Partly allowed

Sri Kumar B C v. Sri Manjunatha

Karnataka HC27 Nov 2024MFA/1197/2017

Case brief

AI extract

What is this about?

Cross-appeals in a motor accident claim where the Tribunal had split negligence equally between a lorry and a Tempo Traveller. The High Court held the lorry driver wholly negligent based on his conviction after pleading guilty and the insurers' failure to rebut, fixed disability at 50% whole body, recomputed compensation using income tax returns and Pranay Sethi future prospects, and enhanced comp

What did the court decide?

MFA 7628/2016 allowed; MFA 1197/2017 partly allowed; claim petition dismissed against R4-R6, allowed against R1-R3; enhanced compensation Rs.9,83,083 with 6% interest payable by Royal Sundaram Allianz

Sri Kumar B C Vs Sri Manjunatha — Insurance | Karnataka HC (2024)

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1 - NC: 2024:KHC:48704-DB MFA No.1197/ 2017 C/W MFA No.7628/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27^TH DAY OF NOVEMBER, 2024

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.1197/2017 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.7628/2016 (MV-I)

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IN MFA NO. 1197/2017

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BETWEEN:

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SRI KUMAR B C S/O LATE B C CHIKKE GOWDA, AGED ABOUT 51 YEARS, R/AT NO.666, 4^TH MAIN, 10^TH A CROSS, SRINAGAR, BANGALORE – 560 050 …APPELLANT

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(BY SRI.NAGARAJ G H, ADVOCATE)

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AND:

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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SRI MANJUNATHA S/O LATE BASAVARAJAIAH, NO.85/1, YANTAGANAHALLI PALYA, NELAMANGALA TALUK, BANGALORE DISTRICT – 562 123

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ROYAL SUNDARAM ALIANZ INSURANCE COMPANY LTD BRANCH OFFICE NO.132, SRI BALAJI SOVEREIN, 2^ND FLOOR, NEXT TO URBAN EDUGE, BRIGADE ROAD, BANGALORE - 25

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THE MANAGER ALSO AT: REGIONAL OFFICE, SUBRAMANYAM BUILDING, 2^ND FLOOR, NO.1, CLUB HOUSE ROAD,

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NC: 2024:KHC:48704-DB MFA No.1197/ 2017 C/W MFA No.7628/2016

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ANNA SALAI, CHENNAI – 600 002

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SRI BASAVANNA GOWDA S/O CHANDRAPPA, AGED ABOUT 50 YEARS, NO.63, MANJUNATHA NAGAR, BEHIND P.R.L NAGASANDRA, BANGALORE - 560 073

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M/S SHABARI CAR RENTALS NO.64, IST FLOOR, 4^TH CROSS, BEHIND AYAPPA SWAMY TEMPLE, VIDYAPEETA, BSK 2^ND STAGE, BANGALORE – 560 028 REPRESENTED BY ITS PROPRIETOR C KATHIRVEL

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THE ORIENTAL INSURANCE COMPANY LTD. BRANCH OFFICE CITY POINT BUILDING, PRESS CLUB JUNCTION, M.G.ROAD-560002 REPRESENTED BY ITS BRANCH MANAGER

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AND ALSO AT

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THE ORIENTAL INSURANCE COMPANY, CORPORATE AND REGISTERED OFFICE ORIENTAL HOUSE, P.B.NO.7037, A-25/27, ASAF ALI ROAD, NEW DELHI-110002 REPRESENTED BY ITS MANAGER

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SRI V SAMPATH S/O VAJAMOOPER, AGED ABOUT 48 YEARS, R/AT KENGINAYAKKAMPATHY VILLAGE, AGAMAPATTY PO, POCHAMPALLI TALUK, KRISHNAGIRI DISTRICT-635 206 … RESPONDENTS

