Karnataka High Court
Hanumanthappa @ Hanumanthegowda vs Vasantha Kumar T R on 28 February, 2024
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MFA No. 6412 of 2022
C/W MFA No. 6347 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO.6412 OF 2022 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.6347 OF 2022 (MV-I)
IN M.F.A. NO.6412 OF 2022
BETWEEN:
THE MANAGER,
TATA AIG GIC. LTD.,
5TH FLOOR, WEST ENTRANCE,
KHANIJA BHAVAN,
RACE COURSE ROAD,
BANGALORE - 560 001.
NOW REP. BY
M/S. TATA AIG GENERAL INSURANCE CO. LTD.,
Digitally signed by 2ND FLOOR, J.P. AND DEVI,
MAHALAKSHMI B M JAMBUKESHWAR ARCADE NO.69,
Location: HIGH MILLERS ROAD, BANGALORE - 52. ... APPELLANT
COURT OF
KARNATAKA
(BY SRI PRADEEP B., ADVOCATE)
AND:
1. HANUMANTHAPPA @ HANUMANTHEGOWDA
S/O. SIDDAPPA,
AGED 52 YEARS,
R/AT MALLENAHALLI VILLAGE,
LINGADAHALLI HOBLI,
TARIKERE TALUK,
CHIKKAMANGALORE DISTRICT.
NOW R/AT HANUMANTHAPURA,
2ND CROSS, TUMAKURU CITY.
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MFA No. 6412 of 2022
C/W MFA No. 6347 of 2022
2. VASANTHAKUMAR T.R.
S/O. RANGEGOWDA,
AGED ABOUT 32 YEARS,
R/O. THADEBENAHALLI VILLAGE,
UDDEBORANAHALLI POST,
CHIKKAMANGALORE DISTRICT - 577 168. ... RESPONDENTS
(BY SRI K. SHANTHARAJ, ADVOCATE FOR R-1;
V/O. DATED 17/01/2023 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 06.04.2022 PASSED IN MVC NO.1094/2020 ON THE FILE OF
THE PRL. SENIOR CIVIL JUDGE AND MACT-XI, TUMAKURU,
AWARDING COMPENSATION OF RS.30,46,951/- WITH INTEREST AT
6 PERCENT P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A. NO.6347 OF 2022
BETWEEN:
HANUMANTHAPPA @ HANUMANTHEGOWDA
S/O. SIDDAPPA,
AGED ABOUT 52 YEARS,
R/AT MALLENAHALLI VILLAGE,
LINGADAHALLI HOBLI,
TARIKERE TALUK,
NOW R/AT HANUMANTHAPURA,
2ND CROSS, TUMAKURU CITY - 572 101. ... APPELLANT
(BY SRI SHANTHARAJ K., ADVOCATE)
AND:
1. VASANTHA KUMAR T.R.
S/O. RANGEGOWDA,
AGED ABOUT 32 YEARS,
R/AT TADEBENAHALLI VILLAGE,
UDDEBORANAHALLI POST,
CHIKKAMAGALUR DISTRICT - 577168.
2. TATA AIG GEN. INS. CO. LTD.,
BY ITS MANAGER,
5TH FLOOR, WEST ENTRANCE,
KHANIJA BHAVAN,
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MFA No. 6412 of 2022
C/W MFA No. 6347 of 2022
RACE COURSE ROAD,
BENGALURU - 560 001. ... RESPONDENTS
(BY SRI B. PRADEEP, ADVOCATE FOR R-2;
V/O. DATED 13/09/2022 NOTICE TO R-1 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 06.04.2022 PASSED IN MVC NO.1094/2020 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., MACT-XI,
TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
FURTHER HEARING THIS DAY, K.S.HEMALEKHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
Though the appeals are listed for admission, with the
consent of learned counsel on both sides, the matters are heard
finally.
2. MFA No.6412/2022 is preferred by the insurance
company questioning its liability and quantum of compensation
awarded. MFA No.6347/2022 is preferred by the claimant
seeking enhancement of compensation.
3. The parties are referred to henceforth according to
their ranks before the Tribunal.
4. The appeals arise out of the impugned judgment
and award dated 06.04.2022 in MVC No.1094/2020 on the file
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of the Principal Senior Civil Judge and MACT-XI, Tumakuru
(hereinafter referred to as 'the Tribunal' for short), whereby,
the claim under Section 166 of the Motor Vehicles Act, 1988
was allowed in part, awarding compensation of Rs.30,46,951/-
with interest @ 6% p.a. from the date of petition till realization,
fastening the liability jointly and severally on the owner and the
insurance company.
5. The facts of the case are that, while the claimant
was proceeding as an inmate of a Swift Car bearing Reg.
