M/S Tata Aig General Insurance Company Ltd. Vs Palani Swamy

REPRESENTED BY BANGALORE OFFICE 2^ND FLOOR JP & DEVI JAMBUKESWAR ARCADE, NO. 69, MILLERS ROAD, BANGALORE - 560 052 REPRESENTED BY REGIONAL CLAIMS MANAGER

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…APPELLANT

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(BY SRI. RAVI S SAMPRATHI, ADVOCATE)

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AND:

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Digitally signed by NIRMALA DEVI

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Location: HIGH COURT OF KARNATAKA

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PALANI SWAMY S/O MONU SWAMY, AGED ABOUT 55 YEARS RESIDENT OF NEAR GOUSIYA MASJID, MONTUGOLI, BANTWAL TALUK.

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B. ABDUL KHADER S/O ABUBAKER AGED ABOUT 53 YEARS, H.NO. 3-127, BOLIYAR POST, MANGALURU TALUK.

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…RESPONDENTS (BY SRI. G RAVISHANKAR SHASTRY, ADVOCATE FOR R1 NOTICE TO R2 IS HELD SUFFICIENT V/O DTD 06.01.2022)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.11.2016 PASSED IN MVC NO.758/2012 ON THE FILE OF THE MEMBER MACT-III & II ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K. MANGALURU

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HC-KAR

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AWARDING AMOUNT OF RS. 1,68,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION 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 MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The present appeal is filed by the insurer under Section 173(1) of the Motor Vehicle Act, 1988¹ challenging the judgment and award dated 11.11.2016 passed in MVC No.758/2012 by the II Additional District Judge and III Additional Motor Accident Claims Tribunal, Mangaluru (DK)² .

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

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The relevant facts in a nutshell leading to the present appeal are that on 21.02.2012 when the claimant was walking on the side of the road, a motor cycle bearing No.KA19-EA-7193 came in a rash and negligent manner and hit the claimant causing the accident in question, wherein the claimant

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1 Hereinafter referred as to ‘Act’

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2 Hereinafter referred as to ‘Tribunal’

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sustained injuries. Claiming compensation for the injuries, the claimant instituted claim proceedings arraying the owner and insurer of the offending motor cycle as respondent Nos.1 and 2. Respondent No.1 remained ex-parte before the Tribunal. The claim proceedings was contested by respondent No.2 – insurer. The claimant was examined as PW.1. The Investigating Officer was examined as RW.1 and the representative of the insurer was examined as RW.2. The Tribunal vide its judgment and award dated 11.11.2016 partly allowed the claim petition and awarded a total compensation of `1,68,000/- together with interest at 6% per annum and directed the insurer to pay the compensation awarded. Being aggrieved, the present appeal is filed by the insurer.

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Heard submissions of learned counsel Sri Ravi S Samprathi appearing for the appellant – insurer and learned counsel Sri G Ravishankar Shastry appearing for respondent No.1 – claimant.

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It is a vehement contention of learned counsel for

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the insurer that the insured vehicle has been wrongly implicated in the accident and the same is evident from the

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statement made by PW.1 in the cross-examination, where PW.1 has stated that the vehicle was a “Hero Honda” motor cycle where as the other material on record would indicate that the insured vehicle was a “Bajaj Discovery” motor cycle. Reference is also made on the other material on record including Exs.P3, 5 and 8. Reference is made to chargesheet (Ex.P8) and it is contended that the vehicle in question mentioned in the chargesheet was KA-19-EA-2193 whereas the insured vehicle was KA-19-EA-7193. It is further contended that the doctor has not been examined and that the quantum of compensation is on the higher side. Hence, learned counsel seeks for allowing of the above appeal and granting of the relief sought for.

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Per contra , learned counsel for claimant justifying the finding of the Tribunal on negligence contends that the Investigation Officer (RW.1) in his cross-examination has categorically stated that the number of the vehicle has been erroneously written as ‘KA-19-EA-2193’ in the chargesheet (Ex.P8) and that the actual number of the vehicle is ‘KA-19-EA7193’ which is the insured vehicle. It is further contended that the statement of PW.1 in the cross-examination that the vehicle

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in question was a “Hero Honda” motor cycle is a stray sentence and the same will not aid the case of the appellant – insurer. It is further contended that the quantum of compensation awarded by the Tribunal is just and proper. Hence, learned counsel seeks for dismissal of the above appeal.

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The contentions put forth by both the learned

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counsel have been considered and the material on record, including the records of the Tribunal have been perused.

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The questions that arise for consideration are:

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i. Whether the finding of the Tribunal on negligence is erroneous and liable to be interfered with?