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(BY SRI.O MAHESH, ADVOCATE FOR R2; SRI.S.V.HEGDE MULKHAND, ADVOCATE FOR R5; R1, R3, R4 & R6 ARE SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 26.07.2016 PASSED IN MVC NO.6708/2012 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSE JUDGE, & XXXIII ACMM, MEMBER, MACT, BENGALURU, (SCCH-5), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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3 - NC: 2024:KHC:48704-DB MFA No.1197/ 2017 C/W MFA No.7628/2016

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IN MFA NO.7628/2016

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD. BRANCH OFFICE, CITY POINT BUILDING, PRESS CLUB JUNCTION, M.G. ROAD, BENGALURU 560002, AND ALSO AT CORPORATE AND REGISTERED OFFICE, ORIENTAL HOUSE, P B NO.7037, A 25/27, ASAF ALI ROAD, NEW DELHI, THROUGH ITS BANGALORE REGIONAL OFFICE NO. 44/45, RESIDENCY ROAD, BANGALORE – 560 025. REPRESENTED BY ITS DEPUTY MANAGER … APPELLANT

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(BY SRI. S V HEGDE MULKHAND, ADVOCATE)

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AND:

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SRI KUMAR B C S/O. LATE B C CHIKKEGOWDA, AGED ABOUT 51 YEARS, R/O. NO.666, 4^TH MAIN, 10^TH A SRINAGAR, BENGALURU – 560 050

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SRI.MANJUNATH S/O. LATE BASAVARAJAIAH, MAJOR IN AGE, R/O NO.85/1, YANTAGANAHALLI PALYA, NELAMANGALA TALUK, BENGALURU DISTRICT-562 123

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ROYAL SUNDARAM ALLIANZ INSURANCE COMPANY LTD. BRANCH OFFICE, NO. 132, SRI. BALAJI SOVEREIGN, 2^ND FLOOR, NEXT TO URBAN EDUGE, BRIGADE ROAD, BENGALURU-560 025 AND ALSO AT REGIONAL OFFICE SUBRAMANYAM BUILDING, 2^ND FLOOR, NO.1, CLUB HOUSE ROAD ANNA SALAI, CHENNAI - 600 002

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SRI. BASAVANNA GOWDA

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NC: 2024:KHC:48704-DB MFA No.1197/ 2017 C/W MFA No.7628/2016

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S/O. CHANDRAPPA, NO. 63, MANUNATHA NAGAR BEHIND PRL, NAGASANDRA, BENGALURU – 560 073

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M/S SHABARI CAR RENTALS NO.64, 1^ST FLOOR, 4^TH CROSS, BEHIND AYAPPA SWAMY TEMPLE, VIDYAPEETA, BSK-2^ND STAGE BENGALURU – 560 028 REPRESENTED BY ITS PROPRIETOR C KATHIRVEL

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SRI. V SAMPATH S/O. VAJAMOOPER, KENGINAYAKKAMPATTY VILLAGE, ANGAMPATTY POST, POCHAMPALLI TALUK, KRISHNAGIRI DISTRICT – 635 206 … RESPONDENTS

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(BY SRI. G H NAGARAJ, ADVOCATE FOR R1; SRI.O.MAHESH, ADVOCATE FOR R3; SERVICE OF NOTICE ON R4 IS HELD SUFFICIENT V/O DTD:29.07.2021; NOTICE TO R5 IS DISPENSED WITH V/O DATED:23.08.2024; R2 & R6 ARE SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 26.07.2016 PASSED IN MVC NO.6708/2012 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE, XXXIII ACMM, MEMBER, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.21,00,000/- WITH INTEREST @ 6% P.A (EXCLUDING FUTURE MEDICAL EXPENSES OF RS.50,000/-) FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT AND ORDER ON I.A.NO.2/2024

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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These appeals arise out of the award in MVC No.6708/2012 passed by the VIII Additional Small Causes Judge and XXXIII ACMM Member-MACT(SCCH-5), Bengaluru.

