The Divisional Manager Vs Shri. Sandesh S/O Dhakalu Patil

THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE COMPANY LIMITED, RAMDEV GALLI, BELAGAVI-590002, INSURER OF MOTOR CYCLE, REPRESENTED BY ADMINISTRATIVE OFFICER.

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…APPELLANT

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(BY SRI. G. N. RAICHUR, ADVOCATE)

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AND:

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Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench

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SHRI. SANDESH S/O. DHAKALU PATIL, AGE 21 YEARS, OCC: PVT. SERVICE (NOW NIL), R/O. PLOT NO.113, BHAVANI NAGAR, BEHIND JOSHI SCHOOL, 5TH CROSS, MANDOLI ROAD, TILAKWADI, TQ & DIST: BELAGAVI-590003.

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SHRI DINESH S/O. DHAKALU PATIL, AGE 21 YEARS, OCC: PVT. SERVICE, R/O. PLOT NO.113, BHAQVANI NAGAR, BEHIND JOSHI SCHOOL, 5TH CROSS, MANDOLI ROAD, TILAKWADI, TQ: & DIST: BELAGAVI-590003. OWNER OF MOTOR CYCLE.

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…RESPONDENTS (BY SRI. SANTOSH R. KOLKAR, ADV. FOR R1; NOTICE TO R2 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS AND HEAR THE PARTIES AND MODIFY THE JUDGMENT AND AWARD DATED 28.06.2018 PASSED BY THE COURT OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT BELAGAVI AT: BELAGAVI IN M.V.C NO.330/2017 BY EXONERATING THE APPELLANT

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INSURANCE COMPANY FROM LIABILITY AND BY REDUCING THE COMPENSATION AWARDED BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY.

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IN MFA CR. OB. NO. 100136 OF 2018 BETWEEN:

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SHRI. SANDESH S/O. DHAKALU PATIL, AGE ABOUT 21 YEARS, OCC: PVT. SERVICE, (NOW NIL), R/O. PLOT NO.113, BHAVANI NAGAR, BEHIND JOSHI SCHOOL, 5TH CROSS, MANDOLI ROAD, TAILAKWADI, BELAGAVI-590006.

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…CROSS OBJECTOR

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(BY SRI. SANTOSH R. KOLKAR, ADVOCATE)

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AND:

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SHRI. DINESH S/O. DHAKALU PATIL, AGE ABOUT 22 YEARS, OCC: PVT. SERVICE, (NOW NIL), R/O.PLOT NO.113, BHAVANI NAGAR, BEHIND JOSHI SCHOOL, 5TH CROSS, MANDOLI ROAD, TILAKWADI, BELAGAVI-590006. (OWNER OF MOTOR CYCLE).

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THE DIVISIONAL MANAGER, THE NATIONAL INSURANCE COMPANY LIMITED, RAMDEV GALLI, BELAGVI-590002. (INSURER OF MOTOR CYCLE).

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…RESPONDENTS

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(BY SRI. SACHIN B. MALAGE, ADV. FOR R1; SRI. G. N. RAICHUR, ADV. FOR R2)

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THIS MFA CR. OB. IN MFA NO.103237/2018 IS FILED UNDER ORDER 41 RULE 22 OF CPC, PRAYING TO CALL FOR THE RECORDS AND HEAR THE PARTIES AND MODIFY THE JUDGMENT AND AWARD DATED 28.06.2018 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND ADDL. MACT, BELAGAVI IN M.V.C NO.330/2017 BY ENHANCING RS.15,00,000/- (FIFTEEN LAKH ONLY) BY ALLOWING THIS APPEAL WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL AND CROSS OBJECTION COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC-D:5993 MFA No. 103237 of 2018 C/W MFA.CROB No. 100136 of 2018

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

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The appeal in MFA No.103237/2018 is filed by the insurer (respondent No.2) and MFA Cr. Ob No.100136/2018 is filed by the claimant, challenging the judgment and award dated 28.06.2018, passed in MVC No.330/2017 by the I-Addl. Senior Civil Judge and Member, Addl. MACT, Belagavi (hereinafter referred to as “the Tribunal”). Both appeal and cross-objection are taken up together for final disposal.

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For the sake of convenience, the parties herein are referred to as per their ranking before the Tribunal.

