Karnataka High Court
Sri Munivenkatappa vs The New India Assurance Company Ltd on 11 January, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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MFA No. 3056 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO. 3056 OF 2021 (MV-I)
BETWEEN:
SRI.MUNIVENKATAPPA,
S/O BUDDANNA,
AGED ABOUT 58 YEARS,
R/AT THIMMAPURA VILLAGE,
KYASAMBALLI POST, BANGARAPET TALUK,
KOLAR DISTRICT - 563 121.
...APPELLANT
(BY SRI. GIRIMALLAIAH., ADVOCATE)
AND:
1. THE NEW INDIA ASSURANCE COMPANY LTD.,
T.P.HUB, NO.9/2, II FLOOR,
MAHALAKSHMI CHAMBERS, M G ROAD,
Digitally
BANGALORE - 560 001.
signed by B BY ITS MANAGER.
LAVANYA
Location:
HIGH 2. SRI. NARENDRA BABU C,
COURT OF S/O CHANDRAPPA,
KARNATAKA
MAJOR
(AGE NOT KNOWN TO APPELLANT),
KANNUR VILLAGE,
KANGANDALHALLI POST, BANGARPET,
KOLAR DISTRICT - 563 121.
...RESPONDENTS
(BY SRI.V.RAJASHEKHARA REDDY, ADVOCATE FOR R1;
R2 - SERVICE OF NOTICE DISPENSED WITH)
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MFA No. 3056 of 2021
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 02.03.2021 PASSED IN MVC
NO.6840/2018 ON THE FILE OF THE VII ADDITIONAL SCJ AND
ACMM, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the appellant-claimant
challenging the judgment and award dated 02.03.2021 passed
in MVC.No.6840/2018 by Motor Accident Claims Tribunal, Court
of Small Causes, Bengaluru (for short 'the tribunal'). This
appeal is founded on the premise of inadequate and meager
compensation awarded by the tribunal.
2. Parties to the appeal shall be referred to as per their
status before the tribunal.
3. Brief facts of the case is as under:
On 26.08.2018 at 5.15 p.m., the claimant along with
another person was driving on motor cycle bearing registration
No.KA03-EX-6568. When they reached near Lokanaidu Bricks
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Factory, KGF Taluk, Kolar District, at that time, a Indica car
bearing registration No.KA-13-N-1380 came in a rash and
negligent manner and dashed against the motor cycle of the
claimant, in which he was a pillion rider. Due to the impact of
the accident, the rider and the pillion rider fell down and
suffered severe injuries. The present appeal is by the pillion
rider in M.V.C.No.6840/2018. It is claimed that prior to the
occurrence of the accident, the claimant was hale and healthy,
working as an agriculturist, earning Rs.15,000/- per month.
Immediately after the accident, he was taken to R.L.Jalappa
Hospital, where he was inpatient and underwent surgeries for
the injuries suffered.
3.2 The respondent No.1 filed statement of objection,
denied the claim made by the claimants including the age,
avocation and income and pleaded that the accident occurred
due to the negligence of the claimants rather than that of the
rider of the offending vehicle and sought for dismissal of the
claim petition. The respondent No.2 also took similar plea as
taken by respondent No.1 and sought for dismissal of the claim
petition.
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3.3. On the basis of pleadings, the tribunal framed
relevant issues for consideration.
3.4. In order to substantiate the issues and to establish
the case, the claimant got examined himself as PW.2 as
common evidence was adduced and got marked documents as
Ex.P9 to P13. The Doctor came to be examined as PW3
through whom the documents i.e., Ex.P15 and Ex.P18 came to
be marked. On the other hand, respondent No.1 examined its
company official as RW1 and got marked documents as Ex.R1
to Ex.R5.
3.5. Based on the material evidence both oral and
documentary and on hearing the learned counsels for both the
parties, the tribunal awarded a total compensation of
Rs.3,11,200/- along with interest at 6% per annum holding
respondent Nos.1 and 2 jointly and severally to pay the
compensation and directed respondent No.1 - insurance
company to pay the compensation in view of subsistence of the
policy.
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3.6. Being aggrieved by the meager compensation
amount awarded by the tribunal, the claimant is before this
Court seeking enhancement of compensation.
4. It is the vehement contention of learned counsel for
the appellant - claimant that the tribunal has committed an
error in not considering the material evidence both oral and
documentary and has awarded meager compensation. The
tribunal has also ignored the evidence of the Doctor - PW3 who
has opined that there is a disability to an extent of 19% and
has reduced the disability to 10% without there being any
basis. The tribunal has not awarded suitable compensation
under other heads including pain and suffering, loss of
amenities and loss of income during laid up period. The tribunal
has failed to take into consideration the period of 65 days
during which the claimant was inpatient and so also the fact
that the claimant is suffering from disability, discomfort and
pain over the right thigh and discharging of sinus over the right
thigh and still the claimant continues to take treatment. He
further contends that the tribunal has ignored the fact that the
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claimant has undergone three surgeries and hence, seeks for
enhancement of compensation.
