The Claim Manager vs Shivaraju K M
2023 Latest Caselaw 6774 Kant

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                                                         NC: 2023:KHC:34873
                                                       MFA No. 3607 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 25TH DAY OF SEPTEMBER, 2023

                                          BEFORE
                             THE HON'BLE MR JUSTICE C M JOSHI
                    MISCELLANEOUS FIRST APPEAL NO. 3607 OF 2017 (MV-I)
                   BETWEEN:

                   THE CLAIM MANAGER,
                   TATA AIG GENERAL INSURANCE
                   COMPANY LIMITED,
                   NO.69, 3RD FLOOR,
                   J P & DEVI, JAMBUKESWARA ARCADE,
                   MILLER'S ROAD, BANGALORE-52.
                   BY ITS MANAGER.
                                                               ...APPELLANT
                   (BY SRI O.MAHESH, ADVOCATE)

                   AND:

                   1.   SHIVARAJU K M,
                        S/O. LATE MAHADEVAIAH,
                        AGED ABOUT 29 YEARS,
                        R/AT 4TH DIVISION, KODIHALLI
                        VILLAGE, KANAKAPURA TALUK,
Digitally signed        RAMANAGARA DISTRICT-562 117.
by T S
NAGARATHNA
Location: High     2.   VASUDEVA G, MAJOR,
Court of
Karnataka               S/O. GANGAPPA,
                        R/AT THAMMANAYAKANAHALLI VILLAGE,
                        ATTIBELE POST, ANEKAL TALUK,
                        BANGALORE RURAL DISTRICT-562 106.
                                                            ...RESPONDENTS
                   (BY SMT. NITHYA.V, ADVOCATE FOR SRI PRAKASH M.H,
                       ADVOCATE FOR R-1;
                       NOTICE TO R-2 IS D/W V/O DATED 14.12.2021)

                        THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
                   JUDGMENT AND AWARD DATED 8.03.2017 PASSED IN MVC
                   NO.418/2016 ON THE FILE OF THE MEMBER, PRINCIPAL
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                                         NC: 2023:KHC:34873
                                      MFA No. 3607 of 2017




M.A.C.T,     BENGLAURU       (S.C.C.H.-1),    AWARDING
COMPENSATION OF RS. 3,20,200/- WITH INTEREST AT 9%
P.A. FROM THE DATE OF PETITION TILL REALISATION.

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

                        JUDGMENT

This appeal by the Insurance Company is directed

against the judgment and award dated 8.03.2017 passed

in MVC No.418/2016 by the Member, Principal MACT,

Benglauru (SCCH-1), whereby a sum of Rs.3,20,200/-

with interest at 9% p.a. from the date of petition till

realization has been awarded as compensation on account

of the injuries sustained by the petitioner in the road

traffic accident.

2. It is the case of the petitioner that on 16-01-2015

at about 10.30 p.m. when he was riding a motor cycle

bearing No.KA-42-R-7462 from Kanakapura towards

Kodihalli, near Petrol Bunk, Indiranagara, Garalapura

Dakle, the driver of tractor bearing No. AP-20-T-6156

came in high speed in a rash and negligent manner,

NC: 2023:KHC:34873 MFA No. 3607 of 2017

parked the tractor in the middle of the road without giving

any signals and without switching on the hazard lights and

due to which, petitioner dashed against the tractor and

resulting in grievous injuries to him. Immediately, he was

shifted to Government hospital, Kanakapura, after first aid

treatment, shifted to NIMHANS hospital, then to KIMS

hospital, wherein he took treatment as inpatient from

18.01.2015 to 30.01.2015. During the course of treatment

x-rays, C.T.Scan were taken and multiple grievous injuries

are confirmed and petitioner underwent surgery and spent

Rs.2,00,000/- towards medical and nourishment charges.

