Karnataka High Court

Sri R T Bachhe Gowda vs M/S Bajaj Allianz General Insurance ... on 7 March, 2025

                                              -1-
                                                           NC: 2025:KHC:9899-DB
                                                     MFA.CROB No. 124 of 2014
                                                     C/W MFA No. 1252 of 2014



                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 7TH DAY OF MARCH, 2025

                                           PRESENT
                             THE HON'BLE MRS JUSTICE K.S.MUDAGAL
                                              AND
                             THE HON'BLE MR JUSTICE C.M. POONACHA
                         MFA CROSS OBJECTION NO. 124 OF 2014 (MV-I)
                                           C/W
                     MISCELLANEOUS FIRST APPEAL NO. 1252 OF 2014 (MV-I)

                   IN MFA CROB No.124/2014

                   BETWEEN

                   SRI R T BACHHE GOWDA
                   SON OF LATE THAMMANNA
                   AGED ABOUT 44 YEARS
                   RESIDENT OF MELUR
                   SIDDLAGHATTA POST AND TALUK
                   CHICKBALLAPURA DISTRICT 562012.
                   SINCE INJURED AND IN
                   ALTERED SENSORIUM
                   REPRESENTED BY HIS WIFE
                   SMT M MUNIRATHNA
                   AS HIS NEXT FRIEND
                                                             ... CROSS OBJECTOR
Digitally signed
by NIRMALA         (BY SMT V VETRI LAXSHMI, ADVOCATE FOR
DEVI                   SRI VASANTHAPPA, ADVCOATE)
Location: HIGH
COURT OF           AND
KARNATAKA
                   1 . M/S BAJAJ ALLIANZ GENERAL
                       INSURANCE COMPANY LTD.,
                       #31, GROUND FLOOR,
                       PBR TOWERS,
                       1ST CROSS, NEW MISSION ROAD
                       NEXT TO BANGALORE
                       STOCK EXCHANGE
                       BANGALORE 560024

                   2 . SRI BHARADWAJ
                               -2-
                                         NC: 2025:KHC:9899-DB
                                    MFA.CROB No. 124 of 2014
                                    C/W MFA No. 1252 of 2014



     S/O A S GOPALARATHNAM
     #44, 4TH MAIN ROAD
     GANGANAGAR EXTENSION
     BANGALORE 560032
                                               ...RESPONDENTS
(BY SRI O MAHESH, ADVOCATE FOR R1
 R2 SERVED)

      THIS MFA CROB IN MFA NO.1252/2014 IS FILED U/O 41 RULE
22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED
07.11.2013 PASSED IN MVC NO.2233/2008 ON THE FILE OF THE VIII
ADDITIONAL SMALL CAUSE JUDGE, & XXXIII ACMM, MEMBER, MACT,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION
AND ETC.

IN MFA No.1252/2014

BETWEEN

THE LEGAL MANAGER
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LIMITED,
NO.31, GROUND FLOOR, PBR TOWERS,
1ST CROSS, NEW MISSION ROAD,
NEXT TO BANGALORE STOCK EXCHANGE,
BANGALORE-560024.
NOW AT BAJAJ ALLIANZ GENERAL
INSURANCE CO.LTD.,
REGIONAL OFFICE GOLDEN HEIGHTS,
4TH LEVEL, NO.1/2, 59TH CROSS,
4TH "M" BLOCK, RAJAJINAGAR,
BANGALORE-560010
BY ITS MANAGER.
                                                  ...APPELLANT
(BY SRI O MAHESH, ADVOCATE)

AND

1.    SRI R.T. BACHHE GOWDA
      AGED ABOUT 50 YEARS,
      S/O LATE THAMMANNA,
      RESIDENT OF MELUR,
      SHIDDLAGHATTA POST & TALUK 562105
      CHICKBALLAPURA DISTRICT.
                                -3-
                                          NC: 2025:KHC:9899-DB
                                     MFA.CROB No. 124 of 2014
                                     C/W MFA No. 1252 of 2014




     SINCE INJURED ALLEGED IN COMA STATE,
     REPRESENTED BY HIS WIFE
     SMT M MUNIRATHNA AS HIS NEXT FRIEND.

