Karnataka High Court
Smt. M. Sowbhagya vs Bajaj Allianz Insurance on 9 February, 2024
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MFA No. 7642 of 2014
C/W MFA No. 4065 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
MISCELLANEOUS FIRST APPEAL NO.7642 OF 2014(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.4065 OF 2014(MV-I)
IN MFA NO.7642/2014
BETWEEN:
SMT. M. SOWBHAGYA,
W/O RAJANNA,
NOW AGED ABOUT 52 YEARS,
RESIDING AT NO.32, KALVA VILLAGE,
KOLAR TALUK,
KOLAR DISTRICT - 563 101.
PRESENTLY RESIDING AT:
NO.9, 1ST CROSS,
Digitally signed DEVASANDRA, K.R. PURAM,
by BHARATHI
S BANGALORE - 560 036.
Location: HIGH
COURT OF ...APPELLANT
KARNATAKA
(BY SRI. MANMOHAN D., ADVOCATE)
AND:
1. BAJAJ ALLIANZ INSURANCE
COMPANY LIMITED,
GROUND FLOOR, NO.31,
TBR TOWER, 1ST CROSS,
NEW MISSION ROAD,
NEAR BANGALORE STOCK EXCHANGE,
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MFA No. 7642 of 2014
C/W MFA No. 4065 of 2014
BANGALORE - 560 027,
BY ITS MANAGER.
2. SHRI RAJEEV RANJAN,
S/O RAJANATH SINGH,
AGED MAJOR,
RESIDING AT NO. 7,
SJR ETERNITY LAYOUT,
PHASE I, KODIGEHALLI ROAD,
HOODY, MAHADEVAPURA POST,
BANGALORE - 560 048.
...RESPONDENTS
(BY SRI. P.S. JAGADEESH, ADVOCATE FOR
SRI. P.B. RAJU, ADVOCATE FOR R1;
R2 SERVED AND UNREPRESENTED)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:21.03.2014 PASSED IN MVC
NO.1867/2012 ON THE FILE OF THE 14TH ADDITIONAL JUDGE,
MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.4065/2014
BETWEEN:
BAJAJ ALLIANZ INSURANCE
GENERAL INSURANCE LIMITED,
GROUND FLOOR, NO.31, TBR TOWER,
1ST CROSS, NEW MISSION ROAD,
NEAR BANGALORE STOCK EXCHANGE,
BANGALORE - 560 027.
REPRESENTED BY ITS MANAGER (LEGAL)
BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.,
REG. OFFICE: GOLDEN HEIGHTS
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MFA No. 7642 of 2014
C/W MFA No. 4065 of 2014
4TH FLOOR, HOUSE NO. 1/2,
59TH 'C' CROSS, 4TH M-BLOCK,
RAJAJINAGAR,
BANGALORE - 560 010.
...APPELLANT
(BY SRI. P.S. JAGADEESH, ADVOCATE FOR
SRI. P.B. RAJU, ADVOCATE)
AND:
1. SMT. M. SOWBHAGYA,
W/O RAJANNA,
NOW AGED ABOUT 52 YEARS,
RESIDING AT NO.32, KALVA VILLAGE,
KOLAR TALUK,
KOLAR DISTRICT - 563 101.
PRESENTLY RESIDING AT:
NO.9, 1ST CROSS,
DEVASANDRA, K.R. PURAM,
BANGALORE - 560 036.
2. SHRI RAJEEV RANJAN,
S/O RAJANATH SINGH,
AGED MAJOR,
RESIDING AT NO. 7,
SJR ETERNITY LAYOUT,
PHASE I, KODIGEHALLI ROAD,
HOODY, MAHADEVAPURA POST,
BANGALORE - 560 048.
...RESPONDENTS
(BY SRI. D. MANMOHAN, ADVOCATE FOR R1;
R2 SERVED AND UNREPRESENTED)
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MFA No. 7642 of 2014
C/W MFA No. 4065 of 2014
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:21.03.2014 PASSED IN MVC
NO.1867/2012 ON THE FILE OF THE 14TH ADDITIONAL JUDGE,
MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING
COMPENSATION OF Rs.1,27,240/- WITH INTEREST @ 6% P.A. FROM
THE DATE OF PETITION TILL PAYMENT.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA.No.4065/2014 is filed by the insurer and
MFA.No.7642/2014 is filed by the Claimant. In both the appeals
the judgment and award dated 21.03.2014 passed in
MVC.No.1867/2012 by the XIV Additional Judge, MACT, Court
of Small Causes, Bengaluru1, is under challenge. Hence, both
the appeals are taken up together for consideration.
