Partly allowed

M/S National Insurance Company Ltd. v. Mr Dattatareya T R

Karnataka HC2 Dec 2020MFA/2280/2018

Case brief

AI extract

What is this about?

High Court allowed part of the claimant's appeal and dismissed the insurer's appeal. The Court upheld the Tribunal's finding of negligence but enhanced compensation from Rs.22.38 lakh to Rs.35.97 lakh based on higher income evidence, while keeping liability intact.

What did the court decide?

Compensation enhanced to Rs.35,97,334/- with interest at 6% p.a.; insurer directed to deposit amount within 90 days; liability and disbursement of Tribunal order intact.

M/S National Insurance Company Ltd. Vs Mr… — Contract and Commercial Disputes | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF DECEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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M.F.A.No.2280/2018 c/w M.F.A.No.4812/2018 (MV)

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IN M.F.A.No.2280/2018:

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BETWEEN :

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M/s NATIONAL INSURANCE COMPANY LTD., ABOVE HARSHA COMPLEX BH ROAD, SHIVAMOGGA REP BY REGIONAL OFFICER SITUATE AT SUBHARAM COMPLEX No.144, M.G.ROAD, BANGALORE-560 001 REP BY C.K.PARIMALA. ...APPELLANT

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(BY SMT.GEETHA RAJ, ADV.)

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AND :

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Mr. DATTATAREYA T.R., S/O RATHNAKARA K., AGED ABOUT 45 YEARS REP BY HIS WIFE Mrs. PRATHIBA A.N., W/O DATTATAREYA T.R., AGED ABOUT 36 YEARS R/O No.69, RAGHAVENDRA COLONY KOTE, KADUR TOWN CHIKKAMAGALUR DISTRICT NOW R/O 5^TH CROSS A-BLOCK, SHARAVATHI NAGAR SHIVAMOGGA-577 201.

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SHIVA ROAD LINES KIADB INDUSTRIAL AREA MACHENAHALLI, NIDIGE, SHIVAMOGGA-577 201. OWNER OF THE VEHICLE BEARING REG: No.KA14 A 7389.

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Mr. KALYAN KUMAR S/O PUTARAJU AGED ABOUT 43 YEARS R/O SUBBHASH NAGAR BEHIND JANATHA RICE MILL HOSAMANE, BHADRAVAHI-577 301. …RESPONDENTS

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(BY SMT.MANJULA R.KAMADALLI, ADV. FOR R-1; R-2 & R-3 ARE SERVED AND UNREPRESENTED)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 05.12.2017 PASSED IN MVC No.719/2016 ON THE FILE OF THE 3^RD ADDITIONAL DISTRICT JUDGE & ADDITIONAL MACT-3, SHIVAMOGGA, AWARDING COMPENSATION OF RS.22,38,963/WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN M.F.A.No.4812/2018:

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BETWEEN :

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DATTATHREYA T.R. S/O RATHNAKARA K., AGE: 45 YEARS REP BY HIS WIFE SMT.PRATHIBHA A.N., W/O DATTATREYA T.R., AGED ABOUT 36 YEARS R/O No.69, RAGHAVENDRA COLONY KOTE, KADUR TOWN CHIKKAMAGALUR DISTRICT NOW R/O 5^TH CROSS A-BLOCK, SHARAVATHI NAGAR SHIVAMOGGA-577 201. ...APPELLANT

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(BY SMT.MANJULA R.KAMADALLI, ADV.)

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AND :

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M/s SHIVA ROAD LINES K.I.A.D.B. INDUSTRIAL AREA MACHENAHALLI, NIDIGE, SHIVAMOGGA-577 201. OWNER OF THE VEHICLE BEARING REG: NO.KA.14-A-7389.

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SRI KALYAN KUMAR S/O PUTTARAJU AGED ABOUT 43 YEARS R/O SUBHASH NAGAR BEHIND JANATHA RICE MILL HOSAMANE, BHADRAVATHI-577 301.

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THE DIVISIONAL MANAGER THE NATIONAL INSURANCE CO. LTD., BOVE HARSHA COMPLEX BH ROAD, SHIVAMOGGA-577 201. …RESPONDENTS

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(BY SMT.GEETHA RAJ, ADV. FOR R-3; NOTICE TO R-1 & R-2 ARE SERVED AND UNREPRESENTED.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 05.12.2017 PASSED IN MVC No.719/2016 ON THE FILE OF THE 3^RD ADDITIONAL DISTRICT JUDGE & ADDITIONAL MACT-3, SHIVAMOGGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS COMING ON FOR HEARING, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Both the insurer as well as the claimant are before

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this Court challenging the judgment and award dated 5.12.2017 passed in MVC No.719/2016 by the III Addl. District Judge & Addl. MACT-III, Shivamogga ['Tribunal' for short].

