Partly allowed

The New India Assurance Co. Ltd. v. Sri Venkatesh R

Karnataka HC11 Nov 2020MFA/3912/2019

Case brief

AI extract

What is this about?

This judgment affirms the finding of negligence on the driver of the canter in a motor accident but enhances the compensation awarded. The High Court reassessed the claimant's income and disability, modifying the total award from approximately 57 lakh to 88 lakh rupees, while dismissing the insurer's appeal.

What did the court decide?

Compensation enhanced to Rs. 88,14,880/- with interest at 6% p.a. from the date of the claim petition. Appeal of the Insurance Company dismissed; appeal of the claimant allowed in part.

The New India Assurance Co. Ltd. Vs Sri Venkatesh R — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF NOVEMBER, 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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MFA.NO.3912 OF 2019(MV-I) C/W MFA.NO.2811 OF 2019(MV-I)

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IN MFA.NO.3912 OF 2019

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BETWEEN:

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THE NEW INDIA ASSURANCE CO. LTD., T. P. HUB NO.9/2, MAHALAKSHMI CHAMBERS M. G. ROAD BENGALURU-560 001

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REP BY ITS MANAGER

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....APPELLANT

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(BY SRI. M. NARAYANAPPA, ADVOCATE)

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AND:

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1 . SRI VENKATESH R S/O RAJENDRA S AGED ABOUT 32 YEARS R/AT NO.12, 2^ND 'A' CROSS DODDANNA ESAE MAIN ROAD

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HEGGANAHALLI, PEENYA 2^ND STAGE BENGALURU-560 091

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2 . SRI HEMANTHA KUMAR S/O GOVINDAPPA MAJOR, R/O NO.177 10^TH CROSS, YOGESHWARA LAYOUT BIDADI HOBLI RAMANAGARA TQ & DIST (R.C. OWNER OF CANTER BEARING REGN NO.KA-04-A-6147)

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….RESPONDENTS

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(BY SRI. K.P. BHUVAN, ADVOCATE FOR SRI. JAGANNATHA .H.T, ADVOCATE FOR C/R1, NOTICE TO R2 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 30.01.2019 PASSED IN MVC NO.391/2018, ON THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE AND XXXII ACMM, MEMBER, MACT-3, BENGALURU, AWARDING COMPENSATION OF RS.57,34,880/- WITH INTEREST AT 8% P.A., FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA.NO.2811 OF 2019

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BETWEEN:

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SRI VENKATESH R S/O RAJEDNRA S AGED ABOUT 32 YEARS R/AT NO.12, 2ND "A" CROSS DODDANNA ESTATE MAIN ROAD

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HEGGANAHALLI PEENYA II STAGE BANGALORE-560 091

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....APPELLANT

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(BY SRI. K.P. BHUVAN, ADVOCATE)

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AND:

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1 . SRI HEMANTHA KUMAR S/O GIVINDAPPA MAJOR R/AT NO.177 10^TH CROSS YOGESHWARA LAYOUT BIDADI HOBLI RAMANAGARA TALUK & DISTRICT

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2 . THE NEW INDIA ASSURANCE CO. LTD., T P HUB NO.9/2 MAHALAKSHMI CHAMBERS M.G. ROAD BANGALORE-560 001

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….RESPONDENTS

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(BY SRI. M. NARAYANAPPA, ADVOCATE FOR R2, NOTICE TO R1 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 30.01.2019 PASSED IN MVC NO.391/2018, ON THE FILE OF THE VII ADDITIONAL SMALL CAUSES JUDGE AND XXXII ACMM, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals are directed against the impugned judgment and award dated 30.1.2019 passed in MVC.No.391/2018 by the VII Additional SCJ & XXXII ACMM, Member, MACT-3, Bengaluru. MFA.No.3912/2019 is filed by the Insurance Company questioning the negligence and quantum whereas the claimants have preferred appeal in MFA.2811/2019 seeking enhancement of compensation.

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For the sake of convenience, the parties are referred to as per their rank before the Tribunal.

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The brief facts of the case are as under:

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The claimants filed a claim petition by specifically contending that on 22.12.2017 at about 10.00 a.m. the petitioner was proceeding on bike bearing No.KA-

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02-JH-6685. When the claimant reached Shani Mahatma Temple, Medahalli Village, Bidadi Hobli, Ramanagara Taluk and District. At that juncture, the driver of the Eicher canter bearing Regn.No.KA-04-A6147 came in the same direction and just ahead of the petitioner's vehicle in a rash and negligent manner and without showing any signal or indicator, all of a sudden took right turn from left side and hit the petitioner's vehicle, as a result of impact, the petitioner-claimant sustained severe injuries all over the body and his two-wheeler was also extensively damaged. It is stated in the claim petition that he was immediately shifted to Subhash Hospital, Bidadi, and thereafter to BGS Global Hospital, Bengaluru. On account of fractures, the claimant underwent operation and is suffering from permanent disability. The claimant has stated in the claim petition that he was working as a Senior QA Analyst in M/s. Megha

