IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JANUARY 2019 BEFORE THE HON’BLE MR.JUSTICE K. SOMASHEKAR Miscellaneous First Appeal No. 6052 of 2015 BETWEEN:
THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED DIVISIONAL OFFICE SHIVA NARADAMUNI PLAZA MCC B BLOCK, DENTAL COLLEGE ROAD DAVANAGERE BY NATIONAL INSURANCE CO LTD REGIONAL OFFICE NO 144 SUBHARAM COMPLEX, M G ROAD BANGALORE - 560001 (BY SRI O. MAHESH, ADV.) AND 1. SUNILKUMAR @ SUNIL AGED ABOUT 22 YEARS S/O KOTAPPA DRIP WORKER KONDANAKOVI VILLAGE NOW R/O HIREVEBENNUR VILLAGE CHITRADURGA TALUK – 577 501 2. B NARESH MAJOR S/O BHEEMAPPA ... APPELLANT R/O KONDANKOVI DAVANGERE DISTRICT – 577 002 ... RESPONDENTS (BY SRI SHASHIDHARA, ADV. FOR R2 R1-SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.04.2015 PASSED IN MVC NO.718/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, C.J.M & MACT-III, CHITRADURGA, AWARDING COMPENSATION OF RS.3,63,000/- WITH INTEREST @ 9% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS MFA COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the appellant and the learned counsel for the respondent No.2. There is no representation made for respondent No.1.
2. This appeal is preferred by the appellant- Insurance Company against the judgment and award passed by the court below in MVC No.718/2013 dated 13.04.2015 by the Principal Senior Civil Judge, CJM & MACT-III, Chitradurga, wherein the court below has awarded compensation in a sum of Rs.3,63,000/- with interest @ 9% p.a. from the date of petition till the date of deposit. In that petition, respondent Nos.1 and 2 were jointly and severally held liable to pay the compensation. It was also directed that respondent No.2 shall deposit the compensation amount within a month.
3. The factual matrix of the appeal is as under:
That on 03.03.2013 at about 8 p.m. the petitioner/claimant was proceeding on his motorcycle bearing Reg.No.KA-17/EF-0571 as pillion rider from Malemachikere to Kondanakovi Village. In between Marikunte Cross and Bilchodu Village, the rider of the aforesaid motorcycle rode the same in a rash and negligent manner without observing traffic rules and dashed against an unknown vehicle and caused accident due to which the petitioner sustained fractured injuries. Soon after the accident, he was taken to C.G.Hospital, Davanagere and admitted as inpatient for 3 days and thereafter he was shifted to KMC Hospital, Manipal where he was admitted as inpatient till 01.04.2013. The claimant underwent surgery, fixation was done, and even after discharge he was taking follow up treatment and incurred more than Rs.5,00,000/- towards his treatment. But the injuries have not been completely cured and has caused permanent disability. On account of the same he is unable to do his drip irrigation work as he was doing earlier and earning Rs.3,000/- p.m. and maintaining his family. Due to the injuries sustained, he has lost his earning capacity. On all these grounds, the petitioner/claimant filed the claim petition before the learned Tribunal seeking compensation.
The 1st respondent being the rider-cum-owner of the offending motorcycle, the 2nd respondent being the insurer, on receipt of notice issued to them in that claim petition, appeared through their counsel.
The 1st respondent filed his objection in detail by denying all the contentions as taken in the claim petition. He has disputed the entire averments made in the claim petition and contended that all the averments made in the claim petition have to be proved. He has further contended that the 2nd respondent is liable to be indemnified.
The 2nd respondent – Insurance Company has filed a detailed objection wherein it has denied the entire averments made in the claim petition. It is further contended that the alleged accident occurred due to the rash and negligent driving of the driver of one TATA Ace auto which is not known to anybody and accordingly police had submitted ‘C’ report. Hence, according to the 2nd respondent, 1st respondent is not responsible for the alleged accident.
Based upon the pleadings, the learned Tribunal has framed issues. Thereafter in order to establish the case of the petitioner/claimant, he has filed his affidavit evidence as PW-1 and has also examined Dr. Venkatasivareddy as PW-2 and got marked Ex.P1 to Ex.P58. The respondent No.2 in support of their contention has examined one Mr. Palanna as RW-1 and got marked Ex.R1 to Ex.R4.
Subsequently, on hearing the arguments advanced by the learned counsel for the petitioner and the learned counsel for the respondents, and on evaluation of the evidence and perusal of the documents produced, the court below awarded compensation in a sum of Rs.3,63,000/- under different heads, with interest @ 9% p.a.
4. The main contention taken by the learned counsel for the respondent No.2 in the claim petition is that the police has submitted a ‘C-report’ relating to the accident and that 1st respondent who is the owner-cum- rider of the offending vehicle is not at all responsible for the alleged accident. It is further contended that the 2nd respondent is not liable to pay any compensation and that the petitioner/claimant has filed the claim petition by creating material in order to secure compensation. This aspect has not been appreciated by the court below.
