Karnataka High Court
Sri. Puttaswamy Naika vs M/S. Cholamandalam M.S on 2 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 3890 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR.JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 3890 OF 2015 (MV-I)
BETWEEN:
SRI. PUTTASWAMY NAIKA
S/O SRI. LALU NAIKA,
AGED ABOUT 36 YEARS,
R/AT NO.176, NETTIGERE,
UTTARAHALLI P.O., BENGALURU SOUTH
BENGALURU-560 082.
...APPELLANT
(BY SMT. SREE VIDYA G.K. (PH), ADVOCATE)
AND:
1. M/S. CHOLAMANDALAM M.S
Digitally GENERAL INSURANCE CO. LTD.,
signed by
SHAKAMBARI T.P. CLAIMS HUB, GOLDEN HEIGHTS,
Location:
HIGH COURT 6TH FLOOR, (STAR BAZAR BUILDING),
OF
KARNATAKA DR.RAJKUMAR ROAD, NEAR SUJATHA THEATRE,
BENGALURU-560 010.
2. SRI. RAJEEVA
S/O SHIVANNA,
MAJOR, R/AT NO.20, SONARE DODDI,
GOTTIGEHALLI P.O., HAROHALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGARAM DISTRICT-561 001.
...RESPONDENTS
(BY SRI. O. MAHESH., ADVOCATE FOR R1 (VC)
NOTICE TO R2 IS DISPENSED WITH V/O/D: 15.09.2015)
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MFA No. 3890 of 2015
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 5.12.2014 PASSED IN MVC
No.6612/2013 ON THE FILE OF THE MOTOR ACCIDENT CLAIMS
TRIBUNAL, COURT OF SMALL CAUSES, BENGALURU (SCCH-
13), BE MODIFIED BY GRANTING COMPENSATION AS CLAIMED
IN THE CLAIM PETITION AND THIS MISCELLANEOUS FIRST
APPEAL MAY BE ALLOWED WITH COSTS IN THE INTEREST OF
JUSTICE.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
DR.H.B.PRABHAKARA SASTRY J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appeal is filed by the claimant under
Section 173 (1) of the Motor Vehicles Act, 1988, seeking
enhancement of compensation awarded by the Court of
the learned II Addl. Small Causes Judge and XXVIII ACMM,
Bengaluru, (hereinafter for brevity referred to as "the
Tribunal"), in its judgment and award dated 05.12.2014 in
M.V.C.No.6612/2013.
2. The summary of the case of the claimant before
the Tribunal was that, on 13.12.2013 at about 9:30 a.m.,
when the claimant was traveling as a pillion rider on a
motor cycle bearing Registration No. KA-02-HB-7451
along with one Ramamurthy, on Bengaluru-Kanakapura Road,
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Somanahalli Gate, Uttarahalli, Bengaluru, the driver of a
Lorry bearing Registration No. KA-51-7954 came at a high
speed and in a rash and negligent manner endangering
human life and dashed to the motor cycle in which the
claimant was traveling as a pillion rider. Due to the said
road traffic accident, claimant sustained grievous injuries.
He was shifted to Victoria Hospital, Bengaluru where he
was treated as inpatient and underwent surgery and
amputation of right lower limb due to the accidental
injuries and suffered disability. Claimant, at the time of
accident was aged about 35 years and was working as a
Coolie and earning a sum of `300/- per day. The claimant
had claimed compensation in a sum of `25,00,000/- from
respondent Nos.1 and 2 arraigning them as the insurer
and owner of the alleged offending Motor vehicle lorry
respectively.
3. In response to the notices served upon them,
respondents appeared through their counsels and it is only
respondent No.1-Insurance Company, who filed its written
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statement. Respondent No.1, the Insurance Company
denied the averments made about occurrence of the road
traffic accident and negligence on the part of the driver of
the motor lorry. It also denied that the claimant sustained
injuries as claimed by him in the said road traffic accident.
