Karnataka High Court

Sri H M Mahadevaiah vs Icici Lombard on 27 November, 2023

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                                                        NC: 2023:KHC:42815
                                                      MFA No. 6211 of 2017




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 27TH DAY OF NOVEMBER, 2023

                                        BEFORE
                    THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
               MISCELLANEOUS FIRST APPEAL NO.6211 OF 2017(MV-I)
               BETWEEN:

                     SRI. H.M. MAHADEVAIAH,
                     S/O RAJANNA,
                     AGED ABOUT 46 YEARS,
                     R/AT NO.11, YENTAGANAHALLI,
                     NELAMANGALA TALUK,
                     BENGALURU RURAL DISTRICT - 562 213.
                                                              ...APPELLANT
               (BY SRI. SHIVAKUMAR P., ADVOCATE)
               AND:

               1.    ICICI LOMBARD GENERAL
                     INSURANCE CO. LTD.,
                     NO.121, 9TH FLOOR,
                     THE ESTATE BUILDING,
                     DICKENSON ROAD,
                     BENGALURU - 560 001.
Digitally
signed by            REP. BY ITS MANAGER.
JAI JYOTHI J
Location:
HIGH           2.    MR. HANUMANTHARAJU T.,
COURT OF
KARNATAKA            S/O THOPAIAH,
                     NO.41, CHANNOHALLI,
                     BANAVADI POST,
                     SOLUR HOBLI,
                     MAGADI TALUK,
                     RAMANAGARA DISTRICT - 562 127.
                                                           ...RESPONDENTS

               (BY SRI. S. KRISHNA KISHORE, ADVOCATE FOR R1;
                   VIDE ORDER DATED 24.11.2023, NOTICE TO
                   R2 IS DISPENSED WITH)
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                                        NC: 2023:KHC:42815
                                      MFA No. 6211 of 2017




     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:10.03.2017        PASSED IN MVC
NO.3169/2016 ON THE FILE OF THE XXI ACMM AND XXIII
ADDITIONAL SMALL CAUSE JUDGE AND MACT BENGALURU
(SCCH-25), 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

Aggrieved by the award passed in

M.V.C.No.3169/2016 dated 10.03.2017 on the file of XXIII

Addl. Small Causes Judge and Motor Accident Claims

Tribunal, Bengaluru, the claimant is before this Court. The

claim petition was filed seeking compensation of an

amount of Rs.10,00,000/- for the injuries sustained by the

claimant in the accident.

2. It is the case of the claimant that he was working

as a driver and earning an amount of Rs.12,000/- per

month and as per the wound certificate, the claimant had

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sustained the fracture of both bones of left leg 1/3rd,

fracture of 1/3rd fibula right leg and underwent surgery.

3. As per the doctor, the claimant had sustained

37.3% disability to the left leg and 14% of disability to his

whole body. The Court below had held that the doctor has

not deposed about the functional disability and had taken

10% as the disability. When it comes to the salary, the

Court below had considered an amount of Rs.8,000/- as

the income and under the head of loss of future income

granted an amount of Rs.1,24,800/-. The Court below had

granted an amount of Rs.40,000/- under the head of pain

and suffering, an amount of Rs.15,000/- loss of amenities,

an amount of Rs.53,737/- towards medical bills, an

amount of Rs.20,000/- towards conveyance and

nourishment and another amount of Rs.25,000/- was

granted towards future medical expenses. Altogether,

compensation of an amount of Rs.2,78,550/- was granted

at 8% interest.

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4. Learned counsel appearing for the claimant

submits that when the doctor has clearly deposed that

claimant had sustained disability of 37.3% to his left leg

and 14% to the whole body, the Court below only on the

ground that functional disability is not properly stated by

the doctor, had taken 10% as the disability which is on the

lower side. Coming to the pain and suffering, when the

claimant had sustained two grievous injuries, granting an

amount of Rs.40,000/- under the said head is on the lower

side. Further, learned counsel submits that the Court

below had also not granted compensation under the head

of loss of income during the laid up period. It is submitted

that though no evidence is placed before the Court, as the

accident of the year 2016, the Court below ought to have

taken the salary at Rs.9,500/-.

