Partly allowed

Miss B K Swetha v. Mr. R Srinivasa Rao

Karnataka HC24 Mar 2023MFA/4934/2018

Case brief

AI extract

What is this about?

Two injured claimants sought enhancement of compensation in motor accident appeals; insurer challenged liability. The High Court affirmed the finding that the Maruti van was involved, increased compensation for loss of amenities and disfigurement, and reduced interest from 8% to 6% p.a.

What did the court decide?

Claimant B.K. Swetha granted Rs.5,53,193/- with 6% interest; claimant P. Sowmya granted Rs.5,51,564/- with 6% interest. Insurer's appeals allowed in part reducing interest rate.

Miss B K Swetha Vs Mr. R Srinivasa Rao — Insurance | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF MARCH, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE K.SOMASHEKAR

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AND

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THE HON’BLE MR. JUSTICE C.M.JOSHI

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M.F.A. No.4934 OF 2018 (MV-I)

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C/W

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M.F.A. NO.4700/2018, 4701/2018, & 4935/2018 (MV-I)

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IN MFA NO. 4934 OF 2018

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BETWEEN:

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MISS. B.K.SWETHA D/O. KEMPAIAH K.M., AGED ABOUT 26 YEARS, R/AT. NO.139, BTS MAIN ROAD, WILSON GARDEN, BANGALORE - 560 027.

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...APPELLANT

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(BY SRI A.K.BHAT, ADVOCATE)

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AND:

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1 . MR. R. SRINIVASA RAO S/O. B.N. RAMACHANDRA RAO,

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MAJOR IN AGE,

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R/AT. NO.241/3,

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7^TH MAIN, 7^TH CROSS,

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1^ST FLOOR, RPC LAYOUT,

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VIJAYANAGAR, 2^ND STAGE,

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BANGALORE - 40. (OWNER OF MARUTHI VAN BEARING NO.CTT - 1158).

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2 . UNITED INDIA INSURANCE COMPANY LIMITED THIRD PARTY HUB, 5^TH & 6^TH FLOOR, KRUSHI BHAVANA, NRUPATUNGA ROAD, HUDSON CIRCLE, BANGALORE - 560 001. BY IT'S MANAGER, (INSURER OF MARUTI VAN BEARING NO. CTT-1158)

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3 . MR. MAHADEVA S/O. DODDALINGE GOWDA, MAJOR IN AGE, R/AT. NO.158/A, GURU SARVGNA NAGAR, MYSORE ROAD, R.R. GATE, BANGALORE - 39. (OWNER OF MOTOR CYCLE BEARING NO.KA-41-L-6536).

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4 . THE ORIENTAL INSURANCE COMPANY LIMITED REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCE ROAD, BANGALORE - 560 025. (INSURER OF MOTOR CYCLE BEARING NO. KA-41-L-6536).

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…RESPONDENTS

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(BY SRI O.MAHESH, ADVOCATE FOR R2; SRI. A.N.KRISHNASWAMY, ADVOCATE FOR R4; NOTICE IN RESPECT OF R1, R3, HELD SUFFICIENT VIDE ORDER DTD.27.9.2021)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.02.2018, PASSED IN MVC NO.5976/2013, ON THE FILE OF XXII ADDITIONAL SMALL CAUSES JUDGE & XX A.C.M.M. & MEMBER M.A.C.T., BENGALURU (SCCH-24), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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IN MFA NO. 4700 OF 2018

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BETWEEN:

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THE REGIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., THIRD PARTY HUB, 5^TH & 6^TH FLOOR, KRUSHI BHAVANA, NRUPATHUNGA ROAD, HUDSON CIRCLE, BANGALORE - 560 001. BY IT'S REGIONAL MANAGER.

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...APPELLANT

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(BY SRI O.MAHESH, ADVOCATE)

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AND:

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1 . B. K. SWETHA AGE 26 YEAR, D/O. KEMPAIAH K.M., R/AT. NO.139, BTS MAIN ROAD, WILSON GARDEN, BANGALORE - 27

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R. SRINIVASA RAO MAJOR, S/O. B.N. RAMACHANDRA RAO, R/AT NO.241/3, 7^TH MAIN 7^TH CROSS, 1^ST FLOOR, RPC LAYOUT, VIJAYANAGARA, 2^ND STAGE, BANGALORE - 560 040. (OWNER OF MARUTI VAN)

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3 . MAHADEVA MAJOR, S/O. DODDALINGE GOWDA, R/AT. NO.158/A, GURU SARVGNA NAGAR, MYSORE ROAD, R.R. GATE BANGALORE - 560 039. (OWNER OF M/C)

