Karnataka High Court
The Claims Manager vs Smt G Sunanda on 22 February, 2024
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MFA No. 2274 of 2015
C/W MFA No. 5521 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO. 2274 OF 2015 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 5521 OF 2015 (MV-I)
IN MFA NO. 2274/2015
BETWEEN:
THE CLAIMS MANAGER,
UNITED INDIA INSURANCE COMPANY LIMITED,
NO.487/1, CMH ROAD,
NEAR AMAR JYOTHI NURSING HOME,
INDIRANAGAR 1ST STAGE,
BENGALURU - 560 038.
BY REGIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR, KRISHI BHAVAN,
NRUPATHUNGA ROAD, HUDSON CIRCLE,
BANGALORE - 560 001, BY ITS MANAGER.
...APPELLANT
Digitally (BY SRI. O. MAHESH, ADVOCATE)
signed by
BHARATHI S
Location: AND:
HIGH COURT
OF 1.
KARNATAKA SMT. G. SUNANDA,
AGE 37 YEARS,
D/O G. KRISHNA MURTHY,
RESIDING AT NO.151, 3RD CROSS,
POOJA LAYOUT, NEAR ANNYARB TEMPLE,
KALKERE, BENGALURU - 560 043.
RECENTLY RESIDING AT NO.39,
SAPTHAGIRI 5TH CROSS, 1ST BLOCK, AKSHAYANAGAR,
BENGALURU - 560 016.
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MFA No. 2274 of 2015
C/W MFA No. 5521 of 2015
2. SHRI C.K. SUDHEER VARMA,
NO.62, MANJUNATHANAGAR,
RICHES GARDEN, KALKERE
MAIN ROAD, BEHIND KOSHYS
HOSPITAL, R.M. NAGAR,
BENGALURU - 560 016.
...RESPONDENTS
(BY SRI. D. MANMOHAN, ADVOCATE FOR R1;
VIDE ORDER DATED 23.03.2015 NOTICE TO R2 IS
DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 10.12.2014 PASSED IN MVC
NO.1353/2013 ON THE FILE OF THE XII ADDITIONAL SMALL CAUSES
JUDGE, MEMBER, MACT, BANGALORE, AWARDING COMPENSATION
OF Rs.3,69,477/- WITH INTEREST @ 6% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
IN MFA NO. 5521/2015
BETWEEN:
SRI. G. SUNANDA,
DAUGHTER OF G. KRISHNA MURTHY,
NOW AGED ABOUT 37 YEARS,
R/AT NO.151, 3RD CROSS,
POOJA LAYOUT, NEAR ANJANEYA TEMPLE,
KALKERE, BENGALURU - 560 043,
PRESENTLY RESIDING AT NO.39,
SAPTHAGIRI, 5TH CROSS,
1ST BLOCK, AKSHYANAGAR,
BENGALURU - 560 016.
...APPELLANT
(BY SRI. D. MANMOHAN, ADVOCATE)
AND:
1. THE UNITED INDIA INSURANCE CO. LTD.,
NO.487/1, CMH ROAD,
NEAR AMR JYOTHI NURSING HOME,
INDIRANAGAR 1ST STAGE,
BENGALURU - 560 038,
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MFA No. 2274 of 2015
C/W MFA No. 5521 of 2015
REPRESENTED BY ITS MANAGER.
2. SRI. C.K. SUDHEER VARMA,
S/OF NOT KNOWN,
AGED MAJOR,
NO.62, MANJUNATHANAGAR,
RICHES GARDEN, KALKERE MAIN ROAD,
BEHIND KOSHYS HOSPITAL,
R.M. NAGAR, BENGALURU - 560 016.
...RESPONDENTS
(BY SRI. O. MAHESH, ADVOCATE FOR R1;
VIDE ORDER DATED 18.07.2016, NOTICE TO R2 IS
DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED10.12.2014 PASSED IN MVC
NO.1353/2013 ON THE FILE OF THE 12TH ADDITIONAL SMALL
CAUSES JUDGE, MEMBER, MACT, BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The MFA No.2274/2015 is filed by the Insurer and MFA
No.5521/2015 is filed by the claimants. Both the appeals are
filed challenging the judgment and award dated 10.12.2014
passed in MVC No.1353/2013 on the file of the XII Additional
Small Causes Judge, Member, MACT, Bangalore1. Hence,
both the appeals are taken up together for consideration.
