The High Court
Case Details
- 1 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MRS JUSTICE K.S.MUDAGAL AND THE HON'BLE MR JUSTICE C.M. POONACHA MFA CROSS OBJECTION NO. 124 OF 2014 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 1252 OF 2014 (MV-I) IN MFA CROB No.124/2014 BETWEEN SRI R T BACHHE GOWDA SON OF LATE THAMMANNA AGED ABOUT 44 YEARS RESIDENT OF MELUR SIDDLAGHATTA POST AND TALUK CHICKBALLAPURA DISTRICT 562012. SINCE INJURED AND IN ALTERED SENSORIUM REPRESENTED BY HIS WIFE SMT M MUNIRATHNA AS HIS NEXT FRIEND Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA (BY SMT V VETRI LAXSHMI, ADVOCATE FOR SRI VASANTHAPPA, ADVCOATE) … CROSS OBJECTOR AND 1 . M/S BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LTD., #31, GROUND FLOOR, PBR TOWERS, 1ST CROSS, NEW MISSION ROAD NEXT TO BANGALORE STOCK EXCHANGE BANGALORE 560024 2 . SRI BHARADWAJ - 2 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 S/O A S GOPALARATHNAM #44, 4TH MAIN ROAD GANGANAGAR EXTENSION BANGALORE 560032 (BY SRI O MAHESH, ADVOCATE FOR R1 R2 SERVED) …RESPONDENTS THIS MFA CROB IN MFA NO.1252/2014 IS FILED U/O 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 07.11.2013 PASSED IN MVC NO.2233/2008 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSE JUDGE, & XXXIII ACMM, MEMBER, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC. IN MFA No.1252/2014 BETWEEN THE LEGAL MANAGER BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, NO.31, GROUND FLOOR, PBR TOWERS, 1ST CROSS, NEW MISSION ROAD, NEXT TO BANGALORE STOCK EXCHANGE, BANGALORE-560024. NOW AT BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD., REGIONAL OFFICE GOLDEN HEIGHTS, 4TH LEVEL, NO.1/2, 59TH CROSS, 4TH "M" BLOCK, RAJAJINAGAR, BANGALORE-560010 BY ITS MANAGER. (BY SRI O MAHESH, ADVOCATE) AND 1 . SRI R.T. BACHHE GOWDA AGED ABOUT 50 YEARS, S/O LATE THAMMANNA, RESIDENT OF MELUR, SHIDDLAGHATTA POST & TALUK 562105 CHICKBALLAPURA DISTRICT. ...APPELLANT - 3 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 SINCE INJURED ALLEGED IN COMA STATE, REPRESENTED BY HIS WIFE SMT M MUNIRATHNA AS HIS NEXT FRIEND.
Legal Reasoning
2 . SRI BHARADWAJ MAJOR, S/O.A.S. GOPALARATHNAM, NO.44, 4TH MAIN ROAD, GANGANAGAR EXTENSION, BANGALORE-560032. (EX-PARTE BEFORE MACT) (BY SMT V VETRI LAXSHMI, ADVOCATE FOR SRI VASANTHAPPA, ADVOCATE FOR R1 R2 SERVED) …RESPONDENTS THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 7.11.2013 PASSED IN MVC NO.2233/2008 ON THE FILE OF THE 8TH ADDITIONAL SMALL CAUSES JUDGE, 33RD ACMM, MEMBER, MACT, BANGALORE, AWARDING A COMPENSATION OF RS.8,41,000/- WITH INTEREST @ 8% P.A FROM THE DATE OF PETITION TILL REALIZATION OF SAME FROM THE RESPONDENTS AND ETC. THE CROSS OBJECTION AND APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.01.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, POONACHA.J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL and HON'BLE MR JUSTICE C.M. POONACHA CAV JUDGMENT (PER: HON'BLE MR JUSTICE C.M. POONACHA) The above appeal is filed by the insurer and the cross objection is filed by the claimant. Since in the appeal and the cross objection, the judgment and award dated 07.11.2013 - 4 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 passed in MVC No.2233/2008 by VIII Additional Small Causes Judge & XXXIII ACMM, Member - MACT., (SCCH – 5), Bengaluru1 is impugned, they are taken up together for consideration. 2. Parties are referred to as per their ranks before the Tribunal for the sake of convenience. 3. It is the case of the claimant that on 09.03.2008 at about 10.00 pm., after attending a marriage function at Sri Gandha Palace, B.B. Road, Kodige Halli Gate, when he was returning towards his car, motorcycle bearing registration No.KA-04-ET-7066 driven by respondent No.2 in a rash and negligent manner, hit the claimant causing the accident in question, wherein the claimant fell down and sustained grievous injuries, for which, he took treatment at various hospitals. Claiming compensation for the injuries sustained, the claimant instituted the claim proceedings through his wife arraying the insurer and owner of the motorcycle as respondent Nos.1 and 2 before the Tribunal respectively. 1 Hereinafter referred to as the ‘Tribunal’ - 5 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 4. Respondent No.1 - insurer entered appearance and contested the claim proceedings. Respondent No.2 – owner has remained ex parte. The wife of the claimant got examined herself as PW.1, Medical Record Keeper as PW.2 and two Doctors as PW.3 and CW.1. Exs.P1 to P30 were marked in evidence. Respondent No.1 - insurer got examined its investigator as RW.1 and marked Exs.R1 to R8. The Tribunal, by its judgment and award dated 07.11.2013 partly allowed the claim petition and awarded a sum of `8,41,000/- together with interest @ 8% per annum and held that respondent No.1- insurer is liable to pay the compensation awarded. Being aggrieved, the above appeal and the cross objection have been filed. 