Karnataka High Court
National Insurance Co Ltd vs Smt Rukmini on 7 June, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.7651/2017 C/W
M.F.A.NO.7650/2017 (MV)
IN MFA NO.7651/2017
BETWEEN:
NATIONAL INSURANCE COM. LTD.,
MOTOR CLAIMS HUB,
NO.144, SUBHARAM COMPLEX,
M.G.ROAD, BANGALORE,
BANGALORE-560001.
THE MANAGER
... APPELLANT
(BY SRI. L. SREEKANTA RAO, ADVOCATE
APPEARING THROUGH V/C)
AND:
1. VENKATESHAPPA,
S/O LATE JAYAPPA,
AGED ABOUT 47 YEARS,
R/AT DALAVAIHOSAHALLI VILLAGE,
KATRIPURA POST, BANGARPET TALUK,
KOLAR DISTRICT-563101.
2. SMT. UMAMAHESHWARI,
W/O M. MEYALANGAN MBS,
1-13-9, OLD EDSAPPAID ROAD,
SANKARI TALUK, SALEM DISTRICT,
TAMIL NADU-574214.
... RESPONDENTS
2
(BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE FOR R1,
NOTICE TO R2 IS DISPENSED WITH V/O DTD:13/04/2018)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:17.07.2017 PASSED IN MVC NO.2776/2016 ON
THE FILE OF THE 5TH ADDITIONAL SMALL CAUSES JUDGE
& 24TH ACMM, MEMBER, MACT, BENGALURU, AWARDING
COMPENSATION OF RS.6,57,000/- WITH INTEREST AT 9%
P.A. FROM THE DATE OF PETITION TILL REALIZATION AND
ETC.,
IN MFA NO.7650/2017
BETWEEN
NATIONAL INSURANCE CO. LTD.,
MOTOR CLAIMS HUB,
NO.144, SUBHARAM COMPLEX,
M.G.ROAD, BANGALORE,
BANGALORE-560001.
...APPELLANT
(BY SRI L. SREEKANTA RAO, ADVOCATE
APPEARING THROUGH V/C)
AND:
1. SMT. RUKMINI,
W/O VENKATESHAPPA,
AGED ABOUT 43 YEARS,
R/AT DALAVAIHOSHALLI VILLAGE,
KATRIPURA POST, BANGAPET TALUK,
KOLAR DISTRICT-563101.
2. SMT.UMAMAHESHWARI,
W/O. M.MEYALANGAN MBBS,
1-13-9, OLD EDAPPAID ROAD,
SANKARI TALUK, SALEM DISTRICT,
TAMIL NADU-574212.
...RESPONDENTS
3
(BY SRI K.T. GURUDEVA PRASAD, ADVOCATE FOR R1,
R2-SERVED & UNREPRESENTED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:17.07.2017 PASSED IN MVC NO.2775/2016 ON
THE FILE OF THE 5TH ADDITIONAL SMALL CAUSES JUDGE
& 24TH ACMM, MEMBER, MACT, BENGALURU, AWARDING
COMPENSATION OF RS.10,96,000/- WITH INTEREST AT
9% P.A. FROM THE DATE OF PETITION TILL ITS
REALIZATION AND ETC.,
*THESE M.F.As. COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.7651/2017 is filed under Section-173(1) of
the Motor Vehicles Act, 1988, (hereinafter referred to as
'MV Act' for brevity) by the appellant - insurance company
challenging the judgment and award dated 17.07.2017,
passed in MVC No.2776/2016, on the file of Motor Accident
Claims Tribunal and Vth Additional Judge SCCH-20 Mayo
Hall Unit, Bengaluru, (hereinafter referred to as 'the
Tribunal' for brevity) questioning liability.
2. MFA No.7650/2017 is filed under Section-
173(1) of MV Act by the appellant - insurance company
challenging the judgment and award dated 17.07.2017,
passed in MVC No.2775/2016, on the file of Motor Accident
*Corrected vide chamber order dtd:01/07/2022
Claims Tribunal and Vth Additional Judge SCCH-20 Mayo
Hall Unit, Bengaluru, (hereinafter referred to as 'the
Tribunal' for brevity) questioning liability.
Brief facts:
3. On 05.03.2015, at about 4.00 p.m., while the
respondents - claimants were traveling as rider and pillion
rider in motor cycle bearing registration No.KA-08-S-3272
on NH-4 Road, near Kolathur Gate, Hosakote Taluk,
Bengaluru Rural District at that time, a car bearing
registration No.TN-27-R-9003 in rash and negligent
manner, endangering to human life and dashed to the
respondent's motor cycle. Due to the said impact, both the
rider and pillion rider fell down along with motor cycle, due
to which they sustained grievous injuries.
4. Hence, a claim petition was filed by the
respondents - claimants under Section-166 of the M.V.