Hereinafter referred to as the 'Tribunal'
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2. For the sake of convenience, the parties herein
are referred as per their ranking before the Tribunal.
3. It is the case of the claimant that on 18.06.2012
when she was riding her Honda Activa scooter bearing
Registration No.53/K-2910, a TVS scooty bearing
Registration No.53/R-1634 being ridden in a rash and
negligent manner, came and hit the vehicle of the claimant
on the front side, causing the accident in question, due to
which she sustained grievous injuries.
4. Claiming compensation for the injuries, she has
filed the claim petition before the Tribunal arraying the
insurer and the owner of the offending Scooty as Respondent
Nos.1 and 2 respectively. The said respondents entered
appearance before the Tribunal and filed statement of
objections.
5. The claimant examined herself as PW1, her
employee was examined as PW2 and two doctors was
examined as PW3 and PW4. Exs.P.1 to P.22 were marked in
evidence. The rider of the vehicle was examined as RW1 and
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the representative of the insurer was examined as RW.2.
Ex.R.1 policy copy was marked in evidence.
6. The Tribunal by its judgment and award dated
10.12.2014 has partly allowed the claim petition and
awarded a compensation of `3,69,477/- together with
interest at 6% per annum and directed the first respondent
Insurer to pay the compensation. Being aggrieved, the above
appeals are filed.
7. Learned counsel appearing for the insurer
assailing the judgment of the Tribunal submits that the
complaint was lodged on 24.06.2012 i.e., six days after
occurrence of the accident and the said delay in lodging the
complaint has not been properly explained. That the police
records i.e., IMV report (Ex.P4), Mahazar (Ex.P5), sketch
(Ex.P6) cannot be believed, since, they have been prepared
pursuant to the instructions of the brother of the claimant
who has not seen the occurrence of the accident. It is further
submitted that the damage to the vehicle as is forthcoming
from the IMV report (Ex.P4) clearly discloses that the
accident has occurred due to the claimant herself hitting
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against the insured scooty from behind and hence, the
manner of the occurrence of the accident as averred in the
claim petition has not been proved. It is further submitted
that it is the case of the claimant that immediately after the
accident, the claimant was treated at R.K.Poly Clinic and
Hosmat Hospital and thereafter she was treated at Panacea
Hospital. However no documents pertaining to the treatment
taken by the claimant at R.K.Poly Clinic and Hosmat Hospital
have been produced. That the doctors have been examined
by the claimant are not the treated doctors and there is no
evidence adduced by the claimant with regard to the
treatment undertaken immediately after the occurrence of
the accident. The case put forth by the claimant with regard
to the avocation is also seriously disputed by the Insurer and
it is submitted that PW2 who is the alleged employer has
admitted that the company which the claimant claimed that
she was working in had closed and PW2 was not the
employer of the said company. Further submits that the pay
slip (Ex.P9) has not been proved. Hence, he seeks for
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allowing the appeal filed by the insurer and granting of the
relief sought for.
8. Per contra, learned counsel for the claimant
justifying the findings of the Tribunal regarding the manner
of the occurrence of the accident submits that the complaint
lodged by the claimant (Ex.P2) clearly discloses that the
claimant has in detail set out the manner as to be occurrence
of the accident as well as stated regarding the delay for
lodging the complaint, that the owner and rider of the
offending vehicle had assured that the medical expenses of
the claimant would be reimbursed and damages to the
vehicle would be paid for and when it was realized that the
injuries are grievous in nature, they have refused to pay
towards the same and hence, the complaint has been
lodged. Further reliance is placed on the statement of
objections filed by the owner of the offending vehicle and the
testimony of RW1 i.e., the rider of the offending vehicle who
is the wife of the owner of the vehicle. It is contended that
the reading of the police documents as well as the testimony
adduced by the claimants and the stand of the owner and
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testimony of the rider of the offending vehicle, that the case
put forth by the claimants have been adequately proved.
