Karnataka High Court
Lashkarilingegowda vs Reliance General Insurance Company Ltd on 8 December, 2023
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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NC: 2023:KHC:44606
MFA No. 1075 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
MISCELLANEOUS FIRST APPEAL NO. 1075 OF 2020 (MV)
BETWEEN:
LASHKARILINGEGOWDA
S/O CHIKKABOREGOWDA
AGED ABOUT 56 YEARS
R/AT NO.22/1
ESHWARA TEMPLE LEFT SIDE
YAMALORE, BENGALURU NOTRTH-560037
...APPELLANT
(BY SRI. SHANTHARAJ K.,ADVOCATE)
AND:
1. RELIANCE GENERAL INSURANCE
COMPANY LIMITED.,
BY ITS MANAGER
EAST WING, 5TH FLOOR, NO.28
Digitally signed CENTENARY BUILDING
by
DHANALAKSHMI M.G.ROAD, BENGALURU-560001.
MURTHY
Location: High
Court of 2. B R SHIVA SHANKAR
Karnataka S/O B P RAMAIAH REDDY
AGED MAJOR
R/AT NO.71, HEMA NILAYA
11TH CROSS,BELLANDUR VILLAGE & POST
BENGALURU SOUTH-560103.
...RESPONDENTS
(BY SRI.ASHOK N PATIL., ADVOCATE FOR R1:
NOTICE TO R2 IS DISPENSED WITH
V/O DATED:29.10.2022)
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MFA No. 1075 of 2020
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 05.07.2019,
PASSED IN MVC NO.2485/2018, ON THE FILE OF THE III-
ADDITIONAL JUDGE AND MEMBER, MACT, COURT OF SMALL
CAUSES, BENGALURU (SCCH-18), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. 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
dated 5.7.2019 passed by MACT, Bengaluru in MVC
No.2485/2018.
2. Facts giving rise to the filing of the appeal briefly
stated are that on 27.2.2018 when the claimant was
traveling in autorickshaw bearing registration No.KA01-
AG-2865 near Eshwari Temple Yamalore main road,
Marathalli, Bengaluru, at that time, water tanker bearing
registration No.KA-01-AG-0567 being driven by its driver
at a high speed and in a rash and negligent manner,
dashed to the autorickshaw. As a result of the aforesaid
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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
charges, 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. On service of
notice, the respondents appeared through counsel and
filed written statements in which the averments made in
the petition were denied.
4. 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.S.A.Somashekar was examined as PW-4, and other
two witnesses as PW-2 and 3 and got exhibited documents
namely Ex.P1 to Ex.P21. On behalf of the respondents,
two witnesses were examined as RWs-1 and 2 and got
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exhibited documents namely Ex.R1 to Ex.R4. 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.451,975/- along with interest at the rate of 8% p.a.
and directed the Insurance Company to deposit the
compensation amount along with interest with liberty to
recover the same from the owner of the offending vehicle.
Being aggrieved, the present appeal has been filed.
5. The learned counsel for the claimant has raised the
following contentions:
a) Firstly, even though the claimant claims that he was
working as Security Guard at Kshipra Services and
drawing salary of Rs.15,569/- and produced pay slips at
Ex.P-17 and examined HR Manager as PW-3, but the
Tribunal has taken the income as merely as Rs.14,251/-
p.m.
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b) Secondly, the injuries sustained by the claimant are
grievous in nature. The claimant has examined the doctor
as PW-4. The doctor in his evidence has stated that the
claimant has suffered disability of 43% to particular limb
and 22% to whole body. But the Tribunal has taken the
whole body disability at 14%, which is on the lower side.
c) Lastly, 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 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.
6. On the other hand, the learned counsel for the
Insurance Company has raised following counter
contentions:
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a) Firstly, even though the claimant claims that he was
earning Rs.15,569/- per month, the Tribunal considering
the evidence of PW-3 and pay slips has rightly assessed
taken the income at Rs.14,251/- p.m.
b) Secondly, even thought the doctor has stated that
the claimant has suffered disability of 43% to particular
limb and 22% to whole body, but in the cross
examination, he has admitted that the fractures are united
and if the implants are removed, the disability assessed by
the doctor will be reduced. The Tribunal considering the
injuries sustained by the claimant and evidence of the
doctor, has rightly assessed the whole body disability at
14%.
c) Thirdly, considering the injuries sustained by the
claimant and considering the age and avocation of the
claimant, the compensation awarded by the Tribunal under
the heads of 'loss of amenities', 'pain and sufferings' and
other incidental expenses are just and reasonable and it
does not call for interference.
