Dismissed

The Oriental Insurance Co. Ltd. v. Sri J Eshwara@Eswaraiah

Karnataka HC3 Jun 2022MFA/6750/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an insurance company's appeal and the claimant's cross-objection against a Motor Accidents Tribunal award. The court rejected the insurer's argument for 50:50 negligence split, upheld the 80:20 apportionment, dismissed demands for reduced or enhanced compensation, and confirmed the Tribunal's award of Rs. 11,16,860/-.

What did the court decide?

Both the appeal and cross-objection were dismissed; the Tribunal's judgment and award confirming compensation of Rs. 11,16,860/- were affirmed.

The Oriental Insurance Co. Ltd. Vs Sri J… — 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 03^RD DAY OF JUNE, 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.6750/2012 A/W M.F.A.CROB 138/2012 (MV)

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IN MFA NO.6750/2012

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BETWEEN:

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THE ORIENTAL INSURANCE CO.LTD., DO-II NO.2903, 1^ST FLOOR,

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Digitally signed by VIJAYALAKSHMI B N Location: HIGH COURT OF KARNATAKA

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NEW MUSLIM HOSTEL COMPLEX, FIRST MAIN SARASWATHIPURAM, MYSORE THROUGH ITS BANGALORE REGIONAL OFFICE, NO.44/45, RESIDENCY ROAD, BANGALORE-25. REPRESENTED BY ITS DEPUTY MANAGER.

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… APPELLANT

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(BY SRI S.V. HEGDE MULKHAND, ADVOCATE)

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AND :

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SRI. J. ESHWARA @ ESWARAIAH, S/O JAVARAYI, AGED ABOUT 35 YEARS, R/O SANABA VILLAGE, CHINAKURALI HOBLI, PANDAVAPURA TALUK-571434.

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SRI. K.S. SANTHOSH KUMAR, S/O K.T. SOMASUNDAR, MAJOR IN AGE, R/O NAGAMANGALAL ROAD, KR PET, KR PET TALUK, MANDYA DISTRICT-571401.

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*3. S.T. SHIVANNA

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S/O JAVARAIAH MAJOR IN AGE R/O SANABA VILLAGE, PANDAVAPURA TALUK – 571 434

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4. THE NEW INDIA ASSURANCE CO. LTD, NO. 2951, JLB ROAD, CHAMUNDIPURAM, MYSORE – 570 001.* ... RESPONDENTS

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(BY SRI P. MAHESHA, ADVOCATE FOR R1 SRI SHIVAKUMAR, ADVOCATE FOR R2, SRI C.R. RAVISHANKAR, ADVOCATE FOR R4 R3-SERVED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:12.3.2012 PASSED IN MVC NO.489/2009(OLD NO.1855/2007) ON THE FILE OF CIVIL JUDGE (SR.DN) AND JMFC, MACT, PANDAVAPURA, AWARDING A COMPENSATION OF RS.11,16,860/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC.,

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IN MFA CROB. NO.138/2012

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BETWEEN:

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SRI. J. ESHWARA @ ESWARAIAH, S/O JAVARAYI, AGED ABOUT 35 YEARS, RESIDING AT SANABA VILLAGE, CHINAKURALI HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT.

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… CROSS-OBJECTOR

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(BY SRI P. MAHESHA, ADVOCATE)

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AND : 1. SRI. K. S. SANTHOSH KUMAR, S/O K.T. SOMASUNDAR, NAGAMANGALA ROAD, K.R. PET-571426, K.R. PET TALUK, MANDYA DISTRICT. (OWNER OF THE BUS NO.KA-20/848)

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*Replaced and Retyped vide chamber order dated 11.09.2023

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THE ORIENTAL INSURANCE COMPANY LIMITED, D O II. NO.2903, 1^ST FLOOR, NEW MUSLIM HOSTEL COMPLEX, 1^ST MAIN, SARASWATHIPURAM, MYSORE-570001.

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REP. BY IT’S BRANCH MANAGER.

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S.T. SHIVANNA, S/O JAVARAIAH, RESIDING AT SANABA VILLAGE, CHINAKURALI HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT.

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THE NEW INDIA ASSURANCE COMPANY LIMITED, NO.2951, J L B ROAD, CHAMUNDIPURAM, MYSORE-570001. REPRESENTED BY IT’S BRANCH MANAGER

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…RESPONDENTS

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(BY SRI S. SHIVAKUMAR, ADVOCATE FOR R1, SRI S.V. HEGDE MULKHAND ADVOCATE FOR R2, SRI C.R. RAVISHANKAR, ADVOCATE FOR R4 R3-SERVED)

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THIS MFA. CROB IN MFA.NO.6750/2012 FILED U/O 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:12.03.2012 PASSED IN MVC NO.489/2009 ON THE FILE OF THE CIVIL JUDGE (SR.DN), JMFC, MACT, PANDAVAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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M.F.A.NO.6750/2012 AND MFA.CROB.NO.138/2012 IN MFA.NO.6750/2012 COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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MFA.No.6750/2012 is filed by the Insurance

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Company challenging the judgment and award dated 12.03.2012 passed in MVC.No.489/2009 (old No.1855/2007) by the Civil Judge (Sr.Dn.) and JMFC and MACT at Pandavapura.