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It is the case of the claimants that, on 15.11.2016, the claimant was travelling as a pillion rider on a motorcycle bearing registration No.KA-22/ES-9427. His brother was riding the said vehicle at around 10:30 p.m., the said motorcycle met with an accident, due to rash and negligent riding of the same by its rider by name Dinesh. As a result, the claimant sustained grievous injuries. He was

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admitted to the Hospital, and he spent Rs.1,50,000/towards medical expenses. At the time of accident, the claimant was aged about 20 years and working in a Private Company, and earning Rs.15,000/- per month. Due to the injuries sustained, he is suffering from permanent disability of 30% in the right lower limb. With these grounds, the claimant prayed for the award of Rs.20,00,000/- as compensation.

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Respondent No.1 is the owner and respondent No.2 is the insurer of the motorcycle. Both filed written statements. Respondent No.1 admitted the occurrence of the accident, but denied that it was caused due to the rash and negligent riding of the motorcycle by its rider. He further denied other averments made in the claim petition and prayed for its dismissal.

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Respondent No.2 denied the contents of the claim petition. It contended that the claimant sustained injuries in a different incident and falsely implicated the offending vehicle to claim compensation. The claimant

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contends that date of accident was on 15.11.2016. One of the witness as charge-sheet by Uttam stated before police that accident was on 17.11.2016, it creates doubt about the case of claimant. Respondent No.2 also contended that its liability is restricted to the terms and conditions of the policy of insurance and holding of a valid and effective driving licence, by the rider of vehicle; with these reasons prayed to dismiss the petition.

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Based on the rival contentions of the parties, the

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Tribunal framed necessary issues for its determination.

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To prove his case, the claimant examined two witnesses as PW1 and PW2 and marked 14 documents as Exs.P1 to P14. Respondent No.2 was examined as RW1 and marked 3 documents as Exs.R1 to R3.

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After hearing both parties and appreciating the pleadings and evidence on record, the Tribunal held that the accident occurred due to the rash and negligent riding of the motorcycle on 15.11.2016. The Tribunal assessed the

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age of the claimant as 20 years, his income as Rs.11,000/per month, and his permanent disability at 10% to the whole body. Applying a multiplier of 18, the Tribunal awarded compensation under the head loss of future earning capacity due to permanent disability. Further, considering the other relevant factors, the Tribunal awarded

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the following amounts of compensation:

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Heads	Amount
Loss of earning capacity	Rs.2,37,600/-
Medical expenses	Rs.1,50,609/-
Pain and suffering and shock	Rs.10,000/-
Nutritious food, diet, conveyance and attendant charges	Rs.15,000/-
Loss of income during laid up period	Rs.1,500/-
Total	Rs.4,14,709/-

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Being aggrieved by the award, the insurer preferred an appeal in MFA No.103237/2018, while the claimant filed a cross-objection in MFA Cr.Ob.

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No.100136/2018, seeking enhancement of compensation.

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Heard the arguments of the learned counsel appearing for both parties and perused the materials available on record.

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Learned counsel for the insurer vehemently contends that, according to the claimant, the accident occurred on 15.11.2016. However, one of the prosecution witnesses, as per the charge sheet, gave a statement before the investigating officer that the accident took place on 17.11.2016. This inconsistency between the version of the claimant and the statement of the said witness, which is marked at Ex.R2, creates a serious doubt about the contention of the claimant that he sustained injuries in the accident on 15.11.2016, and not proved. He further contends that the Tribunal assessed the income of the claimant at Rs.11,000/- per month without any supporting evidence. Though the claimant produced a salary certificate, but the author of the said certificate has not been examined. Under these circumstances, the Tribunal ought to have considered the notional income as per the chart

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prepared by the Karnataka State Legal Services Authority (KSLSA). He further submits that there is no evidence to award compensation towards future medical expenses, but the Tribunal without any basis awarded future medical expenses. He further submits that the compensation awarded under other heads does not require any interference or enhancement. For these reasons, he prays that the appeal be allowed.

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Learned counsel for the respondents submits that, in the statement recorded by the Investigating Officer, if there is any mistake in the said statement that cannot be a ground to doubt the date of accident. On the day of the accident itself, the claimant was taken to the hospital and admitted as an inpatient. The records produced before this Court substantiate this fact. A complaint was lodged on 16.11.2016, and the Police registered the case on 17.11.2016. The materials placed on record clearly establish that the accident occurred on 15.11.2016. Therefore, the contention of the insurer is untenable. He

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further submits that, the Tribunal ought to have accepted the salary certificate and assessed the income of the claimant at Rs.11,000/- per month, The amount of compensation awarded under other heads is also on lower side. Therefore, he prays for an enhancement of the compensation.

