Karnataka High Court
Sri Balaji vs The Bajaj Allianz General Insurance Co ... on 2 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24634
MFA No. 5662 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 5662 OF 2021 (MV-I)
BETWEEN:
SRI. BALAJI
S/O MASILAMANI,
AGED ABOUT 27 YEARS,
R/AT NO.20, RAYASANDRA, BANGALORE - 560 099.
...APPELLANT
(BY SRI. THIPPESWAMY B C., ADVOCATE)
AND:
1. THE BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD.,
GOLDEN HEIGHTS,
4TH FLOOR, NO.1/2, 59TH C CROSS,
4TH BLOCK, RAJAJINAGAR,
BANGALORE - 560 038.
(POLICY NO.OG/19/1725/1803/0000/1492
VALID FROM 28-08-2018 TO 27-08-2019)
2. MR. MAHESH
MAJOR,
Digitally signed by
VEDAVATHI A K R/AT NO.22, 4TH CROSS,
Location: High NAGANATHAPURA, BEGUR,
Court of ELECTRONIC CITY, BANGALORE - 560 100.
Karnataka
...RESPONDENTS
(BY SRI. A.N.KRISHNA SWAMY, ADVOCATE FOR R1;
VIDE ORDER DATED:03/03/2023, NOTICE TO R2 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.19.07.2021 PASSED IN MVC NO.6087/2018
ON THE FILE OF THE VII ADDITIONAL SMALL CAUSE JUDGE,
ACMM, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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NC: 2024:KHC:24634
MFA No. 5662 of 2021
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/claimant under Section 173(1) of Motor Vehicles Act, 1988 (for short hereinafter referred to as MV Act) challenging the judgment and award dated 19.7.2021 passed in MVC No.6087/2018 on the file of VII Additional Small Cause Judge, ACMM, Member, MACT-3, Bengaluru (for short hereinafter referred to as 'Tribunal') for seeking enhancement of compensation.
2. Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.1- Insurance Company. Issuing notice to respondent No.2 is hereby dispensed with.
3. The appellant was petitioner and the respondents were respondents before the Trial Court. The status of the parties before the Tribunal is retained for the sake of convenience.
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NC: 2024:KHC:24634 MFA No. 5662 of 2021
4. The case of the petitioner is that the petitioner filed claim petition under section 166 of MV Act for claiming compensation of Rs.20 lakhs for injury sustained by him in the road traffic accident. It is alleged that on 1.9.2018 at about 4.45 p.m., when he was proceeding on his motorcycle bearing reg.No.KA-51-ER-5021 on Rayasandra raod, near bamboo forest apartment, at that time the auto driver bearing temporary Reg no. KA-51-TS 005461 came from opposite direction and dashed to the claimant, due to which he suffered a lot of injuries and was taken to the hospital. Due to the injury he suffered disability. The petitioner said to be working in a mobile service center earning rupees Rs.15,000 per month and is unable to work. Hence, claimed for compensation.
5. On receipt of the summons, the respondent No.1/Insurance Company appeared and filed a statement of objection by denying the rash and negligent driving, also denied age, occupation and income of the petitioner and contended that there is no disability and there is no -4- NC: 2024:KHC:24634 MFA No. 5662 of 2021 avocation. However he specifically taken contention that the driver of the auto rickshaw do not have any valid permit or fitness certificate to run the vehicle on road and there was breach of conditions of policy. Hence, prayed for dismissing the petition. Respondent No.2 was placed exparte. Hence, prayed for dismissal of the claim petition.
6. On the basis of pleadings, the tribunal framed the following issues for consideration:
1. Whether the petitioner proves that he has sustained grievous injuries in the accident occurred on 01-09-2018 at about 4.45 p.m., on Rayasandra Road, near Bamboo Huskuru Forest, Rayasandra, Post, Bengaluru, due to negligent act of driving of Auto bearing temporary reg. No.KA-51-TS005461 by its driver as alleged in the petition?