Further it is submitted that the Tribunal has in detail
examined the said aspect of the matter and the said finding
of the Tribunal ought not to be interfered with by this Court
in the present appeal. It is contended that the quantum of
compensation awarded by the Tribunal is on the lower side.
Hence, he seeks for allowing the appeal filed by the
claimants and dismissing the appeal filed by the insurer.
9. The submissions of both the learned counsels
have been considered and the material on record has been
perused including the records of the Tribunal. The questions
that arise for consideration are:
(i)."Whether the finding of the Tribunal on Issue
No.1 as to whether the claimant had proved the
accident as averred in the claim petition is just and
proper?
(ii). Whether the compensation awarded by the
Tribunal is liable to be interfered with?
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Regarding question No.(i):-
10. The claimant has averred in the claim petition that
when she was riding her Honda Activa scooter, a TVS scooty
came and hit the vehicle of the claimant on the front side. It
is forthcoming from the complaint (Ex.P2) that the claimant
has stated that the offending vehicle came and hit the
vehicle of the claimant, due to which she fell down. That the
rider of the offending vehicle took the claimant to R.K. Poly
Clinic and thereafter, the brother of the claimant took her to
Hosmat hospital by an ambulance and the rider of the scooty
had assured that the treatment would be paid for. However
after taking further treatment when it was noticed that
grievous injuries have been sustained, when they refused to
pay for the expenses, the complaint was lodged and hence,
there was delay in lodging the complaint.
11. It is forthcoming that the owner of the offending
vehicle has filed the statement of objections, wherein it is
stated that his wife was riding the offending vehicle and
immediately after the accident, both the claimant and the
wife of the second respondent have taken first aid treatment
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at R.K.Poly Clinic and that both the claimant and the second
respondent decided not to report to the police station
regarding the accident and agreed to bear the cost of repairs
of the respective vehicles. It is further submitted that,
subsequently due to conduct of the claimant and her brother,
they have approached the police and filed a false complaint.
12. The claimant has examined herself as PW1 who has
stated regarding the manner of occurrence of the accident.
Although PW1 has been cross-examined, there are no
admissions with regard to the manner of occurrence of the
accident and with regard to the delay in lodging the
complaint to dilute her testimony. PW1 has stated that after
lodging the complaint, the police have not recorded further
statements and that her brother showed the place of the
accident in the police record and that he was not an eye-
witness to the accident.
13. RW1 in her testimony has stated that the accident
had occurred when the claimant hit the backside of the
offending vehicle. She has stated that since the accident had
occurred due to the rash and negligent riding of the vehicle
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of the claimant, she was not responsible for the same and
she did not file a complaint against the claimant.
14. The Motor Vehicle Accident (IMV) report (Ex.P4)
discloses that the left side head light of the Scooty and the
front wheel fender is dented, lift side head light vizer of the
Honda Activa has been damaged.
15. If, the manner of occurrence as deposed by RW1
is considered, the damages occurred to the vehicle as is forth
coming from Ex.P4 does not tally. It is not in dispute that the
case of the claimant and the case of the owner of the
offending vehicle that immediately after the occurrence of
the accident they have taken treatment together is
consistent with one another. If the manner of occurrence of
the accident as detailed by the claimant in the complaint
(Ex.P1) and the sketch (Ex.P6) are noticed, they are
consistent with each other.
16. Further, despite the owner of the vehicle stating
in the statement of objections that when the claimant and
her brother started making illegal demands, they have made
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written submission to the police station and the case was not
registered, no copy of any complaint or complaint to any
higher authority is placed on record. Although the claimant-
PW1 has in detail been cross-examined as to the occurrence
of the accident there is nothing which dilutes her testimony.
Having regard to the testimony of PW1 as well as the
testimony of RW1 as also the damages caused by the
vehicle, it is clear that the accident has occurred in the
manner as averred in the claim petition.
17. The Tribunal noticing the said aspect of the
matter, has further taken note on that the fact that RW1 in
her cross-examination has admitted that she has not lodged
any complaint against the claimants and that she has
admitted that in the case lodged against her, she has
pleaded guilty before the Criminal Court. It has further
noticed the damages to the vehicle as forth coming from
(Ex.P4) and recorded a finding that the claimant has proved
the accident as averred.
