Karnataka High Court

Manjunatha H vs Nagaraja C G on 10 January, 2023

Bench: T G Gowda

                                        MFA.4902/2016 C/W
                                           MFA.4786/2016
                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF JANUARY 2023

                        BEFORE

 THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

              MFA NO.4902 OF 2016 C/W
              MFA NO.4786 OF 2016 (MV)

IN MFA NO 4902 OF 2016 (MV)
BETWEEN:

UNITED INDIA INSURANCE CO LTD.
DIVISIONAL OFFICE
NO.34/3, M.M.K. COMPLEX
AKKAMAHADEVI ROAD, P.J. EXTENSION
DAVANAGERE-577002
REP. BY ITS DIVISIONAL MANAGER
MR. SURENDRA P.GAONKAR.                     ...APPELLANT

(BY SRI SEETHA RAMA RAO B.C., ADVOCATE)

AND:

1.     SRI MANJUNATHA H.
       AGED ABOUT 43 YEARS
       S/O HANUMANTHAPPA
       RESIDING AT KUMARA NILAYA
       RAJENDRA NAGAR, (PALAKE HALLI)
       CHITRADURGA TOWN-577 001.

2.     SRI NAGARAJA C.G.
       MAJOR IN AGE
       S/O GADRAPPA
       RESIDENT OF KELAGOTE
       C.K. PURA, 11TH CROSS
       CHITRADURGA TOWN-577 001.          ...RESPONDENTS

(BY SRI B. PRAMOD, ADVOCATE FOR R1;
 R2 SERVED)
                                        MFA.4902/2016 C/W
                                          MFA.4786/2016
                          2

      THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 17.03.2016
PASSED IN MVC NO.834/2015 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT-V,
CHITRADURGA, AWARDING COMPENSATION OF Rs.2,77,600/-
WITH INTEREST @ 7.5% P.A. FROM THE DATE OF PETITION
TILL DEPOSIT.

IN MFA NO 4786 OF 2016 (MV)
BETWEEN:

MANJUNATHA H.
S/O HANUMANTHAPPA
AGED ABOUT 43 YEARS
AGRICULTURIST
R/O KUMAR NILAYA
RAJENDRA NAGAR
CHITRADURGA TOWN-577501.                   ...APPELLANT

(BY SRI B.PRAMOD, ADVOCATE)

AND:

1.   NAGARAJA C.G.
     S/O GADRAPPA
     MAJOR
     R/O KELAGOT, C.K.PURA
     11TH CROSS
     CHITRADURGA TOWN-577501.

2.   THE DIVISIONAL MANAGER
     UNITED INDIA CO. LTD.
     DIVISIONAL OFFICE, P.B. NO.2373.34/3
     MMK COMPLEX, AKKAMAHADEVI ROAD
     P.J. EXTENSION
     DAVANAGERE-577 002.                  ...RESPONDENTS

(BY SRI B. C. SEETHARAMA RAO, ADVOCATE FOR R2;
 R1 SERVED)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 17.03.2016
PASSED IN MVC NO.834/2015 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT-V,
                                                 MFA.4902/2016 C/W
                                                   MFA.4786/2016
                                 3

CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION    AND    SEEKING   ENHANCEMENT     OF
COMPENSATION.

     THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 25.11.2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                       JUDGMENT

In these appeals the appellants have

challenged the judgment dated 05.08.2015 passed in

M.V.C.No.834/2015 by the II Additional Senior Civil

Judge and Addl.MACT-V, Chitradurga ('the Tribunal'

in short).

2. The appellant in M.F.A.No.4902/2016 was

the 2nd respondent and in connected

M.F.A.No.4786/2016 the appellant was the petitioner

before the Tribunal. The parties will be referred to as

per their status before the Tribunal.

3. Briefly stated the facts are that, on

17.12.2013 at 8.00 p.m., while the petitioner and his

wife were returning home near A.K.Colony of

Sirigere village of Chitradurga Taluk, motor cycle MFA.4902/2016 C/W MFA.4786/2016

bearing No.KA-16/W-3708 ridden by its rider in a

rash and negligent manner dashed against the

petitioner and caused him the injuries, he has taken

treatment at Kasturba Hospital, Manipal and

approached the Tribunal seeking compensation and

the claim was opposed by the respondents. The

Tribunal after taking the evidence awarded

compensation of Rs.2,77,600/- with interest @ 7.5%

and directed the respondents to satisfy the same.

4. The petitioner on the ground of inadequacy

of compensation and the Insurance Company

assailing the fastening of liability for violation of

terms and conditions of the policy, are before this

court.

5. Heard Sri.B.C.Seetharama Rao, learned

counsel for the insurer and Sri.B.Pramod, learned

counsel for the petitioner.

