Karnataka High Court
Sri Madappa P vs The Sriram General Insurance Co ... on 2 March, 2023
Bench: Dr.H.B.Prabhakara Sastry
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MFA No. 5373 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
MISCELLANEOUS FIRST APPEAL NO. 5373 OF 2021 (MV-I)
Digitally signed
by Between:
BHARATHIDEVI
K KORLAHALLI
Location: High Sri. Madappa P
Court of
Karnataka S/o. Late Puttappa,
Aged About 71 Years,
R/a No.123,
4th Main, Raghavendra Nagar
Mysore-570011
...Appellant
(By Sri. V.B. Siddaramaiah, Advocate)
And:
1. The Sriram General Insurance Co. Ltd.,
No.302, 3rd Floor,
S and S Corner Building,
Hospital Road
Shivajinagar
Bangalore-560001
Rep by its Branch Manager.
2. Sri M C Basavanna @ Papanna
S/o. Late Channappa
Aged About 54 Years,
R/o. No.37B,
Mosambayanahalli Village
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MFA No. 5373 of 2021
Varuna Hobli,
Mysore Taluk And District
...Respondents
(By Sri.B. Pradeep, Advocate for R-1;
R2- notice dispensed with vide order dt.13-12-2021)
****
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988, call for the records in
M..V.C.No.4259/2012, on the file of the Motor Vehicle Accident
Claims Tribunal, Metropolitan area, Bengaluru City (SCCH-13),
dated 20-07-2021, and be pleased to modify the judgment and
award dated 20-07-2021, enhance the compensation amount,
fix the liability on the Insurance company, award the interest
from the date of the claim petition, by allowing the claim
petition, as claimed, in the interest of justice and equity.
This Miscellaneous First Appeal coming on for Final
Hearing through Physical Hearing/Video Conferencing, this day,
the Court delivered the following:
JUDGMENT
The present appeal is filed by the claimant under
Section 173 (1) of the Motor Vehicles Act, 1988, seeking
enhancement of the compensation awarded by the Motor
Vehicles Accident Claims Tribunal, Bengaluru (SCCH-13),
MFA No. 5373 of 2021
(hereinafter for brevity referred to as "the Tribunal"), in
its judgment and award dated 20-07-2021 in
M.V.C.No.4259/2012.
2. The summary of the case of the claimant in the
Tribunal was that, on the date 04-04-2012 at about 11:20
a.m., while he was riding his Motor Cycle bearing
registration No.KA-09/EC-6679 to go to Hosakote village,
on Mysore-Suthur Road, near Morarji Desai School, a
Tractor and Trailer bearing registration Nos.KA-09/T-4994
and KA-09/T-4995 being driven by its driver in a rash and
negligent manner, dashed to the claimant's Motor Cycle.
Due to the said road traffic accident, the claimant fell
down and sustained injuries over his head, legs and other
parts of his body. He was shifted to J.S.S. Hospital
immediately and then to St. Joseph Hospital, where he
was given treatment as an in-patient from the date
04-04-2012 to 14-04-2012. He also underwent a surgical
operation. The claimant further stated that he incurred an
expenditure of a sum of `1,50,000/- towards medical and
MFA No. 5373 of 2021
hospital charges. He stated that being an agriculturist, he
was earning a sum of `10,000/- per month, but due to the
accident, he has lost his earning capacity and is unable to
come back to his normal life. He has also sought
compensation towards the damages caused to his Motor
Cycle. With this, he has claimed a total compensation of a
sum of `10,00,000/- from respondents 1 and 2 before the
Tribunal, arraigning them as the owner and insurer of the
alleged offending vehicle respectively.
3. Before the Tribunal, the claimant got himself
examined as PW-1 and also examined two more witnesses
i.e. Sri.G.V. Ravishankar as PW-2 and Dr.S. Ramachandra
as PW-3 and got marked documents from Exs.P-1 to P-22.
On behalf of the respondents, neither any witness was
examined nor any documents were got marked.
4. After analysing the evidence and the materials
placed before it, the Tribunal has awarded the
MFA No. 5373 of 2021
compensation under the following heads with the sum
shown against them:
Sl.
Particulars Amount in `
No.