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In the event the question (i) is answered in the negative

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the further question that would arise for consideration is:

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

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Reg. Question (i) :-

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The claimant in the claim petition has specifically described the offending vehicle as a motor cycle bearing

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HC-KAR

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registration No.KA-19-EA-7193. PW.1 in his affidavit by way of examination-in-chief has also asserted the averments made in the claim petition regarding the offending vehicle. It is evident from the motor vehicles accident report (Ex.P5) that the vehicle described therein was a Bajaj discover motor cycle bearing No. KA-19-EA-7193 which was red black in colour. It is forthcoming

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from the police notice (Ex.P3) issued to respondent No.1 owner of the vehicle that the vehicle mentioned therein is motor cycle bearing registration No.KA-19-EA-7193. Although, in the chargesheet (Ex.P8) the registration number of the vehicle is mentioned as KA-19-EA-2193, the Investigating Officer (RW.1) in his crossexamination has stated that the number of the vehicle involved in the accident was ‘KA-19-EA-7193’ and that, the number in the chargesheet (Ex.P8) is erroneously mentioned as ‘‘KA-19-EA-2193’’.

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The Tribunal upon appreciation of the oral and documentary evidence on record has recorded a finding that the insured vehicle was involved in the accident. Upon reappreciation of the material available on the record, it is clear

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that although, the number of the insured vehicle is erroneously mentioned in the chargesheet (Ex.P8) as ‘KA-19-EA-2193’, the same has been adequately explained by the Investigation Officer (RW.1), that said number is erroneously mentioned and that the actual number is ‘KA-19-EA-7193’. The said number ‘KA-19-EA-7193’ being forthcoming from all the other material on record, the findings of the Tribunal that the insured vehicle was involved in the accident is just and proper.

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The vehement reliance placed by the learned counsel for the insurer on the statement made by PW.1 in the cross-examination that the vehicle involved is a “Hero Honda” motor cycle will not aid the case of the insurer, since, the said statement of PW.1 is required to be construed as a stray sentence, having regard to all other material available on record. In any event, the aspect that a Hero honda motor cycle was involved in the accident is not forthcoming from any other material on record.

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In view of the discussion made above, question (i) framed for consideration is answered in the negative .

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Reg. Question (ii) :-

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The claimant sustained fracture of tibia and fibula as is forthcoming from the wound certificate (Ex.P4) as well as the discharge summary (Ex.P9). The said documents further discloses that the claimant was treated as an inpatient from 21.02.2012 to 25.02.2012 i.e., for a period of five days. It is also forthcoming that the treatment for fracture of the leg was splint application with nailing of the left tibia. The claimant has not examined any doctor to prove the disability suffered, if any. The claimant is a coolie by avocation and it is averred that he was earning 6,000/-per month. Hence, the Tribunal has rightly assessed the income of the claimant at 6,000/- per month.

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Having regard to the aforementioned, the compensation is re-assessed as follows:

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i. The Tribunal has awarded `50,000/- towards pain and suffering which is just and proper.

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ii. The Tribunal has noticed that the claimant has produced medical bills for a total sum of `45,514/-. Hence, the

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Tribunal has awarded sum of 50,000/- towards the medical expenses and other incidental charges. The compensation awarded towards incidental charges is required to be enhanced. Hence, it is just and proper that the compensation towards medical expenses and other incidental charges are re-assessed as 55,000/-.

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iii. The Tribunal has awarded compensation of 50,000/- towards loss of amenities and future comfort. However, in the absence of any doctor being examined it is just and proper that the said compensation be re-assessed as 20,000/-.

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iv. The Tribunal has assessed the period of treatment as three months. The claimant having been admitted as an inpatient only for five days, it is just and proper that the period of treatment be taken as two months and the compensation be re-assessed as (6000 X 2) =12,000/- instead of `18,000/- as assessed by the Tribunal.

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In view of the aforementioned, the compensation re-assessed is as follows:

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Sl.No	Compensation Head	Amount Awarded by the Tribunal (`)	Amount awarded by this Court (`)
1	Pain and suffering	50000.00	50000.00
2	Medical expenses and other incidental expense	50000.00	55000.00
3	Loss of future comfort and amenities in life	50000.00	20000.00
4	Loss of income during the laid up period	18000.00	12000.00
	Total	168000.00	137000.00

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Accordingly, question (ii) framed for consideration is answered in the affirmative . The compensation awarded by the Tribunal is re-assessed as 1,37,000/- and hence, is reduced by (168000/- - 137000/-) 31,000/-.

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In view of the aforementioned, 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 11.11.2016 passed in MVC No.758/2012 by the II Additional District Judge and III Additional Motor Accident Claims Tribunal, Mangaluru (DK), is hereby modified to the extent stated herein. In all other respects, the

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judgment and award of the Tribunal remains unaltered;

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iii) The claimant is entitled to a total compensation of `1,37,000/- together with interest at 6% per annum from the date of the petition till the date of payment;

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iv) Amount deposited by the appellant in the above appeal together with the records shall be transmitted the Tribunal forthwith;

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v) The appellant/insurer shall deposit the balance compensation together with accrued interest, if any, within a period of six weeks;

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vi) Upon such deposit, the compensation together with interest accrued thereupon is to be disbursed to the claimant in terms of the award of the Tribunal;

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vii) The Registry to draw the modified award accordingly;

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No costs.

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SD/(C.M. POONACHA) JUDGE

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PNV - List No.: 1 Sl No.: 78

M/S Tata Aig General Insurance Company Ltd. v. Palani Swamy

Case brief

What is this about?

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M/S Tata Aig General Insurance Company Ltd. v. Palani Swamy

Case brief

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