IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN Miscellaneous First Appeal No. 2788 of 2017 (MV) BETWEEN:
THE MANAGER M/S. THE ORIENTAL INSURANCE COMPANY LIMITED, D.O. 11, MYSORE, NEW MUSLIM HOSTEL COMPLEX, FIRE BRIDGE MAIN, SARASWATHIPURAM, MYSORE-573201, THROUGH ITS REGIONAL OFFICE, 2ND FLOOR, SUMANGALA COMPLEX, LAMINGTON ROAD, HUBLI-580020 REPRESENTED BY ITS REGIONAL MANAGER.
... APPELLANT (BY SRI B. S. UMESH, ADV.) AND:
1. MANSOOR S/O. MOHAMMED HANEEF, AGED ABOUT 22 YEARS, RESIDING AT DODDI ROAD, ALUR TOWN, H.N. PURA ROAD, HASSAN TOWN-573201.
2. MANJUNATHA S. B.
RESIDING AT MAGGADA STREET, SALIGRAMA VILLAGE & POST, K.R. NAGAR TALUK, MYSORE DISTRICT-573201.
3. DEVARAJU S/O. LATE HANUME GOWDA, RESIDING AT UPPALLI VILLAGE, KANDALI POST, KATTAYA HOBLI, HASSAN TALUK AND DISTRICT-573201.
4. THE BRANCH MANAGER NATIONAL INSURANCE COMPANY LIMITED, MANJUNATHA COMPLEX, OLD BUS STAND ROAD, HASSAN-573201.
... RESPONDENTS THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.12.2016 PASSED IN MVC NO.1592/2015 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, MACT, HASSAN, AWARDING GLOBAL COMPENSATION OF Rs.2,23,580/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS MFA IS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment The appellant, the Oriental Insurance Company Limited, has challenged the legality of the award dated 06-12-2016, passed by the III Addl. District Judge & MACT, at Hassan, whereby the learned Tribunal has granted the claimant-respondent No.1, a compensation of Rs.2,23,580/- along with an interest at 6% p.a. from the date of petition till the date of realization, for the injuries suffered by him due to a vehicular accident.
2. In short the facts of the case are that on 22-07-2015, the claimant – respondent No.1, was traveling on a bike, bearing Reg. No. KA-45-R-0189, as a pillion rider. Around 3.50 p.m., when the motorbike reached in front of Kandali Grama Panchayath, located on B.M.Road, the rider of the said bike drove the bike in such a rash and negligent manner that it dashed against another bike, bearing Reg. No. KA-13-EE-8641. Due to the accident, the claimant-respondent suffered injuries on his left hand, wrist, shoulder bone and other parts of the body. Immediately he was shifted to Mangala Hospital where he was an inpatient for fifteen days. During his stay in the hospital, he underwent surgical operation and implants were fixed. After recovering from the said accident, the claimant-
respondent filed a claim petition before the learned Tribunal. In support of his claim, the claimant- respondent examined himself as a witness and examined Dr. H. S. Ravi as PW-2, and submitted twenty-nine documents. On the other hand, the Insurance Company examined two witnesses, and submitted six documents. After going through the oral and documentary evidence, by award dated 06-12-2016, the learned Tribunal has granted the compensation as aforementioned. Hence this appeal before this Court.
3. Mr. B. S. Umesh, the learned counsel for the Insurance Company, has raised two contentions before this Court: firstly, although Dr. H. S. Ravi (PW-2) has claimed that the claimant-respondent has suffered 28% of disability in the left upper limb, the Tribunal was not justified in reducing it by 1/3rd in order to calculate the disability of the whole body. Relying on the case of RAJ KUMAR VS. AJAY KUMAR & ANOTHER [(2011) 1 SCC 343], the learned counsel has pleaded that the disability should have been reduced by 1/4th, rather than 1/3rd in order to calculate the disability of the whole body. Secondly, according to the Insurance Company, while the claimant-respondent met with an accident on 22-07-2015, the offending vehicle was transferred in his name on 27-07-2015, as evident from Ex.R1, the ‘B’ Extract. According to the learned counsel, it is impossible for a person to buy the very vehicle by which he has suffered an accident just five days after the alleged accident. Therefore, the learned Tribunal should have presumed that even on the date of the accident, i.e. on 22-07-2015 the claimant-respondent was the owner of the offending vehicle. Since the accident had occurred due to his own negligence, the claimant-respondent was not entitled to receive any compensation from the Insurance Company. Therefore, the impugned award deserves to be set aside by this Court.
4. Heard the learned counsel, and perused the impugned award.
5. In the case of RAJ KUMAR (supra), the Hon'ble Supreme Court has elaborately dealt with the procedure for calculating the disability of the whole body. According to the Apex Court, while considering the evidence of the medical doctor, and the medical documents, the Tribunal should also keep in mind the “functional disability” suffered by the claimant. Although the medical evidence may indicate certain percentage of disability, but the “functional disability” due to the injuries suffered, may be to a larger extent. Thus, the disability of the whole body would have to be adjudged, keeping in mind also the “functional
mechanical formula needs to be applied, in order to calculate the disability suffered by the whole body.
6. In the present case, according to the claimant- respondent, he was engaged in the work of bending iron rods. Admittedly, due to the accident, according to Dr. Ravi (PW-2), the wrist, elbow and the shoulder were adversely effected to the extent of 28%. Even according to Ex.P27 and Ex.P28 (X-Rays), the implants made in the wrist, still exists. Thus, it is, in fact, surprising that the learned Tribunal has reduced 28% of disability of the particular part by 1/3rd. For considering the functional disability, the disability should have been taken at higher percentage, instead of reducing it down to 9%. Therefore, the learned counsel for the appellant is not justified in claiming that the learned Tribunal has committed a fault by reducing the disability of the whole body by 1/3rd instead of 1/4th for calculating the disability of the entire body.
7. There is no presumption in law that a person may not want to buy a vehicle in which he has suffered an accident. The learned Tribunal, while appreciating the contention raised by the Insurance Company that a presumption should have been drawn that the claimant-respondent was the owner of the offending vehicle on the date of the accident, has examined Ex.R1, the ‘B’ Extract. According to the Ex.R1, the bike was registered in the name of the claimant-respondent on 27-07-2015. On the date of the accident i.e. 25-07-2017, the bike was registered in the name of one Mr. Manjunatha S. B. (respondent No.1 before the learned Tribunal). Thus, clearly, on the date of the accident, the claimant-respondent was not the owner of the offending vehicle. In fact he was merely riding the bike as a pillion rider. Thus even the second contention raised by the learned counsel for the appellant is clearly unacceptable.
For the reasons stated above, this Court does not find any merit in the present appeal. It is hereby dismissed.
The amount deposited by the Insurance Company shall be disbursed to the claimant-respondent, forthwith.
Sd/- Judge Rd/-