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Infotech, Bengaluru and was drawing salary of Rs.92,500/- per month. He was an Income tax assessee and was contributing his income for the welfare and maintenance of his family. Hence, filed claim petition claiming compensation of Rs.60 lakhs. On service of notice, the first respondent failed to appear and was placed exparte. The second respondent-Insurance Company contested the proceedings by filing written statement admitting issuance of policy in favour of first respondent. The second respondent has specifically contended that the driver of the offending vehicle was not possessing valid and effective driving licence. The Insurance Company has further pleaded that the offending vehicle did not possess fitness certificate and permit to ply on the road and as such pleaded violation of terms and policy conditions by first respondent-owner. The Insurance Company also disputed the age,

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avocation and income of the claimant. The Insurance Company further stated that claimant himself was negligent and on these set of defence, sought for dismissal of the claim petition.

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Based on the pleadings, the Tribunal framed the following issues:

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1. Whether the petitioner proves that he has sustained grievous injuries in the accident occurred on 22.12.2017 at about 10.00 a.m., near Shani Mahathma Temple, Medanahalli Village, Ramanagara Taluk and District, due to the rash and negligent driving of the driver of Eicher Canter bearing reg. NO.KA-04-A-6147 as alleged in the petition?

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2. Whether the petitioner is entitled for compensation? If so, from whom and at what quantum?

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3. What Order or Award?

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The claimant examined himself as P.W.1 and examined two independent witness. To corroborate ocular evidence, produced documentary evidence as

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per Exs.P1 to 20. The Insurance company examined two witnesses as R.W.1 and 2 and produced documentary evidence vide Exs.R1 to R4.

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Having examined the oral and documentary evidence, the Tribunal answered Issue No.1 in the affirmative holding that the claimant sustained grievous injuries on account of rash and negligent driving by the driver of the offending vehicle. The Tribunal in all has awarded Rs.57,34,880/- with interest at the rate of 8% per annum from the date of petition till its realisation.

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The learned counsel appearing for the Insurance Company would vehemently argue and contend before this Court that the finding of the Tribunal on Issue No.1 fastening the entire negligence on the driver of the offending canter is erroneous and contrary to the clinching evidence on record. The learned counsel appearing for the Insurance Company

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would submit to this Court that the driver of the offending canter has cautiously taken U turn after allowing the vehicles to pass and in this background, he would submit that the driver of the offending canter having taken U turn heard a sudden sound and it is only then that the driver of the offending canter found that the claimant has come in a rash and negligent manner and dashed against the hind side of the offending canter. Learned counsel appearing for the Insurance Company would further rely on Ex.P4motor vehicle report and would take this Court to the damages caused to the motor bike and also to the offending canter involved in the accident. Relying on these evidence, he would submit to this Court that the finding on Issue No.1 requires to be interfered with. To buttress his arguments, he has relied on the judgment rendered by the Apex Court in Nishan Singh and others .vs. Oriental Insurance

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Company Limited through Regional Manager and

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others[(2018) 6 SCC 765].

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The learned counsel would also question the quantum by contending that the compensation awarded under the head of disability is highly excessive.

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Per contra, learned counsel appearing for claimant would submit that the finding recorded by the Tribunal on Issue No.1 is in accordance with law and would not warrant any interference. However, insofar as quantum is concerned, learned counsel would contend that the Tribunal erred in assessing the income of the deceased at Rs.50,000/- and the same is contrary to the employment agreement produced by the claimant as per Ex.P19. Relying on Ex.P19, the learned counsel for the claimant would vehemently contend that the claimant was drawing salary of Rs.95,000/-. He would also submit that the Tribunal

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erred in not awarding any amount towards future medical expenses. Having regard to the gravity of the injuries sustained, the compensation under the head of loss of amenities is also on the lower side. The learned counsel would also submit that the disability assessed by the Tribunal at 50,000/- is contrary to clinching evidence on record. Hence, the compensation awarded under the head of future loss of earning needs to be reassessed by assessing the income of the claimant.

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Heard the counsel for the Insurance Company and the claimants. Perused the pleading of the parties and reassessed the entire oral and documentary evidence on record.

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7. Regarding negligence:

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We have meticulously examined the police records. Admittedly, the crime is registered against

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the driver of the offending canter. Charge sheet is also filed against the driver of the offending vehicle. The Insurance Company has examined the driver as R.W.2. At Para 2 of the examination-in-chief, R.W.2 has stated as follows:

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"I state that I had to take 'U' turn to the right. As vehicles were coming in the opposite direction, I stopped my vehicle for the vehicles to pass. I had put on indicator. After few minutes, I heard loud sound. I got down my vehicle and saw that a two wheeler had hit to the back side of my canter vehicle."

