Partly allowed

Divisional Manager v. B M Gangadhar

Karnataka HC27 Nov 2020MFA/4529/2014

Case brief

AI extract

What is this about?

The High Court allowed the appeal by the insurer in part, rejecting the challenge to liability due to lack of evidence but modifying the compensation quantum. Liability was fastened on the insurer, though the awarded amount was reduced to Rs. 10,50,196 based on the Tribunal's assessment of medical bills and expert disability percentage, while the insurer deposited the amount.

What did the court decide?

Compensation awarded by the Tribunal reduced to Rs. 10,50,196 with interest at 6% p.a.; appeal allowed to that extent; cross objections dismissed.

Divisional Manager Vs B M Gangadhar — 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 27^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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M.F.A.No.4529/2014 C/W. M.F.A. CROB No.71/2015 (MV)

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IN MFA No.4529/2014:

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BETWEEN :

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DIVISIONAL MANAGER NEW INDIA ASSURANCE CO LTD., NO.51/2, VANIVILAS ROAD, BANGALORE-560 004 NOW REPTED BY REGIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD. REGIONAL OFFICE, 2-B, UNITY BUILDING ANNEXE, P.KALINGA RAO ROAD, BANGALORE-560 027. ...APPELLANT

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(BY SRI A.N.KRISHNASWAMY, ADV.)

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AND :

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B.M.GANGADHAR S/O BOREGOWDA NOW AGED ABOUT 48 YEARS, R/AT NO.30, MELEKOTE, TUBAGERE HOBLI, DODDABALLAPURA TALUK, BANGALORE RURAL DISTRICT BANGALORE-561 203.

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SMT.L.SUJATHA W/O H.P.VENUGOPAL

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NOW AGED ABOUT 43 YEARS, R/AT NO.37, II CROSS, I MAIN, 1^ST STAGE, AECS LAYOUT, NEAR SANJAYANAGAR MAIN ROAD, BANGALORE-560 096. …RESPONDENTS

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(BY SRI R.L.N.MURTHY, ADV. FOR R-1; NOTICE TO R-2 IS 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 02.01.2014 PASSED IN MVC No.2986/2011 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM, BENGALURU, AWARDING COMPENSATION OF Rs.13,86,866/WITH INTEREST AT 6% P.A., FROM THE DATE OF PETITION TILL DEPOSIT.

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IN M.F.A. CROB No.71/2015:

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BETWEEN:

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SRI B.M.GANGADHAR S/O SRI. BOREGOWDA, AGED ABOUT 49 YEARS, R/AT NO.30, MELEKOTE, TUBAGEREHOBLI, DODDABALLAPUR TALUK, BANGALORE RURAL DISTRICT BANGALORE-561203.

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…CROSS OBJECTOR

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[BY SRI R.L.N.MURTHY, ADV.]

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AND:

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DIVISIONAL MANAGER NEW INDIA ASSURANCE COMPANY LIMITED, NO.51/2, VANIVILAS ROAD, BANGALORE-560 004

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SMT. L.SUJATHA W/O H.P.VENUGOPAL AGED ABOUT 44 YEARS, R/AT NO.37, 2^ND CROSS, 1^ST MAIN, 1^ST STAGE, AECS LAYOUT,

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NEAR SANJAYANAGAR, MAIN ROAD, BANGALORE-560 097. …RESPONDENTS

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(BY SRI A.N.KRISHNASWAMY, ADV. FOR R-1; V/O DATED 27.11.2020 NOTICE TO R-2 IS DISPENSED WITH.)

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THIS M.F.A. CROB IN M.F.A.No.4529/2014 IS FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 02.01.2014 PASSED IN MVC No.2986/2011 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE & XXVIII ACMM, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THE APPEAL ALONG WITH CROSS OBJECTION 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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MFA No.4529/2014 is filed by the Insurance Company whereas MFA Crob.No.71/2015 is filed by the claimant challenging the judgment and award dated 2.1.2014 passed in MVC No.2986/2011 by the MACT, Bengaluru, (SCCH-13) ['Tribunal' for short].