1 Pain and sufferings 20,000/-
2 Medical Bills including food, 1,20,000/-
nourishment and attendant charges
3 Loss of amenities of life 20,000/-
4 Loss of future earnings 70,000/-
5 Vehicle repair charges 5,000/-
Total 2,35,000/-
5. The Tribunal awarded compensation of a sum of
`2,35,000/- with interest at the rate of `6% per annum
from the date 05-01-2016 till the date of deposit, holding
the owner and Insurer jointly and severally liable to pay
the said compensation and directed the Insurer to deposit
the award amount. It is against the said judgment and
award passed by the Tribunal, the claimant has filed this
appeal seeking enhancement of compensation.
MFA No. 5373 of 2021
6. The respondent No.1 (insurer) is represented by
its counsel. Notice to respondent No.2 (owner) is
dispensed with vide order dated 13-12-2021.
7. Records are called for from the Tribunal and the
same are placed before the Court.
8. Learned counsel for the appellant and learned
counsel for the respondent No.1/Insurer are physically
appearing before the Court.
9. Heard the arguments from both side. Perused
the materials placed before this Court including the
memorandum of appeal, impugned judgment and also the
records of the Tribunal.
10. The present appeal being the claimant's appeal
and the respondent Insurer having not preferred either
cross-objection or a counter appeal, the question of
occurrence of accident on the date, time and place as
alleged by the claimant and also the alleged rash and
MFA No. 5373 of 2021
negligent driving on the part of the driver of the offending
vehicle is not in dispute.
Further, the evidence of claimant as PW-1 which is
further corroborated with Exs.P-1 to P-11 which inter alia
includes copies of the FIR, complaint to the Police, charge
sheet, scene of offence panchanama, sketch of the spot,
IMV report, Wound Certificate and discharge summary
issued by the Hospitals also establishes the occurrence of
the road traffic accident on the date, time and place as
mentioned in the claim petition and the claimant
sustaining injuries in the said accident, so also the rash
and negligent driving on the part of the driver of the
alleged offending Tractor in causing the said road traffic
accident which has inflicted injuries upon the claimant.
Thus, the only question that remains for
consideration is, whether the claimant is entitled for any
enhancement in the compensation awarded by the
Tribunal in the matter.
MFA No. 5373 of 2021
11. The learned counsel for the appellant (claimant)
in his argument submitted that, the disability to the whole
body has been assessed at 20% by the Doctor, who has
examined the claimant and also given his evidence as
PW-3. However, the Tribunal has considered the
percentage of disability to the whole body at only 10%,
without attributing any reason, as such, the said
percentage of disability requires to be revisited. He also
submitted that the Tribunal has awarded the interest on
the awarded compensation amount only from the date
05-01-2016, but not from the date of presentation of the
claim petition, as such, the same also requires to be
modified.
12. Per contra, the learned counsel for the
respondent No.1 (Insurance Company), in his very brief
argument, submitted that no grounds are made out by the
appellant (claimant) to interfere in the impugned
judgment and award passed by the Tribunal.
MFA No. 5373 of 2021
13. The claimant, as PW-1, in his evidence has
stated that, the Doctors who examined him and subjected
him to clinical diagnosis have opined that he has sustained
head injury and L-1 compressed fracture and thereafter he
was operated for L-1 compression fracture. He has also
stated that he was admitted as in-patient for three days
from 12-04-2012 to 14-04-2012.
14. PW-2 - G.V. Ravishankar, who, as a Record
Technician at the J.S.S. Hospital, Mysore, has stated that
as per the Hospital records, the claimant was admitted as
an in-patient in their Hospital from the date 04-04-2012 to
11-04-2012. He has produced and identified the case
sheet pertaining to the claimant maintained by his Hospital
at Ex.P-19 and 15 X-ray films at Ex.P-20.
15. PW-3 - Dr.S. Ramachandra, Orthopaedic
Surgeon at the Bowring and Lady Curzon Hospitals,
Bangalore, has stated that, after going through the
discharge summary issued by the St. Joseph's Hospital
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MFA No. 5373 of 2021
and J.S.S. Hospital, Mysore and hearing the claimant, he
came to know that the claimant had sustained head injury
and fracture of first Lumbar vertebra.
