IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2017 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.597/2011(MV) C/W M.F.A.No.9673/2010 AND M.F.A.No.9674/2010(MV) IN M.F.A.No.597/2011:
BETWEEN MR CONRAD PAUCHAR S/O VALENTINE PAUCHAR R/AT NO.28/2, 1ST FLOOR 7TH CROSS, 11TH MAIN, M K GARDEN, R S PALYA BANGALORE. ... APPELLANT (BY SRI MOHAMMED SHERIFF, ADVOCATE) AND 1. THE REGIONAL MANAGER THE ORIENTAL INSURANCE COMPANY LTD., NO.44/45, LEO SHOPPING COMPLEX, FM CARIAPPA ROAD, BANGALORE – 25.
2. SRINIVASAN N S/O NAGARAJAN R/AT OLD NO.153-A NEW NO.1/99C MARIAMMAN KOIL STREET N KOSAVAMPATTY (P.O.) NAMAKKAL (D) 637001 TAMIL NADU. ... RESPONDENTS (BY SRI A RAVISHANKAR, ADVOCATE FOR R1 NOTICE TO R2 IS DISPENSED WITH VIDE ORDER DATED 24.02.2014,) THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED: 5.6.2009 PASSED IN MVC NO.8173/2007 ON THE FILE OF I ADDITIONAL SMALL CAUSE JUDGE & MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.9673/2010:
BETWEEN MRS.PIA LAWRENCE W/O MARK, H LAWRENCE, MAJOR R/A No.2/1, 7TH CROSS JANIKIRAM LAYOUT R.S.PALYA BENGALURU – 53. ... APPELLANT (BY SRI MOHAMMED SHERIFF, ADVOCATE) AND 1. THE REGIONAL MANAGER THE ORIENTAL INSURANCE COMPANY LTD., No.44/45, LEO SHOPPING COMPLEX, FM CARIAPPA ROAD, BANGALORE – 25.
2. SRINIVASAN N S/O NAGARAJAN R/AT OLD No.153-A NEW No.1/99C MARIAMMAN KOIL STREET N KOSAVAMPATTY (P.O.), NAMAKKAL (D)- 637001 TAMIL NADU. ... RESPONDENTS (BY SRI A RAVISHANKAR, ADVOCATE FOR R1 NOTICE TO R2 IS DISPENSED WITH VIDE ORDER DATED 09.07.2015,) THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE COMMON JUDGMENT AND AWARD DATED:05.06.2009 PASSED IN MVC No.8174/2007 ON THE FILE OF THE I ADDITIONAL SMALL CAUSE JUDGE AND MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.9674/2010:
BETWEEN MR.MARK.H.LAWRENCE S/O.JEFF LAWRENCE R/A No.2/1, 7TH CROSS JANIKIRAM LAYOUT R.S.PALYA BENGALURU – 53. ... APPELLANT (BY SRI MOHAMMED SHERIFF, ADVOCATE) AND 1. THE REGIONAL MANAGER THE ORIENTAL INSURANCE COMPANY LTD., No.44/45, LEO SHOPPING COMPLEX, FM CARIAPPA ROAD, BANGALORE – 25.
2. SRINIVASAN N S/O NAGARAJAN R/A OLD No.153-A NEW No.1/99C MARIAMMAN KOIL STREET N KOSAVAMPATTY (P.O.), NAMAKKAL (D)- 637001 TAMIL NADU. ... RESPONDENTS (BY SRI ASHOK N NAYAK, ADVOCATE FOR R1 NOTICE TO R2 IS DISPENSED WITH VIDE ORDER DATED 28.01.2014) THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE COMMON JUDGMENT AND AWARD DATED:05.06.2009 PASSED IN MVC No.8172/2007 ON THE FILE OF THE I ADDITIONAL SMALL CAUSE JUDGE AND MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT With the consent of learned counsel for both the sides, appeals are taken up for final disposal.
These three appeals by the appellants/petitioners are directed against the judgment and award dated 05/06/2009 passed in MVC Nos.8173/2007, 8174/2007 and 8172/2007 by the I Additional Small Causes Judge and MACT, Bangalore, (SCCH-11), for enhancement of compensation.
2. In order to avoid confusion and overlappings, parties are referred to with reference to their respective rankings as stood in the Tribunal.
3. All the three petitions are connected to the incident that occurred on 15.10.2007, at about 6.45 p.m., when petitioners were proceeding in a car bearing Registration No.KA.33.N.1111 on Bangalore-Salem National high way. At that time, driver of the lorry bearing Registration No.TN.28.AA.9784 came in a rash and negligent manner and dashed against the petitioners’ car from opposite direction. Due to which, all the inmates of the car sustained grievous injuries. They were taken to nearby hospital for first aid and later, shifted to Hosmat Hospital, Bangalore, and they spent considerable amount towards medical and other incidental expenses. Therefore, they have filed claim petitions claiming compensation of Rs.5,00,000/-, each.
