Partly allowed

The Branch Manager v. Sri. Nanjaiah. H. P.

Karnataka HC19 Jul 2023MFA/8183/2019

Case brief

AI extract

What is this about?

The High Court modified a Motor Accident Claim Tribunal award against an insurance company. Reducing the 'loss of future earnings' component as the respondent remained in service, the Court enhanced amenities compensation. Total compensation was revised to Rs. 1,75,788.

What did the court decide?

The impugned judgment modified to award compensation of Rs. 1,75,788/- to the petitioner. The insurer directed to pay the revised amount plus interest within six weeks.

The Branch Manager Vs Sri. Nanjaiah. H. P. — Motor Accident Claims | Karnataka HC (2023)

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NC: 2023:KHC:25343 MFA No. 8183 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 8183 OF 2019 (MV-I)

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BETWEEN:

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THE BRANCH MANAGER, M/S. THE ORIENTAL INSURANCE CO. LTD., NAG NIRMALA COMPLEX, BASAVANAHALLI MAIN ROAD, CHIKKAMAGALURU.

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NOW REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, LEO SHOPPING COMPLEX, 44/45, RESIDENCY ROAD, BANGALORE-560 025.

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…APPELLANT

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(BY SMT. HARINI SHIVANANDA, ADVOCATE)

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AND:

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Digitally signed by T S NAGARATHNA Location: High Court of Karnataka

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SRI NANJAIAH. H.P, S/O. LATE PUTTAIAH, AGED ABOUT 60 YEARS, FOREMAN IN DACG, POLYTECHNIC, CHIKKAMAGALURU, R/AT. BULB FACTORY ROAD, GOWRIKALUVE, CHIKKAMAGALURU. DEAD BY LR'S 1(A) SMT. LALITHA, W/O LATE NANJAIAH.H.P, AGE MAJOR.

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NC: 2023:KHC:25343 MFA No. 8183 of 2019

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1(B) RAGHU,

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S/O LATE NANJAIAH.H.P, AGE MAJOR.

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BOTH ARE R/AT: BULB FACTORY ROAD, GOWRIKALUVE, CHIKKAMAGALURU.

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RENUKA. S. K, S/O. KENCHEGOWDA, AGED ABOUT 46 YEARS, R/O. SADARAHALLI VILLAGE, LAKYA HOBLI, CHIKKAMAGALURU TALUK.

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…RESPONDENTS

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(BY SRI AMSHITH HEGDE.H.S, ADVOCATE FOR R1 [A&B]; SRI GIRISH B BALADARE, ADVOCATE FOR R2)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 11.07.2019 PASSED IN MVC NO. 132/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND MACT, CHIKKAMAGALURU, AWARDING COMPENSATION OF RS.6,71,802/OUT OF WHICH RS.6,51,802/- WITH INTEREST AT 8 PER CENT P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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

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JUDGMENT

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This appeal by the Insurance Company is directed

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against the judgment and award in MVC No.132/2018 dated 11-7-2019 passed by the learned II Additional

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Senior Civil Judge and MACT, Chikkamagaluru, whereby, the Tribunal has awarded a sum of Rs.6,51,802/- as compensation to the injured petitioner and fastened the liability on the Insurance Company.

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The petitioner- Nanjaiah H.P. who is respondent

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No.1 in this appeal had contended that on 12-11-2017 at about 8.45 a.m. while he was driving his motor cycle, near Petrol bunk KSRTC Bus stand, Chikkamangaluru, a tractor bearing No.KA.18.TA.5966 came in a rash and negligent manner and dashed to his motor cycle resulting in injuries

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to the petitioner. He was shifted to MG Hospital, Chikkamagaluru, where he was inpatient for 14 days and had to take treatment regarding the fracture of both the bones of his leg. It was contended that the petitioner was working as Foreman at DACG Polytechnic, Chikkamagaluru and drawing the salary of Rs.42,336/- per month and due to the accidental injuries, he was not in a position to move, walk etc., and therefore, he may be awarded adequate compensation from the owner and insurer of the Tractor.

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On service of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their written statement. Both of them have denied the petition averments contending that the driver of the tractor was not negligent and it was the petitioner himself who was negligent in riding his motor cycle and therefore, the liability can not be fastened upon them. They also contended that the compensation claimed is also highly excessive and exorbitant and therefore, the petition deserves to be dismissed.

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Respondent No.2 in addition to the above

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contentions has also contended that the driver of the tractor had no valid and effective driving licence and permit etc., and therefore, the petitioner as well as the respondent No.1 have colluded each other to create false complaint for the purpose of compensation and therefore, it sought for dismissal of the petition.

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On the basis of the above pleadings, the Tribunal framed appropriate issues and the petitioner was

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examined as PW1 and Exs.P1 to P27 were marked in evidence. The Medical Officer who had assessed the disability was examined as PW2. The insurance Company examined its official as RW1 and Exs.R1 to R6 were marked.

