Partly allowed

Kum Indumathi M @ Indu v. M/S Future General India Insurance Company Limited

Karnataka HC2 Jan 2023MFA/3805/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a motor accident claim appeal filed by a minor claimant against an insurer. The court set aside 20% contributory negligence attributed by the Tribunal, held the insurer liable for the full amount, and enhanced total compensation from Rs.60,000 to Rs.85,000.

What did the court decide?

Compensation enhanced to Rs.85,000; contributory negligence set aside; insurer directed to pay entire amount within four weeks.

Kum Indumathi M @ Indu Vs M/S Future General India Insurance Company Limited — Karnataka HC (2023) — LawSathi Research

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2^ND DAY OF JANUARY, 2023

¶2

BEFORE

¶3

THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

¶4

MISCELLANEOUS FIRST APPEAL NO.3805 OF 2014 (MV-I)

¶5

BETWEEN:

¶6

KUM.INDUMATHI M @ INDU D/O MANOHAR M AGED ABOUT 17 YEARS R/AT NO.E-219-C, 32, 12^TH CROSS K.P.AGRAHARA, BINNIPET BENGALURU – 23 SINCE THE APPELLANT IS A MINOR REP.BY HER MOTHER AND NATURAL GUARDIAN SMT.RAJESHWARI, W/O MANOHAR M.

¶7

... APPELLANT

¶8

(BY SRI H.B.SOMAPUR, ADVOCATE)

¶9

AND:

¶10

M/S FUTURE GENERAL INDIA INSURANCE COMPANY LIMITED BY ITS MANAGER, PASADENA, NO.18/1 (OLD NO.125/A), 3^RD FLOOR, ASHOKA PILLAR ROAD, 1^ST BLOCK, BENGALURU - 82

¶11

SMT.RANI, W/O VASU C, MAJOR, R/AT NO.95/C, 9^TH MAIN, SHIVNAGAR, BENGALURU - 10

¶12

... RESPONDENTS (BY SRI O.MAHESH, ADVOCATE FOR R-1 (VC) NOTICE TO R-2 IS DISPENSED WITH V,O,D 24.07.2015

¶13

¶14

THIS APPEAL IS FILED U/S 173(1) MV ACT, PRAYING TO MODIFY JUDGMENT & AWARD DT. 31.10.2013, PASSED IN MVC NO.7441/2011 ON THE FILE OF THE MACT & XXI ADDL.SMALL CAUSES JUDGE AND XIX ADDL.C.MM (SCCH23) AT BENGALURU & ETC.

¶15

¶16

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

¶17

JUDGMENT

¶18

This appeal is preferred by the claimant aggrieved by the judgment and award dated 31.10.2013, passed by XXI Addl. Small Causes Judge & XIX Addl. C.M.M., Bangalore (hereinafter referred to as the 'Tribunal' for brevity) in MVC No.7441/2011. This appeal is premised on the ground of inadequate and meager compensation awarded by the Tribunal.

¶19

Though this matter is listed for admission, with consent of learned counsels on both sides, matter is taken up for final disposal.

¶20

Parties to the appeal shall be referred to as per

¶21

their status before the Tribunal.

¶22

Brief facts of the case are:

¶23

Claimant in this appeal is a minor and is represented by her mother, who is also claimant in connected claim petition. That on 09.12.2011 at about 06.30am, when claimant and others got down from bus and crossed 95% of Vatal Nagaraj Road, from RRR Kalyana Mantap

¶24

¶25

and proceeding towards Railway Track Bridge at Okalipuram, a Tempo bearing Registration No.CAK-2114 came from Majestic side and dashed against the claimant and others. In view of the said accident, all of them fell down and sustained injuries.

¶26

Claimant, who is minor, sustained fracture of mandible and loss of teeth. She has taken treatment at K.C. General Hospital and Victoria Hospital. She took follow up treatment. It is stated that prior to occurrence of accident, the claimant was hale and healthy, aged about 17 years and was earning a sum of Rs.6,000/- per month by doing flower vending work. Due to the occurrence of accident, the claimant expended huge amount towards medical expenses and incidental expenses and sustained grievous injuries in the accident due to the rash and negligent driving of the driver of the offending vehicle. Due to the said accident and injuries suffered, the claimant is not in a position to do her work as she was doing prior to the accident and she is unable to get back to work. Hence, she filed a claim petition before the Tribunal seeking compensation.

¶27

¶28

On service of notice to the respondents, respondent No.2 – Owner of the offending vehicle – Tempo, remained absent and was placed ex parte . Respondent No.1 – Insurer of the offending vehicle – Tempo appeared and filed their statement of objections inter alia contending that the claim made by the claimant is exorbitant and denied the age, avocation and income including the injuries as alleged in the claim petition. It is further pleaded that the driver of the Tempo was not holding a valid driving license at the time of accident. It also denied that the injuries sustained by the claimant were due to the rash and negligent driving of the jeep. It is pleaded that the accident was not due to rash and negligent manner of driving of the driver of the offending vehicle. There is violation of policy. Hence, on the basis of these aspects, he sought for dismissal of claim petition.

¶29

On the basis of pleadings, the Tribunal framed relevant issues for consideration.

¶30

In order to substantiate the issues and to establish the case, the parents of the minor claimant got examined themselves as PWs.1 & 2 and also they examined other witnesses as PWs.3 & 4. They also examined PWs.5 & 6,

¶31

¶32

Doctors in support of their case and got marked documents as Exs.P1 to P28. Respondent No.2 – Corporation examined one witness as RW1 and has not marked any documents on their behalf.

