SRI CHANDRAPPA v. GNANESHWARE ANBALG

(BY SRI. B PRAMOD.,ADVOCATE) AND:

#1. GNANESHWARI ANBALGAN S/O P GOVINDAN, R/O NO.10, SSS BUILDING, A.V. ROAD, CHAMARAJPET, BANGALORE-560018

#2. THE BRANCH MANAGER UNITED INDIA INSURANCE CO LTD BRANCH OFFICE, AKKAMAHADEVI RAOD, P.J. EXTENSION, DAVANAGERE – 577004

#3. S SHANKAR S/O SELVAM, MAJOR, , R/O NO.3, KUKKALAMALLI, THIPPIREDDYHALLY, DHARMAPURI DIST. BOMMIDI, ANDHRA PRADESH 534411 HC-KAR - 4 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER

#4. BRANCH MANAGER THE NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE, NEAR NANJUNDESHWARA PETROL BUNK, P.B.ROAD, CHITRADURGA -577 501

#5. SMT. MUKTASYAKKA W/O PRABHAKAR, MAJOR, SENIOR ASSISTANT, UBDT COLLEGE OF ENGINEERING, DAVANAGERE -577004.

#6. DIVISIONAL MANAGER CHOLAMANDALAM MS GENERAL INSURANCE CO LTD., DIVISIONAL OFFICE, 135/5, 2ND FLOOR, 15TH CROSS, J.P.NAGAR, 3RD PHASE, BANGALORE-560078 ...RESPONDENTS (V/O/DTD 04/03/14, NOTICE TO R1 & R3 D/W SRI. ANUP SEETHARAMRAO, ADVOCATE FOR SRI. B.C. SEETHARAMRAO, ADVOCATE FOR R2 SRI. A RAVISHANKAR, ADVOCATE FOR R4 R5 SERVED SRI. O. MAHESH, ADVOCATE FOR R6) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:8.10.2012 PASSED IN MVC NO.364/2011 ON THE FILE OF PRINCIPAL CIVIL JUDGE(SR.DN) & ADDITIONAL MACT, CHITRADURGA, PARTLY FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. ALLOWING PETITION CLAIM THE - 5 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER HC-KAR IN MFA NO. 611/2013 BETWEEN: THE DIVISIONAL MANAGER CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED., DIVISIONAL OFFICE, NO.135/5, 2ND FLOOR, 15TH CROSS, J.P.NAGAR, 3RD PHASE, BANGALORE 560078 NOW AT THE CLAIMS MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, UNIT NO.04, NINTH FLOOR (LEVEL-06) " GOLDEN HEIGHTS" COMPLEX, 59TH "C" CROSS, INDUSTRIAL SUBURB, RAJAJINAGAR, 4TH "M" BLOCK, BENGALURU 560010 BY IT MANAGER. ...APPELLANT (BY SRI. O MAHESH., ADVOCATE) AND:

#1. RATHNAMMA AGED ABOUT 47 YEARS, W/O CHANDRAPPA, R/O ANEKONDA VILAGE, DAVANAGERE TALUK 577002

#2. GNANESHWARI ANBALGAN MAJOR, S/O. P. GOVINDAN, R/O.NO.10, SSS BUILDING, A.V.ROAD, CHAMARAJPET, BANGALORE-560018 HC-KAR - 6 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER

#3. THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LIMITED., BRANCH OFFICE, AKKAMAHADEVI ROAD, P.J. EXTENSION, DAVANAGERE 577002

#4. S SHANKAR MAJOR, S/O.SELVAM, R/O NO.3, KUKKALAMALLI THIPPIREDDY HALLY, DHARMAPURI DISTRICT, BOMMIDI, ANDHARA PRADESH -04

#5. THE BRANCH MANAGER NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH OFFICE, NEAR NANJUNDESHWARA PETROL BUNK, P.B.ROAD, CHITRADURGA 577501

