Karnataka High Court
Sri. Gaviyappa.H.K vs Tata Aig General on 18 January, 2022
Bench: M.G.S. Kamal
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S. KAMAL
MFA NO. 4852 OF 2019(MV)
BETWEEN:
SRI. GAVIYAPPA H.K.,
S/O KALINGAIAH
AGED ABOUT 45 YEARS
R/AT HOSUR VILLAGE & POST
BIDADI HOBLI
RAMANAGARA DISTRICT - 562 109.
...APPELLANT
(BY SRI. GIRIMALLAIAH, ADVOCATE)
AND:
1. TATA AIG GENERAL
INSURANCE COMPANY LTD.,
NO.69, 3RD FLOOR, J.P. & DEVI
JAMBUKESHWARA ARCADE
MILLERS ROAD
BENGALURU - 560 052.
2. MR. SHIVAKUMAR H.T
S/O TIPARAPPA H.K.
MAJOR
(AGE NOT KNOWN TO
THE APPELLANT)
R/AT HOSURU VILLAGE & POST
2
BIDADI HOBLI
RAMANAGARA DISTRICT - 562 109.
....RESPONDENTS
(BY SRI. O. MAHESH, ADVOCATE FOR R1(V/C)
NOTICE TO R2 IS D/W)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 04.02.2019
PASSED IN MVC NO.7583/2017, ON THE FILE OF THE XIII
ADDITIONAL JUDGE, COURT OF SMALL CAUSES AND MEMBER,
MACT, BENGALURU (SCCH-15), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal in MFA.4852/2019 is filed by the
appellant/claimant under Section 173(1) of the Motor
Vehicles Act, 1988 (for short 'M.V. Act') against the
judgment and award dated 04.02.2019 passed in MVC
No.7583/2017 on the file of the Motor Accident Claims
Tribunal, Bengaluru (SCCH-15) (for short 'Tribunal').
2. The facts leading upto filing of the present
appeal briefly stated are that, on 15.11.2017, at about
9.35 a.m., the appellant/claimant was proceeding on his
Activa Honda motorcycle bearing Reg.No.KA-02/HW-8576.
When he reached near Chikkiraiah Estate, Bidadi Hobli,
Byramangala-Hosur road, Ramanagara district, another
motorcycle bearing Reg.No.KA-42/W-4080 (hereinafter
referred to as 'the offending vehicle') ridden by its rider in
a rash and negligent manner from opposite direction
dashed against the motorcycle of the claimant. Due to the
impact, the claimant was thrown on the road and
sustained grievous injuries. Claimant was taken to Sanjay
Gandhi Hospital, Bengaluru for treatment. A case in Crime
No.487/2017 was registered.
3. Thereupon, the claimant filed a claim petition
under Section 166 of the M.V.Act seeking compensation of
`20,00,000/- on the ground that he was aged about 43
years, was doing agricultural and contract work and was
earning a sum of `30,000/- per month and that the
accident was caused due to rash and negligent riding of
the offending vehicle by its rider, resulting in grievous
injuries to him and due to the same, he is not able to carry
out his regular work as he was doing earlier, thereby
reducing his earning ability. That the accident was caused
on account of negligent riding of the motorcycle by
respondent No.2 and said motorcycle was insured with
respondent No.1. As such, respondent Nos.1 and 2 were
liable to pay the compensation to the claimant.
4. Upon service of notice, respondent No.2 did
not appear and was placed exparte. Respondent No.1
appeared through its counsel and filed its statement of
objections, admitting the issuance of policy in respect of
the offending vehicle. However, denied the averments
made in the petition regarding mode and manner of
accident. It was contended that the rider of the offending
vehicle was not having valid and effective driving lience at
the time of accident and the offending vehicle was not
involved in the accident as alleged by the claimant.
Hence, sought for dismissal of the claim petition.
5. The Tribunal based on the pleadings of the
parties, framed issues and recorded evidence. The
claimant examined himself as PW.1 and one doctor
namely, Prakashappa T.H. has been examined as PW.2.
Eleven documents were exhibited as Exs.P1 to P11. On
behalf of respondent No.1-insurance company, one Sri
Nagendra R has been examined as RW.1 and copy of
policy has been exhibited as Ex.R1.
