Karnataka High Court
The Manager vs Shivakumar on 13 November, 2024
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MFA No. 5887 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 5887 OF 2016 (MV-I)
SHRIRAM GENERAL
INSURANCE COMPANY LIMITED.,
NO.5, 2ND FLOOR, MONARCH CHAMBERS,
INFANTRY ROAD,
BANGALORE - 560 001.
BY
SHRIRAM GENERAL INSURANCE CO. LTD.,
5/4, 3RD CROSS, S.V.ARCADE,
BELAKANAHALLI MAIN ROAD,
OPP. BANNERAGHATTA MAIN ROAD,
II M.B. POST, BANGALORE - 560 076.
BY ITS MANAGER
... APPELLANT
(BY SRI. O. MAHESH, ADVOCATE)
AND
Digitally signed by
CHANDRASHEKAR
LAXMAN
1. SHIVAKUMAR S/O. NYANAPPA
KATTIMANI
Location: HIGH AGE: 32 YEARS,
COURT OF
KARNATAKA R/O: ABBENAHALLI VILLAGE,
MADIVALA POST, MALUR TALUK,
KOLAR DISTRICT - 563 101.
2. SHASHIKUMAR, S/O. SIDDALINGAPPA
AGE: 32 YEARS,
R/O: ABBENAHALLI VILLAGE,
MADIVALA POST, MALUR TALUK,
KOLAR DISTRICT - 563 101.
...RESPONDENTS
(BY SRI. N. GOPALKSRISHNA, ADVOCATE FOR R1;
R2 SERVED AND UNREPRESENTED)
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MFA No. 5887 of 2016
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.06.2016
PASSED IN MVC NO.7806/2012 ON THE FILE OF THE COURT
OF SMALL CAUSES AND MOTOR ACCIDENT CLAIMS TRIBUNAL,
BENGALURU, AWARDING COMPENSATION OF RS.6,87,200/-
WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL
REALISATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.08.2024 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THIS COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CAV J U D G M E N T
(PER: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA)
In this appeal, the Insurance Company has
challenged the judgment and award dated 21.06.2016
passed in MVC.No.7806/2012 by the X Addl. Judge, Court
of Small Causes (SCCH-16) Bangalore (for short,
'Tribunal').
2. The rank of the parties shall be referred to as
per their status before the Tribunal.
3. Brief facts of the case are, on 06.09.2012 at
about 8.30 a.m. near Vasu factory on Abbenahalli -
Bhavanahalli road, Malur taluk, while the petitioner was
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riding the motorcycle bearing Reg.No.KA-08/Q-3483 as
pillion rider ridded by one Mr.Basavarajaiah, rider of the
motor cycle dashed it against the road side electric pole,
due to the impact, the petitioner was knocked down and
sustained grievous injuries. After taking first aid at
Government Hospital, Malur, he was admitted to St. John's
Medical College Hospital Bengaluru and treated under
hospitalization till 28.11.2012. After taking treatment, he
has approached the Tribunal for grant of compensation of
Rs.20,00,000/-. The claim was opposed by the Insurance
Company on the ground that the vehicle was not involved
in the accident, the petitioner in collusion with the police
have falsely implanted the motorcycle in question. The
petitioner himself in the hospital admitted that while he
was riding the motorcycle hit by an autorickshaw and
sustained injuries. The Tribunal, after taking the evidence
and hearing both the parties, allowed the claim petition
granting compensation of Rs.6,87,200/- with interest at
9% p.a. Aggrieved by the same, the Insurance Company
is before this Court on various grounds.
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4. Heard the arguments of Sri O. Mahesh, learned
counsel for the Insurance Company and Sri N.
Gopalkrishna, learned counsel for the petitioner.
5. It is the contention of the learned counsel for
the Insurance Company that, in an accident of this nature
the first victim shall be the rider, but herein this case the
rider of the motorcycle has not sustained any injuries.