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After hearing the arguments, the Tribunal assessed the compensation at Rs.6,71,800/- under the following heads:

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1.	Towards Expenses relating to treatment and hospitalization and medicines	Rs.6,968/-
2.	Towards Nourishment and diet food	Rs.20,000/-
3.	Towards Loss of earning during the period of treatment	Rs.28,820/-
4.	Towards pain and suffering	Rs.30,000/-
5.	Towards conveyance charges	Rs.20,000/-
6.	Towards Loss of future earning on account of permanent disability	Rs.5,26,014/-
7.	Towards amenities	Rs.20,000/-
8.	Future medical expenses	Rs.20,000/-
	Total	Rs.6,71,802/-

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Aggrieved by the said judgment and award, the

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Insurance Company had approached this Court in appeal.

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The appellant- Insurance Company contends that

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the police papers i.e. FIR, chargesheet, mahazar etc.,

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speak of the tractor bearing No.KA.18.T.5966, but on the other hand, the vehicle which had been insured by the appellant Insurance Company is the Tractor bearing No.KA.18.TA.5966. Therefore, it is contended that the Tribunal erred in fastening the liability on the appellant and as such, the petition as against the Insurance company should have been dismissed by the Tribunal. Secondly, it is contended that the petitioner was a government servant and therefore, there cannot be any future loss of income on account of the injuries sustained by him when he had continued in service till his retirement due to super annuation.

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On issuance of notice respondent Nos. 1 and 2 have appeared before this Court through their counsel.

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During the pendency of this appeal, respondent

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No.1 died and his legal heirs were brought on record. The Tribunal records have been secured.

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The learned counsel appearing for the appellant Insurance Company Smt. Harini Shivanand, has contended

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that apart from the above grounds which are mentioned in the appeal memo there are also discrepancies in respect of the injuries suffered by the petitioner. She points out that the case sheet and other medical records of the Government Hospital show that initially, the name of the patient was mentioned as 'Dhananjaya' and it was scratched and the name of 'Nanjaiah' has been mentioned.

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She also contends that Exs.P6 and P25 which are again the medical records show that there is discrepancy in respect of the fracture, i.e., whether it is to the left lower limb or right lower limb. Thirdly, she contends that the burden was on the petitioner to show that the vehicle

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bearing No.KA.18.TA.5966 was involved in the accident, but this burden has not been discharged by the petitioner. Hence, she has sought for absolving the liability of the appellant from paying any compensation to the petitioner.

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Per contra, learned counsel appearing for respondent No.2 Sri Girish B. Baladare, submits that the vehicle bearing No.KA.18.T.5966 pertains to a power tiller

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and the extract in respect of the said vehicle as may be found from the Website of the Transport Department is relevant in this regard. He submits that Ex.P1 which is the Accident Information Report show that the tractor involved was KA 18.TA 5966. Therefore, unless the appellantInsurance company effectively rebut Ex.P1, it cannot be said that the said tractor was not involved in the accident. Moreover, he submits that respondent No.1, owner of the vehicle has admitted in the written statement that the said vehicle was involved in the accident, but it was only the negligence which was disputed by the owner.

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The first contention raised by the learned counsel

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for the appellant -Insurance Company is regarding the identity of the vehicle involved. The perusal of Ex.P1Accident Information Report issued on 9-3-2018 discloses that the vehicle bearing No.KA.18.TA.5966 tractor was involved in the accident. This document contains the chassis number as well as engine number. Ex.P2, FIR mentions that the tractor bearing No.KA.18.T.5966 was

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involved in the accident and the complaint was filed by the petitioner himself. The other police papers which are at Exs.P3 and P4 show that it was the vehicle bearing No.'KA.18.T.5966'. Ultimately, the police had also filed the chargesheet against the driver of the tractor as per Ex.P7 mentioning the vehicle involved as 'KA.18.T.5966'.

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It is relevant to note at this juncture that Ex.P5 which is the Motor Vehicles Inspectors report showed that he had examined the vehicle bearing No.'KA.18.TA.5966' and the motor cycle belonging to the petitioner. Ex.P5 categorically mention the tractor was bearing No.'KA.18 TA.5966'. The submission of the learned counsel for respondent No.1, owner of the vehicle discloses that vehicle bearing No.KA.18.T.5966 is 'power tiller' and therefore, there cannot be any doubt that the said vehicle was not involved in the accident. It was the tractor which was involved in the accident and the police papers categorically mention that it was the 'tractor' but not the 'power tiller'. It is true that the police papers i.e. FIR and

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chargesheet mention that it was the 'tractor bearing No.KA.T.5966', but the Investigation Officer has over looked the fact that the Motor Vehicles Accident Report categorically mention the vehicle Number as 'KA.18.TA.5966'. Thus, the error committed by the Investigating Officer is prima-facie visible and he should have mentioned the vehicle number as 'KA.18.TA.5966'.

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Further, the evidence led by the Insurance Company show that its official only mention about the discrepancy regarding the vehicle number, but had not taken any effort to ascertain which is the vehicle bearing No. 'KA.18.T.5966'. When the learned counsel appearing for respondent No.1/owner submit that the vehicle bearing No.'KA.18.T.5966' is a power tiller, nothing prevented the insurance company to secure those documents pertaining to vehicle number 'KA.18.T.5966' and to establish that it is also a tractor and it was not insured by the insurance company. Under these circumstances, the contention of the learned counsel appearing for the appellant that the

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vehicle involved is not 'KA.18.TA.5966' and therefore, the liability cannot be fastened upon it is not sustainable in law.

