Sri Yellappa vs Hdfc Ergo General Insurance Co Ltd
2022 Latest Caselaw 8730 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14TH DAY OF JUNE 2022

                        BEFORE

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

              MFA No.5125 OF 2020(MV)
BETWEEN:

SRI YELLAPPA
S/O SIDDAPPA
AGED ABOUT 70 YEARS
R/AT NO 60, RENUKANAGARA
BASAVANAHALLI, NELAMANGALA TALUK
BENGALURUS RURAL
DISTRICT-562132.
                                         ...APPELLANT
(BY SRI.SHIVAKUMAR P., ADV.)

AND

1.     HDFC ERGO GENERAL
       INSURANCE CO LTD
       NO 25/1, 2ND FLOOR
       BUILDING NO 2
       SHANKARANARAYANA BUILDING
       M G ROAD, BENGALURU 560001
       REP BY ITS MANAGER.

2.     SRI.ANAND N
       S/O NAGARAJU N
       R/AT NO 47, RENUKANAGARA
       NELAMANGALA TALUK, BENGALURU RURAL
       DISTRICT 562123.
                                      ...RESPONDENTS
(BY SRI.B.PRADEEP, ADV. FOR R1:
NOTICE TO R2 IS DISPENSED WITH)
                           2




     THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED.
22.01.2020, PASSED IN MVC NO.5888/2018, ON THE FILE
OF THE I-ADDITIONAL SMALL CAUSES JUDGE AND MACT,
(SCCH-25), BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION    FOR    COMPENSATION     AND    SEEKING
ENHANCEMENT OF COMPENSATION.

    THIS MFA COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                    JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment and decree dated 22.01.2020 passed

by the I Additional Small Causes Judge & MACT,

Bengaluru in MVC No.5888/2018.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 26.03.2018 at about 07.30

P.M., when the claimant was walking on the mud

portion of Nelamangala-Doddaballapura road, near

Renuka Nagar, KEB Office, at that time, the rider of

the bike bearing Registration No.KA-41-EL-0013 rode

the same from Nalemangala side in a high speed, rash

and negligent manner as endangering to human life,

in a zigzag manner, entered the mud portion and hit

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 riding of the offending vehicle by

its rider.

4. On service of notice, the respondent No.1

being the insurer has appeared through counsel and

filed written statement in which the averments made

in the petition were denied. The liability is subject to

terms and conditions of the policy. The age, avocation

and income of the claimant and the medical expenses

are denied. It was further pleaded that the quantum

of compensation claimed by the claimant is exorbitant.

Hence, he sought for dismissal of the petition.

The respondent No.2 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

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, Dr. Manjunath Biradar examined

as PW-2 and Dr. Nagaraj B. N. was examined as PW-3

and got exhibited documents namely Ex.P1 to Ex.P15.

On behalf of the respondents, one witness was

examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R6. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of rash and negligent riding of

the offending vehicle by its rider, as a result of which,

the claimant sustained injuries. The Tribunal further

held that the claimant is entitled to a compensation of

Rs.1,93,960/- along with interest at the rate of 6%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, this appeal has been filed.

6. Sri Shivakumar.P, learned counsel for the

claimant has raised the following contentions:

Firstly, even though the claimant claims that he

was doing coolie work and earning Rs.15,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.9,000/- per month.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

37% to lower limb and 12% to whole body. But the

Tribunal has erred in taking the whole body disability

at only 8%.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 4 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 granted by the Tribunal under the

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

other heads are on the lower side. Hence, he sought

for allowing the appeal.

7. On the other hand, Sri B. Pradeep, learned

counsel for the Insurance Company has raised

following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.15,000/- per month, he has not

produced any documents to establish his income.

Therefore, the Tribunal has rightly assessed the

income of the claimant notionally.

Secondly, PW-3, the doctor has stated in his

evidence that the claimant has suffered disability of

37% to lower limb and 12% to whole body. The

Tribunal considering the injuries sustained by the

claimant, has rightly assessed the whole body

disability at 8%.

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 compensation. Hence,

he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent riding of the offending

vehicle by its rider.

The claimant claims that he was earning

Rs.15,000/- per month. He has not produced any

documents to prove his income. Therefore, the

notional income has to be assessed as per the

guidelines issued by the Karnataka State Legal

Services Authority. Since the accident has taken place

in the year 2018, the notional income has to be taken

at Rs.12,500/- p.m.

As per wound certificate, the claimant has

sustained grievous injuries. PW-3, the doctor has

stated in his evidence that the claimant has suffered

disability of 37% to lower limb and 12% to whole

body. Therefore, taking into consideration the

deposition of the doctor, PW-3 and injuries mentioned

in the wound certificate, I am of the opinion that the

whole body disability can be considered as 12%. The

claimant is aged about 60 years at the time of the

accident and multiplier applicable to his age group is

'9'. Thus, the claimant is entitled for compensation

of Rs.1,62,000/- (Rs.12,500*12*9*12%) 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 02 months. Therefore, the claimant is entitled for

compensation of Rs.25,000/- (Rs.12,500*2 months)

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

The claimant was treated as inpatient for more

than 4 days in the hospital and thereafter, has

received further treatment. Hence, I am inclined to

enhance the compensation awarded under the head of

'conveyance, nourishment and attendance charges'

from Rs.1,200/- to Rs.5,000/-.

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.10,000/- to Rs.25,000/- and 'pain and suffering'

from Rs.25,000/- to Rs.40,000/-.

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 25,000 40,000 Medical expenses 46,000 46,000 Food, nourishment, 1,200 5,000 conveyance and attendant charges Loss of income during 9,000 25,000 laid up period Loss of amenities 10,000 25,000 Loss of future income 77,760 1,62,000 Future medical expenses 25,000 25,000 Total 1,93,960 3,28,000

11. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.3,28,000/- as against Rs.1,93,960/- awarded

by the Tribunal.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from

the date of receipt of copy of this judgment excluding

interest for the compensation awarded under the head

of 'future medical expenses' with liberty to recover the

same from the owner of the offending vehicle.

Sd/-

JUDGE

HA/-