Further, denying the age, avocation and income of the
claimant and also alleged disability, the Insurance
Company prayed to dismiss the claim petition.
4. Before the Tribunal, the claimant got himself
examined as PW-1 and got marked documents from
Exs.P-1 to P-17 and also examined two more witnesses
i.e. Smt.Lakshmi Devi S., Medical Record Officer, Victoria
Hospital and Dr. S.Ramachandra, Orthopaedic Surgeon,
Bowring and Lady Curzon Hospital, Bengaluru as PWs 2
and 3. However, on behalf of the respondents, neither
any witness was examined nor any documents were got
marked.
5. After analysing the evidence and the materials
placed before it, the Tribunal has awarded the
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compensation under the following heads with the sum
shown against them:
Sl.
Particulars Amount in `
No.
1 Injury, Pain and Sufferings 75,000-00
2 Loss of earnings during Medical 30,000-00
treatment
3 Medical expenses 35,440-00
4 Loss of future earnings due to disability 5,76,000-00
5 Loss of amenities 50,000-00
6 Conveyance, Nourishment, Food and 32,250-00
attendant charges
7 Future Medical Expenses 2,00,000-00
Total 9,98,690-00
6. The Tribunal has awarded compensation in a sum
of `9,98,690/- with interest at the rate of `6% per annum
from the date of the claim petition till the date of
realisation of the entire amount, holding the owner and
Insurer of the offending vehicle jointly and severally liable
to pay the said compensation. It is against the said
judgment and award passed by the Tribunal, the claimant
has filed this appeal, seeking enhancement of
compensation.
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7. Learned counsel for the appellant (claimant) in her
brief arguments contended that evidence given by PW.3-
Doctor that the claimant was suffering with 60% of the
disability to the whole body and the same was 100%
occupational disability and the same was not considered
by the Tribunal. Further, the income of the claimant as
stated by him that it was `9,000/- per month was also
arbitrarily reduced by the Tribunal without any basis for
such reduction. Thus, the impugned award warrants
interference at the hands of this Court and compensation
awarded deserves to be enhanced as prayed.
8. Per contra, learned counsel for respondent No.1
appearing for Insurance Company in his argument
submitted that even as per Workmens' Compensation Act,
1923, for amputation below the knee results in disability of
maximum 50% which has been rightly considered by the
Tribunal. However, the income ought to have been taken
at `5,200/- per month as per the Minimum Wages Act,
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1948, whereas, the Tribunal has taken it at `6,000/- which
is on the higher side.
Furthermore, the compensation awarded towards
future medical expenses is exorbitant and without any
basis. As such, though the compensation awarded under
the impugned order is on the higher side, still Insurance
Company did not prefer an appeal, as such, the impugned
judgment and award itself be confirmed, much less, no
interference is called for at the hands of this Court.
9. The claimant in support of his contention has got
himself examined as PW.1 wherein, he has reiterated the
contentions taken up in the claim petition. On his behalf,
he has got marked documents Ex.P1 to P17 which are
certified copy of FIR & complaint, Mahazar, requisition for
inspection of vehicle, charge sheet, wound certificate,
discharge summary, OP Card, Medical prescription, two
photographs of the claimant with CD and X-ray film. He
also got examined one Smt.Lakshmi Devi S.,Medical
Record Officer of Victoria Hospital, Bengaluru who has
produced in-patient case sheet of the hospital along with
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the authorisation letter which were marked at Ex.P13 and
14.
Claimant also got examined one Dr.S.Ramachandra,
an Orthopaedic Surgeon at Bowring and Lady Curzon
Hospital, Bengaluru, who has medically examined the
claimant and has opined that as per his medical
examination, the claimant has sustained crush injury over
right lower limb with Type III 'C' Open (Compound),
fracture of both bones (Tibia and Fibula) of right leg in the
road traffic accident that occurred on 13.12.2013. He has
further opined that is claimant has suffered permanent
disability of 60% which is 100% occupational disability.