Though the evidence of PW-3 is not of a treating
Doctor with respect to certifying that the claimant had
sustained those injuries in a road traffic accident,
however, the evidence of PW-1 the claimant supported by
the evidence of PW-2 and further corroborated by the
Wound Certificate at Ex.P-9, discharge summary at
Ex.P-10 and Ex.P-11 shows that, in the road traffic
accident, the claimant had sustained multiple lacerations
over forehead, multiple abrasions which are skin deep over
both knees, tenderness on the spinal region, and also the
radiological report, which shows the fracture of L-1
Vertebra with contusion. The said fracture was considered
as a grievous injury and lacerations and abrasions were
considered as simple in nature. Thus, the claimant should
have suffered considerable pain and agony. However, the
Tribunal has awarded him a compensation of a sum of only
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MFA No. 5373 of 2021
`20,000/- towards pain and sufferings, which is on the
lower side. Hence, the appellant (claimant) deserves an
enhancement by a sum of `20,000/- towards
compensation for pain and sufferings, thus the total
compensation under the head pain and sufferings would
be `30,000/-.
16. It is after considering the 80 medical bills at
Ex.P-16 and 37 prescriptions at Ex.P-17, since the Tribunal
has arrived at a finding that the clamant has incurred in
total a sum of `1,09,883/- towards medical expenses and
considering the diet, food, nourishment and attendant
charges, has, in total, awarded compensation of a sum of
`1,20,000/- towards medical bills including food,
nourishment and attendant charges, the same being
reasonable, the same does not warrant any modification
by this Court.
17. Towards loss of amenities, the Tribunal has
awarded a sum of `20,000/-, however, considering the
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MFA No. 5373 of 2021
nature of the injuries and the contention of the claimant as
PW-1 that because of the injuries, he cannot walk a long
distance and cannot climb staircase and cannot sit and
squat, I am of the view that the compensation towards
loss of amenities deserves an enhancement by a sum of
`10,000/-, thus making the total to a sum of `30,000/-.
18. The claimant has stated that, because of the
injuries suffered by him, he could not pursue his avocation
as an agriculturist from which he was earning a sum of
`10,000/- per month, as such, he has lost his future
income. PW-3, the Doctor in his evidence has deposed
that after clinically examining the claimant, he noticed the
percentage of disability with the claimant and assessed the
disability with the claimant at 20% to the whole body.
However, the Tribunal has taken the said percentage of
disability only at 10%, that too, without attributing any
reasons for the same. Considering the nature of injuries
suffered by the claimant and the disability that is caused
in discharging his avocation as an agriculturist, I am of the
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MFA No. 5373 of 2021
view that, the reasonable disability which the Tribunal
ought to have taken was at 15%, but not 10%. Thus, the
claimant's income as at `1,00,000/- per annum, as
considered by the Tribunal and his age being 62 years, the
applicable multiplier is '7' are not in dispute. Thus, a re-
calculation of the compensation towards loss of future
income would be at `1,00,000/-x'7'x15% = 1,05,000/-,
whereas the Tribunal has awarded a compensation of only
a sum of `70,000/- towards the loss of future income.
Thus, the claimant is entitled for enhancement of a sum of
`35,000/- towards loss of future income on account of the
injuries and disability suffered by the claimant.
19. The Tribunal has also awarded a compensation
of a sum of `5,000/- towards vehicle repair charges, which
does not warrant any modification.
20. It is also the argument of the learned counsel
for the appellant (claimant) that the Tribunal has awarded
an interest at the rate of `6% per annum, only from the
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MFA No. 5373 of 2021
date 05-01-2016, but not from the date of the claim
petition which was filed much earlier to it, as such, the
same warrants interference.
A perusal of the materials placed before this Court
and even according to the submission made by the learned
counsel for the appellant, the claim petition was filed
before the Tribunal at Bengaluru on the date 20-07-2012,
however, upon objections by the Insurance Company, the
said claim petition came to be returned by the MACT,
Bengaluru, for want of jurisdiction to the claimant, on the
date 19-11-2014, under its detailed order. The claimant
challenged the said order of the Tribunal dated
19-11-2014 before this Court in M.F.A.No.3515/2015(MV).
