Karnataka High Court
The Manager vs Kumari Divya D/O Mariswamy Nagur on 3 July, 2024
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NC: 2024:KHC-D:9072
MFA No. 100697 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 3RD DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO.100697 OF 2022 (MV-I)
BETWEEN:
THE MANAGER,
SHRIRAM GENERAL INSURANCE COM. LTD.,
NO. E-8 EPIP, SITAPUR INDUSTRIAL AREA,
JAIPUR, RAJASTAN, REPTED. BY ITS
AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI. NAGARAJ C. KOLLOORI, ADVOCATE)
AND:
1. KUMARI DIVYA D/O. MARISWAMY NAGUR,
AGE: 26 YEARS, OCC: LAB ANALYST,
R/O. AMBEDKAR NAGAR, KUSHTAGI,
TQ: KUSHTAGI DIST: KOPPAL-583277.
2. MAILARAPPA S/O. UDANAPPA WALIKAR,
AGE: 32 YEARS, OCC: DRIVER,
Digitally R/O. KATAPUR, TQ: KUSHTAGI,
signed by DIST: KOPPAL-583277.
MANJANNA E
Location: 3. CHANDRAKANT S/O. HULAGAPPA MUDHOL,
HIGH COURT
OF AGE: 34 YEARS, OCC: BUSINESS,
KARNATAKA WARD NO. 3, ANADANESHWAR NAGAR,
KUSHTAGI, TQ: KUSHTAGI,
DIST: KOPPAL-583277.
...RESPONDENTS
(BY SRI D. V. PATTAR, ADV. FOR R1;
NOTICE TO R2 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988 PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
14-09-2021 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE
AND M.A.C.T KUSHTAGI IN MVC NO.399/2018 AND ETC.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:9072
MFA No. 100697 of 2022
JUDGMENT
This appeal is filed by the Insurer (respondent No.3
before the Tribunal) challenging the judgment and award
dated 14.09.2021 passed in MVC.No.399/2018 on the file of
Senior Civil Judge and M.A.C.T., Kushtagi, on liability and
quantum, whereby the Tribunal awarded compensation of
Rs.9,04,143/- to the claimant.
2. For the sake of convenience, the parties are
referred to as they are referred to in the claim petition
before the Tribunal.
The claim petition was filed seeking compensation of
Rs.26,00,000/- on account of injuries suffered by the
claimant in the road traffic accident that took place on
04.05.2017. The claimant was travelling in a Tempo Trax
bearing registration No.KA.27/5305. The driver of Tempo
Trax drove the same in a rash and negligent manner, when
he was near Mangaluru village on Bevooru, lost his control
over the vehicle and thus it was turned turtle and caused the
accident. Due to the said impact, the claimant sustained
NC: 2024:KHC-D:9072
injuries. Immediately, the claimant was shifted to Suchirayu
Hospital, Hubballi, where she operated and her joint
replaced. Hence, the first informant, lodged the complaint,
which leads to FIR and investigation.
3. The Tribunal considering documentary evidence
available on record as Exs.P.1 to P.17 and considering the
oral evidence of PWs.1 and 2 has awarded compensation of
Rs.9,04,143/- to the claimant.
4. Learned counsel for the insurance company
submits that the accident in question occurred on
04.05.2017 and the first informant lodged the complaint on
09.05.2017. Hence, there is delay of five days in lodging the
complaint and the delay has not been satisfactorily explained
by the first informant.
5. Further the Tempo Trax vehicle do not possess
any permit to ply the vehicle on the road and the owner of
the vehicle do not possessed fitness certificate for
transportation of the vehicle. Learned counsel also
contended that, the Tribunal has awarded a compensation
NC: 2024:KHC-D:9072
under the head of loss of future income considering future
prospects, which does not permissible as the claimant
sustained only one injury i.e., fracture of humerus. Further,
the Tribunal wrongly considered the disability at 20%, in
fact, the doctor has issued disability from 15% to 20%.
Therefore, the Tribunal considered the disability at 20%,
which is high and exorbitant, hence, he prayed to allow the
appeal.
6. Learned counsel for the claimant submits that,
the Tribunal considering oral and documentary evidence on
record has awarded fair and reasonable compensation.
Hence, no interference is called for in that regard.
7. In view of the submission made by the learned
counsel for appellant and respondents, the points that would
arise for Court's consideration in this appeal is as under:
i. Whether the appellant prove that the Tempo Trax
vehicle do not possess valid permit and fitness
certificate, hence it is not liable to pay
compensation?
ii. Whether the quantum of compensation awarded
by the Tribunal is just and reasonable and does it
call for any interference for enhancement?
