IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A NO.10185 OF 2013 (MV) C/W MFA CROB NO.87 OF 2016 (MV - I) IN M.F.A NO.10185 OF 2013:
BETWEEN:
UNITED INDIA INSURANCE CO., LTD., ITS REGIONAL OFFICE, 5TH FLOOR, KRISHI BHAVAN, NRUPATHUNGA ROAD, BANGALORE - 01 REP. BY ITS ADMIN. OFFICER SRI SANDEEP. ...APPELLANT (BY SRI K.S.LAKSHMINARAYANAPPA, ADVOCATE FOR SEETHARAMA RAO B C, ADVOCATE) AND:
1. SRI T THIMMESH, AGED ABOUT 25 YEARS, S/O THIPPESWAMY, RESIDING AT NO. 46, 4TH MAIN, RAJESHWARINAGAR, LAGGERE, BANGALORE - 58 2. SMT. K. SUMITHRA, MAJOR, W/O NAGARAJU, R/A NO.16/1, 2ND MAIN, 2ND CROSS, RAJAJINAGAR, V.N POST, BANGALORE – 58. …RESPONDENTS (BY SRI D S SRIDHAR, ADVOCATE FOR R1, VIDE ORDER DATED: 01.08.2016 R-2 H/S) ***** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 20.09.2013 PASSED IN MVC NO.8857/2010 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING COMPENSATION OF RS.2,05,140/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA CROB NO.87 OF 2016:
BETWEEN:
T THIMMESH, S/O THIPPESWAMY, AGED ABOUT 28 YEARS, R/A #46, 4TH MAIN, RAJESWARINAGAR, LAGGERE, BANGALORE-58, PRESENTLY R/A #18, C/O RAMAKRISHNA IST MAIN, PARVATHINAGAR, LAGGERE, BANGALORE-560058, (NEAR MANDENA GARMENTS). ...CROSS OBJECTOR (BY SRI SRIDHAR D S, ADVOCATE) AND:
1. SUMITHRA K, W/O NAGARAJU, MAJOR, #16/1, 2ND MAIN, 2ND CROSS, RAJAJINAGAR, V N POST, BENGALURU-560058.
2. M/S UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE-VI, #89/1, 2ND FLOOR, SAMPIGE ROAD, MALLESWARAM, BENGALURU-560003, REPRESENTED BY ITS DIVISIONAL MANAGER. …RESPONDENTS (BY SRI K.S.LAKSHMINARAYANAPPA, B C SEETHARAMA RAO, ADVOCATE FOR R2) ***** THIS MFA CROB IN MFA NO.10185/2013 PASSED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED: 20.09.2013 PASSED ON MVC NO.8857/2010 ON THE FILE OF THE 13TH ADDITIONAL SMALL CAUSE JUDGE AND MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA ALONG WITH CROSS OBJECTION COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Both insurer and claimant are in appeal aggrieved by the judgment and award dated 20.09.2013 in MVC No.8857/2010 on the file of Motor Accident Claims Tribunal Court of Small Causes at Bengaluru. Claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries suffered in a motor vehicle accident. It is stated that on 13.6.2010 when the claimant was proceeding as pillion rider on TVS XL bearing No.KA-41 H 1508 the rider of the two wheeler rode the same in high speed, rash and negligent manner, due to which he lost control and both the rider and pillion rider fell down and suffered grievous injuries.
2. It is stated that the claimant was working as fabricator and was earning a sum of `.8,000/- p.m. He was aged about 24 years as on the date of accident.
3. On issuance of notice both the respondents appeared and filed their separate statement. Respondent No.1 contended that the rider of the motorbike was having valid driving license as on the date of accident and policy was in force, issued by the second respondent insurer. Second respondent insurer contended that the rider of the motorcycle was not having valid and effective driving license. Hence the respondent No.1 violated the terms and conditions of the policy. The insurer also contended that, on the date of accident the claimant himself was riding the motorbike and due to the negligence of the claimant himself the accident occurred. In support of his case the claimant examined himself as PW.1 and also examined PW.2, doctor apart from marking documents at EXs.P1 to P11. Respondent insurer examined RW.1 to RW.3 and marked documents EXs.R1 to R3.
4. The tribunal on appreciating the material on record awarded total compensation of Rs.2,05,140/- with interest at the rate of 8% p.a. from the date of petition till realization on the following heads Pain and Sufferings `.25,000/-
Loss of income during the Treatment, attendant charge, Diet, conveyance and other Charges `.10,000/-
Medical expenditure `.23,500/-
Loss of future income `.1,16,640/- (4,500/- x 12 x 12/100 x 18) Loss of amenities and comfort `. 30,000/-
Total `.2,05,140/-
5. While awarding the above compensation the tribunal assessed the monthly income of the claimant at Rs.4,500/- p.m. and whole body disability at 12%. The insurer aggrieved by the saddling of the liability is before this Court in MFA No.10185/2013 and the claimant is in Cross Objection No.87/2016 praying for enhancement of compensation.
6. Heard the learned counsels for the parties and perused the material on record including the lower court records.
7. The learned counsel for the insurer would submit that the tribunal committed an error in saddling the liability on the insurer without considering the fact that the claimant himself was riding the TVS motorcycle. It is his further submission that as the claimant would not be entitled for compensation a false claim has been made showing that one Sheshagiri was riding the motorcycle on the date of accident. It is his submission that there is contradiction between the complaint and the evidence of PW.1. The complaint is filed by claimant himself. He states in the complaint that one Sheshagiri was riding the vehicle whereas in his cross examination he has stated that one Chandru was riding the motorcycle. Further the learned counsel for the insurer referring to hospital records EX.R1 and R2 submits that the claimant sustained accidental injuries while riding the motorcycle himself and false claim has been made for unlawful gain.