6. The Tribunal after appreciating the evidence
held that the accident occurred due to rash and negligent
riding of the offending vehicle by its rider and
consequently held that the claimant is entitled for
compensation as follows:
Pain and suffering `40,000/-
Loss of laid up period `16,000/-
(8,000x2=16,000)
Medical expenses `9,500/-
Future medical `10,000/-
expenditure
Loss of future income `1,88,500/-
Diet & conveyance `10,000/-
Loss of emenities `30,000/-
Total `3,04,000/-
7. The Tribunal directed the respondent No.1 -
insurance company to pay the compensation together with
interest at 6% per annum from the date of petition till
realization, within 60 days from the date of the order.
Aggrieved by the same, the appellant/claimant is before
this Court seeking enhancement of the compensation.
8. Heard the learned counsel for the parties and
perused the records.
9. The learned counsel for the appellant/claimant
reiterating the grounds urged in the appeal memorandum
submitted that the Tribunal grossly erred in assessing the
income of the claimant at Rs.8,000/- per month even
though he was earning a sum of Rs.30,000/- per month
from agriculture and contract work. That the Doctor-PW.2,
who had treated the claimant had deposed by way of an
affidavit before the Tribunal specifically assessing the
disability suffered by the appellant/claimant at 20% and
that in the availability of the evidence of the doctor, the
Tribunal ought not to have reassessed the disability at
14%. He further submits that the compensation awarded
by the Tribunal under other heads are on lower side.
Referring to requirement of future medical expenses,
learned counsel submits that the Doctor-PW.2 in his
evidence has specifically stated that the appellant/claimant
need one more surgery for removal of implant, the cost of
which would be around Rs.18,000/- to Rs.20,000/-, but
the Tribunal erred in awarding only a sum of Rs.10,000/-
which is on lower side. Hence, sought for enhancement of
compensation by allowing the appeal.
10. On the other hand, the learned counsel for the
respondent No.1/insurance company justifying the order
passed by the Tribunal submitted that the assessment of
income at Rs.8,000/- per month is just and proper. He
submits that though the claimant claimed to have been
earning Rs.30,000/- per month from his agriculture and
contract work he has not produced any evidence. That
even for the purpose of consideration of national income as
per the chart prepared by Karnataka State Legal Services
Authority, there should be some material on record
regarding avocation of the appellant/claimant and only
then the national income as per the chart could be taken
into consideration. In the instant case, he submits, that
since the claimant has not produced any material
evidence, even recourse of the chart cannot be made.
Further referring to the disability and the requirement of
future medical expenses, learned counsel for the insurance
company submits that the assessment of the disability at
20% made by the Doctor-PW.2 cannot be countenanced as
no certificate in this regard has been furnished. Therefore,
the disability assessed by the Tribunal at 14% is just and
proper. He also contended that the accident is of the year
2017, we are in the year 2022 if at all the surgery was
required, the same could have been done by now, since
there is no material supporting requiring the surgery, the
claimant is not entitled any future medical expenses. That
the appellant/ claimant has not made out any ground for
enhancement of the compensation. Hence, sought for
dismissal of the appeal.
11. On thoughtful consideration of the submissions
made by the learned counsel for the parties, the only point
that arises for consideration is:
"Whether the appellant/claimant has
made out a case for enhancement of the
compensation?"
12. The accident in question involving Activa
Honda bearing Reg.No.KA-02/HW-8576 and the
motorcycle bearing Reg.No.KA-42/W-4080 belonging to
respondent No.2 is not in dispute. The claimant has
suffered the following injuries on account of the accident
as found at Ex.P4 - wound certificate:
"i) Swelling, tenderness, crepitus, deformity-X-Ray
shows, Compound fracture both bones of (L) leg".