2.   SRI BHARADWAJ
     MAJOR,
     S/O.A.S. GOPALARATHNAM,
     NO.44, 4TH MAIN ROAD,
     GANGANAGAR EXTENSION,
     BANGALORE-560032.
     (EX-PARTE BEFORE MACT)
                                                ...RESPONDENTS
(BY SMT V VETRI LAXSHMI, ADVOCATE FOR
    SRI VASANTHAPPA, ADVOCATE FOR R1
    R2 SERVED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 7.11.2013 PASSED IN MVC
NO.2233/2008 ON THE FILE OF THE 8TH ADDITIONAL SMALL
CAUSES JUDGE, 33RD ACMM, MEMBER, MACT, BANGALORE,
AWARDING A COMPENSATION OF RS.8,41,000/- WITH INTEREST @
8% P.A FROM THE DATE OF PETITION TILL REALIZATION OF SAME
FROM THE RESPONDENTS AND ETC.

     THE CROSS OBJECTION AND APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 27.01.2025, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, POONACHA.J.,
DELIVERED THE FOLLOWING:


CORAM:    HON'BLE MRS JUSTICE K.S.MUDAGAL
          and
          HON'BLE MR JUSTICE C.M. POONACHA



                       CAV JUDGMENT

(PER: HON'BLE MR JUSTICE C.M. POONACHA)

The above appeal is filed by the insurer and the cross

objection is filed by the claimant. Since in the appeal and the

cross objection, the judgment and award dated 07.11.2013

NC: 2025:KHC:9899-DB

passed in MVC No.2233/2008 by VIII Additional Small Causes

Judge & XXXIII ACMM, Member - MACT., (SCCH - 5),

Bengaluru1 is impugned, they are taken up together for

consideration.

2. Parties are referred to as per their ranks before the

Tribunal for the sake of convenience.

3. It is the case of the claimant that on 09.03.2008 at

about 10.00 pm., after attending a marriage function at Sri

Gandha Palace, B.B. Road, Kodige Halli Gate, when he was

returning towards his car, motorcycle bearing registration

No.KA-04-ET-7066 driven by respondent No.2 in a rash and

negligent manner, hit the claimant causing the accident in

question, wherein the claimant fell down and sustained

grievous injuries, for which, he took treatment at various

hospitals. Claiming compensation for the injuries sustained, the

claimant instituted the claim proceedings through his wife

arraying the insurer and owner of the motorcycle as respondent

Nos.1 and 2 before the Tribunal respectively.

Hereinafter referred to as the 'Tribunal'

NC: 2025:KHC:9899-DB

4. Respondent No.1 - insurer entered appearance and

contested the claim proceedings. Respondent No.2 - owner

has remained ex parte. The wife of the claimant got examined

herself as PW.1, Medical Record Keeper as PW.2 and two

Doctors as PW.3 and CW.1. Exs.P1 to P30 were marked in

evidence. Respondent No.1 - insurer got examined its

investigator as RW.1 and marked Exs.R1 to R8. The Tribunal,

by its judgment and award dated 07.11.2013 partly allowed the

claim petition and awarded a sum of `8,41,000/- together with

interest @ 8% per annum and held that respondent No.1-

insurer is liable to pay the compensation awarded. Being

aggrieved, the above appeal and the cross objection have been

filed.

5. Sri O. Mahesh, learned counsel appearing for the

appellant-insurer vehemently contends that the claim

proceedings have been initiated by the claimant through his

wife without any application under Order XXXII of Code of Civil

Procedure, 19082 being filed. Hence, it is contended that the

claim petition is liable to be dismissed. It is further contended

that the evidence adduced by the insurer, more particularly,

Hereinafter referred to as 'CPC'

NC: 2025:KHC:9899-DB

the investigation done by the investigator appointed by the

insurer and the Compact Discs3 that have been marked in

evidence as Ex.R1, 2 and 4 to 7 clearly falsify the testimony

adduced on behalf of the claimant that he had suffered 100%

disability. Hence, it is contended that the insurer having

demonstrated the falsity of the evidence adduced by the

claimant, the claim petition is liable to be rejected.

