Dismissed

National Insurance Company Limited v. Sri Ashok S/O Basappa Harlapur

Karnataka HC19 Sept 2023MFA/101291/2022

Case brief

AI extract

What is this about?

The High Court dismissed appeals by the insurance company and claimants against a Motor Accident Claims Tribunal award. The Court upheld the Tribunal's finding of liability and the compensation quantum, rejecting arguments regarding negligence apportionment and claim enhancement.

What did the court decide?

Both the first appeal by the Insurance Company seeking to set aside the award and the claimants' appeal seeking enhancement of compensation were dismissed.

National Insurance Company Limited Vs Sri Ashok S/O Basappa… — Insurance | Karnataka HC (2023)

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NC: 2023:KHC-D:11058-DB MFA No. 101291 of 2022 C/W MFA No. 102187 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 19^TH DAY OF SEPTEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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MISCELLANEOUS FIRST APPEAL NO. 101291 OF 2022 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 102187 OF 2022 (MV-I)

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IN MFA NO. 101291/2022

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BETWEEN:

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NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE, HUBBALLI, CO-OP COTTON SOCIETY BUILDING, OPP. BASAVA VAN N.C.M., HUBBALLI- 580029, NOW REPRESENTED BY ITS DEPUTY MANAGER.

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Digitally signed by SHIVAKUMAR HIREMATH Date: 2024.01.08 16:41:51 +0530

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…APPELLANT

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(BY SRI RAJESH B. RAJANAL, ADVOCATE)

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AND:

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SRI ASHOK S/O. BASAPPA HARLAPUR, AGE: 43 YEARS OCC: EMPLOYEE NOW NIL, R/O: KALAKAPUR, TQ: RON, DIST: GADAG, NOW AT TAVARGERA, TQ: KUSHTAGI, DIST: KOPPAL- 583277.

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Cause Title amended vide court order dated: 16.11.2022.

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SINCE DECEASED BY HIS LRS.,

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1(A) SMT. ANITHA W/O. ASHOK HARLAPUR,

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AGE: 36, OCC: HOUSEHOLD,

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NC: 2023:KHC-D:11058-DB MFA No. 101291 of 2022 C/W MFA No. 102187 of 2022

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R/O:131 MUDENOOR ROAD, NEAAR WATER TANK, TAVARAGERE, TALUK: KUSHTAGI, DIST: KOPPAL-583279.

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1(B) KUM. ANVITA D/O. ASHOK HARLAPUR,

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AGE: 10 YEARS,

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1(C) KUM. ARADHYA S/O. ASHOK HARLAPUR, AGE: 6 YEARS,

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RESPONDENTS 1B AND 1C ARE MINORS REPRESENTED BY NATURAL GUARDIAN MOTHER RESPONDENT-1A.

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SRI LINGAPPA @ NINGAPPA S/O. SIDDAGERAPPA BELAGALI, AGE: 63 YEARS, OCC: DRIVER, R/O: KALAGHATAGI, TQ: KALAGHATAGI, NOW AT NAGALINGANAGARA, HUBBALLI- 580030.

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SRI VENKATESH S/O. RAMAPPA MUMBARADDY, AGE: MAJOR OCC:BUSINESS, R/O: 229/22, BANKERS COLONY, GADAG DIST: GADAG- 582101.

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…RESPONDENTS

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(BY SRI S.C. HIREMATH, ADVOCATE FOR R1 (A); R1 (B) AND R1(C) ARE MINORS REPRESENTED BY R1(A); R2 NOTICED DISPENSED WITH; NOTICE SERVED TO R3)

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MISCELLANEOUS FIRST APPEAL FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 04.02.2022 PASSED IN MVC NO.5/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, KUSHTAGI.

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NC: 2023:KHC-D:11058-DB MFA No. 101291 of 2022 C/W MFA No. 102187 of 2022

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IN MFA NO. 102187/2022

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BETWEEN:

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ASHOK S/O. BASAPPA HARLAPUR , SINCE DECEASED

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BY HIS LEGAL REPRESENTATIVES

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SMT. ANITA W/O. ASHOK HARLAPUR, AGE: 36 YEARS, OCC: HOUSEHOLD WORK, R/O: 131, MUDENOOR ROAD, NEAR WATER TANK, TAVERAGERA, DIST: KOPPAL, PIN. 583279.

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KUMARI ANVITA D/O. ASHOK HARLAPUR, AGE: 10 YEARS, OCC: STUDENT R/O: 131, MUDENOOR ROAD, NEAR WATER TANK, TAVERAGERA, DIST: KOPPAL, PIN. 583279.

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KUMAR AARADHYA S/O. ASHOK HARLAPUR, AGE: 6 YEARS, OCC: STUDENT, R/O: 131, MUDENOOR ROAD, NEAR WATER TANK, TAVERAGERA DIST: KOPPAL, PIN. 583279.

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APPELLANT NOS. 2 AND 3 ARE MINORS AND ARE REPRESENTED BY THEIR MGM APPELLANT NO.1.

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…APPELLANTS

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(BY SRI S.C. HIREMATH, ADVOCATE)

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AND:

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LINGAPPA @ NINGAPPA S/O. SIDDAGERAPPA BELAGALI, AGE: 62 YEARS, OCC: DRIVER, R/O: KALAGHATAGI, TQ. KALAGHATAGI, NOW AT NAGALINGANAGAR, HUBBALLI, DIST: DHARWAD.

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NC: 2023:KHC-D:11058-DB MFA No. 101291 of 2022 C/W MFA No. 102187 of 2022

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SRI VENKATESH S/O. RAMAPPA MUMBARADDY, AGE: MAJOR, OCC: BUSINESS R/O: 229/22, BANKERS COLONY GADAG, DIST: GADAG.

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THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD, DIVISIONAL OFFICE, HUBBALLI

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…RESPONDENTS

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(BY SRI RAJESH B. RAJANAL, ADVOCATE FOR R3; R1 AND R2 NOTICE DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL FILED U/S.173 (1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION AWARDED BY THE TRIBUNAL FROM 88,57,228=00 TO 1,00,000=00 BY FIXING 100% LIABILITY ON THE VEHICLE BELONGING TO THE RESPONDENT NO.2 BY MODIFYING THE JUDGMENT AND AWARD DATED 04.02.2022 PASSED IN MVC NO.5/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, AT KUSHTAGI, AND AWARDING JUST COMPENSATION AS DEEMED FIT AND PROPER ALONG WITH INTEREST. THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, BASAVARAJA, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Both the appeals arise out of judgment and award dated 04^th February, 2022 passed in MVC No.5 of 2017 by the Senior Civil Judge and Motor Accident Claims Tribunal, Kushtagi (for brevity, hereinafter referred to as the "Tribunal”).

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For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Tribunal.

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Brief facts of the case are that, on 27^th February, 2016 the petitioner went on his motorcycle bearing No.KA08/K-5192 for his personal work and while returning back, at about 8.30 pm when he was proceeding on Navalgund-Ron Road and was driving the motorcycle slowly on his left side near Mallapur, the respondent No.1 entered the drove the lorry bearing Registration No.KA-26/3465 without showing indicators or any signal and the petitioner lost control and dashed to the lorry at it back, as a result, the petitioner sustained grievous injuries to his backbone and head and right hand and all over the body and became unconscious. The injured was shifted to Government Hospital at Ron where he was given first aid treatment and then was referred to higher hospital and hence taken to German Hospital. There the petitioner was referred to KLE Hospital, Belagavi wherein he was admitted as an inpatient and operated to spinal cord and even after treatment for more than two and a half months, petitioner did not recover and further after discharge from KLE Hospital, Belagavi, the

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petitioner was again admitted to Balaji Neuron Science Hospital, Hubballi wherein he was treated for two to three months, but he could not recover and became permanently disabled. It is contended that prior to accident, the petitioner was hale and healthy and he was aged 37 years and was doing Government job and also agriculture work and getting an income of Rs.29,713/- per month. It is further contended that respondent No.1 who is the driver and respondent No.2 who is the owner and respondent No.3 the insurer, are jointly and severally responsible to pay compensation to the petitioner. Hence, preferred the claim petition.

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In response to Notice, respondent No.1 was placed

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ex-parte and respondents 2 and 3 appeared through their counsel. Respondent No.2 has not filed any written statement. Respondent No.3 filed written statement denying the accident and denying the petition averments. It is further contended that the owner has violated the policy conditions and the driver of the lorry was not having valid licence and hence prayed for dismissal of the claim petition. On the basis of pleadings, the Tribunal framed issues for its consideration. To prove the case of petitioner, two witnesses were examined as PWs1 and 2 and

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34 documents were marked as ExhibitsP1 to P34. On behalf of respondents one witness was examined as RW1 and eight documents were marked as Exhibits R1 to R8. Upon hearing both the parties, the Tribunal allowed the claim petition in part and awarded compensation of Rs.88,57,228/- with interest at the rate of 6% per annum from the date of petition till realisation and the insurance was directed to deposit 80% of compensation amount along with interest holding that the rider of the motorcycle has contributed to the accident to the extent of 20%. Being aggrieved by the impugned judgment and award, the National Insurance Company Limited has preferred Miscellaneous First Appeal No.101291 of 2022, questioning the liability and also the quantum of compensation. The claimants have preferred Miscellaneous First Appeal No.102187 of 2022 seeking enhancement of compensation.

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Learned counsel appearing for the appellantInsurance Company submits that the apportionment of negligence on the part of the lorry to the extent of 80% is erroneous and against the oral and documentary evidence on records. He submits that immediately after the accident, the person who has given complaint before the police has clearly

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stated that due to rash and negligent driving of motorcycle by the petitioner himself, when there is clear oral and documentary evidence on record to show that the petitioner himself is negligent for occurrence of accident for which the police have filed charge sheet against the petitioner. The Tribunal without looking into the material evidence apportioned 80% negligence upon the Insurance, is arbitrary and without due application of mind. It is further submitted that the Tribunal has erred in considering 100% disability to the whole body and added 40% as future prospects towards the income of the petitioner. It is submitted that the petitioner is a government employee and is the beneficiary of medical expenses and entitled for future benefits for not able to do any work. The Tribunal without discussing this aspect of the matter has considered the disability at 100% and added 40% future prospects which is not permissible under law and when the injured person is government employee, he is not entitled under the head loss of future income until and unless he has not received any benefit from the department he is serving. The act of the Tribunal while considering the disability is arbitrary and without due application of mind and against the

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documentary evidence on record. Hence he submits that the impugned judgment and award is liable to be interfered with.

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As against this, the learned counsel for the claimants submits that the compensation awarded by the Tribunal is very meager and same is not in accordance with law. The Tribunal has not appreciated the materials placed on record which were sufficient to hold that claimant was not negligent and temporary injunction was the only the driver of the offending lorry who entered the road without any indicators was the cause for accident. Hence, the ought not to have attributed 20% negligence on the claimant which requires to be set aside. The Tribunal has not awarded attended charges for the rest of life. The Tribunal has not considered the grievousness of injuries and hence, the award of Rs.75,000/towards pain and suffering is too low and hence prays for enhancement. The Tribunal has failed to note that claimant was forced to take voluntary retirement with effect from 30^th November, 2019; and hence, ought to have taken income of the claimant at Rs.42,000/- per month. Hence, he prays that enhancement is required under this head also. On all

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NC: 2023:KHC-D:11058-DB MFA No. 101291 of 2022 C/W MFA No. 102187 of 2022

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these grounds he prays for enhancement of compensation, by allowing the appeal.

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Having heard the learned counsel for the parties,

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the following points would arise for our consideration in these appeals:

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Whether the appellant-Insurance Company has made out a ground to interfere with the impugned judgment and award as regards quantum of compensation?

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Whether the claimants are entitled for enhancement of compensation as sought for?

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What order or award?

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Our answer for the above points are as under:

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Point No.1: in the negative

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Point No.2: in the negative

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Point No.3: as per final order

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Regarding Point No.1:

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We have carefully examined the material on record.

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Accident is not in dispute and the petitioner suffering injuries in

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NC: 2023:KHC-D:11058-DB MFA No. 101291 of 2022 C/W MFA No. 102187 of 2022

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the said accident is also not in dispute. The police have submitted charge sheet against the driver of the offending lorry for commission of offences under Section 279, 338 and 304A of Indian Penal Code. RW1-Honnali Anand, who is working as Assistant in National Insurance Company limited, has deposed in his evidence that on 27^th February, 2016 at about 8.30 pm the petitioner rode the motorcycle in rash and negligent manner without observing traffic rules and dashed against the vehicle of respondent No.2 from the back side. Further, the petitioner's vehicle was not insured. One Shebber has given complaint against the petitioner as regards to his rash and negligent act. After investigation, Ron police have filed charge sheet against the petitioner for offence punishable under Sections 279 and 338 of Indian Penal Code. R2 has violated the policy conditions. the respondent No.1 was not holding valid driving licence as on the date of alleged accident. As per driving licence extract issued by RTO, the same reveals that the respondent No.1 got renewed his driving licence for transport vehicle and the same was valid from 28^th June 2016 to 27^th June, 2019. The alleged accident occurred on 27^th February, 2016. Hence, for violation of policy conditions, the Insurer is

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NC: 2023:KHC-D:11058-DB MFA No. 101291 of 2022 C/W MFA No. 102187 of 2022

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not liable to pay compensation. During the course of crossexamination, he has clearly admitted that the respondent No.1 has pleaded guilty before the court of JMFC for the alleged commission of offence under Section 283 of Indian Penal Code. On careful examination of evidence on record, it is crystal clear that the driver of the offending lorry, has not followed Rule 232 of Karnataka Motor Vehicles Rules. RW1 has not whispered anything as to why the driver of the offending lorry has abruptly stopped the vehicle on highway. Had the driver of the lorry followed the abovesaid rules and regulations, the accident would not have occurred. Considering all these aspects, the Tribunal has rightly held that there is negligence on the part of the deceased to the accident in question to the extent of 20% and the driver of the lorry had contributed 80%to the accident. On re-appreciation of evidence on record, we do not find any illegality/legal infirmity in the observation made by the Tribunal as to the negligent act on the part of the lorry driver and also on the rider of motorcycle. Hence, we answer point No.1 in the negative.

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NC: 2023:KHC-D:11058-DB MFA No. 101291 of 2022 C/W MFA No. 102187 of 2022

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Regarding Point No.2:

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The legal representative of the deceased Ashok Basappa Harlapur has filed appeal seeking enhancement in compensation. The insured died after the judgment passed by the Tribunal. In paragraph 13 to 15, the Tribunal has observed as under:

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"13. Issue No. 5 : Petitioner filed affidavit as PW1 stating that reiterating petition averments he sustained injuries on C5 vertebra and head injury and injury to all over the body he was UN-conscious he was taken first aid treatment at Ron hospital and refer to Higher hospital at Gadag he further taken treatment at KLE hospital Belgavi he admitted as a inpatient from 28/02/2016 till 30/03/2016 and he operated for his spinal card as well as head injury he was discharged from the said hospital he took treatment at Balaji Neuro science hospital Hubballi he was inpatient for 3 months from 15.04.2016 to 22.05.2016 and 26/05/2016 to 25/06/2016 and 23/07/2016 to 14/08/2016 but there is also no hopes for recovery he was discharge from the hospital he is taking followup treatment regularly he is unable to do his regular activities without the assistance of attender. He has totally spend Rs.10,00,000/- for medical expenses and for hospital bills Rs.8,08,600/- totally he become permanent disability he was advised to give VRS. Prior to the accident he was doing Government Job and also doing agriculture work he use to earn Rs.29,713/- per month his life is become miserable and his family members are the dependents he

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NC: 2023:KHC-D:11058-DB MFA No. 101291 of 2022 C/W MFA No. 102187 of 2022

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also applied for VRS and VRS for accepted but in his cross examination he denied that he has created false disability certificate he also denied that he has not spend Rs.10 lakhs for medical expenses and he denied that all the documents created to get higher compensation he denied that he has availed the medical reimbursement amount and the petitioner was unable to put his signature due to loss of muscle power hence LTM was obtained. PW2 is he doctor his evidence recorded through court commissioner he stated that petitioner took further treatment from 28/02/2016 he was suffering from quadriplegia and cervical spain injury below the neck and the said portion was mum there was no any action after taking MRI scan the petitioner was suffering from fracture of C5 vertebra he also advised for bed brand he operated and inserted plate and screw it is not removed he has given disability of 90% as per the guidelines of social justice empowerment of Government of India.

