Partly allowed

The Oriental Insurance Co. Ltd. v. Sri B R Sanjay

Karnataka HC4 Dec 2024MFA/4729/2016

Case brief

AI extract

What is this about?

In a Motor Vehicles First Appeal, the High Court of Karnataka reviewed the compensation awarded by the Motor Accidents Claims Tribunal. The court upheld the liability apportionment and the medical expense quantum but reduced the interest rate from 9% to 6% per annum.

What did the court decide?

Compensation maintained but interest reduced to 6% per annum from the date of petition.

The Oriental Insurance Co. Ltd. Vs Sri B R Sanjay — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:49935-DB MFA No.4729/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF DECEMBER, 2024 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.4729/2016 (MV-I)

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD., D.O NO.213-217, NAGAPRABHA 3RD MAIN ROAD, 4TH CROSS CHAMARAJPET, BANGALORE-560018 REP. BY ITS DIVISIONAL MANAGER.

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AND ALSO:

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Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA

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THE ORIENTAL INSURANCE CO. LTD., R.O. 44/46, RESIDENCY CROSS ROAD LEO SHOPPING COMPLEX BANGALORE-560025 REP. BY ITS DIVISIONAL OFFICER.

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…APPELLANT

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(BY SRI. S.V. HEGDE MULKHAND, ADV.,)

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AND:

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SRI. B.R. SANJAY SRI. B.S. RAJENDRAPPA AGED ABOUT 48 YEARS R/AT. NO.505 7TH MAIN, 23RD CROSS 4TH BLOCK, JAYANAGAR BANGALORE-560011.

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SRI. RAJAKUMAR S/O VENKATE GOWDA MAJOR R/AT. NO.1/12, 2ND MAIN ROAD 2ND CROSS, BYATARAYANAPURA

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NC: 2024:KHC:49935-DB MFA No.4729/2016

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MYSORE ROAD, BANGALORE-560056.

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…RESPONDENTS

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(BY SRI. RAJIV R, ADV., FOR R1 (APPOINTED BY HCLSC) V/O/DTD:04.11.2024 NOTICE TO R2 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 12.04.2016 PASSED IN MVC NO.2900/2010 ON THE FILE OF THE MOTOR VEHICLES ACCIDENT CLAIMS TRIBUNAL AT BENGALURU, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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( PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL )

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Challenging the judgment and award in MVC

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No.2900/2010 on the file of MACT, Bengaluru City (SCCH-14), Insurance Company has filed this appeal.

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The appellant was respondent No.1, respondent No.1 was claimant and respondent No.2 was respondent No.2 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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The injured claimant filed claim petition under Section 166 of the Motor Vehicle Act, 1988 seeking compensation of Rs.2,00,00,000/-. It was contended that the claimant and others were travelling in car bearing registration No.KA-05 MC-9585 from Mysuru to Bengaluru on 10.09.2008 at

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9.10 p.m. When the car reached near Channapatna, lorry bearing registration No.KA-20-4274 was negligently parked in the middle of the road without parking indicator and the claimant could not notice the lorry negligently parked, as the vehicles were also coming from opposite direction, so dashed the said lorry from the hind side. It was further contended that due to the impact of the accident, claimant suffered severe injuries, was shifted to Channapatna Government hospital, provided first-aid treatment and thereafter was shifted to Sagar Hospital, Bengaluru. He was inpatient in the said hospital and was diagnosed for poly trauma, head injury, left thalamic bleeding and post tracheostomy. He sustained fracture of left humerus, fracture of lower 1/3^rd right radius, bilateral hemopneumothorax and fracture of ribs. He underwent surgery and was discharged from the said hospital on 04.11.2008. It was also contended that the claimant was again

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admitted at KIMS Hospital and Research Centre, Bengaluru for further treatment from 04.11.2008 to 24.11.2008. He spent more than Rs.25,00,000/towards the hospital bills, transportation etc. It was pleaded that he was doing real estate business and was earning Rs.1,00,000/to Rs.2,00,000/- p.m. FIR was registered by Channapatna Rural police in Crime No.268/2008. It was further pleaded that the lorry involved in the accident was insured with respondent No.1 and it is liable to pay the compensation.

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Respondent No.2 did not file written statement. Respondent No.1 filed statement of objections admitting the issuance of policy in favour of respondent No.2 in respect of lorry involved in the accident. It was contended that the driver of the insured vehicle was not having valid and effective driving licence. Hence, there is breach of policy condition and they are not liable to pay the compensation. It was further contended that the police filed charge sheet against both the drivers. The sketch available on record clearly indicates that the driver of the car was negligent and not the driver of the lorry. It denied the age, avocation and income of the injured claimant and sought dismissal of the claim petition.

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The Tribunal recorded the evidence of the parties. Claimant examined himself as PW.1, Dr.Nagaraj V. as PW.2 and got marked Exs.P1 to P20. Respondents did not adduce any evidence. The Tribunal, on appreciation of the oral and documentary evidence, partly allowed the claim petition by awarding compensation of Rs.28,25,000/-. The Tribunal apportioned the liability on the driver of the offending lorry to an extent of 80% and on the claimant to an extent of 20% directed respondent No.1 - Insurance Company to pay the compensation of Rs.22,60,000/- with interest @ 6% p.a. from the date of petition till the date of payment. Being aggrieved by the quantum of compensation and liability, the Insurance Company has preferred this appeal.

