Karnataka High Court
K Shivasankar vs G Siva Kumar Chetty on 11 July, 2023
Bench: G Basavaraja
-1-
NC: 2023:KHC:23962
MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE G. BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO. 8189 OF 2012
C/W
MISCELLANEOUS FIRST APPEAL NO. 4277 OF 2012
MISCELLANEOUS FIRST APPEAL NO. 4278 OF 2012
MISCELLANEOUS FIRST APPEAL NO. 8188 OF 2012
IN MFA NO.8189/2012
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD.,
REGIONAL OFFICE, NO.2B, UNITY BUILDING,
ANNEX, MISSION ROAD,
BANGALORE-560 027.
REPRESENTED BY ITS MANAGER.
Digitally ...APPELLANT
signed by (BY SRI. C R RAVISHANKAR, ADVOCATE)
RAMYA D
Location: AND:
High Court of
Karnataka 1. SRI P NAGARAJ,
AGED ABOUT 30 YEARS,
S/O SRI P. RAMAPPA,
R/AT ALL INDIA CARGO MOVERS LTD.,
NEAR WILSON GARDEN POLICE STATION,
WILSON GARDEN,
BANGALORE-560 027.
2. SRI G SIVA KUMAR CHETTY,
S/O SRI G MUNASWAMY CHETTY
-2-
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
THAMMI REDDY PALLE VILLAGE,
DANDEPALLE POST,
CHITTOOR DISTRICT, A.P
...RESPONDENTS
(BY SRI. A SREENIVASAIAH, ADVOCATE FOR R1;
SERVICE OF NOTICE IN R/O R2 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 25.02.2012 PASSED IN MVC
NO.6607/2009 ON THE FILE OF THE XX ADDITIONAL JUDGE,
AND XVIII ACMM, MACT, BANGALORE, AWARDING A
COMPENSATION OF RS.14,500/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT IN COURT.
IN MFA NO.4277/2012
BETWEEN:
K SHIVASANKAR
S/O K.KRISHNAPPA
AGED ABOUT 34 YEARS,
R/AT ALL INDIA CARGO MOVERS LTD.,
NEAR WILSON GARDEN POLICE STATION,
WILSON GARDEN,
BANGALORE.
...APPELLANT
(BY SRI. A SREENIVASAIAH, ADVOCATE)
AND
1. G. SIVA KUMAR CHETTY
S/O. G.MUNASWAMY CHETTY
THAMMI REDDY PALLE VILLAGE,
DANDAPALLE POST,
CHITTOOR DIST., A.P-517001.
2. THE MANAGER
THE NEW INDIA ASSURANCE CO. LTD.,
R.O.NO.2B, MISSION ROAD,
-3-
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
UNITY BUILDING ANNEX,
BANGALORE-560027.
.....RESPONDENTS
(BY SRI. C. R. RAVISHANKAR, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH V/O DTD:23.07.2013)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:25.02.2012 PASSED IN MVC
NO.6605/2009 ON THE FILE OF THE XX ADDITIONAL JUDGE, &
XVIII ACMM, MACT, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF OMPENSATION.
IN MFA NO.4278/2012
BETWEEN
P NAGARAJA
AGED ABOUT 29 YEARS
S/O P RAMAPPA
R/AT ALL INDIA CARGO MOVERS LTD.,
NEAR WILSON GARDEN POLICE STATION
WILSON GARDEN,
BANGALORE-560027.
...APPELLANT
(BY SRI. A SREENIVASAIAH, ADVOCATE)
AND
1. G SIVA KUMAR CHETTY
S/O G MUNASWAMY CHETTY
THAMMI REDDY PALLE VILLAGE,
DANDAPALLE POST,
CHITTOR DISTRICT
A P .-517643.
2. THE MANAGER
THE NEW INDIA ASSURANCE CO LTD.,
R O NO.2B, MISSION ROAD,
-4-
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
UNITY BUILDING ANNEX,
BANGALORE 560027.
....RESPONDENTS
(BY SRI: C R RAVISHANKAR, ADVOCATE FOR R2;
R1 SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:25.2.2012 PASSED IN MVC
NO.6607/2009 ON THE FILE OF XX ADDITIONAL JUDGE & XVIII
ACMM, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.8188/2012
BETWEEN
THE NEW INDIA ASSURANCE CO. LTD.,
REGIONAL OFFICE, NO.2B, UNITY BUILDING,
ANNEX, MISSION ROAD,
BANGALORE-560 027.