¶33

On the basis of material evidence both oral and documentary, the Tribunal attributed 20% negligence on the part of the claimant and 80% on the driver of the offending vehicle – Tempo and awarded the compensation of Rs.60,000/- in total and after deducting 20% towards contributory negligence, awarded a sum of Rs.48,000/- to the claimant with interest @ 6% pa and directed respondent No.1 - Insurer to pay the compensation.

¶34

Being aggrieved by the meager compensation amount awarded, the claimant is before this Court seeking enhancement of compensation.

¶35

It is the vehement contention of learned counsel for appellant-claimant that the Tribunal has committed an error in awarding meager compensation and has not taken into consideration the material evidence both oral and documentary thereby causing miscarriage of justice to the claimant. She further contends that the Tribunal has not taken into consideration the avocation of

¶36

¶37

the claimant and has not assessed amount as income thereby committing an error in not awarding just and reasonable compensation. She further contends that even under the other heads, the Tribunal has not awarded reasonable compensation commensurate to the injuries sustained by the claimant. On the basis of these submissions, she seeks to allow the appeal and to enhance the compensation awarded by the Tribunal.

¶38

Per contra , learned counsel for respondent No.1 Insurance Company vehemently contends that the judgment and award passed by the Tribunal is in accordance with material evidence both oral and documentary and same does not call for interference at the hands of this Court. He further contends that the Tribunal has awarded just and reasonable compensation based on the injuries sustained by the claimant and interference by this Court is not warranted under the facts and circumstances of the case. On the basis of these submissions, he seeks to dismiss the appeal as same does not merit consideration.

¶39

Having heard the learned counsel for the claimant and learned counsel for respondent No.1 –

¶40

¶41

Insurance Company, the points that would arise for consideration before this Court are:

¶42

i) Whether the claimant is entitled for enhancement of compensation?

¶43

ii) Whether 20% contributory negligence attributed on the part of the claimant is incorrect/arbitrary and the same requires to be set aside?

¶44

iii) What order?

¶45

Having perused the entire material evidence both oral and documentary and the impugned judgment and award, I am of the opinion that the Tribunal has committed an error in awarding meager compensation and also attributing 20% contributory negligence on the part of the claimant. Therefore, the claimant would be entitled for marginal indulgence for enhancement of compensation by setting aside the contributory negligence.

¶46

It is not in dispute that the accident occurred on 09.12.2011 at about 06.30am when the claimant along with others were crossing the road, at that time, the driver of Tempo dashed against them. The involvement of the vehicle, occurrence of accident, injuries having been sustained by the claimant are all not disputed. It is also not

¶47

¶48

disputed that a case came to be registered against the driver of the Tempo – offending vehicle and charge sheet also laid against him.

¶49

In order to substantiate this aspect and to prove the same, the claimant has produced the documents as Exs.P1 to P8, which are the Police records. There is no dispute that the charge sheet has been laid against driver of the offending vehicle. There is no challenge made to the laying of charge sheet by the respondents.

¶50

In the present case on hand, the claimant has suffered simple injuries and as per the opinion of the ENT Specialist, there is absence of right incisor upper tooth and front left lip edema bleeding. Learned counsel for the claimant contended that the claimant has lost marriage prospects due to the injuries suffered by her in the road traffic accident. The Tribunal has awarded a global compensation totally in a sum of Rs.60,000/-.

¶51

With regard to contributory negligence, I am in agreement with the learned counsel for claimant that the Tribunal has committed an error in fastening the contributory negligence of 20% on the claimant, whereas if

¶52

¶53

the driver of the offending vehicle - Tempo was cautious, he could have avoided the accident as the claimant was 2 ft away from the foot path while crossing the road with other claimants. Therefore, contributory negligence of 20% attributed to the claimant is erroneous and is liable to be set aside. Respondent No.1 – Insurance Company of the offending vehicle-Tempo being the Insurer and the insurance policy being in force, would be liable to pay entire compensation amount to the claimant.

¶54

In view of the above, I deem it appropriate to award a further sum of Rs.25,000/- to the claimant in addition to what has already been awarded by the Tribunal. Thus, the claimant is entitled to a sum of Rs.85,000/(Rs.60,000/- awarded by the Tribunal and Rs.25,000/enhanced by this Court).

¶55

Accordingly, I pass the following:

¶56

ORDER

¶57

i) The appeal is allowed-in-part; ii) The judgment and award dated 31.10.2013, passed by the XXI Addl. Small Causes Judge & XIX Addl. C.M.M., Bangalore in MVC No.7441/2011, is modified;

¶58

¶59

iii) The claimant is entitled for total

¶60

compensation of Rs.85,000=00 as against Rs.60,000/- awarded by the Tribunal;

¶61

iv) The interest awarded by the Tribunal @ 6% per annum, is not interfered with.

¶62

v) Respondent No.1 – Insurance Company is liable to pay the entire compensation to the claimant from the date of petition till realization within a period of four weeks from the date of receipt of a certified copy of the order before the Tribunal;

¶63

vi) Entire amount to be released and disbursed

¶64

in favour of claimant upon proper verification;

¶65

vii) Registry to transmit the records to the concerned Tribunal forthwith.

¶66

Sd/JUDGE

¶67

Kum Indumathi M @ Indu v. M/S Future General India Insurance Company Limited

Case brief

What is this about?

What did the court decide?

Kum Indumathi M @ Indu v. M/S Future General India Insurance Company Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Krishna S/O Hanamanth Devakar Vs Joravarmal.G.Parekh and Anr.

Smt. Palaxamma W/O Late Pratapreddy Vs R. Nagesh S/O Mastanappa and Ors.

The Branch Manager the Oriental Insurance Co.Ltd Vs Suresh S/O Phuleppa @ Puttappa Devakar and Anr.

P.Sunil Vs the Managing Director

Smt N Navya@ S N Sujatha Vs Sri N C Krishnappa

Smt Bharathi Vs Smt Gowramma