Karnataka High Court
Iffco Tokio Gic Ltd vs Murgesh @ Murgeppa on 15 November, 2024
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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NC: 2024:KHC-K:8488-DB
MFA No. 202387 of 2017
C/W MFA No. 200087 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
M.F.A NO.202387 OF 2017 (MV-I)
C/W
M.F.A NO.200087 OF 2018
IN M.F.A NO.202387 OF 2017
BETWEEN:
MURGESH @ MARGEPPA
S/O NINGAPPA YANKANCHI
AGE:37 YEARS
OCC:CIVIL CONTRACTOR
R/O VILLAGE GANGAPUR
TQ. AFZALPUR
NOW RESIDING AT VENKATESH NAGAR
KALABURAGI-585 103
Digitally signed ...APPELLANT
by SHAKAMBARI
Location: HIGH
COURT OF (BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
KARNATAKA
AND:
1. MALLIKARJUN
S/O BASANNA ALMEL
MAJOR
OCC:BUSINESS AND OWNER OF
BOLERO BEARING NO.KA-33-M-1973
R/O MASHAL TQ. AFZALPUR
DIST.KALABURAGI-585 217
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MFA No. 202387 of 2017
C/W MFA No. 200087 of 2018
2. IFFCO-TOKIO GENERAL INSURANCE
CO. LTD., THROUGH ITS BRANCH MANAGER
G1, G2, G12 &13, ASIAN ARCADE
NEAR ANAND HOTEL
S.B. TEMPLE ROAD
KALABURAGI-585 102
POLICY NO.1-2K8BW2CP400-86571379
VALID FROM 02.02.2014 TO 01.02.2015
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
NOTICE TO R1 IS SERVED)
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
ALLOW THE APPEAL BY MODIFYING THE JUDGMENT AND
AWARD DATED.18.09.2017 PASSED BY THE PRL. SENIOR CIVIL
JUDGE AND MACT AT KALABURAGI IN MVC NO.108/2015 AND
CONSEQUENTLY BE PLEASED TO ENHANCE THE
COMPENSATION FROM RS.10,51,742/- TO RS.41,00,000/-
WITH INTEREST @ 12% PER ANNUM FROM THE DATE OF
PETITION TILL ACTUAL REALIZATION, IN THE INTEREST OF
JUSTICE AND EQUITY.
IN M.F.A NO.200087 OF 2018
BETWEEN:
IFFCO TOKIO GIC LTD.,
THROUGH ITS BRANCH MANAGER
G1, G2, G12 &13, ASIAN ARCADE
NEAR ANAND HOTEL
S.B. TEMPLE ROAD
KALABURAGI-585 102
(NOW REPRESENTED BY
AUTHORIZED SIGNATORY
BANGALORE)
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
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MFA No. 202387 of 2017
C/W MFA No. 200087 of 2018
AND:
1. MURGESH @ MURGEPPA
S/O NINGAPPA YANKANCHI
AGE:38 YEARS
OCC:CIVIL CONTRACTOR
R/O VILLAGE GANGAPUR
TQ: AFZALPUR
NOW RESIDING AT VENKATESH NAGAR
KALABURAGI-585 105
2. MALLIKARJUN
S/O BASANNA ALMEL
MAJOR
OCC:BUSINESS AND OWNER OF
BOLERO BEARING NO.KA-33-M-1973
R/O MASHAL TQ. AFZALPUR
DIST.KALABURAGI-585 105
...RESPONDENTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
CALL FOR THE RECORDS AND ALLOW THE ABOVE APPEAL BY
SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD
DATED 18.09.2017 IN MVC NO.108/2015 PASSED BY THE PRL.
SENIOR CIVIL JUDGE AND MACT, KALABURAGI IN THE
INTEREST OF JUSTICE EQUITY.
THESE MFAs HAVING BEEN RESERVED FOR JUDGMENT
COMING ON FOR PRONOUNCEMENT OF THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED/PRONOUNCED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
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MFA No. 202387 of 2017
C/W MFA No. 200087 of 2018
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
These two appeals arise out of a single Judgment
and Award dated 18th September 2017 in MVC
No.108/2015 by the Principal Sr.Civil Judge and Member,
MACT, Kalaburagi.
2. MFA No.202387/17 is filed by the claimant
seeking enhancement of compensation whereas, MFA
No.200087/18 is filed by respondent-Insurance Company
challenging the judgment and award with regard to the
liability and quantum.
3. As these two appeals arise out of a single
judgment, with the consent of both the side, both these
appeals are heard together, as common argument is heard
in both these appeals and hence common judgment is
passed.