5. Sri O. Mahesh, learned counsel appearing for the appellant-insurer vehemently contends that the claim proceedings have been initiated by the claimant through his wife without any application under Order XXXII of Code of Civil Procedure, 19082 being filed. Hence, it is contended that the claim petition is liable to be dismissed. It is further contended that the evidence adduced by the insurer, more particularly, 2 Hereinafter referred to as ‘CPC’ - 6 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 the investigation done by the investigator appointed by the insurer and the Compact Discs3 that have been marked in evidence as Ex.R1, 2 and 4 to 7 clearly falsify the testimony adduced on behalf of the claimant that he had suffered 100% disability. Hence, it is contended that the insurer having demonstrated the falsity of the evidence adduced by the claimant, the claim petition is liable to be rejected. Alternatively, it is contended that quantum of compensation awarded by the Tribunal is on higher side and the interest awarded is also excessive. 6. Per contra, Smt. V. Vetri Laxshmi learned counsel appearing for the cross objectors/claimants submits that the insurer has not disputed the occurrence of the accident and the involvement of the injured as well as the negligence on the part of the rider of the insured motorcycle in causing the accident in question. Hence, it is submitted that the Tribunal, even after taking into consideration the evidence adduced by the investigator of the insurer has awarded compensation. It is further submitted that the quantum of compensation is 3 Hereinafter referred to as ‘CDs’ - 7 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 required to be enhanced. It is further contended that the wife of the claimant has represented in the claim proceedings since the claimant was injured and in coma stage at the time of filing the claim proceedings. Unlike Order XXXII Rule 3 of CPC qua minor defendant, Order XXXII Rule 1 of CPC does not contemplate filing an application for appointment of next friend of a plaintiff/petitioner. Hence, learned counsel seeks for dismissal of the appeal and allowing of the cross objection. 7. The submissions of both the learned counsels have been considered and the material on record have been perused including records of the Tribunal. The questions that arise for consideration are; i) Whether the claim proceedings initiated by the wife of the claimant are maintainable? ii) Whether the Tribunal was justified in awarding compensation, notwithstanding the evidence adduced by the insurer? iii) Whether awarded by the Tribunal is just and proper? the quantum of compensation Reg. Point No.(i): Analysis 8. The claim proceedings have been filed by the wife of the claimant on behalf of the claimant. In the cause title of - 8 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 the claim petition, it is mentioned that since the claimant was injured and in a coma stage he is represented in the claim petition by his wife as his next friend. The claim petition has also been signed by the wife of the claimant. The wife of the claimant has examined herself as PW.1 and has spoken to about the mental and physical condition of the claimant. The claimant has not been examined. However, it is forthcoming from the material on record that he was brought before the Tribunal in a wheel chair. 9. Order XXXII of CPC permits institution of the proceedings through a next friend if the plaintiff is unable to represent himself/herself. It is also relevant to note that Order XXXII Rule 1 CPC does not mandate filing of an application by the next friend of a person under a legal disability to initiate proceedings, whereas Order XXXII Rule 3 of CPC requires filing such application for minor defendant. In any event, strict rules of pleadings are not applicable to proceedings under Section 166 of the Motor Vehicles Act, 19884. Having regard to the assertion made on behalf of the claimant at the time of filing 4 Hereinafter referred to as ‘MV Act’ - 9 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 the claim petition that the claimant is unable to represent himself and no material having been produced by the insurer to demonstrate that as on the date of the claim petition, the claimant was in a position to represent himself, the claim proceedings instituted by the wife of the claimant on behalf of the claimant is just and proper. Hence, question No.(i) framed for consideration answered in the affirmative. Reg. Point Nos.