IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.4948/2012 (MV) C/W M.F.A.No.3983/2012 IN M.F.A.No.4948/2012:
BETWEEN:
SHRI R. LINGA KUMAR, AGED 48 YEARS, S/O. J.M. RAJU, R/AT No.24, CHAWARA CHURCH, II CROSS, EJIPURA, BENGALURU-560 047. … APPELLANT (BY SRI GIRIMALLAIAH, ADVOCATE) AND:
1. RELIANCE GENERAL INSURANCE COMPANY LIMITED, EAST WING, 5TH FLOOR, 28, CENTENARY BUILDING, M.G. ROAD, BENGALURU-560 001. BY ITS MANAGER.
2. SHRI FRANCIS XAVIER D., S/O. DHARMALINGAM, No.334, 2ND BATTERY PENSION LANE, VIVEKNAGAR, BENGALURU-560 047. ... RESPONDENTS (BY SRI H.S. LINGARAJ, ADVOCATE FOR R-1, R-2 NOTICE DISPENSED WITH VIDE ORDER DATED 17.02.2014) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.11.2011 PASSED IN MVC.NO.7278/2009 ON THE FILE OF THE XII ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.3983/2012:
BETWEEN:
RELIANCE GENERAL INSURANCE COMPANY LIMITED, REGIONAL OFFICE, No.28, 5TH FLOOR, EAST WING, CENTENARY BUILDING, M.G. ROAD, BENGALURU-560 001.
BY ITS ZONAL LEGAL MANAGER. … APPELLANT (BY SRI. H.S. LINGARAJ, ADVOCATE) AND:
1. SHRI R. LINGA KUMAR, AGED 48 YEARS, S/O. J.M. RAJU, R/AT No.24, CHAWARA CHURCH, II CROSS, EJIPURA, BENGALURU-560 047.
2. SHRI FRANCIS XAVIER D., S/O. DHARMALINGAM, No.334, 2ND BATTERY PENSION LANE VIVEKNAGAR, BENGALURU-560 047. ... RESPONDENTS (BY SRI GIRIMALLAIAH, ADVOCATE FOR R-1, R-2 NOTICE DISPENSED WITH VIDE ORDER DATED 13.02.2014) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.11.2011 PASSED IN MVC.NO.7278/2009 ON THE FILE OF THE XII ADDITIONAL SMALL CAUSES JUDGE AND MEMBER, MACT, BENGALURU, AWARDING A COMPENSATION OF RS.3,56,936/- WITH INTEREST @ 6% P.A., (EXCLUDING IN RS.10,000/- TOWARDS FUTURE MEDICAL EXPENSES) FROM THE DATE OF PETITION TILL REALISATION.
THESE M.F.As. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T These two appeals are filed by the claimant as well as the Insurance Company questioning the quantum of compensation and contributory negligence awarded by the Tribunal in M.V.C.No.7278/2009 dated 4.11.2011, on the file of the Motor Accident Claims Tribunal, Bengaluru.
2. The parties are referred to as per their original rankings before the Tribunal to avoid the confusion and for the convenience of the Court.
The brief facts of the case are:
3. That on 10.8.2009 at about 3.20 p.m., one Mr.
D.F.Sudarshan being the rider of a motorcycle bearing No.KA- 03-EZ-8798 rode the same on 100 feet road, Koramangala, Bengaluru in a direction from south to north in high speed, rash and negligent manner in front of Shanti Sagar Hotel and dashed his motorcycle against the petitioner, who was crossing the said road in a direction from west to east at that time. As a result of the same, the petitioner fell down and sustained injuries. It is also the case of the petitioner that he was working as a Senior Driver in Sanjay Gandhi Hospital, Bengaluru and drawing a salary of Rs.15,500/- per month. Due to the accidental injuries, he has suffered permanent disability and thereby lost his earning capacity and also incurred huge medical expenses. Hence, he claimed the compensation of Rs.5,00,000/-.
4. In response of the claim petition, the respondent No.2 remained absent and the respondent No.1 entered appearance and filed the written statement. In the written statement, there was a total denial of material mentioned in the claim petition and also denied the issuance of insurance policy subject to confirmation in favour of the respondent No.2. The respondent No.1 further took the contention that the liability is subject to terms and conditions of the policy.
