Partly allowed

United India Insurance Co. Ltd. v. Mahabala Poojary

Karnataka HC13 Jun 2022MFA/32/2018

Case brief

AI extract

What is this about?

The High Court disposed of clubbed appeals under Section 173(1) of the Motor Vehicles Act. It affirmed the negligence of the offending vehicle driver but modified the compensation awards in two motor accident cases, reducing liability in one and enhancing it in another based on specific injury assessments and legal precedents for minors.

What did the court decide?

Compensation in MVC 362/2016 reduced to Rs.4,93,414; in MVC 361/2016 enhanced to Rs.1,50,000. Insurance Company directed to deposit amounts.

United India Insurance Co. Ltd. Vs… — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD

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MFA No.32 OF 2018(MV)

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C/W MFA Nos.1822 OF 2018(MV) & 1823 OF 2018(MV)

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IN MFA 32/2018 BETWEEN:

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United India Insurance Co. Ltd., Branch Office: Kundapura, Sri. Laxmi Narasimha Complex, Opp: KSRTC Depot, NH-66, Vaderhobli, Kundapura.

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BY Divisional Manager, United India Insurance Co. Ltd., Jewel Plaza,1^st Floor, Maruthi Veethika, Udupi-576 101.

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… Appellant

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(By Sri.O.Mahesh., Advocate)

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AND:

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Mahabala Poojary, Aged about 41 years, S/o Ganapa Poorary, R/o Huddinabettu, Vandse Village, Kundapura Taluk-576104.

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Manjunatha, Aged 32 years, S/o Bhujanga, R/o Sulse, Kattebelthur village, Kundapura Taluk-576101. ... Respondents

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(By Sri.Nagaraja Hegde, Advocate for R1: Notice to R2 is served and unrepresented)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 01.08.2017 passed in MVC No. 362/2016 on the file of the Senior Civil Judge, Kundapura and Member, Additional MACT, Kundapura, partly allowing the claim petition for compensation and seeking enhancement of compensation.

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IN MFA 1822/2018 BETWEEN:

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Sri.Mahabala Poojary, Aged about 42 years, S/o Ganapa Poorary, R/o Huddinabettu, Vandse Village, Kundapura Taluk-576201. …Appellant

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(By Sri. Nagaraja Hegde, Advocate)

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AND:

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Sri. Manjunatha, Aged 33 years, S/o Bhujanga, R/o Sulse, Kattebelthur village, Kundapura Taluk-576201.

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United India Insurance Co. Ltd., Branch Office: Kundapura,

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Sri. Laxmi Narasimha Complex, Opp: KSRTC Depot, NH-66, Vaderhobli, Kundapura. Rep. by its Branch Manager. ... Respondents

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(By Sri.O.Mahesh, Advocate for R2: Notice to R1 is served and unrepresented)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 01.08.2017 passed in MVC No. 362/2016 on the file of the Senior Civil Judge, Kundapura and Member, Additional MACT, Kundapura, allowing the claim petition for compensation and seeking enhancement of compensation.

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IN MFA 1823/2018 BETWEEN:

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Minor Abhijith, S/o Mahabala Poojary, Aged about 13 years, Rep. by his guardian father Sri. Mahabala Poojary, Aged about 42 years, R/o Huddinabeetu, Vandse Village, Kundapura Taluk-576201. …Appellant

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(By Sri. Nagaraja Hegde, Advocate) AND:

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Sri. Manjunatha, Aged 33 years, S/o Bhujanga, R/o Sulse, Kattebelthur village, Kundapura Taluk-576201.

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United India Insurance Co. Ltd., Branch Office: Kundapura, Sri. Laxmi Narasimha Complex, Opp: KSRTC Depot, NH-66, Vaderhobli, Kundapura. Rep. by its Branch Manager. ... Respondents

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(By Sri.O.Mahesh, Advocate for R2: Notice to R1 is served and unrepresented)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 01.08.2017 passed in MVC No. 361/2016 on the file of the Senior Civil Judge, Kundapura and Member, Additional MACT, Kundapura, allowing the claim petition for compensation and seeking enhancement of compensation.

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These MFAs, coming on for admission, this day, this Court, delivered the following:

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J U D G M E N T

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MFA No.32/2018 is filed by the Insurance Company whereas MFA Nos.1822/2018 and 1823/2018 are filed by the claimants under Section 173(1) of the Motor Vehicles Act, (for short, ‘the Act’) being aggrieved by the judgment and award dated 01.08.2017 passed by the MACT, Kundapura in MVC Nos.361/2016 and 362/2016. Since the challenge is

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to the same judgment, all the appeals are clubbed

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together, heard and common judgment is being passed.

