IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.11240 OF 2012 [MV] C/W MISCELLANEOUS FIRST APPEAL No.11866 OF 2012 MFA No.11240/2012 BETWEEN Bajaj Allianz General Insurance Co. Ltd., Door No.363, Sri Hari Complex, Ramavilas Road Mysore-570 024 Represented by its Asst. Vice President (Claims) ... Appellant [By Smt.H R Renuka, Advocate] AND 1. Santhosh, s/o Venkatesh Aged about 24 years r/o Hosakannambadi Chinakurali Hobli Pandavapura Taluk Now r/a c/o Parameshwarappa D.No.476/A, K R Hospital Road Mysore – 570001.
2. K V Yogendra, s/o Venaktegowda Aged about 32 yrs, r/a D.No.31, MIG-2, Group-1, KHB Colony Hootagally, Mysore-570001.
3. Mahesh C, s/o Chikkanna Adult, R/a Bommanahalli Nagawala Post, Yelwala Hobli Mysore – 570 030. ... Respondents [By Sri Prakasha H C for Lexmatrix, Advocate for R1, Sri B Roopesha, Advocate for R2 and R3) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 4.7.2012 passed in MVC No.282/2007 on the file of the Judge, Court of Small Causes, Civil Judge (Sr.Dn.), MACT, Mysore, awarding a compensation of Rs.1,27,760/- with interest at 6% p.a. from the date of petition till the date of deposit.
MFA No.11866/2012:
BETWEEN:
Santhosh, s/o Venkatesh Aged about 24 years r/o Hosakannambadi Chinakurali Hobli Pandavapura Taluk Now R/a C/o Parameshparappa D.No.476/A, K R Hospital Road Mysore – 570 001. ..Appellant (By Sri Prakasha H C for Lexmatrix, Advocate) AND:
1. The Manager Bajaj Allianz General Insurance Co. Ltd., D.No.363, Sri Hari Complex, Ramavilas Road, Mysore-570024.
2. Mahesh C, s/o Chikkanna Major, r/a Bommenahalli Nagawala Post, Yelwala Hobli, Mysore – 570 130 (owner of the scooter) 3. K V Yogendra s/o Venkategowda Aged bout 32 years R/a D.No.31, MIG-2 Group-1, KHB Colony Hootagally, Mysore – 570 001 (driver of the scooter) .. Respondents (By Smt.H R Renuka, Advocate for R1, Sri B Roopesha, Advocate for R2 and R3) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 4.7.2012 passed in MVC No.282/2007 on the file of the Judge, Court of Small Causes, Civil Judge (Sr.Dn.), MACT, Mysore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These MFAs coming on for final hearing this day, the Court delivered the following:
JUDGMENT MFA No.11240/2012 is preferred by the Insurance Company and MFA No.11866/2012 is filed by the injured/claimant.
2. I have heard the learned counsel appearing for the parties.
3. It is the case of the claimant that on 5.10.2005 at about 8.30 a.m, he was proceeding for masonry work. When he reached near north bank bus stand on the left side of the road, a motorcycle bearing Regn. No.KA-09/EE- 4308 Bajaj CT-100 ridden by its rider in a rash and negligent manner came and hit the claimant, as a result of which, he fell down and sustained severe injuries. He was admitted to K R Hospital for treatment. Surgery was conducted and screw and plates were inserted. It is the further case of the claimant that he was earning a sum of Rs.150/- per day by doing masonry work. He was aged about 18 years. On account of the injuries sustained in the accident, he has suffered permanent disability etc.
4. Claim petition was filed claiming a total compensation of Rs.4,07,000/-. Before the Tribunal, PWs.1 and 2 were examined and Exs.P1 to P36 were marked on behalf of the claimant. The Insurance Company got examined its Legal Senior Executive as RW1 and got marked Exs.R1 to R5.
5. The Tribunal by its judgment and award dated 4.7.2012 awarded a total compensation of Rs.1,27,760/- with interest thereon at 6% p.a. from the date of petition till the date of deposit under the following heads
6, Learned counsel appearing for the claimant contended that the Tribunal has erred in taking the income of the injured claimant at Rs.3,000/- p.m. while calculating the loss of future earning and also erred in taking the disability at 12% as against the evidence of doctor, who has assessed the disability at 46% to the left leg. It is further submitted that the Tribunal has not awarded any amount for the period of treatment, though the injured was an inpatient for a period of 51 days. Accordingly, learned counsel seeks to allow the appeal by enhancing the compensation awarded by the Tribunal.
7. Per contra, learned counsel for the Insurance Company vehemently contended that the injuries said to have been sustained by the claimant is not on account of an accident involving the motor cycle bearing Regn. No.KA- 09/EE-4308. It is contended that there is inordinate delay in lodging the FIR and it is evident from the hospital records which show that the injured was admitted to the hospital by one Lokesh, who is a relative, however, it is stated in the FIR as well as in the evidence of PW1 that he was shifted to the hospital by two persons by name Shekhar and Girish. It is further contended that in MLC register Ex.P37, the registration number of the scooter has been inserted later. It is also contended that the rider of the offending vehicle was holding a learner’s license, but he was not accompanied by any other person while riding the motorcycle. There is violation of Rule 3 of the Central Motor Vehicles Rules, 1989 and therefore, the Insurance Company is not liable to pay the compensation awarded by the Tribunal. Accordingly, learned counsel seeks to allow the appeal filed by the insurance company and dismiss the appeal filed by the claimant.