3. It was the further case of the petitioner that on

account of the said accidental injuries, he was completely

bed ridden as he cannot walk, stand, sit, squat, and such

disabilities and injuries caused are permanent in nature. It

was further case of the petitioner that prior to accident, he

was hale and healthy, aged about 27 years and earning

Rs.15,000/- p.m. by working as Lab Technician at J.P.N.

hospital and Kanakapura Government hospital and on

NC: 2023:KHC:34873 MFA No. 3607 of 2017

account of the accidental injuries, he suffered permanent

disability which has resulted in loss of income. The

accident in question is purely due to the rash and

negligent parking of the tractor bearing No. AP-20-T-6156

and the respondent No.1 is the owner and respondent

No.2 is the insurer of the offending vehicle, are jointly and

severally liable to pay compensation to the petitioner.

4. In pursuance to the issuance of the notice,

respondent No.1 did not chose to appear before the

Tribunal and he was placed exparte. Respondent No.2-

Insurance Company appeared through its counsel and has

filed written statement denying the date, time and mode

of accident, age, avocation and income of the petitioner,

injuries sustained by him and expenses incurred by him.

However, admitted the issuance of the policy in respect of

the tractor bearing No. AP-20-T-6156 and contended that

the liability is subject to the terms and conditions of the

policy. It was further contended that the petitioner has

lodged a false complaint against the insured vehicle as

NC: 2023:KHC:34873 MFA No. 3607 of 2017

afterthought by twisting the facts and colluding with

concerned persons after 23 days of alleged incident in

order to get compensation by misusing the judicial

process. It was its contention that petitioner without

knowledge of riding fell down on his own and insured

vehicle is not at all involved in the accident and the

petitioner is also responsible for the alleged accident and

the liability may kindly be reduced to the extent of the

negligence of the petitioner. The petitioner had no valid

and effective driving licence as on the date of accident. It

was further contended that the first respondent owner has

not complied the statutory obligation under Section 134(c)

of M.V.Act and the concerned police have not complied the

provisions of Section 158(6) of M.V.Act. The compensation

claimed by the petitioner is excessive and exorbitant.

Hence, prays to dismiss the petition.

5. On the basis of the above pleadings and

contentions of the parties, the Tribunal has framed

necessary issues for its consideration. Before the Tribunal,

NC: 2023:KHC:34873 MFA No. 3607 of 2017

petitioner got examined himself as PW1, got examined one

witness as PW.2 and Exs.P1 to P18 were marked.

Respondents have examined two witnesses as RWs 1 and

2 and Exs.R1 to R8 were marked.

6. On hearing both the sides and considering the

materials available on record, the Tribunal has partly

allowed the petition, directed the insurance company to

pay a sum of Rs.3,20,200/- as compensation together with

interest at 9% p.a., under different heads as below:

   Pain and sufferings                    Rs.   40,000/-
   Medical expenses                       Rs.   45,000/-
   Loss of income during the period of    Rs.   32,000/-
   inpatient and period of treatment
   Food and nourishment, conveyance,      Rs.   10,000/-

attendant charges, ambulance charges and other incidental expenses Future loss of earning due to Rs.1,63,200/-

   permanent disability
   Loss of amenities                      Rs.   30,000/-

   Total                                  Rs.3,20,200/-

7. Being aggrieved by the said judgment and award,

the Insurance Company is before this Court in appeal.

NC: 2023:KHC:34873 MFA No. 3607 of 2017

8. Respondent No.1-petitioner has appeared through

his counsel and notice to respondent No.2 is dispensed

with. On admitting the appeal, the Tribunal records have

been secured.

9. Heard Sri O Mahesh, learned counsel appearing for

the appellant- Insurance Company and Smt Nithya V. for

Prakash M.H. learned counsel appearing for respondent

No.1/petitioner and perused the Tribunal records.

10. The learned counsel for the appellant-Insurance

Company contend that though the accident had occurred

on 16-1-2015, the FIR came to be registered on 11-2-

2015 and this delay speaks a lot about the alleged

accident. He contends that the petitioner had been

discharged from the hospital much prior to 11-2-2015 and

there is no explanation for such delayed filing of the FIR.

