Karnataka High Court

National Insurance Company Ltd vs P. Bhagya @ Bhagyamma on 3 January, 2023

Bench: K.S.Mudagal, Anil B Katti

                                           M.F.A.No.7490/2015 C/W
                                               M.F.A.No.7174/2015

                              1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 3RD DAY OF JANUARY 2023

                           PRESENT

           THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
                             AND
            THE HON'BLE MR.JUSTICE ANIL B KATTI

     MISCELLANEOUS FIRST APPEAL NO.7490/2015 (MV-I)
                          C/W
     MISCELLANEOUS FIRST APPEAL NO.7174/2015 (MV-I)

IN M.F.A.No.7490/2015

BETWEEN:

P BHAGYA @ BHAGYAMMA
W/O VENKATARAMA REDDY
AGED ABOUT 30 YEARS
R/AT NO.38,1ST CROSS
5TH MAIN, ANANDAGIRI EXTENSION
HEBBAL, BANGALORE - 24                          ...APPELLANT

(BY SRI.G NARASI REDDY, ADVOCATE)

AND:

1.     SMT P VIJAYA LAKSHMI PALANI
       W/O T PALANI SWAMY
       AGED ABOUT 31 YEARS
       R/AT DOOR NO.7/509
       THUMAKUNTA VILLAGE
       HINDUPURA MANDAL
       ANANTHAPUR (DIST), A.P. 515 201
       (OWNER OF JCB BEARING
       NO.AP-02-AN-3826)
       (PLACED EX-PARTE)

     2. THE NATIONAL INSURANCE CO. LTD.,
        BRANCH OFFICE
                                            M.F.A.No.7490/2015 C/W
                                               M.F.A.No.7174/2015

                                2


       OPPOSITE TO RTC BUS STAND
       HINDUPUR - 515 201 (A.P)         ...RESPONDENTS

(BY SRI.L.SREEKANTA RAO, ADVOCATE FOR R2;
    NOTICE TO R1 IS DISPENSED WITH V/O DTD:28.02.2016)

       THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 07.08.2015 PASSED IN MVC NO.4881/2014 ON THE FILE OF
THE JUDGE, COURT OF SMALL CAUSES AND XXVI ACMM, (SCCH-
09) BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.


IN M.F.A.No.7174/2015

BETWEEN:

NATIONAL INSURANCE COMPANY LTD.,
BRANCH OFFICE, OPPOSITE TO RTC
BUS STAND, HINDUPUR - 515 201
NOW REPRESENTED BY REKHA S MENON
ASSISTANT MANAGER, REGIONAL OFFICE
NO.144, SHUBHARAM COMPLEX
M G ROAD, BENGALURU - 560 001                   ...APPELLANT

(BY SRI.L.SREEKANTA RAO, ADVOCATE)

AND:

1.     P BHAGYA @ BHAGYAMMA
       W/O VENKATARAMA REDDY
       AGED ABOUT 30 YEARS
       R/AT NO.38, 1ST CROSS
       5TH MAIN, ANANDAGIRI EXTENSION
       HEBBAL, BANGALORE - 560 024

2.     P VIJAYALAKSHMI PALANI
       W/O T PALANI SWAMY
       AGED ABOUT 31 YEARS
       THUMAKUNTE VILLAGE
       HINDUPUR MANDAL
                                                M.F.A.No.7490/2015 C/W
                                                   M.F.A.No.7174/2015

                                3


      ANANTHAPUR DISTRICT
      A.P. - 515 201                         ...RESPONDENTS

(BY SRI.G NARASI REDDY, ADV FOR R.1
      R.2 SERVED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 07.08.2015 PASSED IN MVC NO.4881/2014 ON THE FILE OF
THE JUDGE, COURT OF SMALL CAUSES AND XXVI ACMM, (SCCH-
09) BENGALURU, AWARDING COMPENSATION OF RS.9,16,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION.

     THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:

                           JUDGMENT

Aggrieved by the award passed by the MACT and XXVI

Addl. Chief Metropolitan Magistrate, (SCCH-9) Bengaluru, the

claimants have preferred MFA No.7490/2015 and the second

respondent-Insurer has preferred MFA No.7174/2015.

For the purpose of convenience, the parties will be

referred to according to their ranks before the trial Court.

2. 30.09.2013 at about 4.30 p.m. when the claimant

was traveling on a Scooty bearing No.KA 04-EG-1416 near

Weavers colony, Nakkalapalli via Hindupur the JCB-Crane

bearing No.AP-02-AD-3826 hit the said Scooty and caused the M.F.A.No.7490/2015 C/W M.F.A.No.7174/2015

accident. At the time of the accident respondent No.1 was the

registered owner and respondent No.2 was the Insurer of JCB-

Crane AP-02-AD-3826. In the accident the claimant suffered

grievous injuries. She filed MVC No.4881/2014 before the

MACT and XXVI ACMM (SCCH-9), Bengaluru claiming that due

to the injuries suffered in the accident, she has suffered

permanent physical disability. She claimed compensation of

Rs.36,00,000/-.