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Facts giving rise to the filing of the appeals briefly stated are that on 29.11.2015 at about 6.45 p.m., the claimants were proceeding in a motorcycle bearing registration No.KA-20/S-6542. When they reached near water tank, Kenchanuru village, at that time, Tata Ace Goods vehicle bearing registration No.KA-20/C-1981 being driven by its driver at a high speed and in a rash and negligent manner, came from Hemmadi side towards Nempu side and dashed to the vehicle of the claimants. As a result of the aforesaid accident, the claimants sustained grievous injuries and were hospitalized.

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The claimants filed petitions under Section 166 of the Act seeking compensation. It was pleaded that they spent huge amount towards medical expenses, conveyance, etc. It was further pleaded

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that the accident occurred purely on account of the

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rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent No.2 appeared through counsel and filed written statement in which the averments made in the petition were denied. The age, avocation and income of the claimants and the medical expenses are denied. It was pleaded that the petitions itself are false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent riding of the vehicle by the claimant himself. It was further pleaded that the driver of the offending vehicle did not have valid driving licence as on the date of the accident. It was further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation

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claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.

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The respondent No.1 did not appear before the

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Tribunal inspite of service of notice and was placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.Dinesh Kumar Shetty was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P22. On behalf of the respondents, one witness was examined as RW-1 and got exhibited document namely Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimants sustained injuries. The Tribunal further held that the claimants are

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entitled to compensation of Rs.1,35,000/and

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Rs.6,71,494/-, respectively, along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, this appeal has been filed.

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Sri O.Mahesh, the learned counsel for the Insurance Company has raised the following contentions:

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Firstly, the finding of the Tribunal on the issue of negligence suffers from illegality and infirmity since it failed to consider the negligence of the injured in the light of his admission that accident in question was in the center of the road and the road was down gradient with a curve and there was sufficient space on his left.

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Secondly, the Tribunal ought to have seen that the claimant who was riding the motorcycle has also contributed to the accident wherein RW-1 in his evidence has stated that insured vehicle was towing a

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vehicle and injured while riding his motorcycle has dashed against the vehicle being towed and not to his vehicle.

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Thirdly, in MVC No.362/2016 the Tribunal has grossly erred in awarding a compensation of Rs.3,68,600/- under the head 'loss of future income' by assessing the income of the claimant as Rs.10,000/- per month without any specific, cogent, corroborative and conclusive evidence of his employer and further holding that injured has suffered 22% disability and further allowing Rs.1,10,880/- towards future prospects.

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Fourthly, in respect of MVC No.361/2022, at the time of the accident the claimant was aged about 11 years and the injuries suffered by the claimant are minor in nature. Even if whole body disability is assessed, it cannot be more than 5%. Therefore, considering the age of the claimant and injuries

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suffered by him, the overall compensation awarded by the Tribunal is just and reasonable. Hence, he sought for allowing the appeal filed by the Insurance Company.

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On the other hand, Sri Nagaraja Hegde, the

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learned counsel appearing for the claimants has raised the following contentions:

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Firstly, the respondent has examined the driver of the offending vehicle. In his evidence he has categorically admitted that the car which was going through repair was tied on the right side of the Tata Ace and the same came to right side all of a sudden and at the alleged time, place of the accident the motorcycle was dashed. Therefore, it is very clear that the driver of the offending vehicle is negligent in causing the accident. It is also very clear from the sketch, mahazar.

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Secondly, the police has also registered the case

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against the driver of the offending vehicle. Even in the criminal case he has pleaded guilty of the alleged offence. Therefore, the Tribunal is justified in fastening the liability on the driver of the offending vehicle.

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IN MVC No.362/2016 :

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Firstly, the claimant is a driver by profession.

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Due to the injuries suffered to his left leg he was unable to do his day today work. Hence, the Tribunal instead of assessing functional disability at 100% has assessed the whole body disability as 22% which is on the lower side.

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Secondly, due to the accident the claimant has suffered grievous injuries, he was inpatient for a period of 13 days. He has suffered lot of pain during treatment and he has to suffer the disability and unhappiness throughout his life. The compensation

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awarded by the Tribunal under the heads 'pain and sufferings', 'loss of amenities' and other incidental expenses is on the lower side.

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IN MVC No.361/2016 :

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At the time of the accident the claimant was a

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minor aged about 11 years. He has examined the doctor and the doctor has assessed the disability as 14%. Since he is a minor, the compensation has to be granted by applying the law laid down by the Hon’ble Apex Court in the case of MALLIKARJUN –vsDIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER reported in (2014) 14 SCC 396. The overall compensation awarded by the Tribunal is on the lower side. Hence, he sought for allowing the appeals filed by the claimants.