6. It is the contention of learned counsel for the

petitioner that the petitioner has suffered fracture, MFA.4902/2016 C/W MFA.4786/2016

inspite of medical evidence, Tribunal has not

assessed compensation on the gravity of the injury

and sought for enhancement.

7. Per contra, learned counsel for the Insurance

Company contended that, the petitioner was riding

the uninsured motor cycle thereby committed breach

of terms and conditions of the policy. It is also

contended that there is a delay of 4 days in filing the

complaint and 'B' report was filed by the Police.

Without summons, the rider appears and pleads

guilty; there is no independent proof of the accident

but the Tribunal on assumption of accident passed

the impugned judgment erroneously.

8. I gave my anxious consideration to the

arguments advanced on both sides and perused the

materials on record.

9. The materials on record did point out that

there was an accident on 17.12.2013, after 4 days, MFA.4902/2016 C/W MFA.4786/2016

Ex.P2/complaint was filed on 21.12.2013. It is

narrated in the complaint that the petitioner and his

wife while walking on the side of the road at 8.00

p.m., an unknown motor cycle hit against the

petitioner and escaped from the spot. Ex.R2 is the

copy of 'B' report filed by the Investigating Agency.

The reasons for the 'B' report is that the petitioner

might have fallen on his own in an uninsured motor

cycle, to make claim compensation, a false complaint

has been filed. This is what the Insurance Company

is banking upon for rejection of the claim petition.

10. It is pertinent to note that, in the 'B' report,

the Investigating Officer did not assign clear and

definite reason but it was filed only on surmises and

conjectures, hence the 'B' report has been

challenged by the complainant, the learned II Addl.

Civil Judge and JMFC., Chitradurga, has considered

the grounds of protest and passed a detailed

speaking order why he is not accepting the 'B' MFA.4902/2016 C/W MFA.4786/2016

report. The learned Magistrate has accepted the

accident, rejected the 'B' report and registered the

case against the rider in C.C.No.939/2015 and

ordered for issuance of summons as per Ex.P8.

Merely the rider has appeared voluntarily and

pleaded guilty is not a ground to doubt the veracity

of accident.

11. I have carefully perused the impugned

judgment. The Tribunal has given cogent reasons

for accepting the accident. Tribunal cannot accept

the Police records as genuine, when the materials on

record explain the accident. Hence, I do not find any

valid reasons in the arguments canvassed on behalf

of the Insurance Company.

12. Now, whether the Tribunal has awarded

proper compensation has to be considered. The

Tribunal has awarded compensation on four heads:

Loss of future income due to

1. Rs.1,20,120/-

disability MFA.4902/2016 C/W MFA.4786/2016

2. Pain and suffering Rs.40,000/-

Conveyance, attendant charges,

3. Rs.5,000/-

nourishment, etc.

4. Medical expenses Rs.1,12,500/-

TOTAL Rs.2,77,600/-

13. The petitioner has produced the medical

bills, which are totaling at Rs.99,040/-. He has

suffered closed fracture of left proximal tibia,

abrasions over the left palm and left lateral

malleolus. He was under hospitalization for 14 days

at Kasturba Hospital, Manipal, he has traveled to

Udupi by paying taxi charges and spent for food and

these are the aspects not considered by the Tribunal

properly. Exs.P22, P23 and Ex.P61 are the

Ambulance bills under which Rs.13,398/- was paid,

has to be considered towards traveling expenses.

PW.2 Dr.Venkatashivareddy is the Doctor who

assessed limb disability at 34%, 1/4th of it is the

whole body disability, i.e., 8.5% to the petitioner.

For the year 2013 for a person of no proof of MFA.4902/2016 C/W MFA.4786/2016

income, notional income will be Rs.8,000/-. For the

age of 47 years, 13 is the multiplier applicable. Loss

of income due to disability comes to Rs.1,06,080/-

(Rs.8,000/-x12x13x8.5%).

14. The petitioner is entitled to compensation

as under:

Sl.                                             Amount
                 Particulars
No.                                             in (Rs.)
 1.   Pain and suffering                           40,000/-

 2.   Medical expenses                             99,040/-

 3.   Travelling expenses                          14,000/-

 4.   Attendant charges                             2,800/-

 5.   Food and nourishment                          5,000/-

Loss of income during laid-up for

6. 32,000/-

four months

7. Loss of amenities and discomfort 25,000/-

8. Loss of income due to disability 1,06,080/-

TOTAL 3,23,920/-

Accordingly, the petitioner is entitled to enhanced

compensation of Rs.46,320/- (Rs.3,23,920/- -

MFA.4902/2016 C/W MFA.4786/2016

Rs.2,77,600/-), it is just compensation in the facts

and circumstances of the case.

15. In the result, I pass the following order: