Karnataka High Court
S N M Prasad @ Prasad vs United India Insurance Co Ltd on 1 February, 2024
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NC: 2024:KHC:4576
MFA No. 3576 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1 ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MFA NO. 3576 OF 2018 (MV-I)
BETWEEN:
S N M PRASAD @ PRASAD
S/O LATE A NANJUNDASETTY
AGED 49 YEARS, R/A NO.245
1ST FLOOR, 3RD CROSS, 4TH MAIN
K G NAGAR, BANGALORE-560 019
(PRESENT ADDRESS)
(PREVIOUS ADDRESS)
NO.224, 2ND FLOOR, 3RD CROSS
4TH MAIN, CHAMARAJPET
BANGALORE-18 ...APPELLANT
(BY SRI.T.N.VISHWANATHA, ADV.)
AND:
1. UNITED INDIA INSURANCE CO. LTD.
T P CLAIMS HUB 6TH FLOOR
KRISHI BHAVAN BUILDING
HUDSON CIRCLE, BANGALORE-560 002
Digitally signed by
2. MR RAHAMATH ULLA KHAN
MALA K N
S/O KHADER NAWAZ KHAN
Location: HIGH COURT R/A NO.103, 18TH MAIN ROAD
OF KARNATAKA J C NAGAR, KURUBARAHALLI
BANGALORE-560 086 ...RESPONDENTS
(BY SRI.K.SURESH, ADV. FOR R1; R2 HELD SUFFICENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 24/01/2018
PASSED IN MVC NO.1701/2017, ON THE FILE OF THE IX
ADDL. SMALL CAUSES JUDGE & XXXIV ACMM, COURT OF
SMALL CAUSES, MEMBER, MACT-7, BENGALURU (SCCH-7),
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MFA No. 3576 of 2018
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
In this appeal, the petitioner has challenged the
judgment and award dated 24.01.2018 in
M.V.C.No.1701/2017 passed by the IX Addl. Small
Causes Judge and M.A.C.T., Bengaluru (SCCH-7)
('the Tribunal' for short).
2. For the sake of convenience, the parties
shall be referred to as per their status before the
Tribunal.
3. Brief facts of the case are, on 20.03.2017 at
about 00:45 am (midnight) while the petitioner was
riding his Honda Activa Scooter bearing Reg.No.KA-
02/HP-2523 on Chamarajpet 5th Main Road, near Bull
Temple, Bengaluru, hit by a car bearing Reg.No.KA-
02/AE-6644, injuring him. After taking treatment at
KIMS Hospital, Bengaluru, he has approached the
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Tribunal for grant of compensation of Rs.8,00,000/-.
Claim was opposed by the Insurance Company. The
Tribunal after holding enquiry and taking the
evidence, by impugned judgment, awarded the
compensation of Rs.3,07,892/- with 9% interest p.a.
Pleading inadequacy and seeking enhancement, the
petitioner has filed this appeal on various grounds.
4. Heard the arguments of
Sri. T.N. Vishwanatha, learned counsel for the
petitioner and Sri. K. Suresh, learned counsel for the
Insurance Company.
5. It is the contention of learned counsel for the
petitioner that the Tribunal has not considered the
income of the petitioner at Rs.20,000/- as the
petitioner being a businessman, running condiments
store in K.G. Road, Bengaluru; in spite of medical
evidence explaining permanent disability, the
Tribunal has taken the disability on the lower side;
no compensation is awarded towards loss of
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amenities and discomfort; compensation awarded
towards loss of income during treatment period and
incidental expenses are on the lower side and he
sought for enhancement.
6. Per contra, learned counsel for the Insurance
Company has contended that the petitioner has
suffered fracture of both the bones of left leg
after taking treatment, the fractures were reunited
and he has become normal; there is no proof to
explain that the petitioner was running condiments
store, earning Rs.20,000/- per month; the Tribunal
has rightly assessed the income at Rs.10,000/- per
month, so also the whole body disability at 10%.
Learned counsel has fairly submitted that a small
marginal compensation may be awarded towards
loss of amenities and discomfort, there is no need for
further enhancement on other heads and he
supported the impugned judgment.