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4 . ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCE ROAD, BANGALORE - 560 025. (INSURER OF M/C)

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…RESPONDENTS

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(BY SRI A.K.BHAT, ADVOCATE FOR R1; SRI.A.N.KRISHNASWAMY, ADVOCATE FOR R4; NOTICE TO R2 & R3 IS HELD SUFFICIENT VIDE ORDER DTD.29.11.2021; (ORDER MADE IN MFA.4934/2018 MAIN FILE)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.02.2018 PASSED IN MVC NO.5976/2013 ON THE FILE OF XXII ADDITIONAL SMALL CAUSES JUDGE & XX A.C.M.M. & MEMBER M.A.C.T., BENGALURU (SCCH-24), AWARDING COMPENSATION OF RS.5,33,200/- WITH INTEREST AT 8% P.A FROM THE DATE OF PETITION, TILL DEPOSIT.

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IN MFA NO.4701 OF 2018

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BETWEEN:

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THE REGIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., THIRD PARTY HUB, 5^TH & 6^TH FLOOR, KRUSHI BHAVANA, NRUPATHUNGA ROAD, HUDSON CIRCLE, BANGALORE - 560 001. BY IT'S REGIONAL MANAGER.

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...APPELLANT

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(BY SRI O.MAHESH, ADVOCATE)

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AND:

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1 . SMT.SOWMYA.P W/O NAGEEN HEGDE, AGE 27 YEAR, R/AT NO.145, 2^ND MAIN, SUNKADAKATTE, SRIGANDADA KAVALU, BANGALORE - 560 091.

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R. SRINIVASA RAO S/O. B.N. RAMACHANDRA RAO, MAJOR, R/AT NO.241/3, 7^TH MAIN 7^TH CROSS, 1^ST FLOOR, RPC LAYOUT, VIJAYANAGARA, 2ND STAGE, BANGALORE - 560 040. (OWNER OF MARUTI VAN)

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MAHADEVA S/O. DODDALINGE GOWDA, MAJOR, R/AT. NO.158/A, GURU SARVGNA NAGAR, MYSORE ROAD, R.R. GATE BANGALORE - 560 039. (OWNER OF M/C)

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4 . ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCE ROAD, BANGALORE - 560 025. (INSURER OF M/C)

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…RESPONDENTS

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(BY SRI A.K.BHAT, ADVOCATE FOR R1; SRI.A.N.KRISHNASWAMY ADVOCATE FOR R4; NOTICE TO R2 & R3 HELD SUFFICIENT VIDE ORDER DTD.29.11.2021;

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.02.2018 PASSED IN MVC NO.6479/2013 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE & XX A.C.M.M. & MEMBER M.A.C.T., (SCCH-24), BENGALURU, AWARDING COMPENSATION

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OF RS.4,26,600/- TOGETHER WITH INTEREST AT THE RATE OF 8% P.A. FROM THE DATE OF PETITION, TILL DEPOSIT.

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IN MFA NO.4935 OF 2018

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BETWEEN:

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SMT. SOWMYA.P. W/O NAGEEN HEGDE, AGED ABOUT 27 YEARS, R/AT NO.145, 2^ND MAIN SUNKADAKATTE, SRIGANDADA KAVALU, BANGALORE - 560 091.

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...APPELLANT

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(BY SRI A.K.BHAT, ADVOCATE)

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AND:

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MR.R.SRINIVASA RAO S/O. B.N. RAMACHANDRA RAO, MAJOR IN AGE R/AT NO.241/3, 7TH MAIN 7^TH CROSS, 1^ST FLOOR, RPC LAYOUT, VIJAYANAGARA, 2^ND STAGE, BANGALORE - 40. (OWNER OF MARUTI VAN BEARING NO.CTT-1158)

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UNITED INDIA INSURANCE COMPANY LIMITED., THIRD PARTY HUB, 5^TH AND 6^TH FLOOR, KRISHI BHAVANA, NRUPATHUNGA ROAD, HUDSON CIRCLE, BANGALORE - 560 001. BY ITS MANAGER (INSURER OF MARUTI VAN BEARING NO.CTT-1158)

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MR.MAHADEVA S/O. DODDALINGE GOWDA, MAJOR IN AGE R/AT. NO.158/A, GURU SARVGNA NAGAR, MYSORE ROAD,

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R.R. GATE BANGALORE - 39. (OWNER OF MOTOR CYCLE BEARING NO.KA-41-L-6536)