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8. As per the contention of the appellant, the
accident occurred on 04.05.2017 and the complaint was
lodged on 19.05.2017, hence there is delay of five days in
lodging the complaint. From perusal of the material available
on record soon after the accident, the claimant was admitted
to the Hospital and thereafter the claimant went to home and
then she lodged the complaint. Hence, the delay has been
caused and it has been properly explained by the claimant.
Mere delay in filing the complaint, does not disprove the case
of the claimant. Further, the appellant-Insurance Company
has taken contention that, there was no permit and fitness
certificate to the Tempo Trax to ply the vehicle on the road.
9. Insofar as the contention of the appellant that the
driver of the Tempo Trax was not possessing valid and
effective driving licence, learned counsel for the appellant
submits that, the driver of the said vehicle was possessed
valid and effective driving licence as on the date of accident.
10. Insofar as permit and fitness certificate, the
Insurance Company has not led any evidence and no
documents were produced in that regard, contending that
NC: 2024:KHC-D:9072
the Tempo Trax was not possessing valid permit and fitness
certificate, hence, there are no merits in the contention of
insurer.
11. After hearing learned counsel appearing for the
parties and after perusing the judgment and award of the
Tribunal, I am of the view that, the compensation awarded
by the Tribunal is not just and reasonable, it is on the higher
side and it requires to be reduced.
12. As per Ex.P.7-Wound Certificate, the claimant
sustained fracture of humerus. As per the opinion of the
doctor, the said injury is grievous in nature. The injury
sustained and the treatment taken by the claimant is also
supported by the oral evidence of the claimant and the
doctor who were examined as PWs.1 & 2.
13. In this case, the Tribunal has observed that the
claimant sustained a grievous injury. Hence, the claimant is
entitled to an amount of Rs.40,000/- for grievous injury
and the head of Pain and suffering.
NC: 2024:KHC-D:9072
14. The Tribunal has awarded a sum of
Rs.1,48,521/- under the head medical expenses, also
awarded a sum of Rs.1,25,102/- towards bills of hospital,
which are reasonable amount and no interference in that
regard is called for by this Court.
15. The Tribunal awarded sum of Rs.35,000/-
towards amenities, which is high and exorbitant, it is reduced
to Rs.30,000/-.
16. Tribunal has not awarded any compensation
towards food, nourishment, conveyance and attendant
charges, hence an additional sum of Rs.30,000/- is
awarded under this head.
17. Towards loss of future income, the tribunal
awarded a sum of Rs.5,44,320/-, considering the income of
the claimant at Rs.9,000/- The accident is of the year 2017,
as per the circular issued by the Karnataka Legal Services
Authority, for the accident of the year 2017, the appropriate
notional income would be Rs.10,250/-. If income of the
claimant is considered as Rs.10,250/-, then the
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compensation under the head of loss of future income would
be Rs.3,32,100/- (Rs.10,250/- X 12 X 18 X 15/100).
18. Towards loss of income during laid up period, the
Tribunal has awarded Rs.1,200/-, which is not reasonable
one. The nature of injury suggested that the claimant must
have rest and treatment for a period of three months and
therefore a sum of Rs.30,750/- (Rs.10,250/- X 3) is
awarded under this head.
19. Thus, the claimant is entitled to compensation on
the following heads.
Sl. Compensation awarded by
Description
No. Tribunal This Court
1 Pain and suffering 25,000/- 40,000/-
2 Towards fracture 25,000/- --
3 Loss of earning capacity 5,44.320/- 3,32,100/-
4 Loss of amenities 35,000/- 30,000/-
5 Loss of income during laid
up period for three months 1,200/- 30,750/-
6 Food, nourishment,
conveyance and attendant
charges Not awarded 30,000/-
7 Medical expenses 1,48,521/- 1,48,521/-
8 Hospital Bills 1,25,102/- 1,25,102/-
Total 9,04,143/- 7,36,473/-
Compensation Awarded by the
Tribunal 9,04,143/-
Reduced by this Court (-)1,67,670/-
Accordingly I pass the following:
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ORDER
i. The appeal filed by the Insurance Company is
allowed in part.
ii. The judgment and award dated14.09.2021
passed in MVC.No.399/2018 on the file of
Senior Civil Judge & MACT at Kushtagi is
hereby modified to the extent stated herein
above.
iii. The claimant is entitled for Rs.7,36,473/- as
against Rs.9,04,143/- awarded by the
Tribunal. Hence Rs.1,67,600/- is reduced
from total compensation of Rs.9,04,143/-.
iv. The appellant-Insurance Company is directed
to pay entire compensation together with
interest within a period of four weeks from
the date receipt of copy of this judgment.
v. Draw modified award accordingly.
vi. Registry is directed to transmit the copy of
the judgment to the concerned Tribunal.
vii. The amount in deposit, if any, shall be
transmitted to the Concerned Tribunal.
No order as to costs.
Sd/-
JUDGE