5. The claimant in order to substantiate his claim examined himself as P.W.1 and examined two doctors as P.Ws.2 and 3 and got marked the documents at Exs.P.1 to 26. The respondents have not examined any of the witnesses. The Tribunal after hearing the arguments of both the counsel, partly allowed the claim petition and came to the conclusion that there was a contributory negligence on the part of the claimant.
6. Being aggrieved by the judgment and award of the Tribunal in coming to the conclusion that there was a contributory negligence, the claimant has filed M.F.A.No.4948/2012 questioning the contributory negligence and the quantum of compensation on the ground that the compensation awarded is very meagre.
7. On the other hand, the Insurance Company has preferred M.F.A.No.3983/2012 contending that the Tribunal awarded more compensation under the head medical expenses without any basis and the claimant being an employee of Sanjay Gandhi Hospital working as Senior Driver, has taken the benefit of medical reimbursement and inspite of it, the Tribunal awarded the medical expenses of Rs.1,95,000/- inclusive of incidental expenses. Hence, the judgment and award of the Tribunal requires to be set aside and modified.
8. The learned counsel appearing for the appellant- claimant in reply to the arguments of the Insurance Company would contend that the Tribunal failed to award just and reasonable compensation and the compensation awarded under all the heads are very meagre and it requires interference of this Court.
9. Having heard the arguments of both the counsel with regard to their respective contentions, the points that arise for the consideration of this Court are:
(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?
(ii) Whether the Tribunal has committed an error in awarding excess compensation, as contended by the Insurance Company and it requires interference of this Court?
(iii) Whether the Tribunal has committed an error in coming to the conclusion that there was a contributory negligence on the part of the claimant and it requires interference of this Court?
(iv) What order?
Point No.(iii):-
10. The main contention of the claimant is that the Tribunal has committed an error in attributing the contributory negligence against the claimant, even though the rider of motorcycle has not been examined. Hence, it requires interference of this Court.
11. On the other hand, the Insurance Company would contend that even in the absence of the evidence of rider of motorcycle, the Court can take note of the negligence, since the claimant has crossed the 100 feet road jumping the road divider, where there was no provision to cross the same. As a result, he attributed negligence to the occurrence of the accident.
12. Having considered the materials on record, there is no dispute that P.W.1 has been examined and rider of the motorcycle has not been examined. It is an admitted fact that the claimant has crossed the road where there was no provision to cross the same by jumping the road divider. As a result, he contributed negligence to the occurrence of the accident. The Tribunal in para No.9 of the judgment has discussed in detail the principles laid down in the judgment of this Court reported in ILR 2003 KAR 1104 in case of KOOSAPPA POOJARI V.
K.SADABBA AND OTHERS with regard to attributing contributory negligence. The claimant unmindfully crossed the road when there was no provision to cross the same. Hence, the Tribunal came to the conclusion that the claimant crossed the road in a place which is not meant for pedestrian crossing. Under the circumstances, certain degree of contributory negligence will have to be attributed to him. Having considered the factual aspects of the case and also evidence of P.W.1 and the charge sheet material, particularly the sketch-Ex.P4, it is clear that there was no provision for crossing the road by the pedestrians in the place where the accident had occurred. Hence, I do not find any error committed by the Tribunal. The Tribunal has applied its mind in coming to the conclusion with regard to the contributory negligence by the claimant. The only contention that the rider of the motorcycle was not examined, is not a ground to fasten the liability in its entirety on the Insurance Company. The Court has to gather both oral and documentary evidence available on record and form its opinion and the same has been done by the Tribunal. Therefore, I do not find any error committed by the Tribunal in attributing the contributory negligence of 15% on the part of the claimant. Hence, I answer Point No.(iii) in the negative.
Point Nos.(i) and (ii):
13. M.F.A.No.4948/2012 is filed by the claimant and M.F.A.No.3983/2012 is filed by the Insurance Company questioning the quantum of compensation and the contributory negligence. On perusal of the judgment and award of the Tribunal, it discloses that the Tribunal has discussed with regard to the nature of injuries. Considering the fact that the accident had taken place in the year 2009, the fact that he has suffered two fractures and was an inpatient for a long period and the fact that the claimant was on leave for a long duration, the Tribunal awarded an amount of Rs.40,000/- as compensation under the head ‘pain and agony’. The same is just and reasonable and hence, it does not require any interference of this Court.