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The petition averments are that on 17.4.2016 the claimant while moving on his bike bearing Reg.No.KA-18-W-4652 on NH 206, opposite to Fire Office, Kadur Town, Chikkamagalur District, met with the road traffic accident owing to the speeding lorry bearing Reg. No.KA-14-A-7389 [offending vehicle] crashing against his vehicle.

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It was alleged that actionable negligence on

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the part of the driver of the offending vehicle coming from the opposite direction on the wrong side in an endangerous manner was the cause of the accident in

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question. Immediately after the accident, the driver of the offending vehicle fled away from the spot with the lorry. Due to the impact of accident, the claimant had sustained grievous injuries. He was shifted to various hospitals for medical treatment and underwent several surgeries. Despite the best treatment given, he was not able to regain his consciousness. As the victim was under coma, the petition was filed by the wife of the claimant. Two attenders and two nurses were required to take care of him. He was on constant medication, the feeding has to be made through the nose from rice tube.

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It was contended that the victim was working as a stock and commodity broker in Kadur town under the National Stock Exchange and Multi Commodity Exchange Member Fortune Trading Corporation. He was earning more than Rs.2,00,000/per month. Due to the ill-fated accident, the life of the

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victim is ruined and the family members are badly effected. The victim through his wife has filed the petition claiming compensation of Rs.5,05,00,000/- for the damages caused due to the accident in question.

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On service of notice, owner and driver of the offending vehicle remained absent. Insurer appeared through its counsel and field objections resisting the claim. The main defence set up was, the false implication of the vehicle insured inter alia disputing the income and age.

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Based on the pleadings, the following issues

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were framed:

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Whether the petitioner proves that on 17.4.2016 he was riding the bike Reg.No.KA-18W-4652 in order to go to his home on NH 206 opp. to Fire Office, Kadur Town, Chikkamagalur District, at that time, a lorry bearing Reg.No.KA-14-A-7389 being driven by the 2^nd respondent in a rash and

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negligent manner endangering to human life, from the opposite direction in extreme right side of the road and dashed to the petitioner’s bike, due to which petitioner sustained grievous injuries?

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Whether the petitioner is entitled for compensation as sought? If so, to what extent and from whom?

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What order or award?

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On behalf of the claimant, his wife got

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examined as PW-1 and Exs.P1 to P24 were marked.

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Sri.Dinesh, an eye witness to the accident was examined as PW-2. Dr.Vishwanath I.D. was examined as PW-3. The doctor who had conducted various surgeries on the victim got examined through Court Commissioner as CW-1 and got marked documents Exs.C1 to C6.

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On behalf of the respondent No.3, Senior

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Assistant got examined as RW-1 and Exs.R1 to R4 were marked.

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On appreciation of oral and documentary

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evidence, the Trial Court answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and issue No.3 was answered partly allowing the claim petition with costs holding that the claimant is entitled for compensation of Rs.22,38,963/- with interest @ 6% p.a. from the date of petition till realization fastening the liability on the insurer.

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Being aggrieved, the insurer has preferred MFA No.2280/2018 challenging the negligence, liability as well as the quantum of compensation awarded by the Tribunal, whereas the claimant has preferred MFA No.4812/2018 seeking for enhancement of

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compensation.

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Learned counsel for the insurer vehemently

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argued that there was delay of two days in lodging the police complaint. Admittedly, the driver of the offending vehicle did not stop the vehicle after the alleged accident. PW-2, an interested witness being the friend of the claimant was examined as an eye witness who indeed was not present at the time of the accident. Firstly, it was argued that the IMV report would indicate that the motor cycle was extensively damaged on the front portion and there were no damages to the alleged offending vehicle. Secondly, as per the IMV report, it emanates that the claimant was riding the motor cycle in a rash and negligent manner with high speed and has dashed to the oncoming vehicle. Thirdly, it was submitted that the evidence of PWs.1 and 2 would indicate that the claimant was not wearing the helmet at the time of the accident. The claimant having ignored the mandate of law, cannot claim compensation.

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It was further argued that the Tribunal erred in considering the income of the claimant at Rs.10,000/- without any basis and the same ought to have been on the lower side.

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Learned counsel for the claimant submitted that the Tribunal has profusely analysed the evidence on record to arrive at the conclusion inasmuch as the negligence and liability is concerned. However, ignoring the income tax returns filed for the assessment years 2013-14, 2014-15 and 2015-16, determined the income notionally at Rs.10,000/- per month. Accordingly, she seeks for enhancement of compensation. It was submitted that the compensation awarded under the different heads is meager and the same has to be enhanced substantially.

