Karnataka High Court
K A Srinivasa vs The Oriental Insurance Comapny Ltd on 1 April, 2024
-1- M.F.A.No.11281/2012
C/W M.F.A.No.8001/2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2024
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO.11281/2012 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.8001/2014 (MV-I)
IN M.F.A. NO.11281/2012
BETWEEN:
THE ORIENTAL INSURANCE COMPANY LTD.,
BRANCH OFFICE,
I FLOOR, GIRISH COMPLEX,
AGRAHARA STREET, CHAMARAJANAGAR,
REPRESENTED BY ITS
ADMINISTRATIVE OFFICER,
R.O. AT NO.44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE - 560 025.
... APPELLANT
(BY SRI S. SRISHAILA, ADVOCATE (V.C.))
AND:
1. K.A. SRINIVASA
AGED ABOUT 43 YEARS,
R/AT BRAMARAMBA EXTENSION,
CHAMARAJANAGAR TOWN.
2. S. NAGARAJU,
62 YEARS,
-2- M.F.A.No.11281/2012
C/W M.F.A.No.8001/2014
S/O. C.V. SHIVARUDRAPPA
D.NO.117/22, 4TH CROSS,
BRAMARAMBA EXTENSION,
CHAMARAJANAGAR TOWN.
... RESPONDENTS
(BY SRI MURTHY D.L., ADVOCATE FOR R-1;
V/O. DATED 12/08/2015 NOTICE TO R-2 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 22.08.2012 PASSED IN MVC NO.260/2011 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT, KOLLEGAL, SITTING
AT CHAMARAJANAGAR, AWARDING A COMPENSATION OF
RS.11,05,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL DEPOSIT.
IN M.F.A. NO.8001/2014
BETWEEN:
K.A. SRINIVASA
AGED ABOUT 44 YEARS,
S/O. K.V. ANANTHU,
RESIDING EARLIER AT
BRAMARAMBA EXTENSION,
CHAMARAJANAGAR AND PRESENTLY
RESIDING AT THE HOUSE
BEHIND THE GIRIJA DENTAL,
AGRAHARA STREET,
CHAMARAJANAGAR TOWN-571313.
... APPELLANT
(BY SRI MURTHY D.L., ADVOCATE)
AND:
1. THE ORIENTAL INSURANCE COMPANY LTD.,
BRANCH OFFICE
-3- M.F.A.No.11281/2012
C/W M.F.A.No.8001/2014
I FLOOR, GIRISH COMPLEX,
AGRAHARA STREET,
CHAMARAJANAGAR-571313.
2. SRI S. NAGARAJU,
AGED ABOUT 64 YEARS,
S/O. C.V. SHIVARUDRAPPA,
R/AT NO.117/22, 4TH CROSS,
BRAMARAMBA EXTENSION,
CHAMARAJANAGAR TOWN-571313.
3. N. MAHADEVPRASAD
S/O. S.D. NAGARAJU
AGED ABOUT 28 YEARS,
DOOR NO.117/22, 4TH CROSS,
BRAMARAMBA EXTENSION,
CHAMARAJANAGAR
TOWN AND TALUK-571313.
... RESPONDENTS
(BY SRI S. SRISHAILA, ADVOCATE FOR R-1 (V.C.)
SRI P. NATARAJU, ADVOCATE FOR R-2 & R-3)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 22.08.2012 PASSED IN MVC NO.260/2011 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT, KOLLEGAL, SITTING
AT CHAMARAJANAGAR, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS HAVING BEEN HEARD
AND RESERVED ON 26/02/2024, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, K.S.HEMALEKHA J., DELIVERED THE
FOLLOWING:
-4- M.F.A.No.11281/2012
C/W M.F.A.No.8001/2014
JUDGMENT
Both the appeals arise out of the common judgment and
award dated 22.08.2012 in MVC.No.260/2011 on the file of the
Fast Track Court and Motor Accident Claims Tribunal, Kollegal,
Sitting at Chamarajanagar (hereinafter referred to as "the
Tribunal" for short), whereby, the Tribunal has awarded
compensation of Rs.11,05,000/- with interest at the rate of 6%
per annum from the date of petition till the date of deposit,
holding the owner and the insurance company jointly and
severally liable to pay the compensation and directing the
insurance company to deposit the compensation along with 6%
interest.
2. MFA.No.11281/2012 is preferred by the insurance
company seeking for reduction of compensation,
MFA.No.8001/2014 is preferred by the claimant seeking
enhancement of compensation.
3. Parties are referred to as per their ranking before
the Tribunal for the sake of convenience.
