Karnataka High Court

Reliance General Insurance ... vs Hanumantharaju V on 12 July, 2022

Bench: H T Prasad

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 12TH DAY OF JULY 2022

                    BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

         MFA No.6608 OF 2021(MV)
                  C/W
         MFA No.3859 OF 2021(MV)

IN MFA 6608/2021
BETWEEN

RELIANCE GENERAL INSURANCE
COMPANY LTD.,
EAST WING, 5TH FLOOR
NO.28,CENTENARY BUILDING
M.G.ROAD,BENGALURU-560001.
NOW REPRESENTED BY
MANAGER LEGAL.
                                    ...APPELLANT

(BY SRI.ASHOK N PATIL, ADV)

AND

1 . HANUMANTHARAJU V
    S/O VENKATACHALAIAH
    AGED ABOUT 41 YEARS
    RESIDING AT HONGANAHATTI
    TAVAREKERE HOBLI
    MAGADI TALUK
    RAMANGARA DISTRICT 562130.
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2 . GIRISH GOWDA
    S/O NARASIMHAIAH
    R/AT NO.10, 3RD CROSS
    VRUSHABHAVATHI NAGAR
    NEAR LAKSHMI VALLABHA
    KALYANA MANTAPA
    KAMAKSHIPALYA
    BENGALURU-560079.

                                ...RESPONDENTS

(BY SRI.B.KESHAVA MURTHY, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION.173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD
DT.22.04.2021 PASSED IN MVC NO.5397/2019 ON
THE FILE OF THE VIII ADDITIONAL SMALL CAUSE
JUDGE AND ACMM, MEMBER, MACT, BENGALURU,
(SCCH-5),     AWARDING    COMPENSATION      OF
RS.7,92,000/- WITH INTEREST AT 9 PERCENT P.A.
(EXCLUDING     FUTURE MEDICAL   EXPENSES    OF
RS.25,000/-) FROM THE DATE OF PETITION TILL
REALIZATION.


IN MFA 3859/2021
BETWEEN

MR. HANUMANTHARAJU V
S/O MR. VENKATACHALAIAH
AGED ABOUT 40 YEARS
R/AT HONGANAHATTI VILLAGE
TAVAREKERE HOBLI
MAGADI TALUK
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RAMANGARA DISTRICT.
                                   ... APPELLANT
(BY SRI. KESHAVAMURTHY B., ADV.)

AND:

1.   MR. GIRISH GOWDA
     S/O NARASIMHAIAH
     R/AT NO.10, 3RD CROSS
     VRUSHABHAVATHI NAGAR
     NEAR LAKSHMI VALLABHA
     KALYANA MANTAPA
     KAMAKSHIPALYA
     BENGALURU-560079.

2.   M/S RELIANCE GENERAL INSURANCE
     COMPANY LTD.,
     EAST WING, 5TH FLOOR
     NO.28,CENTENARY BUILDING
     M.G.ROAD,BENGALURU-560001.

                                 ... RESPONDENTS
(BY SRI. ASHOK N PATIL ADV. FOR R2:
NOTICE TO R1 IS SERVED BUT UNREPRESENTED)

    THIS MFA IS FILED UNDER SECTION.173(1) OF
MV ACT, AGAINST THE JUDGMENT AND AWARD
DT.22.04.2021 PASSED IN MVC NO.5397/2019 ON
THE FILE OF THE VIII ADDITIONAL SMALL CAUSE
JUDGE AND ACMM, MEMBER, MACT, BENGALURU,
(SCCH-5), PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THESE MFAs COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                      JUDGMENT

MFA 6608/2021 is filed by the Insurance

Company and MFA 3859/2021 is filed by the claimant

under Section 173(1) of Motor Vehicles Act, 1988

(hereinafter referred to as 'the Act') being aggrieved

by the judgment dated 22.4.2021 passed by MACT,

Bengaluru in MVC 5397/2019.

2. Facts giving rise to the filing of the appeals

briefly stated are that on 4.8.2019 when the claimant

was proceeding on motorcycle bearing registration

No.KA-02-JF-1056 near 2nd Cross, BEL Layout, at that

time, tipper lorry bearing registration No.KA-03-C-

8865 being driven by its driver at a high speed and in

a rash and negligent manner, dashed to the claimant.

As a result of the aforesaid accident, the claimant

sustained grievous injuries and was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondents

appeared through their counsel and filed written

statements in which the averments made in the

petition were denied.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and Dr.Rajesh M.B. was examined

as PW-2 and got exhibited documents namely Ex.P1

to Ex.P19. On behalf of the respondents, neither any

witness was examined nor any document was

produced. The Claims Tribunal, by the impugned

judgment, inter alia, held that the accident took place

on account of rash and negligent driving of the

offending vehicle by its driver, as a result of which,

the claimant sustained injuries. The Tribunal further

held that the claimant is entitled to a compensation of

Rs.792,000/- along with interest at the rate of 9%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, the present appeals have been filed.

6. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was working as tiles layer and earning Rs.20,000/-

per month, but the Tribunal has taken the notional

income as merely as Rs.11,000/- per month.

Secondly, the claimant has examined the doctor

as PW-2. The doctor in his evidence has stated that

the claimant has suffered disability of 70% to

particular limb and 23.3% to whole body. Due to the

disability, the claimant is unable to do his day to day

work. But the Tribunal has taken the whole body

disability at 15%, which is on the lower side.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 25 days. Even after discharge

from the hospital, he was not in a position to

discharge his regular work. He has suffered lot of pain

during treatment. Considering the same, the

compensation awarded by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses are on the lower side.

Hence, he sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, even though the claimant claims that he

was earning Rs.20,000/- per month, he has not

produced any documents to establish his income. In

the absence of proof of income, the income assessed

by the Tribunal is on the higher side.

Secondly, the doctor in his evidence has stated

that the claimant has suffered disability of 70% to

particular limb and 23.3% to whole body. In the cross

examination, the doctor has admitted that the fracture

sustained by the claimant is one and the same is

reunited. The injuries sustained by the claimant are

minor in nature. Hence, the whole body disability

assessed by the Tribunal at 15% is on the higher side.

Thirdly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal is just and reasonable and it does not call for

interference.

Fourthly, in view of the Division Bench decision

of this Court in the case of Ms.Joyeeta Bose and

others -v- Venkateshan.V and others (MFA

5896/2018 and connected matters disposed of

on 24.8.2020), the rate of interest granted by the

Tribunal at 9% p.a. on the compensation amount is on

the higher side and same has to be reduced to 6%.

Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award of the Tribunal.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

The claimant claims that he was earning

Rs.20,000/- per month. He has not produced any

documents to prove his income. Therefore, in the

absence of proof of income, notional income has to be

assessed. As per the guidelines issued by the

Karnataka State Legal Services Authority, for the

accident taken place in the year 2019, the notional

income has to be taken at Rs.14,000/- p.m.

As per wound certificate, the claimant has

sustained complex friction abrasion injury left ankle,

fracture medial malleolous with bone loss, posterior

tibial nerve injury with tissue loss and internal

degloving of skin and multiple tendon loss. The doctor

in his evidence has stated that the claimant has

suffered disability of 70% to particular limb and

23.3% to whole body. In the cross examination, the

doctor has admitted that the fractures sustained by

the claimant is one and the same is reunited.

Therefore, taking into consideration the deposition of

the doctor and injuries mentioned in the wound

certificate, the Tribunal has rightly taken the whole

body disability at 15%. The claimant is aged about 38

years at the time of the accident and multiplier

applicable to his age group is '15'. Thus, the claimant

is entitled for compensation of Rs.378,000/-

(Rs.14,000*12*15*15%) on account of 'loss of future

income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 2 months. Therefore, the claimant is entitled for

compensation of Rs.28,000/- (Rs.14,000*2 months)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 25 days in the hospital and thereafter, has

received further treatment. Due to the accident, the

claimant has suffered grievous injuries and also

undergone surgery. He has suffered lot of pain during

treatment and he has to suffer with the disability

stated by the doctor throughout his life. Considering

the same, I am inclined to enhance the compensation

awarded by the Tribunal under the head of 'loss of

amenities' from Rs.25,000/- to Rs.35,000/-.

The compensation of Rs.80,000/- awarded by

the Tribunal under the head of 'pain and sufferings' is

on the higher side and hence, the same is reduced to

Rs.50,000/-.

Considering the nature of injuries, the

compensation awarded by the Tribunal under other

heads is just and reasonable.

10. Thus, the claimant is entitled to the

following compensation:

As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 80,000 50,000

Medical expenses 334,000 334,000 Food, nourishment, 20,000 20,000 conveyance and attendant charges Loss of income during 11,000 28,000 laid up period Loss of amenities 25,000 35,000 Loss of future income 297,000 378,000 Future medical expenses 25,000 25,000 Total 792,000 870,000

11. In the result, the appeals are disposed of.

The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.870,000/- as against Rs.792,000/- awarded by

the Tribunal.

In view of the Division Bench decision of this

Court in the case of Ms.Joyeeta Bose and others -

v- Venkateshan.V and others (MFA 5896/2018

and connected matters disposed of on

24.8.2020), the interest granted by the Tribunal at

the rate of 9% p.a. on the compensation amount is

reduced to 6% p.a.