Partly allowed

The Reliance General Insurance Company Ltd. v. Lokesh S v

Karnataka HC24 Nov 2022MFA/4287/2018

Case brief

AI extract

What is this about?

The High Court disposed of a Motor Vehicle Accident appeal seeking reduction in compensation and a cross-objection seeking enhancement. The court re-appreciated evidence on negligence, held the MLA Tribunal correct on liability, but modified the award on quantum across various heads, settling total compensation.

What did the court decide?

Compensation fixed at Rs.5,68,100 with interest at 6% p.a.; 9% interest reduced to 6%; 15% disability retained for next-quarter earning calculation.

The Reliance General Insurance Company Ltd. Vs… — 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 24^TH DAY OF NOVEMBER, 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.4287/2018 C/W. M.F.A.CROB. NO.124/2022 (MV-I)

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IN MFA NO.4287/2018:

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BETWEEN:

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THE RELIANCE GENERAL INSURANCE COMPANY LTD., BRANCH OFFICE SHUBASRI MAHENDRA TOWERS 2ND FLOOR, 1ST MAIN ROAD 3RD BLOCK, JAYANAGAR BENGALURU - 560 011

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ALSO AT RELIANCE GENERAL INSURANCE COMPANY LTD. EAST WING, 5TH FLOOR, NO.28 CENTENARY BUILDING, M.G.ROAD BENGALURU - 560 001 NOW REPRESENTED BY MANAGER LEGAL … APPELLANT (BY SRI ASHOK N. PATIL, ADVOCATE)

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AND:

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LOKESH S.V. S/O. VENKATESHAIAH AGED ABOUT 33 YEARS R/O. THOTADAPALYA VILLAGE SOMALAPURA POST

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NITTUR HOBLI GUBBI TALUK - 572 216

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C.B.KHALANDER SAB S/O. BUDDUR SAB AGED ABOUT 38 YEARS R/AT CHELUR VILLAGE AT POST CHELUR HOBLI GUBBI TALUK - 572 216

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… RESPONDENTS

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(BY SRI JAGANNATHA H.T., ADV. FOR R1)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.02.2018 PASSED IN MVC No.72/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDL. MACT-17, GUBBI, AWARDING COMPENSATION OF RS.5,14,200/- WITH INTEREST AT 9% P.A. FROM THE DATE OF FILING OF THE PETITION TILL REALIZATION.

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IN MFA CROB. NO.124/2022:

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BETWEEN:

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SRI. LOKESH S.V. S/O. VENKATESHAIAH AGED ABOUT 37 YEARS R/O. THOTADAPALYA VILLAGE SOMALAPURA POST NITTUR HOBLI GUBBI TALUK - 572 222 … CROSS OBJECTOR

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(BY SRI JAGANNATHA H.T., ADVOCATE)

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AND:

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SRI. C.B.KHALANDER SAB S/O. BUDDUR SAB

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AGED ABOUT 42 YEARS R/AT CHELUR VILLAGE AT POST CHELUR HOBLI GUBBI TALUK - 572 117

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THE REGIONAL MANAGER RELIANCE GENERAL INSURANCE COMPANY LTD., BRANCH OFFICE SHUBASRI MAHENDRA TOWERS 2ND FLOOR, 1ST MAIN ROAD 3RD BLOCK, JAYANAGAR BENGALURU - 560 011

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ALSO AT RELIANCE GENERAL INSURANCE COMPANY LTD. EAST WING, 5TH FLOOR, NO.28 CENTENARY BUILDING, M.G.ROAD BENGALURU - 560 001 NOW REPRESENTED BY MANAGER LEGAL

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… RESPONDENTS

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(BY SRI ASHOK N. PATIL, ADV. FOR R2)

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THIS MFA CROSS OBJECTION IS FILED UNDER ORDER 41 RULE 22 R/W. SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.02.2018 PASSED IN MVC No.72/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDL. MACT-17, GUBBI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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MFA No.4287/2018 is filed by the Insurance Company under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for short), questioning the judgment and award passed in MVC No.72/2015 dated 02.02.2018 by the Court of the Senior Civil Judge and Addl. MACT-17, Gubbi on rash and negligent aspect and also on quantum of compensation.

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MFA CROB. No.124/2022 is filed by the

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claimant challenging the above said judgment and award seeking enhancement of compensation.