4. The questions that fall for consideration in the
present appeals are that:
"1. Whether the award of compensation by the
Tribunal is just, fair and proper in the present
facts and circumstances of the case?
2. Whether the claimant has made out any
ground for future medical expenses in light of
the documents annexed to I.A.Nos.2/2014 and
1/2023 filed under Order XLI Rule 27 of CPC ?"
ANALYSIS
5. To avoid repetition, both the points are taken up
together for consideration.
6. Claimant-injured filed claim petition seeking
compensation of Rs.33,19,150.22 with interest at the rate of
18% p.a. on account of injuries suffered by the claimant on the
road traffic accident that occurred on 15.11.2010, while
proceeding towards Gundlupet as a pillion rider, when he
reached near Bannari Amman Temple at Gundlupet main road,
the driver of the Tata Sumo vehicle bearing registration No.KA-
10-N-4444 came in a rash and negligent manner and dashed
against the motorcycle driven by the claimant. Due to the
accident, the claimant fell on the ground and sustained
grievous injuries. The claimant was admitted to
Chamarajanagar Government Hospital as an inpatient,
underwent surgery on the left side hip and left leg.
7. The claimant contended that he is a Video Journalist
at Janashri TV Channel and due to the impact of the accident,
he has suffered permanent disability and the claimant has been
removed from service. It is contended that the claimant is the
only earning member of the family consisting of his
handicapped wife, minor children and aged mother who are all
dependent upon him.
8. Respondent No.1-insurance company filed
objections, inter alia, denying the actionable negligence on the
part of the driver of the Tata Sumo. On the other hand, it was
contended that the accident occurred due to the rash and
negligent riding by the claimant himself.
9. In order to substantiate his claim, the claimant got
himself examined as P.W.1 and got marked documents at
Exs.P.1 to P.19, examined one doctor on Commission, got
marked documents at Exs.C.1 to C.13. On behalf of the
insurance company, Ex.R.1 was marked and respondent Nos.2
and 3 filed driving licence and RC copy.
10. The Tribunal, on the basis of the oral and
documentary evidence, allowed the petition in part and held
that the accident occurred on account of rash and negligent
driving of the Tata Sumo Vehicle bearing registration No.KA-10-
N-4444 and due to the impact of the accident, the claimant
sustained grievous injuries, awarded compensation of
Rs.11,05,000/- with interest at the rate of 6% p.a.
11. Heard Sri S. Srishaila, learned counsel for insurance
company and Sri Murthy D.L., learned counsel appearing for
the claimant.
12. Claimant's counsel filed I.A.Nos.2/2014 and 1/2023
in MFA.No.8001/2014 contending that due to the injuries
suffered in the accident, claimant had to undergo further
surgeries during the pendency of these appeals, permanent
disability increased to 75% due to his deteriorated condition in
the course of time and that the claimant is entitled for medical
expenses incurred during the pendency of the appeal. This
Court, vide order dated 15.03.2023, allowed the application
and directed the Tribunal to record additional evidence by
affording opportunity to both the parties to lead evidence with
reference to the documents produced under the application. In
view of allowing of I.A.Nos.2/2014 and 1/2023, evidence been
let in by claimant before Tribunal to the said extent, what
needs to be considered by us is whether the additional evidence
adduced and material on record is sufficient to award further
medical expenses and to what extent.
13. The claimant examined himself as PW.1 with
reference to the documents deposed that he had underwent
surgery for replacement of hip ball and for removal of puss
formed in the hip on two occasions and also contended that he
has produced the disability card issued by the district surgeon
and Government of India dated 19.08.2019 to indicate that the
claimant had suffered disability at the rate of 75% of the whole
body. The insurance company cross-examined PW.1 regarding
the medical bill and the disability card produced by the
claimant. Nothing worthwhile was elicited in the cross-
examination of PW.1 to disbelieve the medical bills, on the
other hand, the evidence adduced by PW.1 would clearly
indicate that the claimant had follow up treatment for the
injuries sustained due to the accident. Thus, the awarding the
compensation under the head future medical expenses as
indicated in the medical bills would arrive to Rs.1,24,182/- and
thus, the claimant is entitled for the said amount, as he has
undergone expenses for the injuries suffered by him in the
accident.
14. The unique disability card issued by the District
Surgeon and Government of India had endorsed the disability
to the extent of 75% to the whole body. No evidence was
adduced to prove the said documents or the disability at the
rate of 75% as shown in that document. The author of the card
is not examined to prove that the claimant suffered from
disability to the said extent and that the alleged disability has
nexus to the accident dated 15.11.2010. .