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The second contention of the learned counsel

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appearing for appellant is regarding the discrepancy as to whether it was the petitioner or somebody else who had sustained injuries. It is relevant to note that the petitioner has led evidence before the Tribunal and all the medical records describe his name to be 'Nanjaiah'. In Ex.P25, which is the copy of the case sheet, the name of the patient was mentioned as 'Dhanajaya' and it was scored off and written as 'H.P.Nanjaiah'. However, the name of

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the father and the age is rightly mentioned. It is also pointed out that though the petitioner was the Government servant, it was shown as a coolie. It is not known under what circumstances and who had admitted

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the petitioner to the hospital. It is worth to note that in Ex.P25, the injury is shown to be 'swelling of left lower limb' and thereafter, the inpatient hospital registration

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form at Ex.P6 mention that 'fracture of both the bones of right leg' was detected. The entire casesheet refers to the fracture of the right tibia and fibula and the treatment continued in respect of the right lower limb only. Therefore, it appears that the mention in Ex.P25 which was recorded by the casualty medical officer appears to be incorrect. Sofar as the discrepancy in the name is concerned, the evidence of the petitioner coupled with the other medical evidence clearly shows that his name is 'Nanjaiah' and it is not known why the name of the petitioner was shown as 'Dhanajaya' at the initial stage when he was taken to the hospital. Obviously, the person who has recorded the name of the petitioner in the hospital has written the same as 'Dhananjaya' and after realization, he has rectified the same.

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The last limb of the arguments of the learned counsel for the appellant/insurance company is regarding the compensation awarded under the head of 'loss of future income'. The learned counsel for the appellant had

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drawn the attention of this Court to the admission by PW1. The deposition of PW1 discloses that he has not resigned

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his job and he admits that he has worked till his completion of 60 years i.e. superannuation. Therefore, it cannot be said that the petitioner had suffered any loss of earnings due to the accidental injuries. It is also pertinent to note that the petitioner has not produced any document

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to show that he had been removed from the service on account of the disability sustained by him. Under these circumstances, it is evident that the compensation awarded to the petitioner under the head of 'loss of future earning on account of permanent disability' is not sustainable in law. He was a Government Servant and has continued to serve in such capacity at DASG Polytechnic, Chikkamagaluru and therefore, there was no loss of income to him. Thus, the compensation awarded by the Tribunal under the head of "loss of future earning on account of permanent disability' cannot sustain.

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The Tribunal has awarded the compensation of Rs.6,71,802/- and out of said compensation, a sum of Rs.5,26,014/- is in respect of 'loss of future earnings on account of the permanent disability'. Even though the petitioner has sustained permanent disability, there is no such loss of future earnings. Under these circumstances, except the compensation under the head of 'loss of future earnings', the petitioner is entitled for the rest of the compensation under the other heads.

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When the compensation under the head of 'loss of future earnings' is not admissible, adequate compensation has to be awarded under the head of 'loss of amenities in life' as enunciated in the case of Rajkumar Vs. Ajay Kumar and another¹ . Therefore, instead of Rs.20,000/- awarded under the head of 'loss of amenities in life', the same is enhanced to Rs.50,000/-. Thus, the petitioner is entitled for a total compensation of Rs.1,75,788/- under the following heads:

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1 2011(1) SCC 343

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15 -

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NC: 2023:KHC:25343 MFA No. 8183 of 2019

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1.	Towards Expenses relating to treatment and hospitalization and medicines	Rs. 6,968/-
2.	Towards Nourishment and diet food	Rs. 20,000/-
3.	Towards Loss of earning during the period of treatment	Rs. 28,820/-
4.	Towards pain and suffering	Rs. 30,000/-
5.	Towards conveyance charges	Rs. 20,000/-
6.	Towards amenities	Rs. 50,000/-
7.	Future medical expenses	Rs. 20,000/-
	Total	Rs.1,75,788/-

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In view of the above conclusions, the appeal

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filed by the insurance company deserves to be allowed in part. Hence, the following:

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ORDER

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The appeal filed by the Insurance Company is allowed in part.

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The impugned judgment and award passed by the Tribunal is modified by awarding compensation of Rs.1,75,788/- to the petitioner (now represented by his LRs.) on account of the injuries sustained by the deceased petitioner instead of Rs.6,71,802/- awarded by the Tribunal.

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The insurance company is directed to deposit the compensation amount together with interest within six weeks from the date of receipt of the copy of this order, if not already deposited.

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The rest of the conditions imposed by the Tribunal remain unaltered.

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The amount which is in deposit before this court is ordered to be transmitted to the Tribunal. The excess amount, if any, has to be refunded to the insurance company.

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Sd/JUDGE

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tsn* List No.: 1 Sl No.: 83

The Branch Manager v. Sri. Nanjaiah. H. P.

Case brief

What is this about?

What did the court decide?

The Branch Manager v. Sri. Nanjaiah. H. P.

Case brief

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What did the court decide?

What the court decided

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