Steven Jagadish Pinto Vs S. Kumar

BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, OFFICE AT GROUND FLOOR, NO.31, TBR TOWER, 1^ST CROSS, NEW MISSION ROAD, NEXT TO JAIN COLLEGE AND BANGALORE STOCK EXCHANGE, J.C ROAD, BANGALORE-560 002.

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…RESPONDENTS

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(BY SRI. O. MAHESH, ADVOCATE FOR R2, VIDE ORDER DATED 30.07.2024, SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 6.7.2013, PASSED IN MVC NO.5988/2010 ON THE FILE OF THE 19^TH ADDITIONAL SMALL CAUSES JUDGE, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN MFA NO. 7812/2013

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BETWEEN:

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THE REGIONAL MANAGER BAJAJ ALLIIANZ GENERAL INSURANCE COMPANY LIMITED, GROUND FLOOR, NO.31, TBR TOWER, 1^ST CROSS, NEW MISSION ROAD, NEXT TO JAIN COLLEGE AND BANGALORE STOCK EXCHANGE, J.C. ROAD CROSS, BANGALORE-02 BY IT'S MANAGER.

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...APPELLANT

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(BY SRI. O MAHESH, ADVOCATE)

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HC-KAR

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AND:

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STEVEN JAGADISH PINTO, AGED ABOUT 35 YEARS, S/O PETER PINTO, R/AT NO.254, VIKRAMADITYA ROAD, 6^TH CROSS, LAKSHMIPURAM, K.G. NAGARA, BANGALORE-24

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S.KUMAR AGED 36 YEARS, S/O T. SURESH R/AT NO.126, (NEW NO. 157) 9^TH MAIN, 8^TH CROSS, GOVINDAPURAM, BANGALORE -560 019 AND ALSO AT NO.126, 228/1, 1^ST MAIN ROAD, 7^TH CROSS, CHAMARAJAPETE, BANGALORE-560 018.

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...RESPONDENTS

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(BY SRI. M. SHIVAKUMAR, ADVOCATE FOR R1, VIDE ORDER DATED 02.07.2015, NOTICE TO R2 IS HELD SUFIFCIENT)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 6.7.2013 PASSED IN MVC NO.5988/2010 ON THE FILE OF THE 19TH ADDITIONAL SMALL CAUSES JUDGE, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.3,66,800/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL ITS REALIZATION.

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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 UMESH M ADIGA

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HC-KAR

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ORAL COMMON JUDGMENT

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Both these appeals arise out of judgment and award dated 6^th July 2013, passed by the XIX Addl.Small Causes Judge & M.A.C.T., Benglauru, (SCCH-17), (for short `Tribunal'), in MVC No.5988/2010. Claimant filed MFA.No.5354/2014 and the Insurance Company filed MFA.No.7812/2013.

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

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Brief facts of the case are that, on 06.03.2010, at about 11.45 p.m., the claimant along with his brother-inlaw G.Babu, were going on foot towards Kamakshipalya bus stop, Bengaluru. Claimant was struck by a motorcyclist due to rash and negligent riding of his vehicle Honda Activa motorcycle bearing registration No.KA-01EP-1592; as a result, claimant sustained grievous injuries. Initially he had taken treatment at Thirumala Hospital and later on, he was shifted to St.Theresa's Hospital,

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HC-KAR

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Bengaluru, wherein he was admitted as an inpatient from 07.03.2010 to 28.03.2010. He spent huge amount towards medical expenses. He is suffering from permanent disability. With these reasons, claimant prayed for enhancement of compensation.

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Before the Tribunal, respondent No.2/insurer of the offending motorcycle contended that the said vehicle was falsely implicated in the case just to claim compensation. Claimant must have met with an accident by an unknown vehicle. There is long delay in filing the complaint. It also denied other averments made in the claim petition and prayed to dismiss the claim petition.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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Claimant examined two witnesses as PW-1 and PW-2 and marked 12 documents as per Exs.P-1 to P-12. On behalf of the respondents, one witness was examined as RW-1 and one document was marked as Ex.R-1.