Act, claiming compensation for the injuries sustained in the
accident. The Tribunal on appreciating the materials on
record in MVC No.2775/2016, allowed the petition in part,
and awarded a compensation of Rs.10,96,000/- along with
interest at 9% per annum (excluding Future Medical
Expenses) from the date of petition till the date of
realisation. Further, the Tribunal on appreciating the
materials on record in MVC No.2776/2016, allowed the
petition in part, and awarded a compensation of
Rs.6,57,000/- along with interest at 9% per annum
(excluding Future Medical Expenses) from the date of
petition till the date of realisation. The Tribunal held the
insurance company-respondent No.1 and the owner of the
offending car - Respondent No.2, are jointly and severally
liable to pay the compensation.
MFA No.7650/2017 (MVC No.2775/2016) :
5. The learned counsel for the appellant-
insurance company submitted that the notional income of
Rs.12,000/- per month held by the Tribunal is not correct,
in the absence of proof of income. Further, submitted that
the percentage of disability held by the Tribunal in both the
cases are at a higher rate while considering the functional
disability, 1/3rd of the permanent disability occurred to a
particular limb is to be taken into consideration. But the
Tribunal has held 50% functional disability. Therefore, the
percentage of disability can be reduced. Therefore, argued
the Tribunal exorbitantly holding the notional income per
month and also the percentage of functional disability has
awarded compensation for which the claimants are not
entitled. Therefore, prayed for reducing the compensation
by modifying the judgment and award passed by the
Tribunal.
6. The Tribunal has awarded compensation under
various heads as follows:
Pain, Injuries And Suffering : Rs. 1,00,000/-
Medical Expenses : Rs. 3,19,090/-
Loss of Future Income : Rs. 6,26,400/-
Conveyance : Rs. 10,000/-
Nourishment And Attendant : Rs. 10,000/-
Charges
Future Medical Expenses : Rs. 30,000/-
TOTAL : Rs. 10,95,490/-
7. In the present case, the claimant is a woman
who has suffered fracture of right humerus with wrist drop,
fracture of left humerus, fracture of mandible with loss of
two teeth and underwent surgery, from being admitted as
inpatient from 05.03.2016 to 12.03.2016. Therefore,
considering the nature of injuries sustained and also
medical expenses which are as per the medical records
produced, the compensation is awarded which are found to
be correct and needs no disturbance.
8. The claimant was examined PW-1 stated that
she was working as coolie and was earning Rs.300/- per
day. But the Tribunal has taken Rs.12,000/- as monthly
income. Even if the claimant has stated that she is a coolie
and was earning Rs.300/- per day, the monthly income
ought to be taken at Rs.9,000/-. Therefore, the notional
income at Rs.9,000/- per month is taken for
consideration. Further, the Doctor PW-3 had given
evidence and also issued Disability Certificate that the
claimant had sustained permanent disability of both upper
limbs and mandible at 58% and that the whole body
disability would be at 29%. The learned counsel for the
insurance company submitted that the percentage of
disability held by the Tribunal is higher side and normally
1/3rd of the particular limb is to be taken into
consideration. Functional disability is not a mathematical
calculation disability, it is to be considered keeping in mind
the gender of the person, her contribution to the family,
the nature of job and physical disability towards a
particular limb / limbs. Therefore, considering the factures,
the appellant had suffered fracture of right humerus with
wrist drop, fracture of left humerus, fracture of mandible
with loss of two teeth and underwent surgery. Therefore,
the claimant had suffered fracture of both upper limbs.
Therefore, considering this the functional disability taken
by the Tribunal whole body disability at 29% which is
correct and needs no interference.
9. Further, the age of the claimant was 40 years
at the time of accident. As per the judgment of the Hon'ble
Supreme Court, in the case of Smt.Sarla Verma &
Others. Vs. Delhi Transport Corpn And Another
reported in AIR 2009 SC 3104, the appropriate multiplier
is '15'. Therefore, the compensation under the head 'Loss
Of Future Earning Capacity' is recalculated and quantified
as follows:
Rs.9,000 x 29/100 x 15 x 12 = Rs.4,69,800/-
10. Further, the Tribunal has not awarded
compensation under the head 'Loss of Amenities' and 'Loss
Of Income During Laid Up Period'. Therefore, considering
the injuries sustained by the claimant who is a woman and
she may be facing difficult in doing normal day to day
chores, loss of enjoyment in life, discomfort, inconvenience
and mental agony, therefore a sum of Rs.15,000/- is
awarded under the head 'Loss of Amenities'.
11. Considering the monthly income of the
claimant at Rs.9,000/- per month and if the laid up period
is taken as three Months, the claimant is entitled for a sum
of Rs.27,000/- (Rs.9,000 x 3 months), under the head
'Loss Of Earning During Laid Up Period'.
12. Hence, the claimant is entitled for a total
enhanced compensation, under various heads as follows:
Pain, Injuries And Suffering : Rs. 1,00,000/- (Kept in tact)
Medical Expenses : Rs. 3,19,090/- (Kept in tact)
Loss Of Future Earning Capacity : Rs. 4,69,800/-
(Rs.9,000 x 29/100 x 15 x 12)
Conveyance : Rs. 10,000/- (Kept in tact)
Nourishment And Attendant : Rs. 10,000/- (Kept in tact)
Charges
Future Medical Expenses : Rs. 30,000/- (Kept in tact)
Loss of Amenities : Rs. 15,000/-
Loss of income during laid up : Rs. 27,000/-
period (Rs.9,000 x 3)
TOTAL : Rs. 9,80,890/-
13. Therefore, the claimant - respondent in MFA
No.7651/2017 (MVC No.2775/2016) is awarded a total
compensation of Rs.9,80,890/- (Rupees Nine Lakh
Eighty Thousand Eight Hundred and Ninety Only) as
against the compensation awarded by the Tribunal at
Rs.10,95,490/- along with interest at 6% per annum from
the date of filing of the petition till deposit.
