Partly allowed

United India Insurance Co. Ltd. v. Sri T.B. Nanjunda

Karnataka HC14 Jun 2021MFA/1583/2013

Case brief

AI extract

What is this about?

The High Court allowed the Motor Vehicles appeal filed by the insurance company partly. While upholding the liability to pay compensation, the Court modified the award by reducing the medical expenses to the statutory limit of Rs. 15,000 under Schedule II but enhanced the apportionment amount from Rs. 2,50,000 to Rs. 3,00,000. The Court refused to enhance the disability percentage as the claimant

What did the court decide?

Medical expenses reduced to Rs. 15,000; apportionment enhanced to Rs. 3,00,000; total compensation fixed at Rs. 5,06,000.

United India Insurance Co. Ltd. Vs Sri T.B. Nanjunda — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.1583/2013 (MV)

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BETWEEN:

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UNITED INDIA INSURANCE CO. LTD., MADIKERI BRANCH OFFICE, THROUGH ITS REGIONAL OFFICE, NO.18, 5^TH AND 6^TH FLOORS, KRUSHIBHAVAN, BENGALURU-560001 REP. BY ITS MANAGER

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… APPELLANT

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(BY SRI JANARDHAN REDDY, ADVOCATE)

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AND:

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1 . SRI T.B. NANJUNDA S/O SRI T.P BHEEMAIAH, AGED ABOUT 23 YEARS,

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2 . SRI T.P BHEEMAIAH S/O SRI PONNAPPA,

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AGED ABOUT 53 YEARS,

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RESPONDENT NOS.1 AND 2 ARE RESIDING AT MAKKANDUR VILLAGE AND POST, MADIKERI TALUK, KODAGU DISTRICT-576 102.

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… RESPONDENTS

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(BY SRI K.S.BHEEMAIAH, ADVOCATE FOR R1; SRI VENKATESH R. BHAGATH, ADVOCATE FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.07.2012 PASSED IN MVC.NO.5/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, MADIKERI, AWARDING A COMPENSATION OF Rs.6,95,366/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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THIS MFA COMING ON FOR ORDERS THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the Insurance Company challenging the judgment and award passed in M.V.C.No.5/2011 dated 31.07.2012 on the file of the Senior Civil Judge and Motor Accident Claims Tribunal, Madikeri questioning allowing of claim petition and granting compensation of Rs.6,95,366/- with interest at 6% per annum.

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The factual matrix of the case is that the claim petition is filed by the claimant under Section 163(A) of the I.M.V. Act and that he met with an accident on 06.11.2008 at about 5.30 p.m. when he was proceeding from Madikeri to Makkandur being a rider of motor cycle bearing No.KA-12-J1367 at 4^th mile in down gradient in a sharp, he lost his control and while applying the break, he dragged in the Tar road to an

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extent of 15 ft. in front of Annappa’s Coffee Estate and immediately, he was shifted to Madikeri Government Hospital and he took treatment for the injuries sustained suffered the disability to an extent of 85%.

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The Insurance Company in the written statement contended that the claimant himself being the rider of the motor cycle is the Architect for the accident and he is not entitled for any compensation. The Tribunal, after considering both oral and documentary evidence placed on record, allowed the claim petition in part, granting compensation of Rs.6,95,366/- with interest at 6% per annum.

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In order to substantiate his claim, the claimant examined himself as P.W.1 and got marked the documents Exs.P1 to P110 and examined the Doctors through Court Commissioner as C.Ws.1 and 2 and got marked the documents as Exs.C1 to C5. The Insurance Company did not adduce any evidence before the Tribunal.

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The main contention of the appellant-Insurance Company in this appeal is that the Tribunal failed to take note of

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the fact that the claim petition is filed under Section 163(A) of the I.M.V. Act and the accident has occurred, since the claimant himself was negligent in driving the motor cycle and on account of his negligence, the accident has taken place. The second contention urged by the appellant-Insurance Company is that while granting compensation, even though there is negligence on the part of the claimant himself in driving the motor cycle and accident has occurred, granting compensation of Rs.2,04,366/under the medical expenses is contrary to law as per II Schedule and it requires interference of this Court.

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The learned counsel for the appellant-Insurance Company also brought to the notice of this Court the judgments passed in M.F.A.No.11445/2012 dated 30.09.2015, M.F.A.No.9485/2012 dated 05.08.2015, M.F.A.No.5537/2011 c/w. M.F.A.Nos.3182/2011 and 1658/2012 dated 24.09.2018.

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Apart from these judgments, the counsel also relied upon the order passed by the Apex Court in Civil Appeal No.9100/2018 dated 31.08.2018. The counsel referring these judgments would vehemently contend that this Court as well as the Apex Court

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has categorically held that the Insurance Company is not liable to pay any compensation. However, in Ashalata Bhowmik’s case, the Apex Court has held that the claimant is entitled for compensation only under personal accident claim, if there is any special contract between the parties and here is a case where no such occasion arises to award any compensation.

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Per contra, the claimant would vehemently contend that it is not in dispute that the vehicle was insured with the second respondent-United India Insurance Company Limited and when the claimant has filed the petition under Section 163(A) of the I.M.V. Act, the Insurance Company cannot raise the issue of negligence on the part of the claimant. The counsel would also submit that the Apex Court in the case of United India Insurance Company Limited vs. Sunil Kumar and Another reported in 2018 ACJ 1 held that the Insurance Company cannot raise the issue of negligence. The counsel also referred the judgment of the Apex Court in Chandrakanta Tiwari vs.