5. Learned counsel appearing for the Insurance

Company submits that the Tribunal had rightly granted

compensation and in every case of disability, there will

not be loss of future income, unless and until there is

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evidence to show that the said disability would have an

impact on his future income. He submits that the interest

awarded was 8% which is on the higher side.

6. Having heard the learned counsel on either side,

perused the entire material on record. In this case, the

claimant had sustained two fractures, fracture of both

bones of left leg 1/3rd and fracture of 1/3rd fibula right leg

and he underwent surgery. Considering two grievous

injuries sustained by the claimant, this Court is inclined to

grant an amount of Rs.50,000/- under the head of pain

and suffering. When it comes to the loss of future

earning, the Court below had considered an amount of

Rs.8,000/- as the income. As this is an accident of the

year 2016, considering the same, though there is no

evidence, this Court is inclined to take Rs.9,500/- as the

income. Then, coming to the disability, the doctor has

clearly deposed that there is 3 cm shortening of left leg

and when the doctor has clearly deposed that the disability

is 37.3% to the left leg and 14% to the whole body, the

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Court below without any basis had taken 10% as the

disability and this Court considering the evidence of the

doctor is inclined to take 14% as the disability. In that

case, loss of future income would come to

Rs.9,500x12x13x14/100 = Rs.2,07,480/-. Hence, the

claimant is entitled for an amount of Rs.2,07,480/-

under the head of loss of future income due to

disability. As rightly pointed out, the Court below had

not granted any amount under the head of loss of income

during the laid up period. Considering the income of the

claimant as Rs.9,500/-, for three months, Rs.9,500x3, this

Court is inclined to grant an amount of Rs.28,500/-

towards loss of income during the laid up period.

Towards loss of amenities, the Court below had granted an

amount of Rs.15,000/- which is on the lower side. This

Court is inclined to grant an amount of Rs.25,000/-

towards loss of amenities. Towards transport,

conveyance and nourishment an amount of Rs.20,000/- is

granted which is a reasonable amount. Under the head of

medical expenses and future medical expenses, the Court

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below had granted an amount of Rs.53,737/- and

Rs.25,000/- respectively which is based on evidence and

no interference is called for.

7. In the light of the law laid down by the Hon'ble

Supreme Court in the case of V.MEKALA vs. M.

MALATHI AND ANOTHER1, the claimant is entitled for an

amount of Rs.10,000/- towards legal expenses.

Altogether, the claimant is entitled for an amount of

Rs.4,19,717/-.

8. The claimant is therefore, entitled to the

compensation under the following heads:

                          Heads                           Compensation
                                                            Awarded

1.      Pain and Sufferings                         : Rs.         50,000/-

2.      Loss of future income                       : Rs.        2,07,480/-

        Loss of income during the laid
3.                                                  : Rs.         28,500/-
        up period

4.      Transport, conveyance and                   : Rs.         20,000/-



    (2014) 11 SCC 178

                                          NC: 2023:KHC:42815





     nourishment

5.   Loss of amenities                : Rs.       25,000/-

6.   Medical expenses                 : Rs.       53,737/-

7.   Future medical expenses          : Rs.       25,000/-

8.   Legal Expenses                   : Rs.       10,000/-

     TOTAL                            : Rs.
                                              4,19,717/-

9. Accordingly, the appeal of the claimant is

allowed-in-part, by enhancing the compensation from an

amount of Rs.2,78,550/- to an amount of Rs.4,19,717/-

setting aside the award passed in M.V.C.No.3169/2016

dated 10.03.2017.

i. The enhanced amount shall carry interest at 6%

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

realization.

ii. The respondent - insurance company shall

deposit the amount within a period of eight

weeks from the date of receipt of copy of the

judgment. On such deposit, the claimant is