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d) Lastly, 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 awarded by the Tribunal at 8% p.a. on the
compensation amount is on the higher side. Hence, he
sought for enhancement of compensation.
e) He further contended that the Insurance Company
had filed an appeal in MFA 8059/2019 challenging the very
same judgment and award of the Tribunal. This Court by
judgment dated 19.12.2019 has dismissed the said
appeal.
7. Heard the learned counsel for the parties and
perused the judgment and award of the Tribunal.
8. It is not in dispute that the claimant has sustained
injuries in the road traffic accident occurred on 27.2.2019
due to rash and negligent driving of the offending vehicle
by its driver.
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9. The claimant claims that he was working as Security
Guard at Kshipra Services and earning Rs.15,569/- per
month. He has produced pay slips at Ex.P-17 and
examined the HR Manager of the Company as PW-3. As
per pay slip for the month of January 2018, he was
drawing salary of Rs.15,569/- p.m. After deducting
Rs.200/- professions tax, his net income comes to
Rs.15,369/- p.m.
10. As per wound certificate, the claimant has sustained
Type III B open segmental left tibia fracture with distal
1/3rd fibula fracture. The doctor in his evidence has stated
that the claimant has suffered disability of 43% to
particular limb and 22% to whole body and in his cross
examination he has admitted that the fractures are united.
Therefore, taking into consideration the deposition of the
doctor and injuries mentioned in the wound certificate, I
am of the opinion that the whole body disability can be
taken at 15%. The claimant is aged about 58 years at the
time of the accident and multiplier applicable to his age
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group is '9'. Thus, the claimant is entitled for
compensation of Rs.248,978/- (Rs.15,369*12*9*15%)
on account of 'loss of future income'.
11. The nature of injuries suggests that the claimant
must have been under rest and treatment for a period of 3
months. Therefore, the claimant is entitled for
compensation of Rs.46,107/- (Rs.15,369*3 months)
under the head 'loss of income during laid up period'.
12. The claimant was treated as inpatient for more than
4 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
'pain and sufferings' from Rs.40,000/- to Rs.50,000/-
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and under the head of 'loss of amenities' from Rs.25,000/-
to Rs.40,000/-.
13. The doctor in his evidence has stated that the
claimant requires about Rs.30,000/- for removal of
implants. Considering the nature of injuries and evidence
of doctor, I am inclined to enhance the compensation
awarded by the Tribunal under the head of 'future medical
expenses' from Rs.20,000/- to Rs.30,000/-.
14. Considering the nature of injuries, the compensation
awarded by the Tribunal under other heads is just and
reasonable.
15. Thus, the claimant is entitled to the following
compensation:
As awarded As awarded
by the by this
Compensation under
Tribunal Court
different Heads
(Rs.) (Rs.)
Pain and sufferings 40,000 50,000
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Medical expenses 125,100 125,100
Food, nourishment, 5,000 5,000
conveyance and
attendant charges
Loss of income during 21,400 46,107
laid up period
Loss of amenities 25,000 40,000
Loss of future income 215,475 248,978
Future medical expenses 20,000 30,000
Total 451,975 545,185
16. In the result, the following order is passed:
ORDER
a) The appeal is allowed in part.
b) The judgment of the Claims Tribunal is modified.
c) The claimant is entitled to a total compensation of
Rs.545,185/-.
d) In view of judgment of the Division Bench of this
Court in the case of 'MS.JOYEETA BOSE' (supra), the
enhanced compensation shall carry interest at 6%
per annum.
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e) The Insurance Company is directed to deposit the
compensation amount along with interest
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'. Thereafter, the
Insurance Company is at liberty to recover the same
from the owner of the offending vehicle.
Sd/-
JUDGE
DM