4. Parties to these appeals are referred with
reference to their rank before the Tribunal.
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The brief facts of the case are as follows:
5. That the claimant on 21.08.2014 at 10.30 a.m.
near Gobburwadi Tanda within the limits of
Devalaganagapura Police Station was proceeding on his
motorbike bearing Regn.No.KA-32/Y-2126 from
Devalaganagapur to Gulbarga to attend his personal work,
at that time, a Bolero vehicle bearing Regn.No.KA-32/M-
1973 came from behind in high speed in a rash and
negligent manner, dashed to his motorbike. Because of
this impact, claimant fell down and sustained injuries on
his person. He was taken to Hospital for treatment. He
was treated in the hospital as in-patient from 21.8.2014 to
24.8.2014. With regard to the said accident, crime was
registered in Crime No.107/2014 against the driver of the
Bolero vehicle. According to him, he has spent substantial
amount towards medical expenses. At the time of
accident, he was aged 35 years and prior to the accident,
he was hale and healthy and was earning Rs.12 lakhs per
annum from his Class-I Civil Contract business. He was
running a contract business under the name and style of
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`M/s.M.L.Yenkanchi Contractor'. Because of accidental
injuries, he suffered disability as well as loss of future
income. According to him, both respondents are liable to
pay the compensation of Rs.41 lakhs as prayed in the
claim petition.
6. Pursuant to the notice, both the respondents
appeared and filed detailed independent objections
denying entire assertions made in the petition. With regard
to the nature of the accident alleged by the petitioner as
well as his age, avocation, income, permanent disability
alleged is denied by both the respondents. Respondent
no.2 contends that its liability is subject to terms and
conditions of the policy though the Insurance Policy was
valid as on the date of the accident. According to
respondent no.2, respondent no.1 used the said vehicle
without valid certificate of fitness and thereby, there is
violation of policy conditions. It is contended by both the
respondents that the claim is exorbitant and excessive and
hence prayed to dismiss the petition.
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7. Based upon the rival pleadings of the parties,
the learned Tribunal framed in all four relevant issues.
8. Before the Tribunal, to substantiate the case of
the claimant, he himself entered the witness box as PW.1
and also examined Dr.Rajendra Kothari as PW.2 who had
issued the disability certificate and got marked Exs.P1 to
P18. None of the respondents entered the witness box to
rebut the evidence of the claimant.
9. The learned Tribunal, on hearing the arguments
and on evaluation of oral and documentary evidence,
came to the conclusion that the said accident has taken
place due to rash and negligent driving of the driver of the
offending vehicle. So far as entitlement of the
compensation claimed by the claimant, it is held that the
claimant is able to prove his avocation as a contractor and
observed, based upon the evidence placed on record that,
he must have suffered 13% disability and calculated his
income as well as disability and considering all these
aspects so also considered pain, suffering, loss of
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amenities to be enjoyed in the life, loss of future income,
medical and other incidental expenses, nourishment, food
etc., and loss of income during laid up period, has
awarded the compensation as under:
Sl.No. Heads Amount of
Compensation
in Rs.
1. Pain and Suffering 50,000-00
2. Loss of amenities and 10,000-00
enjoyment in life
3. Towards loss of future income 8,58,924-00
4. Medical Expenses 21,082-00
5. Attendant charges, food, 8,500-00
nourishment and conveyance
expenses
6. Loss of income during the 1,03,236-00
period of treatment
TOTAL 10,51,742-00
10. So far as liability is concerned, it is held by the
Tribunal that the policy in respect of the offending vehicle
was valid and in force as on the date of the accident.
Respondent no.2 has failed to prove violation of the policy
conditions by respondent no.1. Thus, it is held that both
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the respondents are liable to pay the compensation and
ultimately it is held that respondent no.2 has to indemnify
the compensation amount and directed the same to be
deposited together with 6% interest p.a. from date of
petition till its realization. This is how both the appellants
i.e. Insurance Company as well as claimant are before this
Court questioning the liability, quantum and inadequacy of
the compensation respectively.
11. We have heard the arguments of learned
counsel appearing on both the side and perused the
records.
12. The learned counsel for appellant-Insurance
Company though admits the said accident, but, denies the
liability. According to learned counsel for appellant-
Insurance Company Smt.Preeti Patil Melkundi, claimant is
unable to prove his avocation as Contractor and the
income so arrived at by the Tribunal is incorrect. She
submits that, except the self-serving evidence of PW.1-
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claimant, to prove his profession as a Contractor and his
earnings, there is no evidence placed on record. Merely
the Income Tax returns which were filed after the
accident, cannot be taken into consideration. The Tribunal
has committed illegality in believing the version of the
claimant. According to her, the award so passed by the
Tribunal is highly excessive and there is no permanent
disability suffered by the claimant at any point of time
much less, after taking treatment. She submits that
respondent no.1 just filed the objections and has not
entered the witness box. Though respondent no.2 admits
the policy but, there is violation of policy conditions.