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MFA.Crob.No.138/2012 in MFA.No.6750/2012 is filed

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by the claimant seeking enhancement of compensation.

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2. Brief facts of the case are as under:

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On 04.04.2007 when the claimant was going on

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motor cycle bearing No.KA-11/Q-9143 as a pillion rider from Pandavapura towards Sanabadakoppal, at that time, near V.C.Channel bridge of Banaghatta village on Pandavapura-Nagamangala road, bus bearing No.KA-20/848 came in a rash and negligent manner from opposite direction and dashed against

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the motor cycle of the claimant and another one pedestrian. Due to the impact, the claimant fell down and sustained grievous injuries and the motor cycle

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has got completely damaged. The claim petition was filed by the appellant/claimant seeking compensation. The Tribunal has partly allowed the claim petition and awarded compensation of Rs.11,16,860/- with interest at 6% p.a., from the date of petition till the date of realization.

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Learned counsel for the appellant-Insurance Company in MFA.No.6750/2012 submitted that the opinion formed by the Tribunal that the driver of the bus was rash and negligent and the rider of the motor cycle has contributed 20% of negligence is not correct. Actually, the rider of the motor cycle has contributed 50% of negligence towards the accident. Therefore, the contributory negligence may be held at 50% each on the driver of the bus and the rider of the motor cycle. Further submitted that there were three persons proceeding on the motor cycle and more over, the rider of the motor cycle did not have the driving licence. Therefore, it is also considered to be one more contributory negligence towards the accident. Further submitted that it is appropriate to hold 50% of

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rash and negligence each on the part of the driver of the bus and the rider of the motor cycle. Further submitted that, even though, the Tribunal held that there were head on collision, but failed to attribute 50% of negligence on the part of rider of the motor cycle. Therefore, the contributory negligence assessed at 80:20 percentage by the Tribunal is not correct, but it ought to be 50:50 percentage between the driver of the bus and rider of the motor cycle.

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Further argued on the quantum of

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compensation that the doctor –P.W.2 has stated that the claimant had suffered 80% of permanent disability. To award compensation under the head loss of future income due to disability, but taking into consideration 100% of permanent physical disability, therefore, submitted that when the doctor-P.W.2 himself has stated that the claimant has suffered 80% of permanent physical disability and even as per Schedule IV of the Employees Compensation Act, for amputation below knee, percentage of disability is to be considered at 50% to 60%. Therefore,

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submitted that 60% of permanent physical disability is to be taken into consideration. But the Tribunal has taken the disability at 100% to whole body. Further submitted that the compensation awarded on other heads are in repetition and exorbitant one. Therefore, prays for reducing the compensation amount.

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On the other hand, learned counsel for respondent No.1 - claimant in MFA.No.6750/2012 and Cross-Objector in MFA Crob.No.138/2012 submitted that the opinion of the Tribunal that the rider of the motor cycle has contributed 20% of negligence is not correct. Further submitted that in Ex.P.2-complaint it is stated that the accident has caused only due to rash and negligent driving on the part of the driver of the bus. Therefore, attributing 80% of negligence on the part of the driver of the bus and 20% of negligence on the part of the rider of the motor cycle is not correct. Therefore, submitted that 100% has to be attributed on the part of the driver of the bus only.

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Further submitted that the quantum of

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compensation awarded under each head is not adequate and the same needs to be enhanced. Further submitted that the notional income taken at Rs.4,500/- per month is on the lesser side. Therefore, the same needs to be enhanced. Consequently, the claimant is entitled for compensation under the head loss of future income and also under the head loss of income during laid up period. Further submitted that under other heads also, the claimant is entitled for enhanced amount of compensation. Therefore, prays to allow the cross-objection and dismiss the appeal filed by the Insurance Company.

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In the present case, the accident is between the motor cycle bearing No.KA-11/Q-9143 and bus bearing No.KA-20/848 and the accident had taken place near V.C.Channel bridge of Banaghatta village on PandavapuraNagamangala road. The claimant before the Tribunal has not produced any spot sketch, but has only produced the spot mahazar as per Ex.P.3. Upon perusal of Ex.P.3-spot mahazar, the place of accident cannot be seen as to where

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exactly in between two edges of the bridge the accident has occurred. In Ex.P3 -spot mahazar, it is only stated that there is width of the road of 20 feet. It is borne out from the record that the motor cycle was coming from Pandavapura to Sanabadakoppal and bus was moving from Sanabadakoppal to Pandavapura. Therefore, in order to show that the bus was rash and negligent, which came from the wrong side of the road and hit the motor cycle, the place of the accident must have been shown in the spot mahazar by showing the distance between the left edge and right edge of the bridge, but that has not been shown in the spot mahazar-Ex.P3. Therefore, the rider of

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the motor cycle has not contributed negligence in the accident. The Tribunal had followed the judgment of the Hon’ble Supreme Court as it was the case of head on collision between two vehicles and by following the same in the present case also as there is head on collusion between the bus and motor cycle, fixed the liability at 80% on the driver of the bus and 20% on the rider of the motor cycle. Thus, accordingly, 80:20 ratio is held by the Tribunal. Therefore, upon considering the

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evidence once again, I do not find any reasons to make interference with the observations made by the Tribunal.