When the petitioner was brought to the hospital he has
furnished the history that he has sustained injuries while
riding the motorcycle hit by a autorickshaw. Later different
story has been created that the motorcycle was ridded by
one Basvarajaiah and the petitioner as a pillion rider
sustained injuries having hit against the road side electric
pole. Fraud is played for the sake of compensation. The
Tribunal has failed to consider the no damages on the
motorcycle, the petitioner was the rider of the motorcycle
being the tort-feasor. There is delay of 4 days in filing the
complaint. The person who filed the complaint is one
Mr.Subramani, the brother of the petitioner who is not an
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eye-witness. There are insertions in the medical records
and the manner of accident is questionable so also the
fraud played by the petitioner. The wound certificate is
tampered with by an insertion and it is elicited from PW.2-
Dr.Mahadev Kumar P. that when the petitioner was
brought to the hospital he was conscious, gave information
that the autorickshaw hit against the motorcycle in which
he was riding. The motorcycle was not seized at the spot
and the petitioner is unable to say damages on the part of
the motorcycle. Compensation awarded by the Tribunal is
on the higher side, no banks would have offered interest
at 9% p.a. at relevant point of time and for the concoction
and fraudulent act of the petitioner, the Court shall not
encourage such claims, it has to be dismissed.
6. Per contra, learned counsel for the petitioner
has contended that, when the petitioner was brought to
the Government Hospital, Malur, history has been clearly
furnished that the petitioner was the pillion rider hit
against the road side electric pole by the rider
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Basavarajaiah, due to which the petitioner sustained
injuries. The history as furnished at St. John's Medical
College Hospital Bengaluru cannot be relied as the author
of Ex.R1-MLC extract is not examined. Neither the rider of
the motorcycle nor the informant are examined on behalf
of the Insurance Company.
6.1. It is further contended that, in the accident the
petitioner has suffered fracture of right femur with bone
loss; fracture of right tibia, fracture of right fibula; fracture
of left inferior pubic ramus; fracture of right distal phalanx
of 2nd finger and fracture of right 2nd and 3rd metacarpal.
The medical evidence is placed before the Tribunal
explaining that the petitioner has suffered 23% of the
whole body disability. The Tribunal did not consider the
same, considered only 15% and it has to be considered at
23%. The compensation awarded under different heads is
inadequate and he sought for modification.
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7. I gave my anxious consideration to the
arguments addressed by the learned counsel for both the
parties and perused the records.
8. It is the specific case of the petitioner that he
was the pillion rider in the motorcycle ridded by one
Basavarajaiah. The petitioner having sustained serious
injuries, he was treated at Government Hospital, Malur
and then brought and admitted to the St. John's Medical
College Hospital Bengaluru where he was under
hospitalization till 28.11.2012. Initially, when the
petitioner was taken to the Government Hospital, Malur
with the history of accident is reported. Ex.P5-MLC extract
shows history mentioned as 'RTA', particulars shown as
petitioner had fallen from bike at 9-45 p.m. at Harohalli
Cross while he was riding the bike as a pillion rider ridded
by Basavarajaiah. From Government Hospital, Malur, on
the next day, the petitioner was brought to the St. John's
Medical College Hospital Bengaluru where the history was
furnished as RTA on 06.09.2012. Since the petitioner was
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under hospitalization, on 10.09.2012 his brother went to
the police station and files the complaint, reporting that he
came to know about alleged accident from his brother.
9. On behalf of the Insurance Company, emphasis
is given on the Ex.R1-admission record of the St. John's
Medical College Hospital Bengaluru. At the time of
admission date was mentioned as on 07.09.2012 at 4.30
a.m., the history mentioned as RTA at 8.30 p.m. on
06.09.2012 due to collision of bike with autorickshaw. The
history furnished to the Government Hospital, Malur, was
not made available to the next Hospital. In the admission
note there is no information who has furnished the said
information at St. John's Medical College Hospital
Bengaluru. The author of the note is not examined. The
petitioner was brought to the hospital by Somashekar, the
brother of the petitioner and history was furnished as RTA
hit by auto, riders of two wheeler were not wearing
helmet. Neither the person who made the entry nor who
accompanied the injured are examined by the Insurance
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Company. Under such circumstances, what weightage can
be attached to Ex.R1 has to be considered.