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Sri.S.V.Hegde Mulkhand, learned counsel appearing for the appellant submits that the Tribunal has committed grave error in saddling the liability on the Insurance Company to the extent of 80%. It is submitted that charge sheet was filed by the police against both the driver of the lorry as well as the claimant. Hence, the Tribunal ought to have saddled the liability atleast to the extent of 50% each. It is further

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submitted that the Tribunal on an earlier occasion had awarded Rs.8,15,460/- under the head of medical expenses. However, on remand now erroneously has awarded Rs.19,15,000/- which is required to be interfered. It is also submitted that award of interest by the Tribunal is on the higher side. He seeks to allow the appeal.

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Per Contra, Sri.Rajiv R., learned counsel appearing for respondent No.1 supports the impugned judgment and award of the Tribunal and submits that the co-ordinate Bench vide judgment dated 19.02.2014 in MFA No.6738/2010 and connected appeals has affirmed the apportionment of negligence of 80% on the driver of the lorry and 20% on the driver of the car. It is further submitted that the Tribunal on appreciation of the actual medical bills produced by the claimant after remand, has awarded Rs.19,15,000/- which does not call for any interference. He seeks dismissal of the appeal.

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Considering the rival submissions of the parties and examining the materials on record, the point that arises for consideration is “ Whether the impugned judgment and award of the Tribunal calls for any interference”?

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ANALYSIS

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The undisputed facts between the parties are that in the road traffic accident that occurred on 10.09.2008 at about 9.10 p.m., the claimant suffered fracture of left humerus, fracture of lower 1/3^rd right radius, bilateral hemopneumothorax, fracture of ribs and was diagnosed initially at Channapatna Government hospital, thereafter at Sagar Hospital, Bengaluru and further at KIMS Hospital and Research centre, Bengaluru. It is also not in dispute that the Channapatna Rural police have registered FIR in Crime No.268/2008 based on the information given by Sri.T.K.Nagesh immediately after the accident. The jurisdictional police, on completion of investigation filed charge sheet against the driver of the lorry as well as the claimant for the offences punishable under Sections 279, 337, 338 and 304A of Indian Penal Code, 1860. Considering the evidence available on record, the Tribunal vide judgment dated 06.03.2013 has partly allowed the petition by determining the compensation at Rs.11,10,060/- and saddling the contributory negligence on the claimant to the extent of 40% and awarded compensation of Rs.6,66,036/- to the claimant. The claimant assailed the

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judgment and award of the Tribunal dated 06.03.2013 in MFA No.6287/2013. The co-ordinate Bench allowed the appeal in part. The matter was remitted back to the Tribunal for reconsideration afresh after giving opportunity to the parties. This Court has permitted the parties to produce additional documents. After remand, the Tribunal on appreciation of the evidence available on record, by impugned judgment and award determined the compensation of Rs.28,25,000/- saddling contributory negligence to the extent of 20% on the claimant and 80% on the driver of the offending lorry and awarded a sum of Rs.22,60,000/- along with interest at 6% p.a. from the date of petition till realization. The Tribunal has recorded detailed reasons while arriving at a conclusion on contributory negligence at paragraphs 10 to 14 of the impugned judgment.

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The parties to the proceedings do not dispute that the apportionment of liability/negligence by the Tribunal at the ratio of 20% on the claimant and 80% on the driver of the offending lorry bearing registration No.KA-20-4274 has attained finality in MFA No.6738/2010 and connected appeals which also arise from the same accident. In view of the finding recorded by the co-ordinate Bench in the aforesaid appeals, we

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are of the considered view that the Tribunal was justified in apportioning the contributory negligence between the claimant and the driver of the offending lorry which does not call for any modification.

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The appellant - Insurance Company is aggrieved by the award of compensation under the head of medical expenses and award of interest by the Tribunal at 9% p.a. The Tribunal, considering the evidence available on record had awarded Rs.8,15,460/- in its judgment and award dated 06.03.2013. The co-ordinate Bench of this Court has set aside the said judgment remitting back the matter to the Tribunal to reconsider the case on merits afresh. The claimant produced medical bills to the tune of Rs.19,03,387/-. The Tribunal has recorded detailed reasons at paragraph 20 by considering the bills at Ex.P5 and two final bills pertaining to the periods from 11.09.2008 to 14.10.2008 and 14.10.2008 to 04.11.2008 and came to the conclusion that the total bill is to the tune of Rs.19,12,756/- which is rounded off to Rs.19,15,000/-. With the assistance of the learned counsels appearing for the claimant and the Insurance Company, this Court examined the actual bills produced at Ex.P5 and other medical records. We

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noticed that the Tribunal was justified in considering all the bills produced by the claimant and awarding Rs.19,15,000/- under the head of medical expenses. The said calculation is not disputed by the learned counsel appearing for the parties. Hence, the contrary contentions urged in the appeal are without any merit and are accordingly rejected. The award of interest by the Tribunal at 9% p.a. is on the higher side. Considering the prevailing rate of interest on the term deposits by the nationalized bank, we are of the considered view that the claimants are entitled to interest at 6% p.a. from the date of petition till its realization.

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For the aforementioned reasons, we do not find any error or perversity in the impugned judgment and award of the Tribunal calling for any interference in the present appeal insofar as liability and quantum of compensation. Hence, we proceed to pass the following:

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ORDER

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i. The appeal is partly allowed.

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ii. The compensation awarded by the Tribunal is maintained. However, the compensation

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awarded shall carry interest at 6% p.a. from the date of petition till its realization.

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iii. Amount in deposit, if any and TCRs shall be transmitted to tche Tribunal forthwith.

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The Court places its appreciation on record for the

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services rendered by Sri.Rajiv R, Panel advocate of High Court Legal Services committee.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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List No.: 1 Sl No.: 29

The Oriental Insurance Co. Ltd. v. Sri B R Sanjay

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. v. Sri B R Sanjay

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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