No.KA-04-MJ-9516 driven by Vasanthkumar on 02.09.2020 at
about 3.45 p.m., respondent No.1 driver-cum-owner of the car
drove the car in a rash and negligent manner in high speed,
lost control over the vehicle and thereby, toppled on the road
and caused accident. Due to the impact of the accident, the
claimant sustained fracture of D-4 with paraplegia and other
injuries. The claimant contended that he was hale and healthy
prior to the accident, due to the accidental injuries, he had to
undergo surgery and implants fixation, causing disability to the
extent of 100% and sought compensation of Rs.50,00,000/-.
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6. Pursuant to the notice issued by the Tribunal,
insurance company appeared and filed written statement, inter
alia, contending that the claimant himself drove the vehicle in a
rash and negligent manner and to make wrongful gain has
subsequently planted respondent No.1 as the driver. It is the
case of the insurance company that the accident occurred due
to the self-negligence on the part of the claimant and sought to
absolve it.
7. The Trial Court on basis of the pleadings framed
issues for consideration. In order to substantiate his claim, the
claimant examined himself as P.W.1 and the doctor who
treated him as P.W.2 and got marked documents at Exs.P.1 to
P.24. On the other hand, the insurance company examined the
Senior Manager as R.W.1 and got marked documents at
Exs.R.1 and R.2.
8. On basis of the pleadings, oral and documentary
evidence, the Tribunal arrived at the conclusion that the
accident occurred due to the rash and negligent driving of the
vehicle by respondent No.1 and fastened the liability jointly and
severally on the owner-cum-driver and the insurance company.
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9. Heard Sri Pradeep B., learned counsel appearing for
the insurance company and Sri Shantharaj K., learned counsel
appearing for the claimant.
10. Learned counsel for the appellant-insurance
company vehemently would contend that there was self-
negligence on the part of the claimant, as the vehicle was
driven by the claimant himself and due to the impact of the
accident, the claimant had suffered injury and this has been
spoken to by the officer of the company, namely, R.W.1. Learned
counsel would contend that the driver-cum-owner was wrongly
implicated in the accident to get compensation from the
insurance company. He contends that if respondent No.1 was
driving the vehicle, he too should have sustained injuries, and
no materials are forthcoming either in the police documents or
in the medical documents to indicate that respondent No.1 had
sustained any injury and this would clearly show that the driver
was planted to gain unlawfully. Learned counsel on the
quantum of compensation would contend that the disability
arrived by the Tribunal is without considering the material on
record and would further contend that the award of
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compensation on various heads are much on the higher side,
which needs to be re-assessed by this Court.
11. Per contra, learned counsel appearing for the
claimant would justify the order insofar as fastening the liability
on the insurance company and the actionable negligence on the
part of the driver of the Maruthi Swift Car. Learned counsel
would contend that the material on record, more particularly,
Exs.P.1 to P.3 would clearly indicate that the vehicle was driven
by respondent No.1 and the accident occurred due to rash and
negligent driving by him. Insofar as compensation awarded by
the Tribunal, learned counsel would contend that the award of
compensation under the various heads is on the lower side,
though the Tribunal assessed the permanent physical disability
to the whole body of the claimant at 100% and seeks
enhancement of compensation.
12. Having heard learned counsel for the parties, the
point that arises for consideration is:
"Whether the judgment and award of the Tribunal
warrants any interference in the present facts and
circumstances of the case?"
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13. We have given anxious consideration to the
arguments advanced by the learned counsel for the parties and
perused the material on record, including the original records.
14. The involvement of the vehicle No.KA-04-MJ-9516
in the road accident and due to the impact of the accident, the
claimant having suffered injuries is not in dispute. It is
contended by the insurance company that the accident
occurred due to the self-negligence on the part of the claimant
and he was driving the vehicle and respondent No.1 was
planted as driver to seek compensation from the insurance
company. The material on record would indicate that the FIR
was registered based on the complaint given by one Manoj
Kumar, who is the son of the claimant on 03.09.2020, a day after
the occurrence of accident i.e., on 02.09.2020. The contention of
the insurance company is that there is delay in lodging the
complaint and as such, the occurrence of the accident and
respondent No.1 was planted as driver on deliberations for the
purpose of claim petition. It is settled proposition of law that
the delay in registration of First Information Report, cannot be
a ground for denial of compensation to the claimant, as held by
the Apex Court in the case of Ravi vs. Badrinarayan &
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others1, the Apex Court held that merely on the delay in
lodging the FIR, it cannot be held that the accident is not
genuine, but other relevant factors needs to be considered, we
should not forget that the delay to file complaint may be
attributed to many reasons. One such reasons could be, the
mental status of the family, when an accident is occurred as in
the present case, thus, the contention of the insurance
company regarding the delay in filing the FIR is unsustainable.