3. The claimant contended that she was working as

tailor earning Rs.27,000/- to 30,000/- per month and due to

the injuries suffered by her and consequent physical disability,

she has lost her earning capacity. She also claimed the

compensation towards pain and suffering, medical expenses

loss of future amenities etc. Respondent No.1 did not contest

the petition. Respondent No.2 Insurer alone contested the

petition denying the occurrence of the accident, rashness and

negligence on the part of the driver of the JCB Crane, injuries

suffered by the claimant, her earning capacity and its liability

to pay the compensation.

M.F.A.No.7490/2015 C/W M.F.A.No.7174/2015

4. To substantiate her claim, the claimant was

examined as PW.1 and she examined two more witnesses as

PWs.2 and 3 and got marked Exs.P1 to P16. The second

respondent did not lead any evidence.

5. The Tribunal on hearing both side by the

impugned award granted compensation of Rs.9,16,000/- on

the following heads:

1.   Pain and suffering                          Rs.60,000/-

2.   Attendant charges, nutritious               Rs.18,000/-
     Expenses & Transportation charges
3.   Medical Expenses                            Rs.4,22,000/-

4.   Loss of future income due               to Rs.3,06,000/-
     permanent disability
5.   Loss of income during laid up               Rs.30,000/-
     Period
6.   Loss of future amenities and                Rs.50,000/-
     Happiness
7.   Future medical expenses                     Rs.30,000/-

     Total                                       Rs.9,16,000/-

6. The Tribunal held that the accident occurred due

to the rash and negligent driving of the JCB Crane by its

driver. The Tribunal assessed the income of the claimant at

Rs.7,500/- per month and her permanent physical disability at M.F.A.No.7490/2015 C/W M.F.A.No.7174/2015

20%. The Tribunal took the laid up period for four months

and awarded the compensation on the other heads as

aforesaid.

7. The claimant challenges the said award on the

ground that the compensation awarded is on the lower side.

Whereas the Insurer challenges the award on the ground that

the Tribunal had no territorial jurisdiction to adjudicate the

claim petition.

8. Sri G.Narasi Reddy, learned counsel for the

claimant/appellant reiterating the grounds of appeal submits

that the income and the disability considered by the Tribunal

is on the lower side. He submits that the compensation

awarded even on the other heads is on the lower side. He

submits that the Tribunal had the jurisdiction to adjudicate the

claim petition as the second respondent has its branch office

where the accident took place.

9. Per Contra, Shri Sreekanta Rao, learned counsel

for respondent No.2 referring to the judgment of the Hon'ble

Supreme Court in Malathi Sardar vs.National Insurance M.F.A.No.7490/2015 C/W M.F.A.No.7174/2015

Company Ltd.,1 fairly submits that in view of the proposition

of law laid down in the said judgment, respondent No.2's

contention with regard to the jurisdiction does not survive.

However, he submits that the disability assessed by the

Tribunal is on the higher side. Therefore, he seeks allowing of

the appeal on that ground. Respondent No.2 Insurer also

does not seriously contest the finding of the Tribunal on the

occurrence of the accident due to the rash and negligent

driving of the JCB Crane AP-02-AD-3826 and the claimant

suffering the injuries in the said accident. Moreover the

Tribunal considering the evidence of PWs.1 to 3 and Ex.P1 to

P3 and the Criminal case records rightly concluded that the

accident occurred due to the rash and negligent driving of

offending JCB Crane vehicle by its driver and the claimant

suffered some injuries in that accident.

10. So far as the jurisdiction of the Tribunal to

entertain the petition the accident took place within the limits

of Hindupur Taluk, Andhra Pradesh State. The second

respondent-National Insurance Co. Ltd. carries on its business

AIR 2016 SC 247 M.F.A.No.7490/2015 C/W M.F.A.No.7174/2015

through branch office at Hindupur Town. The Hon'ble

Supreme Court in Malathi Sardar's case referred to supra in

similar circumstance held that the claimant can maintain the

claim petition before a Claims Tribunal within whose

jurisdiction the Insurer carries on its business. Therefore, the

Tribunal was justified in rejecting the challenge of respondent

No.2 on the ground of jurisdiction.

11. Then the next question is whether the

compensation awarded by the Tribunal was just. As per the

medical records, at the time of the accident, the claimant was

aged 29 years. Though she claimed that she was earning

Rs.27,000/- to 30000/- by doing tailoring work, except the

oral testimony of herself and PW.2, which was denied by the

second respondent-Insurer, there was no other tangible

evidence in proof of her occupation or income. Therefore, the

Tribunal rightly held that the said claim was not proved.

However, the Tribunal notionally assessed her income at

Rs.7,500/- per month. The accident has taken place on

30.09.2013. Having regard to the age of the claimant, the

date of the accident and the wages prevailing at that time, the M.F.A.No.7490/2015 C/W M.F.A.No.7174/2015

Tribunal should have considered the income of the claimant at

Rs.8,000/- per month.