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Based on the arguments advanced by the

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learned counsel appearing for both parties, the following points arises for determination:

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(i) Whether the Tribunal erred in holding that the claimant sustained injuries in the motorcycle accident?

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(ii) Whether the Tribunal erred in not awarding just and reasonable amount of compensation?

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Re.: Point No.1:

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The claimant is the complainant, and his

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statement was recorded by the Investigating Officer on 17.11.2016 at about 21:15 hours. Ex.P1, the FIR, indicates

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that the information was received at the same time. Other records confirm that the accident occurred on 15.11.2016.

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The claimant was initially admitted to Kale Orthopedic Center on 16.11.2016 at around 00:30 hours. In Ex.R2 i.e., statement of Uttam Ramchandra Mandolkar, it is stated that on 17.11.2016 while he was at home, he received a phone call from Dinesh about accident and he went to spot and found that the claimant sustained grievous injuries. Based on Ex.R2, the insurer contends that, accident is doubtful. Ex.R2 was written by the Police and the police records confirm that the accident actually occurred on 15.11.2016, though FIR was registered on 17.11.2016. The contention of the claimant that the Police inadvertently recorded the wrong date in Ex.R2; that possibility cannot be ruled out. Further, the medical records confirm that the claimant was admitted to the Hospital on the night of 16.11.2016. In light of these circumstances, the case of the claimant cannot be dismissed solely on the basis of Ex.R2. Therefore, the contention of the insurer is untenable. For the reasons discussed above, point No.1 is answered in the

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Negative.

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Re.: Point No.2:

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The primary grievance of the insurer is that, the Tribunal without any basis, assessed the income of the claimant as Rs.11,000/- per month. It is true that the claimant produced Ex.P12, which states that he was earning Rs.12,000/- per month. However, the person who issued this document, was not examined as a witness by the claimant. Consequently, the said document is not proved. There are no supporting materials to substantiate the income. In the light of these facts, the notional income of the claimant has to be re-determined based on the chart prepared by the KSLSA, since the accident occurred in the year 2016, the notional income for the relevant year is Rs.8,750/-, which could be applied to the present case. Accordingly, the income of the claimant is assessed at Rs.8,750/- per month.

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There is no serious dispute regarding the multiplier or the percentage of the disability. PW2 in his evidence, stated that the claimant sustained 30% disability

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in right lower limb. Hence Tribunal took 1/3^rd of the same. The claimant was hospitalized for four days and underwent surgery. According to PW2, implants are still present in the fractured area. Given these circumstances the amounts of compensation awarded under other heads require enhancement. Accordingly, the compensation is recalculated and the claimant is entitled to the following

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amounts of compensation:

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Heads	Amount
Loss of earning capacity	Rs.1,89,000/-
(Rs.8,750/-x 12 x 18 x 10%)
Medical expenses	Rs.1,20,609/-
Pain and suffering and shock	Rs.40,000/-
Nutritious food, diet, conveyance and attendant charges	Rs.25,000/-
Loss of income during laid up period (Rs.8,750/-x 3)	Rs.26,250/-
Loss of amenities	Rs.25,000/-
Total	Rs.4,25,859/-
Less:Compensation awarded by the Tribunal	Rs.4,14,709/-
Enhanced compensation	Rs.11,150/-
Rounded off to	Rs.11,000/-

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The claimant is entitled to an enhanced compensation of Rs.11,150/- which is rounded off to

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Rs.11,000/-, along with interest at the rate of 6% p.a.

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from the date of petition till its realization.

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Learned counsel for the claimant submits that

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future medical expenses should be granted, as the claimant is required to undergo another surgery to remove the implants. However, there is no evidence to support this claim and even PW2 has not stated that removal of the implant is necessary and cost of the said surgery. Therefore, the said contention cannot be considered.

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Based on the foregoing discussion, point No.2 is answered partly in the affirmative, and this Court passes the following:

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ORDER

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(i) The appeal in MFA No.103237/2018 and the cross-objection in MFA Cr. Ob. No.100136/2018 are allowed in part.

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(ii) The judgment and award dated 28.06.2018, passed in MVC No.330/2017

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by the I-Addl. Senior Civil Judge and Member, Addl. MACT, Belagavi is modified.

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(iii) The claimant is entitled to a total compensation of Rs.4,25,859/- instead of Rs.4,14,709/- awarded by the Tribunal along with an enhanced compensation of Rs.11,150/which is rounded off to Rs.11,000/-, with interest at the rate of 6% p.a. from the date of petition till its realization

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