Karnataka High Court

N Vijaya Kumar vs The Oriental Insurance on 5 August, 2024

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                                                       NC: 2024:KHC:30945
                                                      MFA No. 396 of 2024




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 5TH DAY OF AUGUST, 2024

                                            BEFORE
                        THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
                   MISCELLANEOUS FIRST APPEAL NO. 396 OF 2024 (MV-I)


                   BETWEEN:

                   N. VIJAYA KUMAR
                   S/O. LATE NARAYANACHAR
                   AGED ABOUT 48 YEARS
                   R/AT THYLAGERE VILLAGE,
                   KARAHALI POST,
                   DEVANAHALLI TALUK,
                   BENGALURU RURAL DISTRICT.
                                                             ...APPELLANT
Digitally signed   (BY SRI. SRIKANTH N.V., FOR
by AASEEFA         SRI. ANIL KUMAR S.P. ADVOCATES)
PARVEEN
Location: HIGH
COURT OF           AND:
KARNATAKA
                   1.    THE ORIENTAL INSURANCE
                         COMPANY LIMITED,
                         D. NO. 13,
                         YATHIRAJ MUTT BUILDING,
                         NO 119, FIRST FLOOR,
                         2ND MAIN, SAMPIGE ROAD,
                         NEAR 11TH CROSS,
                         MALLESHWARAM,
                         BENGALURU - 560 003.
                         REP. BY ITS MANAGER

                   2.    KRISHNA N.,
                         S/O. NAGARAJAPPA
                         AGED ABOUT 31 YEARS
                         R/AT 2ND CIRCLE
                         NANDAGUDI VILLAGE AND POST
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                                             NC: 2024:KHC:30945
                                            MFA No. 396 of 2024




    HOSAKOTE TALUK,
    BENGALURU RURAL,
    DISTRICT - 562 122.
                                                ...RESPONDENTS
(BY SRI. SUJATHA PANDITH S., ADVOCATE FOR R1(VC);
R2- SERVED-UNREPRESENTED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 29.08.2023 PASSED IN MVC
NO.4095/2021 ON THE FILE OF THE II ADDITIONAL JUDGE,
ACMM, COURT OF SMALL CAUSES, BENGALURU SCCH-13
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA


                       ORAL JUDGMENT

This appeal is the outcome of the order passed by Motor

Accident Claims Tribunal, Bengaluru, in MVC No.4095/2021,

dated 29.08.2023.

2. On the ground that he sustained injuries in a road

traffic accident, the appellant filed an application claiming

compensation of Rs.20,00,000 in total. The Tribunal through

the impugned order, awarded a sum of Rs.2,11,787/- as

compensation. The Tribunal though fastened the liability upon

respondent No.1/Insurance Company, ordered that on

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respondent No.1/Insurance Company depositing the award

amount, it is entitled to recover the same from respondent

No.2 in view of violation of terms and conditions of the

insurance policy. The claimant preferred the present appeal

seeking enhancement of compensation.

3. Arguing the matter, Sri.Srikanth.N.V. learned

counsel who represents Sri.Anil Kumar.S.P. learned counsel on

record for the appellant submits that the appellant sustained

grievous injuries in the accident and became permanently

disabled. Learned counsel also states that the appellant took

treatment as inpatient for long period but could not recover and

thereby is unable to continue his avocation. Learned counsel

contends that the appellant was working as contractor cum

labour supplier and was earning substantial sum by the date of

accident. But due to disability, he is unable to attend his work.

Learned counsel also contends that though through the

evidence of PW2, the aspect of disability is established, the

tribunal erred in assessing the proper disability and it took the

functional disability in respect of whole body as 5%. Learned

counsel also contends that the Tribunal did not add even the

future prospects. Learned counsel further submits that the

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amount awarded under all heads requires enhancement as the

Tribunal did not award just compensation.

4. On the other hand, the submission made by

Smt.Sujatha Pandith.S who appears through video conference

representing respondent No.1 is that the Tribunal has rightly

ordered pay and recovery, however, there may be marginal

enhancement in award of compensation. A perusal of the

record reveals that the Tribunal assessed and awarded

compensation under following heads:

Amount Sl.No. Nature of Compensation in Rs.