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3. What Order or Award?-5-
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7. To prove the case, the petitioner himself was examined as P.W.1. and also examined another witness, the Doctor as PW2. They got marked documents from Exs.P1 to P16. On behalf of the insurance company RW1 has been examined and the documents from Exs.R1 to R7 were marked. After hearing the arguments, the tribunal answered issue No.1 in affirmative and issue No.2 in the partly affirmative. Accordingly, granted compensation of Rs.4,41,750/-, along with interest of 6% p.a. which is as under;
1. Loss of future income Rs.2,91,600-00
2. Pain and Agony 50,000-00
3. Medical expenses 23,148-00
4. Loss of amenities and nutritious 25,000-00 food
5. Attendant charges and 15,000-00 conveyance
6. Loss of income during laid up 27,000-00 period
7. Future medical expenses 10,000-00 Total Rs.4,41,748-00 Rounded off to Rs.4,41,750-00 -6- NC: 2024:KHC:24634 MFA No. 5662 of 2021 The tribunal directed the respondent No.1 to deposit the compensation and inturn recover the same from the respondent No.2/owner of the vehicle, as there was no valid permit to drive the vehicle on the road.
8. Being aggrieved by the quantum of compensation, the claimant has filed this appeal. However the claimant not challenged fixing the liability on respondent No.2/owner for making the payment and then for the recovery.
9. Learned counsel for the petitioner contended that the petitioner was suffering from disability for more than 54% and to the whole body. The doctor stated 24% disability, but the tribunal considered only 15% disability, which is very meager. Even otherwise the income of the petitioner was Rs.15,000/- per month but the tribunal considered only Rs.9,000/- per month even as per the Karnataka State Legal Services Authority, the notional income to be considered is Rs.12,500/- per month. Therefore, prayed for enhancing the same. Also contended -7- NC: 2024:KHC:24634 MFA No. 5662 of 2021 the tribunal awarded very meagre amount towards other heads, i.e, the loss of laid up period, conveyance, attendant charges, loss of amenities and future medical expenses.
10. Per contra, learned counsel for the respondent supported the judgment and award passed by the tribunal and seriously contended that as per the evidence of PW2 the doctor is not a treating doctor who has given disability of 24% which is exorbitant. Therefore, the tribunal rightly considered 15% to the whole body. Therefore, the same may be retained and also contended, the compensation under other heads also are sufficient. Hence no need to enhance the same. Therefore, prayed for dismissing the appeal.
11. Having heard the arguments, perused the records, the point that arises for my consideration are,
1. Whether compensation awarded by the tribunal is meagre, and requires enhancement, if so, what is the amount?
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12. The accident occurred on 1.9.2018 due to the rash and negligent driving of the driver of auto which is not in dispute . The tribunal by considering the evidence on record especially the police records at from Ex.P1 to P7 has held due to the negligent driving of the auto driver, the petitioner sustained injuries. The only contention is the quantum of compensation awarded by the tribunal is not sufficient.
13. As regards to the pain and suffering the tribunal awarded Rs.50,000/- for the injury which is grievous injury in nature as per Ex.P.7. Therefore, this court feels there is no need to enhance the same, it is sufficient.
14. The Income taken by the tribunal is Rs.9,500/- per month, even though the petitioner claimed Rs.15,000/- per month, but no documents were produced. Therefore, the notional income assessed in the Legal Service Authority chart is Rs.12,500/- per month -9- NC: 2024:KHC:24634 MFA No. 5662 of 2021 should have been taken as income. Hence, I propose to take Rs.12,500/- as income in instead of Rs.9,000 taken by tribunal.
15. As regards to the loss of laid-up period the tribunal considered three months laid-up period and the same is retained if Rs.12,500 x 3 months is Rs.37,500/. This will be the loss of pay due to laid-up period.
16. As regards to the loss of amenities the Tribunal awarded Rs.25,000 but food also included in the same. Therefore excluding the food the loss of amenities is Rs.25,000/- awarded is retained.