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The appellant in MFA No.1197/2017 was the claimant and respondent Nos.1 to 6 therein were respondent Nos.1 to 6 before the Tribunal. MFA No.7628/2017 is filed by respondent No.5. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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On 07.08.2012 at 12:45 a.m, when the claimant was travelling in Tempo Traveller bearing registration No.KA01-AB-2638 from Nagamangala to Bengaluru near Yeshwanthpura, lorry bearing registration No.K.A-11-9195 hit the Tempo Traveller from the hind side. In the accident, claimant suffered grievous injuries. He was shifted to M.S Ramaiah hospital, Bengaluru. He was treated there as inpatient between 07.08.2012 to 05.10.2012 and underwent multiple surgeries. At the time of accident, respondent Nos.1 to 3 were

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the registered owner, insurer and driver of the lorry bearing registration No.K.A-11-9195. Respondent Nos.4 to 6 were

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NC: 2024:KHC:48704-DB MFA No.1197/ 2017 C/W MFA No.7628/2016

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owner, insurer and driver of the Tempo Traveller bearing registration No.K.A-01-AB-2638.

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Claimant filed MVC No.6708/2012 before the Tribunal claiming compensation of Rs.1,00,00,000/- from the respondents contending that accident occurred due to actionable negligence on the part of the driver of the lorry, due to the accidental injures, he has suffered permanent physical disability, he was earning Rs.50,000/- per month from his business. He claimed that due to the accident he has suffered financial loss as well as he has spent lot on medical expenses. He underwent immense pain and suffering.

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Initially claim petition was filed only against respondent Nos.1 and 2. That was contested by respondent No.2 alone. By the judgment dated 06.06.2014, claim petition was partly allowed. Respondent No.2 and claimant challenged the said award before this Court in MFA No.5268/2014(MV) and MFA No.6048/2014(MV) respectively. This Court by the judgment dated 09.09.2015 set aside the judgment under challenge and remanded the matter to the Tribunal with direction to implead respondent Nos.4 to 6 in the case and for reconsideration of the matter thereafter. Thereafter,

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7 - NC: 2024:KHC:48704-DB MFA No.1197/ 2017 C/W MFA No.7628/2016

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respondent Nos.4 to 6 were impleaded. Respondent Nos.4 to 6 contested the petition claiming that accident occurred solely due to negligence of the driver of the lorry and they are not liable to pay the compensation.

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Before the Tribunal in support of the case of the claimant, claimant was examined as PW.1, Doctor who treated him was examined as PW.2 and Exs.P1 to P27 were marked. Respondents did not lead any evidence.

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The Tribunal on hearing the parties by the impugned award held that both driver of the lorry and Tempo Traveller contributed 50% each in occurrence of accident. The Tribunal considered permanent physical disability of the claimant at 25%, assessed his income at Rs.2,80,000/- per annum, applied 13 multiplier and assessed his future income at Rs.9,10,000/-. The Tribunal in all awarded compensation of Rs.21,00,000/- on different heads as below:

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Sl. No.	Head of Compensation	Amount in Rs.
I.	PECUNIARY DAMAGES
1.	Expenses relating to:
2.	a) to treatment, hospitalization,
	medicines (Rs.9,78,281/- rounded off	9,80,000
	Rs.9,80,000/-)

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8 - NC: 2024:KHC:48704-DB MFA No.1197/ 2017 C/W MFA No.7628/2016

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	b) nourishing food, miscellaneous expenditure & transportation	10,000/-
3.	Loss of earnings which the injured
	would have made had he not been injured:	-
	a) Loss of earnings during period of treatment	-
	b) Loss of future earnings on account of permanent disability	9,10,000/-
4.	Future medical expenses	50,000/-
II.	NON-PECUNIARY DAMAGES
5.	Damages for pain, suffering and trauma as a consequence of the injuries	1,00,000/-
6.	Loss of amenities (and/or loss of prospects of marriage)	50,000/-
7.	Loss of expectation of life (shortening of normal longevity)	-
	Total	21,00,000/-

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The compensation was held payable by both insurers i.e., respondent Nos.2 and 5 equally. Challenging adequacy of compensation, claimant has preferred MFA No.1197/2017. Challenging finding on the point of negligence, respondent No.5 has preferred MFA No.7628/2016.

