability of the petitioner in the light of the
physical disability stated by PW.2. He submits that PW.2 is
a treated doctor and there was no reason to disbelieve the
evidence of the PW.2. The entire medical records of KIMS
Hospital have been produced and it is evident that the
petitioner had to undergo several surgeries due to the
fractures sustained by him and therefore, when PW.2 had
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stated that there is 30% disability, it should have been
accepted by the Tribunal in assessing the functional
disability. He submits that the petitioner is aged 60 years
and therefore, with the physical disability of 30%, he is
unable to perform his regular duties and therefore, the
Tribunal has totally erred in assessing the compensation
under the head of 'loss of future income'. Therefore, he
contends that the impugned judgment is liable to be
modified.
13. Replying to the arguments of the learned
counsel for the respondent, he submits that Ex.P2-
complaint itself explains delay in filing the complaint. He
states that the petitioner had approached the hospital
within few hours of happening of the accident and the
hospital records clearly show that the accident occurred
due to the road traffic accident. It is submitted that the
petitioner was unconcerned as to whether the hospital
authorities could record the vehicle which caused the
accident or not and therefore, no fault can be found with
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the petitioner. When the petitioner has produced sufficient
material, in the form of the Police papers, it was the duty
of the Insurance Company to rebut the same with
adequate evidence. Hence, he submits that no fault can be
found with the judgment of the Tribunal in fastening the
liability on the respondent No.2-Insurance Company.
14. Per contra, learned counsel appearing for the
Insurer submits that there is a delay of 33 days in filing
the FIR. He points out that as per the say of the petitioner,
the tractor overtook an auto rickshaw and then dashed
against the two wheeler from backside. The IMV report
does not show any damage to the rear of the two wheeler
of the petitioner and also there were no damages on the
tractor. Therefore, the very involvement of the tractor
trailer unit is in doubt. In this regard, he has drawn the
attention of the Court to IMV report at Ex.P7. He also
points out that Ex.P6, the sketch of the spot do not show
any details and there were no eyewitnesses, who were
examined by the petitioner and the medical records simply
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say that it was road traffic accident and therefore, the
delay in filing the complaint, prima facie raises a doubt
regarding the involvement of the vehicle. They explanation
mentioned in Ex.P2 cannot be a ground to accept the
same. It is contended that the petitioner should have
cleared the cloud of suspicion by examining an eyewitness
to the accident. He also points out the discrepancy in the
two wound certificates which are at Exs.P8 and P43. Inter-
alia, he contends that the disability is properly assessed by
the Tribunal and the income was never proved by the
petitioner.
15. In the light of the above submissions, the
points that arise for consideration are;
1) Whether the petitioner has sufficiently probabalized
the involvement of the tractor trailer unit in the
accident?
2) Whether the quantum of compensation assessed by
the tribunal is proper and correct?
3) What order?
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Reg. Point No.1
16. The first aspect to be considered by this Court
is regarding the liability. The records reveal that the
petitioner met with an accident on 16.01.2015. The
complaint produced at Ex.P2 by which the criminal law was
set into motion by registering FIR as per Ex.P1 shows that
it was lodged by the son of the petitioner. It is stated in
Ex.P2 that his father while riding the motorcycle
Benglauru-Mangaluru Highway, the driver of the tractor
trailer unit came in high speed and negligent manner and
since an auto rickshaw was moving by the side of the
road, which is four lane highway, overtook the same from
the left side and dashed to the rear portion of the
motorcycle. It is stated that the petitioner fell down after
colliding with the guard plate at the left side of the road
and therefore he sustained the injuries. It is stated that
the tractor driver did not stop the vehicle after the
accident and the petitioner had lost consciousness. Then
one Jayakumar and his friends saw the accident and they
shifted the petitioner in an auto rickshaw to Government
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Hospital and informed the complainant Rakesh. The
complainant who is examined as PW.3 came to
Channarayapatna Hospital and since the condition of the
petitioner was serious, he was immediately taken to KIMS
Hospital, Bengaluru. It is stated that the tractor owner had
offered to settle the matter and had requested not to file
the complaint and therefore, he waited for such settlement
but the owner of the tractor did not turn up and as such,
there is a delay in filing the complaint.
17. The complainant, who is examined as PW.3 has
stated about the accident and he lodging the complaint to
the Police. It is pertinent to note that in his examination-
in-chief he did not mention about the reason for delay in
lodging the complaint. However, the respondent No.2
Insurance Company could have very well cross examined
him about the delay in lodging the complaint. There is no
such cross examination on behalf of the respondent No.2,
though the complainant was available before the Court for
cross-examination. Therefore, what is discernible from the
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evidence of PW.3 is that his say as mentioned in Ex.P2 is
not controverted in any way. Even there is no suggestion
to him that he had lodged a false complaint.