OPD Slip/Card and X-Ray film are produced by this witness,
which are marked as Ex.P15 and P16.
10. PWs.1, 2 and 3 were subjected to cross-
examination by the respondent. They have denied the
suggestions made in their cross-examination and have not
admitted the same as true. Thus, the evidence of PW.1,
coupled with Ex.P1 to P7, would go to show the occurrence
of the road traffic accident, on the date, time and place of
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accident, which has also been reflected in the
memorandum of appeal, has not been denied or disputed.
The wound certificate at Ex.P5 and the OPD slip Ex.P7
further go to show that, in the said road traffic accident,
the claimant had sustained fracture of III Metabolic Bone
and Fracture of both bones of Tibia and Fibula Right Leg
and the medical record also shows that claimant was
injured, in need of surgical operation below the knee as
such amputation of right leg was done.
11. The Charge sheet accuses the driver of the
offending lorry as the one having committed offence under
Section 279 and 337 of IPC. Thus, it stands established
that in the said road traffic accident the motor lorry
bearing Registration No.KA-51-7954 being driven by its
driver in a rash and negligent manner dashed against the motor
cycle bearing Registration No.KA-02-HB-7451. Thus, as rightly
held by the Tribunal, the claimant has suffered grievous injuries
in the said road traffic accident and is entitled for compensation
from respondents who are Insurance Company and the
owner of the offending lorry respectively.
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12. Considering the nature of the injuries
sustained by the claimant and the duration of the
treatment he has taken in the hospital as an in-
patient, the compensation in a sum of `75,000/-
towards injury, pain and suffering, The compensation
awarded by the Tribunal, under the said head does not
warrant any interference by this Court.
13. Similarly, towards loss of amenities, a sum of
`50,000/- and towards conveyance, nourishment, food
and attendant charges, `32,250/- has been awarded
by the Tribunal by giving reasons for awarding
compensation to the said extent. The reasons given by
the Tribunal to arrive at those calculations is
acceptable. The compensation awarded under these
heads also do not warrant any interference by us..
14. Considering the evidence lead by the claimant and
his witnesses, we do not concur that he was laid up for a
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period of five months. The maximum laid up period can be
taken as for a period of three and half months, as such, the
quantum of compensation awarded under the head of 'loss
of earning during medical treatment' which is at `30,000/-
also does not warrant interference at the hands of this
Court.
15. Towards loss of future earnings due to disability,
the Tribunal has awarded a compensation of `5,76,000/-. It
is mainly on this aspect, learned counsel for the appellant
expresses her dissatisfaction both regarding income, as
well as percentage of disability as has been considered by
the Tribunal at a lower range.
16. Per contra, learned counsel for respondent No.1-
Insurance Company contends that the compensation
awarded under the head of loss of future income by itself
is on the higher side, as such, the same does not warrant
any interference at the hands of this Court.
17. The claimant who was examined as PW.1
contends that, at the time of accident, he was working as a
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Coolie and earning `300/- per day. The Tribunal has taken
his income at `6,000/- per month. According to the learned
counsel for the Insurance Company, the Tribunal ought to
have taken `5200/- per month but, according to learned
counsel for the appellant, for year 2013, the notional
income of a person as recommended by the Karnataka
State Legal Services Authority (KSLSA) and as accepted by
the majority of the Motor Accident Claims Tribunals is at
`8,000/- per month. We find more force in the submission
of the learned counsel for the claimant. For the year 2013
as recommended by the Legal Services Authority of the
State, majority of the Tribunals are taking the income of
the injured at `8,000/- per month. More particularly,
considering the facts and circumstances of the present
case, we are of the view that the income of the claimant
which has remained unshaken in his cross-examination
can be taken at `8,000/- per month.
18. The age of the claimant is shown to be 35 years
in his claim petition. Though there is slight variation in the
evidence and the medical records, however, taking his age
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between 33 to 35 years, the multiplier applied by the
Tribunal, which is '16', remains the same.
