Dismissed

The Claim Manager v. Kiran Kumar P

Karnataka HC4 Dec 2020MFA/4619/2018

Case brief

AI extract

What is this about?

This judgment dismisses two appeals filed by an insurance company and an injured claimant against the Tribunal's order in a motor vehicle accident case. The High Court upheld the finding of sole negligence against the lorry driver and deemed the awarded compensation reasonable, rejecting arguments for contributory negligence and quantum reduction or enhancement.

What did the court decide?

Both appeals dismissed; amount transferred to the Tribunal; pending I.As. disposed of.

The Claim Manager Vs Kiran Kumar P — 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 4^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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M.F.A.No.4619/2018 C/w. M.F.A.No.184/2020 (MV)

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IN M.F.A.No.4619/2018:

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BETWEEN :

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THE CLAIM MANAGER CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED 2^ND FLOOR, DARE HOUSE, NSC BOSE ROAD, CHENNAI-600001. PRESENT BRANCH OFFICE ADDRESS: THE BRANCH MANAGER CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED NEAR HOLE BUS STOP, SHIVAMOGGA. BY THE CLAIMS MANAGER CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED UNIT No.04, NINTH FLOOR [LEVEL-06], “GOLDEN HEIGHTS” COMPLEX 59^TH ‘C’ CROSS, INDUSTRIAL SUBURB RAJAJINAGAR, 4^TH ‘M’ BLOCK BENGALURU-560010. BY ITS SENIOR MANAGER-CLAIMS. ...APPELLANT (BY SRI O.MAHESH, ADV.)

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AND :

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KIRAN KUMAR.P. S/O V.H.PRAKASH

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AGED 36 YEARS R/AT P.MUNISWAMY COMPOUND HOSAMANE, 1^ST CROSS SHIVAMOGGA-577201.

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2. MANJUNATHA

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S/O GANGADHAR AGED 29 YEARS DRIVER, R/AT MARNAMI BYLU SHIVAMOGGA-577201.

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3. MAHESH

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S/O BASAVARAJAPPA AGED 37 YEARS LORRY OWNER, R/AT No.35 GOPISHETTYKOPPA SHIVAMOGGA-577201. …RESPONDENTS

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(BY SRI G.S.VENKATA SUBBA RAO, ADV. FOR R-1; V/O DATED 14.12.2019, NOTICE TO R-2 & R-3 ARE DISPENSED WITH.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 24.02.2018 PASSED IN MVC No.276/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND A.MACT-VI, SHIVAMOGGA, AWARDING COMPENSATION OF Rs.30,90,000/WITH INTEREST AT 6% P.A., FROM THE DATE OF PETITION TILL PAYMENT.

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IN MFA.No.184/2020:

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BETWEEN :

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KIRAN KUMAR.P. S/O V.H.PRAKASH AGED ABOUT 37 YEARS PROFESSIONAL COURIER R/AT MUNISWAMY COMPOUND HOSAMANE, 1^ST CROSS SHIVAMOGGA-577201. … APPELLANT

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(BY SRI G.S.VENKATA SUBBA RAO, ADV.)

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AND :

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MANJUNATH S/O GANGADHAR AGED ABOUT 30 YEARS LORRY DRIVER, KA 35 6185 TATA TIPPER, R/AT MARANAMI BYLU SHIVAMOGGA-577201.

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MAHESH S/O BASAVARAJAPPA AGED ABOUT 38 YEARS LORRY OWNER, R/AT No.35 GOPISHETTYKOPPA SHIVAMOGGA-577201.

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CHOLAMANDALAM M.S. GENERAL INSURANCE CO. LTD. 2^ND FLOOR, DARE HOUSE, N.S.C BOSE ROAD, CHENNAI-600001. PRESENT BRANCH OFFICE: BRANCH MANAGER CHOLAMANDALAM M.S. GENERAL INSURANCE CO.LTD. NEAR HOLE BUS STOP SHIVAMOGGA-577201. …RESPONDENTS

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(BY SRI O.MAHESH, ADV. FOR R-3; NOTICE TO R-2 IS SERVED AND UNREPRESENTED; V/O DATED 04.12.2020, NOTICE TO R-3 IS DISPENSED WITH.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 24.02.2018 PASSED IN MVC No.276/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND A.MACT-VI, SHIVAMOGGA, 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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The insurer as well as the claimant are in appeal challenging the judgment and award dated 24.02.2018 passed in MVC No.276/2016 on the file of the Principal Senior Civil Judge and A.M.A.C.T-VI at Shivamogga ['Tribunal' for short].

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The claimant instituted petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by him in the road traffic accident which occurred on 02.01.2016.

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It was contended that on 02.01.2016 at

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about 9.00 p.m., while he was proceeding along with Shashidhara in a motorcycle bearing registration No.KA18/NT-8007 from Machenahalli to Shivamogga, a lorry bearing registration No.KA-35/6185 [offending vehicle] driven by its driver in a rash and negligent manner has dashed to his motorcycle. Due to the said impact, the claimant who was the rider of the

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motorcycle and pillion rider Shashidhara both fell down and sustained grievous injuries. The claimant sustained severe injuries on his left shoulder and immediately was shifted to Sanjeevini Hospital, Shivamogga and thereafter to Kasturba Hospital, Manipal and other hospitals at Bengaluru. He was treated as an inpatient at KIMS hospital Bengaluru and has incurred huge medical expenses.

