Partly allowed

The Claim Manager v. Panduranga Dhondiba Waghamore

Karnataka HC9 Dec 2020MFA/4525/2017

Case brief

AI extract

What is this about?

The High Court restrained the insurance company from challenging liability, holding the claimant was a hirer of goods liable for compensation. However, the Court reduced the compensation quantum from Rs. 35.02 lakhs to Rs. 24.82 lakhs by reassessing income to Rs. 10,000/month but affirming 100% loss of earning capacity.

What did the court decide?

MFA.No.4525/2017 allowed in part; compensation reduced to Rs. 24,82,780/-; MFA.Crob.No.163/2017 dismissed.

The Claim Manager Vs Panduranga Dhondiba Waghamore — Insurance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 09^TH 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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MFA.CROB.NO.163 OF 2017(MV-I) C/W MFA.NO.4525 OF 2017(MV-I)

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IN MFA.CROB.NO.163 OF 2017

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BETWEEN:

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PANDURANGA DHONDIBA WAGHAMORE S/O. DHONDIBA AGED ABOUT 30 YEARS RESIDENT OF SHRUNIK NAGAR MILLENIUM BUSINESS PARK THANE MAHARASTRA-400 710

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....CROSS OBJECTOR

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(BY SRI. RAJASHEKAR .K, ADVOCATE)

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AND:

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THE CLAIM MANAGER L & T GENERAL INSURANCE CO. LTD. OFFICE AT SHUBAM BUILDING 1ST FLOOR, MAGRATH ROAD

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BENGALURU-560 025 MERGED WITH

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HDFC ERGO GENERAL INSURANCE COMPANY LIMITED AND NOW BY HDFC ERGO GENERAL INSURANCE COMPANY LIMITED SHANKARANARAYANA BUILDING 3^RD FLOOR, M.G. ROAD BENGALURU-560 001 BY ITS MANAGER CLAIMS SOUTH 2 . BALAJI GOVIND SURYAVANSHI S/O. GOVIND SURYAVANSHI AGED ABOUT 47 YEARS R/AT NO.373, MIDC SHARMIK NAGAR KOPARKHAIRANE HANUMAN TEMPLE NAVI MUMBAI, THANE MAHARASTRA-400 705

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….RESPONDENTS

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(BY SRI. O. MAHESH, ADVOCATE FOR R1)

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THIS MFA CROB IN MFA.4525/2017 PASSED U/O.41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED: 14.12.2016 PASSED ON MVC NO.1420/2014 ON THE FILE OF THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE, MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA.NO.4525 OF 2017

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BETWEEN:

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THE CLAIM MANAGER L & T GENERAL INSURANCE CO. LTD. OFFICE AT SHUBAM BUILDING 1ST FLOOR, MAGRATH ROAD BENGALURU-560 025 MERGED WITH HDFC ERGO GENERAL INSURANCE COMPANY LIMITED AND NOW REPT. BY

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HDFC ERGO GENERAL INSURANCE COMPANY LIMITED SHANKARANARAYANA BUILDING 3^RD FLOOR, M.G. ROAD BENGALURU-560 001 BY ITS MANAGER-CLAIMS-SOUTH

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....APPELLANT

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(BY SRI. O. MAHESH, ADVOCATE)

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AND:

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PANDURANGA DHONDIBA WAGHAMORE S/O. DHONDIBA AGED ABOUT 30 YEARS RESIDENT OF SHRUNIK NAGAR KHAIRNE MIDC NAVI, MUMBAI MILLENIUM BUSINESS PARK THANE MAHARASTRA-400 710

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2 . BALAJI GOVIND SURYAVANSHI S/O. GOVIND SURYAVANSHI AGED ABOUT 47 YEARS R/AT NO.373 MIDC SHARMIK NAGAR KOPARKHAIRANE HANUMAN TEMPLE NAVI MUMBAI, THANE MAHARASTRA-400 705

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….RESPONDENTS

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(BY SRI. RAJASHEKAR .K, ADVOCATE FOR 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: 14.12.2016 PASSED ON MVC NO.1420/2014 ON THE FILE OF THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE, MACT, TUMAKURU, AWARDING COMPENSATION OF RS.35,02,780/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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THIS MFA CROB AND MFA COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The insurance company as well as the claimants have filed independent appeals challenging the judgment and award dated 14.12.2016 passed in MVC.No.1420/2014 by the II Additional Senior Civi Judge and MACT, Tumakuru. The Insurance Company has preferred the appeal in MFA.No.4525/2017 challenging liability and quantum whereas the claimant has preferred the appeal in MFA.Crob.No.163/2017 seeking enhancement of

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compensation.

