Karnataka High Court
Sri Bakul Devanth vs The United India Insurance Co. Ltd on 7 April, 2022
Bench: Pradeep Singh Yerur
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL No.1332 OF 2022 (MV-I)
BETWEEN:
SRI.BAKUL DEVANTH,
S/O SAMPOO DEVANTH,
AGED ABOUT 39 YEARS,
R/AT NO.243/6, TENNIS COURT ROAD,
NEAR D MART, SIDDAPURA,
BENGALURU NORTH, WHITEFIELD,
BENGALURU - 560 066.
... APPELLANT
(BY SRI.VIJAY KUMAR T., ADVOCATE)
AND:
1. THE UNITED INDIA INSURANCE CO. LTD.,
BY ITS MANAGER,
KRISHI BHAVAN BUILDING, 6TH FLOOR,
NEAR HUDSON CIRCLE,
BENGALURU - 560 001.
2. ASHWATH H.C.,
S/O CHIKKEGOWDA,
MAJOR,
R/AT NO.8, GROUND FLOOR,
MRC LAYOUT, NEAR KEB OFFICE,
HESARAGHATTA,
BENGALURU - 560 088.
... RESPONDENTS
(BY SRI.G.S.MARULAIAH, ADVOCATE FOR R1;
NOTICE TO R2 DISPENSED WITH VIDE ORDER
DATED 21.02.2022)
*****
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 24.09.2021 PASSED IN MVC NO.6465/2018 ON THE
FILE OF THE XXI ADDITIONAL SMALL CAUSE JUDGE AND
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ACMM, MEMBER, MACT, BENGALURU, (SCCH-23), PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though the matter is listed for admission, with the
consent of learned counsel appearing for both the
parties, matter is taken up for final disposal.
2. This appeal is preferred by the injured-
claimant challenging the judgment and award passed by
the Court of Small causes (SCCH-23), Bengaluru
(henceforth referred to as 'the Tribunal' for short) in
MVC No.6465/2018 dated 24.09.2021. This appeal is
founded on the ground of inadequacy of compensation.
3. The brief facts of the case are that on
02.07.2018 at about 5.30 a.m., when the claimant was
riding his motorcycle bearing Reg.No.KA-53-EW-2487
from Siddapura towards Nallurahalli slowly and
cautiously on the left side of the Road, when he reached
near Andhra Bank, Nallurahalli, Whitefield, Bengaluru,
at that time, the driver of the car bearing Reg.No.KA-
04-AB-1266 came from the opposite direction in high
speed and in a rash and negligent manner on the
extreme right side of the road and dashed against the
motorcycle of the claimant. Due to the severe impact,
the claimant fell down and sustained grievous injuries.
Immediately after the accident, he was shifted to Prolife
Hospital, Byatarayanapura, Bengaluru, wherein, he was
admitted as inpatient from 02.07.2018 to 10.07.2018.
The claimant underwent surgery and during the
treatment he has expended more than Rs.3,00,000/-
towards medical, conveyance and other incidental
charges.
4. It is the case of the claimant that he was
working as a coolie prior to the accident and was
earning income of Rs.500/- per day and he was hale
and healthy. It is also stated that the accident occurred
due to rash and negligent driving by the driver of the
offending car. In view of the injuries sustained in the
accident and having expended huge amount towards
medical expenses, the claimant preferred claim petition
before the Tribunal seeking compensation.
5. On service of notice, the respondent No.2-
owner of the offending vehicle despite service of notice
did not represent and was placed ex-parte before the
Tribunal, whereas respondent No.1- Insurance company
filed statement of objections inter-alia denying the claim
made by the claimant in the claim petition. It is also
stated that the driver of the offending vehicle was not
possessing valid and effective driving licence as on the
date of occurrence of the accident. However,
respondent No.1 admitted issuance of insurance policy
in favour of the offending vehicle. The Insurer took up
plea that the rider of the motorcycle- claimant is also
responsible for occurrence of the accident as he was
driving the vehicle in a high speed and he was not
wearing helmet as required under the Motor Vehicles
Rules. On these grounds, the Insurance company
sought for dismissal of the claim petition.
6. Based on the pleadings, the Tribunal framed
the following issues for consideration;
1) "Whether the petitioner proves that on
02.07.2018 at about 5.30 a.m., near
Andhra Bank, Nallurahalli, Whitefield,
Bangalore, he sustained injuries in Road
Traffic Accident caused by rash and
negligent act of the driver of the car
bearing No.KA-04-AB-1266?
2) Whether the petitioner is entitled for
compensation? If so, to what extent and
from whom?
3) What Order or award?"
7. In order to substantiate the issues and to
establish the case, the claimant examined himself as
P.W.1 and got marked documents from Exs.P1 to P15.
The claimant also examined another witness by name
Sri R. Kumar as P.W.2 and marked documents from
Exs.P.16 to P18 and further examined the doctor-
S.Ramachandra as P.W.3 and got marked documents
from Exs.P.19 to P21. The respondent No.1- Insurance
company neither choose to adduce evidence nor
produced any document in support of its case. On the
basis of material evidence both oral and documentary
evidence and on hearing the submissions of learned
counsel for the parties, Tribunal awarded compensation
of Rs.4,98,000/- along with interest at the rate of 9%
p.a. (excluding future medical expenses). Being
dissatisfied with the meager amount of compensation,
the claimant is before this Court seeking enhancement
of compensation.
8. It is the vehement contention of learned
counsel for the appellant- claimant that the judgment
and award passed by the Tribunal is erroneous and
contrary to the material evidence placed on record and
that the Tribunal has failed to take into consideration
the proper assessment of income based on the
avocation and the documentary evidence placed on
record. It is also contended by the learned counsel for
the claimant that the Tribunal has erred in not awarding
just and reasonable compensation under the heads
"pain and sufferings", "loss of future income due to
disability", "loss of future amenities and happiness" and
towards "loss of income during laid up period". On
these grounds, learned counsel seeks to allow the
appeal and consequently enhance the compensation.
9. Per contra, learned counsel Sri
G.S.Marulaiah appearing on behalf of respondent No.1-
Insurer vehemently contended that the judgment and
award passed by the Tribunal is in accordance with the
materials placed on record. In view of there being no
proof of income, the Tribunal has rightly assessed the
income at Rs.9,000/- per month and adopted
appropriate multiplier as per the judgment of the
Hon'ble Apex Court and also the disability as opined by
the Doctor- P.W.3. He contends that there is no
illegality or perversity in the judgment and award
passed by the Tribunal. Hence, the same does not
require interference at the ends of this Court. He also
contended that the Tribunal has awarded just and
reasonable compensation under various heads and he
refutes the contention put forth by the learned counsel
for the appellant. On these submissions he contends
that the compensation awarded by the Tribunal is just
and reasonable and the same does not call for
interference at the ends of this Court and accordingly
seeks for dismissal of the appeal.
10. Having heard learned counsel for the
appellant- claimant and the respondent No.1- Insurer,
the points that would arise for my consideration are;
1) "Whether the Tribunal has committed
gross error in not considering the
appropriate income for computation of
compensation and thereby has awarded
meager compensation?
2) Whether enhancement is called for in the
present case?
11. On perusal of the material documents
produced and on hearing the submissions of learned
counsel for the parties, I am of the opinion that the
Tribunal has erred in not taking proper assessment of
income of the claimant and has awarded meager
compensation on other heads calling for enhancement
for the reasons mentioned herein below;
12. It is not in dispute that the accident is
occurred on 02.07.2018 at 5.30 a.m. between the
motorcycle ridden by the claimant and the driver of the
offending car, which came from the opposite direction in
a rash and negligent manner and dashed against the
rider of the motorcycle- the claimant herein. In order to
establish this aspect, the claimant has produced Exs.P1
to P7 which are the police records. These records have
not been challenged either by the driver of the car or
the Insurer, so also there is no much dispute with
regard to the liability and occurrence of the accident.
Hence, I do not find any need to delve upon these
aspects in the present matter as the same is admitted
by the respondent No.1. It is also admitted by the
Insurance company that there was a policy in force as
on the date of occurrence of the accident covering the
offending vehicle of respondent No.2- owner of the
offending vehicle. Hence, the liability is rightly fastened
on the Insurance company.
13. Coming to the aspect of age, avocation and
income of the claimant, admittedly the claimant was
aged 32 years which is not disputed as the same is
evident from Ex.P.8. However, there is no material
proof of income as alleged by the claimant in his claim
petition with regard to his income at Rs.500 per day.