Therefore, she submits to exonerate the appellant-
Insurance Company from payment of compensation.
13. As against this submission, the learned counsel
Sri Sanganagouda V. Biradar for the claimant supported
the reasons and findings of the Tribunal with regard to the
said accident as well as the liability fastened on the
Insurance Company. He submits, however, the Tribunal
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has not taken into consideration the income of the
claimant in a proper manner so also his profession. He
submits that, Tribunal ought to have considered the
number of grievous injuries suffered by the claimant and
ought to have awarded substantial compensation under all
the conventional heads.
14. He submits that, the Tribunal ought to have
awarded compensation based upon the actual income of
the claimant. The claimant has suffered 52% disability to
the whole body and if 1/3rd is taken as permanent
disability it would have been 17%. Therefore, even the
disability assessed is on lower side, he submits that the
compensation so awarded requires to be enhanced as the
award passed is inadequate. He prays to allow his appeal.
15. In view of the rival submission of both the side,
the point that would arise for our consideration are:
(i) Whether the award of the Tribunal is
inadequate as claimed by the claimant?
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(ii) Whether fastening of liability on the 2nd
respondent/Insurance Company is justified?
16. So far as accident is concerned, there is no
dispute as such raised by the respondents. As stated
supra, respondents have not entered the witness box. To
prove the fact of accident, claimant relied upon Ex.P1 to
P5, the police documents such as FIR, complaint
statement, charge sheet crime detail form, MV Report.
Contents of these documents are not denied by the
respondents. In all these police documents it is specifically
alleged that because of rash and negligent driving by
Bolero vehicle - the offending vehicle by its driver, the said
accident has taken place. Except denial in the cross
examination, nothing is elicited from his mouth. Even the
said accident has taken place not because of any
mechanical defect. As rightly held by the learned Tribunal,
the claimant is able to establish that the said accident has
taken place because of the rash and negligent driving of
Bolero vehicle by its driver. Even the crime details show
that Bolero vehicle driver has dashed to the motor bike of
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the claimant from his behind though he had sufficient
space towards the right side of the road. Thus, we do not
find any factual or legal error with regard to such finding.
17. So far as award of compensation is concerned,
the claimant relies upon the medical records such as
wound certificate at Ex.P6 so also discharge summary.
Contents of Ex.P6 wound certificate reads as under:
"1. Abrasion over face
2. CT Scan of brain plain
3. Sub-arachnoid Haemorrhage in Rt.temporal
region of intracerebral haemorragic contusion in Rt.
Parietal temporal region.
4.Diffuse cerebral oedma.CT/X-ray spine/x-ray
pelvis No.R10: normal study."
18. The discharge summary shows that the
claimant was admitted in Basaveshwara Teaching and
General Hospital, Gulbarga from 21.8.2014 to 24.8.2014
with the history of road traffic accident having suffered
head injury. He was administered with pain killers and
antibiotics. Even he was noticed with bleeding in his nose,
history of vomitting. Ex.P7 is the original wound certificate
which is not disputed by the respondents. Ex.P8 is the
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discharge summary issued by the Balawant Institute of
Neurosurgery and Intensive Trauma care, Solapur. It
shows that he was admitted in the said hospital from
19.6.2015 to 26.6.2015 with the history of head injury
and he was treated as in-patient there. He has produced
CT scan report issued by the radiologist as per Ex.P9
wherein it shows that, he had suffered 'multiple small
Gyriform streaky hyperdensity noted in right high parietal
region suggestive of subarachnoid haemorrhage.
19. While marking these documents, respondents
have not raised any objections. On 3.11.2015, he was
examined by Dr.Kothari and he has issued the disability
certificate as per Ex.P12. On examination he noticed
following physical impairments:
"1. Patient understands routine commands.
