IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.8654/2010(MV) BETWEEN THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., DIVISIONAL OFFICE - 2, MANGALORE BY NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, NO.144, SUBHARAM COMPLEX, M.G. ROAD, BANGALORE - 560 001 BY ITS MANAGER (BY SRI O. MAHESH, ADVOCATE) AND 1. SIDDEGOWDA AGED ABOUT 39 YEARS S/O SIDDEGOWDA RESIDENT OF HINKAL VILLAGE, NO.374, HUNDI BEEDHI, KASABA HOBLI, MYSORE TALUK ... APPELLANT 2. GEORGE ‘D’ SOUZA, MAJOR S/O LOUIS ‘D’ SOUZA, ST. AGNES COLLEGE, BENDORE, MANGALORE DISTRICT, CANARA SOUTH ... RESPONDENTS (BY SRI KIRAN KUMAR, ADVOCATE FOR R1;
R2- SERVICE OF NOTICE DISPENSED WITH AS PER ORDER DTD.07.11.2011) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:20.05.2010 PASSED IN MVC NO.582/2004 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE, MACT, MYSORE, AWARDING A COMPENSATION OF Rs.5,79,229/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is preferred by the Insurance Company challenging judgment and award passed by the Tribunal in MVC No.582/2004 on the file of IV Addl. Senior Civil Judge and MACT, Mysore.
2. I have heard the learned counsel Sri O. Mahesh appearing for the appellant-Insurance Company and the learned counsel Sri Kiran Kumar appearing for respondent No.1/claimant.
3. The case of the claimant is that, on 09.05.2004 he was proceeding on a Hero Honda Splendor motorcycle bearing Registration No.KA-09/Y-3846 from Hinkal to Bendekere Village, Nagamangala Taluk, Mandya District to attend the function of his relatives and while so proceeding on NH-48 at about 10.00 a.m., when he reached near Chakenahally gate and while he was taking right turn after giving signal by putting the indicator, at that time an Ambassador Car bearing Registration No.KA-18/7525 which was being driven by its driver in a rash and negligent manner came from the opposite direction and dashed against his Hero Honda motorcycle. On account of the said accident, he fell down along with the motorcycle and sustained grievous injuries to both the legs, forehead and left hand elbow and he was admitted to the Adhichunchanagiri Hospital and treated as an outpatient and from there he was shifted to J.S.S. Hospital and took treatment as inpatient. During the treatment period, surgery was conducted and rod was inserted. It is the further case of the claimant that he was earning a sum of Rs.7,000/- per month by doing coolie work and also by vending milk and on account of the accident he suffered permanent disability etc.
4. Before the Tribunal, the 1st respondent-claimant got himself examined as PW1 and examined the Doctor who treated him as PW2. Exs.P1 to P101 were marked on behalf of the claimant. The claim was disputed by the Insurance Company, however no evidence was led and no documents were marked in evidence.
5. The Tribunal after considering the evidence and material on record awarded a total compensation of Rs.5,79,229/- with interest at 6% per annum.
6. Assailing the aforesaid judgment passed by the Tribunal, the learned counsel appearing for the appellant-Insurance Company would vehemently contend that the Tribunal was not proper in holding that the accident was solely on account of the rash and negligent driving by the driver of the car. On the other hand, the accident was on account of the rash and negligent riding by the claimant himself. He would point out by placing reliance on the FIR and sketch which are marked at Exs.P2 and P3, respectively, to contend that the FIR was registered against the claimant himself and the sketch also shows that the accident took place when the claimant was trying to take a right turn and therefore he submits that there is contributory negligence on the part of the claimant- respondent No.1.
7. The learned counsel for the appellant also submits that the Tribunal has awarded an excess compensation by duplicating the amount in respect of loss of future earning as well as under the head ‘disability’. He would also contend that the compensation awarded towards future medical expenses is uncalled for, because the implants were already removed. Hence, he seeks to allow the appeal.
8. Per contra, the learned counsel appearing for the 1st respondent-claimant on the other hand submits that the Tribunal has considered the oral and documentary evidence and awarded a just and reasonable compensation and it does not call for any interference.
He submits that though the FIR was registered against the claimant-respondent No.1, however, subsequently the criminal case ended in an acquittal. Therefore, he submits that the rash and negligent riding by respondent No.1 has not been established and merely because FIR was registered against petitioner it cannot be held that there was contributory negligence on his part. Accordingly, he seeks to dismiss the appeal.
