Karnataka High Court
The Branch Manager vs G K Naveen on 13 November, 2024
-1-
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
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. 215 OF 2013 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 2900 OF 2013 (MV-I)
MISCELLANEOUS FIRST APPEAL NO. 2901 OF 2013 (MV-I)
IN MFA NO.215/2013
BETWEEN:
P. RAMACHANDRA
S/O. PAPANNA V.
AGED ABOUT 33 YEARS,
R/A. CHINNAPPA LAYOUT,
ANEKAL ROAD, ATTIBELE POST,
ANEKAL TALUK,
BANGALORE RURAL DIST - 562 106.
... APPELLANT
(BY SRI. PRAKASH M.H., ADVOCATE)
AND:
1. THE MANAGER.
Digitally signed by UNITED INDIA INSURANCE CO. LTD.,
CHANDRASHEKAR
LAXMAN
KATTIMANI
NO. 366/72, 19TH MAIN, 1ST BLOCK,
Location: HIGH
COURT OF
KARNATAKA
RAJAJINAGAR,
BANGALORE - 10.
2. SRINIVASA RAO R.
S/O. D.N. RAMA CHANDRA RAO
MAJOR,
NO.4, SITE NO.23, 7TH CROSS,
5TH MAIN, ARAFATH NAGAR,
WEST PADARAYANAPURA,
BANGALORE-26
...RESPONDENTS
(BY SRI O. MAHESH, ADVOCATE FOR R1;
V/O. DATED 19.03.2018 SERVED NOTICE TO R2
HELD SUFFICIENT)
-2-
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.05.2012 PASSED
IN MVC NO. 5955/2010 ON THE FILE OF THE II ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, MEMBER MACT, BANGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.2900/2013
BETWEEN:
THE BRANCH MANAGER.
UNITED INDIA INSURANCE COMPANY LIMITED
NO. 366/72, 19TH MAIN, 1ST BLOCK,
RAJAJINAGAR, BANGALORE-560010
BY REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR, KRISHI BHAVAN,
NRUPATHUNGA ROAD, HUDSON CIRCLE,
BANGALORE - 560 027
BY ITS MANAGER.
... APPELLANT
(BY SRI. O. MAHESH, ADVOCATE)
AND:
1. P. RAMACHANDRA S/O. PAPANNA V.
AGED ABOUT 36 YEARS,
R/A. CHINNAPPA LAYOUT,
ANEKAL ROAD, ATTIBELE POST,
ANEKAL TALUK,
BANGALORE RURAL DIST.- 562 106.
2. R. SRINIVASA RAO.
S/O. D.N. RAMACHANDRA RAO
NO.4, SITE NO.23, 7TH CROSS,
5TH MAIN, ARAFATH NAGAR,
WEST PADARAYANAPURA,
BANGALORE - 560 026
...RESPONDENTS
(BY SRI. PRAKASH M.H., ADVOCATE FOR R1;
V/O. DATED 04.09.2015 NOTICE TO R2 IS HELD
SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.05.2012 PASSED
IN MVC NO. 5955/2010 ON THE FILE OF THE II ADDITIONAL JUDGE,
-3-
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
COURT OF SMALL CAUSES, MACT BANGALURU, AWARDING
COMPENSATION OF RS.13,24,000/- WITH INTEREST @ 6% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT WITH THE
TRIBUNAL.
IN MFA NO.2901/2013
BETWEEN:
THE BRANCH MANAGER.
UNITED INDIA INSURANCE COMPANY LIMITED
NO. 366/72, 19TH MAIN, 1ST BLOCK,
RAJAJINAGAR, BANGALORE-560010
BY
REGIONAL OFFICE,
UNITED INDIA INSURANCE CO. LTD.,
KRISHI BHAVAN, 5TH AND 6TH FLOOR,
NRUPATHUNGA ROAD, HUDSAON CIRCLE,
BANGALORE-560 027
BY IT'S MANAGER.
... APPELLANT
(BY SRI. O. MAHESH, ADVOCATE)
AND:
1. G.K. NAVEEN,
S/O. MADAN MOHAN REDDY,
AGE: 19 YEARS,
R/A. GUNJUR POST, VARTHUR,
HOBLI, BANGALORE-64
2. R. SRINIVASA RAO
S/O. D.N. RAMACHANDRA RAO
MAJOR
NO.4, SITE NO.23, 7TH CROSS,
5TH MAIN, ARAFATH NAGAR,
WEST PADARAYANAPURA,
BANGALORE-560 026
...RESPONDENTS
(BY SRI. PRAKASH M.H., ADVOCATE FOR R1;
V/O. DATED 31.08.2016 NOTICE TO R2 IS HELD SIFFUCIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 28.05.2012 PASSED
IN MVC NO. 5954/2010 ON THE FILE OF THE II ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, MACT BANGALURU, AWARDING
-4-
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
COMPENSATION OF RS.2,60,000/- WITH INTEREST @ 6% P.A. FROM
THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.09.2024 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 these appeals, the Insurance Company has
challenged the judgment and award dated 28.05.2012
passed by the II Additional Judge, Court of Small Causes,
Bengaluru (SCCH-13) (for short, 'Tribunal') in
MVC.Nos.5954 and 5955 of 2010, whereas the petitioner
in MVC.No.5955/2010 is seeking enhancement of
compensation.