15 Doctor-H.Umesh, who was examined during the
course of trial categorically stated about the surgery conducted,
and about the complications that arose after the surgery and
opined that the claimant has sustained 45% physical disability.
In the absence of any evidence of the doctor or the district
surgeon who issued the unique disability certificate , we are
unable to accept that the claimant had suffered disability at the
rate of 75% to the whole body or the nexus of alleged disability
to the accident in question.
16. The fact remains that the occurrence of accident
involving the Tata Sumo (offending vehicle) in question, validity
of the insurance policy and the liability of the insurance
company to pay the compensation is not in dispute. The only
dispute is regarding the quantum of compensation awarded by
the Tribunal.
17. The insurance company would contend that the
Tribunal was not justified in awarding Rs.7,70,000/- towards
the permanent disablement, having failed to establish that due
to the injuries sustained by the claimant, the claimant lost his
job and that the award of compensation on the other heads is
on much higher side.
18. The Tribunal, by the impugned order, has awarded
Rs.11,05,000/- with interest at the rate of 6% p.a. from the
date of petition till payment. The disability as spoken to by the
doctor is 45%. The claimant sustained dislocation of his hip
joint, fracture of acetabulum and CLW over left leg medial side
bleeding and other injuries, as is evident from wound
certificate-Ex.P.5. The claimant contended that he was earning
Rs.10,500/- per month as a Video Journalist of Janashri TV
channel, Ex.P.18-the statement of salary extract indicates that
the claimant was having an income of Rs.9,036/- per month.
The Tribunal considered the income at Rs.9,000/-, which we
are of the considered view is justified. The age of the claimant
as is evident from discharge summary is 40 years and the
applicable multiplier is '15'. The doctor has spoken about the
permanent disability to be at 45% to the whole body.
19. As per the dictum of the Apex Court in the case of
National Insurance Company Limited Vs. Pranay Sethi
and others [2017 ACJ 2700] (Pranay Sethi), if the claimant
was self-employed or on a fixed salary, 25% of the income of
the claimant has to be super added towards the future
prospects, where the claimant was between the age of 40-50
years. Thus, the total income of the claimant comes to
Rs.11,250/- (Rs.9,000 + 25% future prospects). Taking the
income as Rs.11,250/-, applying the multiplier '15' and taking
the disability at 45%, the claimant is entitled to Rs.9,11,340/-
(Rs.11,250 x 45% x 12 x 15).
20. The awarding of compensation under the other
heads requires reassessment to award just and fair
compensation to the claimant. The future medical bills as
stated supra amounts to Rs.1,24,182/- as indicated in the
documents produced by the claimant. The claimant is entitled
for the said amount, as he has incurred expenses for the
permanent injuries suffered due to the accident. Under the
said circumstances, the claimant is entitled for the following
enhanced compensation as under:
Sl. Heads Rs.
No.
1. Pain and suffering 2,00,000.00
2. Medical bills(As against the 2,50,000.00
bills & as awarded by the
tribunal)
3. Transportation 25,000.00
4. Loss of income during laid 54,000.00
up period (9000 x 6)
5. Loss of future earning 9,11,340.00
6. Attendant charges 25,000.00
7. Future medical expenses as 1,24,182.00
shown in the medical bills
Total 15,89,522.00
Compensation awarded by 11,05,000.00
the Tribunal
Enhanced compensation 4,84,522.00
21. The Tribunal has already awarded compensation of
Rs.11,05,000/- with interest at the rate of 6% p.a. The
claimant is entitled for Rs.15,89,522/- as against
Rs.11,05,000/-, the enhanced compensation that the claimant
is entitled to Rs.4,84,522/- and the points framed for
consideration are answered accordingly. Hence, the following:
ORDER
i. MFA No.11281/2012 filed by the insurance
company is hereby dismissed.
ii. MFA No.8001/2014 filed by the claimant is
hereby allowed in part.
iii. The claimant is entitled for compensation of
Rs.15,89,522/- as against Rs.11,05,000/-. The
claimant is entitled for enhanced compensation
of Rs.4,84,522/- with interest @ 6% p.a. from
the date of petition till the date of realization.
iv. The amount in deposit to be transmitted to the
Tribunal forthwith.
v. The insurance company shall deposit the
enhanced compensation amount before the
Tribunal within a period of four weeks from the
date of release of this order.
In light of disposal of appeals, pending I.A.s, if any, would
not survive for consideration.
Sd/-
JUDGE
Sd/-
JUDGE
MBM/S