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THE ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE, NO.44/45, LEO SHOPPING COMPLEX, RESIDENCE ROAD, BANGALORE - 560 025. (INSURER OF MOTOR CYCLE BEARING NO.KA-41-L-6536)

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…RESPONDENTS

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(BY SRI.O.MAHESH, ADVOCATE FOR R2; SRI. A.N.KRISHNASWAMY, ADVOCATE FOR R4; NOTICE HELD SUFFICIENT IN RESPECT OF R1 & R3 VIDE ORDER DTD.27.09.2021;

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.02.2018 PASSED IN MVC NO.6479/2013 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE & XX A.C.M.M. & MEMBER. M.A.C.T., BENGALURU (SCCH-24), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF JUDGMENT AT KALABURAGI BENCH THROUGH VIDEO CONFERENCE, THIS DAY C.M.JOSHI J., DELIVERED THE FOLLOWING:

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JUDGMENT

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M.F.A.No.4934/2018 and M.F.A.No.4700/2018 are preferred by the petitioner B.K. Swetha and United India Insurance Company and M.F.A.No.4701/2018 and M.F.A.No.4935/2018 are preferred by the petitioner- P.

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Sowmya and United India Insurance Company Limited against the judgment and award dated 23-02-2018 passed by the learned XXII ASCJ and XX ACMM and Member, MACT, Benglauru, in MVC No.5976/2013 and MVC No.6479/2013 respectively.

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The parties are referred to as per their ranks

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before the Tribunal for the sake of convenience.

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3. The brief facts are as below:

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That on 27.04.2011 at about 2.45 P.M the petitioner

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in MVC.6479/2013- P. Sowmya was riding the Scooty Pep bearing Reg.KA-KA-02-TC-07 along with the petitioner in M.V.C No.5976/2013- B.K.Swetha, as a pillion rider proceeding on Magadi side to Bangalore, on Magadi Main Road, when they reached near Baichinakoppe cross, a Maruthi Van bearing Reg.No.CTT-1155 came in rash and negligent manner with high speed and dashed to the motor cycle bearing Reg.KA-41-L-6536 and then dashed to petitioners' Scooty. Due to impact petitioners have sustained injuries. Immediately they were shifted to

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Lakshmi Multi specialty Hospital, wherein petitioners were treated as an inpatients.

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Petitioner in MVC 5976/2013-B.K.Swetha was admitted from 27.04.2011 to 10.05.2011 She was aged about 20 years, had sustained head injury, and facial fracture and type 2 compound fracture M/3rd and L/3rd of left tibia. She undergone surgery of ORIF of facial bones and closed reduction and implants were fixed to the fractured sites.

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The petitioner in MVC No.6479/2013 -P. Sowmya, was admitted from 27.4.2011 to 04.05.2011. She was aged about 21 years, had sustained Pan facial fracture and corneo scleral tear with Uveal prolapse fracture mid 3rd Humerus right. She undergone surgery for facial bones and due to corneo scleral tear with Uveal prolapse petitioner lost total vision of her right eye. They were discharged with an advice to regular follow up treatment. The petitioners have spent huge amount towards their

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hospitalization and they require huge amount for future surgeries.

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It was contended that both had completed Diploma in Operation Theatre Technology and working as OT nurse at Mallige Hospital and another hospital and getting salary of Rs.6,000/- p.m. respectively. After the accident, they are under complete bed rest and took regular follow treatment, thereby both petitioners left and resigned their jobs and sustained loss of income.

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It was alleged by petitioner in MVC.6479/2013

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that, due to fracture and injuries, she lost her right eye vision, thereby she was forced to appoint servant to look after her daily routine works and to do house hold works by paying Rs.4,000/- p.m. It was alleged by both petitioners that, even after better treatment, they have not recovered from the injuries and they suffered pain and agony, unable to stand, walk, chew any food, ugly marks were present on their faces, unable to lift any weight, grip the articles and all these disabilities will affect their

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marriage prospects and the said injuries caused permanent disability. The accident occurred only due to the rash and negligent driving of the driver of the Maruthi Van bearing No.CTT-1155 and the jurisdictional Tavarekere police have registered a case against the driver of the car and also filed charge sheet against him. The respondent Nos.1 and 2 are the owner and insurer of the Maruthi van and respondent Nos.3 and 4 are the owner and insurer of the Motor cycle, they are jointly and severally liable to pay the compensation with interest and cost from the respondents.

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In response to the notice issued by the Tribunal in both the petitions, respondent Nos.2 to 4 appeared through their respective counsels before the Tribunal. The respondent Nos.2 and 4 have resisted the claim petitions by filing objection statements separately. Respondent No.3 has not chosen to file his objection statement and respondent No.1 remained absent and he has been placed Ex-parte.