Alternatively, it is contended that quantum of compensation

awarded by the Tribunal is on higher side and the interest

awarded is also excessive.

6. Per contra, Smt. V. Vetri Laxshmi learned counsel

appearing for the cross objectors/claimants submits that the

insurer has not disputed the occurrence of the accident and the

involvement of the injured as well as the negligence on the part

of the rider of the insured motorcycle in causing the accident in

question. Hence, it is submitted that the Tribunal, even after

taking into consideration the evidence adduced by the

investigator of the insurer has awarded compensation. It is

further submitted that the quantum of compensation is

Hereinafter referred to as 'CDs'

NC: 2025:KHC:9899-DB

required to be enhanced. It is further contended that the wife

of the claimant has represented in the claim proceedings since

the claimant was injured and in coma stage at the time of filing

the claim proceedings. Unlike Order XXXII Rule 3 of CPC qua

minor defendant, Order XXXII Rule 1 of CPC does not

contemplate filing an application for appointment of next friend

of a plaintiff/petitioner. Hence, learned counsel seeks for

dismissal of the appeal and allowing of the cross objection.

7. The submissions of both the learned counsels have

been considered and the material on record have been perused

including records of the Tribunal. The questions that arise for

consideration are;

i) Whether the claim proceedings initiated by the wife of the claimant are maintainable?

ii) Whether the Tribunal was justified in awarding compensation, notwithstanding the evidence adduced by the insurer?

iii) Whether the quantum of compensation awarded by the Tribunal is just and proper?

Analysis Reg. Point No.(i):

8. The claim proceedings have been filed by the wife

of the claimant on behalf of the claimant. In the cause title of

NC: 2025:KHC:9899-DB

the claim petition, it is mentioned that since the claimant was

injured and in a coma stage he is represented in the claim

petition by his wife as his next friend. The claim petition has

also been signed by the wife of the claimant. The wife of the

claimant has examined herself as PW.1 and has spoken to

about the mental and physical condition of the claimant. The

claimant has not been examined. However, it is forthcoming

from the material on record that he was brought before the

Tribunal in a wheel chair.

9. Order XXXII of CPC permits institution of the

proceedings through a next friend if the plaintiff is unable to

represent himself/herself. It is also relevant to note that Order

XXXII Rule 1 CPC does not mandate filing of an application by

the next friend of a person under a legal disability to initiate

proceedings, whereas Order XXXII Rule 3 of CPC requires filing

such application for minor defendant. In any event, strict rules

of pleadings are not applicable to proceedings under Section

166 of the Motor Vehicles Act, 19884. Having regard to the

assertion made on behalf of the claimant at the time of filing

Hereinafter referred to as 'MV Act'

NC: 2025:KHC:9899-DB

the claim petition that the claimant is unable to represent

himself and no material having been produced by the insurer

to demonstrate that as on the date of the claim petition, the

claimant was in a position to represent himself, the claim

proceedings instituted by the wife of the claimant on behalf of

the claimant is just and proper. Hence, question No.(i) framed

for consideration answered in the affirmative.

Reg. Point Nos.(ii) and (iii):

10. The wound certificate (Ex.P4) discloses that the

claimant sustained left fronto temporal contusion, subdural

hematoma, fracture of frontal and temporal bones and left optic

nerve injury. The discharge summary issued by Columbia Asia

Medical Centre, Hebbal (Ex.P6) discloses that the claimant was

admitted to the said hospital on 9.3.2008 and discharged on

27.3.2008 and a surgery was performed on 10.3.2008 for the

subdural hematoma. The discharge summary issued by

Bangalore Baptist Hospital (Ex.P7) discloses that the claimant

was admitted to the said hospital on 27.3.2008 and discharged

on 25.4.2008.

