Karnataka High Court

Sri. Chandrashekar vs The Oriental General Insurance Co ... on 12 January, 2021

Author: S.Sujatha And M.I.Arun

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 12TH DAY OF JANUARY, 2021

                         PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                            AND

            THE HON'BLE MR. JUSTICE M.I.ARUN

                 M.F.A.No.3438/2020 (MV)

BETWEEN :
SRI CHANDRASHEKAR
S/O SUKRAM OBAIAH
AGED ABOUT 25 YEARS
R/O MUDDAPURA, MYSARAHATTI VILLAGE
TURUVANUR HOBLI - 577517
CHITRADURGA TALUK & DISTRICT                     ...APPELLANT

               (BY SRI V.B.SIDDARAMAIAH, ADV.)

AND :
1.      THE ORIENTAL GENERAL
        INSURANCE CO. LTD.,
        BRANCH OFFICE, SHARADA COMPLEX
        OPP. KSRTC BUS STAND
        CHITRADURGA - 577501
        REP BY ITS BRANCH MANAGER

2.      SRI LAKSHMANAPPA
        S/O KARIYAPPA
        AGED ABOUT 44 YEARS
        R/O 2ND CROSS, V.P.EXTENSION
        CHITRADURGA - 577501               ...RESPONDENTS

               (BY SRI P.B.RAJU, ADV. FOR R-1;
     VIDE COURT ORDER DATED 30.11.2020 NOTICE TO R-2 IS
                     DISPENSED WITH.)
                          -2-

      THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
29.02.2020 PASSED IN MVC No.648/2019 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, ADDITIONAL
MACT-III, CHITRADURGA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

      THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                    JUDGMENT

This appeal is directed against the judgment and

award dated 29.02.2020 passed in MVC No.648/2019

on the file of the Principal Senior Civil Judge and

Additional MACT-III at Chitradurga ['Tribunal' for short].

2. The claimant instituted the petition under

Section 166 of the Motor Vehicles Act, 1988 claiming

compensation for the injuries sustained by him in the

road traffic accident.

3. It was averred that on 11.01.2017 at about

08.00 p.m., when the claimant was proceeding on the

left side of the road near Bridge road, Muddapura

village, Chitradurga Taluk, the rider of the motorcycle

bearing No.KA-16/EC-7677 came in a high speed with

rash and negligent manner and dashed to the claimant

- pedestrian resulting which, the claimant suffered

grievous injuries all over the body. Immediately, he was

shifted to hospital, wherein he took treatment as an

inpatient for a period of two months. It was contended

that he had incurred huge medical expenses. Prior to

the accident, doing mason work and also as an

agriculturist, he used to earn Rs.25,000/- p.m. Due to

the amputation of right palm, he is unable to do his

work as earlier resulting in loss of income. On these

facts and grounds, the claimant prayed for

compensation.

4. In response to the notice issued, the

respondent No.1 remained exparte. The respondent

No.2 appeared through its counsel and filed objection

statement.

5. Te respondent No.2 - insurer contested the

claim denying the petition averments. The defence set

up was that the alleged accident had not occurred due

to rash and negligent act of the rider of the motorcycle

but the petitioner himself was solely responsible for the

accident. The rider of the motorcycle had no valid and

effective driving licence and the first respondent

knowingly well entrusted the vehicle to him which

amounts to breach of terms and conditions of the

policy. It was contended that the compensation claimed

by the injured/appellant was abnormal and excessive.

Accordingly, sought for dismissal of the petition.

6. On the basis of the pleadings, issues were

framed and answered allowing the claim petition in part

awarding total compensation of Rs.4,40,460/- with

interest at the rate of 8% p.a., from the date of petition

till its realization.

7. Being dissatisfied with the quantum of

compensation awarded, the claimant has preferred the

present appeal.

8. Learned counsel for the appellant submitted

that the compensation awarded by the Tribunal is

disproportionate to the nature of the injuries sustained

by the claimant and its impact for the rest of his life.

The Tribunal has awarded a meager compensation and

the same deserves to be enhanced having regard to the

gravity of injuries sustained by the claimant.

9. Learned counsel for the insurer justifying

the impugned judgment and award submitted that on

analysis of oral and documentary evidence on record,

the Tribunal has awarded just compensation and there

is no scope for further enhancement. Accordingly,

sought for dismissal of the appeal.

10. Having heard the learned counsel appearing

for the parties and perusing the records, the moot point

that arises for our consideration is -

Whether the quantum of compensation awarded by the Tribunal is just and proper in the facts and circumstances of the case?

11. The factum of accident and the injuries

sustained by the appellant are not in dispute. Ex.P7,

the wound certificate issued by the Sanjay Gandhi

Institute of Trauma and Orthopedics, Bengaluru would

indicate that the appellant had sustained the following

injuries:

1. Loss of hand - from C/L level of metacarpal [wrist]

2. 5 x 5 cm wound over the wrist exposing the carpus and tendons.

Opinion:- The injury is grievous in nature.

12. PW2, the doctor has deposed that the

injured had sustained grievous injuries causing

amputation at the right wrist level which is a schedule

injury. The disability is assessed at 50% of right upper

limb. The Tribunal considering the same assessed the

disability at 22% to the whole body. The medical records

would disclose that the right palm of the appellant was

amputated. In terms of the Schedule to the Employees

Compensation Act, 2003, the injuries sustained by the

claimant/appellant being the schedule injuries, the

functional disability can be assessed at 50% to the

whole body.

13. Though the appellant contended that he was

earning Rs.25,000/- p.m., no cogent evidence was

placed on record to substantiate the same. In the

absence of proof of income, the Tribunal has determined

the monthly income notionally at Rs.8,000/-. However,

having regard to the date of the accident, referring to

the chart prepared by the Karnataka State Legal

Services Authority, the monthly income of the appellant

can be safely re-determined notionally at Rs.11,000/- in

the absence of proof of income. Applying the same, loss

of future income due to disability would be

Rs.11,88,000/- [11,000 x 12 x 18 x 50%].

14. Considering the nature of the injuries

sustained by the claimant, which would adversely affect

his future life with loss of right palm, we deem it

appropriate to award a sum of Rs.75,000/- towards

pain and sufferings; a sum of Rs.50,000/- towards loss

of amenities; a sum of Rs.25,000/- towards

nourishment, attendant charges and miscellaneous

expenses; a sum of Rs.33,000/- is awarded towards loss

of income during laid up period considering the monthly

income at Rs.11,000/-. The medical expenses at

Rs.300/- awarded by the Tribunal remains

undisturbed.

15. For the reasons aforesaid, the total

compensation awarded by the Tribunal is re-assessed

as under:

Amount [in Sl.No. Particulars Rs.]

1. Loss of future earnings 11,88,000/-

 2.                Medical expenses                              300/-
          Nourishment and Miscellaneous
 3.                                                           25,000/-
                       expenses
 4.         Pain, injuries and sufferings                     75,000/-
           Loss of amenities, enjoyment of
 5.                                                           50,000/-
                 life and discomforts
          Loss of income during the laid up
 6.                                                           33,000/-
                        period
                      Total                                13,71,300/-

Thus, the claimants shall be entitled to total

compensation of Rs.13,71,300/- with interest at the

rate of 6% per annum from the date of the claim petition

till the date of realization.

16. Hence, the following:

ORDER

i) The appeal is allowed in part.

ii) The total compensation awarded by the

Tribunal is modified and enhanced to

Rs.13,71,300/- as against Rs.4,44,460/-

with interest at the rate of 6% per annum

from the date of the claim petition till its