Karnataka High Court
The Branch Manager vs Threertha Kumar on 5 November, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2024:KHC:44478
MFA No. 5382 of 2018
C/W MFA No. 3143 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO.5382 OF 2018
C/W
MISCELLANEOUS FIRST APPEAL NO.3143 OF 2018(MV-I)
IN MFA NO.5382/2018:
BETWEEN:
1. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.
BRANCH OFFICE, CRESENT COURT
K. M. ROAD, CHIKKAMAGALURU CITY
...APPELLANT
(BY SRI O. MAHESH, ADVOCATE)
AND:
Digitally signed 1. THEERTHA KUMAR
by KIRAN AGE 27 YEAR
KUMAR R S/O. DEVEERA SETTY
Location: HIGH R/O. BIRAGOOR VILLAGE
COURT OF MALLANDUR POST
KARNATAKA CHIKKAMAGALURU TALUK-577 101
2. VISHWANATHA
AGE 43 YEAR
S/O. UDDA SETTY
R/O. MALLANDUR POST
CHIKKAMAGALURU TALUK-577 101
...RESPONDENTS
(BY SRI GIRISH B. BALADARE, ADVOCATE FOR R1;
SRI H. T. JAGADEESH, ADVOCATE FOR R-2)
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MFA No. 5382 of 2018
C/W MFA No. 3143 of 2018
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED31.08.2017
PASSED IN MVC NO.525/2013 ON THE FILE OF THE 2ND
ADDITIONAL SENIOR CIVIL JUDGE & MACT, JMFC,
CHIKKAMAGALURU, AWARDING COMPENSATION OF
RS.8,15,329/- WITH INTEREST AT 6% P.A. FROM THE DATE OF
PETITION TILL THE REALIZATION.
IN MFA NO.3143/2018:
BETWEEN:
1. THEERTHA KUMAR
AGED ABOUT 27 YEARS
S/O. DEVEERA SETTY
AGRICULTURIST AND BUSINESSMEN
R/O. BIRAGOOR VILLAGE
MALLANDUR POST
CHIKKAMAGALURU TALUK & DISTRICT-577 101
...APPELLANT
(BY SRI GIRISH B. BALADARE, ADVOCATE)
AND:
1. THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.
BRANCH OFFICE
CRESENT COURT
K. M. ROAD
CHIKKAMAGALURU CITY
2. VISHWANATHA
AGED ABOUT 43 YEARS
S/O. UDDA SETTY
AGRICULTURIST
R/O. MALLANDUR POST
CHIKKAMAGALURU TALUK-577 101
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MFA No. 5382 of 2018
C/W MFA No. 3143 of 2018
3. MARISHMA GOWDA R.
MAJOR
NO.770, 6TH CROSS
M. C. LAYOUT
VIJAYANAGARA,
BENGALURU - 560 040
...RESPONDENTS
(BY S. V. HEGDE MULKHAND, ADVOCATE FOR R-1;
R-2 IS SERVED & UNREPRESENTED;
VIDE ORDER DATED 05.11.2024, NOTICE TO
R-3 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 31.08.2017
PASSED IN MVC NO.525/2013 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MACT,
CHIKKAMAGALURU, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE N S SANJAY GOWDA
ORAL JUDGMENT
1. The insurer as well as the claimant are in appeal.
2. The claimant filed the claim petition contending that
while he was walking on the extreme side of the road on
08.05.2013, he was hit by a car insured by the insurer, as
a result of which he sustained grievous injuries and was
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immediately taken to M.G.Hospital, Chikkamagalur and
from there, he was shifted to NIMHANS Hospital and
thereafter to Hosmat Hospital, Bengaluru and thus, he had
incurred a huge expenditure for getting himself treated
and therefore, he was entitled for compensation.
3. The owner of the car which hit the claimant entered
appearance through a counsel and filed objections. In the
objections, the owner-cum-driver of the car admitted that
he was driving the car at a moderate speed on that
particular day and the claimant, without seeing as to
whether the road was clear or not, suddenly tried to cross
the road as a result of which, he was forced to apply
sudden brake, due to which the claimant sustained
injuries, but not in the manner claimed in the claim
petition.