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Respondent No.2 and 4 in both the cases have

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denied the age, occupation and income of the petitioners, date, time, place, manner of accident injuries sustained, treatment taken, amount spent and disability sustained by the petitioners and call upon them to prove the same with strict proof.

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The 2nd respondent-United India Insurance Company Limited, Insurer of Maruthi van, specifically submitted that, Maruthi Van bearing Reg No.CTT -1155 was insured with it and the policy was in force on the date of accident and the liability, if any, is subject to the terms and conditions of the insurance policy. Further, respondent No.2 denied the involvement of the vehicle in the accident and contended that, the accident was caused while the petitioner in MVC 6479/2013 was riding the Scooty in rash and negligent manner & dashed to the motor cycle coming from opposite direction. As per medical records it is mentioned as “Alleged H/o RTA at around 3.00 p.m. today (27.04.2011) at Baichinakoppte Cross, near

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Tavarekere. Victim is a 2 wheeler (scooty Rider) hit by another 2 wheeler (splendor) from opposite side”. Therefore it is clear that the alleged accident was caused between Scooty and motor cycle, but these facts are suppressed by the petitioners and they have colluded with the insured and have falsely implicated the Maruthi Van to get unlawfull gain from it. Further it is contended that, the driver of the said car was not holding valid and effective driving license and the said Car did not possess a valid permit and FC to ply the vehicle in public roads at the time of accident and that the claim made by the petitioners are highly excessive, exorbitant and prays to dismiss both the petitions with cost.

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Respondent No.4- Oriental Insurance Company

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Limited, insurer of the Motor cycle in both the cases contended that, it is not a necessary and proper party and that the accident took place due to the rash and negligent driving of the Maruthi Van bearing Reg.No.CTT-1155 by its driver and in all the police documents this aspect is clearly

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mentioned. It has admitted the issuance of insurance policy and its validity in respect of motor cycle bearing Reg No.KA-41-L-6536 and contended that the liability if any, is subject to terms and conditions of insurance policy. Further it is contended that, the rider of motor cycle did not possess valid DL to ride the same as on the date of accident and therefore prayed to dismiss both the petitions with cost.

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On the basis of the above pleadings, the Tribunal has framed necessary issues for its consideration in both the petitions.

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Before the Tribunal, petitioners in both the petitions have examined themselves as PWs 1 and 2 and examined three witnesses as PWs 3 to 5 and got marked documents as Exs.P1 to P43. On the other hand, respondents 2 to 4 have examined 4 witnesses as RWs 1 to 4 and got marked the documents as per Exs.R1 to R6.

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On hearing both the sides and considering the oral and documentary evidence, the Tribunal has partly

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allowed both the petitions against the respondents 1 and 2, dismissed the petitions against respondent Nos. 3 and 4 and awarded a sum of Rs.5,33,200/- and Rs.4,26,600/as compensation respectively, under different heads as

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below:

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In MVC No.5976/2013 (MFA No.4934/2018)

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1	Painand suffering	Rs.50,000/-
2	Medical expenses	Rs. 3,93,193/-
3	Food and Nourishment, conveyance, attendant charges	Rs. 30,000/-
4	Loss of income during treatment period	Rs. 10,000/-
5	Loss of amenities of life and facial disfigurement	Rs. 50,000/-
	Total Rounded off	Rs.5,33,193/- Rs.5,33,200/-

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In MVC No.6479/2013 (MFA No.4935/2018)

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1	Painand suffering	Rs.30,000/-
2	Medical expenses	Rs. 1,84,564/-
3	Food and Nourishment, conveyance, attendant charges	Rs. 25,000/-
4	Loss of income during treatment period	Rs. 10,000/-
5	Loss of future earnings	Rs. 1,62,000/-
5	Loss of amenities of life	Rs. 15,000/-
	Total Rounded off	Rs.4,26,564/- Rs.4,26,600/-

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Aggrieved by the said judgment and award,

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the petitioners are before this Court in MFA No.4934/2018

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and MFA No.4935/2018 seeking enhancement and the respondent No. 2 -Insurance Company is before this Court in MFA No.4700/2018 and MFA No.4701/2018 seeking to exonerate its liability.

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We have heard Sri A.K. Bhat,learned counsel appearing for the petitioners/appellants in MFA No.4934/2018 and MFA No.4935/2018, Sri O. Mahesh, learned counsel appearing for R2- United India Insurance Company Limited and Sri A.N. Krishna Swamy, learned counsel appearing for R4-Oriental Insurance Company Limited. However, service of notice to R1- owner of Maruthi Van and R3- Owner of Motor cycle is held sufficient. We have perused the Tribunal records.

