IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.11330 OF 2012 [MV] BETWEEN The Manager National Insurance Co. Ltd., DO-2, Sathi Complex Lalbagh (Mission) Road Bangalore-560 027, Now reptd. by Regional Manager National Insurance Co. Ltd., Regional office Subharam Complex, 144, M G Road Bangalore-560 001. ... Appellant [By Sri A N Krishnaswamy, Advocate] AND 1. Andanaiah s/o late Boregowda Now aged about 40 years Thenginakallu village H Kothanur Post, Kylancha Hobli Ramanagara Tq. & Dist.
- 577 101.
2. Chandrashekara s/o Chikkathammaiah Major, r/o Kadanakuppe Village, Lakkojanahalli Post, Kylancha Hobli Ramanagara Taluk-577101. ... Respondents [By Sri B Chandrashekharaiah, Advocate for R1, Appeal dismissed as against R2 v/c/o dtd.14.9.2015) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 6.10.2012 passed in MVC No.7458/2010 on the file of Judge, Member, MACT, Bangalore, awarding a compensation of Rs.2,08,328/- with interest at 6% p.a. from the date of petition till realization.
This MFA coming on for hearing this day, the Court delivered the following:
JUDGMENT This appeal is by the Insurance company challenging the judgment and award dated 6.10.2012 passed in MVC No.7458/2010 on the file of the Judge, Member, MACT, Bangalore, wherein the Tribunal has awarded a compensation of Rs.2,08,328/- to the claimant/ respondent No.1 herein for the injuries sustained by him in a road traffic accident.
2. I have heard the learned counsel appearing for the appellant/Insurance Company and the learned counsel appearing for respondent No.1.
3. It is the case of the claimant that on 30.9.2010 at about 8.00 a.m, when he was sitting at a small bridge situated near Puttamada’s shop of Belikottanur village, Ramanagara Taluk, at that time, the rider of the motorcycle bearing Regn. No.KA-42/J-9373 rode the same in a rash and negligent manner from Basavanahalli village side and dashed against him, as a result of which, he sustained injuries and shifted to Government Hospital, Ramanagar for first aid treatment and thereafter he was shifted to St.Johns Medical College Hospital, Bangalore for higher treatment, wherein he underwent surgery for the fractured injuries. It is his further case that he was earning a sum of Rs.6,000/- p.m. as an agriculturist-cum- coolie and on account of the accident, he suffered permanent disability etc.
4. Before the Tribunal, a sum of Rs.8,00,000/- was sought as compensation for the injuries sustained in the aforesaid accident. To establish the claim, two witnesses were examined as PWs.1 and 2 and Exs.P1 to P12 were marked. The claim was resisted by the Insurance Company. RW1 was examined and Exs.R1 to R3 were marked on its behalf.
5. The Tribunal after considering the oral and documentary evidence on record awarded a sum of Rs.2,08,328/- as compensation to the claimant with interest at 6% p.a. under the following heads:
1. Loss of future earning capacity - Rs.1,05,300/-
2. Diet, conveyance and attendant charges - Rs. 800/-
3. Loss of earning during laid up period and rest for 20 days - Rs. 3,600/-
4. Loss of amenities - Rs. 20,000/-
5. Discomfort and mental stress in life - Rs. 6,000/-
6. Pain and suffering - Rs. 25,000/-
7. Future medical expenses - Rs.15,000/-
8. Medical expenditure - Rs.32,628/-
Total Rs.2,08,328/-
6. It is the contention of the learned counsel appearing for the appellant that the Tribunal was not proper in holding that the injuries sustained by the claimant was on account of road traffic accident involving the motorcycle bearing Regn. No.KA-42/J-9373, on the other hand, the material on record goes to show that the injuries sustained was due to self fall. It is his contention that initially the history in the hospital record was written as `self fall’ and later it was scored out and written as `RTA’. It is also contended that there is an inordinate delay of 35 days in lodging the complaint and no cogent reasons are given explaining the cause for the delay in lodging the complaint and hence it gives an indication that it is an after thought for implicating the motorcycle. Learned counsel would further contend that the Tribunal committed a serious error in adding 30% of the income towards future prospects while calculating the compensation towards loss of future earning capacity. Hence, seeks to allow the appeal and to dismiss the claim petition.
