IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF MARCH, 2020 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.1511 OF 2019(MV-I) C/W MFA NO.6307 OF 2018(MV-I) IN MFA NO.1511/2019 BETWEEN:
MANJU @ MANJUNATHA S/O GOPALAPPA, AGED ABOUT 34 YEARS R/AT C/O GOPALAPPA, BANDAPURA VILLAGE, MARSURU POST, ANEKAL TALUK-562 106 BENGALURU.
...APPELLANT (BY SRI.JAGADEESH H T, ADVOCATE) AND:
1. THE NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE , NO.144, 2ND FLOOR, SUBHARAM COMPLEX, M.G.ROAD, BANGALORE-560 001.
2. V.MANI S/O VELUSWAMY, NO.1/276/1, NEW COLONY, THINDAL ERODE-638001 TAMIL NADU …RESPONDENTS (BY SRI.A.N.KRISHNASWAMY, ADVOCATE FOR R1; R2 NOTICE D/W V/O DATED 12.03.2020) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.06.2018 PASSED IN MVC NO.1294/2017 ON THE FILE OF THE III ADDITIONAL JUDGE & MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH- 18), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO.6307/2018 BETWEEN:
THE NATIONAL INSURANCE CO LTD REGIONAL OFFICE, NO.144, 2ND FLOOR, SUBHARAM COMPLEX, M.G.ROAD, BENGALURU-560001 (BY SRI.A N KRISHNA SWAMY, ADVOCATE) AND:
1. SRI MANJU @ MANJUNATHA S/O GOPALAPPA, AGED ABOUT 33 YEARS, R/AT C/O GOPALAPPA, BANDAPURA VILLAGE, MARASURU POST, ANEKAL TQ, BENGALURU-562106 ...APPELLANT 2. SRI V MANI S/O VELUSWAMY, NO.1/276/1, NEW COLONY,. THINDAL, ERODE, TAMIL NADU-638001 …RESPONDENTS (BY SRI.H T JAGADEESH, ADVOCATE FOR R1; R2 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.06.2018 PASSED IN MVC NO.1294/2017 ON THE FILE OF THE III ADDITIONAL JUDGE & MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH- 18), AWARDING COMPENSATION OF RS.6,17,000/- WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant as well as Insurance Company have preferred these appeals challenging the judgment and award dated 07.06.2018 passed in MVC.No.1294/2017 by the Motor Accident Claims Tribunal, Bengaluru. The appellant has filed appeal in MFA.No.1511/2019 seeking enhancement of compensation, whereas the Insurance Company has filed appeal in MFA.No.6307/2018 questioning the negligence as well as quantum.
2. The facts leading to the top noted appeals are as under:
The case of the claimant before the Tribunal is that on 30.01.2017 at about 6.50 p.m., the claimant was proceeding on his TVS bearing Reg.No.KA-05-R- 9680 near Hajol Wood Furniture Shop, NH-7, Bengaluru-Hosur Road, at that juncture, the driver of the offending lorry bearing Reg.No.TN-27-T-9392 came in a rash and negligent manner and dashed against the claimant’s bike. On account of the impact, the claimant fell down and sustained grievous injuries. The case of the claimant before the Tribunal is that he was immediately shifted to Oxford Hospital, Bengaluru where he took first aid treatment and thereafter, he was shifted to Best Hospital, Bengaluru. The case of the claimant is that he has spent more than Rs.2,00,000/- and in the said accident, he has suffered permanent disability to the tune of 31% to the whole body. Hence, filed claim petition claiming compensation of Rs.20,00,000/-.
3. The respondent No.1 -Insurance Company, on receipt of notice, contested the proceedings. The Insurance Company stoutly denied the entire averments made in the claim petition and specifically contended that the alleged accident has not occurred on account of rash and negligent driving by the driver of the offending lorry. A specific contention was raised before the Tribunal in the objection that in fact the appellant was negligent and responsible for the accident. On these set of facts, sought for dismissal of the claim petition.
4. The Tribunal, based on the rival contentions, formulated the following issues:
“1) Whether the petitioner proves that, he had sustained grievous injuries in an accident that was occurred due to rash and negligent driving of the driver of the lorry bearing Reg.No.TN-27-T-9392 on 30.01.2017 at about 6.50 p.m. near Hajol Wood Furniture, on Bengaluru-Hosur NH-7 Road, Yadavanahalli Village, Attibele Hobli, Bengaluru?