MFA No.7651/2017 (MVC No.2776/2016) :
14. The Tribunal has awarded compensation under
various heads as follows:
Pain, Injuries And Suffering : Rs. 1,00,000/-
Medical Expenses : Rs. 1,07,985/-
Loss of Future Income : Rs. 3,55,680/-
Conveyance : Rs. 10,000/-
Nourishment And Attendant Charges : Rs. 10,000/-
Future Medical Expenses : Rs. 10,000/-
TOTAL : Rs. 6,56,665/-
15. In the present case, the claimant-respondent
has suffered fracture of both bones of left leg, and
underwent surgery for left leg and internal fixation was
done. Other injuries were treated conservatively.
Therefore, considering the nature of injuries sustained and
also medical expenses which are as per the medical
records produced, the compensation is awarded which are
found to be correct and needs no disturbance.
16. The claimant has stated that he owned a
provision store and was earning Rs.500/- per day.
However, the claimant has not produced any evidence in
this regard. The Tribunal has taken Rs.12,000/- as
monthly income, which is exorbitant. Therefore, the
notional income of the claimant is held at Rs.9,000/- per
month. Further, the Doctor PW-2 had given evidence and
also issued Disability Certificate that the claimant had
sustained permanent disability of left lower limb and
assessed 38% disability to the particular limb and whole-
body disability at 19%. The disability at 19% to the whole-
body is accepted and needs no interference.
17. Further, the age of the claimant was 46 years
at the time of accident. As per the judgment of the Hon'ble
Supreme Court, in the case of Smt.Sarla Verma &
Others. Vs. Delhi Transport Corpn And Another
reported in AIR 2009 SC 3104, the appropriate multiplier
is '13'. Therefore, the compensation under the head 'Loss
Of Future Earning Capacity' is recalculated and quantified
as follows:
Rs.9,000 x 19/100 x 13 x 12 = Rs.2,66,760/-
18. Further, the Tribunal has not awarded
compensation under the head 'Loss of Amenities' and 'Loss
of Income during Laid up Period'. Therefore, considering
the injuries sustained by the claimant, he may be facing
difficult in doing normal day to day chores, loss of
enjoyment in life, discomfort, inconvenience and mental
agony. Therefore, a sum of Rs.15,000/- is awarded under
the head 'Loss of Amenities'.
19. Considering the monthly income of the
claimant at Rs.9,000/- per month and if the laid up period
is taken as three Months, the claimant is entitled for a sum
of Rs.27,000/- (Rs.9,000 x 3 months), under the head
'Loss Of Earning During Laid Up Period'.
20. Hence, the claimant is entitled for a total
enhanced compensation, under various heads as follows:
Pain, Injuries And Suffering : Rs. 1,00,000/- (Kept in tact)
Medical Expenses : Rs. 1,07,985/- (Kept in tact)
Loss Of Future Earning Capacity : Rs. 2,66,760/-
(Rs.9,000 x 19/100 x 13 x 12)
Conveyance : Rs. 10,000/- (Kept in tact)
Nourishment And Attendant : Rs. 10,000/- (Kept in tact)
Charges
Future Medical Expenses : Rs. 10,000/- (Kept in tact)
Loss of Amenities : Rs. 15,000/-
Loss of income during laid up : Rs. 27,000/-
period (Rs.9,000 x 3)
TOTAL : Rs. 5,46,745/-
21. Therefore, the claimant - respondent in MFA
No.7651/2017 (MVC No.2775/2016) is awarded a total
compensation of Rs.5,46,745/- (Rupees Five Lakh
Forty Six Thousand Seven Hundred and Forty Five
Only) as against the compensation awarded by the
Tribunal at Rs.6,57,000/- along with interest at 6% per
annum from the date of filing of the petition till deposit.
22. Accordingly, I pass the following:
ORDER
i. MFA No.7650/2017 (MVC No.2775/2016) is
allowed in part. The claimant is awarded a total
compensation of Rs.9,80,890/-, along with
interest at 6% per annum from the date of
filing of the petition till deposit.
ii. MFA No.7651/2017 (MVC No.2776/2016) is
allowed in part. The claimant is awarded a total
compensation of Rs.5,46,745/-, along with
interest at 6% per annum from the date of
filing of the petition till deposit
iii. Registry is directed to return the Trial Court
Records to the Tribunal, along with certified
copy of the order passed by this Court
forthwith without any delay.
iv. The amount in deposit shall be transmitted to
the Tribunal forthwith.
v. Draw award accordingly.
Sd/-
JUDGE
* Pg No.14 retyped & replaced vide court order
dt:01/07/2022.
JJ