10. When the material on record pertains to the
Government Hospital, Malur history furnished in the form
of Ex.P6, did not point out anything about the motorcycle
hitting against the autorickshaw or autorickshaw hitting
against the motorcycle. No weightage can be attached to
Ex.R1. Hence, prosecution papers clearly point out and
attributed negligence on the part of the rider of the
motorcycle-Basavarajaiah and the Tribunal is right in
accepting the accident. Hence, I do not find any force in
the argument of the Insurance Company.
11. In order to explain the injuries, the petitioner
has produced huge medical records which goes to explain
that the petitioner has sustained type-III open fracture
distal femur with bone loss, both bones fracture of right
leg, fracture of pubic ramus left, fracture of phalengeal
right, fracture of right II metacarpal, fracture of right III
metacarpal. He was under hospitalization soon after the
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accident till 28.11.2012. Medical bills constitutes a sum of
Rs.1,85,000/- which has been considered by the Tribunal
and same has to be kept in tact. The accident is of the
year 2012, the petitioner has to be compensated with
Rs.60,000/- towards pain and suffering, loss of amenities
and discomfort at Rs.50,000/-, loss of income during laid
up for 9 months at Rs.63,000/- (Rs.7,000/-x 9 months)
and towards incidental expenses such as attendant, food
and nourishment and conveyance at Rs.50,000/- has to be
assessed. The compensation awarded by the Tribunal
towards future medical expenses at Rs.20,000/- is kept in
tact.
12. The petitioner was aged 28 years, he claims to
be the mason earning Rs.10,000/- per month, he has not
placed any proof of his income and he has to be treated as
a person with no proof of income in the year 2012. Hence,
the notional income of the petitioner at Rs.7,000/- has to
be considered and for the age of 28 years, applicable
multiplier is 17. As regarding disability is concerned, apart
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from medical records, the petitioner also placed medical
evidence in the form of PW.2-Dr.Mahadeva Kumar P., the
Orthopedic Surgeon of the St. John's Medical College
Hospital, Bengaluru who refers the injuries mentioned
supra and made an assessment at 46.64% of lower limb
disability and he considered it at 50% of whole body
disability. Having regard to the age and avocation of the
petitioner, 15% has to be considered as functional
disability. Accordingly, the Tribunal has considered it at
15%, the nature of injuries will certainly affect his earning
capacity and therefore it is proper to maintain the
disability suggested by the medical evidence. Then loss of
future income will be Rs.7,000/-x12x17x15%=
Rs.2,14,200/- and thereby total compensation comes to
Rs.6,42,200/- as against Rs.6,87,200/- awarded by the
Tribunal, thereby reduction of Rs.45,000/-.
13. As regarding rate of interest is concerned, the
Tribunal has awarded interest at 9% p.a. In the year
2012, no banks would have offered such rate of interest.
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Unless the Tribunal gives a reason, interest at 9% p.a.
cannot be awarded.
14. In this regard, the Division Bench of this Court
in Ms. Joyeeta Bose and Ors. -vs- Venkateshan V.
and Ors. in MFA.No.5896/2018 c/w MFA.Nos.4444/2018
and 4659/2018 (MV) DD 24.08.2020 with reference to
Section 149(1) of Motor Vehicles Act, 1988, Rule 253 of
Karnataka Motor Vehicles Rules, 1989 and Section 34 of
Civil Procedure Code, at para 52 held as under:
"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 pendent lite
interest and discretion being vested with the
Court/Tribunal to award interest from the date of suit or
petition is to be 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 according, it is
accepted ... .. . . . "
In the light of the above, since the Tribunal has not
assigned any reasons for awarding higher rate of interest,
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the petitioner is entitled for interest at 6% p.a. instead of
9% p.a.
15. In view of the above discussion, the appeal
merits consideration, in the result, the following:
ORDER
i. The appeal is allowed in part;
ii. The impugned judgment and award is modified;
iii. The petitioner would be entitled to compensation
of Rs.6,42,200/- instead of Rs.6,87,200/- with
interest at 6% per annum from the date of
petition till the date of deposit excluding interest
on future medical expenses of Rs.20,000/-;
iv. Both respondents are jointly and severally held
liable to pay compensation;
v. Insurance Company is directed to deposit the
compensation amount with interest within eight
weeks from the date of receipt of certified copy
of this judgment.
Sd/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
MKM
Ct-cmu