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It was contended that the claimant was working in a professional courier company and was earning Rs.12,000/- per month. On these set of pleadings, the compensation was sought by the claimant.

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After service of notice, the driver of the offending vehicle remained absent and was placed exparte. The owner of the offending vehicle entered appearance in-person and produced copy of the

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insurance policy and the driving licence of the driver, but no written statement was filed.

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The insurer has entered appearance through

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its counsel and filed written statement, denying the petition averments. However, the coverage of the policy of the insurance relating to the offending vehicle at the time of the accident was admitted, but subject to the terms and conditions of the policy. The specific defence set up was that the driver of the offending vehicle had no valid and effective driving licence; the compensation claimed by the claimant is excessive and exorbitant; the alleged accident was a fall from the motorcycle and later it was altered as an accident between two vehicles. Accordingly, sought for dismissal of the petition.

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On the basis of the pleadings, the Tribunal

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has framed the issues and answered in terms of the reasons recorded in the impugned judgment allowing the petition, awarding total compensation of

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Rs.30,90,000/- with interest at 6% p.a. from the date of petition till payment.

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Being aggrieved, MFA No.4619/2018 has

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been filed by the insurer challenging the negligence as well as the quantum of compensation awarded by the Tribunal. The claimant has preferred MFA No.184/2020 seeking enhancement of compensation awarded by the Tribunal.

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9. Learned counsel for the insurer submitted

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that the impugned judgment on the issue of negligence is very cryptic. The manner of accident and position of respective vehicles on road would suggest the negligence of the rider of the motorbike. The Tribunal ignoring the vital material aspects, fixed the entire negligence on the driver of the offending vehicle. Spot sketch at Ex.P6 is not in consonance with the spot mahazar at Ex.P5. The judgment rendered referring to the spot sketch at Ex.P6 is arbitrary. The injuries sustained by the claimant

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would demonstrate and establish that such injuries would be possible only when the injured has dashed to the lorry while overtaking it from the left side. The Tribunal granted exorbitant compensation and the same requires to be scaled down.

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Learned counsel for the claimant submitted that the Tribunal has awarded meager compensation under the different heads. The claimant had incurred Rs.6,00,000/- towards the medical expenses whereas only Rs.2,90,000/- has been awarded by the Tribunal under the said head. No compensation towards future medical expenses has been awarded. The claimant requires constant follow up medical treatment and artificial limb for his routine work. Having regard to these aspects, the compensation has to be enhanced substantially.

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11. We have carefully considered the rival

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submissions of the learned counsel for the parties and perused the material on record.

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The oral and documentary evidence on

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record indicates the serious nature of injuries sustained by the claimant that his left hand is fully amputated. Ex.P8 wound certificate issued by the KIMS hospital would indicate that the claimant was treated as an inpatient for a period of 46 days. It is evident from the medical records that the claimant has treated at various hospitals from the date of accident i.e., from 02.01.2016 to 22.02.2016 before getting admitted to KIMS hospital.

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The doctor who was examined as PW2 has deposed that the claimant has sustained disability of 100% + 30% on his left upper limb and 40% + 10% in his right upper limb. The Tribunal considering these aspects and the Schedule of Employees Compensation Act, 1923, has determined the functional disability of the claimant at

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100% being conscious of 90% of earning capacity prescribed for amputation through shoulder joint.

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We have perused the photos at Ex.P18. The Tribunal has recorded that after noticing the claimant who has appeared before the Tribunal, it has taken judicial notice of the fact that the claimant has undergone amputation of his left limb at the shoulder.

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As per the evidence of the doctor – PW2 and the medical records marked at Ex.C1 to C3, determining the loss of functional disability to an extent of 100% by the Tribunal is not exceptionable. In the backdrop of the avocation of the claimant as the delivery boy in a courier service company, the income determined by the Tribunal at Rs.12,500/- is reasonable in the facts and circumstances of the case. As such, we do not find any substance in the arguments of the learned counsel

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appearing for the parties inasmuch as the quantum of

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compensation awarded by the Tribunal.

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Learned counsel for the insurer though

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made an endeavor to contend that the contributory negligence of the claimant has not been appreciated by the Tribunal in fixing the sole negligence on the part of the driver of the offending vehicle, the same is not substantiated by evidence. On the contrary, during examination of PW1 or in the defence taken by the insurer it is not gainsaid. The insurer has not examined the driver of the offending vehicle. It is well settled that the contributory negligence has to be proved by giving cogent evidence. If such defence is taken, the burden lies on the insurer to discharge the same. No such rebuttal evidence being adduced by the insurer to establish the factum of contributory negligence on the part of the claimant, no exception can be found with the finding of the Tribunal in answering the issue regarding

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the rash and negligence aspect in holding that the sole negligence of the offending vehicle – lorry was the cause for the accident in question.

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For the aforesaid reasons, we do not find any

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merit in both the appeals. Hence, the following:

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ORDER

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i] Both the appeals stand dismissed.

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

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iii] 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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NC.

The Claim Manager v. Kiran Kumar P

Case brief

What is this about?

What did the court decide?

The Claim Manager v. Kiran Kumar P

Case brief

What is this about?

What did the court decide?

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