Partly allowed

The Oriental Insurance Co. Ltd., v. Sri. Shivakumar. v K.

Karnataka HC7 Jun 2022MFA/891/2019

Case brief

AI extract

What is this about?

The court disposed of two Motor Accident claims appeals challenging a Tribunal award of Rs.14,70,200. The appeal by the insurer was dismissed regarding liability and quantum, but interest was reduced. The claimant's appeal for enhancement was also dismissed despite argued errors in disability assessment.

What did the court decide?

Interest rate scaled down from 7.5% to 6%; compensation amount affirmed at Rs.14,70,200; appeals disposed of.

The Oriental Insurance Co. Ltd., Vs Sri. Shivakumar. v. K. — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF JUNE 2022

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BEFORE

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THE HON’BLE MR.JUSTICE H.T.NARENDRA PRASAD

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MFA No.891 OF 2019 (MV) C/W MFA No.3006 OF 2019 (MV)

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IN MFA No.891/2019:

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BETWEEN:

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The Oriental Insurance Co. Ltd., Regional Office, TP Hub, No.44/45, Leo Shopping Complex, Residency Road, Bengaluru – 560 025. 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.Shivakumar.V.K. S/o Kumar, Aged about 24 years, R/o No.5, 5^th Cross, S.G.Palya, near Dairy Circle, Bengaluru – 560 029.

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Sri.A.C.Prakash Reddy, S/o Chikkaramaiah, Major in age, R/o No.155/1, Agara Village & Post, HSR Layout, Bengaluru -560 034.

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... Respondents

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(By Sri.Girimallaiah, Advocate for R1; Notice to R2 served but unrepresented)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 26.10.2018 passed in MVC No.5779/2017 on the file of the XIX Additional Small Causes Judge, MACT, Bengaluru (SCCH-17), awarding compensation of Rs.14,70,200/- with interest at 7.5% p.a., (excluding future medical expenses) from the date of petition till its realization.

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IN MFA NO.3006/2019:

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BETWEEN:

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Sri.Shivakumar.V.K. S/o Kumar, Aged about 25 years, R/o No.5, 5^th Cross, S.G.Palya, near Dairy Circle, Bengaluru – 560 029.

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… Appellant

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(By Sri.Girimallaiah., Advocate)

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AND:

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The Oriental Insurance Company Ltd., Regional Office, TP Hub, No.44/45, Leo Shopping Complex, Residency Road, Bengaluru – 560 025.

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Sri.A.C.Prakash Reddy, S/o Chikkaramaiah, Major, (age not known to appellant) R/o No.155/1, Agara Village & Post, HSR Layout, Bengaluru -560 034.

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... Respondents

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(By Sri. S.V.Hegde Mulkhand., Advocate for R1; Notice to R2 is dispensed with)

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This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated 26.10.2018 passed in MVC No.5779/2017 on the file of the XIX Additional Small Causes Judge and Motor Accident Claims Tribunal, Bengaluru (SCCH-17), partly allowing the claim petition for compensation and seeking enhancement of compensation.

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These appeals coming on for Hearing, this day, this Court, delivered the following:

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J U D G M E N T

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MFA No.891/2019 is filed by the Insurance Company whereas MFA No.3006/2019 is filed by the claimant under Section 173(1) of the Motor Vehicles Act, (for short, ‘the Act’) being aggrieved by the judgment and award dated 26.10.2018 passed by the MACT, Bangalore (SCCH-17) in MVC No.5779/2017. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed.

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Facts giving rise to the filing of the appeals

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briefly stated are that on 23.09.2017 at about quarter to two in the afternoon, the claimant was standing by

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the side of Marigowda road, opposite Bengaluru Dairy Gate. At that time, a milk tanker bearing registration No.KA-01/AA-8816 being driven by its driver at a high speed and in a rash and negligent manner, dashed to the vehicle of the claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

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The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver.

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On service of notice, the respondent No.1 appeared through counsel and filed written statement in which the averments made in the petition were

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denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the negligence of the claimant himself. It was further pleaded that the driver of the offending vehicle did not have valid driving licence as on the date of the accident. It was further pleaded that the liability is subject to terms and conditions of the policy. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.

