Karnataka High Court
Oriental Insurance Co.Ltd vs Allam S/O Ikrarahmed Ammanagi on 28 June, 2024
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NC: 2024:KHC-D:8850
MFA No. 101599 of 2014
C/W MFA No. 102095 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 101599 OF 2014 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 102095 OF 2014
IN MFA NO. 101599/2014
BETWEEN:
SHRI ALLAM S/O. IKRARAHMED AMMANAGI
AGE: 23 YEARS OCC: NIL
R/O:P.W.D QUARTERS, BELGAUM,
...APPELLANT
(BY SMT. SHAILA BELLIKATTI, ADVOCATE)
Digitally
signed by AND:
GIRIJA A
BYAHATTI
Location:
HIGH COURT
1. SURESH S/O. LAXMAN MARATHE
OF
KARNATAKA
AGE: MAJOR
OCC: MEDICAL PRACTITIONER,
R/O: SOUBHAGYA NURSING HOME,
OPP: COURT GOKAK, TQ: GOKAK, DIST: BELGAUM.
2. THE ORIENTAL INSURANCE COMPANY LTD.,
THROUGH ITS DIVISIONAL MANAGER,
DR. B.R. AMBEDKAR ROAD, BELGAUM.
3. MOHAMMED ARIF S/O. MOHDSHAFI BYAL
AGE: MAJOR, OCC: BUSINESS
R/O: HOSPET GALLI, CHIKODI, DIST: BELGAUM.
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MFA No. 101599 of 2014
C/W MFA No. 102095 of 2014
4. THE IFFCO-TOKIYO GENERAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
OPP. SANMAN HOTEL, COLLEGE ROAD, BELGAUM.
...RESPONDENTS
(BY SRI. M.K. SOUDAGAR, ADVOCATE FOR R2;
SMT. BHARATI S. HANAGANDI, ADVOCATE FOR R3;
SRI. S.K. KAYAKAMATH, ADVOCATE FOR R4;
NOTICE TO R1 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL FILED
U/SEC.173(1) OF MV ACT 1988, PRAYING TO ALLOW THE
APPEAL MODIFY THE JUDGMENT AND AWARD
DATED:20.05.2014, PASSED IN MVC.NO.1883/2013 ON THE
FILE OF THE FAST TRACK COURT II AND ADDL. MACT
BELGAUM UNDER ALL PERMISSIBLE HEADS.
IN MFA NO. 102095/2014
BETWEEN:
THE ORIENTAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
DR. B.R. AMBEDKAR ROAD, BELGAUM,
REPRESENTED BY BALAKRISHNA K. NAYAK,
DEPUTY MANAGER, ORIENTAL INSURANCE CO. LTD.,
REGIONAL OFFICE, SUMANGALA COMPLEX,
OPP: HDMC, LAMINGTON ROAD, HUBLI.
...APPELLANT
(BY SRI. M.K. SOUDAGAR, ADVOCATE)
AND:
1. SHRI ALLAM S/O. IKRARAHMED AMMANAGI
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MFA No. 101599 of 2014
C/W MFA No. 102095 of 2014
AGE: 24 YEARS OCC: NIL
R/O: PWD QUARTERS, BELGAUM.
2. SRI. SURESH S/O. LAXMAN MARATHE
AGE: MAJOR, OCC: MEDICAL PRACTIONER,
R/O: SOUBHAGYA NURSING HOME
OPP: COURT, GOKAK, TQ: GOKAK, DIST: BELGAUM.
3. MOHAMMAS ARIF S/O. MOHDSHAFI BYAL
AGE: MAJOR, OCC: BUSINESS,
R/O: HOSPETH GALLI, CHIKKODI,
TQ: CHIKKODI DIST: BELGAUM.
4. THE IFFCO TOKIO GENERAL INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
OPP: SANMAN HOTEL ROAD,
COLLEGE ROAD, BELGAUM.
...RESPONDENTS
(BY SMT. SHAILA BELLIKATTI, ADVOCATE FOR R1;
NOTICE TO R2 SERVED;
SMT. BHARATI S. HANAGANDI, ADVOCATE FOR R3;
SRI. S.K. KAYAKAMATH, ADVOCATE FOR R4)
THIS MISCELLANEOUS FIRST APPEAL FILED
U/SEC.173(1) OF MV ACT 1988, PRAYING TO, CALL FOR THE
RECORDS, HEAR THE PARTIES AND ASSET ASIDE THE
JUDGMENT AND AWARD DATED:20.05.2014, PASSED IN
MVC.NO.1883/2013 ON THE FILE OF THE FAST TRACK COURT
II AND ADDL. MACT BELGAUM AND WITH COSTS AND
INTEREST IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 101599 of 2014
C/W MFA No. 102095 of 2014
JUDGMENT
In these two appeals, the judgment and award dated
20.05.2014 passed in M.V.C.No.188/2013 passed by the
Presiding Officer, FTC-II and Member, Addl. M.A.C.T.,
Belagavi (for short, 'Tribunal'), is challenged.