2) Whether the petitioner is entitled for compensation as prayed for? If so, at what rate? From whom?
3) What order or award?”
5. The claimant in support of his contention examined himself as PW.1 and examined one witness as PW.2 and the Doctor as PW.3 and relied on documentary evidence vide Exs.P-1 to P-14.
6. The Tribunal having examined oral and documentary evidence, answered issue No.1 in the affirmative by holding that the appellant sustained grievous injuries on account of rash and negligent driving by the driver of the offending driver. While determining compensation, the Tribunal in absence of proof of income has proceeded to assess the income of the appellant notionally at Rs.7,500/- and has awarded a sum of Rs.3,60,000/- towards future loss of income. The Tribunal in all has awarded a sum of Rs.6,17,000/-.
7. Learned counsel appearing for the Insurance Company would vehemently argue and contend that the Tribunal grossly erred in answering issue No.1 in the affirmative. Learned counsel for the appellant would argue and contend before this Court that the police records clearly indicate that it is the claimant who has dashed against the lorry from behind and this material aspect is also indicated in the sketch prepared by the police and marked at Ex.P-3. Relying on this material on record, learned counsel for the Insurance Company would vehemently argue and contend before this Court that the finding on negligence suffers from infirmities and would warrant interference by this Court.
8. Per contra, learned counsel for the claimant would support the reasoning of the Tribunal insofar finding on issue No.1 is concerned and would contend that the finding arrived at by the Tribunal is based on records and in absence of rebuttal evidence lead in by the Insurance Company.
9. On re-appreciation of oral and documentary evidence, this Court is of the view that though the Insurance Company has raised several grounds in the appeal memo but, however, on perusal of records, it indicates that Insurance Company has not made any efforts to disprove the evidence placed on record by the claimant in support of its contention. There is absolutely no rebuttal evidence lead in by the Insurance Company and in absence of rebuttal evidence, the Tribunal has rightly by relying on the FIR, complaint, sketch and charge sheet has proceeded to take a holistic view as held by the Hon’ble Apex Court in catena of decisions and has answered issue No.1 in affirmative by holding that claimant suffered injuries on account of rash and negligent driving by the driver of the offending lorry. This finding is based on material on record and would not warrant any interference since the finding does not suffer from any infirmities. Accordingly, this contention is not at all tenable and same is rejected.
10. Insofar as quantum is concerned, the Tribunal in absence of proof of income has proceeded to take the income of the appellant at Rs.7,500/- and by taking the disability at 25% has awarded a sum of Rs.3,60,000/- under the head loss of future income. Learned counsel for the claimant would vehemently argue and contend before this Court that the clinching evidence on record clearly indicates that claimant was earning a sum of Rs.15,000/- p.m.
11. On re-appreciation of oral and documentary evidence, this Court is of the view that there is no evidence on record indicating actual income of the appellant. In absence of proof of income, this Court would rely on the chart issued by the Legal Services Authority and take the income at Rs.11,000/- and by taking disability at 25%, the income of the appellant is assessed at Rs.2,750/- p.m. and by applying the multiplier of 16, the compensation re-determined by this Court under the head of loss of future earning on account of disability is to the tune of Rs.5,28,000/- (2,750x12x16).
12. On perusal of the material on record, the Tribunal was also not justified in awarding only a sum of Rs.22,500/- towards laid up period. This Court by taking the notional income at Rs.11,000/- is of the view that the claimant in entitled for compensation for a period of three months and accordingly, a sum of Rs.33,000/- is awarded under the head of loss of income during laid up period. Insofar as compensation determined under the other heads is concerned, the same appears to be fair and just and would not warrant any interference. Hence, the appellant is entitled for re-determined compensation of Rs.7,95,500/- as against Rs.6,17,000/-.
13. Accordingly, the appeal filed by the claimant in MFA.No.1511/2019 is allowed in part by holding that the appellant is entitled for enhanced compensation of Rs.1,78,500/- with interest at 6% p.a. from the date of petition till date of deposit. The appeal filed by the Insurance Company in MFA.No.6307/2018 is allowed in part by holding that the claimant is entitled for interest at the rate of 6% p.a. on the amount of compensation.
The amount in deposit shall be transmitted to the Tribunal.
Sd/- JUDGE CA