Partly allowed

M/S Shriram General v. Prasannakumar H M

Karnataka HC13 Jul 2021MFA/5598/2012

Case brief

AI extract

What is this about?

The High Court reviewed a motor accident compensation case where an employee was injured while working in an insured lorry. Challenging the Tribunal's award, the insurer argued for a shift to the Employees' Compensation Act, while the claimant sought higher damages. The court rejected the insurer's statutory argument due to lack of evidence and enhanced the compensation to Rs. 13,00,000/- based on

What did the court decide?

The insurer's appeal was dismissed and the claimant's cross objection was partly allowed. The total compensation was enhanced to Rs. 13,00,000/- with interest at 6% p.a. from the date of the petition.

M/S Shriram General Vs Prasannakumar H M — Insurance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JULY, 2021

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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 E.S.INDIRESH

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M.F.A.No.5598/2012 c/w M.F.A.CROB. No.80/2012 (MV)

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IN M.F.A.No.5598/2012:

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BETWEEN :

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M/s SHRIRAM GENERAL INSURANCE COMPANY LTD., E/18, EPIP, RIICO, INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTAN-302022, REP. BY TS MANAGER, REP BY ITS M/s SHRIRAM GENERAL INSURANCE COMPANY LTD., S-5, MONARCH CHAMBER, 3^RD FLOOR, INFANTORY ROAD, SHIVAJINAGAR, BANGALORE-560001 REP. BY ITS LEGAL OFFICER.

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...APPELLANT

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(BY SRI B.C.SHIVANNE GOWDA, ADV.)

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AND :

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1 . PRASANNAKUMAR H.M., S/O MAYIGOWDA, AGED ABOUT 38 YEARS, R/O NO.49, PRAGATHI NAGAR, DEVIRAMMANAHALLI, NANJANAGUDU.

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2 . RAJU S/O SUBBEGOWDA @ SUBBANNA, AGED ABOUT 46 YEARS, R/O HIRIKATTI VILLAGE, BEGUR HOBLI, GUNDALPET TALUK

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3 . H.S.SOMASHEKAR S/O H.M.SWAMY, AGED ABOUT 43 YEARS, R/O HIRIKATTI VILLAGE, BEGUR HOBLI, GUNDALPET TALUK …RESPONDENTS

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(BY SRI P.MAHESHA, ADV. FOR R-1; R-2 & R-3 ARE SERVED.)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED 29.11.2011 PASSED IN MVC NO.22/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, NANJANGUD, AWARDING A COMPENSATION OF Rs.12,29,300/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.

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IN M.F.A.CROB. No.80/2012:

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BETWEEN :

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PRASANNA KUMAR H.M., S/O MAYIGOWDA, AGED ABOUT 38 YEARS, R/O NO.49, PRAGATHI NAGAR, DEVIRAMMANAHALLI, NANJANAGUDU, MYSORE DISTRICT-571301. ...CROSS OBJECTOR

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(BY SRI P.MAHESHA, ADV.)

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AND :

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1 . RAJU

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S/O SUBBEGOWDA @ SUBBANNA, AGED ABOUT 46 YEARS, R/O HIRIKATTI VILLAGE, BEGUR HOBLI, GUNDALPET TALUK-571111 CHAMARAJANAGARA DISTRICT.

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2 . H.S.SOMASHEKAR S/O H.M.SWAMY, AGED ABOUT 43 YEARS, R/O HIRIKATTI VILLAGE, BEGUR HOBLI, GUNDALPET TALUK-571111 CHAMARAJANAGARA DISTRICT.