17. The petitioner said to be admitted in the hospital for 29 days almost one month. Though the tribunal awarded Rs.15,000 towards the attendant charges and conveyance charges but the food charges were not paid. Therefore under the Attendant, conveyance, I propose to award Rs.30,000/- instead of 15,000/-.
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18. The medical expenses of Rs.23,148/- was awarded and the same is retained.
19. As per the contention of the petitioner, the doctor has stated the petitioner required one more surgery the implants and he may require Rs.20,000/- but the tribunal awarded only Rs.10,000/-. Therefore, propose to award Rs.20,000/- towards future medical expenses
20. As regards to the disability, loss of amenities the tribunal at para 15 elaborately considered the injuries sustained by the petitioner and disability suffered by him as per PW2 Dr.Avinash Partha Sarthy who is Orthopedics and professor in Sanjay Gandhi hospital, Bengaluru which is a Government hospital. As regards to the doctor who assessed the disability and issued the disability certificate 54% of the disability to other portion of the body and 9% to the limb totally 63% is issued by doctor as per Ex.P.15. The doctor has considered restriction to the movements of the limbs due to the injury and disability. The tribunal though comes to the conclusion of disability to 25% to the
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NC: 2024:KHC:24634 MFA No. 5662 of 2021 whole body, but not considered the same even taking consideration of 63% given by the doctor if 1/3rd was taken it would be 21% but not 15%. Therefore, based upon Ex.P.15 doctors opined 63% disability. If one-third is considered comes 21%. Hence, I propose to consider 21% disability instead of 15% considered by tribunal. Hence, the loss of future earning capacity is as below, Rs.12,500/- x 12 x 18 x 21% = Rs.5,67,000/- is granted towards loss of future earning capacity due to disability.
21. The components awarded by this court are as below, Particulars Amount in Rs.
Loss of future income 5,67,000
Pain and suffering 50,000
Loss due to laid up period 37,500
Loss of amenities 25,000
Food and nourishment attendant charges 30,000
etc
Future medical expenses 20,000
Total 7,29,000
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NC: 2024:KHC:24634
MFA No. 5662 of 2021
As regards to the liability the tribunal considered that the vehicle offending vehicle does not have any permit and there is a violation of the condition of the policy the respondent also lead evidence. In this regard, 7 documents were marked by the respondent/Insurance company. However respondent No.2 owner of the vehicle not contested the matter. Therefore, tribunal fixed the liability on the respondent No.2. However in view of the issuance of the policy, it is directed to the respondent No.1/Insurance company to satisfy the award amount and then recover the same from the owner of the vehicle. The appellant also not challenged the fastening the liability on the owner of the vehicle, even the owner has not filed any application. Such being the case, I do not interfere with the finding of the tribunal fixing the liability on the owner of the vehicle. In view of the issuance of policy, the respondent No.1 shall satisfy the award and recover the same from the respondent No.2 .
22. Accordingly, I proceed to pass the following:
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NC: 2024:KHC:24634
MFA No. 5662 of 2021
ORDER
i. The appeal is allowed in part.
ii. The judgment of the tribunal dated 19.7.2021 passed
in MVC No.6087/2018 on the file of VII Additional Small Cause Judge, ACMM, Member, MACT-3, Bengaluru, is hereby modified. iii. The claimant is entitled to a total compensation for a sum of Rs.7,29,000/- along with interest, instead of Rs.4,41,750/- granted by the tribunal. iv. The enhanced compensation amount shall be paid by the respondent-Insurance Company with interest @ 6% per annum, excluding the future medical expenses, within a period of two months from the date of receipt of a copy of this order. v. The respondent No.1/Insurance company is directed to release the amount within 60 days and recover the same from the owner of the vehicle.
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NC: 2024:KHC:24634 MFA No. 5662 of 2021 vi. The entire enhanced amount to be released to the claimant.
vii. Registry is directed to return the Trial Court records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay; and viii. Draw award accordingly.
Sd/-
JUDGE AKV List No.: 1 Sl No.: 37 CT:SK