18. Further, the testimony of PW.1 shows that he
had informed the Doctor at Channrayapatna Hospital
about the manner in which the accident happened. He
denies that the accident was between the motorcycle and
an auto rickshaw. There is a specific suggestion by the
respondent No.2-Insurance Company that the accident
was between the motorcycle of the petitioner and an auto
rickshaw. It is not known on what basis, such a suggestion
was made. Though the Insurance Company has examined
RW.1 on its behalf, he does not mention anything about
the accident involving an auto rickshaw. Therefore, it
appears that the defence taken by the Insurance Company
in the cross-examination of the PW.1 is nothing but a
fishing cross-examination. There is absolutely no reason
as to why the learned counsel for the Insurance Company
had suggested that the accident was involving an auto
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rickshaw. Thus, it is evident that the contention of the
Insurance Company is only on the basis of the
presumptions and imagination.
19. Subsequent to the commencement of the
investigation, the Investigating Officer had investigated
the matter and ultimately filed the chargesheet against the
driver of the tractor. It is pertinent to note that as may be
seen from the complaint, the tractor hit from behind the
motorcycle and the motorcycle went and dashed against
the guard rail by the side of the National Highway. In fact,
the said impact had caused the damages to the motorcycle
as may be seen from the IMV report at Ex.P7. It is true
that there were no damages found on the tractor trailer
unit. Obviously, the tractor trailer unit was examined by
the Motor Vehicle Inspector after more than two months of
the accident. Therefore, the IMV report cannot be of much
relevance in the matter.
20. Further, the cross-examination of the PW.1 as
well as PW.3 do not elicit any reason for such delay. It is
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not questioned as to when the owner of the tractor had
contacted and has proposed for settlement. Under these
circumstances, the contentions raised by the Insurance
Company that the accident had occurred but the tractor
trailer unit was not involved in the accident cannot be
accepted. There is no specific defence which has been
taken up by the Insurance Company and the contention
appears to be imaginary.
21. The learned counsel appearing for the petitioner
has placed reliance on the decision in the case of RAVI
VS. BADRINARAYAN AND OTHERS1, wherein it was
held that the delay in filing the complaint alone cannot be
a reason to suspect the accident. If the other
circumstances also point that the vehicle has been falsely
implicated, then only it would be possible to accept the
contention of the insurer.
(2011) 4 SCC 693
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22. In view of the above, point No.1 has to be
answered in favour of the petitioner.
23. Coming to the quantum of compensation, the
records reveal that petitioner had sustained lacerated
wound 2 x 3 cms over the right occipital region, lacerated
wound 12 x 2 cms over the left knee and anterior aspect
of the upper end of the left leg which restricts the
movement and swelling and tenderness of the right arm as
mentioned Ex.P8-0Wound Certificate issued by the KIMS
Hospital, Bengaluru. It is also stated in the said document
that the x-ray findings showed that there is right shoulder
and right arm fracture and also comminuted fracture of
the upper 1/3rd of the left tibia. The CT scan had also
shown diasthesis of pubic symphysis and subluxation of
left sacroiliac joint with evidence of the loose
bodies/fracture fragment. The Ex.P43, which is the initial
examination report and the wound certificate issued by the
Government Hospital, Channarayapatna shows that there
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was crush injury of the left leg with fresh bleeding and
there is type II comminuted fracture. There was also pain
in the right arm and immediately he was referred to higher
hospital. Of course, it is evident that no diagnostic tests
were done at Channarayapatna Hospital and he was
immediately taken to KIMS Hospital, Bengaluru. Therefore,
obviously the discrepancy in Exs.P8 and P43 cannot be a
ground to doubt the injuries sustained by the petitioner.
24. The discharge summaries produced at Exs.P9 to
Ex.P14 show that the petitioner took inpatient treatment
on six occasions. Ex.P9 relates to the inpatient treatment
from 17.01.2015 to 05.02.2015, Ex.P10 refers to the
inpatient treatment from 13.03.2015 to 18.03.2015,
Ex.P11 refers to the inpatient treatment from 28.04.2015
to 20.05.2015, Ex.P12 refers to inpatient treatment from
19.06.2015 to 22.06.2015, Ex.P13 refers to inpatient
treatment from 12.07.2015 to 15.07.2015 and lastly
Ex.P14 refers to inpatient from 24.07.2015 to 14.08.2015.
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These discharge summaries show that he had undergone
undergo treatment for about 8 months.
25. The PW.2-Dr.Ravish V.N., who is the treated
doctor of the petitioner from KIMS Hospital, Bengaluru,
states that there is restriction of the movement and there
are various difficulties. His evidence shows that there is
32.27% disability in respect of the right arm, 15.31%
disability to the right lower limb and 15.31% in respect of
the right lower limb, 43.3% to the left lower limb and
therefore the whole body disability is 30.29%. He has also
produced the entire hospital records at Exs.C1 to C14. The
X-rays, case sheet etc., are available before this Court.
