Partly allowed

The Branch Manager v. Smt. Mamatha G

Karnataka HC10 Aug 2022MFA/4063/2018

Case brief

AI extract

What is this about?

In cross appeals under Sec. 173(1) of the Motor Vehicles Act, the High Court addressed whether an insurer is liable despite the vehicle lacking a valid permit and assessed enhanced compensation for an amputee. The Court held the insurer must pay first with liberty to recover from the owner, enhanced the compensation to Rs.14,33,290/- based on 70% disability and notional income.

What did the court decide?

Compensation enhanced to Rs.14,33,290/- with 6% per annum interest. Insurance company directed to deposit amount and pay at first instance with liberty to recover from vehicle owner.

The Branch Manager Vs Smt. Mamatha G — Motor Accident Claims | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 10^TH DAY OF AUGUST, 2022

¶3

PRESENT

¶4

THE HON’BLE MR. JUSTICE B. VEERAPPA

¶5

AND

¶6

THE HON’BLE MRS. JUSTICE K.S. HEMALEKHA

¶7

MISCELLANEOUS FIRST APPEAL No.4063/2018 (MV-I) C/W MISCELLANEOUS FIRST APPEAL No.3879/2018 (MV-I) IN M.F.A. No.4063/2018

¶8

BETWEEN:

¶9

THE BRANCH MANAGER IFFCO TOKIO GIC LTD., KSCMF BUILDING, 3^RD FLOOR, 3^RD BLOCK, CUNNINGHAM ROAD, BANGALORE – 52.

¶10

NOW REP. BY ITS LEGAL MANAGER, IFFCO TOKIO GIC LTD., CUSTOMER SERVICE CENTER, SRI SHANTHI TOWERS, 5^TH FLOOR, NO.141, 3^RD MAIN, EAST OF NGEF LAYOUT, KASTURI NAGAR, BANGALORE – 560 043. ... APPELLANT

¶11

(BY SRI PRADEEP B., ADVOCATE)

¶12

AND:

¶13

SMT. MAMATHA .G W/O. PRAKASH .S AGED ABOUT 47 YEARS,

¶14

¶15

R/AT NO.17, 3^RD MAIN, 1^ST BLOCK, AYAPANAGAR, K.R.PURAM, BENGALURU – 560 036. PERMANENT ADDRESS: #1734/24, 2^ND CROSS, K.N. PURA, UDAYAGIRI P.O. MYSORE – 570 019.

¶16

SRI G. THIMMARAYAN, #1/75, BALANAPALLO P.O., THEERTHAM VILLAGE, KRISHNAGIRI TALUK, TAMIL NADU – 635 121. ... RESPONDENTS

¶17

(BY SRI D.S. SRIDHAR, ADVOCATE FOR SRI K.V. SHYAMA PRASADA, ADVOCATE FOR C/R-1; R-2 IS SERVED BUT UNREPRESENTED)

¶18

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.02.2018 PASSED IN MVC NO.2258/2016 ON THE FILE OF THE 10^TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU (SCCH-16), AWARDING COMPENSATION OF RS.10,62,000 WITH INTEREST AT 9 P.A. FROM THE DATE OF PETITION TILL REALISATION.

¶19

IN M.F.A. No.3879/2018

¶20

BETWEEN:

¶21

SMT. MAMATHA .G W/O. PRAKASH .S AGED 47 YEARS, R/AT NO.17, 3^RD MAIN, 1^ST BLOCK, AYAPANAGAR, BENGALURU – 560 036. PERMANENT ADDRESS:

¶22

¶23

#1734/24, 2^ND CROSS, K.N. PURA, UDAYAGIRI P.O., MYSORE – 570 019. ... APPELLANT

¶24

(BY SRI D.S. SRIDHAR, ADVOCATE FOR SRI K.V. SHYAMA PRASADA, ADVOCATE)

¶25

AND:

¶26

M/S. IFFCO-TOKIO GENERAL INSURANCE CO. LTD., REP. BY ITS MANAGER, 3^RD FLOOR, #8, 3^RD BLOCK, CUNNINGHAM ROAD, BENGALURU – 560 051. REPRESENTED BY IS MANAGER.