(ii) and (iii): 10. The wound certificate (Ex.P4) discloses that the claimant sustained left fronto temporal contusion, subdural hematoma, fracture of frontal and temporal bones and left optic nerve injury. The discharge summary issued by Columbia Asia Medical Centre, Hebbal (Ex.P6) discloses that the claimant was admitted to the said hospital on 9.3.2008 and discharged on 27.3.2008 and a surgery was performed on 10.3.2008 for the subdural hematoma. The discharge summary issued by Bangalore Baptist Hospital (Ex.P7) discloses that the claimant was admitted to the said hospital on 27.3.2008 and discharged on 25.4.2008. - 10 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 11. The wife of claimant examined herself as PW.1 and she has deposed that even after the treatment of the claimant in various hospitals, there are behavioural changes and he has developed different attitude towards family members. That the claimant has exhibited aggressive and erratic behaviour. PW.1 has been elaborately cross-examined. 12. The Medical Record Keeper of Columbia Asia Hospital has been examined as PW.2, who has produced and marked the medical records pertaining to the claimant. 13. Dr.Sharad Samson Rajamani has been examined as PW.3 and he has deposed that he is a consultant surgeon at Columbia Asia Hospital. He has deposed regarding the injuries sustained by the claimant and the treatment undertaken at the hospital. He has further deposed that the claimant is assessed with 100% disability both physically and mentally. PW.3 has been elaborately cross-examined and during the course of cross-examination by the learned counsel for the insurer, PW.3 was confronted with various video recordings which have been stored in CDs and which were played to PW.3. PW.3 has identified that the person who has been video graphed is the - 11 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 claimant. The CDs that were confronted to PW.3 have been marked as Exs.R1, R2, R4 to R7. The video recording that was stored in the CDs was also played and viewed. Ex.P24 is the Physical Impairment Assessment Certificate issued by PW.3, wherein it is stated that the physical impairment of the claimant is 100%. The neuro psychological assessment by one R.Premalatha, Clinical Psychologist dated 26.6.2009 is marked as Ex.P25 and it is stated that the claimant has lost sensation in the right side of his upper and lower limbs and that the claimant appeared blank and was not able to follow any instruction and would move his body only with support. 14. It is forthcoming that the claimant has been video graphed as sitting in the wheel chair when he has appeared before the Tribunal. However, in the other video recordings, the claimant is walking around effortlessly and carrying on his daily activity as well as riding on a two wheeler. The video recording in Ex.R5 is dated 17.4.2009 when he was present in the Court in the wheel chair and the video recording in Ex.R6 is dated 8.12.2009 when he is seen walking and doing his daily activities on his own. The video recordings at Exs.R4 and R7 - 12 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 are dated 7.3.2013, where he is seen walking and standing in front of a shop without any discomfort. 15. Dr.Jamuna Rajeswaran has been examined as CW.1, who is an Additional Professor, Department of Clinical Psychology, NIMHANS Hospital, Bengaluru. She has deposed regarding psychological effect of the claimant. She has also admitted that the person in the video recording is the claimant. 16. The investigator appointed by the insurer has been examined as RW.1 and he has deposed that he was entrusted by the insurer to investigate with regard to the claim made by the claimant and that pursuant to the said investigation he has done the video recording. 17. The Tribunal while appreciating the oral and documentary evidence available on record has noticed the evidence adduced by the insurer and that the claimant is seen moving around in the video recording, which is contrary to the medical evidence adduced by the claimant and hence, has awarded a sum of `1.00 lakhs towards pain and suffering. - 13 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 18. The Tribunal has noticed the medical bills produced as Exs.P21 to P30 (94 Nos.) and noticed that the same amounts to `4,03,669/-. Hence, the Tribunal has awarded medical expenses in a sum of `4,05,000/-. 19. The Tribunal has further awarded a sum of `1.00 lakh towards food, diet, nourishment, transportation charges, attendant charges and conveyance. 20. The Tribunal taken the laid up period as 6 months and considering the avocation of the claimant, has assessed the monthly income of the claimant at `6,000/- and awarded a sum of `36,000/- towards loss of income during laid up period. The Tribunal has awarded a sum of `1.50 lakhs towards loss of amenities and a further sum of `50,000/- under the other heads. 