This Court, vide its judgment and order dated 21-04-2020,
allowed the said Miscellaneous First Appeal and relying
upon the judgment of the Hon'ble Apex Court in the case
of Malati Sardar Vs. National Insurance Company
Limited and others reported in (2016) 3 Supreme Court
Cases 43, which judgment was pronounced by the Hon'ble
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MFA No. 5373 of 2021
Apex Court on the date 05-01-2016 and remanded the
matter back to the MACT, Bengaluru, holding that it has
got the jurisdiction to try the matter. However, on the
date 09-03-2021, the Insurance Company, i.e. the present
respondent No.1 filed the second application under Section
151 of the Code of Civil Procedure, 1908, before the
Tribunal, seeking waiving of the interest from the date of
the petition till its disposal. The said interlocutory
application came to be partly allowed by the Tribunal on
the date 08-04-2021, observing that the claimant was
entitled for interest from the date 05-01-2016 on which
date, the Hon'ble Apex Court had pronounced the
judgment in Malati Sardar's case (supra). The said order
passed by the Tribunal on the date 08-04-2021, was
admittedly, not challenged by the claimant, till date.
Therefore, the said finding of the Tribunal has reached its
finality. Furthermore, even this Court also in its order
dated 24-01-2020 passed in M.F.A.No.3515/2015(MV) has
not observed that the MACT at Bengaluru had the
jurisdiction as on the date of the claimant filing the claim
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MFA No. 5373 of 2021
petition before it on the date 20-07-2012. But it is only
observing that as on the date of taking up the said MFA for
its disposal, the judgment of the Hon'ble Apex Court in
Malati Sardar's case (supra) since was in force, the
Tribunal had the jurisdiction to try the case. Therefore, it
is not the finding of this Court in M.F.A.No.3515/2015
(MV) that as on the date of the presentation of the claim
petition till 05-01-2016, the Tribunal had the jurisdiction
to try the claim petition filed by the claimant on the date
20-07-2012.
21. Since it is considering these aspects, the
Tribunal has rightly confined the applicability of interest
only from the date 05-01-2016 till the deposit of the
awarded amount, the argument of the learned counsel for
the appellant (claimant) that the claimant is entitled for
interest from the date of the claim petition, is not
acceptable.
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MFA No. 5373 of 2021
22. Barring the above, the claimant is not entitled
for compensation under any other heads or for any
modification or enhancement of compensation under any
other existing heads.
23. Thus the claimant is entitled for a modified
compensation as tabulated below:
Sl.
Heads of compensation Amount in `
No.
1 Pain and sufferings 30,000/-
2 Medical Bills including food, 1,20,000/-
nourishment and attendant charges
3 Loss of amenities of life 30,000/-
4 Loss of future earnings 1,05,000/-
5 Vehicle repair charges 5,000/-
Total 2,90,000/-
Since the quantum of compensation awarded by the
Tribunal at `2,35,000/- is in short by a sum of `55,000/-,
for the said enhancement of a sum of `55,000/-, the
impugned judgment and award deserves to be interfered
with.
Accordingly, I proceed to pass the following :
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MFA No. 5373 of 2021
ORDER
[i] The appeal filed by the claimant stands
allowed in part;
[ii] The impugned judgment and award
passed by the learned Motor Vehicles Accident
Claims Tribunal, Bengaluru (SCCH-13), dated
20-07-2021 in M.V.C.No.4259/2012 is hereby
modified to the extent that the compensation
awarded at `2,35,000/- is enhanced by a sum of
`55,000/- (Rupees Fifty Five Thousand only)
thus fixing the total compensation at `2,90,000/-
(Rupees Two Lakhs Ninety Thousand only).
[iii] The rest of the order of the Tribunal
with respect to fixing the liability upon the
respondents and directing the respondent No.1 -
Insurance Company to deposit the awarded
amount, awarding the interest from the date
05-01-2016, its rate, terms regarding release of
the amount awarded shall remain unaltered.
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MFA No. 5373 of 2021
Draw the modified award accordingly.
Registry to transmit a copy of this judgment to the
concerned Tribunal, along with its records, without delay.
SD/-
JUDGE
BMV*
