IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON' BLE MR. JUSTICE K.SOMASHEKAR MFA NO. 3199 OF 2015 (MV) C/W MFA NO. 3200 OF 2015 (MV) MFA NO.3199 /2015 BETWEEN:
M/S RELIANCE GENERAL INSURANCE COMPANY LTD.
NO.28, 5TH FLOOR EAST WING, CENTENARY BUILDING M.G. ROAD BENGALURU 560 045 REP. BY LEGAL MANAGER ... APPELLANT (BY SRI. H.N. KESHAVA PRASHANTH ADV.,) AND:
1. MD. SADIQ, S/O MASOOD AHMED NOW AGED ABOUT 34 YEARS R/A NO.281, 3RD CROSS MODI ROAD. NEAR INDIRA MEMOREIAL ENG. SCHOOL D.J. HALLI BENGALURU 560 045 2. SRI SURESH B S/O SHANKARAIAH B. NO. 290, AYYAPPANAGAR HOODI, BENGALURU 560 036 ... RESPONDENTS (BY SRI PRAKASH M.H. ADV FOR R-1) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:2.2.2015 PASSED IN MVC NO.4036/2013 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE, MACT, 28TH ACMM, BENGALURU, AWARDING A COMPENSATION OF RS. 3,35,521/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT WITH THE TRIBUNAL (FUTURE MEDICAL EXPENSES OF RS. 20,000/- WLL NOT CARRY INTEREST) MFA NO.3200/2015 BETWEEN M/S RELIANCE GENERAL INSURANCE COMPANY LTD.
NO.28, 5TH FLOOR EAST WING, CENTENARY BUILDING M.G. ROAD BENGALURU 560 045 REP. BY LEGAL MANAGER ... APPELLANT (BY SRI H.N. KESHAVA PRASHANTH, ADV., ) AND 1. SRI KARIM S.A. @ KARIM ALI S.A. S/O SYED YUSUF NOW AGED ABOUT 27 YEARS R/A NO. 17, CHANDINI CHOWK ROAD SHIVAJINAGAR BENGALURU 560 045 2. SRI SURESH B S/O SHANKARAIAH B. NO. 290, AYYAPPANAGAR HOODI, BENGALURU 560 036. ... RESPONDENTS (BY SRI. PRAKASH M.H, ADV., FOR R1) NOTICE TO R2 IS DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:2.2.2015 PASSED IN MVC NO.4037/2013 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE, MACT, 28TH ACMM, BENGALURU, AWARDING A COMPENSATION OF RS. 2,95,440/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT WITH THE TRIBUNAL THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for orders, with the consent of learned counsels on both sides, the same are taken up for final disposal.
2. MFA No.3199/2015 has been preferred by the appellant-Insurance company, challenging the quantum of compensation awarded by the II Addl. Small Causes Judge and XXVIII ACMM, Bengaluru in MVC No.4036/2013 by its impugned judgment dated 02.02.2015, seeking reduction in the compensation awarded by the Tribunal as it is exorbitant and excessive.
3. MFA No.3200/2015, has been preferred by the appellant-Insurance company, challenging the quantum of compensation awarded by the II Addl. Small Causes Judge and XXVIII ACMM, Bengaluru in MVC No.4037/2013 by its impugned judgment dated 02.02.2015, seeking reduction in the compensation awarded by the Tribunal as it is exorbitant and excessive. The Tribunal has awarded compensation in MVC No.4036/2013 in a sum of Rs.3,35,521/- with interest @ of 6% p.a. and in MVC No.4037/2013 in a sum of Rs. 2,95,440/- with interest @ 6% p.a.
4. The factual matrix of the appeals is as under:
It is stated in the claim petition that on 12.04.2013 at about 1.10 a.m. when appellants-claimants were proceeding on motor cycle bearing registration No.KA/51- J-4493 as a rider and pillion riders on Old Madras Road, 100 feet Junction, Indiranagara, Bengaluru, at the relevant point of time the driver of Tata Indigo LS car bearing No.KA/05-MF-2589 came in a greater speed in a rash and negligent manner and hit the aforesaid motor cycle, on account of which the claimants fell down and sustained grievous injuries. They have spent huge amount for their treatment and hence they have filed the claim petitions before the Tribunal seeking compensation.
5. In pursuance of summons issued in the claim petitions, the second respondent neither appeared before the Tribunal nor participated in the proceedings, the first respondent, being the insurer appeared through its counsel and filed statement of objections in detail to the respective claim petitions denying the averments made in the claim petitions and even on the ground that driver of the offending car did not possess with the valid driving licence and it is not liable to indemnify the risk of the owner and sought for dismissal of the claim petitions.
6. Based upon the pleadings of the parties, the Tribunal framed the issues and on evaluation of the evidence of P.W.1 Md.Sadiq in MVC No.4036/2013 & P.W. 2 Karim S.A. @ Karim Ali S.A. in MVC No.4037/2013 and evidence of P.W.3 & P.W.4 who are the doctors who provided treatment to injured, document Exs.P.5 and P.8 - wound certificates said to be issued by the doctors and also other documents got marked as per Exs.P.1 to P.14 respectively, wherein the claim petitions were clubbed and rendered clubbing judgments. Considering all these documents and evidence, the Tribunal awarded compensation in a sum of Rs.3,35,521/- and Rs.2,95,440/- together with interest @ 6% p.a. from the date of petition till the date of deposit with the Tribunal respectively.