¶27

G. THIMMARAYAN, FATHER’S NAME NOT KNOWN TO THE APPELLANT MAJOR, NO.1/75, BALANAPALLO P.O., THEERTHAM VILLAGE, KRISHNAGIRI TALUK, KRISHNAGIRI, TAMIL NADU – 635 121. ... RESPONDENTS

¶28

(BY SRI B. PRADEEP, ADVOCATE FOR R-1; V/O. DATED 10.08.2022 NOTICE ON R-2 IS DISPENSED WITH)

¶29

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17/02/2018 PASSED IN MVC NO.2258/2016, ON THE FILE OF THE X ADDL. JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶30

THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY , B.VEERAPPA J., DELIVERED THE FOLLOWING:

¶31

¶32

J U D G M E N T

¶33

MFA.No.4063/2018 is preferred by the insurance

¶34

company assailing the judgment and award passed by the Tribunal on the ground of liability, 70% disability taken by the Tribunal, granting interest @ 9% p.a. and for reduction of compensation, while MFA.No.3879/2018 is preferred by the injured/claimant seeking enhancement of

¶35

compensation against the judgment and award dated 17.02.2018 made in MVC No.2258/2016 on the file of

¶36

Court of Small Causes and Motor Accident Claims Tribunal at Bengaluru (hereinafter referred to as ‘the Tribunal’ for short), whereby the Tribunal has awarded total compensation of Rs.10,62,000/- with interest @ 9% p.a. (excluding future medical expenses of Rs.1,00,000/-) from the date of petition till the date of realization.

¶37

¶38

The injured/claimant has filed claim

¶39

petition under the provisions of Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.70,00,000/- on account of injuries sustained in a road traffic accident that occurred on 05.11.2015, when the claimant was traveling as a pillion rider on the scooter bearing registration No.KA-53-EH-8772 rode by her husband and when they reached near Sri. Anjaneya Temple, at Marathahalli, a tipper lorry bearing registration No.TN-24-AB-3956 came in the opposite direction in a rash and negligent manner and dashed against the scooter. As a result, claimant fell down and the back wheel of the lorry ran over her right hand resulting in crush injury. Immediately, she was shifted to Hosmat Hospital for treatment, where she was treated as inpatient and the right hand was amputed. Prior to the accident, she was doing tailoring work and earning Rs.20,000/- per month and due to the accident, she became permanently disabled

¶40

¶41

and lost earning capacity. Therefore, the

¶42

injured/claimant filed the claim petition seeking compensation.

¶43

In pursuance of the notice issued by the Tribunal, respondents appeared, however respondent No.2 has not filed written statement.

¶44

Respondent No.1-insurance company has

¶45

filed written statement denying the averments made in the claim petition. Respondent No.1 admitted the issuance of policy in respect of tipper lorry and its validity as on the date of the accident and the liability is concerned, it has stated that the driver of the offending vehicle had no valid and effective driving licence as on the date of the accident and there was no valid permit to the lorry. Therefore, respondent No.2 is not liable to pay the compensation and sought to reject the claim petition.

¶46

¶47

The Tribunal on the basis of the pleadings,

¶48

framed the following issues:

¶49

“1) Whether the petitioner proves that she sustained grievous injuries in vehicular accident alleged to have occurred on 05-112015 due to the rash and negligent driving of driver of Tipper Lorry bearing Reg. No.TN-24HB-3956?

¶50

1. Whether the petitioner is entitled to compensation? If so, what is the quantum and from whom?”

¶51

In order to substantiate the case of the claimant, the claimant examined herself as PW.1 and examined Dr. Krishan Prasad as PW.2 and got marked documents at Exs.P.1 to P.20. On the other hand, respondent No.1 examined its Legal Officer as RW.1 and got marked documents at Ex.R.1 to R.3 and respondent No.2 has not led any rebuttal evidence.

¶52

¶53

The Tribunal, on the basis of the pleadings,

¶54

oral and documentary evidence on record, held that

¶55

the accident occurred due to rash and negligent driving of the driver of the Tipper Lorry bearing registration No.TN-24-AB-3956 and due to the impact of the accident, the claimant suffered grievous injuries and thereby, claimant is entitled for total compensation of Rs.10,62,000/- with interest @ 9% p.a. (excluding future medical expenses of Rs.1,00,000/-) from the date of petition till the date of realization. Hence, Miscellaneous First Appeal No.4063/2018 is filed by the insurance company on the ground of fastening of the liability and for reduction of compensation and MFA No.3879/2018 is filed by the injured/claimant seeking enhancement of compensation.

