Karnataka High Court
United India Insurance Co Ltd vs Shri Kallesha on 9 June, 2023
Bench: K.S.Mudagal, Ramachandra D. Huddar
-1-
NC: 2023:KHC:19819
MFA No. 27/2017
C/w MFA No. 5348/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL No. 27/2017 (MV-I)
C/w
MISCELLANEOUS FIRST APPEAL No. 5348/2016 (MV-I)
M.F.A. No.27/2017:
BETWEEN:
SHRI KALLESHA
S/O KRISHNAPPA
AGED ABOUT 37 YEARS
R/AT CHANNAKESHAVAPURA
HIREKATTIGENAHALLI POST
KAIWARA HOBLI, CHINTAMANI TALUK ...APPELLANT
(BY SRI LOKESH MURTHY M, ADVOCATE [ABSENT])
AND:
1. UNITED INDIA INSURANCE CO. LTD.,
P.B. NO.16, 1ST FLOOR, SBLT BLDG.
Digitally POLYTECHNIC ROAD, CHINTAMANI - 563 125
signed by K S
RENUKAMBA REP. BY ITS BRANCH MANAGER
Location:
High Court of 2. SHRI B C ANJANEYAREDDY
Karnataka S/O LATE BACHAPPA
AGED ABOUT 44 YEARS
R/AT BYALAHALLI VILLAGE
HIREKATTIGENAHALLI POST
KAIWARA HOBLI, CHINTAMANI TALUK
3. SHRI K M VENKATAREDDY
S/O SHRI MUNIRAMAPPA
AGED ABOUT 40 YEARS
R/AT KURUMAKALAHALLI VILLAGE
TADIGOLLU POST, SRINIVASAPURA TALUK ...RESPONDENTS
(BY SRI A N KRISHNASWAMY, ADVOCATE FOR R1;
SRI V.ANAND, ADVOCATE FOR R2 & R3 [ABSENT])
-2-
NC: 2023:KHC:19819
MFA No. 27/2017
C/w MFA No. 5348/2016
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 15.12.2015 PASSED BY THE SENIOR CIVIL
JUDGE, & JMFC, MACT, CHINTHAMANI IN MVC NO.21/2012.
M.F.A.No.5348/2016:
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
P.B. NO.16, 1ST FLOOR, SBLT BLDG.
POLYTECHNIC ROAD
CHINTHAMANI - 563 125
NOW REP. BY ITS REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
REGIONAL OFFICE, 5TH & 6TH FLOOR
KRISHI BHAVAN, NRUPATHUNGA ROAD
BENGALURU - 560 001 ...APPELLANT
((BY SRI A.N.KRISHNASWAMY, ADVOCATE)
AND:
1. SHRI KALLESHA
S/O KRISHNAPPA
AGED ABOUT 36 YEARS
R/AT CHANNAKESHAVAPURA
KAIWARA HOBLI
CHINTAMANI TALUK - 563 125
2. B C ANJANEYAREDDY
S/O LATE BACHAPPA
AGED ABOUT 43 YEARS
R/AT BYALAHALLI VILLAGE
KAIWARA HOBLI
CHINTHAMANI TALUK - 563 125
3. K.M.VENKATAREDDY
S/O MUNIRAMAPPA
NOW AGED ABOUT 39 YEARS
R/AT KURUMAKALAHALLI VILLAGE
TADIGOLLU POST
SRINIVASAPURA TALUK
KOLAR DISTRICT - 563 135 ...RESPONDENTS
(BY SRI LOKESH MURTHY M, ADVOCATE FOR R1 [ABSENT];
SRI V.ANAND, ADVOCATE FOR R2 & R3 [ABSENT])
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT
-3-
NC: 2023:KHC:19819
MFA No. 27/2017
C/w MFA No. 5348/2016
AND AWARD DATED 15.12.2015 PASSED BY THE SENIOR CIVIL
JUDGE, & JMFC, MACT, CHINTHAMANI IN MVC NO.21/2012
AWARDING COMPENSATION OF RS.12,60,463/- WITH INTEREST AT
9% P.A. FROM THE DATE OF PETITION TILL THE AMOUNT IS
DEPOSITED.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
FINAL HEARING, THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
JUDGMENT
Challenging the award in MVC No.21/2012 on the file of
the Senior Civil Judge and MACT, Chinthamani the insurer has
preferred MFA Nos.5348/2016 and the claimant has preferred
MFA No.27/2017. For the purpose of convenience, the parties
will be referred to henceforth according to their ranks before
the Tribunal.