2. M.F.A.No.101599/2014 is filed by the petitioner
and M.F.A.No.102095/2014 is filed by the insurance
company. For the sake of convenience, the rank of the
parties will be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, on 07.11.2010 at
6.15 p.m., at RTO Circle, Belagavi, while the petitioner
was riding the motorcycle bearing No.23/Y-7183, a Baleno
car bearing No.23/M-4549 hit against the motorcycle. Due
to which, the petitioner sustained injuries. After taking
treatment in the hospital, the petitioner approached the
Tribunal to claim compensation of Rs.12,00,000/-. The
claim was opposed by the respondent-insurance company.
The Tribunal after taking evidence and hearing the parties,
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by the impugned judgment, awarded the compensation of
Rs.3,16,000/- with interest at 8% p.a. excluding the
interest on the future medical expenses of Rs.20,000/-.
Pleading inadequacy and seeking enhancement of
compensation, the petitioner in M.F.A.No.101599/2014
whereas the insurance company has filed the appeal in
M.F.A.No.102095/2014 seeking reduction of the
compensation and rate of interest awarded by the Tribunal
on various grounds.
4. Heard the arguments of Smt. Shaila Bellikatti,
learned counsel for the petitioner and Sri M.K. Soudagar,
learned counsel for respondent-insurance company.
5. It is the contention of the insurance company
that the petitioner is a student, aged 17 years and he has
no earning. Hence, question of assessing loss of future
income does not arise. Though the accident is of the year
2010, the Tribunal has awarded compensation under pain
and suffering and loss of amenities exorbitantly. The
petitioner being a student has no source of earning for
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assessing loss of income during treatment, incidental
expenses as no rational. The petitioner has already
undergone surgery for removal of implants. Hence, there
no question of paying future medical expenses. No banks
would have offered interest at 8% p.a. on fixed deposits.
The Tribunal has not assigned any reasons to award
interest at 8%. Hence, he sought for modification and
reduction of the same.
6. Per contra, learned counsel for petitioner
contended that though the petitioner is aged 17 years, he
has suffered comminuted fracture of right tibia and fibula.
He has suffered permanent disability as deposed by PW-2
the doctor. Having regard to the limb disability, the
petitioner has suffered permanent disability to the extent
of 20% and future loss of income has to be calculated
accordingly. Learned counsel though fair to submit that
the compensation awarded under pain and suffering and
loss of amenities and discomfort is little high for the
reason that the Tribunal has not awarded any
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compensation under loss of future income. Learned
counsel submits that the compensation so assessed is
inadequate and compensation under loss of income has to
be awarded. As regarding, the rate of interest is
concerned, for the year 2010 banks rate of interest is
more than 12% but the Tribunal has awarded only 8%
interest and sought for awarding interest at the rate at
12% instead of 8%.
7. I gave anxious consideration to the arguments
advanced by the learned counsel for both the parties and
perused the material on record.
8. The material on record suggests that there was
an accident between the motorcycle of the petitioner and
Baleno car in question at RTO circle, Belagavi in which the
petitioner has suffered fracture of right tibia and fibula. He
was under hospitalization, treated by the doctor and
medical evidence also placed before the Tribunal in the
form of PW-2 Dr. A.B. Patil.
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9. On perusal of the impugned judgment, it is
pertinent to note that the Tribunal though discussed about
the medical evidence, did not awarded any compensation
under loss of income as the petitioner being aged 17
years. This finding of the Tribunal is not acceptable for the
reason that 17 years old boy would not have earning. For
this reason, the Hon'ble Apex Court in Sarala Verma and
others Vs. Delhi Transport Corporation Limited and
another1 has laid down the application of multiplier of 18
to the age of the victim who is aged above 15 years.
Hence, the disability aspect of the petitioner has to be
taken care of. On perusal of the evidence of the doctor-
PW-2, the petitioner has suffered 35% disability to the
right lower limb. Having regard to the age of the
petitioner and also he being a student, it is proper to
assess the limb disability at 12%. The petitioner is a
student and notional income has to be taken for the year
2010. For the victims of the accidents in the year 2010,
the notional income being assessed at Rs.5,500/- p.m.
(2009) 6 SCC 121
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whereas the Tribunal has assessed Rs.6,000/-. Hence, the
notional income of the petitioner is assessed at Rs.5,500/-
p.m.
10. In a case of this nature, the petitioner is
entitled for a just compensation. The accident shall not be
a windfall for him or a peanut. Hence, the petitioner is
entitled to Rs.40,000/- towards pain and suffering,
Rs.40,000/- towards loss of amenities and discomfort.
The petitioner was inpatient for 15 days. Hence, the
attendant charges is assessed at Rs.2,750/-, traveling
expenses at Rs.5,000/- is considered and towards food
and nourishment a sum of Rs.10,000/- is considered.