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Sri S.V Hegde Mulkhand, learned Counsel representing Oriental Insurance Company Ltd., i.e., respondent No.5 before the Tribunal submits that the chargesheet was filed

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against driver of the lorry and he pleaded guilty before the Magistrate. Respondent Nos.1 to 3 did not adduce any evidence to rebut that fact. Even according to the claimant, lorry driver was negligent. Therefore, finding of the Tribunal on the point of negligence is contrary to the evidence on record and the same is liable to be set aside. Claimant was admittedly running partnership business. He has admitted in the cross-examination that the said business is still running. Therefore, there is no loss of future earning. Compensation awarded on that head is unsustainable. According to him, compensation awarded on other heads is also on the higher side.

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Sri O Mahesh, learned Counsel representing Royal Sundaram Allianz Insurance Company Ltd., (respondent No.2 before the Tribunal) submits that chargesheet and fact of driver of the lorry pleading guilty are not conclusive proof. Sketch of scene of accident/Ex.P3 and other evidence on record show that the driver of Tempo Traveller entered road without observing road safety rules and contrary to Regulation Nos. 8 and 9 of the Rules of the Road Regulations, 1989 (for short ‘Regulations,1989’). Therefore, the Tribunal was justified in fixing 50% liability to the insurer of Tempo Traveller vehicle. He justifies the award.

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On considering the submissions of both side and on

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examining the materials on record, the questions that arise for determination of this Court are:

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“i. Whether the finding of the Tribunal that drivers of Tempo Traveller bearing registration No.K.A-01-AB-2638 and lorry bearing registration No.KA-11-9195 contributed equal negligence in occurrence of accident on 07.08.2012 at 12:45 a.m., leading to the injuries of the claimant is sustainable?

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ii. Whether compensation awarded under the impugned award is just one?”

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Analysis

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Reg. Negligence:

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Parties have not disputed that on 07.08.2012 at 12:45 a.m., when claimant was traveling in Tempo Traveller bearing registration No.K.A-01-AB-2638, an accident took place involving the said Tempo Traveller and lorry No.K.A-11-9195 near Yeshwanthpura. It is also not disputed that regarding the accident, Ms.Shilpa-family member of the claimant, filed complaint as per Ex.P1 against the driver of the lorry. Based on that, Yeshwanthpura Traffic Police registered FIR as per Ex.P1 against the driver of the lorry. On investigation, chargesheet Ex.P2 was filed against driver of the lorry for the offences

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punishable under Sections 279, 337, 338 IPC and under Section 134 (a)(b) read with Section 187 Motor Vehicles Act, 1988 (for short ‘MV Act’). Case against lorry driver was registered in C.C.No.184/2013 and driver of the lorry pleaded guilty in the said case. Learned Magistrate convicted and sentenced him for the offences punishable under Sections, 279,337,338 IPC and 134(a)(b) read with Section 187 MV Act. By such evidence, there was prima-facie proof of occurrence of accident due to actionable negligence on the part of the driver of the lorry. It is no doubt true that those documents were not conclusive proof, but they have some presumptive value under Section 114 illustration (e) of Evidence Act. Therefore, it was for respondent Nos.1 and 2 to adduce evidence to rebut the said presumption. Insurer of lorry /respondent No.2 had challenged first award of the Tribunal before this Court in MFA No.5268/2014 C/w MFA No.6048/2014 on the same ground. This Court on setting aside the order of Tribunal, remanded the matter for fresh consideration, reserving liberty to the parties to lead evidence. Even thereafter respondent Nos.1 and 2 did not avail the said opportunity to lead evidence.

