Dismissed

Sri Shivananda Gowda Patil v. National Insurance Co. Ltd.

Karnataka HC26 May 2022MFA/4244/2017

Case brief

AI extract

What is this about?

Two appeals were filed in the High Court of Karnataka: one by the Insurance Company challenging the compensation quantum, and another by the claimant seeking enhancement. The single judge bench examined evidence regarding salary, future earnings, and medical expenses. Dismissing both appeals, the court upheld the Tribunal's award of Rs.14,44,682/- relying on documentary evidence and expert testimo

What did the court decide?

Both appeals filed by the appellant insurance company and the appellant claimant were dismissed. The judgment and award dated 24.06.2015 were confirmed.

Sri Shivananda Gowda Patil Vs National… — 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 26^TH DAY OF MAY, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.7477/2015 C/W M.F.A.NO.4244/2017 (MV-I)

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IN MFA NO.7477/2015 (MV)

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BETWEEN :

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NATIONAL INSURANCE CO.LTD., REGIONAL OFFICE, NO.144, 1^ST FLOOR, SHUBHARAM COMPLEX, M.G.ROAD, BANGALORE-1.

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… APPELLANT

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(BY SMT. MANJULA N. TEJASWI, ADVOCATE)

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AND :

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SRI. SHIVANANDA GOWDA PATIL @ SHIVANANDA S. PATIL @ PATIL SHIVANANDA GOWDA, AGED ABOUT 39 YEARS, R/O NO.1508, 2^ND CROSS, 6^TH MAIN, 5^TH STAGE,

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1^ST PHASE, BEML, R.R. NAGARA, BENGALURU-98.

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SRI. AMAR SIDDAPPA MAGAVI, S/O SIDDAPPA MAGAVI, NO.5928, SAPTAGIRI NILAYA, NEAR KODAVA SAMAJA,

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VIJAYANAGARA 2^ND STAGE, MYSORE-570001. (RC OWNER OF MOTOR CYCLE NO.KA-09-ES 1682)

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... RESPONDENTS

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(BY SRI D. NAGARAJA REDDY, ADVOCATE FOR R1 V/O DTD-26/08/2021 SERVICE OF NOTICE TO R1 IS H/S, V/O DTD-30/06/2021 NOTICE TO R2 IS D/W)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:24.06.2015 PASSED IN MVC NO.4234/2013 ON THE FILE OF THE 2^ND ADDITIONAL SMALL CAUSES JUDGE AND 28^TH ACMM, BENGALURU, AWARDING THE COMPENSATION OF RS.14,44,682/- WITH INTEREST AT RS.6% P.A., FROM THE DATE OF THE PETITION TILL THE DATE OF DEPOSIT AND ETC.,

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IN MFA NO.4244/2017 (MV-I)

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BETWEEN :

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SRI. SHIVANANDA GOWDA PATIL, @ SHIVANANDA S. PATIL, @ PATIL SHIVANANDA GOWDA, AGED ABOUT 43 YEARS, S/O SIDDANA GOWDA PATIL, R/O NO.1508, 2^ND CROSS, 6^TH MAIN, 5^TH STAGE, 1^ST PHASE, BEML, RR NAGAR, BENGALURU-560 036.

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… APPELLANT

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(BY SRI. NAGARAJA REDDY D. ADVOCATE)

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AND :

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NATIONAL INSURANCE CO., LTD., NO.144, SHUBHARAM COMPLEX, MG ROAD, BENGALURU-560 009. REP. ITS MANAGER

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SRI. AMAR SIDDAPPA MAGAVI, MAJOR, S/O SIDDAPPA MAGAVI, R/O NO.5928, SAPTHAGIRI NILAYA, NEAR KODAVA SAMAJA, VIJAYANAGAR, 2^ND STAGE, MYSORE-571 124.

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... RESPONDENTS

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(BY SMT. MANJULA N. TEJASWI, ADV., FOR R1, V/O DTD-22/03/2022 NOTICE TO R2 IS D/W)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO ENHANCE THE AWARD AMOUNT WITH INTEREST AT THE RATE OF 12% P.A., TILL THE REALIZATION PASSED BY THE HON’BLE II ADDL. SMALL CAUSES JUDGE AND XXVIII ACMM AT BENGALURU IN MVC.NO.4234/2012 BY THE JUDGMENT AND AWARD DATED 24.06.2015 AND ETC.,

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THESE M.F.As. 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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The appeal in MFA No.7477/15 is filed by the Insurance Company challenging the Judgment and Award dated 24.06.2015 passed in MVC No.4234/2015 by the II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru and P.O., MACT, Bengaluru, challenging the quantum of Award.

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The appeal in MFA No.4244/2017 is filed by the claimant seeking for enhancement of compensation.

