Partly allowed

United India Insurance Company Limited v. Madhu

Karnataka HC30 Oct 2024MFA/8394/2017

Case brief

AI extract

What is this about?

This court allowed both appeals partially. It set aside the award for loss of future income as the claimant continued working with the same salary. The court enhanced total compensation to Rs.2,64,000 including loss of amenities/disability but reduced interest from 9% to 6%. The trial court records were remanded for a modified award.

What did the court decide?

Total compensation of Rs.2,64,000 with interest at 6% p.a.; award for loss of future income set aside; interest rate reduced; records sent back for modified award.

United India Insurance Company Limited Vs Madhu — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:43825 MFA No. 8394 of 2017 C/W MFA No. 10301 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 8394 OF 2017 (MV-I) C/W

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MISCELLANEOUS FIRST APPEAL NO. 10301 OF 2018 (MV-I) IN MFA No. 8394/2017

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BETWEEN:

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UNITED INDIA INSURANCE COMPANY LIMITED, VENKATESHWARA BUILDING, B.M. ROAD, HASSAN, NOW REPRESENTED BY ITS REGIONAL OFFICE, KRUSHI BHAVAN, HUDSON CIRCLE, BENGALURU - 560 009, REPRESENTED BY ITS DEPUTY MANAGER, A.K. SINHA.

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…APPELLANT

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(BY SRI. L. SREEKANTA RAO, ADVOCATE)

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Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA

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AND:

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MADHU, S/O SOMESHEKARA, AGED ABOUT 23 YEARS, R/O KELAVATHI VILLAGE, SALAGAMA HOBLI, HASSAN DISTRICT.

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VIJAYA KUMAR, S/O. GOVINDE GOWDA, R/O. DODAHALLI VILLAGE, CHANNARAYAPATNA TALUK, HASSAN DISTRICT.

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NC: 2024:KHC:43825 MFA No. 8394 of 2017 C/W MFA No. 10301 of 2018

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…RESPONDENTS

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(BY SMT. A.R. SHARADAMBA, ADVOCATE FOR R1; VIDE ORDER DATED 13.06.2023, NOTICE TO R2 DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.09.2017 PASSED IN MVC NO.787/2016 ON THE FILE OF THE 5th ADDITIONAL DISTRICT AND SESSIONS COURT AND ADDITIONAL MACT AT HASSAN, AWARDING COMPENSATION OF RS.2,53,000/- WITH INTEREST AT RATE OF 9% P.A. FROM THE DATE OF PETITION TILL PAYMENT.

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IN MFA NO. 10301/2018

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BETWEEN:

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MADHU K.S, S/O SOMASHEKARA, 24 YEARS, R/O KELAVATHI VILLAGE, SALAGAME HOBLI, HASSAN DISTRICT - 573 201.

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...APPELLANT

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(BY SMT. SHARADAMBA A.R, ADVOCATE)

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AND:

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VIJAYAKUMAR, S/O GOVINDEGOWDA, MAJOR, R/O DODDAHALLI VILLAGE, CHANNARAYAPATNA TALUK, HASSAN DISTRICT - 573 211.

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THE MANAGER, UNITED INDIA INSURANCE CO. LTD., VENKATESHWARA BUILDING, B.M. ROAD, HASSAN - 573 201.

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NC: 2024:KHC:43825 MFA No. 8394 of 2017 C/W MFA No. 10301 of 2018

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...RESPONDENTS

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(BY SRI. L. SREEKANTA RAO, ADVOCATE FOR R2; VIDE ORDER DATED 15.11.2023, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01/09/2017, PASSED IN MVC NO.787/2016, ON THE FILE OF THE 5TH ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

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ORAL JUDGMENT

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These two appeals arise out of a single judgment and award dated 01.09.2017 passed by the V Addl. District and Sessions Judge and Additional MACT, Hassan, in MVC.No.787/2016.

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Parties to these appeals are referred to as per their ranks before the Tribunal.