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The brief facts of the case are that the claimant has sustained injuries in a road traffic accident that occurred on 27.09.2014 at about 7.00 p.m., near Maruthinagara, Ammanghatta in front of Veeregowda's tea shop, Kasaba Hobli, Gubbi Taluk between the

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vehicles i.e., Bajaj Discovery bike bearing No.KA-06-EF6489 and milk supply van bearing No.KA-42-0140 (offending vehicle). Therefore, the claimant has filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation.

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Heard the arguments on both sides and perused the records.

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RASH AND NEGLIGENT ASPECT :

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Learned counsel for the Insurance Company submitted that the accident is head on collision between the two vehicles and there is no visible damages found on the milk supply van as per the IMV Report at Ex.R3. Therefore, it is submitted that there is no accident occurred as alleged in the claim petition. Further, it is submitted that since it is head on collision, contributory negligence is attributed to the drivers of the two vehicles. Therefore, he has requested to hold contributory negligence in the ratio of 50:50 between the

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two vehicles. Further, it is submitted that the quantum of compensation awarded by the Tribunal is on the higher side. Therefore, prays to reduce the same.

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On the other hand, learned counsel for the cross objector-claimant submitted that the accident occurred on account of the milk supply van coming to the wrong side of the road. Therefore, the Tribunal is correct in holding that the driver of the milk supply van was entirely rash and negligent in driving the van. Further, it is submitted that there is no contributory negligence by the claimant. Further, it is submitted that the quantum of compensation awarded on each and every head is on the lesser side. Therefore, prays for enhancement of the compensation.

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The Insurance Company is mainly relying on Ex.R3-IMV Report to contend that there is no visible damages found on the milk supply van. Therefore, it is doubtful whether the accident occurred or not. Further, it

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is submitted that the rider of the motorcycle has also contributed to the negligence as it was a head on collision, as per the material produced before the Tribunal. Just because there is a head on collision, it cannot be said that the rider of the motorcycle has also contributed his negligence to the accident. Both the parties have not produced spot sketch and spot mahazar. Just because there are no visible damages found on the milk supply van in the IMV Report, it does not mean that the milk supply van did not cause the accident; when a head-on collision is alleged, there is also evidence on which side the offending vehicle allegedly came to the road and hit another vehicle. If the offending vehicle came towards the wrong side of the road and the opposite vehicle is coming on the correct side, it may also be a head-on collision, but the location of the offending vehicle i.e., on which side it came is relevant to be considered in determining the rash and negligent aspect. Therefore, just because there is no

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visible damage found on the milk supply van, it cannot be said that the milk supply van has not caused the accident. In the complaint and the FIR, at the relevant point of time, it is alleged that the driver of the milk supply van was guilty in causing accident. The resultant investigation by the Police Investigating Officer has also resulted in filing of the charge sheet against the driver of the milk supply van. Therefore, considering all these evidence, on its preponderance of probability and re-appreciating the evidence on record, as discussed above, the Tribunal is found to be correct in answering the rash and negligent aspect holding that the driver of the milk supply van has come to the wrong side of the road and hit the motorcycle. Therefore, there is no merit found in the contentions urged by the Insurance Company on the rash and negligence aspect.

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QUANTUM OF COMPENSATION :

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8. The Tribunal has awarded the compensation

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under various heads as follows:

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Sl.No.	Particulars	Amount (in.Rs.)
1.	Medical Expenses	1,17,000.00
2.	Pain and suffering	20,000.00
3.	Attendant, food and nourishment charges	6,200.00
4.	Conveyance charges	5,000.00
5.	Compensation for laid up period	60,000.00
6.	Loss of future income	3,06,000.00
7.	Future medical expenses	1,00,000.00
	Total	6,14,200.00

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In the present case, from the medical evidence, wound certificate, discharge summary, x-ray film and evidence of doctor, it is proved that the claimant has sustained fracture of femur bone of right leg. The said injury is grievous in nature. The femur bone is body's weight-bearing bone. The claimant has undergone treatment as inpatient for a period of 31 days and surgery was conducted. Therefore, the sum of

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Rs.20,000/- awarded under the head 'pain and suffering' is on the lesser side. The same is enhanced to Rs.50,000/-. Further, the sum of Rs.1,17,000/- awarded by the Tribunal under the head 'medical expenses' is as per the medical bills produced by the claimant, which needs no interference.

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For conveyance, attendant, food and nourishment charges, the sum of Rs.11,200/- awarded by the Tribunal is on the lesser side. The claimant has suffered fracture of femur bone of right leg and was in the hospital for a period of 31 days and has undergone several surgeries and also after discharge from the hospital, the claimant was constrained to go to follow up treatment. Therefore, under these circumstances, a sum of Rs.25,000/- is awarded under the head 'conveyance, attendant, food and nourishment charges'.