5. The learned counsel for the petitioner/claimant has placed reliance on 2008(3) TAC 94 (KAR) DB in the case of NATIONAL INSURANCE COMPANY LTD. -VS-
HONNAPPA & ORS. wherein it is held that if anybody sustained injuries in an accident, by using the vehicle, that is sufficient to maintain the petition u/s 163(3) of the Act. But these things have to be considered by the court below for awarding compensation. It is not correct position of fact that the accident has not been committed by the driver of offending motorcycle.
6. The learned counsel for the appellant- Insurance Company submits that the court below awarded compensation which is against the schedule maintained relating to Section 163(A) of the M.V.Act. Though the rider of the motorcycle is not responsible for the accident, but the vehicle was used at the time of the accident which was hit by another vehicle. But the observation made in the impugned judgment rendered by the court below by awarding compensation by considering the evidence adduced, is not in accordance with law. Therefore in this appeal the entire evidence requires to be re-appreciated. Even the aspect of the monthly income of the petitioner/claimant at Rs.3,000/- p.m. taken by the court below, and that 20% of the annual income of Rs.36,000/- comes to Rs.7,200/- in arriving to the future loss of income; and the permanent disability taken at 20% to the whole body at paragraph 15 of the impugned judgment, also needs to be re-appreciated. Learned counsel for the appellant has further contended that the interest awarded @ 9% p.a. is also exorbitant, without any material. By urging all these grounds, the learned counsel for the appellant seeks for setting aside the impugned judgment in MVC No.718/2013 awarding compensation of Rs.3,93,000/-.
7. Per contra, the learned counsel for the respondent No.2 has taken me through the evidence of PW-1 and PW-2 and so also the observation made in the impugned judgment wherein the court below has appreciated the entire evidence on record and has passed the impugned judgment awarding compensation and holding respondent Nos. 1 and 2 jointly and severally liable to pay the compensation. The learned counsel further submits that the National Insurance Company, the appellant herein, is liable to pay the compensation to the petitioner/claimant who has filed the claim petition before the Tribunal. On all these grounds, he contends that the appeal preferred by the appellant-Insurance Company appears to be devoid of merit and prays for dismissal of the same.
8. In the context of the arguments advanced by the learned counsel for the appellant and the learned counsel for the respondent No.2, it is relevant to consider the evidence of PW-2, Dr. Venkatasivareddy, who has stated in his evidence that the claimant has suffered 44% permanent disability towards the right lower limb. Accordingly, the learned Tribunal has taken into consideration 20% as permanent disability towards the whole body. The monthly income of the claimant at Rs.3,000/- taken by the court below is based upon the evidence of PW-1 himself. Accordingly, by applying the multiplier ‘18’ to the age of the petitioner/claimant at 20 years, the learned Tribunal has arrived at Rs.1,29,600/- towards future loss of income. Hence this finding of the court below cannot be found fault with by the learned counsel for the appellant.
9. The court below has placed reliance on the case between NATIONAL INSURANCE COMPANY LTD. -VS-
HONNAPPA & ORS. (supra) wherein it is held that if anybody sustained injuries in an accident, by using the vehicle, that is sufficient to maintain the petition u/s 163(3) of the Act. Therefore the claimant need not plead and prove about the negligence concept. In the instant case, though the rider of the motorcycle is not responsible for the accident, but the vehicle was used at the time of the accident which was hit by another vehicle due to which the petitioner sustained injuries. In order to establish the case for seeking compensation, the petitioner has produced Ex.P6 – wound certificate, Ex.P55 – treatment endorsement, Ex.P56 – disability form, Ex.P57 – disability certificate and Ex.P58 – Xray. All these are the vital documents which are taken into consideration by the learned Tribunal apart from the evidence adduced. On appreciation of the entire oral and documentary evidence, the learned Tribunal has awarded compensation at Rs.3,63,000/- with interest @ 9% p.a. from the date of petition till the date of deposit.
Learned counsel for the appellant has even submitted that the interest @ 9% awarded by the learned Tribunal is also exorbitant and without any material. But in view of the injuries sustained by the claimant, which are reflected in the documents produced by the claimant at Ex.P6 – wound certificate, Ex.P55 – treatment endorsement, Ex.P56 – disability form, Ex.P57 – disability certificate and Ex.P58 – Xray, the contention taken by the learned counsel for the appellant appears to be devoid of merit. Hence this appeal does not call for any interference of the impugned judgment, as the compensation awarded by the court below is just and reasonable and based up on the evidence. Consequently the appeal is hereby dismissed. Accordingly I proceed to pass the following:
Order The appeal preferred by the appellant under Section 173(1) of the M.V.Act is hereby dismissed. Consequently the judgment and award passed by the court below in MVC No.718/2013 dated 13.04.2015, is hereby confirmed.
Amount in deposit, if any, shall be transmitted to the concerned Tribunal, forthwith, along with Lower court Record.
SD/- JUDGE RD