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The brief facts as stated in the petition are as under:

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The claimant/petitioner filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short `the MVC Act') seeking compensation on account of the accidental injuries suffered by him in a road traffic accident which took place on 16.10.2015 at 09:00 a.m. when he was a pillion rider on the motor bike bearing Reg.No.KA 13-ED-2398 driven by his friend. According to him, when he was traveling on the motor bike, the rider of the motorbike intended to overtake the tempo which was moving on the left side of the road. At that time, a tempo bearing Reg.No. KA 16-B-6776 coming from the opposite direction dashed against the motorbike, due to which, the petitioner fell down and sustained injuries on his right toe, right femur of leg and other parts of the body. Immediately he was taken to the hospital. He took treatment as an in-patient at Mangala Hospital, Hassan for a period of 15 days and he underwent surgery and spent Rs.1,00,000/- towards medical expenses. It is further

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alleged by the petitioner that prior to the accident he was hale and healthy and he was earning a sum of Rs.24,000/by working as a Designer and Site Engineer. Due to the accident, he is now unable to work and as such, he prayed to award a compensation of Rs.15,00,000/- together with interest at the rate of 18% p.a. from the date of the accident to the date of realization. According to him, both the respondents are jointly and severally liable to pay the compensation. Thus, he prayed to award the compensation as prayed for.

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Before the Tribunal, despite service of notice, respondent No.1 remained absent and was placed exparte. Respondent No.2, being the Insurance Company, appeared through its Standing Counsel and filed a detailed statement of objections by denying all the averments made in the petition in regard to the rash and negligent driving of the motor bike by respondent No.1. It is further contended that the rider of the motor bike was not having a valid driving license. It is stated that the petitioner is not

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entitled for compensation as prayed for. Thus, sought for dismissal of the petition.

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Based upon the rival contentions of the parties,

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the Tribunal framed the following issues:

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1. Whether the petitioner proves that accident occurred due to the actionable negligence on the part of the rider of the bike bearing No.KA 16 B 6776 and in the accident he suffered injuries?

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2. Whether the petitioner is entitled for the compensation? If so, what is the quantum and from whom?

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3. What order or award?

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Before the Tribunal, the petitioner/claimant himself entered the witness box as P.W.1 and also examined one Doctor who had treated him as P.W.2 and marked documents as per Ex.P.1 to P.11. The respondents did not choose to lead either oral or documentary evidence.

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The Tribunal, on hearing the arguments and on

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evaluation of the evidence placed on record by the petitioner/claimant, held that the accident took place

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because of the rash and negligent riding of the motor bike by respondent No.1. So also it is held that under all the relevant heads, the claimant is entitled for compensation at Rs.2,53,000/- together with interest at the rate of 9%

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p.a., from the date of petition till realization.

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Now the Insurance Company has come up in appeal questioning the quantum of compensation, so also the claimant has come up in the aforesaid appeal for enhancement of the compensation.

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Learned counsel for the appellant/Insurance Company would submit that, there is clear admission in the deposition of P.W.1 that he is working in the same company and drawing the same salary as he was drawing prior to the accident. It is submitted that though there is evidence to the effect that, still the claimant is earning the same income, the Tribunal has not considered the same and has ordered the compensation towards the loss of future income due to disability by calculating the income at Rs.7,000/- by holding that the claimant has suffered the

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disability to an extent of 10%. While calculating so, the Tribunal has ordered the future loss of income due to disability at Rs.1,51,000/- which is on the higher side. He would further submit that, as there is no evidence placed on record by the claimant that he has left the job in which he was working at the time of accident, the Tribunal ought not have awarded the compensation towards loss of income due to disability. He would further submit that, whatever the compensation awarded is excessive and prayed for allowing the appeal and set aside the award passed by the Tribunal.