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Learned counsel appearing for respondent - United India Insurance Company Limited has contended the following aspects:

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a) The FIR has been registered by the concerned police station after two days of the accident on the basis of the complaint by one Manjunath and such

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delayed filing of the FIR shows that the Maruti van has been falsely implicated in the case.

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b) The MLC register extracts of Lakshmi Multi specialty Hospital show that the accident was due to collision of scooty and another motorcycle and this aspect is admitted by PW.2.

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c) The insured respondent No.1 - owner of Maruti van, is in the habit of lending his vehicle to others and he had not informed the accident to the insurance company as required under Section 134(c) of Motor Vehicles Act and as such false implication has to be inferred.

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d) The chargesheet filed before the Criminal Court against the driver of Maruti van was abruptly closed as the offender was not traced despite issuance of non-bailable warrant on several occasions.

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e) RW.1 - Dr.Raju of Lakshmi Multi specialty Hospital corroborated the history of accidental injuries sustained by the injured persons as mentioned in the MLC register and the entries in the MLC register show that the motorcycle had hit the scooty of the petitioners from opposite direction.

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f) The investigating officer of the criminal case who is examined as RW.4 admits that he did not verify the MLC register and therefore, false implication of the Maruti van had to be inferred from the evidence but the Tribunal has erred in the same.

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g) The rate of interest awarded by the Tribunal at 8% p.a. is on the higher side and therefore, the approach of the Tribunal is improper and incorrect.

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Per contra, learned counsel appearing for the petitioners in both the appeals filed by them contends that the complaint was filed by one Manjunath after two days of the accident and the delay in filing the complaint has been explained in the document that he had to shift the injured who were the rider and pillion rider of the splendor motorcycle to Lakshmi Multi specialty Hospital and thereafter to BGS Global Hospital for further treatment and only after they became stable in the hospital, he came to Tavarkere Police Station and lodged the complaint. Therefore, no fault can be found in respect of delayed filing of the complaint. He further contends that the damages were found on all the three vehicles and therefore, it was

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an accident in series. He submits that the Maruti van hit on the backside of the splendor motorcycle and then it hit to the scooty driven by the petitioners and therefore, all the three vehicles were involved in the accident. He submits that it is not known who had given information to the medical officer of Lakshmi Multi specialty Hospital, who might have written in the MLC register that two motorcycles were involved in the accident. Therefore, the investigation made by the investigating officer has to be accepted unless there is cogent evidence which overcome the investigation done by the police officer.

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He further contends that the driver of the Maruti van or the owner have not challenged the charge sheet filed against them and therefore, the insurer cannot take up a contention that the investigation conducted by the investigating officer is erroneous. He submitted that respondent No.2 – insurance company should have examined the driver of the Maruti van, who was the proper witness in order to ascertain the manner in which the

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accident happened and who alone could have rebutted the evidence of PWs.1 and 2. Therefore, he contends that fastening of the liability on respondent No.2 by the Tribunal cannot be found fault with.

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In addition to the above submissions, he contends that the compensation awarded by the Tribunal is insufficient and incorrect. It is submitted that both the petitioners who had sustained injuries in the accident were nurses earning a salary of Rs.6,000/- p.m. and they have sustained injuries which has resulted in permanent disability. The assessment of compensation by the Tribunal is erroneous and reassessment has to be made.

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He further submitted that the accident has occurred due to the negligence of the driver of Maruti van and respondent Nos.3 and 4 are the owner and insurer of splendor motorcycle and so far as the petitioners are concerned, it is a case of composite negligence and they are entitled for compensation from either of the owner and insurer of those two vehicles. Therefore, if at all inter se

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liability of negligence has to be determined, the petitioners are not affected by the same and in that regard he places reliance on the decision in the case of Khenyei vs. New

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India Assurance Company Limited and Others¹ . In

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this decision, it is held as below:

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“22. What emerges from the aforesaid discussion is as follows :

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22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

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22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

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22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor

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1 2015 9 SCC 273

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can recover the amount from the other in the execution proceedings.

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22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.”

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Learned counsel appearing for respondent -

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Oriental Insurance Company Limited submitted that the charge sheet has been filed against the driver of Maruti van and therefore, it is not liable to pay any compensation as there was no negligence on the part of the rider of the splendor motorcycle.

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In the light of the above submissions, we have examined the evidence available on record and also the oral testimony let in by the parties.

