Karnataka High Court
M Ravikumar vs Icici Lombord Gen Ins Co Ltd on 10 January, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:1253
MFA No. 3338 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 3338 OF 2018 (MV-I)
BETWEEN:
M. RAVIKUMAR ,
S/O MUNSWAMY,
AGED ABOUT 42 YEARS,
R/AT NO.10, 9TH MAIN,
MUNESWARA LAYOUT, VADERAHALLI,
VIDYARANYAPURA POST,
BENGALURU - 560 097.
...APPELLANT
(BY SRI. SHANTHARAJ K, ADVOCATE)
AND:
1. ICICI LOMBORD GEN. INS. CO. LTD.,
REPRESENTED BY ITS MANAGER,
Digitally signed by NO.69, IST FLOOR, S.V.R COMPLEX,
RAMYA D HOSURE MAIN ROAD,
Location: HIGH COURT
OF KARNATAKA MADIWALA, BENGALURU - 560 068.
2. M/S. PEEVEE KITCHEN EQUIPMENTS,
NO.199/5, 12TH MAIN, 3RD CROSS,
PEENYA INDUSTRIAL AREA,
BENGALURU NORTH - 560 058.
...RESPONDENTS
(BY SRI. B.C. SHIVANNEGOWDA, ADVOCATE FOR R1;
R2 - NOTICE DISPENSED WITH VIDE ORDER
DATED 22.10.2021)
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NC: 2024:KHC:1253
MFA No. 3338 of 2018
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 07.10.2017 PASSED IN MVC
NO.4009/2017 ON THE FILE OF THE XXII ADDITIONAL SMALL
CAUSES JUDGE AND XX ACMM AND MEMBER MACT,
BENGALURU(SCCH-24) PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOW1ING:
JUDGMENT
This appeal is filed by the claimant challenging the
judgment and award dated 07.10.2017, passed by the
Court of the XXII Additional Small Causes Judge and XX
Additional Chief Metropolitan Magistrate & Motor Accident
Claims Tribunal, Bengaluru (SCCH-24), in MVC
No.4009/2015, seeking enhancement of compensation
awarded by the Tribunal.
2. The factum of accident, injuries sustained by the
claimant and coverage of insurance are not in dispute.
3. Heard the arguments of both sides and perused
the records.
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4. In the present case, the Tribunal has awarded
compensation as under:
1 Towards pain and suffering Rs.30,000/-
2 Towards medical expenses Rs.1,64,278/-
3 Towards food and nourishment Rs.30,000/-
expenses, conveyance and
attendant charges
4 Towards loss of income during Rs.32,000/-
the period of treatment
5 Towards loss future earnings Rs.2,68,800/-
6. Towards future medical expenses Rs.30,000/-
7. Towards loss of amenities of life Rs.20,000/-
Total Rs.5,75,078/-
5. In the present case, from the medical evidence on
record, it is proved that the claimant had suffered the
following injuries:-
i. Open fracture of both bones (Tibia/Fibula) of
the right leg.
ii. Fracture of both bones of the left leg
(Tibia/Fibula).
iii. Bilateral Acetabular anterior and posterior
column fracture.
iv. Lacerated wound over right leg 3 cm x 2 cm x
bone deep.
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6. The Tribunal while determining the compensation
has not adopted the correct parameters. Hence, claimant
is entitled for compensation.
7. Considering the nature of injuries sustained by
the claimant, the compensation of Rs.30,000/- awarded by
the Tribunal under the head 'Pain and sufferings' is on the
lesser side. Hence, the same is enhanced to Rs.70,000/-.
8. The compensation awarded under the head
'Medical Expenses' is as per the medical bills produced by
the claimant and the same is kept intact.
9. The Tribunal has awarded a lesser sum of
Rs.30,000/- under the head 'Food and nourishment
expenses, conveyance and attendant charges'. The same
is enhanced to Rs.50,000/-.