18. Although it is the vehement contention of the
learned counsel for the insurer that RW1 in the cross-
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examination has specifically stated that she has not pleaded
guilty before the Criminal Court but has only admitted to
having paid the fine, the relevant records with regard to the
Criminal Court have not been produced so as to demonstrate
that the charge made against the driver of the offending
vehicle has not been accepted by her and her admission as
to payment of fine was conditional in some manner.
19. Learned counsel for the Insurer has also
vehemently contended that the claimant has not produced
any documents to demonstrate that she had taken treatment
at R.K. Poly Clinic as contended by her. It is relevant to note
that in the statement of objection of the owner of the vehicle
it is placed on record that both the rider of the offending
vehicle as well as the claimant have taken first aid treatment
through R.K.Poly Clinic. Hence, the said fact as to be
claimant have been taken treatment at R.K.Poly Clinic has
specifically been admitted even by the rider and owner of the
vehicle.
20. Upon a re-appreciation of the oral and
documentary evidence on record, it is clear that the Tribunal
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has adequately appreciated the relevant factual aspect of the
matter and having notice that the material on record, has
recorded a finding that the accident has occurred in the
manner as averred in the claim petition and that the
claimant has proved the issue no.1 framed by it.
21. In view of the aforementioned the appellant has
failed to demonstrate that the finding recorded by the
Tribunal on issue no.1 framed by it for consideration, is in
any manner erroneous, having been recorded without taking
into consideration any specific material on record and is
liable to be interfered by this Court in the present appeal.
Hence, question No.(i) is answered in the affirmative.
Regarding question No.(ii):-
22. A Perusal of the wound certificate (Ex.P3) and the
discharge summary (Ex.P8) discloses that the claimant has
sustained fracture of the right knee joint and tear in
posterior horn of lateral meniscus and ACL tear. Exs.P3 and
P8 is issued by Panacea Hospital. Ex.P8 discloses that the
claimant underwent a surgery for treatment of the injuries
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sustained and ACL reconstruction was done and screw was
inserted. PW3 is the medico legal consultant at Panacea
Hospital and he has deposed with regard to the treatment
taken by the claimant at the said hospital. It is stated by
PW2 that the MLC procedure was done at Hosmat Hospital
and thereafter, the claimant took treatment at Panacea
Hospital.
23. It is forthcoming from perusal of medical bills
(Ex.P10) that the claimant has taken treatment at Hosmat
Hospital as well as Panacea Hospital. PW4 is an Orthopedic
Surgeon at Bowring and Lady Curzon Hospital, Bangalore
and he has given evidence only with regard to the disability,
after the interaction with the claimant and upon perusal of
the photocopies of the inpatient records from Panacea
Hospital, PW3 has assessed the disability of the claimant at
12.25% to the whole body. PW2 has not assessed any
disability and has merely stated regarding the treatment
taken by the claimant at Panacea Hospital and produced the
relevant medical documents of the said hospital. The
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Tribunal has reassessed the functional disability to the
claimant at 8%.
24. With regard to the income, the claimant has
averred in the claim petition that she is a processing
manager and the name of the employer is stated as Raksha
Corporate Services at Bengaluru. In the evidence of PW1, it
is deposed that she was studying B.B.A at correspondence
and she has working as processing Manager and earning a
sum of Rs.22,000/- per month. PW2 who has been examined
and has stated that the claimant was working as Processing
Manager at Raksha Corporate Services at Bengaluru since
one year. However, in the cross-examination PW2 has stated
that he has left the job of M/s. Raksha Corporate Services in
the month of December-2012 and that the said entity is not
in existence as on the date of giving evidence and that it was
closed in the month of March-2013, and the said company
has not doing any business. He further admits that as on
the date of evidence, he is in no way connected with M/s
Raksha Corporate Services. The claimant has also produced
a pay slip of Raksha Coporation Services as Ex.P9 which
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discloses the gross earning as Rs.22,000/- per month. The
Tribunal appreciating the case of the claimant with regard to
the avocation and income has disbelieved the testimony of
PW2 as well as Ex.P9. Since the claimant has not produced
any other material on record, the income of the claimant has
been assessed as notional income and `7,000/- is assessed
as monthly income.
