Karnataka High Court
Nagaraju K S vs The Oriental Insurance Co Ltd on 15 June, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.9401/2013 (MV)
BETWEEN:
NAGARAJU K.S.,
S/O SHANKARAPPA
AGED ABOUT 30 YEARS
R/AT NO.52, 3RD CROSS
CHOWDESWARINAGAR
PIPE LINE ROAD, LAGGERE
NEAR RING ROAD
BENGALURU-560 058
... APPELLANT
(BY SRI H.T.JAGADEESH, ADVOCATE)
AND:
1. THE ORIENTAL INSURANCE CO. LTD.,
D.10, 213-217
NAGAPRABHA CHAMBERS
3RD MAIN, 4TH CROSS
CHAMARAJPET
BENGALURU-560 018
2. RAMESH
S/O B.R.RAMASWAMY
HOSABIDI, BIDADI
RAMANAGARAM DISTRICT.
... RESPONDENTS
(BY SRI C.R.RAVISHANKAR, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH VIDE ORDER
DATED 21.09.2015)
2
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:19.09.2013
PASSED IN MVC.NO.4733/2012 ON THE FILE OF XXI ACMM AND
XXIII ASCJ, MEMBER MACT, BENGALURU, ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Though this matter is listed for admission today, with the
consent of both the learned counsel it is taken up for final
disposal.
2. This appeal is filed by the appellant/claimant
challenging the Judgment and Award dated 19.09.2013 passed
in M.V.C.No.4733/2012 on the file of Motor Accident Claims
Tribunal, Court of Small Causes at Bengaluru ('the Tribunal' for
short), questioning the quantum of compensation awarded by
the Tribunal.
3. The parties are referred to as per their original
rankings before the Tribunal to avoid confusion and for the
convenience of the Court.
4. The claimant in the claim petition has contended that
he met with an accident on 20.05.2012 at about 2:30 p.m. As a
result, he had sustained the permanent disability.
5. The claimant in order to substantiate his case, he
examined himself as P.W.1 and also examined the Doctor as
P.W.2 and got marked the documents as Exs.P1 to P15. The
respondents have not examined any witnesses and they have
not placed any documentary evidence before the Tribunal. The
Tribunal, after considering both oral and documentary evidence
available on record, allowed the claim petition of the petitioner
granting compensation of Rs.6,09,300/- with 6% interest per
annum from the date of petition till the date of deposit. Hence,
the present appeal is filed by the claimant.
6. The learned counsel for the appellant/claimant would
vehemently contend that the Tribunal has committed an error in
awarding meager compensation under all the heads. The
Tribunal failed to consider the income of the claimant though he
claims that he was earning Rs.12,000/- per month. The Tribunal
committed an error in taking the income of Rs.5,000/- per
month. The accident was of the year 2012. The Tribunal also
committed an error in not awarding the just and reasonable
compensation on all the heads and no compensation has
awarded on the heads of 'loss of amenities' and 'loss of income
during the laid-up period'. Hence, it requires an interference of
this Court.
7. Per contra, learned counsel appearing for the first
respondent/Insurance Company would vehemently contend that
the Tribunal has taken note of the evidence of P.W.2 and
assessed the disability of 29% as deposed by P.W.2 and given
the just and reasonable compensation on all the heads. In the
absence of documentary proof, the Tribunal had taken the
income of Rs.5,000/- per month though he claims that he was
earning Rs.12,000/- per month and working as 'representative',
no document was placed. Hence, the Tribunal has not
committed any error in taking the income as Rs.5,000/- per
month. Hence, it does not require any interference of this Court.
8. Having heard the arguments of learned counsel
appearing for the appellant and learned counsel appearing for
the first respondent-Insurance Company and on perusal of the
grounds urged in the appeal and the materials available on
record, the points that would arise for consideration of this Court
are:
(i) Whether the Tribunal has committed an
error in not awarding the just and reasonable
compensation and it requires an interference of
this Court?
(ii) What order?
Point Nos.(i) & (ii):
9. Having heard the respective counsel and on perusal
of the material available on record, the claimant was an inpatient
for a period of 11 days at the first instance and 6 days at the
second instance and in all he was hospitalized as inpatient for a
period of 17 days. The Doctor, who has been examined as
P.W.2 has deposed 85% to the lower limb disability and 29% to
the whole body. The Tribunal also considered the disability at
29%. The Tribunal awarded an amount of Rs.50,000/- on the
head of pain and sufferings having taken note of the fact that he
has suffered two fractures i.e., fracture shaft of (L) femur and
Undisplaced acetabular fracture (L), the same is just and
reasonable and does not require any interference of this Court.
10. The Tribunal has awarded an amount of
Rs.2,13,500/-towards medical expenses based on the records.
Hence, it does not require any interference of this Court.
11. The Tribunal has awarded an amount of Rs.30,000/-
towards future medical expenses though the Doctor - P.W.2
deposes he is in need of Rs.80,000/- to undergo one more
surgery for removal of implants and release of quadriceps. The
Doctor has not stated anything in detail about the medical
expenses for removal of implants. Hence, the Tribunal has
rightly awarded an amount of Rs.30,000/- on the head of future
medical expenses. It also does not require any interference of
this Court.
12. The Tribunal has awarded an amount of Rs.20,000/-
towards transport, special diet and attendant charges. The
claimant was hospitalized as inpatient for a period of 17 days.
Hence, just and reasonable compensation awarded on this head
also.
13. Having perused the material on record only the
Tribunal has committed an error in not awarding any
compensation on the head of 'loss of amenities'. Having taking
into note of the disability of 29% and he was aged about 30
years, he has to lead rest of his life with disability of 29%.
Hence, it is appropriate to award an amount of Rs.40,000/- on
the head of 'loss of amenities'.
14. The Tribunal has not awarded any compensation
under the head of 'loss of income during the laid up period'.
Taking note of the fractures he was suffered and he was
hospitalized as inpatient for a period of 17 days, it requires
minimum 5 months rest to re-unite the fractures since he has
suffered the fracture shaft of (L) femur and Undisplaced
acetabular fracture (L). Having taken the income of Rs.7,000/-
per month, it comes to Rs.35,000/- (7000x5) on the head of
'loss of income during the laid up period'.
15. The Tribunal has taken the income of Rs.5,000/- per
month. It was the accident of the year 2012. Hence, the
notional income would be Rs.7,000/- per month in the absence
of any documentary proof. Having taken the income of
Rs.7,000/- per month and adopting the relevant multiplier 17
with disability of 29%, it comes to Rs.4,14,120/-
(7000x12x17x29/100), under the head of 'future loss of income'.
16. In the circumstances, the appellant/claimant is
entitled for compensation of Rs.8,02,620/- as against
Rs.6,09,300/- awarded by the Tribunal with interest at the rate
of 6% per annum from the date of petition till the date of
deposit.
17. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed in part.
(ii) The Judgment and Award dated 19.09.2013
passed in M.V.C.No.4733/2012 on the file of
Motor Accident Claims Tribunal, Court of
Small Causes at Bengaluru is modified
granting compensation of Rs.8,02,620/- as
against Rs.6,09,300/- awarded by the
Tribunal with interest at the rate of 6% per
annum from the date of petition till the date
of deposit.
(iii) The respondent No.1/Insurance Company is
directed to deposit the amount within six
weeks from today.
(iv) The Registry is directed to transmit the
records to the concerned Tribunal,
forthwith.
Sd/-
JUDGE
cp*