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The Tribunal has taken notional income at Rs.10,000/- p.m. The claimant is stated to be a

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Carpenter by profession. There is no proof of income by the claimant. Under these circumstances, the notional income of Rs.8,500/- p.m., is taken into consideration as recognized by the Karnataka State Legal Services Authority considering the year of accident. The claimant was aged 30 years old as on the date of the accident and was doing Carpentery work. The doctor has stated that the claimant has suffered 40-50% of permanent physical disability towards right lower limb and 15-20% disability to the whole body. The Tribunal has taken 15% as disability affecting the earning capacity of the claimant. It is submitted by the learned counsel for the appellantInsurance Company that as per the doctor's evidence, the fracture was united. Therefore, there could not be disability to the extent of 15% and same is to be scaled down. I do not see any reason to accept the said submission to scale down the percentage of disability for the reason that the claimant was aged 30 years and Carpenter by profession and has sustained fracture of

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femur bone and femur bone is a weight-bearing bone of person. The claimant is a Carpenter and the work of carpentery requires physical strength for standing long time. But even though the fracture may be united but certainly, it causes pain while doing the work, which requires physical strength. Therefore, considering the fracture of femur bone of right leg, the Tribunal is correct in holding the disability at 15%. Accordingly, functional disability taken at 15% is found to be correct. The appropriate multiplier applicable is '17'. Therefore, the 'loss of earning capacity due to disability' is re-assessed and quantified as under:

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Rs.8,500 x 15/100 x 17 x 12 = Rs.2,60,100/-

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Accordingly, a sum of Rs.2,60,100/- is awarded under the head loss of income due to disability.

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The Tribunal has awarded compensation under the head 'loss of income during laid up period' by taking notional income at Rs.10,000/- p.m. for six months. The same is modified by taking notional income

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at Rs.8,500/- p.m. for six months which amounts to Rs.51,000/- .

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The Tribunal has awarded compensation of Rs.1,00,000/- towards future medical expenses. The doctor-PW.2 has stated that the internal fixation inserted to the claimant while admitting to the hospital was

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removed. Therefore, that includes the total medical expenses as above discussed. Although the claimant requires some expenses towards 'future medical expenses', but it is not to the extent of Rs.1,00,000/-. Therefore, the same is reduced to Rs.30,000/-.

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The Tribunal has not awarded any compensation under the head 'loss of amenities'. The claimant has suffered fracture to the right leg femur bone and certainly it causes some difficult in walking, standing, squatting, climbing stairs, etc. Therefore, a sum of Rs.35,000/- is awarded under the head 'loss of amenities'.

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Thus, in all, the claimant is entitled for the

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following sums:

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Sl.No.	Particulars	Amount (in.Rs.)
1.	Medical Expenses	1,17,000.00
2.	Painand suffering	50,000.00
3.	Conveyance, attendant, food and nourishment charges	25,000.00
4.	Compensation for laid up period	51,000.00
5.	Loss of futureincome	2,60,100.00
6.	Future medical expenses	30,000.00
7.	Loss ofamenities	35,000.00
	Total	5,68,100.00

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Accordingly, appellant/claimant is entitled to

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total compensation of Rs.5,68,100/- with interest at

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the rate of 6% p.a., from the date of petition till its realization in stead of Rs.6,14,200/- awarded by the Tribunal.

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The Tribunal has granted interest at the rate of 9% p.a. and the same is scaled down to 6% p.m. Therefore, the above determined compensation shall carry interest at 6% p.a. from the date of petition till the

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date of realization.

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal filed by the Insurance Company and Cross objection filed by the claimant are allowedin-part .

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ii. The judgment and award passed by the Tribunal in MVC No.72/2015 is hereby modified holding the cross objector/claimant is entitled to compensation of Rs.5,68,100/- with interest @ 6% p.a., from the date of petition till its realization in stead of Rs.6,14,200/-, as awarded by the Tribunal.

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iii. The cross-objector/claimant is not entitled for interest for the delayed period of 378 days in filing the appeal.

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iv. The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.

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v. Draw modified award accordingly.

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JUDGE

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Sd/-

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The Reliance General Insurance Company Ltd. v. Lokesh S v

Case brief

What is this about?

What did the court decide?

The Reliance General Insurance Company Ltd. v. Lokesh S v

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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