2. On 19.09.2021 at about 7.30 p.m. when the
claimant was travelling along with his children on motorcycle
bearing registration No.KA.40-L-6318 near Sooladevanahalli
gate of Chinnasandra-Kyalanoor Road within the limits of
Chinthamani rural Police Station the Tractor and Trailer bearing
registration Nos.KA.07-T-6290/KA.07-T-6291 hit the said
motorcycle. Due to the accident, claimant and his children
suffered injuries.
3. Regarding the incident, one Manjunath filed
complaint before Chinthamani rural Police Station. Based on
which FIR Ex.P1 was registered in Crime No.263/2011 against
NC: 2023:KHC:19819
MFA No. 27/2017
C/w MFA No. 5348/2016
the driver of the Tractor and Trailer. There is no dispute that
on investigation the charge sheet was filed against the driver of
the said Tractor and Trailer. At the relevant time, respondent
Nos.1 to 3 were the registered owner, driver and insurer
respectively of the Tractor and Trailer.
4. Claimant filed MVC No.21/2012 before the Tribunal
claiming that the accident occurred due to actionable
negligence on the part of the driver of the Tractor and Trailer.
He further claimed that in the accident he suffered grievous
injuries which led to his permanent physical disability and loss
of his earning capacity. Thus he claimed compensation of
Rs.15,00,000/- from the respondents.
5. Respondents contested the petition denying the
occurrence of the accident due to actionable negligence of the
driver of the Tractor and Trailer. They contended that the
claimant was solely responsible for the accident. They further
disputed the age, occupation and income of the claimant and
their liability to pay the compensation.
6. To substantiate his claim claimant got examined
himself as PW.1, the Doctor who treated him as PW.2. On his
behalf Exs.P1 to P14 were marked. No evidence was adduced
on behalf of the respondents.
NC: 2023:KHC:19819
MFA No. 27/2017
C/w MFA No. 5348/2016
7. The Tribunal on hearing both side by the impugned
award held that the accident occurred due to actionable
negligence on the part of the driver of the Tractor and Trailer.
Further the Tribunal relying on the evidence of PW.2 the Doctor
held that the claimant suffered 15% permanent physical
disability to the whole body. The Tribunal considered his
income notionally at Rs.6,000/- per month, applied 16
multiplier and awarded compensation of Rs.11,52,000/- on the
head of loss of further earning. The Tribunal in all awarded
compensation of Rs.12,60,463/- on different heads as per the
table below:
Sl. Compensation
Particulars
No. awarded in Rs.
1. Towards injury, pain and sufferings 25,000/-
2. Towards medical expenses 27,463/-
Towards conveyance, nourishing food
3. 25,000/-
and attendant charges
Towards loss of income during the
4. 6,000/-
period of treatment
5. Towards loss of amenities 25,000/-
6. Towards loss of future earnings 11,52,000/-
Total 12,60,463/-
8. Sri A.N.Krishna Swamy, learned Counsel for the
insurer submits that the Tribunal erred in considering the
permanent physical disability of the claimant at 15%. He
further submits that the compensation awarded on all the
heads is also on the higher side.
NC: 2023:KHC:19819
MFA No. 27/2017
C/w MFA No. 5348/2016
9. Learned Counsel for the claimant remained absent.
10. Considering the submissions of learned Counsel for
the insurer and on examining the materials on records, the
question that arises for consideration is "whether the
compensation awarded to the claimant under the impugned
award is just and reasonable?".
Analysis
11. The occurrence of the accident and filing of the
charge sheet against respondent No.2 that is the driver of the
tractor and Trailer is not in dispute. To show that the claimant
himself was tortfeaser or responsible for the accident, the
respondents did not choose to examine respondent No.2.
Therefore the finding of the Tribunal with regard to actionable
negligence on the part of the driver of the tractor and trailer in
causing the accident does not warrant any interference.