¶56

We have heard the learned counsel for the

¶57

parties to the lis .

¶58

¶59

Sri. B. Pradeep, learned counsel for the insurance company mainly contended that the Tribunal has committed an error in fixing the liability upon the insurance company though the offending vehicle was not having valid permit as on the date of the accident. It is further contended that the Tribunal has erred in directing the insurance company to pay the compensation after coming to a definite conclusion that the offending vehicle has violated the road permit as per Ex.R.3 and as such, the fastening of liability upon the insurance company is erroneous. It is further contended that the Tribunal has erred in taking the whole body disability at 70% as against the medical evidence and evidence of PW.2-Doctor, who has stated that the claimant has suffered disability to an extent of 44% to the whole body. It is further contended that the rate of interest awarded by the Tribunal at 9% p.a. is erroneous and contrary to the

¶60

10 -

¶61

material on record. Thereby, sought to allow the appeal filed by the insurance company and dismiss the appeal filed by the claimant.

¶62

Per contra, Sri. D.S. Sridhar, learned counsel for the injured/claimant contended that though claimant was earning Rs.20,000/- per month, the Tribunal has erred in assessing the income of the claimant at Rs.7,000/- per month. As per evidence of the claimant, she was doing tailoring work and the Tribunal has not granted any future prospects. Thereby, sought to allow the appeal filed by the injured/claimant and dismiss the appeal filed by the insurance company.

¶63

In view of the rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in the appeals are:

¶64

11 -

¶65

“1. Whether the insurance company has made out a case for reduction of compensation on the ground of liability?

¶66

Whether the injured/claimant has made out a case for enhancement of compensation, in the facts and circumstances of the present case?”

¶67

We have given our anxious consideration to

¶68

the arguments advanced by the learned counsel for

¶69

the parties and perused the material on records carefully.

¶70

Point Nos.1 and 2

¶71

It is an undisputed fact that the claimant sustained grievous injuries in the road traffic accident occurred on 05.11.2015 due to the rash and negligent driving of the Tipper Lorry bearing registration No.TN24-AB-3956 as is evidenced from material documents

¶72

Ex.P.1- the FIR, Ex.P.3- the Charge-sheet filed by the

¶73

12 -

¶74

jurisdictional police during the course of the

¶75

employment against the driver of the lorry.

¶76

Sri. Pradeep, learned counsel for the

¶77

insurance company contended that the lorry had no

¶78

permit to ply the vehicle at the place of accident in view of provisions of Sections 149 (2) (a) (i) (a) of the Motor Vehicles Act and the permit was limited to Tamilnadu State and non possessing of valid permit, the insurance company needs to be exonerated. The said contention cannot be accepted in view of the dictum of the Hon’ble Supreme Court in the case of Rani and Others Vs. National Insurance

¶79

Company Limited and Others reported in (2018) 8 SCC 492, wherein Apex Court held that non possessing of valid permit is not a fundamental breach but a technical breach and ordered pay and recover and at paragraph Nos.7, 15, 16 and 17 held as under:

¶80

13 -

¶81

“7. Against this common award passed by the Tribunal, Respondent 1 Insurance Company carried the matter in appeal before the High Court being M.F.A. No.5874 of 2011 (MV) and M.F.A. No.5876 of 2011 (MV), respectively. The principal issue raised by the Insurance Company was that the Tribunal could not have fastened the liability on the insurer as the offending vehicle did not possess a valid permit to operate in the State of Karnataka in view of Section 149(2)(a)(i)(a) of the Motor Vehicles Act, 1988. For, the permit was limited to the State of Maharashtra.

¶82

We are of the view that the High Court has already granted more than just compensation amount to the legal representatives of the deceased (Satish). In that, even if the claim of the appellants regarding future prospects, additional medical expenses and additional interest amount was to be accepted, on the basis of the notional income of Rs.5000/- (Rupees five thousand) per month, the question of awarding additional or further compensation amount to the appellants in M.F.A. No.5874 of 2011 does not arise. The appeal, however, would succeed to

¶83

14 -

¶84

the limited extent that the amount of compensation determined by the High Court shall be first paid by Respondent 1 Insurance Company with liberty to recover the same from the owner of the offending vehicle (Respondent 2 herein). We are inclined to allow the appeal to this limited extent, keeping in mind the exposition in Singh Ram vs. Nirmala and Pappu vs. Vinod Kumar Lamba.

