The Manager Vs Sri Ganshyam P Patel

THE MANAGER FUTURE GENERAL INDIA INSURANCE CO LTD., 2ND FLOOR, KALABURGI LAND MARK, OPP TO TB GIRLS HIGH SCHOOL, DESHPANDE NAGAR, HUBLI-580029 NOW REPTD BY THE REGIONAL MANAGER, FUTURE GENERAL INDIA INSURANCE CO LTD., HAVING ITS REGIONAL OFFICE, AT 3^RD AND 4^TH FLOOR, NO.31, SHRAVANEE, KRISHNA MANSION, 2^ND BLOCK, JAYANAGAR, BENGALURU-560011

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…APPELLANT

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(BY SRI. A N KRISHNA SWAMY, ADVOCATE)

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Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA

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AND:

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SRI GANSHYAM P PATEL S/O PUTUSHOTHAM K PATEL, AGED ABOUT 26 YEARS, R/AT UMIYA NIVAS, 4^TH CROSS, SADASHIVANAGARA, TUMAKURU-572101

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SRI KANTHILAL K PATEL S/O KARAMSHI B PATEL, AGED ABOUT 49 YEARS, R/AT BALAJI GLASS AND PLYWOOD, RAILWAY STATION ROAD, TUMAKURU-572101

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2 -

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NC: 2025:KHC:4993-DB MFA No. 3657/2018

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SRI HARISH D PATEL S/O DAMJI K PATEL, AGED ABOUT 31 YEARS, R/AT BALAJI GLASS AND PLYWOOD, RAILWAY STATION ROAD, TUMAKURU-572101

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…RESPONDENTS

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(BY SRI. A MOHAMMED TAHIR, ADVOCATE FOR R1 TO R3)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24/01/2018 PASSED IN MVC NO.1557/2014 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE & MACT, TUMAKURU, AWARDING COMPENSATION OF RS.31,04,063/WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALISATION AND ETC.

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THIS APPEAL, COMING ON FOR FINAL 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 C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE C.M. POONACHA)

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The above appeal is filed by the insurer challenging the

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judgment and award dated 24.01.2018 passed in MVC No. 1557/2014 by the II Additional Senior Civil Judge and MACT.,

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Tumakuru¹ .

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The parties will be referred to as per their rank

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before the Tribunal for the sake of convenience.

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1 Hereinafter referred to as the ‘Tribunal’

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It is the case of the claimant that on 06.10.2013 at about 8.15 a.m., when he was traveling in car bearing No.KA06/MC-3699, being driven by respondent No.3 - driver, when the said car was proceeding on NH 4 road, near Nelamangala Taluk, an unknown car came from Bengaluru side and suddenly took U turn. Respondent No.3 suddenly applied the brake to stop hitting the opposite vehicle and thereby the car hit the divider of the road causing the accident in question. Due to the accident, the petitioner sustained grievous injuries. Claiming compensation for the injuries sustained in the accident, the claimant filed MVC No.1557/2014 before the Tribunal arraying the owner, insurer and driver of the car in which he was traveling as respondent Nos.1 to 3 respectively.

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Respondent No.2 – insurer filed statement of objections. Respondent Nos.1 and 3 did not file any objections. Respondent No.2 denied the case of the claimant. Claimant examined himself as PW.1, a Doctor as PW.2 and respondent No.3 - driver as PW.3. Exs.P1 to P20 have been marked in evidence. The 2^nd respondent insurer examined as RW.1. Exs.R1 to R3 have been marked in evidence. The Tribunal, by its judgment and award dated 24.01.2018 partly allowed the

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claim petition and awarded total compensation of `31,04,063/together with interest @ 6% per annum. Being aggrieved, the above appeal has been filed by the insurer.

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Sri A.N. Krishnaswamy, learned counsel appearing for the insurer contends that the claimant himself was driving the insured vehicle and due to his own error, the accident was caused. Hence, the claim petition filed by the claimant Nos.1 to 4 is liable to be rejected. It is further contended that the compensation awarded by the Tribunal is on the higher side inasmuch as the compensation awarded towards medical expenses and future loss of income as also on other heads were excessive.