21. It is relevant to note that the insurer has not disputed the occurrence of the accident or the injuries sustained by the claimant, for which has taken treatment. It is clear from the wound certificate (Ex.P4) and discharge summaries (Ex.P6 and P7) that the claimant had suffered head injury resulting in fronto temporal contusion, subdural - 14 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 hematoma and fracture of frontal and temporal bones as also injury to the left optic nerve. It is further forthcoming that the claimant was treated as an inpatient from 9.3.2008 to 25.4.2008 i.e., for a period of 48 days. 22. Although the claimant has adduced the testimony of the doctors as PW.3 and CW.1, having regard to the said doctors admitting that the claimant is seen walking around in the video recordings which have been placed on record vide the CDs., at Exs.R2 and R4, it is clear that the claimants have miserably failed in demonstrating that he has suffered any permanent disability. However, keeping in mind the fact that the claimant was treated as an inpatient for 48 days, the compensation awarded by the Tribunal in a sum of `1.00 lakh towards pain and suffering is affirmed by construing the same as compensation towards injury, pain and suffering. 23. The Tribunal has assessed the monthly income of the claimant at `6,000/- p.m. Although the claimant has produced Exs.P10 to P16 and it is sought to be contended that the claimant is a milk vendor, agriculturist and sericulturist, no documents have been produced to prove the income of the - 15 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 claimant. Hence, the income of the claimant is required to be assessed notionally and having regard to the avocation of the deceased, date of the accident and the then price index the income of the claimant is re-assessed at `4,500/- p.m. The laid up period of six months assessed by the Tribunal is just and proper. Hence, the loss of income during laid up period is re- assessed at (`4,500/-x6) `27,000/-. 24. The Tribunal has awarded medical expenses in a sum of `4,05,000/-, which is as per the actual bills produced by the claimant, hence the same is just and proper. 25. Having regard to the nature of injuries, the period of treatment as an inpatient, the claimant would have definitely required the assistance of an attendant during the time he was treated as an inpatient as well as for sometime thereafter. Having regard to the totality of the circumstances, a compensation of `1.00 lakh awarded towards food, nutrition and attendant charges by the Tribunal is just and proper. 26. Having regard to the fact that the claimant has failed to prove any disability and also keeping in mind the fact that the claimant has not adduced any evidence to demonstrate - 16 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 that he has taken any treatment for the eye injury and that no doctor has been examined in that regard, the claimant has failed to demonstrate that he has sustained any permanent disability. Under the circumstances, the compensation awarded by the Tribunal in a sum of `2.00 lakhs towards loss of amenities and other heads is without any basis and liable to be set aside. 27. Hence, the compensation is re-assessed as follows: Sl.No. Heads Amount Amount awarded by the awarded by this Tribunal(`) Court(`) 1 2 3. Pain and sufferings 1,00,000/- 1,00,000/- Medical expenses 4,05,000/- 4,05,000/- Loss of income during laid 36,000/- 27,000/- up period 4. Food, diet, nourishment, 1,00,000/- 1,00,000/- transportation charges, attendant charges, conveyance, etc. 5 Permanent disability, loss 2,00,000/- 0/- of amenities, etc., Total 8,41,000/- 6,32,000/- - 17 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 28. In view of the discussion made above, question Nos.(ii) is answered in the affirmative and question No.(iii) is answered in the negative. 29. The Tribunal without any basis has awarded interest at 8% p.a. Hence, the contention of the learned counsel for the insurer in this regard is required to be upheld and the interest is liable to be awarded at 6% p.a. 30. In view of the aforementioned, the following:
Decision
ORDER i. Cross objection 124/2014 is dismissed. MFA No.1252/2014 is partly allowed; ii. The impugned judgment and award dated 07.11.2013 is modified as follows; a. The petition in MVC No.2233/2008 is partly allowed; b. The claimant is entitled to a total compensation of `6,32,000/- together with interest at 6% p.a., from the date of petition till realization; - 18 - NC: 2025:KHC:9899-DB MFA.CROB No. 124 of 2014 C/W MFA No. 1252 of 2014 iii. The insurer shall deposit the balance compensation, if any, within four weeks from the date of receipt of a copy of this judgment. iv. The amount in deposit, if any, and the TCR’s be transmitted to the Tribunal forthwith. SD/- (K.S.MUDAGAL) JUDGE SD/- (C.M. POONACHA) JUDGE BS,ND List No.: 19 Sl No.: 2