Partly allowed

Sri Chennaiah S/O Sri Rangappa v. Sri Hidayathulla

Karnataka HC7 Jun 2021MFA/2861/2012

Case brief

AI extract

What is this about?

This judgment allows two Motor Accident Cases in part. modifying the Motor Accident Claims Tribunal's award. The court rejected the insurer's claim of false implication due to lack of evidence but enhanced the compensation from Rs.3,25,800 to Rs.3,43,300 based on recalculated income, enhanced pain and suffering, loss of amenities, and lost wages during the laid-up period.

What did the court decide?

The judgment and award of the Tribunal are modified granting compensation of Rs.3,43,300 with interest at 6% per annum.

Sri Chennaiah S/O Sri Rangappa Vs Sri Hidayathulla — Execution and Attachment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^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.2861/2012 (MV) C/W. M.F.A.NO.3292/2012 (MV)

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IN M.F.A.NO.2861/2012 (MV):

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BETWEEN:

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SRI CHENNAIAH S/O SRI RANGAPPA AGED ABOUT 40 YEARS, R/AT ABAKAVARI PALLI VILLAEG, HASABANDY POST, KASABA HOBLI, BAGEPALLI TALUK, CHICKBALLAPURA DISTRICT-91

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… APPELLANT

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(BY SMT. SUGUNA R. REDDY, ADVOCATE)

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AND:

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1 . SRI HIDAYATHULLA S/O SHAKUR SAB MAJOR IN AGE, R/AT NO.12-B, “A” DIVISION, BAGEPALLI TOWN, CHICKBALLAPUR DISTRICT-91

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2 . THE BRANCH MANAGER UNITED INDIA INSURANCE COM. LTD., REGIONAL OFFICE, NO.25,

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SHANKARANARAYANA BUILDING, M.G.ROAD, BANGALORE-1

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… RESPONDENTS

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(BY SRI B.A.RAMAKRISHNA, ADVOCATE FOR R2; VIDE ORDER DATED 15.02.2021 R1 SERVICE HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.10.2011 PASSED IN MVC.NO.6567/2007 ON THE FILE OF THE X ADDITIONAL JUDGE, AND MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.3292/2012 (MV):

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BETWEEN:

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THE UNITED INDIA INS. CO. LTD., NO.25, SHANKARANARAYANA BUILDING, M.G.ROAD, BANGALORE-1

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REGIONAL OFFICE KRISHI BHAVANA, HUDSON CIRCLE BANGALORE-560001 BY ITS MANAGER

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… APPELLANT

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(BY SRI B.A.RAMAKRISHNA, ADVOCATE)

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AND:

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SRI CHENNAIAH

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AGED ABOUT 39 YEARS, S/O SRI RANGAPPA

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R/O ABAKAVARIPALLI VILLAEG, HASABANDY POST, KASABA HOBLI,

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BAGEPALLY TALUK, CHIKKBALLAPURA DISTRICT.

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2 . MR. HIDAYATHULLA MAJOR IN AGE, S/O SHAKURSAB R/AT NO.12-B, “A” DIVISION, BAGEPALLI TOWN, CHIKKABALLAPUR DISTRICT-91

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… RESPONDENTS

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(BY SMT.SUGUNA R. REDDY,FOR R1;

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VIDE ORDER DATED 31.07.2018 R2 SERVICE HELD SUFFICIENT)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.10.2021 PASSED IN MVC.NO.6567/2007 ON THE FILE OF THE X ADDITIONAL JUDGE, MEMBER, MACT, BENGALURU, AWARDING A COMPENSATION OF Rs.3,25,800/- WITH INTEREST @ 8% P.A. ON Rs.3,15,800/FROM THE DATE OF PETITION TILL REALIZATION.

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THESE MFAs’ COMING ON FOR ADMISSION 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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Though the appeals are listed for admission, with the consent of learned counsel for both the parties, the appeals are taken up for final disposal.