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The brief facts of the case are that on 13.07.2013, at about 4.00 p.m., when the petitioner was riding motorcycle bearing Registration No. KA-16/J-3064 along with a pillion rider on Nehru Main Road, Rajarajeshwari Nagara, Bengaluru, the rider of motorcycle bearing Registration No. KA-09/ES-1682 came in a high speed and dashed against the petitioner’s motorcycle and due to the impact, the petitioner sustained grievous injuries and suffered disability. Hence, he preferred the claim petition in MVC No.4234/2015 against the rider of the offending motorcycle and the Insurance Company. The Tribunal has awarded compensation to the claimant awarding a sum of Rs.14,44,682/- with interest at 6% per annum from the date of petition till deposit and directing the Insurance Company to deposit the entire compensation amount.

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Learned counsel appearing for the Insurance Company submitted that there is no evidence produced by the claimant to show that he had suffered loss of future earning and the claimant has not produced his bank

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passbook / statement subsequent to the month of June, 2013. Further, even after the accident, to show that the claimant is not working in any other company and he has sustained loss of earning, he has not produced the bank passbook for the month of July, 2013. The bank passbook produced by the claimant is only upto 29.06.2013. Therefore there is no evidence from the claimant’s side to show that he has suffered loss of future earning. Learned counsel further submitted that Exhibit P20 is the bank statement of the Company in which the claimant was working and it is upto 07.06.2013. It does not reflect the salary of Rs.60,000/- was given to the claimant. Therefore it is doubtful that the claimant was receiving salary of Rs.60,000/- per month before the accident. Under the circumstances, the salary slip exhibits P17 and P20 cannot be believed.

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Learned counsel submitted that in order to prove loss of future earning, claimant has not produced any evidence much less the bank passbook of July, 2013 to show that he had lost the job or he left the job and

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therefore did not receive any salary. Therefore in the absence of any evidence, the award of compensation under the head “ Future loss of earning” by the Tribunal is not correct.

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Learned counsel for the Insurance Company further submitted that the claimant admitted in his evidence that he has got insurance coverage for medical expenses but he has not produced any certificate from any Insurance Company stating that he the claimant has not received insurance amount towards his medical expenses. Therefore she submitted that if the claimant has received some insurance amount towards medical expenses and also received medical expenses from the company which would result in double claim towards medical expenses and the same cannot be permitted and thus, prayed for rejecting the compensation awarded towards medical expenses.

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To substantiate her contentions, learned counsel for the Insurance Company relied upon two Judgments of this Court in “Balakrishna N. Shetty and

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Others Vs. B.K. Ibrahim and Others” reported in ILR 2003 KAR 3801 and in “United India Insurance Co. Ltd. Vs. D.C. Rajanna & Another” reported in ILR 2000 KAR 3443.

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On the other hand, learned counsel for the claimant in MFA No.4244/17 submitted that the claimant was working as a Project manager in AN Prakash Construction Project Management Consultants (P) Ltd., Jayanagar, Bengaluru and was receiving a salary of Rs.60,000/- per month and due to the accident, the claimant is not able to do any other work in any other company and therefore he has lost future earnings. Therefore the Tribunal has awarded compensation.

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Further submitted that Ex.P.11 is the salary certificate produced by the claimant and Ex.P.17 is the pay slip produced by P.W.3 - HR Executive to prove that the claimant was receiving salary of Rs.60,000/- per month. Therefore, the Tribunal has correctly held the monthly salary of the claimant and accordingly, awarded compensation by holding that the claimant had suffered 13% of physical disability and thus, the compensation

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awarded by the Tribunal under the head “loss of future earnings” is correct.

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Further submitted that, just because, the bank pass book from July, 2013 onwards is not produced that cannot be said that the claimant was not earning income of Rs.60,000/- immediately before the accident. Therefore, Ex.P.9-bank pass book reflects the receipt of salary by the claimant from the company coupled with Ex.P.11 –salary certificate and Ex.P.17- pay slip which proves the fact that the claimant was receiving gross salary of Rs.60,000/- per month and accordingly, the Tribunal has assessed the quantum of compensation under the head “loss of future earnings” and accordingly, awarded the compensation, which needs no interference. Therefore, prays for dismissal of the appeal.

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Further, learned counsel for the claimant submitted that the amount of compensation awarded by the Tribunal under various heads are not correct and inadequate. Therefore, prays for enhancement of the compensation by allowing MFA.No.4244/2017.

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12. The Tribunal in all awarded compensation

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under various heads as follows:

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Injury pain and sufferings	Rs.40,000/-
Loss of future earnings	Rs.12,53,702/-
Medical Expenses	Rs.1,06,880/-
Loss of amenities	Rs.20,000/-
Conveyance, nourishment, food and attending charges	Rs.9,100/-
Future medical expense	Rs.15,000/-
Total	Rs.14,44,682/-

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Ex.P.9 is the copy of the bank pass book which shows that the salary amount of Rs.60,000/- was credited to the account of the claimant. Ex.P.11 is the salary certificate of the claimant which shows that the claimant’s salary was Rs.60,000/- per month. Further P.W.3 who is the HR Executive of the Company deposed in his evidence that the claimant was working as a Project Manager (Electrical) and the company was giving salary of Rs.60,000/- per month to the claimant. Considering the submission made by the learned counsel for the Insurance Company that Ex.P.20 is the company bank statement upto June, 2013, which does not reflect the payment of salary to the account of the claimant. Therefore, the salary

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of Rs.60,000/- is doubtful one. The submission is considered along with the depositions made in the crossexamination of P.W.3. P.W.3 had stated in the crossexamination that Ex.P.20 pertains to the company bank statement and do not disclose the salary amount of Rs.60,000/- credited to the account of the claimant. Further it is pertinent to mention here that the amount reflected is pertaining to the salary of all the employees. Therefore, just because, in Ex.P.20 - company bank statement, if there is no inclusive or disclosure of crediting the salary of Rs.60,000/- to the account of the claimant, it does not mean that the company was not giving salary of Rs.60,000/- to the claimant.