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 02.09.2010 at
about 8.35 p.m., when the petitioners were riding the
-5-
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
motorcycle bearing Reg.No.KA-01/Y-7474 on Sarjapura -
Attibele road near L N T (L & T) concrete mixing factory,
Maruti Omni bearing Reg.No.CTT-1155 came from
Sarjapura side and dashed against the motorcycle, due to
which they fell down and sustained fractures. They were
admitted to Sparsh hospital, Sarjapura and were treated
under hospitalization. The petitioner in MVC.No.5954/2010
was a 10th Standard student, doing agriculture work and
earning Rs.4,000/- per month. Whereas the petitioner in
MVC.No.5955/2010 was earning Rs.15,000/- per month by
doing agriculture and real estate business. They have
approached the Tribunal for grant of compensation of
5,00,000/- and 15,00,000/- respectively against the owner
and insurer of the Maruti omni, claiming that the injuries
sustained by them causing permanent disability. Claim
was opposed by the insurer of the Maruti omni denying the
negligence attributed against the said vehicle. The policy
was in force and liability will be subject to terms and
conditions of the policy and valid driving license.
-6-
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
3.1. The owner claims that the driver was holding
valid driving license, policy of insurance is in force and the
Insurance Company has to indemnify his liability. The
Tribunal, after taking the evidence and hearing both the
parties, allowed the claim petitions granting compensation
of Rs.2,60,000/- in respect of petitioner in
MVC.No.5954/2010 and Rs.13,24,000/- in respect of
petitioner in MVC.No.5955/2010 with interest at 6% p.a.
Pleading inadequacy and seeking enhancement, the
petitioner in MVC.No.5955/2010 has filed
MFA.No.215/2013, questioning involvement of the very
vehicle and alleging fraud, the Insurance Company has
challenged the award in both the claim petitions on
various grounds.
4. Heard the arguments of Sri M.H. Prakash,
learned counsel for the petitioner in MVC.No.5955/2010
and Sri O.Mahesh, learned counsel for the Insurance
Company.
-7-
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
5. It is the contention of the learned counsel for
the injured-petitioner that, the accident took place at 8.35
p.m., on 02.09.2010, immediately both the injured were
admitted to the Sparsh Hospital, Sarjapura road with a
specific history of accident. Since the petitioners were
under hospitalization, they were not allowed to go outside
and only on 06.09.2010, the jurisdictional police have
visited the hospital and recorded the statements of the
petitioners and set the law into motion. The vehicle was
traced and seized, the driver was apprehended and after
the investigation, he has been charge sheeted. The
petitioner was under hospitalization for a period of 70
days, he was hospitalized on 40 occasions, underwent 15
surgeries. When the petitioner has sustained such kind of
serious injuries, it is too much to expect from him to go to
the police station and to file a complaint on 02.09.2010
itself. These are the factors which are rightly considered
by the Tribunal and accepted the accident as the driver of
the maruti omni has been pleaded guilty before the
jurisdictional Court.
-8-
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
5.1. The medical evidence is placed to explain that
the petitioner has suffered 70 to 75% of bodily disability.
He being an agriculturist who has suffered multiple
fractures with shortening of right leg to an extent of 12
cms. The petitioner was aged 33 years and the nature of
injury will certainly disable him 100% and a person with
no proof of income in the year 2010 will earn not less than
Rs.5,500/- per month, whereas the Tribunal has taken the
monthly income of the petitioner only at Rs.4,000/-.
Compensation awarded towards pain and suffering, loss of
amenities and discomfort is on the lower side and he
sought for enhancement.
6. Per contra, learned counsel for the Insurance
Company has mainly canvassed on four grounds urged in
the appeal particularly, there is a delay in filing the
complaint; there is no explanation for belated complaint;
the spot mahazar was drawn on 07.09.2010, no eye-
witnesses were present to show the place of accident. On
25.10.2010, the motor vehicle examination was conducted
-9-
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
and on the very same day, the maruti omni was seized at
the police station at 11.53 p.m. Then how the Police came
to know that the said vehicle was involved in the accident
is not explained. The petitioner who is examined as PW.2
admitted that it was an head-on-collision at 8.35 p.m. on
a 30 ft. width road and there was less traffic, only 2 ft.
space was left towards his left side and inspite of it, PW.2
could not remember the registration of the vehicle. No
MLC intimation was sent from the hospital, no persons
from the Sparsh hospital are examined to explain why the
intimation was not sent in time.