- 10 -

NC: 2025:KHC:9899-DB

11. The wife of claimant examined herself as PW.1 and

she has deposed that even after the treatment of the claimant

in various hospitals, there are behavioural changes and he has

developed different attitude towards family members. That the

claimant has exhibited aggressive and erratic behaviour. PW.1

has been elaborately cross-examined.

12. The Medical Record Keeper of Columbia Asia

Hospital has been examined as PW.2, who has produced and

marked the medical records pertaining to the claimant.

13. Dr.Sharad Samson Rajamani has been examined as

PW.3 and he has deposed that he is a consultant surgeon at

Columbia Asia Hospital. He has deposed regarding the injuries

sustained by the claimant and the treatment undertaken at the

hospital. He has further deposed that the claimant is assessed

with 100% disability both physically and mentally. PW.3 has

been elaborately cross-examined and during the course of

cross-examination by the learned counsel for the insurer, PW.3

was confronted with various video recordings which have been

stored in CDs and which were played to PW.3. PW.3 has

identified that the person who has been video graphed is the

- 11 -

NC: 2025:KHC:9899-DB

claimant. The CDs that were confronted to PW.3 have been

marked as Exs.R1, R2, R4 to R7. The video recording that was

stored in the CDs was also played and viewed. Ex.P24 is the

Physical Impairment Assessment Certificate issued by PW.3,

wherein it is stated that the physical impairment of the

claimant is 100%. The neuro psychological assessment by one

R.Premalatha, Clinical Psychologist dated 26.6.2009 is marked

as Ex.P25 and it is stated that the claimant has lost sensation

in the right side of his upper and lower limbs and that the

claimant appeared blank and was not able to follow any

instruction and would move his body only with support.

14. It is forthcoming that the claimant has been video

graphed as sitting in the wheel chair when he has appeared

before the Tribunal. However, in the other video recordings,

the claimant is walking around effortlessly and carrying on his

daily activity as well as riding on a two wheeler. The video

recording in Ex.R5 is dated 17.4.2009 when he was present in

the Court in the wheel chair and the video recording in Ex.R6 is

dated 8.12.2009 when he is seen walking and doing his daily

activities on his own. The video recordings at Exs.R4 and R7

- 12 -

NC: 2025:KHC:9899-DB

are dated 7.3.2013, where he is seen walking and standing in

front of a shop without any discomfort.

15. Dr.Jamuna Rajeswaran has been examined as

CW.1, who is an Additional Professor, Department of Clinical

Psychology, NIMHANS Hospital, Bengaluru. She has deposed

regarding psychological effect of the claimant. She has also

admitted that the person in the video recording is the claimant.

16. The investigator appointed by the insurer has been

examined as RW.1 and he has deposed that he was entrusted

by the insurer to investigate with regard to the claim made by

the claimant and that pursuant to the said investigation he has

done the video recording.

17. The Tribunal while appreciating the oral and

documentary evidence available on record has noticed the

evidence adduced by the insurer and that the claimant is seen

moving around in the video recording, which is contrary to the

medical evidence adduced by the claimant and hence, has

awarded a sum of `1.00 lakhs towards pain and suffering.

- 13 -

NC: 2025:KHC:9899-DB

18. The Tribunal has noticed the medical bills produced

as Exs.P21 to P30 (94 Nos.) and noticed that the same

amounts to `4,03,669/-. Hence, the Tribunal has awarded

medical expenses in a sum of `4,05,000/-.

19. The Tribunal has further awarded a sum of `1.00

lakh towards food, diet, nourishment, transportation charges,

attendant charges and conveyance.

20. The Tribunal taken the laid up period as 6 months

and considering the avocation of the claimant, has assessed the

monthly income of the claimant at `6,000/- and awarded a sum

of `36,000/- towards loss of income during laid up period. The

Tribunal has awarded a sum of `1.50 lakhs towards loss of

amenities and a further sum of `50,000/- under the other

heads.