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HC-KAR

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After hearing both parties and appreciating the

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evidence on record, the Tribunal held that accident had taken place due to rash and negligent riding of the motorcycle by its rider and awarded compensation as

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below :

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Pain and agony	Rs.15,000/-
Medical expenses	Rs.33,800/-
Loss of income	Rs.30,000/-
Towards disability	Rs.2,88,000/-
Total	Rs.3,66,800/-

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8. Heard the arguments of the learned counsel

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appearing for the claimant as well as the insurer.

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9. Learned counsel for the appellant/claimant

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submits that the amount of compensation awarded by the Tribunal is on the lower side. No compensation is awarded under other heads. Therefore, prayed to enhance the compensation and dismiss the appeal of the insurer.

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10. Learned counsel for respondent No.2-insurer contends that there is delay of six days in fling the

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HC-KAR

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complaint and it is not properly explained. According to the claimant, his brother-in-law was accompanying him at the time of the accident. He could have lodged the complaint after the accident. There is a correction of date in the wound certificate at Ex.P-4. There is no explanation

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in this regard. Income of the claimant is not proved and relevant witnesses have not been examined. In the crossexamination, PW-1 says that still he was working in the same hotel and earning a sum of Rs.18,000/- per month. Therefore, there is no loss of income due to the accident. With these reasons, prayed to dismiss the claim petition, as well as appeal filed by the claimant and allow its appeal.

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11. Following points arises for consideration:

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(i) Whether the Tribunal is justified in holding that the accident had taken place due to involvement of the two wheeler bearing registration No.KA-01-EP1592?

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(ii) Whether the amount of compensation awarded by the Tribunal is just and reasonable?

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(ii) What order?

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HC-KAR

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Point No.1 :

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12. PW-1 is the claimant. In his evidence, he has reiterated the averments made in the claim petition and has stated that he met with an accident due to rash and negligent riding of the motorcycle by its rider. He has also stated that, at that time, he was unconscious, therefore, he could not file the complaint in time. In his detailed cross-examination, PW-1 explained delay in lodging the complaint. Nothing was brought out to disbelieve his evidence.

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13. It is true that there is delay of about seven days

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in lodging the complaint. As per the claim petition, accident had taken place on 06.03.2010 and FIR was registered on 12.03.2010. In the complaint, it is stated that after the accident, he was unconscious. Thereafter, he enquired his brother-in-law and lodged the complaint. It is true that his brother-in-law could have given the complaint. Why he did not file a complaint is not

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HC-KAR

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explained by the claimant. Claimant was admitted to hospital immediately after the accident. It was the duty of the hospital to intimate MLC case to the concerned police station. It is failure of bother-in-law of claimant, as well as hospital. On that ground, it cannot be held that it is a false case. Looking to the contentions of the parties, it does not appear that it is a false case filed just to claim the compensation. Therefore, contention of respondent No.2-insurer that delay in lodging the complaint is reason to believe that it was false case, is not tenable.

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14. A criminal case was registered against rider of the two wheeler and copies of the complaint, FIR, wound certificate, map of the spot of the incident are produced at Exs.P-1 to P-6. The concerned rider of the vehicle or the owner of the vehicle did not challenge the same. It is not brought out by the insurer that there was collision between owner of the vehicle and claimant. Considering these facts and circumstances, the Tribunal is justified in accepting the case of the claimant that he met with an

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HC-KAR

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accident by the involvement of the offending two wheeler and sustained injuries. Accordingly, I answer point No.1 in the affirmative.

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Point No.2 :

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15. Claimant has produced wound certificate issued by St.Theresa's Hospital at Ex.P-4, which shows that claimant sustained fracture of right femur. Learned counsel for the insurer submits that there is a correction of date in the said document regarding date of the accident.

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It appears, claimant went to the said hospital in the midnight around 1.30 a.m. on 07.03.2010. Probably the concerned person had noted the date of accident held on previous night at 11.15 p.m. as 7.3.2010 and same was altered as 6.3.2010. It is apparent on the fact of record. If he was admitted on 7.3.2010 at 1.30 a.m., then how could accident occurs on 7.3.2010 at 11.15 p.m.? On that basis, accident cannot be doubted.