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DIVISIONAL MANAGER SHRIRAM GENERAL INSURANCE, E-8, RIICO INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTAN-302022 …RESPONDENTS

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(BY SRI B.C.SHIVANNE GOWDA, ADV. FOR R-3; VIDE COURT ORDER DATED 24.05.2021 NOTICE TO R-1 & R-2 ARE DISPENSED WITH. )

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THIS M.F.A. CROB. IN M.F.A.No.5598/2012 IS FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 29.11.2011 PASSED IN MVC No.22/2010 ON THE FILE OF THE MACT, SENIOR CIVIL JUDGE, NANJANGUD, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL ALONG WITH M.F.A. CROB. COMING ON FOR ADMISSION, 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 have

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challenged the judgment and award dated 29.11.2011

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passed in MVC No.22/2010 on the file of the MACT, Senior Civil Judge, Nanjangud, (‘Tribunal’ for short).

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The claimant instituted the petition under

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Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by him in the road traffic accident.

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It was averred in the claim petition that on 08.08.2009 at about 12.00 p.m., when the

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injured/claimant was working as a cleaner in the lorry, the driver of the Tipper Lorry bearing registration No.KA-09-B-0027 (offending vehicle) in order to unload the boulders stones, started the vehicle without giving any indication. At that time, the steel door of the vehicle got separated and fell down on the left shoulder of the injured/claimant. As a result, the injured/claimant sustained grievous injuries. It was further submitted that the injured/claimant has incurred huge medical expenses for taking treatment.

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It was contended that the injured/claimant

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was aged about 35 years at the time of the accident and

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earning Rs.200/per day as a cleaner in

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Srikanteshwara Stone Crushers. On these set of facts and grounds, the injured/claimant sought for

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compensation.

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On service of notice by the Tribunal, the

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insurer appeared and contested the claim. The defence taken was that the driver of the offending vehicle had no valid and effective driving licence to drive the same at the time of the accident. The insurer is not liable to indemnify the insured since the injured/claimant was working in the lorry as a cleaner. The accident occurred only due to the negligence of the injured/claimant. The owner of the vehicle appeared and contended that the liability, if any, has to be fastened on the insurer as the vehicle was duly insured and the policy was in force.

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On the basis of the pleadings, issues were

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framed and answered as per the reasons recorded in the impugned judgment allowing the petition in part

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awarding total compensation of Rs.12,29,300/- with interest at the rate of 6% per annum from the date of petition till its realization fastening liability on the insurer.

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Being aggrieved, the insurer has preferred MFA No.5598/2012 challenging the liability and quantum, whereas the claimant has preferred MFA Crob No.80/2012 seeking for enhancement of compensation.

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Learned counsel for the insurer submitted that indisputably the claimant was working as a cleaner in the offending vehicle. As such, the Tribunal erred in granting the compensation under the Motor Vehicles Act. The liability, if any, ought to have been restricted to the provisions of the Employee’s Compensation Act, 1923 and hence the finding of the Tribunal is liable to be set aside. Nextly, it was argued that the Tribunal has awarded exorbitant compensation. The disability

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assessed by the Tribunal at 75% to the whole body is without any valid basis. It was submitted that if the compensation is calculated as per the Employee’s Compensation Act, the total compensation will be Rs.2,55,906/- with interest at the rate of 12% per annum after 30 days from the date of the accident till the deposit.

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Learned counsel appearing for the claimant

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submitted that the claimant was working as an employee in Srikanteshwara Stone Crushers. The accident in question occurred when the driver of the offending vehicle moved the vehicle without giving any indication in order to unload the boulders. The compensation of the employee being covered under the policy, the Tribunal has rightly awarded the compensation under the Motor Vehicles Act. Nextly, it was argued that the compensation awarded under the

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different heads is abysmally low and the same requires to be enhanced.

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We have carefully considered the arguments advanced by the learned counsel appearing for the parties and perused the original records.

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The arguments of the learned counsel for the insurer that the compensation has to be awarded in terms of the Employee’s Compensation Act for the employee deserves to be negated for the reason that neither any evidence was tendered nor any documents were marked on behalf of the insurer.