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Regulation No.8 of the Regulations,1989 state that whenever a driver of the motor vehicle is nearing a road

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intersection, pedestrian crossing, or road junction, he shall not

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enter such intersection, junction etc., until he has become aware that he may do so without endangering safety of persons at such places. Regulation No.9 of the Regulations,1989 is to the same effect relating to junction where the traffic is not being regulated. It says he has to give way to all traffic approaching the intersection on his right hand. Before this Court it is being contended that the driver of the Tempo Traveller entered the road without taking any due care as required under Regulation Nos.8 and 9 of the Regulations,1989. The sketch/Ex.P3 shows that lorry has proceeded from its extreme right side to extreme left side. When driver of the lorry pleaded guilty, it was for respondent Nos.1 to 3 to enter witness box and claim that driver of Tempo Traveller was negligent. But they did not defend the case at all, nor respondent Nos.1 and 2 examined respondent No.3/driver of lorry. That amounts to suppression of available material evidence, which leads to drawing of adverse inference against respondent Nos.1 to 3. The Tribunal without assigning any acceptable reasons has come to the conclusion that the drivers of both vehicles have contributed to the occurrence of accident, which is wholly unsustainable. Hence, the said finding requires

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NC: 2024:KHC:48704-DB MFA No.1197/ 2017 C/W MFA No.7628/2016

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to be set aside and the entire culpable negligence has to be

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imputed to respondent No.3 and vicariously respondent No.1.

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Reg. Quantum:

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To prove the injuries and disability suffered by him, claimant examined PW.2 the doctor who treated him. PW2 deposed that he is working as Orthopaedic surgeon at M.S Ramaiah Hospital, Bengaluru, claimant was admitted into the said hospital on 07.08.2012 at 12:15 a.m., with history of RTA. He deposes about the injuries and treatment of claimant as follows:

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(i) Injuries to left upper limb and he was diagnosed to have open type IIIE comminuted fracture of both bones of left forearm with elbow disclocation with gross contamination. The said injuries are grievous in nature.

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(ii) He underwent emergency major wound debridement, ulnar nerve transposition and aesculap external fixator application on 07.08.2012 and claimant was referred to plastic surgery. He underwent debridement of wound, abdominal flap and split skin grafting by plastic surgeons on 10.08.2012.

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(iii) He underwent dressings under general anaesthesia on 13.08.2012 and 17.08.2012. According to him claimant

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developed distal necrosis for which debridement and reinsert of flap was done on 27.08.2012.

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(iv) Again on 01.09.2012 necrotic area was debrided and split skin grafting was done.

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Thus PW2’s evidence shows that claimant was treated as inpatient in the said hospital between 07.08.2012 to 05.10.2012 and again between 29.11.2012 to 30.11.2012. PW2 stated that claimant has suffered permanent physical disability of 82.5% for his left upper limb. However he did not speak about permanent physical disability to the whole body nor the claimant's counsel got elicited the same in his cross examination. Though it was contended that the claimant had taken treatment as inpatient in Ganga Medical Centre and Hospital(P) Ltd., Coimbatore between 30.05.2013 to 14.06.2013, 03.07.2013 to 09.07.2013, 11.10.2013 to 19.10.2013 and he suffered major permanent physical disability, those documents were not produced before the Tribunal. The author of those documents was not examined before the Tribunal. The said documents were admittedly in possession of the claimant. No acceptable explanation is assigned in the affidavit filed in support of the application, for non-production of the same at the required stage. Even if the

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production is allowed, mere production of those documents

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does not serve any purpose. The original proceedings are of the year 2012. This Court remanded the matter on 09.09.2015 directing the Tribunal to give opportunity to both the parties, reserving liberty to both the parties to lead evidence. Even that opportunity was not availed by the claimant. Under the aforesaid circumstances, the production of said documents cannot be allowed. More so, the production of the same does not help the claimant. Having regard to the nature of injuries, period of hospitalization, nature of treatment given to the claimant and nature of his employment, it would be in the interest of justice to assess the disability at 50% to the whole body.