4. It is also admitted by owner of the car that he took
the claimant to M.G.Hospital, Chikkamagalaur spending his
own money. By virtue of this objection, it may be easily
gathered that the occurrence of the accident and the
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involvement of the car insured by the insurer were
admitted facts.
5. However, Sri O.Mahesh, learned counsel appearing
for the insurer took great pains to establish that there was
a clear case of collusion between the owner of the car and
the claimant. He sought to highlight the fact that in Ex.P7
- wound certificate, the involvement of the four wheeler
was not mentioned and he also highlighted the fact that in
the hospital records pertaining to NIMHANS, it had merely
been stated that the claimant was brought with the alleged
history of road traffic accident when he was hit by a four
wheeler while crossing the road. He submitted that since
the vehicle number was not mentioned, it cannot be
assumed that the vehicle which the insurer herein had
insured was involved. He also sought to argue that there
was discrepancy in the claims, insofar as it relates to the
claim by the claimant that he was walking on the extreme
left side of the road but the noting in the file stated that
the accident occurred when the claimant was crossing the
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road. On the basis of these discrepancies, learned counsel
strongly contended that the accident itself will have to be
disbelieved and, at any rate, it cannot be held that the
accident occurred as a result of the collision between the
car that the insurer had insured and the claimant.
6. In my view, these arguments cannot be accepted at
all, since, according to the claimant, the accident occurred
on 08.05.2013 and on the same day, Ex.P7 - wound
certificate was issued by the Government Hospital,
Chikkamagalur, which indicates that the claimant was
brought to the hospital on 08.05.2013 and examined at
about 1.50 p.m., and it was found that he had a head
injury apart from other wounds. The wound certificate also
indicates that he was referred to NIMHANS. In my view, in
light of the fact that the wound certificate clearly states
that the claimant was brought with the history of a road
traffic accident and that too with head injuries, the
occurrence of the accident and the injuries suffered by the
claimant cannot be in dispute.
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7. Learned counsel also sought to contend that though
the accident occurred on 08.05.2013, the FIR was
registered only five days thereafter and that this also gave
credence to the theory of the insurer that a case of motor
vehicle accident was being set up for securing
compensation.
8. It is to be stated here that if the claimant had
suffered head injuries and was taken to the local hospital
from where he was referred to NIMHANS hospital, it is
unreasonable to expect the parents of the claimant or the
claimant himself to rush to the police station instead of
getting the claimant treated. It is also to be noticed here
that if an injured is brought to the Government Hospital
pursuant to the accident, it is expected of the Government
Hospital to inform the police about the occurrence of the
road traffic accident and if for any reason, they have not
communicated the same to the police or if the relevant
records for having communicated were not produced, that
would not lead to an inference that no accident occurred.
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In fact, since the record of the hospital records that the
claimant was brought to the hospital with the history of a
road traffic accident, it was the duty of the hospital to
inform the police. This in fact grants an exemption to the
claimants to lodge a complaint before the police. I am
therefore of the view that the entire argument of the
insurer that no accident occurred in the manner stated in
the claim petition cannot be accepted.
9. It may also be relevant to reiterate here that when
the owner of the car himself admitted the accident and
also went on to state that he took the claimant to the
hospital by spending his own money to get the claimant
treated, the argument put forth by the insurer that no
accident occurred cannot be appreciated at all. If the
insured himself states that the accident had occurred, the
insurer cannot be permitted to contend that there was no
accident at all.
10. If it was the case of the insurer that there was
collusion between the owner of the car and the claimant,
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said aspect had to be pleaded and before the Tribunal
proved and merely because the insurer is a public sector
undertaking, the mere assertion of the insurer that there
was actual collusion cannot lead to an automatic inference
that there was collusion. The insurer can have no special
rules of evidence crafted for its own benefit. It is obliged
to prove its assertion in the manner known to law. I am
therefore of the view that the contention of the insurer
that it has established inference that no accident occurred,
is liable to be stated only to be rejected.
11. As far as the quantum is concerned, the insurer
contended that the amounts awarded were exorbitant,
while the claimant contended they were on the lower side.