Though the medical bills amounting Rs.61,736/-, the
Tribunal has observed that there are some repeated bills
to an extent of Rs.14,510/-. Hence, the medical bills of
Rs.48,000/- assessed by the Tribunal is retained as it is.
11. Insofar as loss of income during laid up period
is concerned, petitioner has sustained fracture of tibia and
fibula. Hence, loss of income of three months' at the rate
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of Rs.5,500/- and it comes to Rs.16,500/-. As regarding
loss of earning capacity is concerned, as observed supra,
the notional income is taken at Rs.5,500/- p.m., applicable
multiplier is 18 and whole body disability is assessed at
12% and future loss of income will comes to calculated as
under: Rs.5,500 x 12 x 18 x 12% = 1,42,560/-. There is
no evidence on record to consider award of compensation
under different heads.
12. Thus, the petitioner is entitled to the
compensation under the following heads:
1. Pain and suffering Rs.40,000/-
Loss of amenities and Rs.40,000/-
2.
discomfort
3. Attendant charges Rs.2,750/-
4. Traveling expenses Rs.5,000/-
5. Food and nourishment Rs.10,000/-
6. Medical expenses Rs.48,000/-
Loss of income during laid Rs.16,500/-
7.
up period
8. Loss of earning capacity Rs.1,42,560/-
Total Rs.3,04,810/-
Less: compensation awarded Rs.3,16,000/-
by the Tribunal
Difference in compensation Rs.11,190/-
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Accordingly, the petitioner is entitled to the total
compensation of Rs.3,04,810/-.
13. As regards the rate of interest is concerned, the
Tribunal has not assigned any reason why it has awarded
8% interest. No doubt that no banks would have offered
interest at the rate of 8% p.a. in the year 2010. Keeping
these aspects into consideration, the Division Bench of this
Court in the case of Joyeeta Bose and others Vs.
Venkateshan V. and others2 at para 51 and 52 has held
as follows:
"51. It is seriously contended by the learned counsel for the
respondents-Insurance Companies that award of interest @
8% p.a. is on the higher side and we accept the said
contention. Section 34 of CPC reads as under:
"34. Interest.--(1) Where and in so far as a decree is for
the payment of money, the Court may, in the decree,
order interest at such rate as the Court deems reasonable
to be paid on the principal sum adjudged, from the date
of the suit to the date of decree, in addition to any
interest adjudged on such principal sum for any period
prior to the institution of the suit, with further interest at
such rate not exceeding six per cent per annum as the
Court deems reasonable on such principal sum, from the
MFA No.5896/2018 c/w MFA Nos.4444/2018 & 4659/2018
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date of the decree to the date of payment, or to such
earlier date as the Court thinks fit:
Provided that where the liability in relation to the sum
so adjudged had arisen out of a commercial
transaction, the rate of such further interest may
exceed six per cent per annum, but shall not exceed
the contractual rate of interest or where there is no
contractual rate, the rate at which moneys are lent or
advanced by nationalised banks in relation to
commercial transactions.
(2) Where such a decree is silent with respect to the
payment of further interest on such principal sum from
the date of the decree to the date of payment or other
earlier date, the Court shall be deemed to have
refused such interest, and a separate suit therefore
shall not lie."
52. Thus, under Section 34 of CPC being squarely applicable
to the interest awarded by the tribunal and Section 34
empowering the tribunal to award pendente lite interest and
discretion being vested with the Court/tribunal to award
interest from the date of suit or petition is to the maximum
extent of 6% p.a. or in other words, not exceeding 6% p.a.,
the contention raised by the learned Advocates appearing for
the Insurance Company deserves to be accepted and
accordingly, it is accepted. Hence, we answer point No. 4
partly in the affirmative."
14. The facts of the said case and the facts of the
present case are identical in nature. Unless the Tribunal
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gives a cogent reason for awarding interest more than 6%
p.a., the Courts are guided under Section 34 of Code of
Civil Procedure, 1908. Hence, the award of interest at 8%
p.a. is on the higher side and it has to be reduced to 6%
p.a.
15. In view of the above discussion, both the
appeals deserve merit consideration and in the result,
following:
ORDER
(i) Both the appeals are allowed in part.
(ii) The judgment and award dated 20.05.2014
passed in M.V.C.No.188/2013 passed by the
Presiding Officer, FTC-II and Member, Addl.
M.A.C.T., Belagavi, is modified.
(iii) The petitioner would be entitled to the total
compensation of Rs.3,04,810/- with interest at
6% p.a. from the date of petition till deposit.
(iv) Insurance company is directed to deposit the
compensation amount with interest at 6% p.a.
within eight weeks from the date of receipt of
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certified copy of this judgment minus the
amount already deposited.
(v) Amount in deposit in M.F.A.No.102095/2014
shall be transmitted to the Tribunal forthwith.
(vi) Rest of the order of the Tribunal is kept intact.
Sd/-
JUDGE
NAA