2. His pulse, respiration and temperature are
within normal limits
3. Postural giddiness is noted
4. Loss of smell noted
5. Partial loss of hearing in L-ear on Rennis and
Webber test
6. L-side neck stiffness and movements are
painful
7. Unstable gait."
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20. According to doctor, the claimant has suffered
52% disability to the entire body. To show that he has
spent medical expenses, the claimant has produced in-
patient bills, medical bills, prescriptions which are not
denied by the respondents. These medical records do
establish that because of these accidental injuries he
suffered lot. He has suffered physical impairments. As he
has suffered the head injury as per the evidence of the
doctor, with all frustration and inconvenience, the claimant
has to survive. After assessing the evidence placed on
record by the claimant and on perusal of the cross-
examination, it is noticed that except bald denial, nothing
is elicited from his mouth.
21. It is well settled that, compensation for
personal injuries is higher as compared to fatal cases,
since in the former case, it is to be utilized by the victim of
the accident and in the latter, by the legal heirs. It is true
that, compensation cannot bring back the victim to the
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stage he enjoyed before the accident, but, it would provide
him some solace and security for his future.
22. It is also settled principle of law that, while
assessing the disability and compensation, it must not be
lost sight that, the loss of bodily integrity gives a right to
damages even if there is no damage at all to the earning
capacity or even to enjoyment of life. But, damages in
such cases are awarded commensurate with the extent,
gravity and duration of the injury. The test in the case of
bodily injury are to be as to whether the breaking of the
physical integrity is of a temporary nature or a permanent
nature one and what impact i.e to what extent the physical
incapability or temporary or permanent disability will be
reflected in he earning capacity of the injured.
23. On perusal of the evidence of PW.2 Dr.
Rajendra Kothari. Evidently he is not a treated doctor and
based upon the complaint with the regard to the injuries,
he examined the claimant and major complaints were
postural giddiness headache on and off heaviness in the
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head, attack of fits, pain in left head in the neck region,
neck movement painful etc.., but, on examination he
noticed that the patient understands routine commands
pulse respiration, temperature were within the normal
limits. Postural giddiness is noted. Loss of smell noted.
Partial loss of hearing in left ear left side neck stiffness and
movements are painful, unstable gate. Thus, according to
the doctor, the aforesaid impairments are noticed by him
when he medically examined him. But, he is not a
neurologists but clinically and radiologically examined him.
He denied all other suggestions.
24. As the claimant has taken treatment at the
reputed hospitals under the expert doctors, by this time,
whatever the disabilities he was having must have been
cured to some extent. This possibility cannot be ruled out.
So therefore, in the considered view of this Court
whatever the disability that is assessed by the doctor need
not be taken into consideration as the claimant has taken
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treatment but, however, he has to suffer throughout his
life because of his physical disability.
25. As per the claimant, he is a Civil Contractor by
profession. As per his evidence, he is graduated in Civil
Engg. which is not denied by the respondents either in the
objection statement or in the cross-examination.
Therefore, profession of the claimant is taken as Civil
Contractor which is rightly accepted by the learned
Tribunal.
26. So far as the income of the claimant is
concerned, claimant has produced the income tax returns
so submitted to the income tax department for the
financial year 2011-12, 2013-14 and 2014-15 wherein he
has shown his income at Rs.2,88,839/-.2,83,100/-
5,10,219/- for all the aforesaid financial years
respectively. In view of the judgment of co-ordinate bench
of this Court in MFA No.202275/2023 decided on 1st March
2024 while calculating the income of the claimant, three
years' average income has to be calculated to arrive at the
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annual income of the injured. The same rule is applied to
this case also. On perusal of the said income tax returns
as stated above, produced by the claimant at Ex.P15 to
P17, the total three years' income is reckoned at
Rs.10,82,159/- i.e. (Rs.2,88,839/+ Rs.2,83,100/-+
Rs.5.10,219/-). Three years' average income come to
Rs.3,60,719/- The claimant has paid income tax as per
Ex.P.15, 16 and 17 of Rs.9,874/-. The income after
deduction of tax is Rs.3,50,845/-. Thus, the monthly
income would be Rs.29,237/-(i.e.3,50,845 divided by 12).
So far as disability is concerned, the Tribunal has
considered the disability keeping in mind the evidence of
PW.2 Doctor and the treatment taken by the claimant. It
has taken 13% permanent disability to the whole body. In
view of the evidence of claimant and the doctor, it is just
and proper.
27. So far as loss of future income due to disability
is concerned, as calculated above, the loss of monthly
income due to permanent disability is calculated at
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Rs.29,237/- it should be multiplied with 12. As the
claimant was aged 35, the proper multiplier would be 16.