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For the sake of convenience, the parties are referred to as per their status before the Trial Court.

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The claimant instituted the petition under Section 166 of the Motor Vehicles Act, 1988 ['Act' for short] claiming compensation on account of the injuries

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sustained by him in the motor vehicle accident which occurred on 14.7.2010 at about 12.45 p.m.

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The claim petition was filed by the claimant

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alleging actionable negligence on the driver of the car bearing Reg.No.KA-08-M-1344 [offending vehicle] for causing the accident in question. It was contended that the claimant was sitting on his parked motor cycle bearing Reg.No.KA-09-EQ-008 by the side of Melekote Cross, Tubugere Hobli, Doddaballapura Taluk. It was stated that owing to the crash of the speeding offending vehicle to the bike, he had sustained grievous injuries. Immediately he was shifted to Columbia Hospital, Hebbal, Bengaluru, thereafter, he was shifted to Sarvodaya hospital, Magadi Main Road, Bengaluru, wherein he has taken treatment as an inpatient and also taken follow-up treatment after discharge. Due to the injuries sustained in the accident in question, he has sustained permanent disability and cannot do any work as before. He has incurred huge expenses towards

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the medical treatment, conveyance, nourishment

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charges etc., On these set of pleadings, the claimant sought for compensation.

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In response to the summons issued by the Tribunal, the owner as well as the insurer appeared through their respective counsel. Insurance Company has filed written statement denying the petition averments. The main defence was that the accident occurred on account of the negligence of the claimant himself. The issuance of the insurance policy and its liability, if any, was admitted subject to the terms and conditions of the policy. The compensation claimed in the petition was contended to be exorbitant.

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On the basis of the pleadings, issues were

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framed as under:

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Whether the petitioner proves that on 14.7.2010 at about 12.45 p.m. when he was sitting on his motor cycle bearing Reg.No.KA-09-EQ-008 which was parked by the side of Melekote Cross, Tubugere

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Hobli, Doddaballapura Taluk, by that time, the driver of the car bearing No.KA08-M-1344 had come at high speed and in a rash or negligent manner so as to endanger human life and dashed against the bike due to the impact he had sustained grievous injuries?

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

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What order?

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The claimant has examined himself as PW-1

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and the Doctor T.Seenappa as PW-2. The documents Exs.P1 to P20 were marked on behalf of the claimant. On behalf of the respondent-insurer, except marking the insurance policy as Ex.R1, no other evidence was tendered.

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The Tribunal answered the issues in the

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affirmative partly allowing the claim petition awarding total compensation of Rs.13,86,866/- with interest @

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6% per annum from the date of the petition till the date of deposit.

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Being aggrieved by the aforesaid judgment and award, the insurer has preferred the appeal challenging the liability as well as the quantum of compensation awarded as excessive.

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The claimant has preferred cross objections seeking for enhancement of compensation. 11. Learned counsel for the insurer vehemently argued that the Tribunal erred in coming to a conclusion that the driver of the offending vehicle has dashed against the claimant who was sitting on the parked motor cycle. The claimant after having suffered injury owing to self fall from motor cycle, has implicated the offending vehicle to enrich himself. The fraud played by the claimant ought to have been unearthed by the Tribunal as the fraud and justice do not dwell together. The driver of the offending vehicle falsely implicated in the case was a close friend of the claimant, as admitted

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by the claimant himself. However, the driver of the offending vehicle and friend of the claimant has not shifted the injured to the hospital which would reflect the fraud played by the claimant. Even at the time of the admission for medical treatment, the registration number of the vehicle was not disclosed before the hospital authorities. Subsequently, a story was woven to project that the injuries sustained by the claimant in the road traffic accident were caused due to the rash and negligent driving of the driver of the offending vehicle.