4. Insurance Company has filed written statement.
5. The learned Member adjudicated the matter after considering the accident, negligence, injury, disability and entitlement for compensation.
6. Petitioners in MVC Nos.8173/2007, MVC 8174/2007 and 8172/2007 have sustained the following injuries:
MVC No.8173/2007:
(i) Dislocation of right hip joint;
(ii) Fracture of roof of right acetabulum and (iii) Fracture of anterior and posterior acetabulum on posterior hip of acetabulum and fracture of femur.
MVC No.8174/2007:
Fracture of right femur MVC No.8172/2007:
(i) Fracture of posterior hip of right acetabulum;
(ii) Dislocation of right hip joint;
(iii) Fracture of ulnar (iv) Fracture of neck of 3rd and 4th metatarsal of right foot;
(v) Fracture of 7th ,8th and 9th ribs on the left side and (vi) Lacerated wound 5 x 3 cms.
7. The learned Member has partly allowed the claim petitions, granting the compensation as under:
In MVC No.8173/2007 :Rs.1,63,500/- (MFA No.597/2011) In MVC No.8174/2007 :Rs.1,85,000/- (MFA No.9673/2010) In MVC No.8172/2007 :Rs.3,78,200/- (MFA No.9674/2010) 8. Learned counsel for appellants would submit that the learned Member without noticing the nature of injuries and their impact and reason for accident, proceeded to hold composite negligence on the part of the driver of the car in which petitioners were traveling and the operative portion of the judgment is as under:
“Respondent No.1 and 2 are jointly and severally held liable to pay the compensation to the petitioners to an extent of 75% of the total compensation. However, the respondent No.1 being the insurer in all the petitions is hereby directed to deposit 75% of the total compensation amount with proportionate interest in all cases within two months from the date of the said order.”
9. Learned Member ordered for apportioning 75% of total compensation on the respondent No.1, who is the insurer and keeps quite regarding remaining 25% of compensation. No doubt, if the Member has really meant 25% compensation was to be clamped on the car which includes either driver or the owner or the insurer of the said vehicle. When things are not certain and specific about the total amount of compensation, there must be application of mind regarding apportionment of compensation with specific reasoning. The things cannot be kept in vacuum. Here, the appeals are preferred by the injured persons claiming enhancement of compensation on all the heads. No doubt, that the Tribunal has come to the conclusion that accident occurred, injuries were sustained by the petitioners in the respective cases suffered disability are entitled for compensation.
10. The learned Member does not assign reasons regarding future income that were lost if any. Assessing loss of income during treatment period at Rs.40,000/- and considering four months thereby gives a clue of the monthly notional income. But has not been dealt as per the recognized principles regarding assessment on future income.
11. Learned counsel for appellants would submit that negligence has to be saddled exclusively on the owner and insurer of the lorry. It does appears to be fair and just adjudication to deal with the lapses committed by the Member.
12. The judgment and award passed by the learned Member in MVC Nos.8173/2007; 8174/2007 and 8172/2007 are not in consonance with the principles laid down by the statute and the irony is, the Tribunal after clamping 75% negligence on the owner and insurer of the lorry, remained silent about the remaining 25% is concerned and keeps it in abeyance by not attributing the same either on the person or on the institution whichever is applicable. This is not proper. The compensation does not cover the compartment of ‘loss of future income’ if the petitioners had any such income and lost on account of accident. Thus, the judgment and award passed by the learned Member in all the three appeals suffer from infirmity, lack of complete and effective adjudication of the matter and keeping in mind the concept of ‘just compensation’ they are liable to be set aside and matters require reconsideration afresh by the Tribunal.
13. Hence, I pass the following:
ORDER (i) Appeals filed by the petitioners/appellants are allowed;
(ii) Judgment and award dated 05/06/2009 passed in MVC Nos.8173/2007, 8174/2007 and 8172/2007 by the I Additional Small Cause Judge and MACT, Bangalore, (SCCH-11), are hereby set aside and matters are remanded to the jurisdictional Tribunal with a direction to consider the principles regarding granting compensation. More particularly when the Tribunal finds contributory negligence.
(iii) Since the accident is of the year 2007, the Tribunal shall dispose of the same, expeditiously, not beyond an outer limit of three months from the date of receipt of the certified copy of this judgment.
(iv) In order to avoid wastage of additional time, the appellants and respondents and the parties who are necessary shall appear before the Tribunal on 04/10/2017 without waiting for further notice by the Tribunal.
(v) The parties shall be at liberty to adduce fresh oral or documentary evidence as may be.
(vi) Further, I.A.No.1/2014 filed by the appellant for production of additional documents shall also be disposed of in the wisdom of the Tribunal.
(vii) No orders as to costs.
Sd/- JUDGE tsn*