5. Per contra, learned counsel appearing for respondent
No.1 - insurance company contends that the tribunal has
awarded just and reasonable compensation in accordance with
the material evidence both oral and documentary and the same
does not call for interference. He further contends that there is
no proof of income produced by the claimant. Hence, the
tribunal has taken the notional income, which does not call for
interference as it is the onus on the claimant to produce proper
proof of income. The learned counsel further contends that
though the Doctor-PW3 has stated that there is a physical
disability of 59% to the right lower limb and 19% to the whole
body, the same cannot be taken as a functional disability in
view of the fact that the claimant was aged 60 years as on the
date of occurrence of the accident and nothing material has
been placed before the court to show that there is a functional
disability to the extent of 19% to the whole body. Therefore, he
contends that the judgment and award passed by the tribunal
is just and reasonable and same does not call for interference.
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6. It is not in dispute that on 26.08.2018, the claimant
while traveling as a pillion rider along with another person, met
with an accident involving the offending vehicle i.e., Indica Car.
To establish this aspect of involvement of the vehicle,
negligence of the offending vehicle, he has produced Ex.P1 to
Ex.P6, which are police records, which effectively establish the
fact that the driver of the offending vehicle i.e., Indica car has
been implicated in a criminal case by lodging First Information
Report and a charge sheet has been laid against him, which is
not disputed or challenged by the driver of the offending
vehicle. Hence, the negligence is rightly attributed as against
the driver of the offending vehicle i.e., Indica car.
7. In order to establish that the claimant has sustained
injuries, he has produced Ex.P9 to Ex.P13, which effectively
establishes the injuries sustained by the claimant at 1 to 3 are
simple in nature and injuries at 4 to 5 are grievous in nature.
The tribunal has taken the income of the claimant to be
Rs.8,500/- for computation of compensation. I am in
agreement with the learned counsel for the appellant - claimant
that the income assessed by the tribunal is on the lower side,
as the accident occurred in the year 2018, the notional income
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as per the legal services authority chart is Rs.12,500/- per
month. The same is taken as income in the present case as
against Rs.8,500/- adopted by the tribunal. The claimant being
aged 60 years, the appropriate multiplier would be '9', which is
rightly taken and the same is not interfered. The Doctor - PW3
has assessed the physical disability to the extent of 19% to the
whole body. The tribunal and this court will have to assess the
functional disability based on the injuries sustained and the
avocation of the claimant. In the present case, the claimant
being aged 60 years doing agricultural work, which is also not
been established by producing any cogent material, the
assessment of functional disability could be taken at 15%
instead of 19%. Therefore, the loss of income due to disability
would be [12,500 x 12 x 9 x 15] Rs.2,02,500/- as against
Rs.91,800/- awarded by the tribunal.
(i) Towards pain and agony, the tribunal has awarded
a compensation of Rs.50,000/-. I deem it appropriate to award
another Rs.25,000/- under this head.
(ii) Towards medical expenses, the tribunal has
awarded a compensation of Rs.93,846/- on the basis of the
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actual bills produced by the claimant, which does not call for
interference.
(iii) Towards loss of amenities and nutritious and food,
the tribunal has awarded a compensation of Rs.25,000/-. I am
in agreement with the learned counsel for the claimant that it is
on the lower side. Hence, an additional amount of Rs.25,000/-
is awarded under this head.
(iv) Towards attendant charges and conveyance, the
tribunal has awarded a compensation of Rs.25,000/-. I deem it
appropriate to award an additional amount of Rs.25,000/-
under this head.
(v) Towards loss of income during laid up period, the
tribunal has awarded a compensation of Rs.25,500/-, which is
on the lower side. In view of this court enhancing the income
to Rs.12,500/- per month and the claimant being inpatient for
64 days, if 4 months is taken as a period of recuperation to get
back to normal day to day work, plus an additional 2 months of
being inpatient, 6 months is required to be calculated as no
income period. Accordingly, [12,500 x 6] Rs.75,000/- is
awarded under this head.
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8. In view of the above discussion, the claimant would
be entitled to a total compensation of Rs.5,46,346/- as against
Rs.3,11,200/- as mentioned in the table below:
Heads Amount in Rs.
Loss of future income 2,02,500-00
Pain and suffering 75,000-00
Medical expenses 93,846-00
Loss of amenities and nutritious food 50,000-00
Attendant charges and conveyance 50,000-00
Loss of income during laid up period 75,000-00
TOTAL 5,46,346-00
(l) Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 02.03.2021
passed in MVC.No.6840/2018 by Motor
Accident Claims Tribunal, Court of Small
Causes, Bengaluru, is modified;
iii) The claimant is entitled to a total
compensation of Rs.5,46,346/- as against
Rs.3,11,200/- awarded by the tribunal along
with interest @ 6% p.a. from the date of
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petition till realization; . All other terms and
conditions of the tribunal stands intact.
iv) The entire compensation amount shall be
paid by the respondent within a period of six
weeks from the date of receipt of a copy of
this order;
v) The original records shall be transmitted to
the jurisdictional tribunal forthwith;
Sd/-
JUDGE
SS
