IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.746/2019 C/W M.F.A.No.2265/2019 (MV) IN MFA No.746/2019 BETWEEN:
RELIANCE GENERAL INSURANCE COMPANY LIMITED EAST WING, 5TH FLOOR, No.28, CENTENARY BUILDING, M.G.ROAD, BENGALURU - 560 001.
NOW REPRESENTED BY MANAGER LEGAL.
...APPELLANT (BY SRI ASHOK N PATIL, ADVOCATE) AND:
1 . T. SRINIVAS S/O D THIRUPALAIAH, AGED ABOUT 51 YEARS, RESIDING AT No.58/41, GROUND FLOOR, 13TH CROSS, 15TH MAIN ROAD, PADMANABHANAGAR, BENGALURU - 560 070.
2 . ANAND KUMAR B R S/O RACHAIAH, MAJOR No.977, VINU NILAYA, SHARAVATHINADI ROAD PIPELINE SRINAGAR BENGALURU - 560 050.
…RESPONDENTS (BY SRI JAGADISH G KUMBAR, ADVOCATE FOR R-1 NOTICE TO R-2 DISPENSED WITH V/O DATED 7.2.19) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.11.2018, PASSED IN MVC No.2571/2016, ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, AWARDING COMPENSATION OF Rs.9,42,013/- ALONG WITH FUTURE INTEREST AT THE RATE OF 6% P.A., (EXCLUDING ON FUTURE MEDICAL EXPENSES OF Rs.20,000/-) FROM THE DATE OF PETITION TILL REALISATION OF ENTIRE AMOUNT.
IN MFA No.2265/2019 BETWEEN:
SRI T SRINIVAS S/O D THIRUPALAIAH NOW AGED ABOUT 52 YEARS RESIDING PRESENTLY AT 58/41, GROUND FLOOR, 13TH CROSS, 15TH MAIN, PADMANABHANAGAR, BENGALURU-560 070. ...APPELLANT (BY SRI JAGADISH G KUMBAR, ADVOCATE) AND:
1 . SRI ANAND KUMAR B R S/O RACHAIAH, MAJOR IN AGE, RESIDING AT No.977, VINU NILAYA, SHARAVATHINADI ROAD, PIPELINE, SRINAGAR, BANGALORE-560 050.
2 . RELIANCE GENERAL INSURANCE COMPANY LTD., No.28, 5TH FLOOR, CENTENARY BUILDING, M.G.ROAD, BENGALURU-560 001.
REP. BY ITS MANAGER …RESPONDENTS (BY SRI ASHOK N PATIL, ADVOCATE) THIS MFA IS FILED U/S 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 19.11.2018, PASSED IN MVC No.2571/2016, ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE & XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These two appeals are directed against the judgment and award dated 19.11.2018 passed in MVC No.2571/2016, by the learned IX Additional Small Causes Judge and XXXIV ACMM Court of Small Causes and Member, MACT-7, Bengaluru (SCCH-7), wherein the claim petition came to be allowed in part and a compensation of Rs.9,42,013/- is granted together with interest at 6% p.a. (excluding interest on Rs.20,000/- awarded towards future medical expenses) from the date of petition till realization of entire amount.
2. Being aggrieved by the said judgment and award, both the Insurance Company and the claimant have come up in appeals.
3. Insofar as MFA No.746/2019 is concerned, it is preferred by the Insurance Company seeking to set aside the judgment and award passed by the Tribunal and MFA No.2265/2019 is preferred by the claimant seeking enhancement of compensation.
4. In order to avoid confusion and overlapping, the parties herein are referred to with reference to their rankings as held by them before the tribunal.
5. The set of facts leading for initiating proceedings before the Tribunal are:
On 21.2.2016 at about 10.30 a.m. when the petitioner along with his relatives going in the Innova Car bearing Registration No.KA.02.AC.0131 on Bangalore-Mysore Highway road from Bangalore to Chamundibetta, Mysore, when they reached near Gejjalagere Industrial area, the driver of said Innova car drove the same in a rash and negligent manner and suddenly applied the break for avoiding the accident of a two wheeler which came suddenly infront of the car and the driver lost control over the said innova car and took extreme left side of the road and hit to a tree and due to which, he sustained grievous injuries.
It is also stated that, immediately, he was shifted to Government Hospital, Maddur, then to Mandya and then to Sagar Hospital, Bangalore, wherein, he was admitted as inpatient, undergone surgery and spent Rs.9,00,000/- towards medical, conveyance and other expenses.
