Manager Vs Mr Marcus Chacko

MANAGER, UNITED INDIA INSURANCE CO. LTD., T.P.HUB, KRISHI BHAVAN BUILDING, 6TH FLOOR, HUDSON CIRCLE, BANGALORE - 560 001. POLICY NO.240300/31/11/01/00008657, VALID FROM 20-02-2012 TO 19-03-2013. REPRESENTED BY REGIONAL MANAGER.

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…APPELLANT

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(BY SRI. RAVISH BENNI., ADVOCATE)

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AND:

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Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA

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MR.MARCUS CHACKO, S/O K.M.CHACKO, AGED ABOUT 61 YEARS, R/AT O.M.INDIA ORGANIZATION, DODDAGUBBI POST, CHIKAGUBBI ROAD, NEAR ALFA ENGINEERING COLLEGE, BANGALORE - 560 077.

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F.NO.58159, CITIZEN CLY, NEAR F.R.BALAIAH NAGAR, OLD ALWAL, SECUNDERABAD, ANDHRA PRADESH.

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HC-KAR

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THE MANAGING DIRECTOR, VRL LOGISTICS LTD, REGD & ADMM OFFICE, BANGALROE ROAD, VARTUR, HUBLI, DISTRICT: DHARWAD PIN - 581 207.

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…RESPONDENTS

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(BY SRI. MOHD SHERIFF., ADVOCATE FOR R-1; V/O DATED:23.09.2015, NOTICE TO R-2 IS D/W)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.4.2015 PASSED IN MVC NO.7454/2012 ON THE FILE OF THE 8TH ADDITIONAL SMALL CAUSES JUDGE, 33RD ACMM, MEMBER, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.4,98,800/WITH INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL REALIZATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the insurer challenging the judgment and award dated 22^nd April 2015, passed by the VIII Additional Small Causes Judge and Motor Accident Claims Tribunal, Bengaluru, (SCCH-5), (for short `Tribunal'), in MVC No.7454/2012.

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NC: 2025:KHC:24488 MFA No. 5514 of 2015

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HC-KAR

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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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The brief facts of the case are that, on 02.09.2012, at around 12:00 a.m. (midnight), the petitioners in this case, along with the petitioners in MVC No.6918/2012, were traveling in a VRL bus bearing registration No. KA-25-C-5482, owned by respondent No.2. Near Choudamma Temple on NH-13 (PuneBangalore Road), at Turuvanur Hobli in Chitradurga Taluk, the driver of the bus drove the bus in a rash and negligent manner. As a result, the bus collided with a lorry bearing registration No. MH-46-H-177. In the said collision, the claimants in both cases sustained grievous injuries.

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The claimant sustained a fracture of the left femur and other injuries. He further contended that he was serving as the Director of Personnel at Operation Mobilization India and was earning Rs.46,000/- per month. He was aged about 58 years at the time of the accident.

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NC: 2025:KHC:24488 MFA No. 5514 of 2015

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HC-KAR

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Due to the injuries sustained, he suffered a permanent disability. With these reasons, he prayed to award compensation of Rs.15,00,000/-.

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Respondent No.1 is the insurer, and Respondent No.2 is the owner of the offending vehicle. Both respondents have filed written statements. Respondent No.1, in its written statement, denied the contents of the claim petition and its liability to pay compensation, citing a violation of the terms and conditions of the insurance policy. With these reasons, prayed to dismiss the claim petition.

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Respondent No.2, the owner of the vehicle, also

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denied the averments of the claim petition. He contended that the accident did not occur due to the negligence of his driver. He further claimed that the claimant sustained only simple injuries and that the compensation claimed was exorbitant. With these reasons, he prayed to dismiss the claim petition.

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HC-KAR

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From the rival contentions of the parties, the

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Tribunal framed necessary issues, for its determination.

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Both the injured persons filed claim petitions in MVC Nos.6918/2012 and 7454/2012. Both matters were clubbed together, and common evidence was recorded. The claimants, to prove their case, examined four witnesses as PWs-1 to 4 (PW-3 and PW-4 related to MVC No.7454/2012) and marked 29 documents as Exhibits P-1 to P-29. The respondents did not lead any oral or documentary evidence.