REPRESENTED BY ITS MANAGER
...APPELLANT
(BY SRI. C R RAVISHANKAR, ADVOCATE)
AND
1. SRI K SHIVASANKAR
AGED ABOUT 35 YEARS
S/O SRI K KRISHNAPPA
R/AT ALL INDIA CARGO MOVERS LTD.,
NEAR WILSON GARDEN POLICE STATION
WILSON GARDEN,
BANGALORE-560 027.
2. SRI G SIVA KUMAR CHETTY
S/O SRI G MUNASWAMY CHETTY
-5-
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
THAMMI REDDY PALLE VILLAGE
DANDEPALLE POST,
CHITTOOR DISTRICT. A.P
....RESPONDENTS
(BY SRI.A. SREENIVASAIAH, ADVOCATE FOR R1; SERVICE OF
NOTICE TO R1 IS HELD SUFFICINET (V/O DTD:03/08/2015)
*****
THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:25.02.2012
PASSED IN MVC NO.6605/2009 ON THE FILE OF THE XX
ADDITIONAL JUDGE, AND XVIII ACMM, MACT, BANGALORE,
AWARDING A COMPENSATION OF RS.8,000/-
WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL DEPOSIT IN COURT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT', THIS DAY, G. BASAVARAJA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The challenge in these appeals is to the Common
Judgment and award dated 25.02.2012 passed in
MVC Nos.6605/2009 and MVC No.6607/2009 by the XX
Addl. and XVIII Addl. ACMM, Bangalore (ACMM-18)
(hereinafter referred to as the 'Tribunal').
2. The MFA Nos.8189/2012 and 8188/2012 are filed by the
Insurance Company before this Hon'ble High Court
NC: 2023:KHC:23962
MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
challenging the liability; and MFA No.4277/2012 and
4278/2012 are filed before this Hon'ble High court, by
claimants seeking enhancement of compensation .
SUBMISSIONS ON BEHALF OF INSURANCE
COMPANY:
3. Sri C.R. Ravishankar, the learned Counsel for the
appellant Insurance Company, argues that the Tribunal
made a serious error by holding the Insurance Company
liable for the accident despite the driver of the offending
vehicle not having a valid driving license. The Insurance
Company claims to have made all efforts to obtain the
driver's license for the offending vehicle, but the Tribunal
failed to consider this fact. However, the Tribunal still
assigned 50% liability to the Insurance Company.
According to the First Information Report (FIR), the
accident occurred when three individuals were riding a
motorcycle with registration number AP-03-AD-8613 on
Mangala Street in Palamner Town. The appellant asserts
that the accident resulted from the reckless and negligent
NC: 2023:KHC:23962
MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
act of the motorcycle rider, not the driver of the auto-
rickshaw. Therefore, the appellant argues that the
motorcycle rider should be held primarily responsible for
the alleged accident, and the Insurance Company should
not be obligated to pay compensation.
3.1. In regard to the issue of enhancing the compensation,
the learned counsel for the Insurance Company raises
strong objections. One key contention is that the claimants
have not provided a disability certificate issued by a
qualified medical officer, which is considered crucial
evidence in assessing the extent of their injuries.
Additionally, the counsel argues that the doctor who
examined the claimants lacks the necessary qualifications
or recognition as a treated doctor. These discrepancies in
the evidence presented by the claimants form the basis for
the counsel's plea to allow the appeals filed by the
Insurance Company and dismiss the appeals made by the
claimants seeking an increase in compensation. By
highlighting these factors, the counsel aims to
NC: 2023:KHC:23962
MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
demonstrate the insufficiency and unreliability of the
claimants' case and emphasize the need for their appeals
to be rejected.
SUBMISSIONS ON BEHALF OF CLAIMANTS
4. In response to the arguments presented by the
learned counsel for the Insurance Company, Sri A.
Sreenivasaiah, the counsel representing the claimants,
offers a counter-argument. The Counsel highlights that the
investigation officer has filed a charge sheet (Exhibit-P3)
against the driver of the auto rickshaw, indicating his
alleged involvement in the accident under various sections
of the Indian Penal Code and the Motor Vehicles Act. In
contrast, no charge sheet has been filed against the
motorcycle rider, implying a lack of evidence to establish
any contributory negligence on their part. The counsel
asserts that the absence of any specific issue pertaining to
the contributory negligence of the motorcycle rider, as
framed by the Tribunal, further supports their argument.