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New India Assurance Company Limited and Another reported in (2020) 7 SCC 386 in Civil Appeal No.2527/2020

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dated 08.06.2020 to contend that the Apex Court in the said full bench judgment also reiterated the same. The counsel also would submit that the Tribunal has committed an error in considering the disability of the claimant at 75%, even though

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the Doctors have deposed the disability at 85% and this Court can reconsider the same, even in the absence of the appeal filed by the claimant.

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Having heard the arguments of respective counsel

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and also on perusal of the material available on record, the points that would arise for consideration of this Court are:

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(i) Whether the Tribunal has committed an error in allowing the claim petition directing the Insurance Company to pay the compensation to the claimant?

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(ii) Whether the Tribunal has committed an error in granting compensation under the head medical expenses to the tune of Rs.2,04,366/as against Rs.15,000/- as per Schedule II of the I.M.V. Act?

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(iii) Whether the claimant, in the absence of the appeal is entitled for enhanced compensation

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as contended by the learned counsel for the claimant?

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(iv) What order?

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Point No.(i)

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Learned counsel appearing for the appellantInsurance Company would vehemently contend that the accident has occurred on account of negligence on the part of the claimant himself and hence, he is not entitled for compensation.

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Learned counsel appearing for the claimant would vehemently contend that in view of the settled principles in Sunil Kumar’s case (supra), the Insurance Company cannot raise the issue with regard to the negligence on the part of the claimant, when the claim petition is filed under Section 163(A) of the I.M.V. Act under Schedule II. The counsel appearing for the claimant also brought to the notice of this Court the recent judgment of the Apex Court in Chandrakanta Tiwari’s case (supra) wherein the apex Court has reiterated the principles laid down in Sunil Kumar’s case (supra). Hence, I answer Point No.(i) as ‘negative’.

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Point No.(ii)

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The learned counsel for the appellant-Insurance

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Company has raised the other contention that the medical expenses of Rs.2,04,366/- considered by the Tribunal is against the Schedule II of the I.M.V. Act and the maximum limit for medical expenses under Section 163(A) of the I.M.V. Act is only Rs.15,000/-. There is a force in the contention of the learned counsel appearing for the appellant-Insurance Company that the Tribunal ought not to have awarded an amount of Rs.2,04,366/towards medical expenses when the statute itself restricts the maximum limit to the tune of Rs.15,000/-. Hence, I am of the opinion that the Tribunal has committed an error in awarding an amount of Rs.2,04,366/- towards medical expenses as against Rs.15,000/-. Hence, I answer point No.(ii) as affirmative.

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Point No.(iii)

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Learned counsel appearing for the claimant vehemently contends that he had suffered severe injuries and the Doctors, who have been examined as C.Ws.1 and 2 have clearly deposed that he had the disability to an extent of 85%

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and the Tribunal has committed an error in taking the disability at 75%, while calculating the compensation. Having perused the judgment of the Tribunal, in paragraph No.11, the Tribunal has discussed in detail with regard to the evidence of the Doctors, who have been examined as C.Ws.1 and 2 and further observed that the Doctors, who treated the claimant has not given opinion about the disability of the injured and the documents reveal that he has suffered grievous injuries. Hence, the Court felt that it is necessary to get the presence of the claimant before the Court, so he was directed to appear before the Court and his presence was secured with great difficulty on 22.06.2012. He was brought by his friends by holding him and he was totally unable to stand, sit, walk or move about and it appeared that he was suffering from paraphejia and his lower limbs are not functioning and on enquiry also, he stated that he was totally dependent upon others. The Tribunal has also observed that taking into note of the evidence of the Doctors and also the fact that no medical certificate pertaining to the disability that he has suffered was produced and also the fact that he has not made any attempt to examine the Doctors in respect of the disability,

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he was brought before the Court. On enquiry, he has stated that his father is not in good terms with him and he is not willing to undergo further medical check up, as he is unable to bear the medical expenses. The Tribunal, taking into note of these materials before the Court has come to the conclusion that he is totally, permanently disabled and his other lower limbs are not functioning, so there is no chance of doing any work for his livelihood in future and taken the disability to the extent of 75% for future loss of income.

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The Apex Court, in the case of Shivawwa and Another vs. Branch Manager, National Insurance Company Limited and Another reported in AIR 2018 SC 1640 held that new plea was raised before the Apex Court regarding award of compensation passed by the Tribunal, claimant neither filed appeal for enhancement of compensation nor chose to file any cross-objection in the first appeal filed by insurer before High Court, relief claimed by claimant only to set aside the decision of High Court before the Apex Court and the plea regarding quantum of compensation at the instance of claimants cannot be

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allowed to be raised for first time in the appeal. In view of the judgment of the Apex Court (supra), the claimant is not entitled for enhanced compensation, in the absence of any appeal or cross-objection.

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Point No.(iii)

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In view of the discussions made above, I proceed to pass the following:

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ORDER

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(i) The appeal filed by the Insurance Company is allowed in part.

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(ii) The judgment and award of the Tribunal passed in M.V.C.No.5/2011 dated 31.07.2012 on the file of the Senior Civil Judge and Motor Accident Claims Tribunal, Madikeri is modified and the compensation awarded by the Tribunal towards medical expenses is reduced to Rs.15,000/thereby awarding total compensation of Rs.5,06,000/(6,95,3662,04,366=4,91,000+15,000) with interest at 6% per annum from the date of the petition till the date of deposit.

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