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Nextly, learned counsel argued that the compensation awarded towards medical expenses is huge and disproportionate to the gravity of injuries sustained. Most of the medical bills were in duplication. The claim made towards the medical bills has not been properly analysed by the Tribunal. Learned counsel further submitted that the Tribunal grossly erred in

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determining the permanent physical disability to the

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extent of 35% to reckon the loss of earnings.

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Learned counsel for the claimant argued that the insurer has neither taken any ground regarding the false implication of the offending vehicle nor adduced any evidence in this regard. The Tribunal, on profuse analysis of oral and documentary evidence, has fastened the liability on the insurer and hence the same does not call for any interference by this court.

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Learned counsel further argued that the quantum of compensation awarded by the Tribunal is inadequate and the same requires to be enhanced substantially.

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We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the original records.

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It is evident from the records that the

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insurer except marking the insurance policy as Ex.R1, has not attempted to let in any evidence to rebut the

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claim of the claimant. It is well settled legal principle that the pleadings are the foundation and the same requires to be substantiated by evidence. In the absence of any rebuttal evidence let in by the insurer, the appeal filed challenging the liability saddled on it on the ground of false implication of the offending vehicle is unreasonable. Indeed the insurer is estopped from taking such a ground in the appeal for the first time sans adjudication and finding on the said issue by the Tribunal. On this ground alone, the challenge made by the insurer to the liability fastened on it is liable to be rejected and is accordingly rejected.

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The records would disclose that the Tribunal has meticulously examined the medical bills claimed by the claimant. Certain bills claimed in duplication are denied by the Tribunal. The amount of Rs.4,14,636/awarded towards medical expenses is fully supported by the bills to which the claimant is legally entitled to.

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The disability assessed by the Tribunal to an

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extent of 35% to the whole body to reckon the loss of future income calls for interference for the reason that PW-2 - Dr.T. Seenappa has opined that the petitioner has suffered disability of right lower limb of 58%, the total disability of right upper limb is 5% and 41% to the whole body. The normal rule is 1/3^rd of the disability of lower limb would be the disability of the whole body. If examined applying the said rule, 20% disability to the whole body would be appropriate. Hence, we re-assess the loss of future income applying the permanent physical disability at 20% and the multiplier of 14 with the monthly income of Rs.12,850/-. The same would work out to Rs.4,31,760/- (Rs.12,850 x 12 x 14 x 20%). The claimant would be entitled to loss of earning during medical treatment to an extent of Rs.38,550/-. (Rs.12,850 x 3]. In all other respects, the compensation awarded by the Tribunal remains undisturbed. Thus,

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the claimant shall be entitled to compensation of Rs.10,50,196/- under different heads as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Injury pain and sufferings	80,000
2.	Loss of earning during medicaltreatment	38,550
3.	Medicalexpenses	4,14,636
4.	Loss of future earnings	4,31,760
5.	Loss ofamenities	30,000
6.	Conveyance, Nourishment, Food and attendant charges	20,250
7.	Futuremedicalexpenses	35,000
	Total	10,50,196

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The claimant shall be entitled to interest @ 6% per annum on the aforesaid compensation of Rs.10,50,196/- being the reasonable rate of interest which is consistently followed by this court keeping in mind the fall of interest on the fixed deposits in the nationalized banks.

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Hence, the following:

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ORDER

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i] Appeal filed by the insurer in MFA No.4529/2014 is allowed in part. Cross Objections filed by the claimant in MFA CROB No.71/2015 is dismissed.

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ii] The total compensation awarded by the Tribunal is modified and reduced to Rs.10,50,196/as against Rs.13,86,866/- with interest at 6% per annum from the date of the claim petition till its realization.

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iii] The insurance company shall deposit the re-assessed total compensation 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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iv] The portion of the order of the Tribunal inasmuch as liability and disbursement remains intact.

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v] The modified compensation 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 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:

Divisional Manager v. B M Gangadhar

Case brief

What is this about?

What did the court decide?

Divisional Manager v. B M Gangadhar

Case brief

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What did the court decide?

What the court decided

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