Partly allowed

Sri. Padmanabha v. Narasimha Reddy D

Karnataka HC4 Dec 2021MFA/3529/2013

Case brief

AI extract

What is this about?

High Court enhanced compensation awarded in a motor vehicle accident. Court increased totals from Rs.1,52,000 to Rs.2,97,650 with 6% interest, addressed disability calculations, and directed insurer to pay first seeking recovery from owner.

What did the court decide?

Compensation enhanced to Rs.2,97,650 with 6% future interest; insurer directed to pay claimant then recover from owner.

Sri. Padmanabha Vs Narasimha Reddy D — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF DECEMBER,2021 PRESENT

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THE HON’BLE MR.JUSTICE P.N.DESAI

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MISCELLANEOUS FIRST APPEAL No.3529/2013 (MV)

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BETWEEN:

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SRI. PADMANABHA, S/O KRISHNAPPA, NOW AGED ABOUT 29 YEARS, R/AT GOLLARAHATTI, BEHIND MINI VIDHANASOUDHA, ARSIKERE TOWN, ARSIKERE.

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... APPELLANT

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(BY SMT. KAMALA D.K., ADVOCATE)

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AND:

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NARASIMHA REDDY D., S/O PENCHALA NARASAREDDY, DOOR NO.26-2-1236A, VEDHAYA PALYAM, NELLORE CITY, ANDHRA PRADESH.

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M/S TATA AIG GEN INS CO LTD., REP. BY ITS BRANCH MANAGER, PENINSULA CORPORATE PARK, NICHOLAS PIRAMAL TOWER, 9^TH FLOOR, GANAPATH RAO KADAM MARG, LOWER PAREL, MUMBAI - 400 013.

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…RESPONDENTS

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(BY SRI. B.PRADEEP, ADVOCATE FOR R2; VIDE ORDER DATED 18.11.2019, SERVICE OF NOTICE ON R1 IS HELD SUFFICIENT)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.01.2012 PASSED IN MVC NO.64/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ADDITIONAL MACT, ARSIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THROUGH VIDEO CONFERENCING THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed challenging the judgment and award passed by the Additional MACT, Arsikere in M.V.C.No.64/2010 dated 30.01.2012, wherein, MACT, Arasikere has awarded compensation of Rs.1,52,000/- with future interest at the rate of 6% for the injuries sustained by the claimant/appellant.

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The brief contention of the claimant/appellant is that, on 16.02.2010 at about 9.30 a.m., after parking his scooter he was walking with his friend, at that time, a motor cycle bearing Registration No.AP.26.K.8047 belonging to respondent No.1 driven by the rider in a rash and negligent manner dashed to the claimant. Due to

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which, he sustained fracture of right femur, tibia and fibula and other injuries. Immediately, he was taken to J.C.Hospital, Arasikere. There he took first aid treatment and he was shifted to S.S.M. Hospital, Hassan as an inpatient and he was operated. So for the injuries suffered and the expenses made by him, he filed the said petition. The said petition was contested by respondent No.1-owner of the vehicle and respondent No.2-Insurer of the vehicle.

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Respondent No.1 denied the nature of the accident and also denied that accident was due to negligent act of the rider of the motor cycle. He also denied the nature of injuries sustained and income of the appellant. It is contended that the rider was an experienced rider and was having valid driving licence and he has followed all the traffic rules and it is claimed that the appellant, who was riding the scooty suddenly took right side and as a result, accident occurred due to rash and negligence act of the appellant himself. Hence, he prayed for dismissal of the petition.

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Respondent No.2-Insurer also took the similar contentions denying the liability. They also denied that the driver had valid driving licence. They also contended that respondent No.1 has not furnished the driving licence.

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Before the Tribunal, claimant got examined himself as P.W.1 and got marked nine documents as Exs.P1 to P9 which consists of accident information, FIR, Chargesheet, wound certificate, medical bills and X-Ray report. Claimant also got examined one doctor, H.S.Ravi from the said S.S.M. Hospital, Hassan as P.W.2.