12. To prove that the claimant suffered injuries

leading to permanent disability, she relied on the evidence of

PW.3 and Exs.P7 to 11, 13 and 14. It is no doubt true that

PW.3 is not the doctor who conducted the surgery on the

claimant. However, he is the doctor who worked in the same

hospital. In the Cross examination of PW.3, Exs.P7 to P11,

the wound certificate and the discharge summaries were not

disputed. As per the said records and the evidence of PW.3

which corroborate the evidence of PW.1, the victim had

suffered the following injuries:

"Degloving injury left upper limb with Bone loss with open elbow joint, fracture bone of proximal phalanx of thumb, fracture shaft 5th metacarpal, closed fracture mandible."

13. As per the said medical evidence, the claimant had

suffered the following injuries:

"Degloving injury left upper limb comprising of

1. Bone loss with open elbow joint.

2. Comminuted fracture base of proximal M.F.A.No.7490/2015 C/W M.F.A.No.7174/2015

phalanx of thumb

3. Fracture shaft 5th metacarpal

4. Closed fracture mandible."

14. She had suffered other simple injuries also.

According to the evidence of PW.1, PW.3 and other medical

records the claimant was treated as in patient for 19 days

between 30.09.2013 to 18.10.2013, 5 days between

08.11.2013 to 12.11.2013, 8 days between 19.11.2013 to

27.11.2013 and 5 days between 26.12.2013 to 30.12.2013.

As per PW.3 she suffered 20.6% permanent physical disability

to the whole body and 73.3% to the upper left limb. Though

the Tribunal accepted that, considered her permanent

disability at 20% instead of 20.6% which is incorrect.

15. Though learned counsel for the claimant contends

that claimant had to undergo several surgeries subsequent to

such treatment and her physical disability is more than

20.6%, there is no evidence to substantiate the said

contention. Therefore, this Court can accept the permanent

disability at 20.6%. Though the claimant contended that she

was a tailor earning Rs.27,000/- to 30,000/- per month, M.F.A.No.7490/2015 C/W M.F.A.No.7174/2015

except the oral testimony of herself and PW.2 which was

denied by the second respondent, there is no evidence to

substantiate the same. Therefore, the notional income should

have been taken at 8,000/- per month.

16. At the time of the accident claimant was aged 29

years. Therefore, 40% has to be added to the said income as

future prospects. In view of the judgment of the Hon'ble

Supreme Court in National Insurance Co.Ltd. vs. Pranay

Sethi & others2, her monthly income comes to

Rs.8000+3200=11200/-. The applicable multiplier is 17.

Therefore her total income comes to Rs.22,84,800/-

(11200X12X17). Permanent disability assessed by this Court

is 20.6%. Therefore, loss of future income due to permanent

disability works out to Rs.4,70,670/- (22,84,800 X 20.6%).

Rs.4,70,668.80 is rounded off to Rs.4,70,670/-. Therefore,

loss of future income awarded by the Tribunal is on the lower

side.

17. The records show that the claimant was treated as

inpatient for about 37 days. Having regard to the nature of

AIR 2017 SC 5157 M.F.A.No.7490/2015 C/W M.F.A.No.7174/2015

injuries suffered by her and treatment undergone by her, the

Tribunal should have considered her laid up period as six

months instead of four months. The loss of earning capacity

during the laid up period comes to Rs.48,000/-. Since there

were 4 fractures, the compensation awarded under the head

of pain and suffering should have been 70,000/-.

18. Having regard to the nature of injuries suffered by

her and her disability, the compensation awarded under the

head loss of amenities is on the lower side. The Tribunal

should have awarded the sum of Rs.80,000/- for the same.

The compensation awarded under the head of Medical

expenses was based on the bills produced by the appellant

that requires no interference. The attendant charges awarded

for 37 days is on the lower side. At least Rs.500/- per day

should have been awarded which comes to Rs.18,500/-. The

Tribunal should have awarded compensation towards diet and

nourishment separately. Hence Rs.12,000/- on that head is

just amount.

19. Having regard to the nature of injuries and the

evidence on record, the Tribunal should have awarded future M.F.A.No.7490/2015 C/W M.F.A.No.7174/2015

medical expenses. Therefore, Rs.50,000/- is awarded under

that head. The just compensation payable is as follows:

1. Pain and suffering Rs.70,000/-

2. Loss of future income due to Rs.4,70,670/-

permanent disability

3. Loss of income during laid up Rs.48,000/-

period

4. Loss of amenities Rs.80,000/-

5.   Attendant charges                    Rs.18,500/-

6.   Diet and nourishment                 Rs.12,000/-

7.   Future medical expenses              Rs.50,000/-

8.   Medical expenses                     Rs.4,22,000/-

     Total                                Rs.11,71,170/-

20. Therefore, the claimants appeal deserves to be

allowed in part and the Insurer's appeal is liable to be

dismissed. Hence the following:

ORDER

i) MFA No.7174/2015 is here by dismissed.

ii) MFA No.7490/2015 is partly allowed.

iii) The amount awarded by the Tribunal is modified

and the claimant is awarded compensation of M.F.A.No.7490/2015 C/W M.F.A.No.7174/2015

Rs.11,71,170/- with interest thereon at the rate of

6% p.a. from the date of petition till its realization.

iv) Respondent No.2 shall deposit the said

compensation after adjusting the amount already

paid, if any before the Tribunal within two months

from the date of this order.