19. The claimant contends in his evidence that due to
the injuries sustained by him, he has suffered total
disability and loss of his income and is unable to do any
work. The medical doctor, who is examined as PW.3
though has assessed the percentage of disability at 60%
as applicable to the whole body, however, considering the
avocation of the claimant as a Coolie, has observed that
the disability would be 100% occupational disability.
20. Learned counsel for respondent-Insurance
Company contends that since amputation is below the
right knee, the percentage of disability is required to be
taken at 50% only. However, considering the evidence of
PW.3, including the evidence regarding occupational
disability of the claimant, we are of the view that the
disability of the claimant be taken at 60% to the whole
body. Accordingly, the quantum of loss of future income
would come to `8,000/- x 12 x 16 x 60/100 = `9,21,600/-.
After deducting the sum of `5,76,000/- awarded by the
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Tribunal under the said head, claimant is entitled for a
differential compensation in a sum of `3,45,600/-.
21. Towards future medical expenses, the Tribunal
has awarded a compensation of `2,00,000/-. To arrive at
the said figure, the Tribunal has relied upon the estimation
for artificial limb which is at Ex.P17. Same would show a
sum of `3,18,500/-. Though, the quantum of compensation
awarded towards future medical expenses by the Tribunal
appears to be slightly on the higher side to a naked eye
view, however, considering the evidence of PWs.1 to 3 and
more particularly, document at Ex.P17, we find reason to
retain the same amount as ordered by the Tribunal.
22. Barring the above, the claimant is neither
entitled for compensation under any other heads nor the
compensation awarded by the Tribunal under the existing
heads except the above deserves any further modification.
23. Thus, as analysed above, the claimant is entitled
for a modified compensation as tabulated below:
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Sl.
Particulars Amount in `
No.
1 Injury, Pain and Sufferings 75,000-00
2 Loss of earnings during Medical
30,000-00
treatment
3 Medical expenses 35,440-00
4 Loss of future earnings due to
9,21,600-00
disability
5 Loss of amenities 50,000-00
6 Conveyance, Nourishment, Food and
32,250-00
attendant charges
7 Future Medical Expenses 2,00,000-00
Total 13,44,290-00
Since the quantum of compensation awarded by the
Tribunal at a sum of `9,98,690/- is in short by a sum of
`3,45,600/-, for the said enhanced sum of `3,45,600/-
only, the impugned judgment and award deserves to be
interfered with.
Accordingly, we proceed to pass the following:
ORDER
[i] The appeal filed by the claimant
stands allowed in part;
[ii] The impugned judgment and
award passed by the learned II Addl.Small
Causes Judge and XXVIII ACMM, Bengaluru
dated 5.12.2014 in M.V.C. No.6612/2013,
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is hereby modified to the extent that the
compensation awarded at `9,98,690/- is
enhanced by a sum of `3,45,600/- (Rupees
Three Lakh Forty Five Thousand Six
Hundred only), thus fixing the total
compensation at `13,44,290-00/- (Rupees
Thirteen Lakh Forty Four Thousand Two
Hundred and Ninety only).
[iii] The rest of the order of the
Tribunal with respect to fixing the liability
upon the respondents jointly and severally
to deposit the awarded amount and the
rate of interest awarded, shall remain
unaltered;
[iv] The respondents are directed to
deposit the enhanced compensation with
interest within a period of six weeks from
today;
Upon deposit of the said sum, a sum
of `2,00,000/- to be kept in Fixed Deposit
in the name of claimant for three years in
any nationalised Bank and the remaining
amount of `1,45,600/- with accrued interest
be released in favour of the claimant
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without further orders, after due
identification and in accordance with law.
Draw the modified award accordingly.
Registry to transmit a copy of this
judgment to the concerned Tribunal, along
with its records, without delay.
Sd/-
JUDGE
Sd/-
JUDGE
Sk/-
