Dismissed

National Insurance Co. Ltd., v. Vishwanath

Karnataka HC9 Mar 2022MFA/3677/2018

Case brief

AI extract

What is this about?

This is a motor accident first appeal by an insurance company challenging compensation awarded to injured respondents. The High Court held that functional disability was correctly assessed at 30% considering the petitioner's profession as a driver and allowed the lower court's findings.

What did the court decide?

The appeal filed by the insurance company against the judgment and award of the Motor Accident Claims Tribunal was dismissed.

National Insurance Co. Ltd., Vs Vishwanath — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF MARCH, 2022

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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M.F.A.NO.3677/2018 (MV)

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BETWEEN:

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NATIONAL INSURANCE CO LTD., BRANCH OFFICE, MAIN ROAD, KUNDAPURA, REPRESENTED BY NATIONAL INSURANCE CO. M.G.ROAD, BENGALURU – 560 001 REPRESENTED BY AUTHORISED SIGNATORY.

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… APPELLANT

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(BY SRI.R.JAIPRAKASH, ADVOCATE)

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AND:

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VISHWANATH, 31 YRS, S/O NARAYANA NAIK, R/O KAROOR, HOSANGADI VILLAGE, KUNDAPURA TQ, UDUPI DIST – 576 201

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ASHOK 39 YRS, S/O SHANKARA KULALA, R/O KAROOR, HOSANGADI VILLAGE, KUNDAPURA TQ, UDUPI DIST – 576 201

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...RESPONDENTS

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(BY SRI. B.VIJAY SHETTY, ADVOCATE FOR R1;

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V/O/DTD 03.04.2019, R2 NOTICE DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED

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05.02.2018 PASSED BY SENIOR CIVIL JUDGE AND ADDITIONAL MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL AT KUNDAPURA TO SERVE THE INTEREST OF JUSTICE.

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THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though this appeal is posted for admission, with the consent of learned counsel for both the parties, the same is taken up for final disposal.

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Respondent No.2 Insurance Company has filed

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this appeal challenging the impugned judgment and award on the ground that it is on the higher side and calls for interference by this Court.

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For the sake of convenience the parties are referred to by their rank before the Tribunal.

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The appellant/Insurance company has sought reduction of the compensation contending that though the petitioner has sustained 30% disability of the lower limb

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which comes to 10% of the whole body, the Tribunal has granted compensation under the head future loss of income by considering the disability as 30%. It should have been restricted to 10%.

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It is the case of the petitioner that on 09.01.2016, the petitioner was travelling in a motor cycle bearing registration No.KA 20 EH 2086 as pillion rider from Haladi side towards Shankaranarayana side. The rider of the motor cycle was driving it in a high speed, in a rash or negligent manner. At about 12.00 in the midnight on the intervening night of 9/10.01.2016, when the motor cycle reached Kattemakki of Shankaranarayana village, the motor cycle dashed against an auto rickshaw, as a result of which petitioner sustained number of injuries.

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Inspite of prolonged treatment, he has suffered permanent partial disability. He was a lorry driver, getting monthly income of Rs.20,000/-. Due to the disability, he is unable to work as he used to earlier to the accident.

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Though respondent No.1 appeared, he did not

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file written statement.

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Respondent No.2 filed written statement denying

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the mode of accident, age, avocation, income, nature of the injuries sustained and medical expenses incurred. It has also denied that petitioner has sustained permanent partial disability affecting his income.

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During the enquiry, petitioner has examined himself as PW-1 and the Doctor as PW-2. He has relied upon Ex.P1 to P85.

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Respondent No.2 has not adduced any oral evidence, but got marked the Insurance policy as Ex.R1.

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Vide the impugned judgment and award, the Tribunal has partly allowed the claim petition and granted compensation in a sum of Rs.7,99,316/-.

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Petitioner has not challenged the impugned judgment and award.

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The respondent No.2 Insurance company has challenged the impugned judgment and award mainly on the ground that though the disability calculated by the Doctor with regard to the lower limb is 30% which comes to 10% of the whole body, the Tribunal has erred in considering the functional disability as 30% and to that extent compensation is required to be reduced. With regard to the compensation granted on the other heads, the respondent No.2 is not having any serious dispute. Therefore, now it is to be seen whether Tribunal is justified in considering 30% disability suffered by the petitioner with regard to the lower limb as the functional disability.

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The petitioner has claimed that he was the driver

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of the heavy motor vehicle. Though he has not produced any evidence with regard to his profession, he has produced photo copy of the driving license which shows that he was

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authorized to drive the motor cycle with gear, LMV, transport vehicle and PSV bus. Based on the said observation, the Tribunal has held that petitioner is a driver by profession. This fact is not seriously disputed by the respondent No.2 Insurance company.

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15. PW-2 Dr.Dinesh Kumar Shetty has examined the

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petitioner with regard to disability based on the records brought from the hospital, where he had taken treatment and as per the medical records, he has found the following injuries:

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“(i) Compound, comminuted distal femur

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fracture with bone,

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(ii) Dislocation right knee

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(iii) Laceration and skin loss right foot (iv) Laceration and skin loss left foot”

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16. PW-2 has also deposed that the petitioner was

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in patient from 10.01.2016 to 27.01.2016 and he was advised bed rest for five months. He has assessed the disability as follows:

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“1. There is wasting of right thigh 2.5 c.m

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Knee flexion 0-60 decree possible

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Anterio-posterio instability

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Ankle DF-PF reduced 20%

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EHL Grade 3

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Dorsiflexion Grade 3

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Reduced sensation foot”

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PW-2 has also deposed that due to the injuries

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sustained by the petitioner and difficulties and disability suffered by him, he has got difficulty in driving the heavy vehicles or doing any kind of strenous activity. He has assessed the disability of right lower limb as upto 30%. During his cross-examination he has denied that the disability so suffered by the petitioner with regard to the lower limb is only 10% of the whole body. Considering all these aspects and having regard to the fact that petitioner is a driver, the Tribunal has rightly held that though the disability of whole body comes to 10%, the functional disability is 30% and accordingly, calculated the compensation based on the same.

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Having regard to the nature of the injuries

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sustained by him, the period of hospitalization and also follow up treatment and the bed rest advised by the Doctors, the compensation granted by the Tribunal under the remaining heads is also reasonable and appropriate and this Court finds no reason to interfere with same. Consequently, the appeal is liable to be dismissed. Accordingly, I proceed to pass the following:

ORDER

Appeal is dismissed.

Sd/JUDGE

National Insurance Co. Ltd., v. Vishwanath

Case brief

What is this about?

What did the court decide?

National Insurance Co. Ltd., v. Vishwanath

Case brief

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