Karnataka High Court
Mr Nandeesha M S vs M/S The Oriental Insurance Co. Ltd on 25 October, 2024
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MFA No. 7553 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO.7553 OF 2014 (MV-I)
BETWEEN:
MR. NANDEESHA M. S.
S/O. SRIKANTA CHARI
AGED ABOUT 29 YEARS
RESIDING AT NO.2/3, 3RD 'A' MAIN ROAD
50 FEET ROAD, HANUMANTHANAGAR
BENGALURU-560 050.
PRESENT ADDRESS:
RESIDING AT MADHUVANAHALLI
DOOR NO.129, MADHUVANAHALLI POST
ARAKALAGUDU TALUK
HASSAN DISTRICT-573 750.
Digitally signed by
...APPELLANT
MOUNESHWARAPPA
NAGARATHNA
Location: HIGH (BY SMT. SREE VIDYA G. K., ADVOCATE)
COURT OF
KARNATAKA
AND:
1. M/S. THE ORIENTAL INSURANCE CO. LTD.
T. P. CLAIMS HUB
LEO SHOPPING COMPLEX
4TH FLOOR, RESIDENCY ROAD CROSS
BENGALURU-560 025.
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MFA No. 7553 of 2014
2. MR. SOMASHEKAR
S/O. SRI RAMAIAH
MAJOR
RESIDING AT NO.14, 14TH CROSS
BYATARAYANAPURA NEW EXTENSION
MYSURU ROAD
BENGALURU-560 026.
...RESPONDENTS
(BY SRI O. MAHESH, ADVOCATE, FOR R-1, &
VIDE ORDER DATED 23-11-2018, NOTICE TO R-2 IS HELD
SUFFICIENT)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 3-6-2014 PASSED IN
M.V.C. NO.3297 OF 2012 ON THE FILE OF THE MOTOR ACCIDENT
CLAIMS TRIBUNAL, XX ADDITIONAL SMALL CAUSES JUDGE,
BENGALURU, (SCCH-22), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL, HAVING BEEN HEARD
AND RESERVED ON 9-9-2024, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, VENKATESH NAIK T., J, PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
and
HON'BLE MR JUSTICE VENKATESH NAIK T
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MFA No. 7553 of 2014
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE VENKATESH NAIK T)
Challenging adequacy of compensation awarded to
him, claimant in M.V.C. No.3297 of 2012 on the file of the
Motor Accidents Claims Tribunal, XX Additional Small
Causes Judge, Bengaluru (SCCH-22), has preferred the
above appeal. By the impugned order, the Tribunal has
awarded a sum of Rs.3,69,000/- as compensation with
interest at the rate of 6% per annum from the date of
filing the claim petition till the date of realisation.
2. For the sake of convenience, the parties are
referred to henceforth in terms of their status before the
Tribunal.
3. The claimant filed M.V.C. No.3297 of 2012 under
Section 166 of the Motor Vehicles Act, 1988 (for short,
'Act'), seeking compensation of Rs.20,00,000/- from the
respondents for the injuries suffered by him in Motor
vehicle accident, that occurred on 29-03-2012 at about
7:00 a.m., when the claimant was proceeding on his
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motorcycle, bearing Registration No.KA-01/ER-8784 on
14th Main Road, near Maruthi Circle, Hanumanthanagara,
Bengaluru from South to North direction, at that time, the
Driver of autorickshaw, bearing Registration
No.KA-01 A-2365 came in high speed, rash and negligent
manner and hit the claimant's vehicle from hind side. Due
to the impact, the autorickshaw toppled on the claimant.
Thus, the claimant suffered grievous injuries. He was
shifted to K. R. Hospital for treatment and later, he was
shifted to Shekar Hospital, where he was treated as in-
patient.
4. The claimant contended that he had spent a sum
of Rs.2,00,000/- towards medical, conveyance and
nourishment expenses. At the time of accident, he was
working as Sales and Service Executive and was earning a
sum of Rs.15,000/- per month. Due to accidental injuries,
the claimant is not able to work as before and is suffering
from huge loss of income.
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5. The respondents appeared before the Tribunal and
filed written statement denying the claim of the claimant.
Respondent No.1, Insurer, admitted the fact that
autorickshaw was insured with it, but alleged that on the
date of accident, there was no valid permit to the
autorickshaw as that had expired on 07-03-2010. Later,
respondent No.2, owner of the autorickshaw, did not
renew the permit. Respondent No.2 has violated the terms
and conditions of the policy and therefore, respondent
No.1-Insurer is not liable to indemnify respondent No.2-
owner.
6. The Tribunal awarded compensation of
Rs.3,69,000/- (Out of Rs.7,38,000/-, 50% negligence by
the claimant and hence, the respondents are liable to pay
only 50% of the compensation award) on different heads
as per the table below:
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Awarded by
HEADS the Tribunal
(Rs.)
Pain and sufferings 35,000.00
Food, transportation, attendant
25,000.00
charges, etc.