8. The insurer further submits that the doctor has opined that the claimant suffers from 18% whole body disability, whereas the doctor has failed to indicate what is the percentage of disability to a particular limb. The claimant has suffered fracture of left femur. As such, the disability of 18% is to be taken as disability to a particular limb. If the disability of 18% is to a particular limb, 1/3rd of the same is to be taken for whole body disability. He submits that the whole body disability in case of the claimant would be only 6%. Thus, he prays for allowing the appeal.
9. Per contra, the learned counsel for the claimant submits that the tribunal correctly saddled the liability on the insurer. He submits that on the date of the accident the claimant was proceeding as pillion rider and one Sheshagiri was riding the motorcycle. The charge sheet is filed against one Sheshagiri and as such, the contention of the insurer is liable to be rejected. He further submits that nowhere in the hospital record or police record it is stated that the claimant was riding the motorcycle. On the other hand in all the records it is stated that the claimant has sustained injury on account of fall from the motorcycle. Further, the learned counsel submits that the claimant was working as fabricator and was earning more than `.8,000/- p.m. but the tribunal without there being any reason, has assessed the income of the claimant at `.4,500/- p.m., which is on the lower side. He submits that in the year 2010 even a coolie earned `.200/- per day, which would be `.6,000/- p.m. Learned counsel for the claimant submits that the claimant has sustained fracture of left femur and he was inpatient for 22 days for treatment. The doctor has rightly assessed the whole body disability at 18%. Thus, he prays for allowing the appeal of the claimant.
10. Having heard the learned counsel for the parties and on perusal of the material on record including the lower court record the following points would arise for consideration in this appeal.
(1) Whether the tribunal is justified in saddling the liability on the insurer rejecting the contention of the insurer that the claimant himself was riding the motorbike?
(2) Whether the income assessed by the tribunal at the rate of `.4,500/- p.m. of the claimant is proper and correct?
(3) Whether the whole body disability assessed by the tribunal at 18% is proper and correct?
11. Answer to the above points are in the negative for the following reasons :
The accident occurred on 13.6.2010 involving TVS XL motorcycle bearing No.KA 41 H 1508 and the accidental injury suffered by the claimant are not in dispute in this appeal. The insurers contention is that the claimant himself was riding the motorcycle and as such he is not entitled for any compensation. The case of the claimant is that he was proceeding as pillion rider in the TVS XL motorcycle and one Sheshagiri was riding the motorcycle. It is pertinent to note that the police have filed charge sheet against the said Sheshagiri who according to the claimant was riding the motorcycle. The PW.1 claimant in his evidence states that one Chandru was riding the motorcycle, but there is no mention in any of the document that the claimant was riding the motorcycle. Hospital records at EX.R1 and R2 of the Kirloskar Memorial Hospital would note that the claimant has given history as fall from the motorcycle. In EX.P10(a) case sheets of Sanjay Gandhi Institute of Trauma and Orthopaedics also notes that the claimant sustained injury due to fall from motorcycle. Nowhere either in the medical records or in the police records it is stated that the claimant was riding the motorcycle. RW.3 is the Investigating Officer. In his evidence he has stated that he has investigated the accident case and he has filed charge sheet against one Sheshagiri. From close scrutiny of the entire evidence and the documents on record the tribunal is justified in saddling the liability on insurer which needs no interference.
The claimant states that he was working as fabricator and was earning `.8,000/- p.m. To establish his income as `.8,000/- p.m. the claimant has not placed on record any documents or material. In the absence of any material to indicate the exact income of the claimant the tribunal has assessed his income notionally at `.4,500/- which is on the lower side.
Looking to the standard of living and price index a coolie earned a sum of `.200/- per day in the year 2010. The accident is of the year 2010. This Court and the Lok Adalath while settling the accident claims of the year 2010 would normally assess the notional income at `.5,500/- p.m. In this case also it is appropriate to assess the income of the claimant at `.5,500/- as notional income of the claimant.
EX.P6 is Wound Certificate; EX.P7 is discharge summary. EXs.P6 and P7 would indicate the injury sustained by the claimant and treatment taken by him for 21 days as inpatient. The claimant has suffered fracture of left femur. The doctor PW.2 in his evidence stated that the claimant suffers from 18% whole body disability. But PW.2, the doctor nowhere states about the disability suffered by the claimant to a particular limb. It is to be seen that as the claimant has suffered fracture of left femur the disability stated by PW.2 doctor relates to the fracture of femur. Therefore it is to be taken as disability to a particular limb at 18%. Normally the whole body disability is assessed at 1/3rd disability to a particular limb. The claimant has suffered 18% disability to a particular limb, the whole body disability could be assessed at 6%.
12. Thus the claimant would be entitled for the modified compensation as follows:
Pain and suffering `.25,000/-
Loss of income during laid Up period (5,500 x 3) `.16,500/-
Attendant charges, conveyance, Diet and other charges `.10,000/-
Medical expenses `.23,500/- Loss of amenities and comfort `.30,000/-
Loss of future income (5500 x 12 x 18 x 6/100) `.71,280/-
Total `.1,76,280/-
13. Thus, the claimant would be entitled for total compensation of `.1,76,280/- with interest at the rate of 8% p.a. from the date of petition till realization as against `.2,05,140/-. Hence the compensation is reduced in a sum of `.28,860/-.
14. Both the appeals in MFA No.10185/2013 MFA Crob. No.87/2016 are allowed in part. The judgment and award of the court below is modified to the above extent.
15. The amount in deposit in MFA No.10185/2013 be transmitted to the concerned Tribunal.
Sd/- JUDGE ykl