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

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The brief facts leading to the top noted appeals are as under:

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The claimant filed a claim petition by specifically contending that on 18.07.2014 at about 5.45 a.m. he was travelling from Bengaluru to Mumbai with his goods in Eicher

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Canter Lorry bearing Regn.No.MH-43-Y-988 on NH-48 road. It was further stated that when the vehicle was proceeding between Tumkur and Sira, opposite to Ajas House within the jurisdiction of the Kora Police Station, the driver of the said vehicle drove the same in a high speed and caused the accident. In the said accident, the claimant sustained grievous injuries to his legs and hands. The claimant further contended that he was shifted to Government Hospital, Tumkur, thereafter he was shifted to Victoria hospital. He was late shifted to Lotus Hospital Mumbai, where he took treatment as inpatient from 10.9.2014 to 18.09.2014. The claimant has specifically contended that prior to the accident, he was hale and healthy and on account of the accident he has lost his right hand. It is also stated that he was working in a Printing Press as Assistant Distributor and was earning a sum of Rs.15,000/- per month. The claimant has specifically contended that on account of injuries sustained he has

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permanent disability of 75% to the whole body and hence claimed compensation of Rs.30 lakhs.

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On receipt of notice, the first respondent- Insurance Company contested the proceedings and filed written statement specifically contending that the claimant was travelling in the vehicle as a gratuitous passenger and hence he was not entitled to the compensation. The Insurance company also contended that the driver of the offending vehicle did not possess valid and effective driving licence and the vehicle did not have valid permit and fitness certificate to ply on the road at the time of the accident. The first respondent-Insurance Company also disputed the claim made in the claim petition on the ground that it is exorbitant and excessive.

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

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"1. Whether petitioner proves that he has sustained grievous injuries as a result of the accident taken place on 18.07.2014 near Aja's

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House, in between Tumkur-Sira NH-48 in Kora Police Station Limits, due to rash or negligent driving of the driver of Eicher Canter lorry bearing Reg.No.MH-43-Y-988?

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2. Whether the 1^st respondent proves that the driver of the offending vehicle had no valid and effective driving license and the lorry was not having valid permit and FC to ply on the road as on the date of accident?

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3. Whether the claimant is entitled for compensation? If so, what rate and from whom?

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4. What order or award?"

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In support of their contention, the claimant himself got examined as P.W.1 and in support of his ocular evidence and the doctor as P.W.2 and got marked documentary evidence vide Exs.P1 to P103. The first respondent examined its official as R.W.1 but however, no documents were produced in support of their contention.

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The Tribunal having assessed oral and documentary evidence has answered Issue No.1 in the affirmative by holding that the claimant suffered injuries on account of rash

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and negligent driving by the driver of the canter lorry. The Tribunal has answered issue No.2 in the negative. While answering Issue No.3, the Tribunal has held that the claimant was travelling in the vehicle along with his goods. The Tribunal having taken note of the material on record has come to the conclusion that the vehicle was transporting house hold articles.

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The Tribunal while determining the compensation has assessed the income of the claimant at Rs.15,000/- permonth. Having regard to the medical evidence on record. By taking loss of earning capacity at 100% having regard to the gravity of the injuries suffered has proceeded to award a sum of Rs.35,02,780/- with interest at the rate of 6% per annum from the date of claim petition till its realisation under the

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following heads:

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Towards Pain and suffering	Rs. 1,00,000/-
Towards Conveyance Charges	Rs. 50,000/-
Towards Attendance charges	Rs. 38,000/-

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Towards food and nourishing expenses	Rs. 35,000/-
Towards Medical expenses	Rs. 69,780/-
Loss of future income	Rs. 30,60,000/-
Towards loss of amenities, enjoyment of life and happiness Total	Rs. 1,50,000/- Rs. 35,02,780/-

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The counsel appearing for the appellant-Insurance Company in MFA.No.4525/2017 would vehemently argue and contend that claimant has failed to adduce evidence to prove that he was travelling along with the goods. Learned counsel would seriously dispute the letter issued by the insured on the ground that the same was prepared only for the purpose of shifting the liability on the Insurance Company. It is also contended that there is absolutely no evidence on record to show that the house hold articles were got released by the sister of the injured or in his favour as contended during trial.

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Insofar as quantum is concerned, the learned counsel would submit that the Tribunal erred in assessing the income at Rs.15,000/- in the absence of cogent and corroborative

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evidence. He would also dispute 100% disability assessed by the Tribunal while awarding future loss of earning.

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Per contra, the learned counsel for the claimant would submit to this Court that the claimant was earning a sum of Rs.25,000/-. He would contend that prior to accident he was into Printing Press and distribution work and was earning Rs.20,000/- per month. He was also into book binding and making boxes for delivery of goods and was earning Rs.10,000/- as commission. The Tribunal has not taken into consideration all these material aspects while assessing the income of the claimant. On these aspects, the learned counsel submits that the compensation determined under the head of future loss of earning and also on other heads warrants interference by this Court.