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HC-KAR

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16. Claimant has produced X-rays at Ex.P-8 and P-12. The wound certificate corroborate the contention of the claimant that he sustained fracture of right femur.

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17. Claimant examined PW-2 - doctor to assess the disability. PW-2 in his evidence, stated that claimant has suffered 38% disability in the right lower limb and 19% disability to the whole body. However, this calculation is incorrect. As per ALEMCO Manual and Central Government Guidelines, the disability of single lower limb, when converted to whole body disability, it should be taken as 1/3^rd of the limb disability. As per the evidence of PW-2, he took 50% of the disability to right lower limb to assess the disability to whole body. Hence, the disability assessed by the Tribunal is proper.

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18. Claimant has stated that he was earning Rs.15,000/- per month at the time of the accident. To prove the said contention, he has produced the certificate dated 28.05.2012 at Ex.P-9 said to have been issued by the hotel wherein he has been serving. According to it, he

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HC-KAR

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was drawing a salary of Rs.1,80,000/- per year. Claimant has not examined the person who issued Ex.P-9. To prove the said document, there are no supporting materials to show that claimant was drawing a salary of Rs.15,000/per month from the said hotel. In view of absence of sufficient materials, it is difficult to believe that his income per month was Rs.15,000/-. Therefore, notional income of the claimant is to be assessed. Following the chart of notional income prepared by the Karnataka State Legal Services Authority, the notional income of the claimant is assessed as Rs.5,500/- per month.

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19. The age of the claimant at the time of the accident was 32 years. The multiplier applicable in this case is `16’ as per the judgment of the Hon'ble Apex Court in the case of Sarla Verma -vs- Delhi Transport Corporation and others, reported in (2009) 6 SCC 121. On the basis of the same, loss of future earning capacity due to permanent disability is to be assessed.

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HC-KAR

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20. Claimant lost his income during laid up period at

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least for a period of three to four months. Claimant is also entitled for the compensation towards medical expenses, loss of amenities, attendant charges, special diet and conveyance charges.

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21. For above reasons, following amount of

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compensation is awarded:

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Particulars	Amount in Rs.
Pain and agony	30,000/-
Medical expenses	33,800/-
Loss of income during laid up period	22,000/-
(Rs.5,500/- x 4))
Loss of future earning capacity due to disability	1,05,600/-
(Rs.5,500/-x12x16x10%)
Loss of amenities	50,000/-
Towards attendant charges, conveyance charges and special diet	25,000/-
Total	*2,66,400*/-
Amount awarded by the Tribunal -	3,66,800/-
Excess amount awarded	1,00,400/-

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HC-KAR

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Thus, claimant is entitled for compensation of Rs.2,66,400/-, rounded off to Rs.2,67,000/- along with interest at 6% p.a. on the said amount from the date of petition till its realization. Accordingly, point No.2 is answered. Since compensation is not enhanced as prayed in MFA.No.5354/2014, denying of interest for the delayed period does not arise.

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Undisputedly, the respondent No.1 being the owner and respondent No.2 being the insurer are liable to pay the said amount.

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In the result, I proceed to pass the following:

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ORDER

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i) MFA.No.5354/2014 and MFA.No.7812/2013 are disposed of.

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ii) The judgment and award dated 6^th July 2013, in MVC.No.5988/2010, passed by the XIX Addl.Small Causes Judge & M.A.C.T., Benglauru, (SCCH-17), stands modified.

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HC-KAR

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iii) The claimant is entitled for * compensation of Rs.2,67,000/-, as against Rs.3,66,800/- awarded by the Tribunal, with interest at the rate of 6% p.a., from the date of petition till its realization.

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v) The respondent No.2 - Insurance Company shall deposit the amount within a period of six weeks from the date of award.

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vi) The remaining portion of the award of the Tribunal shall remain unaltered.

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vi) No order as to costs.

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vii) Draw award accordingly.

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viii) Whatever amount deposited by the Insurance Company before this Court shall be transmitted to the concerned Tribunal for disbursement.

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Registry is directed to send back the records along