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To prove his income, claimant relied on his income tax returns at Exs.P13 and P14 and the Tribunal has relied on income tax returns at Ex.P15. As per Ex.P15, the income of the claimant for the assessment year 2012-13 was Rs.2,76,112/-. The said document shows that the same was submitted on 28.12.2012 i.e. post accident, whereas Exs.P13 and P14, the income tax returns for the assessment years 2010-11 and 2011-12 respectively were submitted before the accident. Therefore, they are more reliable. As per Exs.P13 and P14, the

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income of the claimant for those years was (Rs.2,41,362 + Rs.2,08,040)=Rs.4,49,402/-. The total income tax for those two years was Rs.8,029/-. Therefore, on deducting tax of Rs.8,029/- paid for those two years, his average income of two years comes to Rs.4,41,373 / 2 = Rs.2,20,686.5 rounded off to Rs.2,20,687/-. Having regard to the age, employment, disability of the claimant and the judgment of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Pranay Sethi & Others¹ , 25% has to be added to his income by way of future prospects. Therefore, his annual income comes to Rs.2,75,859/-. Applicable multiplier is 13 and disability to be considered is 50%. Therefore, loss of future income comes to (Rs.2,75,859 x 13 x 50%) = Rs.17,93,083/-.

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Medical expenses of Rs.9,80,000/- was awarded based on the evidence produced by the claimant. That needs to be maintained. Similarly, the compensation awarded under the head of future medical expenses has to be retained. The compensation awarded on the head of pain and suffering is also just and needs to be maintained. Considering the nature of the injuries and the period of treatment undergone by the claimant,

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1 2017 (16) SCC 680

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the compensation awarded under the head of loss of amenities

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needs to be enhanced to Rs.1,00,000/-. The compensation awarded on the head of diet, conveyance and attendant charges need to be enhanced to Rs.60,000/-. The just compensation payable is as follows:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Loss of future earnings	17,93,083/-
2.	Medical expenses	9,80,000/-
3.	Pain and suffering	1,00,000/-
4.	Loss of amenities	1,00,000/-
5.	Diet, conveyance and attendant charges	60,000/-
6.	Future medical expenses	50,000/-
	TOTAL	30,83,083/-
	Compensation awarded by the Tribunal	21,00,000/-
	Enhanced compensation	9,83,083/-

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The enhanced compensation shall carry interest at 6% p.a. Respondent No.2 - Royal Sundaram Allianz Insurance Co. Ltd. is alone liable to pay the aforesaid compensation. MFA No.7628/2016 deserves to be allowed and MFA No.1197/2017 deserves to be partly allowed. Hence, the following:

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ORDER

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i. MFA No.7628/2016 is allowed.

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ii. MFA No.1197/2017 is partly allowed.

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iii. Claim petition in MVC No.6708/2012 on the file of

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the VIII Additional Small Causes Judge and XXXIII ACMM

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Member-MACT(SCCH-5), Bengaluru is dismissed against respondent Nos.4 to 6 and partly allowed against respondent Nos.1 to 3.

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iv. Claimant is awarded enhanced compensation of Rs.9,83,083/- with interest thereon at 6% p.a. from the date of petition till its realization.

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v. Respondent No.2 - insurer shall deposit the compensation in terms of the aforesaid award before the Tribunal within four weeks from the date of receipt of copy of this judgment.

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vi. Amount deposited by the appellant in MFA No.7628/2016, if any, shall be refunded to the said appellant. Transmit the TCR’s to Tribunal.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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PKN,RV

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List No.: 1 Sl No.: 50

Sri Kumar B C v. Sri Manjunatha

Case brief

What is this about?

What did the court decide?

Sri Kumar B C v. Sri Manjunatha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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