14. On perusal of the judgment and award, it is clear that the Tribunal has not awarded any compensation under the head ‘loss of future income’. Since the claimant is continuing as a Government Servant, the question of awarding compensation under the head ‘loss of future income’ does not arise at all. Hence, I do not find any error committed by the Tribunal in not awarding the compensation under the head ‘loss of future income’.
15. Having taken note of the ‘loss of happiness and future amenities’, the Tribunal has awarded an amount of Rs.30,000/- under the said head. Admittedly, he is aged about 45 years and has suffered permanent disability. The doctor has also been examined before the Tribunal and in his evidence, he deposed that he has suffered the disability at 21% to the whole body. When such being the evidence available on record, the Tribunal ought to have awarded just and reasonable compensation under the head ‘loss of happiness and future amenities’. Since the compensation under the head ‘loss of future income’ has not been awarded, the compensation awarded by the Tribunal under the head ‘loss of happiness and future amenities’ is to be enhanced to Rs.50,000/- as against Rs.30,000/-.
16. With regard to the medical and incidental expenses, the Tribunal considering the material on record, has awarded an amount of Rs.1,89,783/- under the head ‘medical expenses’ and including the compensation awarded under the head ‘medical expenses’, the total amount of Rs.1,95,000/- has been awarded which includes conveyance, attendant charges, food and nourishment and travel expenses.
17. The main contention of the Insurance Company is that the appellant is working in a State Government Hospital and he is entitled for reimbursement. It was suggested to him in the cross-examination that he claimed for medical reimbursement, he categorically denied that though he was entitled for medical reimbursement, he has not claimed the said benefit. When the Insurance Company took the defence that he has claimed the medical reimbursement and when PW.2 denied the same, it is the duty cast upon the Insurance Company to examine the documents from the concerned departments so as to ascertain whether he has claimed the said benefit or not. But when the Insurance Company did not secure the records and mere taking of the defence that he has already claimed the reimbursement cannot be accepted. Hence, the Tribunal has rightly considered the claim of the claimant. However taking note of the fact that he has suffered two fractures and was an inpatient from 17.11.2009 to 21.11.2009 and 16.06.2010 to 25.06.2010 and was also on leave for a period of 15 days and when he has not undergone treatment for long period, the compensation awarded only to the tune of Rs.6,000/- towards the medical expenses appears to be on the lower side. With regard to food and nourishment and towards conveyance and other incidental expenses, the Tribunal ought to have awarded minimum amount of Rs.15,000/-. Hence, the compensation awarded under the head of ‘medical expenses and other incidental expenses’ is enhanced to Rs.2,05,000/- as against Rs.1,95,000/-. The very contention of the Insurance Company that the Tribunal has committed an error in awarding the medical expenses cannot be accepted.
18. The Tribunal also awarded compensation towards ‘future medical expenses’ to the tune of Rs.10,000/- taking into consideration that he has suffered fractures and was subjected to surgery and there are implants in situ and also considered the evidence of PW3-doctor that he requires surgery for removal of the said implants. Hence, the compensation awarded to the tune of Rs.10,000/- towards ‘future medical expenses’ appears to be on the lower side. Hence, the same requires to be enhanced to Rs.30,000/- since the doctor has stated that the surgery would cost Rs.25,000/- in their hospital.
19. Having reconsidered the materials available on record with regard to quantum of compensation, the compensation awarded under the two heads i.e., ‘loss of happiness and future amenities’ and ‘future medical expenses and other incidental expenses’, has been modified to little extent.
In view of discussions made above, I pass the following:
ORDER (i) M.F.A.No.4948/2012 filed by the claimant is partly allowed.
(ii) M.F.A.No.3983/2012 filed by the Insurance Company is dismissed.
(iii) The judgment and award passed by the Tribunal in M.V.C.No.7278/2009 dated 4.11.2011, on the file of the Motor Accident Claims Tribunal, Bengaluru is modified by granting a total compensation of Rs.4,69,925/- as against Rs.4,19,925/-.
(iv) The other portions of the judgment and award remains unaltered.
(v) The amount in deposit, if any, shall be transmitted to the Tribunal forthwith.
Sd/- JUDGE MD/PYR