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The Tribunal after hearing both the parties,

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awarded the following amount of compensation:

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Particulars	Amount in Rs.
Pain and sufferings	1,00,000/-
Medical expenses	1,98,800/-
permanent disability and Loss of	2,00,000/-
amenities
Total	4,98,800/-

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HC-KAR

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The insurer challenged the said judgment and

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award on the ground of unreasonable amount of compensation awarded by the Tribunal.

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I have heard the arguments and perused the materials available on record.

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The facts of the accident and the injuries sustained by the claimant are not seriously in dispute. The Tribunal, after appreciating the evidence, held that the accident occurred due to the rash and negligent driving of the bus, by its driver. The claimant sustained a fracture of the left femur. This finding does not warrant any interference by this Court.

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It is undisputed that the claimant was working as the Director of Personnel at Operation Mobilization India Organization, earning Rs.46,000/- per month. In his crossexamination, he stated that he was still working at the time of the trial. The Tribunal awarded Rs.2,00,000/under the head 'permanent disability and loss of

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HC-KAR

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amenities'. It is true, as per the evidence of PW-4, that the claimant might be suffering from a permanent disability. However, PW-3 did not state that the disability had affected the claimant’s earning capacity or that his salary had been reduced post-accident. The Tribunal did not clarify the basis on which it awarded Rs.2,00,000/- under the said head, and this needs reconsideration. The amount awarded under 'pain and suffering' also appears to be on the higher side. The Tribunal awarded Rs. 1,98,765 towards ‘medical expenses’ . However, the Tribunal has not awarded compensation under the other heads regarding conveyance charges etc.

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The learned counsel for the appellant referred to the documents submitted, pointing out that many hospital receipts were marked as "duplicate." The claimant also produced a Mediclaim policy issued by the New India Assurance Co. Ltd. However, he failed to account the amount of the medical bills submitted and received from the insurer. During cross-examination, it was

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HC-KAR

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repeatedly suggested by the insurer that the claimant had recovered the entire medical expenses under his Mediclaim policy. If he had not received full reimbursement, he should have produced at least a receipt or document from the insurer indicating the amount that was not paid. In the absence of such evidence, the claimant is not entitled to claim the full amount of Rs.1,98,765/- under medical expenses.

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The claimant was about 58 years old at the time of the accident and has not disclosed his retirement age. He suffered a fracture of the left femur. Based on the evidence of PW-4, it appears he may be suffering from a disability that could affect his daily life, especially after retirement. Since no compensation can be awarded under the head 'loss of future earning capacity due to permanent disability' based on the current evidence, a higher amount

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may be awarded under 'loss of amenities and future unhappiness'. Based on the aforesaid discussion, the claimant is entitled for following amount of compensation:

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HC-KAR

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Particulars	Amount in Rs.
Pain and sufferings	50,000/-
Special diet, conveyance and attendant charges	25,000/-
Loss of amenities and future unhappiness	1,50,000/-
Total	2,25,000/-

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The claimant is entitled to interest on the said

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amount at the rate of 6% p.m. from the date of claim petition till its realization. Accordingly, I proceed to pass the following:

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ORDER

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i) The Appeal is allowed in part .

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ii) The judgment and award dated 22^nd April 2015, passed in MVC.No.7454/2012, by the VIII Additional Small Causes Judge and Motor Claims Tribunal (SCCH-5), Bengaluru, stands modified.

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iii) The claimant is entitled to the compensation of Rs.2,25,000/-, as against Rs.4,98,800/- awarded by the Tribunal.

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HC-KAR

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iv) The claimant is also entitled for interest on the said amount at the rate of 6% p.a. from the date of claim petition till its realization.

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v) Learned counsel for the respondent No.1 is directed to deposit the amount within a period of six weeks from the date of award.

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vi. Learned counsel for the appellant submits that appellant has deposited Rs.25,000/- before this Court and Rs.1,75,000/before the Tribunal on 15.10.2015.

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vii) Whatever the amount deposited by the appellant shall be transmitted to the Tribunal. If the amount deposited by the appellant is in excess of the amount awarded to the claimant, then the excess amount shall be refunded to the insurer.

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Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal.

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Sd/- (UMESH M ADIGA) JUDGE

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AMA/List No.: 1 Sl No.: 7

Manager v. Mr Marcus Chacko

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Manager v. Mr Marcus Chacko

Case brief

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