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It is true that head on collision between two vehicles is always not contributing negligence on the part of one vehicle, but there must be evidence showing that there is no contributory negligence on the part of the owner of the vehicle. But unfortunately in the present case, there is no evidence on the part of the claimant to show that the driver of the bus had come from wrong side of the road and hit the motor cycle. More over as observed by the Tribunal, it is an admitted fact that there were three persons proceeding on the motor cycle and the rider of the motor cycle did not have the driving licence. Therefore, under these circumstances, the Tribunal held that 20% of negligence is attributed on the part of the motor cycle. Accordingly, 80:20 percentage is attributed on the part of the bus and motor cycle respectively, which is correct as per the evidence on record, which needs no interference.

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The Tribunal has determined the compensation

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on each heads as follows:

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a	Medical Expenses	Rs.	14,860.00
b	Travelling Expenses, Attendant Charges,Food, Nourishment	Rs.	36,000.00
c	Pain Agony	Rs.	50,000.00
d	Loss of Future income due to disability	Rs.	9,18,000.00
e	Loss of income during treatment	Rs.	18,000.00
f	Loss ofjoy andhappiness	Rs.	40,000.00
g	Loss of amenities	Rs.	40,000.00
	TOTAL		11,16,860.00

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In the present case, the claimant was an agriculturist and was working as a cooli. The medical records prove the fact that the claimant had suffered amputation of right leg apart from other injuries. The doctor-P.W.2 has stated that the claimant had suffered 80% of permanent physical disability, but the Tribunal has assessed the loss of future income due to disability, as the claimant suffered 100% of disability, by taking the national income at Rs.4,500/- per month. This is questioned by the appellant-Insurance Company that only 60% of permanent physical disability ought to have been taken into consideration by the Tribunal as the claimant is able to do some other work. But in the present case, the claimant is an agriculturist and cooli and more over, agriculture work

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requires physical strength and by having only one leg, the claimant will not be able to do the work as an agriculturist as his right leg was amputated. Therefore, under these circumstances, it can be said that the claimant has suffered 100% of functional disability. The Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another reported in (2011) 1 SCC 343, was pleased to laid down the guidelines to consider the functional disability at Paragraph Nos.12, 13 and 19, which reads as under:

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“12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the

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claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.

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13. We may now summarise the principles discussed above :

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(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

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(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

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(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

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(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.”

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“19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per

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month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income.”

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Therefore, the functional disability is to be

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taken into consideration by considering the percentage of permanent physical disability, nature of work and earning capacity of the claimant when he was healthy. But in the present case, the claimant was an agriculturist and due to amputation of his right leg, he is not able to do his work as an agriculturist. Therefore, the claimant is not able to render his work as an agriculturist, which amounts to 100% of functional disability and that is correctly held by the Tribunal while assessing the compensation under the head loss of future income due to permanent physical disability. The Tribunal has considered the notional income at Rs.4,500/- per month and considered the age of the claimant at about 30 years and applied the multiplayer of “17”. Hence, calculated the compensation towards loss of

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future income due to disability at Rs.9,18,000/-, which is correct and it needs no interference.

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The amount of compensation awarded under the head “medical expenses” is as per the medical bills and receipts produced. Therefore, it needs no interference. The amount of compensation awarded by the Tribunal under each heads as discussed and culled out at paragraph No.33 of the judgment, are all found to be appropriate and correct. Therefore, the Tribunal has properly assessed and determined the compensation on each heads and awarded the compensation, which needs no interference. Therefore, MFA.Crob.138/2012 filed by the claimant is liable to be dismissed by confirming the judgment and award passed by the Tribunal.

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In the result, MFA.No.6750/2012 filed by the Insurance Company does not make any interference with the judgment and award passed by the Tribunal and also with the amount of compensation awarded under each heads, which are found to be appropriate and correct and also proportionate percentage of negligence on the part of

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the vehicle is also found to be correct. Hence, both the

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appeal and cross objection are liable to be dismissed.

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Accordingly, I proceed to pass the following

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ORDER

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MFA.No.6750/2012 and MFA.Crob.No.138/2012 are

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dismissed .

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The judgment and award dated 12.03.2012 passed in MVC.No.489/2009 (old No.1855/2007) by the Civil Judge (Sr.Dn.) and JMFC and MACT at Pandavapura is hereby confirmed.

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The amount in deposit in MVC.No.489/2009 shall be transmitted to the Tribunal along with TCR and copy of this order forthwith.

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Draw award accordingly.

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No order as to costs.

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Sd/-

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JUDGE

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The Oriental Insurance Co. Ltd. v. Sri J Eshwara@Eswaraiah

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. v. Sri J Eshwara@Eswaraiah

Case brief

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What did the court decide?

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