13. Discharge summary at Ex.P6 reveal that the
claimant has undergone the treatment. Dr.Prakashappa-
PW.2 who treated the claimant has entered witness box
and has filed affidavit in lieu of his evidence. Perusal of the
said affidavit, reveal that the said Doctor has relied upon
the documents such as X-rays, clinical and radiological
examination carried out by him. Based on the said material
and examination, he has assessed the disability, as per the
guidelines issued by Ministry of Social Justice and
Empowerment, Government of India. Paragraphs 2, 3, 4
and 5 of his affidavit provide details of the injuries and the
extent of disability in the nature of movement of distal end
and foot has been taken into consideration. On the basis
of these details PW.2 has assessed the disability of the
appellant/claimant at 20%. He has also deposed hat the
appellant/claimant has to undergo one more surgery for
removal of implant, involving cost of Rs.18,000/- to
Rs.20,000/- in his hospital. In the cross examination,
except the answer that as per the X-ray fracture is
reunited, nothing has been elicited discrediting the
assessment of disability made by the said witness. In that
light of the matter, the Tribunal ought to have relied upon
the assessment of the disability at 20% instead of
reassessing it at 14%. Thus, the assessment made by the
Tribunal at 14% requires to be modified and enhanced at
20% as made by the Doctor-PW.2, who is an repeat in the
filed.
14. Adverting to the income of the
appellant/claimant, though it is claimed that he was
earning Rs.30,000/- per month from his agriculture and
contract activities, no material evidence in this regard has
been produced. This Court in the absence of any material
evidence with regard to the income of the victims of a
Road Traffic Accident, invariably takes into consideration
the chart prepared by the Karnataka State Legal Services
Authority. As per the chart, the notional income of the
victim, of the road traffic accident for the year 2017 has
been notionally fixed at `11,000/- and the same is taken
into consideration in the present case instead `8,000/- per
month as taken by the Tribunal. Thus, considering the age
of the claimant being 43 years at the time of accident,
applicable multiplier is '14'. Thus the loss of future income
of the appellant/claimant would be `3,69,600/-
(11,000x12x14x20%).
15. The Tribunal has awarded `40,000/- under the
head of pain and suffering. Considering the nature of
injuries being compound fracture of both bones of left leg,
an additional sum of `20,000/- is awarded enhancing the
compensation to Rs.60,000/- instead `40,000/- awarded
by the Tribunal.
16. The Tribunal has awarded `16,000/- towards
loss of income during laid up period. The injuries involving
fracture would normally take 3 months for recovery. This
Court has notionally awarded income at Rs.11,000/- per
month. Therefore, the loss of income during laid up period
is taken for 3 months. Thus, Rs.33,000/- is awarded
under the head of loss of income during laid up period
instead of Rs.16,000/-.
17. The Tribunal has awarded `9,500/- towards
medical expenses and the same is maintained as just and
proper.
18. The Tribunal has awarded `10,000/- towards
future medical expenses. Considering the evidence of the
Doctor who has stated the requirement of surgery
involving removal of implant and the approximate cost
being Rs.18,000/- to Rs.20,000/-, a sum of Rs.15,000/- is
awarded under the said head instead of Rs.10,000/-. The
Tribunal has awarded Rs.10,000/- towards diet and
conveyance, the said amount is enhanced to Rs.20,000/-
by adding Rs.10,000/-. Under the head of loss of
amenities Rs.30,000/- has been awarded by the Tribunal,
the said amount is enhanced to Rs.50,000/- by adding
Rs.20,000/- under the said head.
19. Thus, the claimant is entitled to enhanced
compensation of Rs.5,57,100/- as follows:
Heads By Tribunal By this Court
Pain and `40,000/- `60,000/-
suffering
Loss of laid up `16,000/- `33,000/-
period
Medical `9,500/- `9,500/-
expenses
Future medical `10,000/- `15,000/-
expenses
Loss of future `1,88,500/- `3,69,600/-
income
Towards diet `10,000/- `20,000/-
and
conveyance
Loss of `30,000/- `50,000/-
amenities
Total `3,04,000/- `5,57,100/-
20. On the enhanced compensation, the claimant
is entitled for interest at 6% per annum from the date of
claim petition till realization.
21. The above point is answered accordingly and
following order is passed:
ORDER
a. The MFA.No.4852/2019 filed by the
appellant/claimant is allowed-in-part and the
judgment and order of the Tribunal in MVC
No.7583/2017 is modified.
b. The appellant/claimant is held
entitled for enhanced compensation of
`5,57,100/- instead `3,04,000/- awarded by
the Tribunal together with interest at 6% per
annum from the date of petition till its
realization. However, the appellant/claimant
shall not be entitled any interest on the award
of compensation under the head of future
medical expenses.
c. The respondent No.1 - insurance
company is directed to pay the compensation
within eight weeks from the date of receipt of a
certified copy of this judgment.
Sd/-
JUDGE
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