NC: 2023:KHC:23962
MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
Additionally, Sri A. Sreenivasaiah contends that the
Tribunal failed to adequately consider the evidence
provided by a doctor who testified about the claimants'
permanent disabilities. The counsel claims that the
compensation awarded by the Tribunal was insufficient
across all categories, and therefore, seeks an
enhancement of compensation. By raising these points,
the counsel urges the court to allow the appeals and
impose liability on the Insurance Company while
addressing the shortcomings in the previous compensation
award.
5. Having heard the arguments on both sides and on
perusal of records, the following points arise for
consideration in these appeals:
1. Whether the insurance company has made
out grounds to interfere with the impugned
judgment in MFA No.8188/2012 and
8189/2012 as to the liability of the insurance
company?
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
2. Whether the claimants are entitled for
enhancement of compensation and also
liability of the insurance in MFA
No.4278/2012 & 4277/2012?
3. What order or award?
6. My answer to the above points are as under:
(1) Negative
(2) Partly Affirmative
(3) As per final order
7. All these four appeals arising out of the judgment
and award passed by the XX Addl. and XVIII Addl. ACMM,
Bangalore (ACMM-18) in MVC Nos.6605/2009, MVC
No.6607/2009.
8. After a thorough examination of the materials presented
before the Tribunal, it becomes evident that a complaint
was lodged by R.S. Jyotiramudu at the Palamaner Police
Station in Chittoor, Andhra Pradesh. Subsequently, the
police registered a case with Crime No. 137/2009, dated
25.05.2009, against the driver of a luggage auto with the
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
registration number AP-03-X-6222. The First Information
Report (FIR), marked as Ex.P-1, was duly submitted to the
Court based on this complaint. During the course of the
investigation, the investigation officer obtained a wound
certificate and proceeded to file a charge sheet, marked as
Ex.P-3. This charge sheet was prepared for the alleged
commission of offences punishable under Section.338 of
the Indian Penal Code (IPC), as well as Sections 134(a)
and (b), 187, and Section 3 read with Section 181 of the
Motor Vehicles Act.
9. In addition to the documentary evidence, the
testimonies of PW1-Shivakumar and PW2 - P. Nagaraja
further support the claim of the rash and negligent act
exhibited by the driver of the offending vehicle with
registration number AP-03-X-6222. On the other hand, the
respondent-Insurance company has filed a written
statement arguing that the complaint filed with the
Palamaner police clearly indicates that at the time of the
accident, three individuals were riding a motorcycle with
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
registration number AP-03-AD-8613. They assert that the
alleged accident occurred due to the motorcycle rider's
failure to control balance, resulting in a fall. To
substantiate their defence, the insurance company called
K. Chidambaram, son of Late C.K. Mani, as RW1. RW1
represented the insurance company and provided evidence
confirming that he issued the insurance policy for the auto
rickshaw with registration number AP-03-X-6222. It is
stated in his evidence that the driver of the auto-rickshaw,
who is said to have caused the alleged accident, did not
possess a valid driving license at the time of the accident.
The investigating officer (IO) has filed a charge sheet
against the driver of the auto-rickshaw under Section 3(1)
read with Section 181 of the Motor Vehicles Act.
10. During the cross-examination of RW1, it is revealed
that the insurance company conducted an investigation
regarding the driving license of the offending vehicle.
However, the investigation report or any evidence
regarding the driving license has not been presented
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
before the Court. Interestingly, Respondent No.2, the
insurance company, did not mention in their objections
statement as to the investigation conducted by the
Insurance company. This omission raises questions about
the validity of the insurance company's claims.
10.1. Furthermore, despite being aware of the alleged
accident, the insurance company made no efforts to obtain
the details of the incident promptly. It is unclear whether
the investigating officer issued a notice to the vehicle
owner to ascertain the particulars of the driver of the
offending vehicle, as required under Section 133 of the
Motor Vehicles Act.
11. In the absence of substantial evidence or
documentation regarding the driving license status of the
driver of the offending vehicle, it is not possible to
conclude definitively that the driver did not possess a valid
license at the time of the accident. The Tribunal rightly
acknowledged that the respondent/Insurance company
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
failed to produce any documents to substantiate their
claim in this regard.