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In view of the submissions, the negligence of the drivers and involvement of Maruti van needs to be determined which would reflect on the liability to be fastened. Thereafter, we would address the question

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regarding quantum of compensation and interest to be awarded to the petitioners.

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It is pertinent to note that the complaint was filed by one Manjunath as per Ex.P.1 after two days of the accident. In the FIR it is stated that the rider and pillion rider of the splendor motorcycle were the friends of the complainant and the complaint is filed belatedly because he had to shift his friends to the hospital and for further treatment to BGS Global hospital. Therefore, the reason for delay in filing the complaint has been explained by the said Manjunath. Obviously, the said Manjunath was no way related to the petitioners herein but he was a friend of the rider and pillion rider of splendor motorcycle which was also involved in the accident. The petitioners had no role to play in such delayed filing of the complaint. Obviously, the petitioners herein were admitted to Lakshmi Multi specialty Hospital and the medical officer of Lakshmi Multi specialty Hospital had sent the MLC intimation to the concerned police station. If the investigating officer or the SHO of the

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Tavarakere Police Station had not visited the hospital and had not recorded the statement of the petitioners herein, the petitioners cannot be found fault with the same.

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The investigating officer has been examined by the insurance company as RW.4. His evidence discloses that he produced Ex.R.6 i.e. MLC intimation and after investigation he found that the driver of Maruti van was at negligence. He was treated hostile by the learned counsel appearing for respondent No.2 – insurance company and was cross-examined. He admits that he had seen the MLC register of Lakshmi Multi specialty Hospital which are at Exs.R.1 and R.2, wherein it was mentioned that two twowheelers were involved in the accident and thereafter he has investigated the matter and ultimately filed the charge sheet against the driver of Maruti van. He denied the suggestion that the Maruti van was not at all involved in the accident.

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A careful perusal of Exs.R.1 and Ex.R.2 though disclose that a two-wheeler i.e. scooty was hit by another

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two-wheeler from opposite side, it is not known as to who had given such information to the casualty of Lakshmi Multi specialty Hospital. The medical officer of Lakshmi Multi specialty Hospital has been examined by the insurance company as RW.1 who has produced Exs.R.1 to Ex.R.4. Obviously, the source of information about the accident is not mentioned in all these documents. Immediately after the MLC cases were registered, the intimation was sent to Tavarekere police station. The evidence of RW.1 do not throw any light as to what was the source to mention that splendor vehicle had come from the opposite direction of the scooty. Therefore, unless the petitioners are shown to have their hand in mentioning that the splendor motorcycle had come from opposite direction of the scooty they were traveling, it cannot be said that the petitioners herein have implicated the Maruti van. It was for respondent No.2 – insurance company to establish that the charge sheet filed by RW.4 was erroneous and the information collected by him regarding the involvement of the Maruti van was false. Under these

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circumstances, we do not have any reason to hold that the Maruti van was not at all involved in the accident. In the absence of such material on record, particularly when the hands of the petitioners were not involved in false implication of the Maruti van, it cannot be said that the Maruti van was not at all involved in the accident.

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There is another reason which make us to believe that the Maruti van was involved in the accident. The IMV report produced at Ex.P.4 show that all the three vehicles had fresh damages. This would clearly indicate that the Maruti van was also involved in the accident.

¶169

It is to be noted that the Tribunal has to decide actionable negligence and obviously the rules of evidence to be followed is that of preponderance of probability. The Tribunals are not to decide the matter on the concept of proof of beyond reasonable doubt. Now the question is, whether the evidence of respondent No.2 probabalise and overcome the investigation done by RW.4 in filing the charge sheet against the driver of Maruti van. The delay in

¶170

¶171

filing the complaint, mentioning of only two two-wheelers as the vehicles involved in the accident in the MLC register, would not suffice to probabalise that Maruti van was not involved in the accident. If the Maruti van was not involved in the accident, the petitioners would have gone against the owner and insurer of splendor vehicle, who are respondent Nos.3 and 4 herein. Under these circumstances, we are unable to accept the arguments of learned counsel appearing for appellant - insurance company.

¶172

The Tribunal has considered the evidence of RW.1 to RW.4 and ultimately it has come to the conclusion that the accident was caused solely due to the rash and negligent driving of the Maruti van.

¶173

The contention of learned counsel for the appellant that respondent No.1 is in the habit of lending his vehicle for various accidents which did not happen, cannot be accepted. There is no rule that a vehicle should not be involved in the accident twice or thrice in a year.