8. It is the case of the claimant that he sustained injuries in a road traffic accident, which occurred on 5.10.2005 at about 8.30 a.m. involving a motor cycle bearing Regn. No.KA-09/EE-4308 Bajaj CT-100. FIR came to be registered on 22.10.2005. Initially the Tribunal rejected the claim of the appellant herein by its judgment and award dated 19.12.2009 passed in MVC No.282/2007. The claimant filed MFA No.1085/2010 challenging the said judgment and award dismissing the claim petition. This Court by its judgment dated 16.8.2011 set aside the award passed by the Tribunal and remitted the matter to the Tribunal for fresh consideration in accordance with law. It is relevant to see that at para-4 of the judgment of this Court, it is observed as hereunder:
“It is not in dispute that the claimant sustained injuries in the accident and was admitted to the Hospital. The Hospital records shows that the motor cycle dashed against him and the number is mentioned. May be there is a delay in filing the complaint. The delay itself should not be a ground to reject the claim petition. The Tribunal ought to have considered the wound certificate and other circumstances to find out whether the claim of the claimant is a bonafide or not?”
9. Even otherwise, perusal of the FIR goes to show that the delay in lodging the FIR has been explained in the complaint. It is stated that the rider of motorcycle visited the hospital and informed the claimant that he will look after the expenses. However, since he did not turn up, complaint was lodged.
10. It is the contention of the learned counsel for the Insurance Company that the hospital records show that one Lokesh admitted the injured to the hospital and there is insertion of vehicle number in Ex.P37. However, there is no evidence adduced by the insurer to hold that the vehicle number was inserted subsequently in Ex.P37. The fact that the name of one Lokesh is mentioned in Ex.P37 as the person, who got admitted the claimant itself is not a ground to reject the claim of the appellant since the claimant has established that he sustained injuries on account of road traffic accident, which occurred on 5.10.2005 involving the motorcycle in question,.
11. It is also the contention of the learned counsel for the insurer that the rider of motorcycle was holding a learner’s license as could be seen from Ex.P3 and he was not accompanied with any one while riding the motorcycle and there is violation of Rule 3 of the Central Motor Vehicles Rules, 1989. It is not the case of the insurer that the said learner’s license was not valid at the time of accident. There is no evidence on record to show that there was any violation of conditions as contended by the learned counsel. None of the witnesses have been examined to substantiate the contention raised in this regard, hence, for the foregoing reasons, the claimant sustaining injuries in the accident involving the motorcycle bearing Regn. No.KA-09/EE-4308 and the liability of the Insurance Company to pay the compensation is established.
12. According to the claimant, he was earning a sum of Rs.150/- per day by doing masonry work. Apart from his oral testimony, there is no satisfactory evidence to prove that he was earning a sum of Rs.150/- per day. The Tribunal has taken the notional income of the claimant at Rs.3,000/- per month, which is just and reasonable.
13. With regard to the disability suffered by the claimant, the evidence of PW2 goes to show that the injured/claimant has suffered disability to an extent of 46% to the left leg. However, PW2 has not assessed the disability to the whole body. The Tribunal after considering the injuries and the treatment taken by the claimant assessed the functional disability at 12% to the whole body. However, considering the nature of injuries and the treatment taken, I deem it proper to take the disability to the whole body at 15%. The claimant was aged 18 years. Hence, the appropriate multiplier applicable is 18. Hence, the injured/claimant is entitled for a sum of Rs.97,200/- (3000 x 12 x 18 x 15%) as against Rs.77,760/- awarded by the Tribunal, under the head of loss of future earning.
14. Though the Tribunal has calculated a sum of Rs.9,000/- under the head of loss of earning during the period of treatment and rest, however, the same was not awarded. Hence, the claimant is entitled for a sum of Rs.9,000/- under the said head. The compensation awarded towards loss of amenities and enjoyment in life is enhanced from Rs.10,000/- to Rs.20,000/-. The compensation awarded under other heads are just and reasonable and does not call for any interference. Hence, the claimant is entitled for a total compensation of Rs.1,66,200/- as against Rs.1,27,760/- awarded by the Tribunal. Hence, I pass the following:
ORDER MFA No.11240/2012 filed by the Insurance Company is dismissed.
MFA No.11866/2012 filed by the claimant is partly allowed.
The appellant/claimant in MFA No.11866/2012 is entitled for a total compensation of Rs.1,66,200/- with interest at 6% p.a. from the date of petition till the date of deposit.
The Insurance Company shall deposit the amount within a period of four weeks from the date of receipt of a copy of this judgment.
The amount in deposit shall be transmitted to the Tribunal concerned.
Sd/- JUDGE Bkm