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7. I have given my anxious consideration to the
arguments addressed on both sides and also perused
the materials on record.
8. The material on record did point out that the
petitioner has sustained fracture of both the bones of
left leg upper ⅓rd in the accident that took place on
20.03.2017 at midnight 00:45 am at Chamarajapet
between his scooter and the car. He was treated
under hospitalization, underwent surgery. PW-2
Dr. H.B. Shivakumar, the treated Doctor whose
testimony shows the petitioner has sustained limb
disability of 35.17% and whole body disability of
17.5%. The Tribunal after considering the
avocation, age of the petitioner, came to the
conclusion that whole body disability is 10%. The
petitioner is aged 50 years and he is said to be doing
condiments business; he is required to stand and do
his business. For the reason of fracture of both the
bones, even if the medical evidence is appreciated,
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⅓rd of limb disability comes to 12% and it is proper to
assess whole body disability at 12%.
9. The petitioner apart from producing Rental
Agreement to show that he took the shop on rent,
he has not produced any proof of income. Hence,
he has to be treated as a person with no
proof of income. A person with no proof of
income in the year 2017 will earn not
less than Rs.11,000/-, accordingly his income has to
be taken at Rs.11,000/- instead of Rs.10,000/-
assessed by the Tribunal. The petitioner is aged 50
years and self-employed, 10% future prospects has
to be added to his income in the light of the
judgment of Hon'ble Apex Court in National
Insurance Co. Ltd. -Vs.- Pranay Sethi and
Others1.
(2017) 16 SCC 680
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10. Following is the award of the Tribunal:
Sl. No. Particulars Rs.
1 For pain and sufferings, mental 40,000
agony
2 Actual medical expenses 51,892
3 For Special diet and 10,000
conveyance
4 For loss of earning during 30,000
treatment period
5 Future medical expenses 20,000
6 Permanent disability 1,56,000
Total 3,07,892
11. Having regard to the gravity of the injury, it
is proper to retain the compensation awarded
towards pain and sufferings, reimbursement of
medical expenses and assessment of future medical
expenses. The Tribunal has awarded Rs.10,000/-
towards attendant charges, travelling expenses, food
and nourishment. The petitioner was under
hospitalization for about 9 days. He was attended by
an attendant, spent money towards travelling and
also food and nourishment. Compensation of
Rs.10,000/- awarded by the Tribunal on these heads
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is on the lower side and it has to be assessed at
Rs.15,000/-. Rs.44,000/- has to be awarded
towards loss of income during laid-up for 4 months
at the rate of Rs.11,000/- per month and
Rs.40,000/- has to be assessed towards loss of
amenities and discomfort.
12. As regarding loss of future earnings is
concerned, as discussed above, the income is taken
at Rs.11,000/-, future prospects of 10% has to be
added, for the age of 50, applicable multiplier is
'13', whole body disability is 12% if considered it will
be Rs.11,000/- + Rs.1,100/- (10%) = Rs.12,100/- x
12 x 13 x 12% = Rs.2,26,512/-. There is no scope
for assessment of compensation under any other
heads. Thus, the petitioner is entitled to total
compensation of Rs.4,37,404/-, thereby
enhancement of Rs.1,29,512/-, rounded off to
Rs.1,30,000/-. This is the just compensation that
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the petitioner is entitled to in the facts and
circumstances of the case.
12. As regarding rate of interest awarded at
9% is concerned, since the Insurance Company has
not filed any appeal, it is not proper to interfere with
the discretion of the Tribunal. Insofar as enhanced
compensation of is concerned, it is just and proper to
award interest at 6% p.a. Accordingly, the appeal
merits consideration, in the result, the following:
ORDER
i) Appeal is allowed-in-part.
ii) Impugned judgment and award is
modified.
iii) Petitioner would be entitled to
enhanced compensation of
Rs.1,30,000/- with interest of 6%
p.a. excluding interest on future
medical expenses of Rs.20,000/-
iv) The Insurance Company is directed to
deposit the compensation within eight
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weeks from the date of receipt of
certified copy of the judgment.
v) Amount in deposit, if any, shall be
transmitted to the Tribunal along with
records forthwith.
Sd/-
JUDGE
PA
CT:HS