26. On a careful perusal of the above evidence on
record, I do not find any reason to disbelieve the evidence
of the PW.2-Dr.Ravish V.N. Definitely there is disability on
account of the multiple fractures sustained by the
petitioner. The question would be as to what is the
functional disability of the petitioner which would squarely
depend upon his avocation.
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27. The petitioner contends that he was running a
business of network cables and was also running a travel
agency apart from his agricultural activity. In order to
show that he owns agricultural lands, he has produced the
record of rights at Exs.P22 to P32. The record of right also
shows that he has coconut grove. In order to establish
that he is running a cable network business, he has
produced Ex.P16 which shows that he was issued with a
notice to pay the entertainment tax. It shows that he was
due to pay the entertainment tax to the Government for
the year 2012. Ex.P15 is the license given to him and it
was valid from 01.04.2012. Thus, it can be said that he
was running a business of cable network. The Ex.P17 is a
balance sheet of KRDS dish network owned by the
petitioner. This document pertains to the year 2003 and
therefore is not of any relevance. Ex.P33 shows that he
had sent sugarcane to Chamundeshwari Sugars Limited in
his name. Under these circumstances, it can be safely be
said that he was also having agricultural income as well as
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he was running a business but there is no material to show
he was running travel agency. Evidently, there is no proof
of the income. Therefore, considering the age of the
petitioner it can be safely be said that his income was to
the tune of Rs.15,000/- per month as concluded by the
Tribunal. This Court do not find any reason to interfere in
such finding of the Tribunal.
28. Coming to the functional disability, it is evident
that the petitioner could not have run two avocations
simultaneously. Evidently, maintaining his coconut garden
and running a dish cable network business involves
movement and therefore, it can safely be said that there
was some amount of the disability. Therefore, the
functional disability has to be assessed by this Court at
10%.
29. Coming to the age of the petitioner, he was
aged about 60 years as may be found from the medical
records and therefore, the appropriate multiplier would be
'9'. Hence, the compensation on account of the 'loss of
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future earnings' is calculated as Rs.15,000/- x 12 x 9 x
10% that equals Rs.1,62,000/-.
30. The Tribunal has awarded a sum of Rs.90,000/-
towards 'pain and suffering'. It appears that the Tribunal
has calculated the compensation under this head
considering each of the injuries. It would be proper to
restrict the compensation under the head of 'pain and
suffering' to the sum of Rs.75,000/-.
31. The Tribunal has awarded a sum of
Rs.3,75,000/- towards the 'medical expenses'. I do not
find any reason to reassess the same as it is based on the
actual bills produced by the petitioner. Hence, the same is
confirmed.
32. The Tribunal has awarded a sum of
Rs.1,00,000/- towards 'diet, nutritious food attendant
charges etc.' It has noticed that 'ambulance charges' to
the tune of Rs.50,000/- were claimed by the petitioner on
the basis of the bills produced. The Tribunal disbelieved
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the same as the author of the same was not examined and
it restricted the ambulance charges to Rs.30,000/-. The
remaining sum of Rs.70,000/- was in respect of 'diet,
nutritious food and attendant charges etc'. I do not find
any reason restrict the claim under this head which
includes the 'conveyance and attendant charges' and
therefore, the same is confirmed.
33. The Tribunal has awarded a sum of Rs.90,000/-
under the head of 'loss of income during the laid up
period'. The petitioner had taken treatment till August-
2015. Therefore, it can safely be said that the petitioner is
entitled for a sum of Rs.90,000/- under this head and as
concluded by the Tribunal.
34. The petitioner was awarded a sum of
Rs.1,50,000/- under the head of 'loss of amenities of life'.
Since the petitioner is awarded the compensation under
the head of 'loss of future income', 'loss of amenities'
should be nominal and therefore, the same is reduced to
Rs.40,000/-. Hence, the petitioner is entitled for a total
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compensation of Rs.8,42,000/-. The point No.2 is
answered accordingly. Hence, there shall be an
enhancement.
35. In view of the above discussions, the appeal
filed by the Insurance Company deserves to be dismissed.
The appeal filed by the petitioner deserves to be allowed-
in-part. Hence, the following;
ORDER
(a) The appeal in MFA No.6488/2017 is allowed-
in-part.
(b) The appeal in MFA No.7047/2017 is
dismissed.
(c) The impugned judgment and award passed
by the Tribunal is modified.
(d) The petitioner is entitled for an additional
sum of Rs.37,000/- along with interest @
6% p.a. from the date of petition till its
deposit before the tribunal.
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(e) The respondent No.2-Insurance Company is
directed to deposit the enhanced
compensation amount before the Tribunal
within a period of eight weeks from the date
of receipt of certified copy of this judgment.
(f) The rest of the order passed by the Tribunal
remain unaltered.
(g) The amount in deposit, if any, in
MFA.No.7047/2017 shall be transmitted to
the Tribunal, forthwith.
Sd/-
JUDGE
MSR