#6. SMT MUKTASYAKKA MAJOR, W/O. PRABHAKAR, SENIOR ASSISTANT, UBDT COLLEGE OF ENGINEERING DAVANAGERE - 577002 ...RESPONDENTS (V/O/DTD 17.01.2013, NOTICE TO R2, R4 AND R6 D/W SRI. B. PRAMOD, ADVOCATE FOR R1 SRI. ANUP SEETHARAMRAO, ADVOCATE FOR SRI. B.C. SEETHARAMRAO, ADVOCATE FOR R3 SRI. A RAVISHANKAR, ADVOCATE FOR R5) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:8.10.2012 PASSED IN MVC NO.364/2011 ON THE FILE OF SENIOR CIVIL JUDGE & CJM, ADDITIONAL MACT, CHITRADURGA, AWARDING A COMPENSATION OF RS.73,400/- WITH HC-KAR - 7 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER INTEREST @ 6% P.A FROM THE DATE OF PETITIONS TILL REALIZATION. IN MFA NO. 612/2013 BETWEEN: THE DIVISIONAL MANAGER CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD., DIVISIONAL OFFICE, NO.135/5, 2ND FLOOR, 15TH CROSS, J.P.NAGAR, 3RD PHASE, BANGALORE 560078 NOW AT THE CLAIMS MANAGER, CHOLAMANDALAM MS GENERAL INSURANCE CO. LTD, UNIT NO.04, NINTH FLOOR (LEVEL-06) "GOLDEN HEIGHTS" COMPLEX, 59TH "C" CROSS, INDUSTRIAL SUBURB, RAJAJINAGAR, 4TH "M" BLOCK, BENGALURU 560010 BY IT MANAGER. ...APPELLANT (BY SRI. O MAHESH.,ADVOCATE) AND:

#1. CHANDRAPPA AGED 52 YEARS S/O.HANUMANTHAPPA, R/O.ANEKONDA VILLAGE, DAVANAGERE TALUK 577002

#2. GNANESHWARI ANBALGAN MAJOR, S/O.P. GOVINDAN, R/O.NO.10, SSS BUILDING, A.V.ROAD, CHAMARAJPET, BANGALORE-560018 HC-KAR - 8 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER

#3. THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LIMITED., BRANCH OFFICE, AKKAMAHADEVI ROAD, P.J.EXTENSION, DAVANAGERE – 577002

#4. S SHANKAR MAJOR, S/O. SELVAM, R/O NO.3, KUKKALAMALLI THIPPIREDDY HALLY, DHARMAPURI DISTRICT, BOMMIDI, ANDHARA PRADESH -04.

#5. THE BRANCH MANAGER NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH OFFICE, NEAR NANJUNDESHWARA PETROL BUNK, P.B.ROAD, CHITRADURGA -577501.

#6. SMT MUKTASYAKKA MAJOR, W/O. PRABHAKAR, SENIOR ASSISTANT, UBDT COLLEGE OF ENGINEERING DAVANAGERE 577002 ...RESPONDENTS (V/O DATED 22.01.2013 NOTICE TO R2, R4 & R6 D/W SRI. B PRAMOD, ADVOCATE FOR R1 SRI. ANUP SEETHARAMRAO, ADVOCATE FOR SRI. B.C. SEETHARAMRAO, ADVOCATE FOR R3 SRI. A RAVISHANKAR, ADVOCATE FOR R5) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:8.10.2012 PASSED IN MVC NO.370/2011 ON THE FILE OF SENIOR CIVIL JUDGE & CJM, ADDITIONAL MACT, CHITRADURGA, AWARDING A COMPENSATION OF RS.81,400/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL REALIZATION. HC-KAR - 9 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA ORAL JUDGMENT Common judgment and award dated 08.10.2012 is passed by the Principal Civil Judge (Sr.Dn.) and Addl. MACT, Chitradurga ('Tribunal' for short) in MVCs No.364/2011 and 370/2011. Both the injured claimants who met with an accident on 11.03.2011 have filed two separate claim petitions for compensation. Petitioner in MVC No.364/2011 claimed compensation Rs.10,00,000/-, but the Tribunal considering the entire evidence on record, granted compensation of Rs.73,400/- with interest at the rate of 6% p.a. Petitioner in MVC No.370/2011 claimed compensation of Rs.15,00,000/-, but the Tribunal considering the entire evidence on record, granted compensation of Rs.81,400/- with interest at the rate of 6% p.a. Aggrieved by the said judgment and award, petitioner MVC No.370/2011 - 10 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER HC-KAR Sri. Chandrappa has filed MFA 48/2013 and the petitioner in MVC No.364/2011 Smt. Rathnamma has MFA No.26/2013. Respondent No.6-Insurance Company i.e., Cholamandalam MS General Insurance Co. Ltd. also, being aggrieved by the impugned judgment and award, filed MFAs No.611/2013 and 612/2013.