25. It is forthcoming that the claimant has not
produced any documents to demonstrate that she was
pursuing her education or she was an employee, apart from
examining PW2 and producing Ex.P9. The claimant has also
not produced any bank account statement to demonstrate
that she was earning any monthly income. It is not the case
of the claimant that she has started working at some other
entity, apart from Raksha Corporate Service. Having regard
the same, the finding of the Tribunal with regard to the
income and avocation of the claimant is just and proper and
no interference with the same is warranted.
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26. The Tribunal has also appreciated the medical
records and the assessment of the disability by the Tribunal
is just and proper.
27. In view of the aforementioned, the compensation
is re-assessed as follows:
i. The Tribunal has awarded the compensation towards
pain and suffering in a sum of `30,000/- which is just
and proper;
ii. The Tribunal has awarded a sum of `1,97,957/-
towards medical expenses. The said compensation have
been awarded as per the medical bills produced, is just
and proper and the said compensation is rounded off as
`1,98,000/-;
iii. The Tribunal has awarded the compensation towards
future medical expenses in a sum of `5,000/- which is
just and proper;
iv. The Tribunal has awarded a sum of `14,000/- towards
loss of earning during laid up period. Having regard to
the period for which the claimant was treated as an
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inpatient, the laid up period is taken as three months
and compensation towards the same is reassessed as
(`7,000 X 3 ) = `21,000/-;
v. The Tribunal has awarded totally a sum of `15,000/-
towards loss of amenities, Conveyance, food and
nourishment and attendant charges. It is forthcoming
that the claimant was treated as an inpatient at
Panacea Hospital from 24.07.2012 to 27.07.2012 and
the surgery was performed on 25.07.2012. It is
forthcoming from the same that the MLC procedure was
done on 18.06.2012 and MRI was done on 26.06.2012.
Hence, it is clear that from the date of the accident i.e.,
18.06.2012 the claimant has taken treatment up to end
of June-2012. Hence, it is just and proper that the
compensation towards loss of amenities be awarded in
a sum of `20,000/- and compensation towards food and
nourishment, conveyance and attendant charges be
awarded in a sum of Rs.20,000/-.
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vi. The Tribunal has assessed the compensation towards
loss of future earning capacity in a sum of (`7000 X 12
X 16 x 8%) = `1,07,520/- which is just and proper.
28. Accordingly, the total compensation under various
heads is re-assessed as follows:
Sl.No. Heads Amount Amount
awarded by the awarded by this
Tribunal (`) Court (`)
1. Pain and suffering 30000.00 30000.00
2. Loss of income during 14000.00 21000.00
laid up period
3. Medical expenses 197957.00 198000.00
4. Loss of future earning 107520.00 107520.00
6 Loss of amenities, 15000.00 20000.00
conveyance, food and
nourishment,
attendant charges etc
7 Loss of amenities 00 20000.00
8 Future medical 5000.00 5000.00
expenses
Total 369477.00 401520.00
29. Hence, the appellant/claimant is entitled for an
enhancement of `32,043/- (`401520 - `369477) together
with interest at 6% p.a.
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30. In view of the aforementioned, the following:
ORDER
i) MFA No.2274/2015 is dismissed and MFA
No.5521/2015 is allowed in part;
ii) The judgment and award dated 10.12.2014 passed in
MVC No.1353/2013 on the file of the XII Additional
Small Causes Judge, Member, MACT, Bangalore is
modified to the extent stated herein. In all other
respects, the judgment and award of the Tribunal
remain unaltered;
iii) The appellants/claimants are entitled to an
enhancement of `32,043/- with interest at 6% per
annum from the date of petition till its realization, in
addition to the compensation awarded by the
Tribunal;
iv) The amount deposited by the Appellant in MFA
No.2274/2015 be transmitted to the Tribunal for
disbursement. The insurer shall deposit the balance
amount together with accrued interest within eight
weeks from the date of receipt of a copy of this
judgment;
vi) The Registry to draw the modified award accordingly;
vii) No costs.
Sd/-
JUDGE