11.1. Regarding the issue of contributory negligence, the
Tribunal observed that PW1, PW2, and Jyothirayadu were
proceeding on the motorcycle, which technically violates
Section 128 of the Motor Vehicle Act, 1988. However, the
mere presence of two pillion riders on the motorcycle does
not automatically imply contributory negligence on the
part of the motorcycle rider. It is important to note that
the investigating officer did not make any allegations
against the motorcycle rider regarding rash and negligent
driving, nor did they file any charge sheet against the
motorcycle rider for contributory negligence. The Tribunal,
without sufficient supporting evidence or witnesses,
assumed the existence of contributory negligence solely
based on the fact that three persons were riding the
motorcycle. This approach is legally impermissible.
Consequently, the Tribunal's conclusion that there is 50%
contributory negligence on the part of the motorcycle rider
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
is not sustainable under the law, as it fails to properly
evaluate the evidence on record.
12. Considering the evidence placed by the petitioner, I
am of the considered opinion that petitioner/claimants
have proved the fact that the alleged accident occurred
due to rash and negligent on the part of driver of
Autorickshaw bearing Reg.No.AP-03-X-6222.
APPRECIATION OF EVIDENCE PERTAINING TO
MFA No.8188/2012:
13. In the case of MVC No.6605/2009, relating to MFA
No.8188/2012, the tribunal made noteworthy
observations. It was revealed through PW1's deposition
that a fracture of the lateral femoral condyle of the right
knee had been sustained. Treatment was sought at the
Government Head Quarter Hospital in Chittor, followed by
discharge. A copy of the wound certificate, Ex.P4, issued
by the Andhra Pradesh Vaidya Vidhana Parishad, indicated
a linear laceration on the right knee, prompting a transfer
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
to Chittor Hospital. During a recent examination on
20.09.2011, PW3, an orthopedic surgeon at Bowring and
Lady Curzon Hospital in Bengaluru, assessed a disability of
25.7% to the right lower limb and 13% to the overall
body. However, discrepancies arose concerning the X-
rays, Exs.P.9 and 10, which lacked critical information,
raising doubts as to their authenticity. Furthermore, no
concrete evidence was produced to verify inpatient or
outpatient treatment at Chittor Hospital. These factors
may impact the petitioner's endeavor for enhanced
compensation.
14. Additionally, it is worth noting that if the petitioner
had indeed suffered a fracture on the lateral femoral
condyle of the right knee, it would have necessitated
inpatient treatment at either of the aforementioned
hospitals. However, there is no evidence to support the
petitioner receiving inpatient treatment at either hospital.
Therefore, it becomes evident that the petitioner did not
sustain the aforementioned fractures but rather a simple
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
linear laceration on the right knee. Consequently, the
petitioner is entitled to compensation of Rs.10,000/- for
"pain and suffering," leading to an overall compensation
award of Rs.16,000/-.
15. Upon careful examination of the documents Exs.P.4
to 12, a clear and compelling picture emerges, fully
supporting the petitioner's claims. Notably, the wound
certificate (Ex.P4) of Shivashankar reveals that the
petitioner was admitted to the hospital on 25.05.2009
following a road traffic accident. The examining doctor
noted a significant linear laceration measuring 10cm X
2cm, penetrating the muscle, over the right knee, along
with restricted movements. Subsequently, the petitioner
was referred to the headquarter hospital in Chittoor. The
discharge summary from the District headquarter hospital
(Ex.P6) further substantiates the presence of a fracture in
the lateral femoral condyle of the right knee, reinforcing
the severity of the injuries sustained. The documented
medical opinion deems these injuries as grievous.
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
Additional supporting evidence includes the outpatient slip
(Ex.P.5) issued by the Andhra Pradesh Vaidya Vidhana
Parishad, Chittoor, and the series of prescription slips
(Exs.P.7 to 9) provided by the attending medical officer.
Moreover, the inclusion of X-rays (Ex.P.10) bolsters the
comprehensive nature of the medical assessment. Ex.P.12
outpatient slip issued by the Bowring lady curzon
hospitals, Bengaluru dated 20.09.2011 and X-ray of
Shivashankar dated 20.09.2011 produced as Ex.P.13. The
receipt pertaining to X-ray, which is for Rs.75. Collectively,
these compelling documents validate the petitioner's
injuries and the subsequent medical treatment received,
leaving little room for doubt or dispute.