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As against this submission, learned counsel for

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the claimant would submit that, in the said accident the claimant has suffered grievous injuries like pain and swelling of pelvis, right foot and right ankle. The claimant was aged 22 years at the time of accident and because of accidental injuries, now he has left his job as he is not able to work as he was working prior to the accident. She would further submit that, the claimant has suffered substantial disability to his body due to accidental injuries.

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She would further submit that, compensation awarded by the Tribunal under the conventional heads is not just and proper, hence, sought for enhancement of compensation.

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I have given my anxious consideration to the arguments addressed by both side and perused the material on record.

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In view of the rival submission of both side, the only point that would arise for consideration is:

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" Whether the Tribunal is justified in awarding the compensation to an extent of Rs.2,53,000/under all the relevant heads.?"

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It is not in dispute that an accident occurred on 16.10.2015 at 9.00 a.m. when the claimant was a pillion

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rider on the motor bike of his friend. It is alleged in the petition that, the rider of the said motor bike tried to overtake the tempo and was moving towards the left side of the road. At that time, the tempo came from the opposite direction and dashed to the motor bike on which the claimant was a pillion rider. Because of this accident, the claimant fell down and sustained injuries on his right

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toe, right femur of leg and other parts of the body. According to the claimant, he was admitted to the hospital for 15 days and underwent surgery. The claimant has spent Rs.1,00,000/- towards the medical expenses. According to the claimant, he was earning Rs.24,000/- per month prior to the accident. This averment made by the claimant is denied by the Insurance Company by filing a detailed statement of objections.

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Insofar as the oral evidence let in by the claimant is concerned, he himself has come before the Tribunal. He relied upon documents as per Ex.P.1 to P.8 in his evidence. He has been cross-examined by the learned counsel for the Insurance Company, wherein he has stated that he is still working in the same company in which he was working prior to the accident and drawing the same salary. There is no increase in his salary. He further submits that there is no difficulty in producing a salary certificate. Relying upon this evidence, learned counsel for

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the Insurance Company would submit that, as the claimant is still working in the same company and drawing

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the same salary, the question of awarding any compensation towards the loss of future income' does not arise at all. He would further submit that, the Tribunal has erred in awarding compensation for the loss of future

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income'. He would further submit that, no further compensation can be awarded towards the loss of income for the laid-up period, loss of amenities and disabilities.

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To show that, the claimant has really suffered disability, the claimant has examined the Doctor who treated him, as P.W.2. According to his evidence, he being an Orthopeadic Surgeon at Mangala Hospital, Hassan, he examined the claimant on 16.10.2015 at 10.15 a.m., who came to the hospital under the history of a road accident. On examination, he noticed the following injuries, which are grievous in nature:

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Pain and swelling of pelvis.

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Pain and swelling of right foot.

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Pain and swelling of right ankle.

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He also deposed that, as per the X-ray report,

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there was a fracture of pubic ramus with acetabulum,

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fracture of foot metatarsal ligament injury of right ankle.

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The claimant was discharged from the hospital on 20.10.2015. When he medically examined the claimant on

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27.06.2017, he noticed the following findings:

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Pain over right pelvis.

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Pain and restriction of movement of about 30 degrees of right hip joint.

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Wasting of right gluteal muscles present.

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Restriction of movement of right ankle.

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He is not able to squat and sit on cross legs since it is painful.

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He is not able to walk for long time, to stand for long time and also to work for long time.

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According to guidelines issued by the Central

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Government and doctor opinion, the claimant has suffered the disability to the extent of 30% for right lower limb. In support of his evidence, he also produced documents vide Ex.P.9 to P.11. P.W.2 has been cross-examined by the learned counsel for the Insurance Company. It is elicited in the cross-examination that, the claimant underwent

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surgery and he was advised to take further treatment.