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These two appeals are filed by the claimant and respondent-Insurance Company challenging the judgment and award passed in M.V.C.No.6567/2007 dated 14.10.2011 on the

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file of the Motor Accident Claims Tribunal at Bengaluru (SCCH-16) questioning the quantum of compensation and fastening of liability on the Insurance Company.

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The factual matrix of the case is that on 14.04.2007 at about 10.45 a.m., the claimant was riding his XL Moped bearing registration No.KA-10-J-2137 along with one Srinivasa at Narepalli Gate at NH-7 Road i.e., Bangalore-Hyderabad Road in between Karnataka State Boarder and Bagepalli of Kolar District, while he was riding the same by slowly keeping towards his extreme left side of the road. At that time, a Tractor bearing registration No.AP-16-T-6053 driven by its driver at a high speed, in a rash and negligent manner and because of the high speed, he lost control on the vehicle and dashed his vehicle as against the claimant. As a result, the claimant, who was pillion rider of the said XL Moped fell down and sustained injuries. The claimant was immediately shifted to the Government Hospital, Bagepalli, wherein he was given first aid treatment and then he was shifted to Baptist Hospital, Bengaluru for further treatment and he was inpatient for 16 days and subjected to surgery of the

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femur i.e., closed reduction of internal fixation with interlocking nail and another surgery of left patella i.e., open reduction and internal fixation with N-Circlage wiring for left patella and he was advised to undergo one more surgery i.e., closed reduction and K-wire fixation for left distal radius fracture. It is his case that he has spent Rs.1,50,000/- towards hospital bills, Rs.75,000/towards medical bills, Rs.20,000/- towards attendant charges and Rs.10,000/- towards conveyance. Prior to the accident, the claimant was hale and healthy and was working as a Coolie and was earning Rs.250/- to Rs.300/- per day and maintaining his family. Due to the accidental injury, he has sustained permanent disability.

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The respondent-Insurance Company has filed the objection statement, after service of notice denying the allegations made in the claim petition. However, admits the issuance of policy in respect of the vehicle which was involved in the accident, subject to the terms and conditions of the policy.

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In order substantiate his claim, the claimant examined himself as P.W.1 and also examined two witnesses as

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P.Ws.2 and 3, who are Doctors and got marked the documents Exs.P1 to P15. The respondent-Insurance Company has not led any evidence and marked any documents.

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The Tribunal, after considering both oral and documentary evidence placed on record, awarded compensation of Rs.3,25,800/- with interest at 8% per annum.

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Being aggrieved by the judgment and award of the Tribunal, the claimant in M.F.A.No.2861/2012 has contended that Tribunal has committed an error in awarding meager compensation and failed to award just and reasonable compensation on all the heads. She would further contend that the Tribunal ought to have awarded interest at the rate of 12% per annum instead of 8% per annum.

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Per contra, learned counsel appearing for the respondent-Insurance Company in M.F.A.No.3292/2012 would vehemently contend that the Tribunal has committed an error in taking the income of the claimant as Rs.4,500/- per month. The accident is of the year 2007. The counsel would vehemently

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contend that the Tribunal has committed an error in placing reliance on Ex.P5-IMV report and also Ex.P7 and comes to erroneous conclusion that the driver of the tractor admitted the guilt and pleaded guilty. He would further contend that it is a case of clear fraud and fraud and justice should not dwell together. He also relied upon the judgment of this Court reported in ILR 2009 KAR 3562 and would contend that a false claim is made before the Tribunal and the same has not been considered by the Tribunal. He contends that immediately after the accident, the claimant was taken to Bagepalli Hospital wherein, he took first aid and no wound certificate of Bagepalli Hospital has been produced before the Tribunal. The claimant was shifted to the Baptist Hospital on 16.04.2007, complaint was given by the owner of XL-Moped on 17.04.2007 and the vehicle was seized on 03.05.2007. Hence, it is a clear case of implication of the vehicle.