12. The doctor who was examined as PW.2 has stated
that the claimant had suffered disability to the extent of
20% to the whole body. In the disability certificate issued
by Hosmat Hospital, it is stated that the claimant has
suffered loss of sensation on left side upper jaw due to a
nerve injury and has difficulty in chewing, and also
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malocclusion. As a result, the total disability for whole
body was assessed at 20%.
13. Learned counsel for the insurer, however, contended
that the doctor did indicate that the claimant can carry out
agricultural activities and, therefore, there can be no
disability at all.
14. If the claimant has suffered loss of sensation on the
left side of his upper jaw due to a nerve injury and has
difficulty in chewing, definitely there would be disability to
the whole body. Merely because it was suggested that the
claimant can carry out agricultural activities, that would
not mean that the claimant had not suffered whole body
disability. Consequently, the argument of the insurer in
this regard is rejected.
15. Since the doctor has assessed the whole body
disability of the claimant at 20%, it would not be justified
on the part of the Tribunal to assess the disability at 10%.
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Thus, it is held that the claimant had suffered 20%
disability to the whole body.
16. The Tribunal has assessed the notional income of the
claimant at Rs.5,000/- since there was no actual proof of
income. In such circumstances, it would be appropriate to
adopt the notional income determined by the Karnataka
State Legal Services Authority which, for the accident of
the year 2013, would be Rs.8,000/-.
17. Since the disability is now assessed at 20%, 40%
future prospects are required to be added to the notional
income, which makes the income of the claimant to be
Rs.11,200/-. As a consequence, the claimant would be
entitled to Rs.4,83,840/- (Rs.11,200/- X 12 X 18 X20%)
towards loss of earning capacity.
18. The Tribunal has awarded a sum of Rs.5,52,329/-
towards medical expenses. However, learned counsel for
the insurer contended that the bills of the hospital could
not be accepted as proof of payment. In my view, the bills
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issued by a corporate hospital which contain the seal of
the hospital for having been paid the expenses would have
to be accepted and, therefore, the argument of the insurer
is rejected. The award of Rs.5,52,329/- towards medical
expenses is accordingly affirmed.
19. The Tribunal has awarded Rs.75,000/- towards pain
and sufferings and Rs.50,000/- towards loss of amenities.
In my view, since the claimant was hospitalized on three
occasions in three different hospitals and also had
undergone surgery, it would be appropriate to award
Rs.1,00,000/- towards pain and sufferings, and since the
claimant had suffered 20% disability as well as loss of
sensation on left side upper jaw due to nerve injury, it
would be appropriate to award Rs.1,00,000/- towards loss
of amenities in life.
20. In my view, since the claimant was in the ICU for 13
days and was required to shifted from Chikkamagalur to
Bengaluru, it would be appropriate to treat the laid up
period as four months and award a sum of Rs.32,000/-
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(Rs.8,000 X 4 months) towards loss of income during the
laid up period, and it would also be appropriate to award a
sum of Rs.40,000/- as against Rs.20,000/- towards
conveyance, attendant charges, food and nourishment.
21. Consequently, the award of the Tribunal is modified
and the following sums are awarded as compensation:
As As
awarded awarded
Sl. Compensation
by the by this
No. under different
Tribunal Court
Heads
(Rs.) (Rs.)
1. Pain and sufferings 75,000 1,00,000
2. Loss of future earnings 1,08,000 4,83,840
3. Medical expenses 5,52,329 5,52,329
Loss of income during 10,000 32,000
5.
the laid up period
Conveyance, 20,000 40,000
6. nourishment and
nutritious food
Loss of amenities in 50,000 1,00,000
7.
life
Total 8,15,329 13,08,169
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22. Accordingly, the claimant is held entitled for
compensation of Rs.13,08,169/- as against
Rs.8,15,329/- along with interest at the rate of 6% p.a.
from the date of petition till its realisation.
23. The Insurance Company is directed to deposit the
amount of compensation awarded within two months from
the date of receipt of a certified copy of this judgment.
24. The amount in deposit shall be transferred to the
Tribunal.
25. As regards apportionment of compensation, the
award of the Tribunal remains undisturbed.
26. Accordingly, the appeal of the insurer is dismissed
and the appeal of the claimant is allowed in part.
Sd/-
(N S SANJAY GOWDA)
JUDGE
PKS