Secondly, he contends that the petitioner was at fault as

he dashed to the back of the tractor which was parked and

therefore, the accident was due to the sole negligence of

the petitioner. Thirdly, he contend that the petitioner was

NC: 2023:KHC:34873 MFA No. 3607 of 2017

under the influence of Alcohol as may be seen from the

medical records and therefore, the Tribunal erred in

discarding the contributory negligence by him. Fourthly,

he contends that the Tribunal had also erred in assessing

the disability and income of the petitioner. Therefore, he

has sought for intervention of this Court.

11. Per contra, learned counsel appearing for

respondent No.1-petitioner has submitted that the delay in

filing the FIR has been properly explained by the

petitioner. It is submitted that the petitioner was

unconscious after the accident and all the evidence on

record show that he was admitted to the hospital for the

injuries suffered in the accident and as such, the delay has

been properly considered by the Tribunal. It is submitted

that the Tribunal has also considered the consumption of

the alcohol by the petitioner and simply because the

medical records mention it cannot be concluded that the

accident occurred due to inebriated condition of the

petitioner. It is further submitted that the Tribunal has

NC: 2023:KHC:34873 MFA No. 3607 of 2017

rightly assessed the functional disability in quantifying the

compensation to the petitioner.

12. The police papers produced at Exs.P1 to 4 and 6

show that the tractor involved in the accident was parked

near a petrol pump in the center of the road as it had

broken down. The records also reveal that there was no

indicator for having parked the same. The investigation

papers also show that a chargesheet was filed against the

tractor driver and there is absolutely no material on record

to show that there was any negligence on the part of the

petitioner.

13. Obviously, the driver of the tractor has not been

examined by the respondents. It is only RW2 who is an

official of the respondent No.2 Insurance Company, who

says that the spot was well lit and admits that there was

no such complaint of false implication of the tractor to the

higher officers of the police department. Obviously, RW2

is not an eye witness to the accident and therefore, his

deposition is only on the basis of the records which are

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NC: 2023:KHC:34873 MFA No. 3607 of 2017

available. The records produced by the petitioner show

that immediately after the accident, he became

unconscious and he was taken to Kanakapura

Government hospital and thereafter, he was taken to

NIMHANS and thereafter, he was shifted to KIMS hospital,

Bengaluru. The case sheet of the KIMS hospital Bengaluru

is produced at Ex.R2. It discloses that he was admitted to

KIMS hospital on 18-1-2015 and was discharged on 30-1-

2015. The records of the Government Hospital,

Kanakapura, NIMHANS Bengaluru may also be found in

the records. Ex.R2 contains the copy of the case sheet of

NIMHANS and it shows that the patient was under the

influence of the alcohol. Obviously, only first aid was

provided at Government Hospital Kanakapura.

14. In all these records, it is clearly stated that the

petitioner had hit to the tractor. There is no reason to

disbelieve these medical records which have come into

existence out of spontaneity.

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NC: 2023:KHC:34873 MFA No. 3607 of 2017

15. The nature of the injuries as may be found from

the discharge summaries, wound certificate, case sheet

etc., disclose that "there was fracture of front bleeding

gum mouth profuse of teeth, lacerated tongue, bleeding

from left ear, fracture of zygomatic arch, displaced

fracture of symphysial and para symphysial part of body

of left mandible involving alveolar process, fracture of

anterior wall and posterior lateral wall of right maxillary

sinus with hemosinus, bilateral ethmoidal sinus shows

hemosinus with disruption of lamin paperacia, fracture

lateral wall of left sphenoid simus and roof of right

sphenoid simus, fracture roof of right orbit, nasi frontal

bone and mid line frontal bone, bilateral frontal

hemosinus, fracture superior fronto parietal bone, fracture

nasal septum, left medial pterigoidal plate, fracture lesser

wing of sphenoid bone, fracture roof and medial wall of

ethmoidal sinus, fracture hard palate, fracture left lateral

wall and roof of right sphenoid sinus with hemosinus".