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Having heard the respective counsel and also on perusal of the material available on record, the points that arise for consideration before this Court are:

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(i) Whether the respondent-Insurance Company has proved the contention that the vehicle has been falsely implicated and no such accident has taken place?

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(ii) Whether the Tribunal has committed an error in not awarding just and reasonable compensation, as contended in the appeal filed by the claimant?

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(iii) What order?

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Point No.(i)

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Having heard the respective counsel and also on perusal of the records, it is rightly pointed out by the learned counsel for the claimant that no specific defence was taken in the written statement that the vehicle has been falsely implicated. It is also important to note that, none of the witnesses have been examined before the Tribunal to substantiate the contention of false implication of the vehicle. It is the claim of the claimant that immediately after the accident, the injured was taken to the Bagepalli Government Hospital and thereafter, he was taken to Baptist Hospital and he was subjected to surgery at Baptist Hospital and in order to

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substantiate the same, the claimant has produced the wound certificate which is marked as Ex.P4. Apart from that, the claimant has also produced IMV report which is marked as Ex.P5 and the driver of the tractor also pleaded guilty in terms of Ex.P7. It is to be noted that the respondent-Insurance Company has taken up the defence of false implication of the vehicle and no steps have been taken to rebut the case of the claimant either by examining any of the witness or by placing any documentary proof and mere taking of contention is not enough and the defence has to be proved by adducing cogent evidence before the Tribunal and the same has not been done.

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The police have registered the case and filed the charge sheet against the driver of the tractor, who pleaded guilty and paid fine. When the same is also not rebutted by the respondent-Insurance Company, the very contention that the vehicle has been falsely implicated in order to make wrongful gain cannot be accepted and the very contention that the fraud and justice should not dwell together cannot be accepted without any basis to come to a conclusion that the vehicle has been

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falsely implicated and fraud has been committed. The fraud has to be proved by the respondent-Insurance Company by placing substantial material before the Tribunal and the same has not been done. Therefore, the very contention of the respondentInsurance Company that the vehicle has been falsely implicated cannot be accepted. Hence, I answer Point No.(i) as ‘Negative’.

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Point No.(ii)

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It is the contention of the claimant before this Court that the Tribunal has not awarded just and reasonable compensation in all the heads. It is rightly pointed out by the learned counsel appearing for the respondent-Insurance Company that the accident is of the year 2007, the Tribunal has taken the income of the claimant as Rs.4,500/- per month and the same is on the higher side. In the absence of any documentary proof with regard to the income, notional income ought to have been taken by the Tribunal at the rate of Rs.4,000/- per month. Hence, loss of future income has to be recalculated by taking the income of the claimant as Rs.4,000/per month. Having taken the income at Rs.4,000/- per month, applying the relevant multiplier of 15 and the disability at 20%,

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the loss of future income comes to Rs.1,44,000/(4,000x12x15x20/100) as against Rs.1,62,000/- awarded by the Tribunal. Though the learned counsel for the respondentInsurance Company would vehemently contend that the disability taken at 20% is on the higher side, having taken note of the wound certificate, the nature of injuries and there are three fractures, the Doctor has also assessed the disability in respect of lower limb and upper limb to the extent of 30% each and if it is taken 1/3^rd of the same, it comes to 20%. Hence, I do no find any reason to accept the contention of the learned counsel for the respondent-Insurance Company.

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However, this Court has noticed that the Tribunal has committed an error in awarding compensation of Rs.25,000/- on the head of pain and suffering. The claimant was inpatient for a period of 16 days. He was subjected to two surgeries and has also suffered three fractures. When such being the case, it is appropriate to enhance the same to Rs.50,000/- as against Rs.25,000/- awarded by the Tribunal.