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Per contra, Sri Mohammed Tahir, learned counsel appearing for respondent Nos.1 to 3 submits that the insurer had not adduced any evidence to demonstrate that the claimant was driving the car and hence, the contention put forth by the insurer in the present appeal is unsustainable. It is further contended that the quantum of compensation awarded is just and proper.

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The submissions of both the learned counsels have

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been considered and the material on record including the records of the Tribunal have been perused. The questions that arise for consideration are;

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i) Whether the finding of the Tribunal on negligence is just and proper?

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ii) Whether the quantum of compensation awarded by the Tribunal is excessive?

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Reg: Point No.(i):

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It is forthcoming that consequent to the accident, FIR (Ex.P1) has been lodged and the police authorities, after investigation filed charge sheet (Ex.P3) against the driver of the car.

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In support of its contention, the insurer had examined its officials as RWs.1 to 3. The Tribunal while considering the testimony of the RWs.1 to 3 has noticed that RW.3 has admitted that no internal investigation has been carried out by the 2^nd respondent- insurer with regard to the manner of occurrence of the accident. That the driver of the vehicle to the accident in question has been examined as

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PW.3. It has been further held that having regard to the fact that the charge sheet has been filed by the jurisdictional police authorities, the case put forth by the claimant that the insured car was being driven by the driver/respondent No.3 and that the accident was caused due to the rash and negligent driving by the said driver requires to be accepted.

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It is forthcoming that the insurer not having adduced any independent evidence and not having carried out any investigation as to the manner of the accident and the police authorities having filed the charge sheet against respondent No.3/driver, the appellant has not made out any ground to interfere with the finding recorded by the Tribunal with regard to the negligence. Hence, question No.1 framed for consideration is answered in the Negative.

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Reg. question No.(ii):

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It is forthcoming from the wound certificate (Ex.P6), discharge summary (Ex.P8) as well as the testimony of the Doctor (PW.2) that the claimant sustained fracture of D8, D9 and D10 vertebra with parapeagia. PW.2 has deposed regarding the treatment undergone by the claimant and has

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stated that the claimant was admitted at Vikram Hospital, Bengaluru on 06.10.2013 and that the claimant had burst fracture of D8, D9 and D10 vertibra with Paraplegia. It is further deposed that the claimant underwent posterior decomposition of D9 with posterior stabilization from D6 to D12 and discharged from Vikram Hospital on 17.10.2013. It is also deposed that the claimant was admitted at Christian Medical College, Vellore from 03.11.2013 to 21.12.2013 and has also taken physiotherapy treatment at District Hospital, Tumakuru on various dates. PW.2 has deposed that the whole body disability of the claimant is 80%.

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The Tribunal while considering the injuries sustained by the claimant has noticed that the medical bills produced were for a total sum of `8,29,963/- and accordingly awarded the said sum towards medical expenses. Further, the Tribunal has, noticing the testimony of the doctor, assessed the whole body disability at 80%. The claimant was aged 19 years and was a B.Com student. Considering the nature of injuries sustained and the period of treatment, the Tribunal has awarded compensation on the following heads:

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1	Towards Medical and other expenses including conveyance expenses	`8,29,963/-
2	Towards pain and Agony	`1,50,000/-
3	Towards attendant charges	`57,250/-
4	Towards food & nourishment	`57,250/-
5	Towards loss of future income	`12,09,600/-
6	Towards loss of life expectations and enjoyment of future life	`5,00,000/-
7	Towards loss of marital prospectus	`3,00,000/-
	Total	`31,04,063/-

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Considering the fact that the claimant has sustained fracture to vertebra, which has resulted in paraplegia as also the fact that the claimant was treated as an inpatient for nearly 60 days and has suffered disability of 80%, the quantum of compensation awarded by the Tribunal is just and proper and the appellant has failed to make out any ground for any reduction of the same.

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In view of the aforementioned, the appeal is dismissed.

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The judgment and award dated 24.01.2018 passed in MVC No. 1557/2014 by the II Additional Senior Civil Judge and MACT., Tumakuru is confirmed. The amount in deposit as

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