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.9219 OF 2012 (MV) Between:
Reliance General Insurance Co Ltd., by its Divisional Manager, V A Kalburgi Square, Desai Cross, Deshpande Nagar, Hubli, herein represented by the Regional Office, No.28, 5th Floor, East Wing, Centenary Building, M G Road, Bengaluru-560 001, by its Deputy Manager (Legal). ... Appellant (By Sri. H S Lingaraj, Advocate) And:
1. Srinivas Shetty, Now aged about 53 years, S/o K Narayana Shetty, R/at Near Kameshwara Temple, Baikady Village, Post Brahmavar, Udupi Taluk.
2. Kallappa, Now aged about 36 years, S/o Late Bogra Poojary, R/at Yalawadar, Tavaregere Post, Kalgatgi Taluk, Dharwad District.
3. Raghavendra Shetty, Major, S/o Bhujanga Shetty, R/o Hire Honnali Taluk, Dharwad. ... Respondents (By Sri. Nagaraja Hegde, Adv., for R1; R2-Notice dispensed with v/o dated 28-02-2017; R3-Served unrepresented) This MFA is filed u/S 173(1) of MV Act praying to set aside the judgment and award dated 10th April 2012, by allowing this appeal, with costs and grant such other and/or further reliefs, as this Hon’ble Court deems fit to grant in the facts and circumstances of the case, in the interest of justice and equity.
This Appeal coming on for Admission this day, the Court delivered the following:
JUDGMENT This appeal is preferred by the Insurance Company questioning the judgment and award, dated 10.04.2012 passed in MVC No.487/2009 on the file of the Court and Additional Senior Civil Judge and Additional MACT, Udupi, where in a total sum of Rs.3,90,700/- together with interest at the rate of 8 % p.a. was awarded to the claimant, for the injuries sustained by him in a road traffic accident which occurred on 12.05.2008 involving a lorry bearing Reg.No.KA25-B-9558, which was insured with the appellant.
2. The case of the claimant is that on 12.05.2008 after unloading beedi leaves in Udupi branch, while he was moving towards Mangalore in lorry bearing No.Reg.No.MEG-5730 and when he reached near Kallapu, NH-17, a lorry bearing Reg. No.KA25-B-9558, driven by its driver from Mangalore to Udupi in a rash and negligent manner and in an attempt to over take another vehicle, dashed against the vehicle of the claimant. As a result of which, he sustained grievous injuries and admitted to Adarsha Hospital, Udupi and treated as an inpatient from 12.05.2008 to 30.05.2008.
3. The Tribunal considering the evidence and material on record, awarded a total compensation of Rs.3,90,700/- under the following heads.
4. It is the contention of the learned counsel for the appellant that the Tribunal erred in holding that the driver of the insured vehicle was solely responsible for the accident. On the other hand, the accident occurred on account of the rash and negligent driving by the driver of the claimant himself. It is further submitted that, the compensation awarded by the Tribunal under different heads are on the higher side and assessing the loss of future earning capacity before superannuation period at 50 % is contrary to the evidence on record. Accordingly, seeks to allow the appeal.
5. To substantiate the claim, the claimant has examined PWs.1 to PW.3 and got marked Ex.P.1 to Ex.P.13. On a perusal of the FIR, Complaint, Spot Mahazar and Chargesheet, the same goes to show that the accident was on account of rash and negligent driving by the driver of the offending vehicle, i.e., the lorry bearing Reg.No.KA25-B-9558. There is no rebuttal evidence to counter the same. In that view of the matter, the contention of the learned counsel for the appellant that there is contributory negligence and that the accident was solely on account of the rash and negligent driving by the claimant himself cannot be accepted.
6. The claimant was aged about 54 years and was drawing a sum of Rs.9,834/-. The Tribunal has taken the income at Rs.9,800/- per month. Loss of future earning capacity, before super annuation period is assessed at 50%, multiplier ‘11’ has been divided into two heads. Since the deceased had four years service for superannuation, the Tribunal has calculated the future earning capacity, after looking into the nature of work and his resignation to the said job and arrived at a sum of Rs.2,35,200/- (4,900 x 12 x 4) towards loss of earning capacity.
7. Income of the claimant for post retirement period was assessed at Rs.15,000/- per annum. The loss of dependency for post of retirement period was assessed at Rs.52,500/- (7500 x 7) and a sum of Rs.2,87,700/- was awarded towards loss of future earning on account of disability.
8. Exp.13 is the disability certificate and Doctor has assessed the disability at the rate of 20 % on left upper limb. The Tribunal has also taken into consideration the wound certificate-Exp.4 and the undisputed fact that on account of the accident and injuries, the claimant was forced to give up his job, where in he was working as a lorry driver in Bharath Beedi company. The Tribunal after considering the entire evidence and material on record, has awarded a just compensation which cannot be said to be on the higher side.
9. In the facts and circumstances of the case, the interest awarded by the Tribunal also cannot be said to be on the higher side. There is no merit in this appeal. Accordingly, the appeal is dismissed.
The amount in deposit shall be transmitted to the Tribunal.
Sd/- JUDGE rv