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The Tribunal has awarded Rs.25,000/- towards loss

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of amenities. Having taken note of the age of the claimant as 38 years and he has to lead rest of his life with the disability of 20%, it is appropriate to award Rs.30,000/- on the head of loss of amenities, considering the fact that the accident is of the year 2007 as against Rs.25,000/- awarded by the Tribunal.

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The Tribunal has awarded Rs.10,000/- on the head of future medical expenses. The accident is of the year 2007. Under the circumstances, I am of the opinion that the same is just and reasonable.

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The Tribunal has awarded Rs.5,000/- towards disfigurement and Rs.5,000/- towards permanent disability. When the Tribunal has calculated and awarded compensation towards loss of future income, the question of awarding compensation on the head of disfigurement and permanent disability does not arise. Hence, the claimant is not entitled to the compensation of Rs.10,000/- awarded under the heads of disfigurement and permanent disability.

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The Tribunal has awarded Rs.13,500/- towards loss

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of income during laid up period. The Tribunal, while assessing the loss of income during laid up period has taken three months income. Having taken note of the fact that the claimant was inpatient for a period of 16 days and he was subjected to surgeries and suffered three fractures to upper limb and also lower limb, it requires minimum five months to reunite the fracture and rest. Hence, taking five months salary at Rs.4,000/- per month, Rs.20,000/- is awarded as against Rs.13,500/- awarded by the Tribunal.

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The Tribunal has awarded Rs.15,000/- towards attendant charges, food, nourishment and conveyance. The claimant was inpatient for a period of 16 days. It is the accident of the year 2007. Hence, the same is just and reasonable.

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Now the question is with regard to awarding of compensation towards medical expenses. The Tribunal has awarded Rs.65,300/- towards medical expenses. The Tribunal while calculating the medical expenses has only taken note of Ex.P11 in paragraph No.22 of the judgment. However, P.W.1 in

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his evidence has deposed that he has spent Rs.1,50,000/towards hospital bills, Rs.13,763/- towards medical bills and Rs.10,000/- towards purchase of tiffin, food and nutrition etc., But the petitioner has produced 40 medical bills at Ex.P10. Hence, in all, the Tribunal has awarded compensation of Rs.65,300/- towards medical expenses.

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The learned counsel for the claimant in her argument would vehemently contend that medical bills to the tune of Rs.2,10,769/- are produced and to that effect, P.W.1 has also deposed before the Court. Though the P.W.1 has deposed with regard to the accident and spending of amount towards medical expenses, Ex.P10, medical bills which are 40 in number comes to Rs.13,763/-. In terms of Ex.P11 which includes inpatient bill and pharmacy bills, Rs.51,564/- has been spent. Hence, if the same are added, it comes to Rs.65,327/- and the Tribunal has rounded off the same as Rs.65,300/- and no other bills are placed before the Tribunal, though the learned counsel for the claimant contends that bills to the tune of Rs.2,10,769/- are produced. Therefore, I do not find any error committed by the Tribunal in

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awarding Rs.65,300/- towards medical expenses and no grounds to award any higher compensation on the head of medical expenses.

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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 appeals are allowed in part.

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(ii) The judgment and award of the Tribunal passed in M.V.C.No.6567/2007 dated 14.10.2011 on the file of the Motor Accident Claims Tribunal at Bengaluru (SCCH-16) is modified granting compensation of Rs.3,43,300/as against Rs.3,25,800/- awarded by the Tribunal. The Insurance Company is liable to pay the enhanced compensation with interest at 6% per annum. (iii) The amount in deposit is ordered to be transmitted to the Tribunal forthwith.

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(iv) The Registry is directed to transmit the TCR to the concerned Tribunal forthwith.

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Sd/JUDGE

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Sri Chennaiah S/O Sri Rangappa v. Sri Hidayathulla

Case brief

What is this about?

What did the court decide?

Sri Chennaiah S/O Sri Rangappa v. Sri Hidayathulla

Case brief

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What did the court decide?

What the court decided

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