Karnataka High Court

M/S. Tata Aig G.I.C., Ltd vs Smt.S.Supriya on 18 November, 2022

Bench: H.P.Sandesh

                             1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF NOVEMBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                 M.F.A.NO.5001/2017 (MV-I)
                           C/W.
                 M.F.A.NO.262/2017 (MV-I)

IN M.F.A.NO.5001/2017:

BETWEEN:

S. SUPRIYA
D/O. SRINIVASA REDDY
AGED ABOUT 28 YEARS
R/AT NO.473, YAMARE EXTENSION
DOMMASANDRA, SARJAPURA HOBLI
ANEKAL TALUK, BENGALURU URBAN.               ... APPELLANT

           (BY SRI JAGADISH G. KUMBAR, ADVOCATE
              SRI SREENIVASAIAH A., ADVOCATE)
AND:

1.     C. VENUGOPAL
       S/O N.S. CHOLARAJU
       NO.324, 2ND CROSS, 2ND MAIN
       RAMAPURA VILLAGE, JIGANI, ANEKAL
       BENGALURU URBAN.

2.     THE MANAGER
       TATA AIG GEN. INS. CO. LTD.,
       2ND FLOOR, JP & DEVI JAMBUKESWAR ARCADE
       NO.69, MILLERS ROAD
       BENGALURU-560052.                 ... RESPONDENTS

        (BY SRI RAVI S. SAMPRATHI, ADVOCATE FOR R2
               VIDE ORDER DATED 30.11.2018,
             NOTICE TO R1 IS DISPENSED WITH)
                             2



     THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 10.11.2016
PASSED IN MVC NO.985/2015 ON THE FILE OF THE II
ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM,
M.A.C.T., BENGALURU(SCCH.13), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

IN M.F.A.NO.262/2017:

BETWEEN:

M/s. TATA AIG G.I.C., LTD.,
NO.69, 2ND FLOOR
JP & DEVI JAMBUKESWAR ARCADE
MILLERS ROAD, BENGALURU-560 052
REPRESENTED BY
ZONAL CLAIMS MANAGER.                       ... APPELLANT

           (BY SRI RAVI S. SAMPRATHI, ADVOCATE)

AND:

1.     SMT. S. SUPRIYA
       W/O SRINIVASA REDDY
       AGED ABOUT 28 YEARS
       NO.473, YAMARE EXTENSION
       DOMMASANDRA
       SARJAPURA HOBLI
       ANEKAL TALUK
       BENGALURU URBAN-562 106.

1.     C. VENUGOPAL
       S/O N.S. CHOLARAJU
       NO.324, 2ND CROSS, 2ND MAIN
       RAMAPURA VILLAGE, JIGANI, ANEKAL
       BENGALURU URBAN-562 106.        ... RESPONDENTS

         (BY SRI JAGADISH G. KUMBAR, ADVOCATE FOR
           SRI SREENIVASAIAH A., ADVOCATE FOR R1
                VIDE ORDER DATED 07.06.2018,
              NOTICE TO R2 IS DISPENSED WITH)
                                     3



      THIS M.F.A., IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 10.11.2016
PASSED IN MVC NO.985/2015 ON THE FILE OF THE II
ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM,
M.A.C.T.,  BENGALURU,       AWARDING   COMPENSATION     OF
Rs.4,15,006/- WITH INTEREST @ 6% P.A., FROM THE DATE OF
PETITION TILL DEPOSIT IN COURT.

     THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Though these matters are listed for admission today, with

the consent of both the learned counsel it is taken up for final

disposal.

2. Heard the learned counsel appearing for the claimant

and the learned counsel appearing for the Insurance Company.

3. These two appeals are filed by the claimant as well

as the Insurance Company, respectively, challenging the

judgment and award dated 10.11.2016, passed in

M.V.C.No.985/2015 on the file of the II Additional Small Causes

Judge & XXVIII ACMM, Bengaluru ('the Tribunal' for short).

4. The parties are referred to as per their original

rankings before the Tribunal to avoid confusion and for the

convenience of the Court.

5. The factual matrix of the case of the claimant before

the Tribunal is that the claimant was working as Assistant

Professor at Oxford College and getting a salary of Rs.20,000/-

per month. Due to the accident, she has suffered the fracture of

distal end of radius with dorsal displacement of left wrist,

fracture of right radius and tibia condyle left knee fracture and

also the head injury, resulting in a permanent disability.

6. The claimant in order to substantiate her case, she

has examined herself as P.W.1 and also examined the Doctor as

P.W.2, who assessed the disability of 18% to the whole body and

got marked the documents as Exs.P1 to P20. On the other hand,

the respondents have examined two witnesses as R.Ws.1 and 2

and got marked the documents as Exs.R1 to R8.

7. The Tribunal after considering both oral and

documentary evidence placed on record, taken the disability of

9% and awarded compensation of Rs.4,15,006/- with interest at

the rate of 6% p.a., from the date of petition till the date of

deposit. Hence, the present appeals are filed by the claimant as

well as the Insurance Company, respectively.

8. The main contention of the learned counsel

appearing for the claimant before this Court is that the Tribunal

committed an error in taking the disability of 9% in a case of

three fractures i.e., fracture of distal end of radius with dorsal

displacement of left wrist, fracture of right radius and tibia

condyle left knee fracture and the head injury and also she was

subjected to surgery. The Tribunal taken the income of

Rs.10,000/- per month, which is on lesser side, since she being

the Master Degree Graduate and working as Assistant Professor

and drawing salary of Rs.20,000/- per month and the

compensation awarded on other the heads are also very meager.