7. The FIR under Ex.P1, the registration number of
the vehicle is not mentioned and how this registration
number came to the knowledge of the police is not
explained by examining the Investigating Officer. The
petitioners in collision with the police have played fraud for
the sake of compensation and interesting to note that the
vehicle in question was also involved in a similar accident
that had taken place on 27.04.2011 and this vehicle has
- 10 -
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
been fixed knowing fully well that the vehicle was holding
policy and the driver was holding a valid driving license.
The petitioners have not proved the involvement of the
vehicle. No explanation was offered for not intimating the
police by the hospital in time, but the involvement of the
same vehicle in the similar kind of accident is a case of
fraud. The vehicle has been concocted for the sake of
compensation and the claim petition is required to be
dismissed with an exemplary cost.
8. I gave my anxious consideration to the
arguments addressed by the learned counsel for both the
parties and perused the records.
9. It is the specific case of the petitioners that
there was an accident involving the motorcycle in which
the petitioners were the riders hit by the maruti omni
bearing No.CTT-1155 near L & T concrete mixing factory
on Sarjapura road. Soon after the accident, the petitioners
were admitted to the Sparsh hospital, Sarjapura road with
a history of accident. The material on record clearly point
- 11 -
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
out that till 06.09.2010, no intimation was sent to the
jurisdictional police by the hospital authority, only on
06.09.2010 the statement of the petitioner in
MVC.No.5955/2010 was recorded by the Sarjapura police
and registered FIR in Crime No.144/2010 under Sections
279, 337 of IPC read with Section 187 of Motor Vehicles
Act.
10. The argument of the learned counsel for the
Insurance Company that the vehicle number was not
mentioned in the FIR, has found answer as there is a
specific mentioning of registration number of the Maruti
Omni No.CTT-1155 and the same has been found place in
the FIR. Only the issue is regarding the delay in filing the
complaint. The petitioner has explained that he was under
hospitalization and he could not move out to file the
complaint to the police. It is not the case of the petitioners
that after discharge, they went to the police station and
filed complaint.
- 12 -
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
11. The medical record shows that the petitioner in
MVC.No.5955/2010 has suffered type-III B compound
(open) fracture of both the bones of right leg; Lisfrancs
injury to right foot; right navicular dislocation; Avulsion
injury of dorsum of right foot and he has suffered
shortening of leg about 6 to 7 cms. The evidence of PW.4/
Dr.Ramachandra points out the whole body disability
between 70 to 75%. A person who suffered such injuries
and was under hospitalization for a period of 70 days, in
as many as 40 occasions he has visited the hospital,
underwent 15 surgeries and it is too much to expect from
him that he should go to the police station and make a
complaint on 02.09.2010 itself. The hospital records
clearly point out that on 02.09.2010 at 11.15 p.m., the
petitioners were admitted to Sparsh hospital with a clear
history of 'RTA' near Sarjapura road. Under such
circumstances, it is the duty cast upon the hospital
authority to intimate the said accident to the Police. The
explanation in the complaint that the police visited the
hospital only on 06.09.2010 to record his statement for
- 13 -
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
which he cannot be blamed as he was under
hospitalization and his first discharge was on 08.09.2010.
12. On perusal of the objection statement filed
before the Tribunal, it is pertinent to note that the
Insurance Company made a formal denial, admitted the
policy of insurance and claimed that the liability will be
subject to terms and conditions of the policy of the driving
license. The petitioners who were examined as PWs.1 and
2 have been cross-examined on behalf of the Insurance
Company. During the course of cross-examination, nothing
has been elicited as argued by the learned counsel for the
Insurance Company. It goes to show that the Insurance
Company wants to build a case without any defense. The
involvement of the Maruti Omni in a subsequent accident
on 27.04.2011 cannot be a ground to doubt the veracity of
the claim petition filed by these petitioners.
13. PWs.1 and 2 are the eye-witnesses to the
accident and their evidence goes to show that there was
an head-on-collision. In the hospital they have clearly
- 14 -
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
mentioned the history and in the complaint, the vehicle
number has been clearly mentioned and the owner of the
vehicle did not admit the accident, he contested the claim.
For the first time in the appeal, the Insurance Company
had taken a defense which has not been pleaded before
the Tribunal. It is not proper on the part of the Insurance
Company to attack on the impugned judgment on a
ground which was not placed before the Tribunal.
Contrary, the prosecution papers coupled with the
evidence of PWs.1 and 2 takes support and corroboration
from the hospital records that both the petitioners have
sustained injuries in the accident involving the motorcycle
and the Maruti Omni. The evidence on record persuaded
to accept the alleged accident and there is no force in the
argument employed by the Insurance Company.