2. For the sake of convenience, the parties herein are
referred as per their rank before the Tribunal.
3. The relevant facts necessary for consideration of the
present appeal are that claimant filed a claim petition seeking
compensation for the injuries sustained in a road traffic
accident which as occurred on 25.12.2011. It is the case of the
claimant that when she was walking on the road, a car being
driven in a rash and negligent manner, came from behind and
Hereinafter referred as 'Tribunal'
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hit her causing the accident in question, wherein he sustained
injuries claiming compensation for the same she filed a claim
petition arraying the insurer and owner of the car as
respondent before the Tribunal. The owner of the car is
remained as ex-parte. The insurer contested the claim
proceedings.
4. The claimant examined herself as PW.1 and doctor
as PW.2. Ex.P.1 to Ex.P.13 have been marked in evidence. The
insurer examined its official as RW.1. Ex.R1 to Ex.R.4 were
marked in evidence. The Tribunal by its judgment and award
dated 21.03.2014 allowed the claim petition and awarded a
compensation of `1,27,240/- together with interest at rate of
6% per annum and directed insurer to pay the compensation
awarded. Being aggrieved the present appeals are filed.
5. Learned counsel for the insurer, assailing the
judgment and award passed by the Tribunal contends that the
Tribunal has erroneously awarded compensation despite the
fact that in the discharge summary (Ex.R4) there is a noting
that the accident was caused by a two wheeler. Hence, the
involvement of the insured vehicle itself being in question, the
Tribunal ought not to have allowed the claim petition and
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directed the insurer to pay the compensation awarded. Hence,
he seeking for setting aside of the judgment of the Tribunal.
6. Per contra learned counsel for claimant justifies
finding of the Tribunal fastening the liability on the Respondent
No.1 - insurer and further submits that the quantum of
compensation awarded is on the lower side.
7. The submissions of both the learned counsels have
been considered and the material on record have been perused.
The questions that arise for consideration are:
i. "Whether the finding of the Tribunal regarding the
occurrence of the accident is just and proper.
ii. Whether the quantum of compensation awarded is
requires to be enhanced?"
Reg. Question No.(i):-
8. The insurer contests the claim made by the
claimant on the ground that in the discharge summary (Ex.R.4)
issued by the hospital, it is stated that the patient was brought
with the history of RTA as hit by two wheeler while walking. It
is to be notice that the insurer has examined it is official as
RW.1 and marked the said discharge summary as Ex.R.4.
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9. However, it is also to be noticed that the doctor
who was examined as PW.2 in the course of his cross-
examination has stated that the duty doctor wrongly mentioned
the vehicle as two-wheeler instead of four wheeler. Hence,
PW.2 has corrected the discharge summary as four wheeler.
The corrected discharge summary has been marked as Ex.P.7
and PW.2 has attested the correction made.
10. It is also relevant to note that consequent to the
occurrence of the accident, after the claimant was admitted to
the hospital and proper medical care give, the son of the
claimant who was accompanying the claimant at the time of
accident has lodged the complaint within 24 hours of
occurrence of the accident, wherein, he has stated number of
vehicle which caused the accident in question. PW.2 has also
been cross-examined regarding rectification made in the
discharge summary. The Tribunal has appreciated the relevant
factual aspects of the matter and had further noticed that the
insurer has not examined any independent witness like
investigator, with regard to its contention that it was a two-
wheeler which was involved in the accident and not a four
wheeler. The Tribunal has also adequately appreciated the
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relevant factual aspects of the matter and recorded a finding
that the claimant has proved the occurrence of the accident in
the manner as averred in the claim petition. Hence, the finding
of the Tribunal is just and proper and no interference with the
same is warranted in the present appeal. In view of the same
question No.(i) is answered in the affirmative.
Re. Question No.(ii):-
11. The claimant is aged about 52 years. Hence, the
appropriate multiplier is 11 as has been assessed by the
Tribunal.
12. The claimant has averred that she is coolie.
However, no documents have been produced to prove the
income. The Tribunal has assessed the income at `4,000/- per
month. In view of the fact that no documents have been
produced to prove the income of the claimant, the same
required to be re-assessed as notional income as per the chart
being followed for settlement of claims by the Lok-Adalath
conducted by the Legal Service Authority and having regard to
the date of accident the income is re-assessed as `6,500/-.