Medical expenses (The claimant
reimbursement of Rs.1.00 lakh from
4,000.00
his employer i.e., 1,04,000-
1,00,000=4,000)
Loss of future income due to disability 6,74,000.00
TOTAL 7,38,000.00
3,69,000.00
Less: Compensation awarded by the (50% of the
Tribunal compensation of
Rs.7,38,000/-
7. The Tribunal held that on perusal of the complaint,
sketch and history in the medical record, the accident
occurred is not at all due to the negligent and rash driving
of the Driver of the autorickshaw and the claimant could
have lodged the complaint and impleaded the Driver and
owner of another vehicle which came in his front side, but
he has not done. Therefore, the Tribunal attributed 50%
negligence on the claimant and 50% on the Driver of the
autorickshaw. In so far as the liability is concerned, the
Tribunal held that respondent No.1 is liable to indemnify
the insured and hence, respondent Nos.1 and 2 are jointly
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and severally liable to pay the compensation to the
claimant.
8. Having heard the learned counsel for the parties
and perusing the records, the points that arise for our
consideration in this appeal are:
i. Whether the quantum of compensation
awarded by the Tribunal is just and reasonable?
ii. Whether the finding of the Tribunal on
contributory negligence calls for interference?
9. Learned counsel for the appellant/claimant
submits that the Tribunal has failed to notice that due to
paraplegia, the claimant has become totally disabled and
he has to engage the services of an attendant throughout
his life. He further submitted that the compensation
granted by the Tribunal is not just and reasonable.
Further, the Tribunal has not granted fair compensation
under the heads, 'loss of future income' and 'loss of
functional disability'. The Tribunal has not awarded
adequate compensation towards 'conveyance,
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nourishment and attendant charges', even though the
claimant had spent huge amount under this head. Further,
the Tribunal has not awarded adequate compensation
under the head 'loss of income during laid up period',
though the claimant was under continuous treatment for
more than three months. The Tribunal ought to have taken
note of evidence of the Doctor and assessed compensation
under the head 'loss of amenities'. The Tribunal ought to
have taken functional disability at 100%. The Tribunal has
not awarded any compensation towards 'future medical
expenses and other incidental expenses'. Further, the
Tribunal recorded a finding that there is contributory
negligence on the part of the claimant, but the same is not
based on any evidence. Hence, he prayed to allow the
appeal.
10. Learned counsel for respondent No.1/ Insurance
Company submits that the Tribunal considering the
medical evidence as well as the oral evidence and other
exhibited documents has granted reasonable
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compensation. He further submitted that no grounds are
made out for seeking enhancement of compensation.
Further, the Tribunal after careful perusal of the complaint,
sketch and history in the medical record provided by the
claimant himself, held that the accident is not due to the
rash and negligent driving of the Driver of the
autorickshaw. Therefore, the Tribunal rightly awarded
50% contributory negligence on the claimant and 50% on
the respondents. Hence, he prayed to dismiss the appeal.
ANALYSIS
11. The initial burden of proving the fact, that on
29-03-2012 at 7:00 a.m., the Driver of offending vehicle
viz., autorickshaw, bearing Registration No.KA-01 A-2365,
drove the same in a rash and negligent manner, so as to
endanger the human life and hit the motorcycle of the
claimant, bearing Registration No.KA-01/ER-8784, and
thereby caused severe injuries to the claimant, is on the
claimant. To discharge the said burden, the claimant was
examined as PW1. In his evidence, he has reiterated the
contents of the claim petition. He relied upon Ex.P1-F.I.R.,
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Ex.P2-complaint, Ex.P3-rough sketch, Ex.P4-spot
mahazar, Ex.P5-charge-sheet and Ex.P6-MVI's report to
show that the Driver of autorickshaw came in a rash and
negligent manner and dashed against the motorcycle of
the claimant from hind side. As per Column No.7 of the
charge-sheet, the Investigating Officer made the Driver of
autorickshaw as the accused and nothing has been placed
on record to show that the claimant contributed his
negligence. As per the contents of the complaint, F.I.R.
and charge-sheet, the Driver of autorickshaw caused the
accident.
12. In order to rebut the above evidence and to
prove contributory negligence, the owner or the Driver of
the autorickshaw or any eyewitnesses were not examined
before the Tribunal. They have not challenged the contents
of the charge-sheet. In the absence of such material, the
Tribunal was on error in holding that there was
contributory negligence on the part of the claimant.
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13. So far as injuries are concerned, claimant/PW1
has reiterated the averments made in the petition.
According to him, on the day of the accident, the Driver of
autorickshaw came in a rash and negligent manner and
dashed against his motorcycle. Hence, he suffered
abrasion over both hands. Wound Certificate-Ex.P7
discloses MRI S/O L1 vertebral body fracture with spinal
cord compression with contusion. As per the opinion of the
Doctor, injury No.1 is simple and injury No.2 is grievous in
nature. Apart from that, the claimant also suffered severe
injury to his vital organ which resulted in permanent
partial disability of 22% to the whole body.