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Respondent No.1 has not adduced any evidence. Respondent No.2-Insurer got examined one of its official as R.W.1 and produced six documents which are policy, notice issued to respondent No.1 and the acknowledgments for having served the notice to respondent No.1, wherein, they have called upon respondent No.1-owner to furnish driving licence of the rider of the said motor cycle.

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After hearing the arguments, the Tribunal has passed the impugned judgment which is challenged by the claimant on the ground of awarding of meager compensation.

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Heard the learned counsel Smt. Kamala D.K., for the appellant and learned counsel Sri.B.Pradeep, for respondent No.2. Notice on respondent No.1 was held sufficient vide order dated 18.11.2019.

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Learned counsel for the appellant contended

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that though the appellant has sustained three fractures and suffered loss of pain and suffering, the Tribunal has awarded only Rs.10,000/-. Regarding disability also, though the doctor has stated that there was deformity and malunion of fracture and stated the disability of 37.7%, the tribunal has not considered that aspect and awarded only sum of Rs.60,000/- which is meager considering the nature of the work and disability suffered. Learned counsel also argued that future unhappiness is also not

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awarded. Therefore, learned counsel prays to modify and enhanced the compensation as prayed.

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On the other hand, learned counsel for respondent No.2 supported the judgment of the Tribunal and stated that Tribunal has rightly considered all the aspects and awarded the compensation.

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From the above materials the points that would arise for my consideration is 'Whether compensation awarded by the Tribunal is just and proper in view of the nature of the injuries suffered by the appellant?'

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I have perused the records of the case. Wound certificate-Ex.P.4 which shows that appellant has suffered the following injuries:

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Swelling and pain of right thigh.

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Swelling and deformity of right leg.

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Lacerated wound on right leg.

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It is also evident that X-Ray report shows fracture of right femur and fracture of tibia and fibula and doctor has

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opined that injury Nos.1 and 2 are grievous in nature and injury No.3 is simple in nature.

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The appellant has also given his evidence as P.W.1 and has stated that he was an agriculturist and he sustained three fractures and he has suffered pain and agony. He was admitted to the hospital. He was hail and healthy prior to the accident. Now his capacity of working has come down and he has suffered loss.

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P.W.2-doctor has also stated that it is difficult and painful for the appellant to sit on crossed legs and it is difficult for him to work. In the cross-examination, he has denied that there is proper union of tibia and fibula. But he has stated that there is malunion. It is suggested that appellant has not taken follow up treatment, hence, there is malunion , but he has denied the same.

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On perusing the entire evidence of the doctor, oral and documentary evidence and looking into the occupation of appellant, year of the accident, in my

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considered view the Tribunal was not justified in awarding only a sum of Rs.10,000/- towards pain and suffering. The medical records show that there were three fractures and he was an inpatient for a period of seven days and he took further treatment. The said fractures require minimum period of four months to recover and needs rest. Therefore, in my considered view, for pain and suffering is required to be enhanced at Rs.50,000/-, which is just and proper.

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16. Tribunal has awarded Rs.58,000/- for medical

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expenses which is just and proper as per records produced by the appellant which needs no interference. It is evident that for food and nourishment and attendant charges, a sum of Rs.6,000/- was granted. But looking into the nature of the injuries and the period of treatment, at least the appellant requires some attendant for some months. Therefore, under food and nourishment and attendant charges head, it is enhanced to Rs.15,000/- as against Rs.6,000/-.