9. It is the case of the claimant that on 09.05.2004 while he was riding a motorcycle, namely; Hero Honda bearing registration No.KA-09/Y-3846 and near Chakenahally on Mangalore-Bengaluru NH-48 when he was taking a right turn, the offending vehicle bearing registration No.KA-18/7525 came in a high speed and rash and negligent manner by overtaking a KSRTC bus and dashed against his motorcycle, resulting in the claimant sustaining grievous injuries and permanent disability.
10. Perusal of the FIR goes to show that the driver of the Car lodged a complaint against respondent No.1 and a case was registered in Crime No.63/2004 of Bellur Police Station under Sections 279 and 337 of IPC. It is also stated in the FIR that the injured was immediately shifted to the A.C. Giri Hospital.
11. It is no doubt true that the accident took place when respondent No.1 was trying to take right turn and the FIR was registered against respondent No.1. Before the Tribunal the complainant in the criminal case i.e. the driver of the Car was not examined. The learned counsel for respondent No.1 would submit that the claimant had put the indicator while taking right turn. The suggestion put to PW1 that, ‘he has not put any indicator’ has been denied by him. It is also relevant to see that the criminal case registered against respondent No.1 in CC 404/2004 has ended in an acquittal. The copy of the judgment has been marked as Ex.P87. In view of the same it cannot be conclusively held that there is any contributory negligence on the part of respondent No.1 in causing the accident and therefore the findings of the Tribunal with regard to issue No.1 cannot be held to be erroneous.
12. The case of the claimant is that he was aged about 33 years at the time of accident and he was earning Rs.7,000/- per month by doing coolie work and also by vending milk. According to Doctor - PW2 there is permanent disability of 45% to the whole body due to the accident. The Disability Certificate is marked as per Ex.P97. A perusal of the evidence goes to show that the permanent disability to the right lower limb is 62% and the left lower limb is 38%. The Doctor has assessed the permanent disability at 45% to the whole body. The permanent disability arrived at 45% to the whole body appears to be exaggerated. Considering the medical evidence it can be said that the claimant suffered a total disability of 33% to the whole body.
13. According to the claimant he was earning a sum of Rs.7,000/- per month. The Tribunal has taken his income at Rs.3,300/- per month for calculating the loss of future earning. In the absence of any satisfactory evidence the said income taken by the Tribunal cannot be said to be erroneous. The appropriate multiplier is ‘16’. Accordingly, the claimant is entitled for a sum of Rs.2,09,088/- towards loss of future income due to disability. The Tribunal was thus not proper in awarding a sum of Rs.2,00,000/- for disability and another sum of Rs.1,00,000/- towards loss of future earning.
14. It is the contention of the learned counsel for the appellant that the claimant is not entitled for any future medical expenses since the implants were already removed on 08.07.2005. In this regard, the evidence of Doctor – PW2 goes to show that the injured was admitted at J.S.S. Hospital on 07.07.2005 and he was operated on 08.07.2005 and where the intramedullary rods from right tibia were removed and implants from the left ankle bones were also removed. Later he was treated on out patient basis. There is nothing in the evidence of PW2 to show that the injured required any future treatment. Therefore, compensation awarded under the head future medical expenses is without any basis.
15. The compensation awarded under all the other heads are just and reasonable and does not call for any interference so as to reduce the same. The claimant is therefore entitled for a total compensation of Rs.4,63,317/-. The break up is as under:
Pain and suffering Rs.50,000-00 Loss of enjoyment in life Rs.50,000-00 Loss of future earning Rs.2,09,088-00 Medical and Hospital expenses Rs.63,629-00 Conveyance Rs.20,000-00 Extra nourishment Rs.10,000-00 Attendant charges Rs.4,500-00 Loss of earning due to laid up period Rs.56,100-00 TOTAL Rs.4,63,317-00 16. Hence, the following:
ORDER The appeal is allowed in part.
The 1st respondent/claimant in MVC No.582/2004 is entitled for a total compensation of Rs.4,63,317/- as against Rs.5,79,229/- awarded by the Tribunal, with 6% interest from the date of petition till the final realization.
The amount in deposit shall be transmitted to the jurisdictional Tribunal for disbursement of compensation as per the order passed by this Court.
Excess amount paid to the claimant/1st respondent, if any, shall be refunded to the appellant/Insurance Company.
Sd/- JUDGE SBS*