In view of there being no proof of income, the Tribunal
has taken the notational income of Rs.9,000/- per
month. I am in agreement with the learned counsel for
the appellant that the said income assessed by the
Tribunal is on the lower side for the simple reason that
when there is no proof of income produced by the
claimant, the Tribunal ought to have relied upon the
Notional Income Chart prescribed by the Legal Services
Authority which stipulates for the accident having
occurred in the year 2018, the notional income to be
Rs.12,500/- p.m., which having not been taken, I am of
the opinion that Rs.12,500/- p.m. requires to be taken
as against Rs.9,000/- p.m. assessed by the Tribunal.
The claimant has got examined the doctor as P.W.3 who
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examined him and who was found the permanent
residual physical disability of the claimant at about
15.31% from the left lower limb and 10.06% from the
left upper limb which is about 25.37% to the whole
body. Based on this disability assessed and opined by
the medical expert, the Tribunal relying on the same,
has assessed the disability to the whole body at 8%.
Therefore, I do not find any legal error in the said
assessment made by the Tribunal and the same is
accepted. The claimant being aged 32 years, the
appropriate multiplier in the present case on hand would
be '16' as laid down by the Hon'ble Apex Court in the
case of Sarla Verma & Others Vs. Delhi Transport
Corporation and Another reported in 2009 ACJ
1298, which has been rightly applied by the Tribunal.
Hence, the same also does not call for interference.
14. In view of the above, the loss of future
earning capacity due to the disability suffered by the
claimant in the accident would be as follows;
12,500X12X16X8/100 which comes to Rs.1,92,000/- as
against Rs.1,40,000/- awarded by the Tribunal.
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15. It is not in dispute that the claimant was
inpatient for a period of thirty days as per the discharge
summaries at Exs.P.9 to P11. The Tribunal has awarded
Rs.15,000/- as compensation under the head
"Attendant charges, extra nutritious food and
conveyance charges", which I found on the lower side.
Therefore, I deem it appropriate to award Rs.30,000/-
as the claimant was inpatient for thirty days by
calculating Rs.1,000/- per day. Hence, Rs.30,000/- is
awarded as against Rs.15,000/- awarded by the
Tribunal.
16. Towards "pain and sufferings", the Tribunal
has awarded Rs.30,000/-. Admittedly the claimant was
inpatient for thirty days in the hospital. The pain and
sufferings undergone by the claimant within the four
walls cannot be compensated by way of money.
However, compensation would have to be granted as
solace. I deem it appropriate to award Rs.40,000/- as
against Rs.30,000/- awarded by the Tribunal.
17. Towards "loss of income during laid up
period", the Tribunal has awarded Rs.36,000/- by taking
into consideration the period of four months as laid up
period. In view of enhancement of income made by this
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Court earlier at Rs.12,500/- p.m., the same is enhanced
to Rs.50,000/- (Rs.12,500X4) as against Rs.36,000/-
awarded by the Tribunal.
18. Towards medical expenses, the Tribunal has
awarded Rs.2,07,000/- which is on the basis of the
medical bills produced by the claimant at Exs.P.13 and
14. Same is awarded on the actual basis. Hence, I do
not find any reason to interfere with the said amount.
19. Towards "loss of future amenities and
happiness", the Tribunal has awarded Rs.30,000/-. I do
not find any reason to interfere with the same, so also
with regard to "future medical expenses" an amount of
Rs.40,000/- has been awarded, I do not find any reason
to interfere with the same; this amount rightly would
not carry any interest.
20. In view of the above discussions, I am of
the opinion that the claimant is entitled for
enhancement of compensation as mentioned in the
below table;
1 Attendant charges, extra Rs.30,000/-
nutritious food and
conveyance charges
2 Pain & Sufferings Rs.40,000
3 Loss of income during laid-up Rs.50,000
period
4 Medical expenses Rs.2,07,000
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5 Loss of future income due to Rs.1,92,000
disability
6 Loss of future amenities & Rs.30,000
happiness
7 Future medical expenses Rs.40,000
Total Rs.5,89,000
21. Accordingly, I pass the following
ORDER
i) The appeal is allowed in part.
ii) The judgment and award passed by the
Tribunal in MVC No.6465/2018 dated
24.09.2021 is modified.
iii) The appellant- claimant shall be entitled to
total compensation of Rs.5,89,000/- as
against Rs.4,98,000/- awarded by the
Tribunal. All other terms and conditions
stipulated by the Tribunal stands intact.
iv) The respondent- Insurer shall pay the
enhanced compensation at the rate of 6%
per annum from the date of petition within a
period of four weeks from the date of
receipt of a copy of this order and the same
shall be deposited before the MACT.
Sd/-
JUDGE
PN