16. It appears that despite the petitioner providing a
discharge summary and other supporting documents
indicating that they received inpatient treatment from
27.05.2009 to 09.06.2009, the tribunal erroneously
disregarded this evidence. The tribunal's observation that
the petitioner did not receive inpatient treatment at the
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
said hospital contradicts the documentary evidence
presented by the petitioner. Notably, Ex.P.6, the discharge
summary, explicitly states that the petitioner underwent
surgery on 28.05.2009 for a diagnosed fracture of the
lateral femoral condyle in the right knee. The summary
also indicates that the wound was healing well at the time
of discharge. However, the petitioner has not submitted
any evidence regarding the disability resulting from this
fracture. Considering the nature of the injuries, the
accompanying pain and suffering, and the necessary
medical expenses, it would be fair and just to award
compensation under the following categories.
Sl.No. Head Amount
1 Injury, pain and agony Rs.20,000/-
2 Minimum medical expenses Rs.5,000/-
(As awarded by
the tribunal)
3 Loss of earning during Rs.5,000/-
treatment
4 Attendant charges, Food, Rs.5,000/-
Nutrition, Conveyance
5 Loss of amenities and future Rs.20,000/-
unhappiness due to fracture
Total Rs. 55,000/-
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
16.1. Accordingly, petitioner is entitled for compensation
of Rs.55,000/-.
17. In the case of MFA No.4278/2012 arising from MVC
No.6607/2009, the tribunal has considered the statement
of PW2. According to PW2's testimony, he sustained
injuries including a fracture of the mid shaft of the right
femur and a fracture of the patella. He underwent surgery
at the Government Head Quarter Hospital in Chittoor and
was subsequently discharged with advice for bed rest. The
wound certificate, Ex.P.11, issued by the Andhra Pradesh
Vaidya Vidhana Parishad, indicates that the petitioner has
suffered a fracture deformity in the right thigh with
external rotation of the leg, as well as several abrasions
and lacerations on various body parts. However, it is
worth noting that the petitioner has not presented any X-
rays or radiological reports to substantiate the claimed
fractures of the mid shaft of the right femur and the
patella. Despite PW2's statement that he received
treatment at the Government Head Quarter Hospital in
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C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
Chittoor, no supporting documents regarding this
treatment have been provided by the petitioner. The lack
of concrete evidence, such as X-rays or medical records,
pertaining to the fractures and the treatment received at
the Government Head Quarter Hospital raises concerns
about the validity of the petitioner's claims.
18. Based on the tribunal's observations, PW4, an
orthopedic surgeon at Bowring and Lady Curzon Hospital
in Bangalore, only provided evidence regarding the
assessment of the petitioner's disability on a specific date,
namely 20.09.2011. Given the discussions held thus far,
the tribunal finds it difficult to place reliance on the
evidence provided by PW4. It appears that the petitioner's
injuries are limited to a laceration over the femur of the
right leg, abrasions on the right knee and leg, as well as
multiple abrasions on the left forearm, all of which are
deemed to be simple in nature. Taking all these factors
into consideration, the tribunal has determined an award
of compensation amounting to Rs.29,000/-.
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
19. After carefully reviewing the evidence provided by
PW2, it becomes apparent that a detailed account of the
injuries sustained in the accident has been presented. The
injured/appellant has also submitted Ex.P.11, a wound
certificate issued by the Andhra Pradesh Vaidyanath
Parishad, which corroborates the specific injuries, including
fracture deformity of the right thigh with external rotation
of the leg, abrasions on the left knee and leg, multiple
small abrasions on the left forearm, and a muscle-deep
laceration on the right knee. Additionally, an X-ray report,
identified as 2035/220/3/05/9, was obtained for the right
knee and thigh, showing expert opinions on a mid-shaft
fracture of the right femur and a fractured patella. It is
noteworthy that the doctor's assessment has categorized
injuries No.1 and No.5 as grievous, while injuries No.2,
No.3, and No.4 are considered simple.
20. Supporting the injured/appellant's case, Ex.P.14, the
OPD card issued by Bowring and Lady Curzon Hospital in
Bengaluru, and Ex.P.15, an X-ray taken on 20.09.2011,
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
further substantiate the injuries. Moreover, a receipt for
the X-ray payment of Rs.150/- is included in the X-ray
cover. The comprehensive nature of these presented
documents underscores the veracity of the injuries
sustained, as attested by medical assessments and
reports.