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13. As is forthcoming from the wound certificate
(Ex.P.2) and discharge summary (Ex.P.7) it is noticed that the
claim has sustained fracture of the right ankle joint and other
injuries. The claimant was treated as an inpatient from
25.12.2011 to 29.12.2011 i.e., for a period of 4 days. The
fracture has been surgically treated. PW.2 doctor has been
examined who has been deposed that the claimant has 12%
disability to the limb and 4% disability to the whole body. The
Tribunal appreciating the said disability, has assessed the
functional disability at 8% which is just and proper.
14. In view of the same, the compensation is re-
assessed as follows:
14.1. The Tribunal has awarded a sum of `30,000/-
towards pain and suffering which is just and proper.
14.2. The Tribunal has awarded a sum of `30,000/-
towards medical expenses. It is relevant to note that medical
bills having been produced at Ex.P.8 and same amounting to
`33,274/- as noticed by the tribunal, it is just and proper that
medical expenses will be re-assessed at `35,000/-.
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14.3 The Tribunal has awarded a sum of `10,000/-
towards loss of amenities and future discomfort. Having regard
to the nature of injuries and the resultant disability it is just
and proper that the same be re-assessed at `15,000/-.
14.4. The Tribunal has awarded a sum of `10,000/-
towards loss of earning during the period of treatment. The
laid up period is taken as two months and the loss of income
during the period of treatment is re-assessed as (6500 X 2) =
`13,000/-.
14.5. The Tribunal has not awarded any compensation
towards food and nutrition and attendance charges. Hence,
having regard to the period of treatment, it is just and proper
that a sum of `10,000/- be awarded for the same.
14.6. Loss of future earning capacity is re-assessed as
(6500 X 12 X 11 X 8%) = `68,640/- as against `42,240/-
awarded by the Tribunal.
14.7 The Tribunal awarded a sum of `5,000/- towards
future medical expenses. The doctor have been stated that the
claimant requires to have another surgery for implant removal
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which cost approximately `20,000/-. Hence, it is just and
proper that the same is re-assessed as `10,000/-.
15. Accordingly, the total compensation re-assessed
under various is as follows:
Sl.No. Heads Amount awarded Amount
by the Tribunal (`) awarded by
this Court
(`)
1. Pain and suffering 30000.00 30000.00
2. Loss of amenities 10000.00 15000.00
and future
discomfort
3. Loss of earning 10000.00 13000.00
during the period of
treatment
4. Medical expenses 30000.00 35000.00
5. Loss of future 42240.00 68640.00
earning capacity
6. Food, nutrition and 0.00 10000.00
attendant charges
7. Future medical 5000.00 10000.00
expenses
Total 127240.00 181640.00
16. Hence, the claimant is entitled for enhanced
compensation of (181640 - 127240) = `54,400/- which is
rounded up `55,000/-, together with interest at 6% per annum.
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17. In view of the aforementioned, the following:
ORDER
i) M.F.A. No.4065/2014 filed by the insurer is
dismissed;
ii) M.F.A. No.7642/2014 filed by the claimants
is allowed in part;
iii) The judgment and award dated 21.03.2014
passed in MVC.No.1867/2012 on the file of
the XIV Additional Judge, Mact, Court of
Small Causes, Bengaluru, is modified only
to the extent herein. In all other respects,
the judgment and award of the Tribunal
remains unaltered;
iv) The appellant in M.F.A. No.7642/2014 -
claimant is entitled to enhancement of
`55,000/- together interest at 6% p.a. from
the date of addition to date of payment in
addition to the amount awarded by the
Tribunal;
v) The appellant in M.F.A. No.4065/2014 -
insurer shall be liable to pay the
compensation awarded by the Tribunal as
well as enhanced by this Court together
with accrued interest;
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vi) The amount deposited in MFA
No.4065/2014 shall be transmitted to the
Tribunal for the disbursement in terms of
the award of the Tribunal;
vii) The insurer shall deposit the balance
compensation with accrued interest within a
period of eight weeks from the date of
receipt of a copy of this judgment before
the Tribunal;
viii) Consequent to deposit the award of the
Tribunal shall be dispersed in terms and
award of the Tribunal;
ix) The Registry to draw the modified award
accordingly.
x) No costs.
Sd/-
JUDGE
PNV
CT:SNN