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Further more, it is pertinent to mention here that, as per the evidence of P.W.3, the amount reflected in Ex.P.20 is pertaining to the salary of all the employees, which is categorically stated in the cross-examination of P.W.3. Further more, Ex.P.9-copy of bank pass book, Ex.P.11-salary certificate, Ex.P.17-pay slip of claimant prove the fact that the claimant was receiving salary of

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Rs.60,000/- per month from the company and just because, the claimant has not produced the bank statement from July, 2013, it does not mean that the claimant was not earning Rs.60,000/- per month. In this regard, I do not find any merit in the submission made by the learned counsel for the Insurance Company.

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Just because, the claimant has not produced the bank statement from July, 2013 onwards, it does not mean that the claimant was doing job in some other company and earning some salary. But it is the fact that the claimant was working as a Project Manager (Electrical) in the company and was earning salary of Rs.60,000/- per month as it is proved by the documentary evidence coupled with the evidence of P.W.3. Therefore, the Tribunal in this regard has considered this aspect and held the income of the claimant at Rs.53,557/- after deducting the payment made towards income tax and professional tax, which does not require any interference by this Court.

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Further the claimant had suffered fracture of

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shaft of right tibia with fracture head of fibula and

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accordingly, the claimant has produced Ex.P.3 - wound certificate, Ex.P-13- case sheet and P.W.3- doctor has deposed that the claimant has suffered 13.8% of physical disability. Therefore, the Tribunal considering the nature of injuries sustained by the claimant and considering the avocation of the claimant that he was working as a Project Manager (Electrical), which requires working in the field, has considered the physical disability at 13% and accordingly, awarded compensation under the head “loss of future earnings”, which does not call for interference. The Tribunal has considered the multiplier “15” according to the age of the claimant as he was 39 years as on the date of accident and it is also found to be correct and therefore, the amount of compensation awarded by the Tribunal under the head “loss of future earnings” is found to be correct, which needs no interference. What the Tribunal held was that the claimant had suffered functional disability at 13% only and accordingly, awarded compensation under the head “loss of future earnings”, considering the monthly income of the claimant at Rs.53,557/-. Therefore, the observations and findings

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made by the Tribunal in this regard are correct, which needs no interference.

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Further considering the submission made by the learned counsel for the claimant for seeking enhancement of compensation, but considering the nature of injuries sustained by the claimant, the amount of compensation awarded by the Tribunal under the heads “Injury, pain and sufferings, loss of amenities, conveyance, nourishment, food and attending charges” etc., are all correct, which needs no interference.

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Further considering the submission made by the learned counsel for the Insurance Company that the claimant had purchased the Medical Insurance Policy, therefore, he might have received the compensation under the head “Medical Expenses” from the Medical Insurance Company and therefore, whatever the amount awarded by the Tribunal under the head “Medical Expenses” is the amount to be claimed. Hence, prays for deduction/reduction of the same.

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But after considering the submission, the claimant has produced the original medical bills of Rs.1,18,230/- before the Tribunal. If at all the claimant has received the insurance amount from the Medical Insurance Company, then the claimant must have produced the original medical bills, but the original medical bills were produced before the Tribunal. Therefore, it shows that the claimant has not received the medical expenses from the Medical Insurance Company. For claiming reimbursement of medical expenses from the Medical Insurance Company, the original bills and receipts must be produced before the Company, but the medical bills and receipts were produced before the Tribunal, which shows that the claimant has not received the medical reimbursement from the Medical Insurance Company. In this regard, whatever amount awarded by the Tribunal under the head “Medical Expenses” at Rs.1,06,880/- is correct, which needs no interference.

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Therefore, the Tribunal has awarded just and proper compensation under each head, which needs no

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interference. Further more, the appeal filed by the claimant for enhancement of compensation is liable to be rejected for the reason that the amount awarded by the Tribunal under various heads are all correct. Therefore, both the appeals are liable to be dismissed for the reason discussed above. Hence, I proceed to pass the following

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ORDER

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MFA.No.7477/2015 filed by the Insurance Company and MFA.No.4244/2017 filed by the claimant are

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dismissed .

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The judgment and award dated 24.06.2015 passed in MVC.No.4234/2015 by the II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru, are hereby confirmed.

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I.A.No.1/2015 does not survive for consideration and it is also dismissed.

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Sd/-