So the future loss of income is re-assessed at
Rs.7,29,755.52/-(Rs.29,237 x 12 x 16x13/100) which is
rounded off to Rs.7,29,760/-
28. So far as pain and suffering is concerned, with
all frustration, inconvenience with disability he has to
suffer and go on suffering, therefore, the Tribunal has
awarded Rs.50,000/- as compensation to the pain and
suffering but, in view of the injuries suffered by the
claimant and physical impairments noticed by the doctor
when he medically examined him, certain amount is to be
increased towards pain and suffering. If it is increased to
Rs.60,000/- it would meet the ends of justice.
29. Though the learned Tribunal has awarded loss
of amenities to the extent of Rs.10,000/- but, he being a
civil contractor has to move from one place to another
place to attend his contract work. Such movement is not
possible because of these accidental injuries and he has
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lost hearing of his left ear. He has lost his amenities to be
enjoyed in the life. So to some extent certain amount is to
be awarded towards loss of amenities. Though the learned
counsel for the claimant submits to award Rs.50,000/-
but, it is on higher side, if it is enhanced to Rs.30,000/- it
would meet the ends of justice.
30. The learned Tribunal has considered medical
expenses by relying upon Ex.P14 the hospital and medical
bills so also included the incidental charges etc.
Considering the said award of Rs.21,082/- as it is based
upon the actual receipts produced at Ex.P14 it is just and
proper. But, in addition to the same, he must also have
spent money towards other incidental expenses like food,
nourishment and conveyance etc., though the Tribunal has
awarded Rs.8,500/- it needs to be increased. In view of
the evidence brought on record and looking to the present
conditions of food, nourishment etc., if it is increased it
would meet the ends of justice. Therefore, claimant is held
entitled for compensation under the head attendant
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charges, food nourishment and conveyance expenses to
the extent of Rs.40,000/- Because of these injuries, the
claimant must have suffered a lot and he must have taken
treatment not only as in-patient as noticed in the medical
records and also taken treatment as outpatient atleast for
a period of three months he must have lost his income due
to his treatment. Therefore, the claimant is held entitled
for loss of income during laid up period, it would be
Rs.87,711/- (Rs.29,237 x 3).
31. Thus, the claimant is held entitled for
compensation as under:
Sl. Heads Amount of
No. Compensation in
Rs.
1. Pain and Suffering 60,000-00
2. Loss of amenities and enjoyment in life 30,000-00
3. Towards loss of future income due to 7,29,600-00
disability
3. Medical Expenses 21,082-00
4. Attendant charges, food, nourishment 40,000-00
and conveyance expenses
5. Loss of income during the period of 87,711-00
treatment
TOTAL 9,68,393-00
rounded off to
Rs. 9,68,500/-
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Thus, the claimant is held entitled for compensation
of Rs.9,68,500/- together with interest at 6% p.a. from
the date of petition till its realization. Thereby, there is
reduction of compensation by Rs.83,224/- (Rs.10,51,724 -
Rs.9,68,500).
32. So far as liability is concerned, as rightly
observed by the learned Tribunal, except the bald
contentions taken up in the objections, no evidence is
placed on record by the respondent no.2 to show that,
there is violation of the policy conditions. Even respondent
no.1 has not entered the witness box. The respondent
no.2 has not taken any steps to examine any of its
witnesses. When policy is admitted, so also its validity on
the date of accident, the appellant Insurance Company
cannot escape the liability to pay the compensation.
Therefore, the question of exonerating the appellant
Insurance Company from depositing the compensation
amount does not arise at all.
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33. The primary liability is on respondent no.1 the
owner of the offending vehicle to pay the compensation.
Under law of indemnity, it is respondent no.2 Insurance
Company has to deposit the compensation as awarded
together with interest at the rate of 6% p.a. from the date
of petition till its realization.
34. With this view, the appeal filed by the
Insurance Company deserved to be allowed in-part and
appeal filed by the appellant-claimant is liable to be
dismissed. Resultantly, we pass the following:
ORDER
(i) MFA No.202387/17 filed by the claimant is
dismissed. Appeal filed by Insurance
Company MFA No.200087/18 is allowed
in-part.
(ii) The claimant is held entitled for reduced
compensation of Rs.9,68,500/- as
against Rs.10,51,742/- together with
interest at the rate of 6% p.a from the
date of petition till realization, thereby
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there would be reduction of compensation
by Rs.83,242/-.
(iii) The order regarding deposit of the 50% of
the compensation remained undisturbed
with liberty to withdraw the periodical
interest as ordered by the Tribunal
without seeking any permission from the
Court.
(iv) The Insurance Company-R2 is directed to
deposit compensation amount within four
weeks from the date of receipt of the
certified copy of this order.
(v) Statutory deposit shall be transmitted to
the Tribunal forthwith.
There shall be modified award in the above
terms.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