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8. Heard the learned counsel for the parties.

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Perused the judgment and award and the original records.

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The case of the claimants is that on 29.11.2015 at about 6.45 p.m., the claimants were proceeding in a motorcycle bearing registration No.KA-20/S-6542. When they reached near water tank, Kenchanuru village, at that time, Tata Ace Goods vehicle bearing registration No.KA-20/C-1981 being driven by its driver at a high speed and in a rash and negligent manner, came from Hemmadi side towards Nempu side and dashed to the vehicle of the claimants. As a result of the aforesaid accident, the claimants sustained grievous injuries and were hospitalized. To prove their case, the first claimant has been examined as PW-1 and produced 11 documents. He has reiterated the averments made in the claim petition. The respondent has examined the

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driver of the offending vehicle as RW-1. In his crossexamination he has admitted that the car which was under repair was tied on the right side of the Tata Ace. But all of a sudden, at the alleged time, place of the accident motorcycle dashed against right side of the Tata Ace. It is also not in dispute that the complaint has been lodged against the driver of the offending vehicle. The police after thorough investigation have filed charge sheet. In the criminal case RW-1 admitted that he has pleaded guilty of the charge before the jurisdictional JMFC Court and he has paid the fine.

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I have gone through the original records. It is very clear from the spot panahcanama – Ex.P6 and spot sketch – Ex.P11 that the driver of the offending vehicle was negligent in causing the accident. The Tribunal is justified in answering issue No.1 in the affirmative.

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Re.quantum in MVC No.362/2016:

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Due to the accident the claimant has

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suffered lacerated wound 10 X 6 cms. exposing the patella, fracture patella left knee, laceration right leg, CLW left ear, avulsion of left pinna. PW-2, the doctor

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has stated in his evidence that the claimant has suffered disability of 22% left limb. He has deposed that due to the injury there is severe pain in the injured limb and the stability of left knee and movement of the left knee is reduced. The claimant is not able to stand for a long time on his left leg, not able to walk for a long time and not able to climb up and down, not able to fold the left leg. Considering the evidence of the doctor and considering the injuries suffered by him and his age and occupation as a driver, I am of the opinion that the whole body disability can be assessed as 18%. Since there is no evidence to prove that there is loss of future earning

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capacity, therefore, he is not entitled for addition of future prospects. The Tribunal has rightly assessed the monthly income of the claimant as Rs.10,000/since he was a driver. The claimant was aged about 41 years at the time of the accident and multiplier applicable to his age group is ‘14’. Thus, the claimant is entitled for compensation of Rs.3,02,400/(Rs.10,0001214*18%) on account of 'loss of future income' as against Rs.4,80,480/- awarded by the Tribunal.

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Considering the nature of injuries, the

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compensation awarded by the Tribunal under other heads is just and reasonable.

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Re.quantum in MVC No.361/2016:

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The claimant was a minor aged about 11

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years. Even though the doctor has assessed 14% disability to particular limb, he has not assessed the whole body disability. Even if it is assessed, it would

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be less than 10%. As per the judgment of the Hon’ble Apex Court in the case of MALLIKARJUN (supra), if the disability is less than 10% Rs.1,00,000/- has to be awarded for ‘pain and suffering, inconvenience, etc’, Rs.25,000/for ‘discomfort and loss of earning to the parents’ and Rs.25,000/- towards ‘medical expenses’. In all, claimant is entitled to compensation of Rs.1,50,000/-

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as against Rs.1,35,000/- awarded by the Tribunal.

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In the result, the appeals are disposed of. The judgment of the Claims Tribunal is modified.

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The claimant in MVC No.361/2016 is entitled to a total compensation of Rs.1,50,000/- as against Rs.1,35,000/- awarded by the Tribunal and the claimant in MVC No.362/2016 is entitled to a total compensation of Rs.4,93,414/as against Rs.6,71,494/- awarded by the Tribunal.

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The Insurance Company is directed to deposit the compensation amounts along with interest @ 6% p.a. from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of copy of this judgment.

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The claimants are not entitled to interest for the delayed period of 104 days in filing the appeals.

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The amount in deposit is ordered to be transferred to the Tribunal forthwith.

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JUDGE

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Cm/-

United India Insurance Co. Ltd. v. Mahabala Poojary

Case brief

What is this about?

What did the court decide?

United India Insurance Co. Ltd. v. Mahabala Poojary

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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