7. Per contra, the learned counsel appearing for the claimant/respondent No.1 justified the findings recorded by the Tribunal and also the total compensation awarded therein and sought to dismiss the appeal.
8. It is the case of the claimant that on 30.9.2010 at about 8.00 a.m, when he was sitting on a small bridge situated near Puttamada’s shop of Belikottanur village, Ramanagara Taluk, at that time, the rider of the motorcycle bearing Regn. No.KA-42-J-9373 came in a rash and negligent manner and dashed against him, on account of the same, he fell and sustained injuries. It is the contention of the learned counsel for the appellant that the said motorcycle was not at all involved in the accident and the claimant sustained injuries on account of a fall from the bridge. To appreciate the said contention, it is relevant to examine the hospital records as well as the evidence of injured/PW1. It is no doubt true that in Ex.R1 initially it was written as `self fall’ and it was scored out and written as `RTA’. The wound certificate marked as Ex.P5 goes to show that the alleged history of the accident was due to hit by a two wheeler. Even in the discharge summary – Ex.P6, the history mentioned is `RTA’ i.e. road traffic accident. PW1 in his evidence categorically denied that he sustained injuries due to fall from the bridge. It is not suggested to PW1 that at Ramanagara Government Hospital, he gave history to the doctor that he sustained injury on account of a fall. The appellant has failed to establish by adducing satisfactory evidence that the injuries sustained by the claimant was on account of a fall. In that view of the matter, the findings recorded by the Tribunal that the injuries sustained by the claimant was due to the accident caused by the rider of the motorcycle cannot be found fault with.
9. It is the contention of the learned counsel for the appellant that there is inordinate delay in lodging the complaint and the said complaint was filed to suit his case. Perusal of Ex.P1 – FIR goes to show that the rider of the motorcycle assured the complainant that he will conduct a panchayat for settling the issue, however, since he did not turn up, the complaint was lodged. Hence, it cannot be said that no reasons are assigned for the delay in lodging the complaint.
10. The Tribunal after considering the medical evidence on record has come to the conclusion that the claimant suffered disability at 10% to the whole body. Considering the nature of injuries and oral and documentary evidence on record, the disability taken at 10% to the whole body is just and proper.
11. The Tribunal has awarded a total compensation of Rs.2,08,328/-. It is the contention of the learned counsel for the appellant that the Tribunal has added additional 30% of the income of the claimant while calculating the compensation under the head `loss of future earning capacity’. The Tribunal has quantified the income of the injured at Rs.4,500/- p.m. and added another sum of Rs.1,350/-. The compensation awarded under the head `loss of future earning capacity’ which is on the higher side since the Tribunal erred in adding additional 30% of the income, while calculating the loss of future earning capacity. Therefore, the appropriate compensation for which the claimant is entitled to is Rs.81,000/- (4500 x 12 x 15 x 10/100). The compensation awarded under all other heads are just and reasonable. In view of the same, the compensation for which the claimant is entitled to is Rs.1,84,028/- with 6% interest per annum from the date of petition, till its deposit. Accordingly, I pass the following:
ORDER Appeal is partly allowed.
The judgment and award dated 6.10.2012 passed in MVC No.7458/2010 on the file of Judge, Member, MACT, Bangalore, is hereby modified.
The claimant/respondent No.1 herein shall be entitled for a total compensation of Rs.1,84,028/- as against Rs.2,08,328/- awarded by the Tribunal with interest at 6% p.a. from the date of petition till the date of realization.
The appellant/Insurance Company shall deposit the amount, if not already deposited, within a period of four weeks from the date of receipt of copy of this judgment.
The amount in deposit before this Court shall be transmitted to the Tribunal concerned.
Sd/- JUDGE Bkm.