#2. Heard the arguments of learned counsel for both the parties.

#3. The manner of accident is on 11.03.2011, the petitioners were traveling in a Tata Indica cab bearing Reg.No.KA-17/A-3925. When reached NH-4 Chitradurga, bearing Reg.No. KA-01/774 was parked without parking indicators, thereby another lorry bearing Reg.No.TN-27/C-2399 which was coming from Davangere side came in a high speed in rash and negligent manner and dashed to the parked lorry. The driver of Tata Indica car was also driving the said car in a high speed in rash and negligent manner and hit the - 11 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER HC-KAR lorry bearing Reg.No.TN-27/C-2399 from behind. As a result, the petitioners sustained grievous injuries. Charge sheet is filed against the drivers of both the lorries and car for their rash and negligent driving. All of them pleaded guilty and also paid fine. Thus, the Tribunal considering the said aspect in detail, had observed that, lorry bearing Reg.No.KA-01/774 was parked and lorry bearing Reg.No.TN-27/C-2399 dashed it from behind. After sometime, the driver of the car bearing Reg.No.KA-17/A- 3925 also came and dashed the lorry bearing Reg.No.TN- 27/C-2399. As already an accident was occurred, the Tribunal observed that, the driver of the car ought to have taken utmost caution and care, but the accident occurred due to his negligence only, as such he is liable to pay the compensation. The drivers of both the lorries cannot be held liable as they have not contributed to the said accident.

#4. Learned counsel for respondent No.6-Insurance Company contends that, charge sheet is filed against all - 12 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER HC-KAR the three drivers, as such all of them are jointly and equally liable to pay compensation.

#5. No doubt charge sheet is filed against all three drivers for the said accident occurred on 11.03.2011, but it is not a case of composite negligence of all the vehicles as all the vehicles did not collude with each other at the same time. Initially, there was one parked lorry, another lorry dashed it without noticing the same. After some time, the driver of the car dashed the lorry bearing Reg.No.TN-27/C-2399 and inmates of the car sustained injuries. Charge sheet was filed against all the drivers for their negligence. The Tribunal rightly discussed the negligence of the driver of the car, however as there are three joint tortfeasors, this Court finds that the negligence of all three drivers is to be apportioned as follows: Driver of the car : 60% Drivers of the lorries : 20% each - 13 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER HC-KAR MFA No.48/2013:

#6. MFA No.48/2013 is filed by Sri. Chandrappa. As per Ex.P46 wound certificate, he sustained the following injuries: 1) Lacerated wound present over the lateral aspect of right fore arm, measuring 2 x 1 cm. irregular, blackish, aged less than 4 days. 2) Swelling and tenderness over right fore arm, crepitation present, abnormal mobility present of right fore arm. 3) Abrasion present over the left leg situated at mid part of shin, measuring 3 x 2 cm. irregular, blackish in colour, aged less than 4 days. It was observed that, first and third injuries are simple and second injury is grievous in nature. Discharge card filed at Ex.P15 reveals that, he was admitted on 16.03.2011 and discharged on 23.03.2011. He was inpatient for seven days. He also sustained fracture of proximal 1/3rd of right ulna. He examined PW-4 Doctor, who assessed the disability at 30% and 1/3rd of it comes to 10%. The petitioner was aged 55 years. The applicable multiplier is '11'. Though he has stated that he was an Agriculturist - 14 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER HC-KAR and earning Rs.10,000/- per month, no documents were produced to prove his income. He met with an accident on

11.03.2011. Therefore, as per the guidelines of the Karnataka State Legal Services Authority, his income is taken as Rs.6,500/- per month. Loss of future income comes to Rs.6,500/- x 12 x 11 x 10% = Rs.85,800/-. As he has sustained one grievous injury, he might not have attended agricultural work for at least three months. Hence, Rs.6,500/- x 3 = Rs.19,500/- is awarded towards loss of income during laid-up period. The petitioner is also entitled for Rs.15,000/- for pain and sufferings; Rs.15,000/- loss of amenities; Rs.30,000/- transportation, extra nourishment and attendant charges, etc.; Rs.16,000/- towards medical expenses. Total compensation comes to: Particulars Loss of future income Loss of income during laid-up period Pain and sufferings Amount Rs. 85,800 19,500 15,000 - 15 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER HC-KAR Loss of amenities 15,000 16,000 16,000 Transportation, diet and attendant charges, etc. Medical expenses Total 1,67,300 Hence, total compensation is enhanced from Rs.81,400/- to Rs.1,67,300/-. MFA No.26/2013:

#7. MFA No.26/2013 is filed by Smt. Rathnamma. As per Ex.P6 wound certificate, she sustained the following injuries: 1) CLW over the nasal alwal region right side bleeding present passing through to oral cavity. 2) CLW over the left eye brow region. 3) Tenderness present over nose. 4) Swelling present, abrasion present over maxillary region. 5) Tenderness present over the left scapular region. 6) Tenderness present over thoracic spinal region. 7) Loss of contract incisor left tooth. - 16 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER HC-KAR It was observed that, sixth and seventh injuries are grievous and other injuries are simple in nature. Discharge card filed at Ex.P9 reveals that, she was admitted on 12.03.2011 and discharged on 19.03.2011. She was inpatient for seven days. As per Ex.P6, she has sustained the fracture of T4 vertebra. She examined PW-3 Doctor, who assessed the disability at 20%, but in the cross-examination it was elicited that he was not the Doctor who treated her and PW-3 had not taken out the x-ray of the petitioner before issuing disability certificate. Thus, he has not assessed the disability clinically. As the petitioner sustained one fracture, whole body disability was assessed at 5%. It is stated that, the petitioner was doing vegetable vending business and earning Rs.6,000/- per month, but has not filed any proof of income. She met with an accident on 11.03.2011. Therefore, her income has to be taken as Rs.6,500/- per month as per the guidelines of the Karnataka State Legal Services Authority. She was aged 45 years and applicable multiplier is '13'. - 17 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER HC-KAR Thus, loss of future income comes to Rs.6,500/- x 12 x 14 x 5% = Rs.54,600/-. As she sustained two grievous injuries, she might not have attended her vegetable vending work for at least three months. Hence, Rs.6,500/- x 3 = Rs.19,500/- is awarded towards loss of income during laid-up period. This Court, considering the nature of injuries and period of hospitalization, awards compensation of Rs.15,000/- towards pain and sufferings; Rs.15,000/- towards loss of amenities; Rs.15,000/- towards medical expenses and Rs.30,000/- towards conveyance, extra nourishment and attendant charges, etc. Total compensation comes to: Particulars Loss of future income Loss of income during laid-up period Pain and sufferings Loss of amenities Medical expenses Amount Rs. 54,600 19,500 15,000 15,000 15,000 - 18 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER HC-KAR Conveyance, diet and attendant charges, etc. Total 30,000 1,49,100 Hence, total compensation is enhanced from Rs.73,400/- to Rs.1,49,100/-.

#8. In the result, the following order is passed: ORDER i. MFAs No.48/2013 and 26/2013 are allowed; ii. MFAs No.611/2013 and 612/2013 are allowed-in-part; iii. The common judgment and award dated

08.10.2012 passed in MVCs No.364/2011 and 370/2011 by the Tribunal is modified; iv. The petitioners in MVC No.370/2011 and MVC No.364/2011 are entitled to total compensations of Rs.1,67,300/- and Rs.1,49,100/- respectively along with interest at the rate of 6% p.a. from the date of petitions till the date of realization; v. Respondent No.6 - Insurance Company is directed deposit 60% - 19 - NC: 2025:KHC:36809 MFA No. 48 of 2013 C/W MFA No. 26 of 2013 MFA No. 611 of 2013 AND 1 OTHER HC-KAR compensation amounts and respondents No.2 and 4 - Insurance Companies of the lorries are directed to deposit 40% (20% each) of the compensation amounts, within one month from the date of this order; vi. On such deposits, the petitioners are permitted to withdraw the entire amount along with interest accrued on the same; vii. Amount in deposit, shall be transferred to the Tribunal; viii. Excess amount deposited, if any, shall be refunded to respondent No.6-Insurance Company. Sd/- (P SREE SUDHA) JUDGE PA List No.: 1 Sl No.: 27