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If this relevant statement in examination-in-chief

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is meticulously examined the same would clinch the issue. The driver of the offending vehicle has stated in unequivocal terms that he has allowed the vehicle to pass and thereafter taken U turn. If he had taken U turn after allowing all the vehicles to pass, there could not have been collision between the bike and

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the canter. If this statement coupled with the complaint as per Ex.P1 ,FIR as per Ex.P2 and spot mahazar as per Ex.P3 and charge sheet as per Ex.P7 are examined, we are of the view that it is driver of the offending canter who was solely responsible for the accident. The judgment relied by the counsel appearing of the Insurance Company rendered in Nishan Singh's case has no application to the present case on hand. In the said case, two vehicles were proceeding in the same direction. The vehicle following from the hind side was required to maintain sufficient distance. The said principle has no application in the present case on hand, since the driver of the offending vehicle has entered the road on the right side by taking a U turn. Any vehicle which intends to take a U turn, needs to be double cautious to take note of the vehicles proceeding on the other side of the road. On meticulously examining the

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material on record, an inference can be drawn that the driver of the offending canter had abruptly entered the right side of the road by taking U turn and in the process the accident has occurred. The Tribunal has dealt with this material on record and we do not find any infirmities and accordingly, we affirm the finding on Issue No.1.

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8. Regarding quantum:

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The Tribunal has assessed the income of the deceased at Rs.50,000/while assessing the compensation under future loss of earning. On perusal of Ex.P19 which is an employment agreement, it is forthcoming that gross salary of the claimant is shown as Rs.95,000/-. However, on perusal of Ex.P20, which is a bank statement, it is forthcoming that for the months of October and November, a sum of Rs.73,883/and 86,750/[Rs.86050/and Rs.85,798/-] is deposited in his bank account and for

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the month of November Rs.75,790/- is deposited. There is no explanation forthcoming as to why there is variance in the salary of the claimant. However, having regard to the deposits which is in excess of Rs.70,000/- and the maximum salary received i.e. Rs.95,000/-, we take the aggregate and assess the income at Rs.80,000/- per month. Insofar as disability is concerned, the Tribunal has relied on the evidence of P.W.3 who has examined the claimant on 26.9.2018 to assess the disability. Even after nine months, on examination, P.W.2 has found that the claimant was having bed sores and is using a catheter. On medical examination, P.W.3 has opined that he has disability of 100% to the whole body. However, in cross-examination the Insurance Company has succeeded in eliciting that P.W.3 is not a doctor who has treated the claimant. It is also elicited from the mouth of P.W.3 that while assessing the

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disability, he has not secured MRI scan and CT scan, wound certificate issued by BGS Global Hospital. He also admitted that he cannot assess neurological problems since he is an Orthopedic Surgeon. It is also forthcoming from his cross-examination that P.W.3 has assessed the disability by examining the mobility and stability components and additional points i.e. only external examination. He has admitted that he has arrived at the disability only on external examination. If this evidence is taken into consideration, we are of the view that the Tribunal was justified in assessing the disability to the whole body at 50% and we do not find any illegality in the disability assessed by the Tribunal.

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In view of the discussions made supra, we would assess the income of the appellant at Rs.80,000/- and by taking 50% disability, future loss

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of earning is re-assessed at Rs.80,000x12x16x50/100

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= Rs.76,80,000/-.

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Since the medical evidence on record indicates that the claimant has suffered grievous injuries to spinal card, we are of the view that the claimant is entitled for Rs.1,00,000/- under the head of pain and suffering.

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The award of Rs.6,84,880/- towards medical expenses remains undisturbed.

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Having regard to the length of treatment, we would deem it fit to award a sum of Rs.50,000/- towards future medical expenses.

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Further, a sum of Rs.2,00,000/- is awarded towards loss of amenities and towards loss of marriage prospects a sum of Rs.1,00,000/- is awarded.

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Thus, in all the claimant is awarded Rs.88,14,880/- under the following heads:

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Sl. No.	Head of account	Rs.
1.	Future loss of earning	76,80,000/-
2.	Pain and suffering	1,00,000/-
3.	Medical expenses	6,84,880/-
4.	Future medical expenses	50,000/-
5.	Loss of marriage prospects	1,00,000/-
6.	Loss of amenities	2,00,000/-
	TOTAL	88,14,880/-

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10. Hence, the following:

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ORDER

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i) The appeal filed by the insurance company in MFA No.3912/2019 is dismissed. The appeal filed by the claimant in MFA No.2811/2019 is allowed in part. ii) The total compensation awarded by the Tribunal is modified and enhanced to

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Rs.88,14,880/- (Rupees Eighty Eight Lakhs Fourteen Thousand Eight Hundred and Eighty only) as against Rs.57,34,880/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

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iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.

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

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vi) Draw modified award accordingly.

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vii) The Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith. viii) All pending I.As. stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

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*alb/-.

The New India Assurance Co. Ltd. v. Sri Venkatesh R

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. Sri Venkatesh R

Case brief

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