It is stated that, prior to accident, he was an employee under M/s.Lupicare a division of LUPIN, working as Marketing Sales Executive and drawing salary of Rs.30,000/- p.m. Due to injuries and after effects of the accident, petitioner cannot do his job or any other job in future. It is stated that Maddur Traffic Police have registered a case against the driver of the car.
6. The Insurance Company and the owner of the car resisted the claim petition.
7. Learned member adjudicated the matter on the aspects of negligence, occurrence of accident, entitlement for compensation and was accommodated with the oral evidence of PWs 1 to 3 and documentary evidence of Exs.P1 to P22 on behalf of the claimant and oral evidence of RWs.1 and 2 and documentary evidence of Ex.R1 on behalf of respondents, allowed the claim petition in part and awarded the compensation as mentioned above. Against which these appeals came to be filed both by the insurer and claimant.
8. Learned counsel Sri. Ashok N.Patil for the Insurance Company in MFA No.746/2019 would submit that the judgment and award passed by the learned member is opposed on the ground of quantum of compensation as the compensation granted is excessive and unreasonable. Further, consideration of the monthly income of the injured is at a higher rate. He would further submit that the petitioner has not suffered disability.
9. Learned counsel Sri Jagadeesh G. Kambar for claimant would submit that the monthly income has not been considered at reliable rate. He would further submit that the compensation of on loss of amenities is not granted atleast at reasonable rate.
10. Thus it is on the aspect of quantum, the Insurance Company and claimant have preferred their respective appeals.
11. Insofar as the details of injuries sustained by the claimant are concerned, as per Page No.17 of the judgment, petitioner has sustained fracture of dislocation of left acetabulum. He has under gone open reduction and internal fixation left acetabulum with plate and screws done on 25.2.2016 and he took treatment as inpatient from 21.2.2016 to 5.3.2016.
PW2-Dr.Dinesh H.N. Orthopedic Surgeon and he has assessed the disability of left lower limb at 78.21% and to the whole body at 26.07% and the learned member assessed the total disability at 15%.
12. Claimant states that he is working as Marketing Executive in Vivel Labs and his monthly income was Rs.30,000/-. However, the learned Member has considered the same at Rs.19,800/-.
The monthly income considered by the Tribunal as contended by the learned counsel for Insurance Company to be reasonably high and it is unreasonably low as contended by learned counsel for claimant who seeks enhancement.
13. In the overall circumstances of the case, the two appeals are against the quantum. The difference is, in the insurance Company appeal it seeks reduction and in the appeal by the claimants he seeks enhancement.
14. The compensation granted by the learned member is as under:
For Pain and sufferings, mental agony Rs. 40,000/-
Actual Medical expenses Rs.4,08,693/- For special diet and Conveyance, Rs. 10,000/- Permanent disability Rs.4,63,320/-
Future medical expenses Rs. 20,000/- Total Rs.9,42,013/-
15. Loss of future income is assessed at Rs.4,63,320/- calculated on the following basis: Rs.19,800/- x 12 x 13 x 15%= 4,63,320/-.
The multiplier considered by the learned Member is 13 as the age of the injured is considered at 49 years on the basis of the cause title. The learned counsel for the Insurance Company drew my attention to the positive admission of the petitioner, wherein the date of birth of the claimant is 16.9.1965 which is unequivocally stated by him. Thus, if the date of birth of the claimant is considered as ‘16.9.1965’ as on the date of accident, he would be 51 years. The multiplier applicable is 11. Thus, the compensation under this ground requires to be relooked into, as it comes to Rs.3,92,040/- (19,800/- x12 x 11 x 15%.).
If the compensation granted on the other heads is considered, the total amount comes to Rs.8,70,733/- instead of Rs.9,42,013/- and there would be a reduction of compensation of Rs.71,280/-. The rate of interest granted is at 6% p.a. The liability saddled on the insurer.
16. Thus, the appeal preferred by Insurance Company in M.F.A.No.746/2019 is allowed in part and the appeal preferred by the claimant in M.F.A.No.2265/2019 is dismissed.
Judgment and award dated 19.11.2018 passed in MVC No.2571/2016, by the learned IX Additional Small Causes Judge and XXXIV ACMM Court of Small Causes and Member, MACT-7, Bengaluru (SCCH-7), is modified awarding compensation of Rs.8,70,733/-as against Rs.9,42,013/- awarded by the Tribunal (reduction of compensation would be Rs.71,280/-) with interest at 6% p.a. from the date of petition till its realization.
Insurance Company is directed to deposit compensation amount by deducting the compensation if any already deposited together with interest at 6% p.a.
as ordered by the Tribunal within two weeks from the date of receipt of the certified copy of this judgment.
Amount in deposit be transmitted to the jurisdictional Tribunal forthwith.
tsn* Sd/- JUDGE