14. In support of his evidence, the claimant got
examined PW5-Doctor who has stated that the claimant
has permanent partial disability of 22% to the whole body.
Further, the claimant got examined PW3-Dr. Nagesh,
Neurosurgeon. In his evidence, PW3 has stated that the
claimant was admitted at Shekar Hospital, Bengaluru,
from 29-03-2012 to 13-04-2012 and he was operated for
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decompression with stabilisation with pedical screw T12-L2
and interconnecting cross bars for fracture sub-luxation of
L1-bone with paraplegia. As per the opinion of PW3-
Doctor, the claimant has no movement in both lower
limbs, no sensation below umbilicus, no control of urine,
no control of stools, hence, he has issued disability to the
whole body at 61.66%. In the cross-examination, he
admitted that he has not personally treated the claimant,
he has not seen any records of the claimant and he has
not gone through the in-patient records of the claimant.
He has not gone through the Wound Certificate of the
claimant and not taken opinion from the treated Doctor of
the claimant.
15. In this case, the Tribunal has observed that the
claimant suffered two injuries, injury No.1 is simple in
nature and injury No.2 is grievous in nature. As per the
Circular issued by the Karnataka State Legal Services
Authority, for one grievous injury, the claimant is entitled
for amount of Rs.40,000/- and for simple injury, he is
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entitled for amount of Rs.5,000/-. However, considering
the nature of injuries sustained by the claimant, the
claimant is entitled for Rs.50,000/- under the head 'Pain
and sufferings'.
16. The Tribunal awarded a sum of Rs.25,000/-
towards 'traveling expenses, conveyance, attendant
charges, food and nourishment', which is fair and
reasonable.
17. The Tribunal awarded a sum of Rs.1,04,000/-
towards 'medical expenses' and it was as per the bills
produced by the claimant. The Tribunal observed that the
claimant, in his cross-examination, admitted that he has
obtained reimbursement of Rs.1.00 lakh from his employer
and thus, the Tribunal awarded only Rs.4,000/- under the
said head. In this regard, the Larger Bench of the Hon'ble
Supreme Court in the case of SEBASTIANI LAKRA AND
OTHERS v. NATIONAL INSURANCE COMPANY
LIMITED AND ANOTHER reported in AIR 2018 SC
5034 has held that deduction cannot be allowed from the
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amount of compensation either on account of insurance or
on account of pensionary benefits, gratuity or grant of
employment to a kin of the deceased/victim. It was further
held that all such amounts were earned by the
deceased/victim on account of contractual relationship
entered into by him with others.
18. Towards 'loss of future income', the Tribunal has
rightly awarded a sum of Rs.6,73,200/- (rounded off to
Rs.6,74,000/-) considering the pay slips of the claimant at
Rs.15,000/- per month, multiplier applicable is 17 and
disability at 22%. Hence, the said awarded amount under
this head is maintained.
19. The Tribunal has not awarded any compensation
under the head 'loss of income during the laid up period'.
A sum of Rs.30,000/- is awarded under this head
considering the income at Rs.15,000/- per month for a
period of two months.
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20. The Tribunal has not awarded any compensation
under the head 'loss of amenities'. Considering the nature
of injuries and disability suffered by the claimant, a sum of
Rs.30,000/- is awarded under this head.
21. The finding with regard to contributory
negligence, the Driver of autorickshaw caused the accident
as per the complaint, F.I.R., spot mahazar and charge-
sheet and therefore, the Driver of autorickshaw was held
responsible for the accident. Since the autorickshaw was
insured with respondent No.1-Insurer, it is liable to pay
entire compensation to the claimant. Hence, the finding of
the Tribunal saddling 50% contributory negligence to the
claimant is liable to be set aside.
22. Just compensation payable to the claimant is as
follows:
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Awarded by Awarded by
HEADS the Tribunal this Court
(Rs.) (Rs.)
Pain and sufferings 35,000.00 50,000.00
Food, transportation, attendant
25,000.00 25,000.00
charges, etc.
Medical expenses 4,000.00 1,04,000.00
Loss of future income due to
6,74,000.00 6,74,000.00
disability
Loss of income during laid up
- 30,000.00
period
Loss of amenities - 30,000.00
TOTAL 7,38,000.00 9,13,000.00
3,69,000.00
Less: Compensation awarded (50% of the
by the Tribunal compensation of
Rs.7,38,000/-
23. Appeal deserves to be allowed-in-part. Hence, the
following:
ORDER
i. The appeal is allowed-in-part with costs.
ii. The claimant is entitled to compensation of
Rs.9,13,000/- as against Rs.3,69,000/- awarded
by the Tribunal with interest at the rate of 6% per
annum from the date of filing of the claim petition
till the date of its realisation.
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iii. Respondent No.1/Insurance Company is directed
to deposit the enhanced compensation amount
together with interest within a period of six weeks'
from the date of this judgment.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
KVK