1. Loss of future earnings 1,26,000/-

2. Pain and sufferings 20,000/-

3. Loss of amenities 15,000/-

4. Medical expenses 13,787/-

5. Conveyance, Food, Nourishment 7,000/-

& Attendant charges

6. Loss of income during Laid up 30,000/-

period and rest period Total 2,11,787

5. The version of the appellant is that he sustained

grievous injuries due to the accident and immediately after the

accident, he was shifted to Rajmahal Vilas Hospital, Bengaluru

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and there he took treatment as inpatient and underwent

surgery. After discharge from the Hospital he took follow-up

treatment. He was working as contractor/labour supplier for

painting of buildings and was earning Rs.40,000/- per month.

But due to the injuries sustained in the accident, he is unable to

attend his work. The appellant got examined the doctor who

treated him as PW2. The evidence of PW2 is that he is the

consultant orthopaedic surgeon at Rajmahal Vilas Hospital,

Bengaluru. The appellant was treated at Rajmahal Vilas

Hospital with open reduction and internal fixation of radius

fracture using LC plate-screws, precutaneous K-wires,

conservative management was implemented for fracture of

both nasal bones and fracture of upper end of right tibia by

rest, immobilisation and elevation of the injured limb and the

appellant was on regular follow-up in the same hospital.

6. He also stated that he assessed the physical

disability in respect of right upper limb as 12%, in respect of

right lower limb as 6% and 6% in respect of whole body.

7. The Tribunal considering the evidence of PWs.1 and

2 took the functional disability as 5%. No reason is assigned as

NC: 2024:KHC:30945

to why the functional disability in respect of whole body was

taken 5% when the Doctor who treated the appellant assessed

the same as 6%. Having considered the nature of injuries

sustained and the evidence, this Court is of the view that the

functional disability in respect of whole body is required to be

taken at 6%.

8. The Tribunal considering the age of appellant as 42

years by the date of accident, opined that appropriate multiplier

to be applied is '14'. This Court does not find any grounds to

interfere with the said finding. Likewise, this Court is not

inclined to disturb the finding given that the notional income

has to be taken as Rs.15,000/- per month. However, as rightly

contended by Sri.Srikanth.M.V learned counsel who represents

the appellant, the tribunal failed to add future prospects. As per

the decision of the Hon'ble Apex Court in the case of NATIONAL

INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND

OTHERS reported in (2017) 16 SCC 680, having regard to the

age of the appellant as 42 years by the date of accident, 25%

of the actual earnings are required to be added towards future

prospects. Thus, on adding future prospects at the rate of 25%,

with the Notional Income as Rs.15,000/- per month and the

NC: 2024:KHC:30945

appropriate multiplier as '14', the loss of future earnings comes

to Rs.1,89,000/- (15,000/-X12+25% X14 X 6%).

9. It is clearly brought on record that the appellant

sustained fracture of radius and the same was fixed with plates

and screws. He also sustained fracture of both nasal bones and

fracture of upper end of right tibia. Also it is brought on record

that the appellant underwent the surgery of open reduction and

internal fixation of radius fracture. Thus having considered the

nature of injuries sustained, this Court considers desirable to

enhance the amount awarded under the head 'pain and

suffering' from Rs.20,000 to Rs.50,000. The Tribunal awarded a

sum of Rs.15,000/- towards loss of amenities. However, the

same is required to be enhanced to Rs.20,000/-. Likewise, the

amount awarded under the head 'Conveyance, Food,

Nourishment and Attendant Charges' i.e., Rs.7,000/- should be

enhanced to Rs.15,000/-. The Tribunal awarded a sum of

Rs.30,000/- towards loss of income during laid up period.

However, having considered the nature of injuries sustained,

treatment taken and the expected time for full recovery, this

court considers to enhance it to Rs.50,000/-. Thus, the amount

NC: 2024:KHC:30945

which the appellant is entitled to as compensation under each

head would be as under:

Sl.No. Nature of Compensation Amount in Rs.

1. Loss of future earnings 1,89,000/-

Compensation for Pain and

2. 50,000/-

sufferings Compensation for Loss of

3. 20,000/-

amenities in life

4. Medical expenses 13,787/-

Towards Conveyance, Food,

5. Nourishment & Attendant 15,000/-

charges Towards Loss of income

6. 50,000/-

               during Laid up period
               Total                             3,37,787

The finding given by the Tribunal in respect of pay and

recovery remains undisturbed. Thus in the light of the forgoing

discussion, the following:

ORDER

(i) The compensation awarded by Motor Accident Claims Tribunal, Bengaluru through orders in MVC No.4095/2021, dated 29.08.2023 is enhanced from Rs.2,11,787/- to Rs.3,37,787/-.