21. It is relevant to note that the insurer has not

disputed the occurrence of the accident or the injuries

sustained by the claimant, for which has taken treatment. It is

clear from the wound certificate (Ex.P4) and discharge

summaries (Ex.P6 and P7) that the claimant had suffered head

injury resulting in fronto temporal contusion, subdural

- 14 -

NC: 2025:KHC:9899-DB

hematoma and fracture of frontal and temporal bones as also

injury to the left optic nerve. It is further forthcoming that the

claimant was treated as an inpatient from 9.3.2008 to

25.4.2008 i.e., for a period of 48 days.

22. Although the claimant has adduced the testimony

of the doctors as PW.3 and CW.1, having regard to the said

doctors admitting that the claimant is seen walking around in

the video recordings which have been placed on record vide the

CDs., at Exs.R2 and R4, it is clear that the claimants have

miserably failed in demonstrating that he has suffered any

permanent disability. However, keeping in mind the fact that

the claimant was treated as an inpatient for 48 days, the

compensation awarded by the Tribunal in a sum of `1.00 lakh

towards pain and suffering is affirmed by construing the same

as compensation towards injury, pain and suffering.

23. The Tribunal has assessed the monthly income of

the claimant at `6,000/- p.m. Although the claimant has

produced Exs.P10 to P16 and it is sought to be contended that

the claimant is a milk vendor, agriculturist and sericulturist, no

documents have been produced to prove the income of the

- 15 -

NC: 2025:KHC:9899-DB

claimant. Hence, the income of the claimant is required to be

assessed notionally and having regard to the avocation of the

deceased, date of the accident and the then price index the

income of the claimant is re-assessed at `4,500/- p.m. The laid

up period of six months assessed by the Tribunal is just and

proper. Hence, the loss of income during laid up period is re-

assessed at (`4,500/-x6) `27,000/-.

24. The Tribunal has awarded medical expenses in a

sum of `4,05,000/-, which is as per the actual bills produced by

the claimant, hence the same is just and proper.

25. Having regard to the nature of injuries, the period

of treatment as an inpatient, the claimant would have definitely

required the assistance of an attendant during the time he was

treated as an inpatient as well as for sometime thereafter.

Having regard to the totality of the circumstances, a

compensation of `1.00 lakh awarded towards food, nutrition

and attendant charges by the Tribunal is just and proper.

26. Having regard to the fact that the claimant has

failed to prove any disability and also keeping in mind the fact

that the claimant has not adduced any evidence to demonstrate

- 16 -

NC: 2025:KHC:9899-DB

that he has taken any treatment for the eye injury and that no

doctor has been examined in that regard, the claimant has

failed to demonstrate that he has sustained any permanent

disability. Under the circumstances, the compensation awarded

by the Tribunal in a sum of `2.00 lakhs towards loss of

amenities and other heads is without any basis and liable to be

set aside.

27. Hence, the compensation is re-assessed as follows:

Sl.No.               Heads                     Amount          Amount
                                           awarded by the awarded by this
                                             Tribunal(`)      Court(`)
1        Pain and sufferings                    1,00,000/-      1,00,000/-
2        Medical expenses                       4,05,000/-      4,05,000/-
3.       Loss of income during laid              36,000/-         27,000/-
         up period
4.       Food, diet, nourishment,               1,00,000/-      1,00,000/-
         transportation        charges,
         attendant             charges,
         conveyance, etc.
5        Permanent disability, loss             2,00,000/-               0/-
         of amenities, etc.,
                     Total                      8,41,000/-      6,32,000/-
                                    - 17 -
                                                       NC: 2025:KHC:9899-DB

28. In view of the discussion made above, question

Nos.(ii) is answered in the affirmative and question No.(iii) is

answered in the negative.

29. The Tribunal without any basis has awarded interest

at 8% p.a. Hence, the contention of the learned counsel for

the insurer in this regard is required to be upheld and the

interest is liable to be awarded at 6% p.a.

30. In view of the aforementioned, the following: