Partly allowed

National Insurance Co., Ltd., v. Sayeeda W/O Abdul Kareem

Karnataka HC22 Aug 2023MFA/21495/2012

Case brief

AI extract

What is this about?

High Court affirmed accident fact despite minor time discrepancies. Enhanced compensation from Rs.1,01,800 to Rs.1,21,300 with 6% p.a. interest, dismissing insurance company's appeal and partially allowing claimant's for enhancement.

What did the court decide?

Compensation enhanced to Rs.1,21,300 with 6% p.a. interest from filing date; insurance to deposit within eight weeks.

National Insurance Co., Ltd., Vs Sayeeda… — Contract and Commercial Disputes | Karnataka HC (2023)

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NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO.21495/2012 (MV) C/W MISCELLANEOUS FIRST APPEAL NO.22321/2012 (MV)

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IN MFA NO.21495/2012

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BETWEEN:

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NATIONAL INSURANCE CO. LTD., BY ITS DIVISIONAL MANAGER, 2^ND FLOOR, SHRINATH COMPLEX, NEW COTTON MARKET, HUBBALLI, NOW REP. BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, HUBBALLI.

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…APPELLANT

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(BY SRI RAJASHEKHAR S. ARANI, ADVOCATE.)

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AND:

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Digitally signed by SUJATA SUBHASH PAMMAR

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SMT. SAYEEDA W/O. ABDUL KAREEM SAVANUR, AGE: 59 YEARS, OCC: NIL, R/O: ANAND NAGAR, 2^ND WATER TANK, OPP. KANNADA PRIMARY SCHOOL, HUBBALLI.

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REVANTH M. S/O. NAGBHUSAHANAM, AGE: MAJOR, OCC: OWNER OF MV NO.AP-16/TX-3636, R/O: D/NO. 21-88-7 YANAMALAKUDRU, VIJAYAWADA KRISHNA DISTRICT, ANDHRA PRADESH.

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M. MADHUSAUDHANARAO S/O. VENKTESHWARAO AGE: MAJOR, OCC: DRIVER,

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NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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R/O: RAMLINGESHWAR NAGAR, VIJAYAWADA, ANDHRA PRADESH.

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…RESPONDENTS

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(BY SRI RAGHAVENDRA A. PUROHIT, ADVOCATE FOR SRI DINESH M. KULKARNI, ADVOCATE FOR R1; R2 AND R3 – NOTICE SERVED.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 31.12.2011, PASSED BY THE COURT OF 1^ST ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, HUBBALLI, IN M.V.C.NO.475/2008, WITH COSTS IN THE INTEREST OF JUSTICE AND EQUITY.

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IN MFA NO.22321/2012

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BETWEEN:

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SMT. SAYEEDA W/O. ABDUL KAREEM SAVANUR, AGE: 59 YEARS, OCC: NIL, R/O: ANAND NAGAR, NEAR 2^ND WATER TANK, OPP. KANNADA PRIMARY SCHOOL, HUBBALLI, DIST: DHARWAD.

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…APPELLANT

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(BY SRI RAGHAVENDRA A. PUROHIT, ADVOCATE FOR SRI DINESH M. KULKARNI, ADVOCATE.)

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AND:

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REVANTH M. S/O. NAGABHUSAHANAM, AGE: MAJOR, OCC: OWNER OF VEHICLE, R/O: D.NO. 21-88-7 YANAMALAKUDURU, VIJAYAWADA, KRISHNA DISTRICT, ANDHRA PRADESH.

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THE NATIONAL INSURANCE CO. LTD., BY ITS DIVISIONAL MANAGER, 2^ND FLOOR, SHRINATH COMPLEX, NEW COTTON MARKET, HUBBALLI, DIST: DHARWAD.

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NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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M. MADHUSAUDHANARAO S/O. VENKTESHWARRAO AGE: MAJOR, OCC: DRIVER OF VEHICLE, R/O: RAMALINGESHWAR NAGAR, VIJAYAWADA, ANDHRA PRADESH.

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…RESPONDENTS

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(BY SRI RAJASHEKHAR S. ARANI, ADVOCATE FOR R2; R1 AND R3 – NOTICE DISPENSED WITH.)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 31.12.2011, PASSED BY THE COURT OF I ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MATC, HUBBALLI, IN MVC NO.475/2008 AND ENHANCE THE COMPENSATION, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though these appeals are listed for admission, with

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consent of both sides, taken up for final disposal.

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The appeal in MFA No.21495/2012 is filed by

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the insurance company challenging the judgment and award dated 31.12.2011, passed by the tribunal, in MVC No.475/2008, questioning the factum of accident itself, whereas, MFA No.22321/2012 is filed by the claimant, seeking enhancement of compensation.

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Heard the arguments and perused the records.

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NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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Brief facts of the case as set out by the claimant himself are that, on 04.01.2008 at about 03.30 p.m. the claimant after attending work as cook was standing near compound gate of her employer and a goods truck bearing No.AP-16/TX-3636 dashed the claimant. Therefore, the claimant sustained injuries.

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The learned counsel for insurance company submitted that there is no accident in the case and the claimant had not suffered accidental injuries. In the medical records, i.e., the wound certificate and the followed sheet it is mentioned that the claimant was admitted to hospital on 04.01.2008 at 02.00 p.m. But the claimant in the claim petition stated that the accident caused at 03.30 p.m. on 04.01.2008. Therefore, before the accident the claimant was in hospital. Hence, there could not be accident and the claimant was admitted to the hospital for other injuries/ailments but not due to the motor vehicle accident as claimed. Therefore submitted accident was not at all caused.

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5 - NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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On the other hand, learned counsel for claimant

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submitted that just because there is a minor variation in mentioning the time of accident as 02.00 p.m. in the case sheet, that does not mean that the entire case is false one. Further submitted that the delay is only two days. Initially the owner of the goods truck promised to pay the amount of medical expenses, but later he did not keep up his promise. Therefore, the claimant was constrained to file compliant. In this regard there is two days delay occurred and it is quite natural and cannot be a ground to reject the claim petition. Therefore learned counsel for claimant justified the judgment and award of the tribunal and also prays for enhancement of compensation.

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In the present case, it is the case of claimant that on 04.01.2008 at 03.30 p.m. a goods truck hit her and she sustained injuries. In the case sheet and in the wound certificate the time mentioned as 02.00 p.m. But in

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the case sheet and wound certificate it is mentioned that the claimant was admitted to hospital with history of road

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- 6 - NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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traffic accident. The only variation is regarding mentioning of time and that variation is only 1½ hours time. But in the case sheet, wound certificate and discharge summary it is mentioned that the claimant was admitted to hospital with a history of road traffic accident. Therefore, just because there is a minor variation of 1½ hours in mentioning the time, that cannot be a ground to say that there is no accident at all.

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Event though there is two days delay in lodging the complaint, but the explanation offered is that owner of the truck promised to reimburse the medical expenses but he did not keep his promise for reimbursement of the medical expenses. Therefore, she lodged a complaint on 06.01.2008. Therefore in the present case there is a delay. Even though there is delay of two days, but it would not go to the core of the case to disbelieve the case of factum of accident.

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In the case of Ravi vs. Badrinarayan and

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others reported in AIR 2011 SC 1226 , the Hon’ble

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- 7 - NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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Supreme Court has laid down the law that the delay as per lodging the complaint can be considered in appreciating the facts and circumstances in each case. Therefore, in the present case just the delay of two days in lodging the complaint cannot be a ground to disbelieve the accident. Therefore it is proved that the claimant had sustained injuries in the motor vehicle accident.

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From the medical evidence on record it is proved that the claimant had suffered sub-trochanter fracture right hip and creptis were felt at right hip. The tribunal awarded compensation under various heads as follows.

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Sl. No.	Heads.		Amount in (Rs.)
1.	Pain and suffering.		30,000
2.	Towards medical conveyance, nouris attendant charges etc	treatment, hment and .	29,200
3.	Towards expenses medical treatment.	for future	15,000
4.	Towards loss of fut capacity due to disability.	ure earning permanent	12,600

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NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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Towards future unhappiness and 15,000 loss of amenities in life.

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Total: 1,01,800

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Considering the injuries sustained, the compensation of Rs.30,000/- and the compensation of Rs.29,200/- awarded by the tribunal under the head injuries pain and suffering and medial treatment, including incidental expenses are found to be correct, just and proper. The compensation awarded towards medical expenses is as per the actual bills and receipts. Hence they are kept intact. The compensation of Rs.15,000/- awarded by the tribunal towards future medical expenses is also found to be correct, hence the same is kept intact.

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Further, a compensation of Rs.25,000/- is

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awarded towards loss of amenities. The tribunal has rightly considered 5% functional disability to the whole body as per the doctor’s evidence. The accident was caused in the year 2008. Therefore in the absence of proof of income, the notional income would be Rs.4,250/- per

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9 - NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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month as recognized by the Karnataka State Legal Services Authority. Therefore, a compensation of Rs.4,250/- is awarded towards loss of income during treatment and laid up period.

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The claimant was aged 62 years old at the time of accident. Therefore the appropriate applicable multiplier is 7. Therefore, the loss of earning capacity would be Rs.4,250/- x 5% x 12 x 7 = Rs.17,850/-.

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Thus, the claimant is entitled for total

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compensation under various heads as under.

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Sl. No.	Heads.	Amount in (Rs.)
1.	Towards injuries, pain and suffering.	30,000
2.	Towards medical expenses including incidental charges like attendant charges, food, nourishment, conveyance, etc.,.	29,200
3.	Towards expenses for future medical treatment.	15,000
4.	Towards loss of income during laid up period and medical treatment period.	4,250
5.	Towards loss of amenities.	25,000

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10 - NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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Towards loss of future earning 17,850 capacity. Total: 1,21,300

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Therefore, the claimant is entitled for total compensation of Rs.1,21,300/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal, as against Rs.1,01,800/- awarded by the tribunal. The Insurance Company is directed to deposit the compensation amount within eight weeks from the date of

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receipt of a certified copy of this judgment.

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In the result, I proceed to pass the following:

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ORDER

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i) The appeal in MFA No.21495/2012

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filed by the insurance company is dismissed.

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ii) The appeal in MFA No.22321/2012 filed by the claimant is allowed in part.

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NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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iii) The judgment and award dated 31.12.2011, passed by the I Addl. Senior Civil Judge and Addl. MACT, Hubballi, in MVC No.475/2008 stands modified.

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iv) The claimant is entitled for total compensation of Rs.1,21,300/along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.1,01,800/- awarded by the tribunal.

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v) The claimant is not entitled for

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interest for the delayed period of 37 days in filing the appeal.

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vi) The remaining observations and findings made by the Tribunal in the aforesaid impugned judgment and award are kept intact.

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vii) The insurance company shall deposit the compensation within eight weeks from the date of receipt of a copy of this judgment.

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12 - NC: 2023:KHC-D:9338 MFA No. 21495 of 2012 C/W MFA No. 22321 of 2012

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viii) The amount in deposit shall be

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transmitted to the tribunal.

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ix) Send back the trial Court records

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along with a copy of this judgment.

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x) No order as to costs.

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xi) Draw award accordingly.

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SD/JUDGE

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MRK List No.: 2 Sl No.: 17 CT-ASC

National Insurance Co., Ltd., v. Sayeeda W/O Abdul Kareem

Case brief

What is this about?

What did the court decide?

National Insurance Co., Ltd., v. Sayeeda W/O Abdul Kareem

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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