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The Hon’ble Apex Court in the case of National Insurance Company Ltd., vs. Prembai Patel

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and others reported in 2005 SCC (L & S) 819 has held

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thus:-

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“13. The insurance policy being in the nature of a contract, it is permissible for an owner to take such a policy whereunder the entire

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liability in respect of the death of or bodily injury to any such employee as is described in sub-clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) may be fastened upon the insurance company and insurance company may become liable to satisfy the entire award. However, for this purpose the owner must take a policy of that particular kind for which he may be required to pay additional premium and the policy must clearly show that the liability of the insurance company in case of death of or bodily injury to the aforesaid kind of employees is not restricted to that provided under the Workmen's Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy.”

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The expression “such liability” as is required

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to be covered by a policy under Section 147(1)(b) of the Act being a liability covered by the terms of the policy. Such liability which is mandatorily required to be covered by a policy under Section 147(1)(b) has to be satisfied by the insurance company. The burden lies on

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the insurance company to prove that there was no contractual obligation to indemnify the owner to the extent of entire liability in respect of death or bodily injury to any such employee.

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Thus, in order to prove that the

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compensation has to be awarded under the Employee’s Compensation Act, the insurer ought to have tendered evidence. In the absence of any evidence let in by the insurer and no finding being recorded by the Tribunal on this point, the grounds now urged by the insurer deserves to be negated.

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As regards the quantum of compensation, the Tribunal has assessed the monthly income of the injured/claimant at Rs.3,000/- notionally. In the absence of adequate evidence to prove the factum of income, having regard to the Chart prepared by the Karnataka State Legal Services Authority, it is safe to re-determine the monthly income at Rs.5,000/-. The age

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of the injured/claimant was 38 years as on the date of the accident - 08.08.2009. The nature of the injuries sustained by the claimant though appears to be grievous, the same cannot be considered to be 75% of the disability to the whole body. In our view, it would be reasonable to re-assess the disability at 50%. Applying the multiplier of ‘15’, the loss of future income would work out to Rs.4,50,000/- (5000 x 12 x 15 x 50%).

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The medical records would disclose that the injured/claimant has taken treatment as an inpatient at BGS Apollo Hospital, Mysuru and has suffered for the injuries sustained in the accident. Though the left hand was damaged, on the treatment provided, the same was joined after the surgeries conducted. Accordingly, we deem it appropriate to award Rs.25,000/- towards loss of pain and sufferings; Rs.15,000/- towards loss of income during laid up period; Rs.10,000/- towards food, attendant and nourishment charges.

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17. Compensation of Rs.8,00,000/- awarded by

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the Tribunal towards medical expenses being based on the material evidence, the same remains undisturbed.

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For the reasons aforesaid, the total

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compensation awarded by the Tribunal is re-assessed as under:

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Sl.No.	Particulars	Amount [in Rs.]
1.	Loss of futureincome	4,50,000/-
2.	Pain and sufferings	25,000/-
3.	Loss of income during laid up period	15,000/-
4.	Medicalexpenses	8,00,000/-
5.	Food, attendant and nourishment charges	10,000/-
	Total	13,00,000/-

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Thus, the claimant shall be entitled to total

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compensation of Rs.13,00,000/- with interest at the rate of 6% per annum from the date of the claim petition till the date of realization.

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Hence, the following:

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ORDER

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i) MFA No.5598/2012 filed by the insurer stands dismissed. ii) MFA Crob No.80/2012 filed by the claimant is allowed in part. iii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.13,00,000/- (Rupees Thirteen Lakhs only) as against Rs.12,29,300/- with interest at the rate of 6% per annum from the date of the claim petition till its realization. iv) The portion of the order of the Tribunal inasmuch as liability and disbursement remains intact. v) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date

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of receipt of the certified copy of the judgment and order. vi) The modified compensation amount shall be disbursed in terms of the order of the Tribunal.

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vii) Draw modified award accordingly. viii) The Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith. ix) All pending I.As. stand disposed of accordingly.

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Sd/JUDGE

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Sd/JUDGE

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PMR

M/S Shriram General v. Prasannakumar H M

Case brief

What is this about?

What did the court decide?

M/S Shriram General v. Prasannakumar H M

Case brief

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What did the court decide?

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