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From the evidence of P.W.2, it shows that, the

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claimant has sustained three grievous injuries due to the accident, because of which, now he has many physical impairments as noticed by the Doctor. According to the claimant, he was aged 22 years at the time of the accident. It is submitted by the learned counsel for the claimant that the claimant is not yet married and because of injuries, his marriage chances are tarnished. As the claimant has sustained many physical impairments, he has to survive with all these physical impairments and with all frustration, he has to lead his future life. Therefore, as rightly submitted by the learned counsel for the claimant, the claimant is also entitled for compensation towards pain and sufferings. In view of the injuries suffered and also evidence brought on record by the claimant, if Rs.70,000/in all, is awarded under Pain and suffering, it would meet the ends of justice.

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So also the claimant was in-patient for a period

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of 4 days as per the Doctor's evidence. As the claimant

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has suffered a fracture, he would have taken treatment as an out-patient and advised to take rest for a period of two

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months in view of injuries suffered. Therefore, under the head `loss of income during the laid-up period', certain amount is to be awarded. Though the claimant has produced the salary certificate, it has not been signed by the competent issuing authority from his office where he was working. In the absence of the said document, guidelines issued by the Karnataka State Legal Services Authority are to be relied. As the accident has taken place in the year 2015, the notional income is to be taken into consideration at Rs.9,000/- p.m. As the claimant was idle for two months and for the laid up period, the claimant is entitled for compensation at Rs.18,000/(Rs.9,000/- X 2).

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During the treatment, the claimant must have

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spent money towards the medical expenses. To prove the said fact, the claimant has produced the prescriptions as per Ex.P.7 and also medical bills as per Ex.P.8. In addition to the said medical expenses, the claimant also must have

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spent money towards nutrition, conveyance charges and other charges. The bill is produced by the claimant to show that he has spent Rs.13,350/- at the time of discharge. The Tribunal has awarded Rs.66,000/- towards the medical expenses. In view of the injuries suffered and medical expenses spent, whatever the compensation awarded under the head medical expenses is just and proper and the same needs no interference by this Court.

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So for as his `loss of amenities' is concerned,

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as stated supra, as per the doctor's evidence, which is not denied by the respondent/Insurance Company, when the claimant was medically examined on 27.06.2017, the Doctor noticed six physical impairments because of the accidental injuries. With all his frustration, inconvenience and discomfort, the petitioner has to survive. He was aged 22 years, as stated supra, at the time of accident. There is loss of amenities to be enjoyed in his life. It is submitted that, even today the claimant is not married and there is loss of marriage prospects also. Taking into consideration of these aspects and also the physical impairments, the

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NC: 2024:KHC:43825 MFA No. 8394 of 2017 C/W MFA No. 10301 of 2018

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injuries noticed by the Doctor, which is not denied by the respondent/insurance company, certain amount needs to be awarded towards loss of amenities'. In view of the above, Rs.50,000/- is awarded for loss of amenities' to

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be enjoyed in his life, which would meet the ends of justice.

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It is argued by the learned counsel for the Insurance Company that as the claimant is still working in the company as stated in his evidence, he is not entitled for compensation under `loss of future income'. In support of his submission, learned counsel for the Insurance Company relied upon the judgment passed by the Division Bench of this Court in Sri. Subash vs. The New India Assurance Co. Ltd., Rep. by its Manager and Others reported ILR 2010 KAR 2439 . In paragraph No.7 of the said judgment at point No.1, the Division Bench has observed as under:

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"7. After consideration of the submission of the Learned Counsel for the parties and after perusal of the judgment and award passed by Tribunal including the original records placed before us, the points that arise for our consideration are:

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NC: 2024:KHC:43825 MFA No. 8394 of 2017 C/W MFA No. 10301 of 2018

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"I) Whether the Tribunal is justified in awarding compensation towards loss of future income?"

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II) Whether the compensation awarded towards other heads is justifiable?"

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The occurrence of accident and the resultant injuries sustained by claimant are not in dispute.