¶85

Reverting to the appeal preferred by Respondent 1 Insurance Company against Anand (M.F.A. No.5876 of 2011), as noted in paras 11 and 12 of the impugned judgment reproduced above, the High Court disposed of the said appeal by absolving the insurer from the liability to pay compensation amount. As noticed earlier, the appellant (Anand) did not file any appeal against the award passed by the Tribunal for enhancement of compensation amount and the cross-objection filed by him in the appeal filed by the Insurance Company came to be dismissed for non-prosecution. Even in respect of this appeal, the Tribunal had found that he failed to produce any evidence regarding his monthly income and the permanent disability suffered by him had been

¶86

15 -

¶87

determined as not exceeding 10% to the whole body and compensation had been awarded to him on that basis. Resultantly, we intend to dispose of this appeal on the same basis by directing the Respondent 1 Insurance Company to pay the compensation amount awarded to the claimant (Anand) in the first place, with liberty to recover the same from the owner of the offending vehicle (Respondent 2).

¶88

In view of the above, the appeals are partly allowed by directing the Respondent 1 Insurance Company to first pay the compensation amount to the respective claimants as determined by the High Court and Tribunal as the case may be, with liberty to recover the same from the owner of the offending vehicle, Respondent 2. The impugned judgment and order passed by the High Court stands modified to this limited extent.”

¶89

In view of the above, the contention raised

¶90

by the learned counsel for the insurance company, that fastening of liability upon the insurance company

¶91

16 -

¶92

to pay the compensation has to absolved cannot to accepted and the Insurance Company shall pay the compensation at the first instance to the claimant and recover the same from the owner of the offending vehicle.

¶93

It is also not in dispute that due to the unfortunate accident, the claimant has sustained right upper limb severe crush injury as per Ex.P.7-Wound Certificate and right hand of the above elbow has been amputed as per Ex.P.8- Discharge Summary and statement of PW.2 – Dr. Krishan Prasad, who has stated on oath that the claimant has suffered permanent disability to an extent of 70% to the upper right limb and whole body disability at 44% and as per the guidelines and Gazettee Notification issued by the Ministry of Social Justice and Empowerment, the percentage of the disability for the amputation of upper limb from the above elbow is 80%.

¶94

17 -

¶95

It is specific case of the claimant that she was earning Rs.20,000/- per month by doing tailoring work however, no documents have been produced before the Court to prove the avocation and the income. In the absence of the material document to evidence the actual income of the claimant, the guidelines issued by the Karnataka State Legal Services Authority, Bengaluru needs to be considered. As per the guidelines, for the accident that occurred in the year 2015 the notional income to be taken is at Rs.9,000/- and the Tribunal has erred in taking the income of the claimant as only Rs.7,000/- per month instead of Rs.9,000/per month. Taking into consideration the age of the claimant as 47 years, the multiplier applicable is 13.

¶96

Sri. Pradeep, learned counsel for the

¶97

insurance company contended that the Tribunal has erred in taking disability to an extent of 70% to the

¶98

18 -

¶99

whole body even though doctor assessed the whole body disability at 44%. The fact remains that in view of unfortunate accident occurred, the claimant, who is aged about 47 years has to suffer through out her life as her right upper limb was severely crushed as per Ex.P.7-Wound Certificate and right hand of above elbow has been amputed as per Ex.P.8-Discharge Summary. Though PW.2 has stated that claimant sustained 70% disability to the upper right limb and whole body disability at 44%, the fact remains that in view of the Workmen’s Compensation Act, 1923 Schedule-I Amputation cases – Upper Limb (either arm) Amputation below shoulder with stump less than 20.32 Cms. from tip of acromion is 80%. Thereby, the Tribunal was justified in taking 70% of disability in view of crush injury, which affects the earning capacity of the claimant. It should be emphasized that the Court should take into account the serious injury, which not only caused physical disability but

¶100

19 -

¶101

also implied deep mental agony for the victim. Taking into consideration the peculiar facts and circumstances of the case, we are of the considered view that the Tribunal is justified in taking the 70% physical disability.