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Heard the learned counsel for the Insurance Company and the claimant. Perused the pleadings of the

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parties and we have meticulously re-assessed the entire oral and documentary evidence on record.

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7. Regarding liability:

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Though the Insurance Company has specifically

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contended in the written statement that the claimant was proceeding in the offending vehicle as an unauthorised passenger, the same has not all been established by the Insurance Company. On perusal of Ex.P98, it is forthcoming that the claimant had hired a vehicle and was travelling along with the house hold articles.

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The police records would clearly indicate that the vehicle was carrying house hold articles. On perusal of Ex.P98, it is seen that the claimant had hired the vehicle to transport household articles from Mumbai to Bengaluru. To rebut the above said contention, the first respondent-Insurance Company has not lead any evidence. The Tribunal has meticulously examined the evidence on record and has come to the conclusion that the claimant was travelling in Eicher

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Canter Lorry bearing Regn.No.MH-43-Y-988 in question. The said finding is based on the evidence on record and does not suffer from any infirmity. Accordingly, the finding arrived at by the Tribunal while answering Issue No.3 is affirmed.

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Further, Rule 100 of The Karnataka Motor Vehicle's Rules, 1989 provides that hirer of goods may be carried in a goods vehicle. Interpreting the said Rules, the Hon'ble Apex Court in catena of judgments has held that if the hirer of the goods vehicle travels along with the goods, the Insurance Company is liable to pay the compensation. The evidence on record clearly indicates that claimant-cross objector was traveling along with the goods. Therefore, the insurerappellant in MFA.No.4525/2017 is liable to indemnify the claimant.

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8. Regarding quantum:

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The Tribunal while assessing the income of the claimant has relied on the letter issued by the Proprietor of M/s. Sri Sai Printing Press, Navi Mumbai, and has proceeded to assess

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the income of the claimant at Rs.10,000/- per month. The Tribunal has also accepted the oral testimony of the claimant that he was into Printing and distribution work and was getting Rs.5,000/- to Rs.10,000/- per month. Relying on these materials, the Tribunal has assessed the income of the claimant at Rs.20,000/-. On examining Ex.P97 and ocular evidence of the claimant, the income assessed at Rs.15,000/appears to be on the higher side. Though we are not inclined to totally discard the certificate issued by Sri. Sai Printing press however, the same cannot be believed in toto. However, by taking note of Ex.P97, we are of the view that there is some evidence to indicate that he was working at Mumbai in Sai Printing Press. By taking note of Ex.P97 we would however, notionally assess the income of the claimant at Rs.10,000/- per month. The medical evidence on record clearly indicates that the claimant has suffered amputation below elbow of right upper limb. As per Ex.P99, the doctor has issued a disability certificate indicating 70% disability.

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The Tribunal has meticulously dealt with the disability and having regard to the avocation and the nature of job that claimant was doing prior to accident, the Tribunal has come to the conclusion that this is a fit case to assess 100% loss of earning capacity. The said finding of the Tribunal is based on clinching medical evidence available on record. In that view of the matter, we are not inclined to disturb the finding arrived on the loss of earning capacity. By assessing the income Rs. 10,000/- per month and applying the multiplier of 17, the compensation payable under the head of future loss of earning works out to Rs.10,000x12x17x100%= Rs.20,40,000/-. We have examined the amount awarded on other heads. We are of the view that the same is just and reasonable and does not warrant any interference.

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Thus, the claimant is entitled to total compensation of Rs.24,82,780/- under the following heads:

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Towards Pain and suffering Rs.	1,00,000/-
Towards Conveyance Charges Rs.	50,000/-
Towards Attendance charges Rs.	38,000/-
Towards food and nourishing Rs.	35,000/-
expenses
Towards Medical expenses Rs.	69,780/-
Loss of future income Rs.	20,40,000/-
Towards loss of amenities, Rs.	1,50,000/-
enjoyment of life and happiness
Total Rs.	24,82,780/-

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The compensation re-determined by this Court shall carry interest at the rate of 6% per annum from the date of claim petition till its realisation.

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Hence, the following:

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ORDER

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i) MFA.No.4525/2017 filed by the Insurance Company is allowed in part.

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MFA.Crob.No.163/2017 filed by the claimant stands dismissed.

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ii) The total compensation awarded by the Tribunal is modified and reduced to Rs.24,82,780/- as against Rs.35,02,780/with interest at the rate of 6% per annum from the date of the claim petition till its realization. However, the claimant is not entitled to the interest for the delayed period of 219 days in filing the appeal before this court.

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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 apportioned and 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

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viii) All pending I.As., if any, stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

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*alb/-.

The Claim Manager v. Panduranga Dhondiba Waghamore

Case brief

What is this about?

What did the court decide?

The Claim Manager v. Panduranga Dhondiba Waghamore

Case brief

What is this about?

What did the court decide?

What the court decided

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