¶174

¶175

This argument can only be said to be little short of absurdity. There is no evidence led by respondent No.2 – insurance company to show that there is a conspiracy by respondent No.1 to make respondent No.2 – insurance company liable to pay compensation to various claimants. Under these circumstances, we come to the conclusion that the finding that the liability has to be fastened upon respondent No.2 is sustainable and the contention of appellant insurance company is liable to be rejected. With this, we proceed to consider the submissions made in respect of quantum of compensation.

¶176

The petitioner in MVC No.5976/2013 had

¶177

suffered the injuries as below:

¶178

“1. Bone Deep laceration over the fore head on right side, vertical in shape measuring 1x1 cm.

¶179

2. Bone deep laceration over the forehead on right side, oblique in shape 1 cm above the eye-brow measuring 2x1 cm. Plain CT Scan of Brain shows depressed fracture of both front bones & linear fracture of right temporal bone.

¶180

3. Muscle deep laceration over the right leg on lateral aspect 3 cms Below-the knee joint measuring 8x2 cms.

¶181

¶182

4. Contusion over the left leg in the lower 1/3rd on anterior aspect measuring 3x2 cms. X-ray of left leg shows fracture of Tibia & Fibula at the junction of lower 1/3rd & Upper 2/3rd.”

¶183

She was inpatient for about 14 days and later

¶184

she was again admitted to Sreenagar Nursing Home for two days for surgery and removal of implants. The total inpatient treatment was for 19 days. Therefore, we find that the compensation under the head of pain and suffering, medical expenses, food, nourishment and conveyance, attendant charges is adequate.

¶185

The petitioner states that she was aged about 22 years, had completed diploma in Operation Theatre Technology and was working as nurse at Mallige Hospital and was getting Rs.6,000/- p.m. The pay slip was produced by her, but it was not considered by the Tribunal as the author of the said pay slip was not examined. The Tribunal has considered the income of the petitioner at Rs.5,000/- p.m. and we do not find any reason to hold that it was improper.

¶186

¶187

PW.4 – Dr.Nagaraj assessed disability of lower limb at 35% and whole body disability at 11.6%. It is not shown that she had to quit the job on account of the injuries sustained by her. Therefore, adequate compensation under the head of loss of amenities in life would be proper instead of granting the compensation under the head of loss of future income on account of permanent disability. The Tribunal has awarded a sum of Rs.50,000/- towards loss of amenities which includes the facial disfigurement also. Considering the age of the petitioner and nature of injuries suffered by her, we are inclined to enhance the said compensation to Rs.65,000/-.

¶188

We find that the Tribunal has granted a sum of Rs.10,000/- towards loss of income during laid up period. Considering the nature of injuries sustained by the petitioner, it can safely be said that she was unable to resume her duties for a period of three months and therefore, we enhance the same to Rs.15,000/- . Thus,

¶189

¶190

the compensation to the petitioner in MVC No.5976/2013

¶191

(MFA No.4934/2018) is reassessed as below:

¶192

1	Painand suffering	Rs.50,000/-
2	Medical expenses	Rs. 3,93,193/-
3	Food and Nourishment, conveyance, attendant charges	Rs. 30,000/-
4	Loss of income during treatment period	Rs. 15,000/-
5	Loss of amenities of life and facial disfigurement	Rs. 65,000/-
	Total	Rs.5,53,193/-

¶193

Coming to the quantum of compensation concerning

¶194

the petitioner in MVC No.6479/2013 is concerned, the petitioner

¶195

had sustained the following injuries as per wound certificate at

¶196

Ex.P.22:

¶197

“1. Contusion of left sclera with Corneo Scleral Tear and Uveal Prolapse.

¶198

2. Contusion over the right maxillary region 2 cms below the lower eyelid, measuring 3x2 cms, x-ray of skull shows fracture of the right fronto maxillo zygomatic bones.

¶199

3. Contusion over the right arm on outer aspect in the middle 1/3rd, measuring 2x2 cms, x-ray of right arm shows fracture of mid shaft of right humerus with displacement and angulation of the fracture fragments.”

¶200

She was inpatient at Lakshmi Multi specialty

¶201

Hospital from 27.04.2011 to 04.05.2011 and she was again

¶202

admitted to Aryan Multi Specialty Hospital from 18.07.2013 to

¶203

¶204

20.07.2013. It is evident that she suffered loss of an eye in the said accident. The evidence of petitioner/PW.2 disclose that she had spent a sum of Rs.1,84,564/- towards medical expenses and she was inpatient for about 11 days. She also states that she was aged 19 years as may be seen from her SSLC marks card at Ex.P.27 and she had completed Diploma in Operation Theatre Technology and she worked as OT nurse at Anand Nursing Home and getting monthly salary of Rs.6,000/-. No documents are produced to show that she was earning Rs.6,000/- p.m. and therefore, the Tribunal notionally fixed her income at Rs.5,000/- p.m.