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The respondent No.2 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.

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On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was

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examined as PW-1 and Dr.Prakashappa was examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P11. On behalf of the respondents, neither any witness was examined nor got exhibited documents. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.14,70,200/- along with interest at the rate of 7.5% p.a. and directed the Insurance Company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed.

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The learned counsel for the Insurance Company has raised the following contentions:

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Firstly, at the time of the accident the claimant

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was aged about 43 years. Even though the claimant

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claims that he was earning Rs.15,000/- per month by working as a helper in Bengaluru Dairy, he has not produced any documents to prove his income. Even in the medical records the income of the claimant has been mentioned as Rs.3,500/- per month. But the Tribunal is not justified in assessing the notional income as Rs.11,000/- per month.

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Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 70% to particular limb and 35% to whole body. The Tribunal, contrary to the evidence of the doctor has assessed the whole body disability of the claimant as 45% and the same is on the higher side.

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Thirdly, since the claimant has not produced any document to show that after the accident he is not working and he was unable to do any work, therefore, the Tribunal has rightly not considered addition of future prospects.

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Fourthly, considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the overall compensation awarded by the Tribunal is on the higher side.

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Fifthly, the claimant has not produced any documents to show that he has been removed from service. Since he was continued in the service, he is not entitled to compensation under the head 'loss of future income'.

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Lastly, in view of the law laid down by a Division Bench of this Court in the case of MS.JOYEETA BOSE AND OTHERS vs. VENKATESHAN.V AND OTHERS ( MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 7.5% p.a. is on the higher side. Hence, he sought for allowing the appeal filed by the Insurance Company.

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On the other hand, the learned counsel

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appearing for the claimant has raised the following contentions:

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Firstly, even though the claimant claims that he was doing helper work in Bengaluru Dairy and earning Rs.15,000/- per month, but the Tribunal has taken the notional income as only Rs.11,000/- per month.

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Secondly, due to the accident his left leg was amputated below knee. Therefore, the doctor has assessed the limb disability as 70% but the Tribunal without considering the same has erred in assessing the whole body disability only 45%.

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Thirdly, due to the accident his leg was amputated, he was unable to do his day today work. Therefore, he is entitled for addition of future prospects.

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Fourthly, considering the injuries suffered by the claimant the compensation awarded by the Tribunal

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for 'pain and sufferings', 'loss of amenities' and other incidental expenses is on the lower side. Hence, he sought for enhancement of compensation.

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Heard the learned counsel for the parties

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and perused the records.

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It is not in dispute that the claimant has

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sustained injuries in the road traffic accident occurred

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due to rash and negligent driving of the offending vehicle by its driver.

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Due to the accident the claimant has suffered crush injury resulting in amputation of left leg below knee. He has examined the doctor as PW-2, who in his evidence has deposed that the claimant has suffered 70% disability to his limb and 35% to whole body. His left leg below knee has been amputated. Since he was a helper under the contractor in the Bangalore Dairy, due to the amputation of his left leg he was

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unable to do his day today work. Therefore, the Tribunal was justified in assessing the whole body disability as 45%.

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Even though the claimant claims that he was earning Rs.15,000/- per month he has not produced any documents to prove his income. Therefore, the notional income assessed by the Tribunal at Rs.11,000/- is as per the guidelines issued by the Karnataka State Legal Services Authority. Since the claimant has not produced any document to show that after the injury he was unable to continue his work or he was not doing any work, and he was permanently disabled, the Tribunal has rightly not considered addition of future prospects.

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Considering the injuries suffered by the claimant and considering the evidence of the doctor, the overall compensation awarded by the Tribunal is just and

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reasonable. It does not call for any interference by this Court.

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In respect of rate of interest is concerned, in view of the judgment of a Division Bench of this Court, the same has to be scalled down from 7.5% to 6%.

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Accordingly, both the appeals are disposed of. The amount in deposit is ordered to be transferred to the Tribunal forthwith.

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JUDGE

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Cm/-

The Oriental Insurance Co. Ltd., v. Sri. Shivakumar. v K.

Case brief

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What did the court decide?

The Oriental Insurance Co. Ltd., v. Sri. Shivakumar. v K.

Case brief

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