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Re-Point 1: As rightly pointed out by Learned Counsel appearing for Insurer, the Tribunal has grossly erred in awarding compensation towards loss of future income, resulting in serious miscarriage of justice, when in fact, the claimant has been continued in the services of the Corporation as 'Conductor'. If the claimant is continued in service, then, the question of awarding compensation towards loss of future income does not arise. Therefore, taking this aspect into consideration, without going into further merits and demerits of the case, we hereby set aside the compensation of Rs. 1,86,525/- awarded by Tribunal towards loss of future income."

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In this case also, as admitted by the

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petitioner/claimant himself/P.W.1 in his cross -

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examination that he is still working in the same place where he was working prior to the accident and drawing the same salary and there is no increase in the salary. Insofar as disability is concerned, evidence of P.W.2/Doctor shows that the claimant has suffered disability to extent of 30% to the whole body. It is submitted by the learned counsel for the claimant that

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because of the accidental injuries, he has no future promotions in his job. With all his disability he has to survive. It is submitted that certain amount has to be awarded towards disability. Though he is working and drawing the same salary to some extent certain amount is to be awarded towards his physical disability as because,

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the award of compensation would not suffice nor bring back his same physical capacity as he had prior to the accident. He would have got promotion and hike in his salary with other perks, service benefits. Now he is deprived of the same. In view of the facts brought on record by the claimant as well as the injuries being suffered by him, so also the age of the claimant as well as his future prospects, if certain amount is awarded towards loss of income during disability, if global amount is awarded towards loss of income during disability, it would

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meet the ends of justice. As the Motor Vehicles Act is a benevolent legislation. in case of accidental injuries, the injured has to suffer till his life time with all frustrations, discomfort, he has to survive. Therefore, Rs.1,20,000/- if

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awarded under `loss of amenities', it physical disability and other facts, would meet the ends of justice and accordingly awarded.

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Thus, the claimant is entitled for compensation

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under the following heads:

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Sl. No.	Heads	Compensation awarded Rs.
1.	Pain and suffering	60,000=00
2.	Loss of income during laid up period (Rs.9000/-x 2)	18,000=00
3.	Medical expenses including incidental expenses like nutrition, conveyance and other incidental charges	66,000=00
4.	Loss of amenities (including compensation towards disability and other factors)	1,20,000=00
	TOTAL	2,64,000=00

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Thus, the claimant is held entitled for compensation of Rs.2,64,000/-. The Tribunal has awarded interest at the rate of 9% p.a. The said rate of interest appears to be on higher side. Usual practice to award interest is at the rate of 6% p.a. from the date of petition till its realisation. Therefore, to that extent interest rate has to be reduced. The claimant is held entitled for

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compensation of Rs. 2,64,000/- together with interest at

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the rate of 6% p.a. from the date of petition till its realisation.

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In this case, there is no denial with regard to the validity of the insurance policy of the offending vehicle at the time of the accident. No evidence is placed on record that there is no violation of the policy conditions. Therefore, respondent No.1 being the owner of the said has to pay the compensation however, under law of indemnity, appellant-Insurance Company has to indemnify the same.

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Resultantly, I pass the following:-

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ORDER

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(i) Both the Appeals filed by the appellant-claimant and Insurance Company in MFA No. 10301/18 and MFA No.8391/2017 are allowed in part.

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(ii) The award with regard to 'loss of future income' is set aside.

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(iii) Granting interest @ 9% p.a. as the compensation from the date of petition till realisaton is set aside.

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(v) Claimant is held entitled for a total compensation of Rs.2,64,000/together with interest @ 6% p.a. from the date of petition till its realisation as against Rs.2,53,000/-.

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(vi) There shall be modified award in the above terms.

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(vii) Send back the trial Court records along with a copy of this Judgment to the Tribunal forthwith.

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There shall be modified award in the above terms.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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HDK,PSJ List No.: 1 Sl No.: 26 CT: BHK

United India Insurance Company Limited v. Madhu

Case brief

What is this about?

What did the court decide?

United India Insurance Company Limited v. Madhu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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