15. The charge-sheet-Ex.P.3 has been issued against
the driver of the vehicle, Ex.P.5 is the crime details form
including the spot mahazar, Ex.P.6 is the photograph of the
incident, Ex.P.7 is the seizure mahazar and Ex.P.9 is the IMV
Report, all these documents clearly indicate that the accident
occurred due to the actionable negligence on the part of
respondent No.1. On investigation, charge sheet was filed
against him for the offences punishable under Sections 279 and
338 of IPC. No evidence was adduced to rebut the charge
sheet. The Tribunal has rightly arrived at a conclusion that the
accident occurred due to the rash and negligent driving of the
(2011) 4 SCC 693
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driver of the vehicle, by respondent No.1. We are of the
considered view that the reasons accorded to arrive at such a
conclusion is justified.
16. On account of the injuries suffered, which is evident
from the wound certificate at Ex.P.4 indicating that the claimant
has suffered D-4 fracture with paraplegia, which is grievous in
nature, the whole body disability as spoken by doctor - P.W.2
is 100% permanent disability. The Tribunal arrived at a
conclusion that the claimant is entitled for compensation of
Rs.19,50,000/- under the head loss of future earning. While
determining the loss of future earning, the Tribunal has taken
the income of the claimant at Rs.10,000/- per month, the
claimant contended that he is earning around Rs.2,00,000/- per
annum and produced RTC extracts at Exs.P.11 to 13, in the
absence of any material, the Tribunal has taken the notional
income of the claimant at Rs.10,000/- per month. Even in the
absence of documents to show the actual income of the
claimant, the notional income as per the norms laid down by
the Legal Services Authority for settling the accident claim
petitions needs to be considered. Taking note of the fact that
the accident occurred in the year 2020, the notional income has
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to be considered at Rs.14,500/-. Taking the disability at 100%
as spoken to by the doctor and adding 25% towards future
prospects as per the dictum of the Apex Court in the case of
National Insurance Company Limited vs. Pranay Sethi &
others2 (Pranay Sethi), as the claimant was aged about 50
years, as is evident from the records, more particularly the
discharge summary at Ex.P.16 and applying the multiplier as
per the decision of the Apex Court in the case of Sarla Verma
and Ors. Vs. Delhi Transport Corporation and Anr3, the
loss of future income comes to 'Rs.28,27,500/-' (Rs.14,500 +
25% future prospects 3,625/-) (18,125 x 12 x 13).
17. The claimant has suffered grievous injuries i.e., D-4
fracture with paraplegia is a situation where the claimant
always requires an attendant and thus, the attendant charges
awarded by the Tribunal needs to be reassessed. The Apex
Court, in the case of Kajal vs. Jagdish Chand & others4, has
held that the multiplier system should be followed not only for
determining the compensation on account of loss of income but
also for determining the attendant charges. Thus, the
(2017) 16 SCC 680
2009 (6) SCC 121
(2020) 4 SCC 413
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assessment arrived at by the Tribunal to award compensation
under the head attendant charges needs to be interfered with.
Taking note of the fact that the claimant has suffered
permanent disability D-4 fracture with paraplegia he requires
an attendant for his daily activities, the wages of the attendant
to be taken at Rs.3,000/- and applying multiplier 13 as the age
of the claimant was 50 years, the attendant charges that would
be arrived is Rs.4,68,000/-. Considering the gravity of injury
suffered by the claimant, the award of compensation by the
Tribunal needs to be reassessed and the claimant is entitled for
compensation as stated below:
Sl. Heads Rs.
No.
1. Future earning 28,27,500
18,125 x 12 x 13
2. Medical expenses 2,76,951
(Against actual bills as
awarded by the Tribunal)
3. Pain and sufferings 2,00,000
4. Attendant charges 4,68,000
3000 x 13 x 12
5. Conveyance 50,000
6. Amenities 2,00,000
7. Food and nourishment 25,000
Total 40,47,451
(-) Awarded by the Tribunal 30,46,951
Enhancement 10,00,500
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18. The Tribunal has awarded 30,46,951/, deducting
the same from Rs.40,47,451/-, the claimant is entitled to
enhanced compensation of Rs.10,00,500/- and accordingly, the
point framed for consideration is answered in favour of the
claimant.
19. For the foregoing reasons, we pass the following:
ORDER
i. MFA No.6412/2022 by the insurance company is
hereby dismissed.
ii. MFA No.6347/2022 by the claimant is hereby
allowed-in-part.
iii. The claimant is entitled for total compensation of
Rs.40,47,451/- as against Rs.30,46,951/-, the
claimant is entitled to Rs.10,00,500/- as enhanced
compensation with interest at the rate of 6% p.a.
from the date of filing of the petition till the date of
realization.
iv. The insurance company shall deposit the enhanced
compensation amount with interest within a period
of four weeks from the date of receipt of this order.
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v. On such deposit, the claimant is entitled for release
of the amount on proper identification.
vi. The order of the Tribunal with regard to the release
of the amount and investment is maintained.
vii. The amount in deposit and Trial Court records shall
be transmitted to the Tribunal forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
MBM