Re: MVC.No.5954/2010:
14. The petitioner has not preferred any appeal,
wherein he has suffered fracture of right femur and type-I
compound fracture of right leg and fracture of proximal
- 15 -
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
phalanx of little toe of right foot. PW.3-Dr.Ramachandra
has assessed the limb disability at 47.4% and 25% to the
whole body. The petitioner was 16 year old student. The
Tribunal, considering all these factors and the medical bills
itself constituting a sum of Rs.1,10,000/- awarded
Rs.2,60,000/- as compensation under various heads and
same is found reasonable and just.
Re: MVC No.5955/2010:
15. As observed above, the petitioner has suffered
multiple injuries, was under hospitalization for 70 days,
underwent 15 surgeries and visited the hospital on 40
times. PW.4-Dr.Ramachandra, the medical officer has
given the opinion that the petitioner has suffered
shortening of right leg by 6 to 7 cms, being 33 years old,
an agriculturist has suffered 70 to 75% of the whole body
disability. Having regard to the nature of injuries, the
period of treatment and his avocation, the Tribunal has
rightly appreciated that the functional disability at 40%.
- 16 -
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
16. As rightly argued by the learned counsel for the
petitioner that the petitioner though he has not produced
any evidence in proof of his income, a person with no
proof of income in the year 2010 will earn not less than
Rs.5,500/- per month. Whereas the Tribunal has assessed
the income at Rs.4,000/- per month is on the lower side.
Hence, the notional income of the petitioner has to be
considered at Rs.5,500/- per month.
17. Since the functional disability is considered at
40%, for the age of 33 years, future prospects of 40% has
to be considered for the purpose of calculation. The
medical bills constitutes a sum of Rs.6,81,524/-, whereas
the Tribunal has awarded Rs.7,25,000/- including
incidental expenses. The incidental expenses has to be
calculated separately. The Tribunal has awarded a sum of
Rs.80,000/- towards pain and suffering, which has to be
kept in tact. The medical expenses of Rs.6,81,524/- has to
be reimbursed to the petitioner. Towards attendant
charges at Rs.13,000/-, conveyance at Rs.20,000/- and
- 17 -
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
food and nourishment at Rs.20,000/- has to be
compensated for 70 days of hospitalization and in all,
incidental expenses comes to Rs.53,000/-. The petitioner
was under hospitalization for 70 days and he will be laid
up for not less than 8 months and he has to be
compensated with Rs.44,000/- (Rs.5,500/- x 8 months)
towards loss of income during laid up. The loss of
amenities and discomfort has to be compensated at
Rs.1,00,000/- and the petitioner is required undergo
further surgery and he has to be compensated with
Rs.50,000/- towards future medical expenses.
18. As regarding loss of future income is concerned,
notional income is Rs.5,500/-, functional disability at 40%,
then it comes to Rs.5,500/- + Rs.2,200/- (40%) =
Rs.7,700/- x 12 x 16 x 40% = 5,91,360/-. If all these
compensation are put together, the petitioner would be
entitled to Rs.15,99,884/- as against Rs.13,24,000/-,
thereby enhancement of Rs.2,75,884/- rounded of to
Rs.2,76,000/-. It is the just compensation which the
- 18 -
NC: 2024:KHC:46120
MFA No. 215 of 2013
C/W MFA No. 2900 of 2013
MFA No. 2901 of 2013
petitioner is entitled to, under the facts and circumstances
of the case.
19. As regarding liability is concerned, there is no
dispute that the policy is in force and the driver of the
Maruti Omni was holding effective driving licence.
Therefore, the owner of the maruti omni is liable to pay
compensation and the Insurance Company being the
insurer is held liable to indemnify the insured.
20. In view of the above discussion, the appeal filed
by the Insurance Company is devoid of merits and the
appeal filed by the petitioner in MVC.No.5955/2010 merits
consideration, in the result, the following:
ORDER
i. MFA.Nos.2900 and 2901 of 2013 are
dismissed;
ii. MFA.No.215/2013 is allowed in part;
iii. The impugned judgment and award passed by
the Tribunal is modified;
- 19 -
NC: 2024:KHC:46120
iv. The petitioner in MVC.No.5955/2010 would be
entitled to enhanced compensation of
Rs.2,76,000/- with interest at 6% p.a. from the
date of petition till the date of deposit excluding
interest on future medical expenses of
Rs.50,000/-;
v. The Insurance Company is directed to deposit
the entire compensation along with interest
within 8 weeks from the date of receipt of
certified copy of this judgment;
vi. Amount in deposit shall be transmitted to the
Tribunal along with records forthwith.
Sd/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
MKM
Ct-cmu