7. Learned counsel for the appellants-Insurance company has taken me through the evidence of P.W. 3 and P.W.4 who are the doctor who treated P.W.1 and P.W.2 who has been subjected to examination, the Tribunal has not appreciated evidence of P.W.1 to P.W.4 as well as the documents P.W.5 and P.W.8-wound certificates respectively of these claimants. But the disability factor has been held by the Tribunal which is against the law. Therefore counsel for the appellants-
insurance company seeking intervention of this Court regarding disability factor as well as pain and sufferings and so also compensation awarded by the Tribunal in these two heads. By urging all these grounds he seeks reduction in the compensation awarded by the Tribunal by allowing these appeals.
8. Per contra, learned counsel for respondent No.1 appearing in both the appeals has taken me through the evidence of P.W.1 and P.W.2 said to be the injured who have filed the claim petitions before the Tribunal for seeking compensation, wherein they have sustained grievous injuries which is indicated in wound certificates, as per Ex.P.5 and Ex.P.8. There is no dispute that injured have been subjected to X-rays as per Exs.P.11 & 14 which has been produced by the claimants- appellants in order to substantiate their case. The Tribunal after considering all these factors and also oral and documentary evidence on record has awarded just and fair compensation which does not call for any interference of this court and hence prays to dismiss these appeals.
9. Having regard to the contentions taken by the learned counsel for the appellants respectively relating to the judgment rendered by the Tribunal in MVC Nos.4036/2013 & 4037/2013, it is necessary to state that there is no dispute regarding the injuries sustained by the claimants-appellants in the accident which is indicated in wound certificates and also by the evidence of P.W.3 and P.4 the doctors who treated them and also is supported by the documents produced as per Exs.P.5, and P.8 wound certificates and also X-rays Exs.P.11 & P.14 and they have suffered with comminuted fracture upper 1/3rd shaft of left tibia and fibula, fracture lower 1/3rd anterior aspect of left tibia and fibula and taken treatment as an inpatient from 12.04.2013 till 16.04.2013. P.W.3 the doctor who is also an Orthopedic surgeon in Bowring hospital has specifically stated the injured have been subjected to treatment and also have suffered with disability.
Therefore it requires to re-appreciate the evidence of P.W.3 and 4 coupled with evidence of P.W.1 and 2 and the Tribunal has not considered this factor in proper perspective and has held the disability at 14% and found to be higher on side and needs to be reduced to 12%. The compensation towards loss of future income due to disability works out in MVC No.4036/2013 as under:
Rs.6000 x 12 x 16 x 12% = Rs.1,38,240/- as against Rs. 1,61,280/-.
10. The Tribunal has awarded compensation in respect of pain and sufferings in a sum of Rs.70,000/- but keeping in view of the evidence of P.W.1 and so also wound certificate Ex.P.5, discharge summary report it requires to be reduced in a sum of Rs.20,000/- which comes to Rs.50,000/- as against Rs.70,000/-.
11. Insofar as incidental charges, Conveyance, Nourishment, Food and attending charges, the Tribunal has awarded Rs.25,000/- which is found to be exorbitant and excessive, it requires to be reduced in a sum of Rs.10,000/- which comes to Rs.15,000/- as against Rs.25,000/-
12. In view of the discussion made above and with the altered factors, the compensation is re-worked out in MVC No.4036/2013 as under:-
Particulars Compensation awarded by MACT Compensation enhanced by this Court Total reduction amount
13. However, the compensation awarded by the tribunal in MVC No.4036/2013 under other heads are found to be reasonable and does not call for interference. Thus, in all the claimant is entitled for a compensation of Rs.2,82,481/- with interest at 6% p.a. from the date of petition, till realization.
14. Keeping in view of the arguments stated supra it is said that the case in MVC No.4037/2013 relating to MFA No.3200/2015, it requires to re-appreciate the evidence of P.W.4 doctor who has given treatment to P.W.2, and the Tribunal has not considered this factor in proper perspective and has held the disability at 14% and found to be higher on side and needs to be reduced to 12%. The compensation towards loss of future income due to disability works out as under:
Rs.6000 x 12 x 18 x 12% = Rs. 1,55,520/- as against Rs. 1,81,440/-
15. The Tribunal has awarded compensation in respect of pain and sufferings in a sum of Rs.60,000/- but keeping in view of the evidence of P.W.2 and so also wound certificate Ex.P.8, discharge summary report it requires to be reduced in a sum of Rs.5,000/- which comes to Rs.55,000/- as against Rs.60,000/-.
16. In view of the discussion made above and with the altered factors, the compensation is re-worked out in MVC No.4037/2013 as under:-
Particulars Compensation awarded by MACT Compensation enhanced by this Court Total reduction amount
17. However, the compensation awarded by the tribunal in MVC No.4037/2013 under other heads are found to be reasonable and does not call for interference. Thus, in all the claimant is entitled for a compensation of Rs.2,64,520/- with accrued interest at 6% p.a. from the date of petition, till realization.
18. For the reasons and findings as stated above, I proceed to pass the following:
ORDER Appeals preferred by the appellants in MFA No.3199/2015 and MFA No.3200/2015 are hereby allowed-in-part.
The impugned judgment and award dated 02.02.2015 passed by the Tribunal in M.V.C.Nos 4036 & 4037 of 2013 is hereby modified.
The claimants in both the appeals are entitled for reduced compensation of Rs.2,82,481/- and Rs. 2,64,520/- with accrued interest @ 6% p.a. from the date of petition, till realisation.
The amount in deposit, if any, in MFA Nos.3199/2015 and 3200/2015 shall be transmitted to the concerned MACT in MVC Nos.3199/2015 and 3200/2015 forthwith.
The appellants-insurance company in MFA No.3199/2015 and MFA No.3200/2015 shall deposit the reduced compensation amount of Rs. 2,82,481/- and Rs.2,64,520/- with accrued interest at 6% p.a. before the Tribunal within a period of 4 (four) weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimants in both the cases on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
Sd/- JUDGE HR