10. The claimant was working as a Cab driver and
he has suffered facture of both bones (tibia and fibula) of
right leg and left leg. The doctor has assessed that the
claimant has suffered 67% disability to both lower limbs
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and 34% towards whole body. In view of the injuries
sustained by the claimant, it is very difficult for him to
continue to work as a Cab driver. Therefore, it is just and
proper to take functional disability at 34% towards whole
body, what the doctor has assessed and the Tribunal has
committed an error in taking 20% as functional disability.
The Tribunal has erred in taking notional income of the
claimant at Rs.8,000/- per month. It is stated that
claimant as a Cab Driver by profession was receiving
salary of Rs.15,000/- per month. Exs.P.16 and 17 are the
salary statements and certificate dated 05.11.2016 issued
by the employer. As per Ex.P.17, the salary received by
the claimant was Rs.13,000/- per month. When the
material evidence is produced by the claimant, just
because the employer is not examined, that cannot be a
ground to disbelieve the documentary evidence placed on
record. Examination of employer is a mere rule of
evidence where document is accepted. Hence, considering
the documentary evidence on record, it is just and proper
to take income of the claimant at Rs.13,000/- per month.
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Even though there is no evidence on record to prove that
the claimant had surrendered driving license, but the
claimant has suffered fractures to both the bones and both
legs, it is difficult for the claimant to work as a Driver.
Therefore, it affects future prospectus in life. The claimant
was aged about 41 years at the time of the accident.
Hence, 25% of income is to be added towards loss of
future prospectus in life. The appropriate multiplier
applicable is '14'. Therefore, 'loss of earning capacity due
to disability' is re-assessed and quantified as
Rs.9,28,200/- (Rs.13,000 + 25% x 34/100 x 14 x 12).
11. The Tribunal has awarded a lesser sum of
Rs.32,000/- under the head 'Loss of income during laid up
period'. Considering the nature of injuries and fractures
sustained by the claimant, the same is enhanced to
Rs.52,000/- (Rs.13,000/- x 4 months).
12. The Tribunal has awarded a lesser sum of
Rs.20,000/- under the head 'Loss of amenities'. The same
is enhanced to Rs.50,000/-.
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13. The Tribunal has awarded a lesser sum of
Rs.30,000/- under the head 'Future Medical Expenses'.
Considering the nature of injuries and the fractures
sustained by the claimant, the same is enhanced to
Rs.50,000/-.
14. Thus, in all, the appellant/claimant is entitled for
total compensation under various heads as follows:
1 Towards pain and
suffering Rs. 30,000/- 70,000/-
2 Towards food,
nourishment
expenses, conveyance
and attendant
charges Rs. 30,000/- 50,000/-
3 Medical expenses Rs. 1,64,278/- 1,64,278/-
4 Loss of income during
laid up period Rs. 32,000/- 52,000/-
5 Loss of earning
capacity due to
disability Rs. 2,68,800/- 9,28,200/-
6 Loss of amenities Rs. 20,000/- 50,000/-
7 Towards future
medical expenses Rs. 30,000/- 50,000/-
TOTAL Rs. 5,75,078/- 13,64,478/-
15. The Tribunal has awarded compensation of
Rs.5,75,078/-, but the appellant/claimant is entitled for
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total compensation of Rs.13,64,478/-. Hence, the
appellant/claimant is entitled to enhanced compensation of
Rs.7,89,400/- (Rs.13,64,478/- - Rs.5,75,078/-), along
with interest at the rate of 6% per annum from the date of
petition till the date of realization, in addition to what has
been awarded by the Tribunal.
16. Accordingly, I proceed to pass the following:
ORDER
i. The appeal is allowed-in-part.
ii. The judgment and award passed by the Tribunal in
MVC No.4009/2015 dated 07.10.2017 by the Court
of the XXII Additional Small Causes Judge and XX
Additional Chief Metropolitan Magistrate & Motor
Accident Claims Tribunal, Bengaluru (SCCH-24), is
hereby modified holding that the claimant is entitled
for enhanced compensation of Rs.7,89,400/- along
with interest @ 6% p.a., from the date of petition till
its realization, in addition to what has been awarded
by the Tribunal.
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iii. Costs made easy.
iv. Ordered accordingly.
v. The other observations and findings of the Tribunal
are kept in tact.
Sd/-
JUDGE
MH/-
CT: BHK