Hence, it requires an interference of this Court.

9. Per contra, the learned counsel appearing for the

Insurance Company would submit that the Tribunal committed

an error in awarding an amount of Rs.75,000/- on the head of

pain and sufferings. The Tribunal also committed an error in

taking the income of Rs.10,000/- per month since no document

has been placed before the Court to support the same and

awarded an amount of Rs.1,83,600/- on the head of loss of

future earnings due to disability and also awarded an amount of

Rs.30,000/- on the head of loss of earning during the laid-up

period. Hence, the very compensation awarded by the Tribunal

is exorbitant. Hence, it requires an interference of this Court.

10. Having heard the respective counsel and on perusal

of the material available on record, the points that would arise

for consideration of this Court are:

(i) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation as contended by the claimant?

(ii) Whether the Tribunal has committed an error in awarding the exorbitant compensation as contended by the Insurance Company?

(iii) What order?

Point Nos.(i) & (ii):

11. Having considered the grounds urged in both the

appeals and the material available on record, the claimant in

order to substantiate the contention examined herself as P.W.1

and got marked the documents as Exs.P1 to P20. Out of that

Ex.P5-Wound Certificate discloses the fracture of distal end of

radius with dorsal displacement of left wrist, fracture of right

radius and tibia condyle left knee fracture and also the head

injury. The injured was an inpatient for a period of five days and

subjected to surgery and also to removal of implants. Ex.P6,

Two Discharge Summaries are produced, which disclose that she

was an inpatient for a period of five days. Apart from that, the

claimant also produced the documents - Exs.P14 to P20 with

regard to her qualification and academic marks cards viz., SSLC

and PUC marks card, the Provisional Certificate, Bachelor Degree

Certificate, Master Degree Certificate and also the Certificate

issued by Science Technology and Productization and work shop

participation. The Tribunal having considered the material on

record, taken the income of Rs.10,000/- per month since the

claimant has not produced any document for having received the

salary of Rs.20,000/- as claimed by the claimant in order to

show that she was working as Assistant Professor. However, the

notional income would be Rs.9,000/- in a case of the accident of

the year 2015 even for a coolie. When such being the case, the

income taken as Rs.10,000/- is on little lesser side in a case of

Master Degree holder. Hence, it is appropriate to take the

income of Rs.12,000/- per month. The Doctor has assessed the

disability of 18% to the whole body in respect of the fracture of

both the left radius and right radius and also tibial injury. The

material also discloses that she was subjected to surgery in

respect of the tibia fracture and also implants were removed in

respect of the tibia fracture. Having taken note of the disability

assessed, both the upper arms and lower limb, the disability

assessed by the Doctor is on lesser side i.e., 18%. However, no

other material is placed before the Court with regard to the

malunion and also the percentage of disability. Hence, it is

appropriate to take the disability as assessed by the Doctor as

18% for calculating the loss of income.

12. Now, coming to the aspect of quantum of

compensation is concerned; the injured was in the hospital only

for a period of five days. No doubt, she suffers three fractures.

The compensation of Rs.75,000/- awarded on the head of pain

and suffering appears to be on little higher side and the same is

reduced to Rs.60,000/- on the head of pain and suffering.

13. The Tribunal awarded an amount of Rs.1,23,406/-

towards medical expenses based on the documentary evidence.

Hence, I do not find any error committed by the Tribunal in

awarding the compensation under this head.

14. The Tribunal awarded compensation of Rs.30,000/-

on the head of loss of earnings during the laid up period by

taking the income of Rs.10,000/- per month for a period of three

months, which is on lesser side. This Court after re-visiting,

taken the income of Rs.12,000/- per month for a period of four

months, it comes to Rs.48,000/- on this head.

15. The Tribunal awarded an amount of Rs.1,83,600/- on

the head of 'Loss of future earnings due to disability' considering

the disability of 9%. This Court re-visited with regard to the

disability is concerned. Having considered the fractures in

respect both upper limb and lower limb, re-assessed the

disability at 18% with relevant multiplier 17 since she was aged

about 26 years and taken the income of Rs.12,000/- per month,

it comes to Rs.4,40,640/- (12000x12x17x18/100).

16. The Tribunal awarded an amount of Rs.3,000/- on

the head of Conveyance, Nourishment, food and attending

charges, since she was an inpatient for a period of five days,

which is just and proper and does not require any interference.

17. The Tribunal failed to award any compensation on

the head of 'loss of amenities'. The claimant is aged about 26

years; she has to lead rest of her life with the disability of 18%

to the whole body. Hence, it is appropriate to award an amount

of Rs.30,000/- on the head of 'loss of amenities'.

18. In all, the claimant/appellant is entitled for a sum of

Rs.7,05,046/- as against Rs.4,15,006/- awarded by the

Tribunal.

Point No.(iii):

19. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeals are allowed-in-part.

(ii) The impugned judgment and award of the Tribunal dated 10.11.2016, passed in M.V.C.No.985/2015, is hereby modified granting compensation Rs.7,05,046/- as against Rs.4,15,006/- with interest at 6% per annum from the date of petition till the date of deposit.