21. The observations of tribunal in handling the PW4's
testimony raises concerns. PW4, a doctor at Bowring and
Lady Curzon Hospital in Bengaluru, provided a deposition
stating that the petitioner has a permanent residual
physical disability of approximately 17% of their whole
body. However, it was revealed during cross-examination
that PW4 had not conducted an assessment of the
petitioner's functional disability. Despite the lack of dispute
regarding the fractures documented in Ex.P.11, the
tribunal inexplicably dismissed PW4's evidence without
providing adequate reasoning.
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
22. Given the weight of the injuries outlined in Ex.P.11,
supported by PW4's testimony, it would be just and
appropriate to consider a disability assessment of at least
10% for the entire body. The tribunal should have taken
into account the substantial evidence provided and given
proper consideration to PW4's professional expertise. By
neglecting to do so, the tribunal's decision seems to have
overlooked crucial aspects, warranting a reassessment of
the petitioner's disability.
23. In regard to the petitioner Nagaraj's income, it is
evident that there is insufficient proof to establish his
actual earnings. Although Nagaraj testified that he worked
as a loader under various lorry owners and earned a
monthly salary of Rs.6,000/-, there is a lack of substantial
evidence supporting this claim. Consequently, it would be
just and fair to assess his income as Rs.5,000/- for the
year of the accident, 2009, in accordance with the chart
issued by the Karnataka Legal Services Authority.
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NC: 2023:KHC:23962
MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
24. Furthermore, considering that Nagaraj was 27 years
old at the time of the accident, as indicated in Ex.P.11, the
wound certificate, a multiplier of 17 is deemed applicable.
Thus, the calculation for loss of future earnings due to
disability amounts to Rs.1,02,000/- (Rs.5,000X12X
17X10% = Rs.1,02,000/-).
24.1 Given the nature of the injuries sustained by Nagaraj,
it is just and equitable to award compensation as follows,
taking into account the aforementioned calculations and
the circumstances surrounding the case.
Sl.No. Head Amount
1 Injury, pain and agony Rs.30,000/-
2 Minimum medical expenses Rs.8,000/-
3 Loss of earning during Rs.10,000/-
treatment (laid up period)
4 Attendant charges, Food, Rs.8,000/-
Nutrition, Conveyance
5 Loss of future earning due Rs.1,02,000/-
to disability
6 Loss of amenities Rs.25,000/-
Total Rs.1,83,000/-
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
24.2 Accordingly, petitioner is entitled for compensation of
Rs.1,83,000/-.
25. The respondent No.1 was the owner of the offending
vehicle as on the date of accident. Respondent No.2 was
the insurance company. Hence, respondent Nos.1 and 2
are jointly and severally liable to pay compensation.
26. Accordingly, the insurance company has failed to
prove that they are not liable to pay compensation to the
petitioner/appellants and claimants entitled for
enhancement of compensation as stated above.
Accordingly, I answer point No.1 in the Negative and point
No.2 partly in the affirmative.
27. POINT NO.3: For the aforesaid reasons and
discussions, I proceed to pass the following:
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NC: 2023:KHC:23962
MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
ORDER
1) MFA No.8189/2012 and 8188/2012 filed by New
India Assurance Company Limited are
dismissed.
2) MFA No.4277/2012 and MFA No.4278/2012 are
partly allowed.
3) Appellant in MFA No.4277/2012 Sri.Shivasankar
is entitled for compensation of Rs.55,000/- with
interest at the rate of 6% P.A. from the date of
filing this petition till its realisation.
4) Appellant in MFA No.4278/2012 Nagaraj is
entitled for compensation of Rs.1,83,000/- with
interest of 6% P.A. from the date of filing this
petition till its realisation.
5) Respondent Nos.1 and 2 are jointly and
severally liable to pay compensation.
6) Respondent No.2-Insurance company is
directed to deposit the award amount with
interest at the rate of 6% P.A. within 60 days
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MFA No. 8189 of 2012
C/W MFA No. 4277 of 2012
MFA No. 4278 of 2012
MFA No. 8188 of 2012
from the date of filing this petition till its
realization.
7) The deposited amount if any by the Insurance
company shall be transmitted to the tribunal for
disbursement to the claimant.
8) Draw an award accordingly.
9) All other terms and conditions stipulated by the
tribunal shall stand intact.
Sd/-
JUDGE
BH