12. As per the medical records of the claimant, he was
aged 30 years. In the claim petition, he himself claimed that he
was aged 32 years. Therefore the Tribunal rightly considered
his age as 32 years. Though the claimant contended that he
was earning Rs.30,000/- per month by agricultural, milk
vending and sericulture work, there was no proof of his actual
NC: 2023:KHC:19819
MFA No. 27/2017
C/w MFA No. 5348/2016
income. Therefore the Tribunal was justified in considering his
income notionally.
13. The accident occurred in the year 2011.
Considering the age of the claimant, his occupation, prevailing
wage rates and cost of living during the relevant time, the
Tribunal should have considered his income notionally at
Rs.6,500/- per month.
14. The claimant's own witness PW.2 deposed that his
permanent physical disability was 15% to the whole body.
Therefore it is not open to the claimant to contend that the
Tribunal should have considered the same at 100%. The
applicable multiplier was 16. Therefore the compensation
payable on the head of loss of earning capacity/future earnings
comes to Rs.1,87,200/- (Rs.6,500/- x 15/100 x 12 x 16).
Though the Tribunal considered permanent physical disability
at 15%, while calculating compensation, did not restrict loss of
future earnings to 15% of his whole earnings. That needs to be
modified.
15. As per the evidence of PW.2, Ex.P6 wound
certificate, Exs.P8 and P14 discharge summaries the claimant
suffered the following injuries:
(i) Cut lacerated wound over right side of the face;
NC: 2023:KHC:19819
MFA No. 27/2017
C/w MFA No. 5348/2016
(ii) Fracture of right shoulder joint humerus.
Those documents and the evidence of PW.2 further show that
for the said injuries, the claimant was treated in R.L.Jalappa
Hospital on the first occasion between 20.09.2011 and
11.10.2011. He underwent surgery. Again he was treated as
indoor patient in the said hospital between 07.12.2011 and
19.12.2011 for implant removal.
16. Considering the medical evidence, compensation of
Rs.25,000/- awarded on the head of pain and sufferings is on
the lower side. The Tribunal should have awarded Rs.50,000/-
on the said head. The compensation on the head of medical
expenses was awarded based on the records produced by the
claimant himself. Therefore that needs to be maintained.
17. Having regard to the nature of the injury and the
period of hospitalization, the claimant could not have attended
to his routine work atleast for a period of 5 months. Therefore
the compensation payable on the head of loss of income during
laid up period comes to Rs.6,500 x 5 = Rs.32,500/-.
18. Having regard to the period of hospitalization and
cost of living during the said period, distance between the
village of the claimant and the hospital, the compensation of
NC: 2023:KHC:19819
MFA No. 27/2017
C/w MFA No. 5348/2016
Rs.25,000/- awarded on the head of diet, conveyance,
attendant charges is reasonable.
19. Having regard to the period of hospitalization, the
nature of the injuries and disability spoken by PW.2, the
compensation awarded on the head of loss of amenities needs
to be enhanced to Rs.50,000/- from Rs.25,000/-. Therefore
just compensation payable is as follows:
Sl. Particulars Compensatio
No. n amount in
Rs.
1. Loss of future earnings 1,87,200/-
2. Medical expenses 27,463/-
3. Pain and sufferings 50,000/-
4. Loss of amenities 50,000/-
5. Diet, conveyance and Attendant 25,000/-
charges
6. Loss of income during laid up 32,500/-
period
Total 3,72,163/-
rounded to
3,72,200/-
20. The Tribunal without assigning any reason has
awarded interest at 9% per annum. The case was not involving
liability on the contractual basis. Having regard to Section 34 of
CPC, the Tribunal should have awarded interest at 6% per
annum. For the aforesaid reasons, both appeals deserve to be
allowed in part. Hence the following:
ORDER
The appeals are partly allowed.
- 10 -
NC: 2023:KHC:19819
MFA No. 27/2017
C/w MFA No. 5348/2016
The award of the Tribunal is modified as follows:
(i) The claimant is entitled to compensation of
Rs.3,72,200/- with interest thereon at 6% per annum from the
date of the petition till the date of realization.
(ii) Respondent No.3/Insurer shall deposit the said
amount after adjusting the amount already deposited if any,
before the Tribunal within four weeks from the date of receipt
of copy of this order. If the amount deposited by the Insurer is
in excess of the award amount, the same shall be refunded to
the insurer.
(iii) The Tribunal shall release the said amount to the
claimant.
(iv) Registry shall transmit the amount in deposit if any
and the trial Court records to the Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
PKN,KSR