¶102

In view of the above, the income of the claimant has to be taken at Rs.9,000/- per month and the percentage of disability has to be taken at 70%. The appropriate multiplier applicable is '13' considering the age of the claimant as 47 years. Therefore, the appellant/claimant is entitled to compensation of Rs.9,82,800/- (Rs.9,000 x 12 x 13 x 70%) under the head of 'loss of future income'.

¶103

The Tribunal has proceeded to award lesser compensation in respect of other heads, which requires further enhancement.

¶104

20 -

¶105

The other contention raised by the learned counsel for the appellant is that fixing 9% interest is contrary to the material on record and contrary to the dictum of the Hon’ble Supreme Court. Taking into consideration the peculiar facts and circumstances of the present case, as per Ex.P.7-Wound Certificate and Ex.P.8-Discharge Summary and evidence of PW.2 the doctor, the claimant has to suffer through out her life not only because of amputation of her right limb, but also she undergone mental agony as her right hand above the elbow has been amputed and the earning capacity would be reduced as she was basically a tailor and a homemaker thereby, the Tribunal is justified in awarding interest @ 9% per annum on the compensation.

¶106

On reassessing the entire oral and documentary evidence on record, this Court is of the considered opinion that the appellant/claimant is

¶107

21 -

¶108

entitled for just and proper compensation under

¶109

different heads as under:

¶110

Sl. No.	Head of Compensation	Amount in Rs.
1.	Pain and sufferings	1,00,000.00
2.	Attendant charges, extra nourishment charges	25,000.00
3.	Loss of income during laid-up period	27,000.00
4.	Medical expenses (as per award of the Tribunal)	98,490.00
5.	Loss of future income due to permanent disability	9,82,800.00
6.	Loss of future amenities	1,00,000.00
7.	Future medical expenses	1,00,000.00
	Total	14,33,290.00

¶111

The Tribunal has already awarded a sum of

¶112

Rs.10,62,000/- and deducting the same out of Rs.14,33,290/-, the claimants are entitled to enhanced compensation of Rs.3,71,290/- with interest @ 6% p.a. from the date of petition till the date of

¶113

realization.

¶114

22 -

¶115

In view of the above, we answer point

¶116

No.1 raised in the present appeals in the Negative holding that the insurance company has not made out a case to interfere with the judgment and award passed by the Tribunal for reduction of compensation and point No.2 raised in the present appeals partly in the affirmative holding that the appellant/claimant has

¶117

made out a case for enhancement of compensation, in the facts and circumstances of the case.

¶118

In the result, we pass the following:

¶119

ORDER

¶120

(i) MFA.No.4063/2018 filed by the insurance company is allowed in part.

¶121

(ii) MFA.No.3879/2018 preferred by the claimant for enhancement of compensation is allowed in part.

¶122

(iii) The claimant is entitled for compensation of Rs.14,33,290/- as against Rs.10,62,000/-.

¶123

(iv) The claimant is entitled for enhanced compensation of Rs.3,71,290/- with interest

¶124

23 -

¶125

at the rate of 6% per annum from the date of claim petition till the date of realization. (v) The insurance company is directed to deposit the entire compensation amount with proportionate interest before the Tribunal within a period of six weeks from the date of receipt of a copy of this order.

¶126

(vi) However, the insurance company is directed to pay the compensation amount at the first instance and recover the same from the owner of the vehicle in accordance with law.

¶127

(vii) The amount in deposit before this Court shall be transmitted to the Tribunal forthwith.

¶128

(viii) Trial Court record to be transmitted to the concerned Court forthwith.

Sd/-

JUDGE

Sd/JUDGE

MBM

The Branch Manager v. Smt. Mamatha G

Case brief

What is this about?

What did the court decide?

The Branch Manager v. Smt. Mamatha G

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dasappa Vs Thimmegowda

Dr Banakar a B @ Banakar Vs Iffco Tokio General Ins.Co.Ltd

Bhabha Atomic Research Centre Vs Smt K a Saroja

Smt. Mamatha G Vs M/S. Iffco-Tokio General Insruance Co. Ltd.

Sri Deepak Kumar H R Vs the State of Karnataka

Sri. Kale Gowda Vs the State of Karnataka