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14. Ex.P5 is the wound certificate showing CLW fracture and he was aged 36 years injuries are grievous in nature. Ex.P6 is also the wound certificate issued by Balaji Neuro science and Trauma Hubballi showing cervical spinal card injury injury is grievous in nature Ex.P10 is the certificate issued by town Panchayath Tavergera stating that the petitioner was residing at ward No.13 since from 6 months Ex.P11 is the discharge summery issued by KLE hospital showing that petitioner was inpatient from 28/02/2016 till 30/03/2016 and Ex.P12 to Ex.P15 are the case records issued by Balaji Neuro sciences Ex.P15 discloses that petitioner completely suffering from spine injury C5 vertebra C4 and C6 there was a graft on 1/3/2016 advised for

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NC: 2023:KHC-D:11058-DB MFA No. 101291 of 2022 C/W MFA No. 102187 of 2022

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physiotherapy and rehabilitation. Ex.P16 and Ex.P17 are the certificate issued by the BEO Gadag stating that petitioner sustained accident on 27/02/2016 and they have not paid any amount for medical treatment. Ex.P18 is the case records issued by Gadag Government Hospital further it is the medical advise given by the medical board as he is unfit for his regular work and advise for VRS Ex.P 19 is the salary certificate showing that petitioner was getting Rs.29,713/gross salary and deduction Rs.9,977/- and net salary Rs.19,736/-. the petitioner was having still more service but as per the advise of medical board he has given VRS.

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15. Looking to the nature of injuries: For pain and suffering Rs.75,000/is awarded , For fracture Rs.75,000/- is awarded. Petitioner produce hospital bills as per Ex.P20 petitioner has spent Rs.3,50,161/, Ex.P21 is the Hospital bills issued by Balaji Hospital for a sum of Rs.1,34,392, Ex.P 22 medical bills issued by Balaji Hospital for a sum of Rs.1,53,762/, Ex.P23 Rs.1,26,457/-+ Ex.P24 Balaji Hospital bills for a sum of Rs.43,858/+ Ex.P30 is the Medical bills for a sum of Rs.71,573/, Ex.P31 is the Medical bills for a sum of Rs.31,071/- totally for a sum of Rs.9,11,274/- the same is awarded for medical expenses. Ex.P 32 is the prescriptions. Petitioner was inpatient for 6 months (KLE hospital showing that petitioner was inpatient from 28/02/2016 till 30/03/2016, at Balaji Neuro science hospital Hubballi he was inpatient for 3 months from 15.04.2016 to 22.05.2016 and 26/05/2016 to 25/06/2016 and 23/07/2016 to 14/08/2016) and he was inpatient for 6 months Rs.29,713/- per month taken income

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NC: 2023:KHC-D:11058-DB MFA No. 101291 of 2022 C/W MFA No. 102187 of 2022

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of the petitioner (6 months X 29713/) Rs.1,78,278/- is awarded for loss of income during laid up period."

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On re-examination of the evidence on record, we do

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not find any legal infirmity in the conclusion reached by the Tribunal as to quantum of compensation. Hence, we answer point No.2 in the negative.

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Regarding Point No.3:

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For the foregoing reasons and discussions, we proceed to pass the following:

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O R D E R

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Appeals are dismissed;

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Amount in deposit if any, be transmitted to the Tribunal forthwith.

Sd/JUDGE

Sd/JUDGE

List No.: 1 Sl No.: 63

National Insurance Company Limited v. Sri Ashok S/O Basappa Harlapur

Case brief

What is this about?

What did the court decide?

National Insurance Company Limited v. Sri Ashok S/O Basappa Harlapur

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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