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Having heard the learned counsel for the parties and perusing the material on record, the points that arise for our consideration are:

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Whether the finding of the Tribunal on issue No.1 framed by the Tribunal requires any interference by this Court insofar as the negligent act of the driver of the offending vehicle is concerned?

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Whether the compensation awarded by the Tribunal is just and proper?

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Point No.1 : The spot sketch available on

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record as per Ex.P4 would reveal that the motor cycle of the claimant was moving towards Kadur town and offending vehicle (lorry) was coming from the opposite direction from Kadur town. It was a head on collision. The motor bike was moving on the extreme left side of the road. The offending vehicle has moved towards the right side. The spot sketch would establish the rash and negligent driving of the driver of the offending vehicle in causing the accident in question. As regards the involvement of the offending vehicle, though learned counsel for the insurer made an endeavour to absolve

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the insurer from the liability, but the documentary evidence do no support the same. Even in the FIR Ex.P2 the registration number of the offending vehicle has been mentioned as KA-14-A-7389. Merely for two days delay in lodging the complaint by the wife of the victim, it cannot be held that the offending vehicle was falsely implicated. Having regard to the grievous nature of injuries sustained by the victim, it is unrealistic to expect the family members to rush to the police station to lodge the complaint rather than attending to the emergency care and medical treatment of the victim. Spot mahazar at Ex.P4 along with the spot sketch supports the case of the claimant.

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The argument of the learned counsel for the

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insurer that there was contributory negligence on the part of the claimant in not wearing the helmet also requires to be rejected for the reason that the said violation is not proved. Even the police records does not

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disclose the same. The evidence of PW2 demonstrates that the photo of the offending vehicle number was taken by him in his mobile phone and the same was made available to the police station. The public had gathered at the time of the accident. For the suggestion made in the cross examination that the claimant had not used the helmet at the time of the accident, he has expressed his ignorance about the same. That would not be considered as the admission of PW-2 that the victim was not wearing the helmet at the time of the accident. Merely on surmises and conjunctures, no contributory negligence can be fixed on the victim of the road traffic accident. Pleadings supported by material evidence are necessary for attributing contributory negligence. In the absence of such material evidence, no contributory negligence could be apportioned on the claimant.

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Point No.2 : As regards the determination of

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the income, it is discernable from the income tax returns that the claimant was regularly filing the income tax returns and paying the tax. Considering the income tax returns filed during 2013-14, 2014-15 and 2015-16 as per Ex.P13 which were filed prior to the accident in question, the income declared in the returns would be safe to determine the income of the claimant for computing the loss of future income due to the said accident. Taking the average, the income would be Rs.2,44,965/- per annum i.e., Rs.20,413/- per month. The claimant was aged about 45 years at the time of accident. Applying the multiplier of 14, loss of future income would work out to Rs.25,72,132/- (Rs.2,44,965 x 14 x 75%) with the disability of 75% as determined by the Tribunal.

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Thus, the loss of income during the period of treatment would be Rs.61,239/-(Rs.20,413 x 3). In all

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other respects, the compensation awarded by the Tribunal remains undisturbed. Thus in all, the claimant shall be entitled to total compensation of Rs.35,97,334/- as against Rs.22,38,963/- with interest @ 6% p.a. from the date of the claim petition till its realization, the details of which are as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Loss of future income due to disability	25,72,132
2.	Loss of income during period oftreatment	61,239
3.	Pain and suffering	1,00,000
4.	Medicalexpenses	6,83,963
5.	Attendant charges during the period of treatment	10,000
6.	Transportation charges during the period of treatment	10,000
7.	Special diet and nutrition as advised by the doctor during the period oftreatment	10,000
8.	Permanent disability/loss of amenities, happiness and enjoymentin life	1,00,000
9.	Futuremedicalexpenses	50,000
	Total	35,97,334

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Hence, the following:

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ORDER

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i) Appeal filed by the claimant in MFA No.4812/2018 is partly allowed.

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ii) The appeal in MFA No.2280/2018 filed by the Insurance Company is dismissed.

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iii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.35,97,334/- (Rupees thirty five lakhs ninety seven thousand three hundred thirty four only) as against Rs.22,38,963/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iv) The portion of the order of the Tribunal inasmuch as liability and disbursement remains intact.

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v) The insurance company shall deposit the amount determined as aforesaid before

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the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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vi) The modified compensation amount shall be disbursed in terms of the order of the Tribunal.

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vii) Draw modified award accordingly.

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viii) The Registry shall transfer the amount in deposit along with original records to the jurisdictional Tribunal forthwith.

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Sd/JUDGE

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Sd/JUDGE

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Dvr:

M/S National Insurance Company Ltd. v. Mr Dattatareya T R

Case brief

What is this about?

What did the court decide?

M/S National Insurance Company Ltd. v. Mr Dattatareya T R

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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