¶205

PW.4 – Dr.Nagaraj has examined PW.2 and gave report as per Ex.P.42. He has stated about the disability suffered by her in respect of right upper limb and ultimately assessed the disability at 38% of that limb. He has also stated that there was rupture of right eyeball and there was total destruction of right eyeball. Therefore, the total visual disability was assessed by him at 30%. The Tribunal assessing the total functional disability of the petitioner as 15%, awarded compensation of Rs.1,62,000/- towards loss of future earnings. It is pertinent to note that the functional disability of the

¶206

¶207

petitioner on account of fracture of right humerus has been considered by the Tribunal. However, the loss concerning the right eyeball and the facial disfigurement has not been considered at all. The petitioner was working as a OT nurse but there are no documents to prove the same. Therefore, the functional disability of the petitioner as OT nurse could not be assessed by the Tribunal. However, it could have awarded the compensation under the head of facial disfigurement and loss of amenity in life. A sum of Rs.15,000/- has been awarded by the Tribunal under this head. In our considered opinion, the disfigurement to the face coupled with loss of an eyeball and the vision in one eye entails higher compensation. Moreover, the petitioner is stated to be aged about 19 years and as such the disfigurement would also affect her marriage prospects. Therefore, in our considered opinion it would be proper to award a sum of Rs.1,25,000/- in respect of disfigurement of her face and loss of one eye.

¶208

We do not find any reason to interfere with the

¶209

compensation awarded under the remaining heads, which are adequate. Hence, the petitioner has to be awarded a sum of Rs.1,25,000/- in addition to what has been awarded by the

¶210

¶211

Tribunal. Thus, we calculate the compensation in MVC No.6479/2013 (MFA No.4935/2018) as below:

¶212

1	Pain and suffering	Rs. 30,000/-
2	Medical expenses	Rs. 1,84,564/-
3	Food and Nourishment, conveyance, attendant charges	Rs. 25,000/-
4	Loss of income during treatment period	Rs. 10,000/-
5	Loss of future earnings	Rs. 1,62,000/-
5	Loss of amenities of life	Rs. 15,000/-
	Disfigurement of face and loss of vision in one eye	Rs. 1,25,000/-
	Total	Rs.5,51,564/-

¶213

The Tribunal has awarded interest at the rate of 8% p.a. There are no reasons assigned by the Tribunal as to why the interest is awarded at 8%. Considering the fact that the present rate of interest in respect of fixed deposits is in the realm of 6-8% p.m., we hold that the statutory interest as per Section 34 of CPC has to be awarded. Hence, the rate of interest has to be awarded at 6% p.m. so that uniformity of rate of interest is maintained.

¶214

In view of the above discussions, we proceed to pass the following:

¶215

ORDER

¶216

(i) MFA No.4934/2018 filed by the petitioner-B.K.Swetha and MFA No.4935/2018

¶217

¶218

filed by the petitioner- P. Sowmya, are hereby allowed in part.

¶219

(ii) MFA No.4700/2018 and MFA No.4701/2018 filed by the United India Insurance Company Limited are hereby allowed in part.

¶220

(ii) The impugned judgment and award dated 23.02.2018 passed in MVC No.5976/2013 and MVC No. 6479/2013 by the Tribunal is modified to the extent that the petitioner in MVC No.5976/2013 (MFA No.4934/2018) is entitled for Rs.5,53,193/- with interest at 6% p.a. from the date of petition till realization as against Rs.5,33,200/- awarded by the Tribunal and petitioner in MVC No.6479/2013 (MFA No.4935/2018) is entitled for Rs.5.51,564/- with interest at 6% p.a. from the date of petition till realization as against Rs.4,26,600/- awarded by the Tribunal.

¶221

(iii) Respondent No.2 - United India Insurance Company Limited, is directed to deposit the compensation amount together with interest within a period of 4 weeks from the date of receipt of a certified copy of this order.

¶222

¶223

(iv) The conditions of apportionment and deposit as ordered by the Tribunal remain unaltered.

¶224

(v) Amount in deposit, if any, in MFA No.4700/2018 and MFA No.4701/2018 shall be transmitted to the jurisdictional Tribunal, forthwith.

Sd/JUDGE

Sd/-

JUDGE

tsn*/sh

Miss B K Swetha v. Mr. R Srinivasa Rao

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Miss B K Swetha v. Mr. R Srinivasa Rao

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