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NC: 2023:KHC:34873 MFA No. 3607 of 2017

16. It has also been elicited in the deposition of PW1

that he was accompanied by his mother in the hospital.

The records also reveal that he was unconscious for some

time. In the light of the above medical condition and the

evidence on record, it is difficult to accept the contention

of the learned counsel for the appellant that the petitioner

could have lodged the complaint to the police immediately

after the accident. The explanation by the appellant that

he was accompanied by his mother in the hospital and

none else and also the nature of the injuries suffered by

him provide ample explanation for delayed filing of the

complaint. The MLC records also show that it was an RTA

and the manner in which the accident happened is also

mentioned in the case sheets. Therefore the first

contention of appellant regarding delay in FIR can be

attributed to false implication of tractor, is not sustainable.

17. The Tribunal has discussed these aspects in

detail while deciding Issue No.1. It has bestowed its

attention on the spot of the accident as may be found in

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NC: 2023:KHC:34873 MFA No. 3607 of 2017

the police papers and came to the conclusion that the spot

was not well lit. It has also considered the fact that the

medical records do not show sufficient material to hold

that the petitioner was in inebriated condition on account

of the consumption of the alcohol. It has also observed

that the combined reading of the medical records coupled

with the spot of the accident where the tractor was

abandoned at the center of the road without any

indicators, do not permit it to draw an inference that the

accident occurred due to the negligence on the part of the

petitioner. The judgment of the Tribunal in para 17 and

18 are elaborate and consider all the evidence available

on record. Hence, I am unable to accept any of the

contentions submitted by the learned counsel for the

appellant. The delay has been sufficiently explained and

the circumstances do not show that the tractor was falsely

implicated. There is nothing on record to show that there

was any negligence by the petitioner, much less, any

contributory negligence. Therefore, the finding of the

Tribunal on Issue No.1 cannot be faulted with.

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18. Coming to the quantum of the compensation,

petitioner contended that he was a Lab Technician earning

a salary of Rs.15,000/- per month by working in JPN

Diagnostic Center, Kanakapura Government Hospital on

contract basis. He has produced Exs.P15 issued by JPN

Diagnostic Center. The certificate at Ex.P16 show that he

had completed Diploma in Medical Laboratory Technology.

Except this, there was no other material on record.

Therefore, the Tribunal held the income of the petitioner

to be Rs.8,000/- per month.

19. PW2 who assessed the disability of the

petitioner states that there is 21% functional disability. In

his affidavit, he states that the petitioner had the fracture

of 2nd and 3rd metacarpals and the hand was swollen with

heeled abrasions and he was treated as out patient with

closed reduction and K wire fixation. Therefore, he states

that the disability is on account of partially affected grip

strength and mall-alignment etc. Though he had stated

the disability to be 21%, the Tribunal has assessed the

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functional disability at 10%. It is relevant to note that for

a Lab Technician, the grips strength and pinch strength of

the hand are vital for his avocation. Keeping in mind the

avocation of the petitioner, the Tribunal fixed the disability

at 10%. Therefore, it has awarded the compensation of

Rs.1,63,200/- by adopting proper multiplier of 17 under

the head of future loss of income. It has also considered

the compensation under other heads as stated supra

which is not in dispute.

20. The above conclusions regarding the quantum of

compensation by the Tribunal is based on the evidence

available on record and no fault can be found with the

same. The learned counsel appearing for the appellant-

Insurance Company is unable to point out how the

assessment of the disability by the Tribunal is incorrect.

His only submission is that, the disability stated by PW2 at

21% should have been divided by 3 and it should have

been taken at 7%. This argument obviously do not

consider the avocation of the petitioner. Hence, I find no

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reason to interfere with the conclusions and the

calculations made by the Tribunal and therefore, the

appeal is bereft of merits and the same is liable to be

dismissed. Accordingly, it is dismissed.

The amount which is in deposit shall be transmitted

to the concerned Tribunal forthwith.

Sd/-

JUDGE

tsn*