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Regarding loss of future prospects, Tribunal though referred to the evidence of doctor, awarded a sum of Rs.60,000/- as global compensation. The Tribunal has disbelieved the evidence of the doctor though there was disability to the extent of 37.7%. Doctor had stated that there was malunion, but he has not stated about degree in which there was malunion. Therefore, Tribunal has declined to take any disability and awarded only Rs.60,000/- stating that there was no functional disability, it is only disability to the limbs, which is in my considered view not just and proper. Looking into the evidence of the doctor and wound certificate and X-Ray and as there was malunion, the disability is taken at 12%. Since accident is of the year 2010, income of the appellant is taken at Rs.5,500/- from the notional income chart prepared by the Lok Adalat which is prepared for reference in Lok Adalat in respect of person who has no records to show the income. Age of the petitioner is shown as 27 years, then appropriate multiplier will be 17, as per decision of

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Sarla Verma (Smt) and Others Vs. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 , which comes to Rs.5,500.00X12%X17 = 1,34,640.00. Therefore, appellant is entitled for future loss of earning due to disability at Rs.1,34,640/-.

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In view of the nature of the injuries and the fractures, he has to suffer inconvenience throughout his life. It is evident from the medical records that there are rods installed in his body. A sum of Rs.20,000/- is awarded towards future unhappiness without interest. Accordingly, the compensation awarded by the Tribunal is re-determined and modified as under:

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HEADS	Amount Awarded By Tribunal	Amount Awarded by Court
1)Pain & Suffering	10,000.00	50,000.00
2) Medical Expenses	58,000.00	58,000.00
3) Attendant charges,
Food, Nourishment and Conveyance charges	6,000.00	15,000.00
4) Loss of Future earning	60,000.00	1,34,640.00
5) Loss of income
during treatment period	18,000.00	20,000.00
6) Loss of amenities	NIL	20,000.00
TOTAL	1,52,000.00	2,97,640.00

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Compensation of Rs.1,52,000/- awarded by the Tribunal is enhanced to Rs.2,97,650/- with future interest at the rate of 6%.

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Regarding liability at para 17, Tribunal has discussed that though respondent No.2 has filed written statement and the insurance company has taken contention that since there is violation of terms of policy, it is not liable to pay the compensation. The Tribunal found that Ex.P.1 is the information report issued by the police regarding accident, it shows that there was no driving licence. Of course though the charge sheet is not filed regarding not having driving licence, but the insurance company has taken a stand and got issued notice to the owner of the vehicle as per Ex.R.2 stating that there was violation of driving policy and for furnishing the driving licence. Ex.R.3 is another notice stating that no driving licence particulars and details are available. So they asked owner to produce whether driver was holding driving licence or not? Otherwise, they denied the liability stating

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notice is served on respondent No.1 as per Exs.R4 and R5, postal tracks records.

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Learned counsel for appellant has relied upon the decision of the Hon'ble Supreme Court in the case of Pappu and Others Vs. Vinod Kumar Lamba and Another reported in AIR 2018 SC 592 , wherein the Hon'ble Apex Court has referred to its earlier decision National Insurance Co. Ltd Vs. Swaran Singh reported in AIR 2004 SC 1531 , wherein Apex Court held that insurance company is liable to pay to the claimant and then recover it from owner. In that case, Insurer has taken plea that driver of the offending vehicle was not having valid driving licence and the owner of the vehicle has not produced any evidence, though the vehicle was duly insured. Therefore, insurance company was held not liable. Further, insurance company was directed to pay the compensation/award amount and to recover the same from the owner of the vehicle.

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It is held in para 14 the Hon'ble Apex Court held that if the insurer succeeds in establishing its defence, the Tribunal or the Court can direct the insurance company to pay the award amount to the claimant(s) and, in turn, recover the same from the owner of the vehicle. So, in view of the said direction, the impugned award needs to be modified. In the result, I pass the following:

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ORDER

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The appeal is partly allowed.

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The appellant/claimant is entitled for compensation

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of Rs.2,97,650/- with future interest at the rate of 6% from the date of petition as against the award of the Tribunal of Rs.1,52,000/-.

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Further, respondent No.2-insurance company is directed to pay the said compensation award amount to the claimant then recover the same from the owner of the vehicle without filing any fresh petition or directly filing execution petition in view of the decision of the Hon'ble Supreme Court in the case of Oriental Insurance

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