Karnataka High Court
Sri Balaji vs The Bajaj Allianz General Insurance Co ... on 2 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24634
MFA No. 5662 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 5662 OF 2021 (MV-I)
BETWEEN:
SRI. BALAJI
S/O MASILAMANI,
AGED ABOUT 27 YEARS,
R/AT NO.20, RAYASANDRA, BANGALORE - 560 099.
...APPELLANT
(BY SRI. THIPPESWAMY B C., ADVOCATE)
AND:
1. THE BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD.,
GOLDEN HEIGHTS,
4TH FLOOR, NO.1/2, 59TH C CROSS,
4TH BLOCK, RAJAJINAGAR,
BANGALORE - 560 038.
(POLICY NO.OG/19/1725/1803/0000/1492
VALID FROM 28-08-2018 TO 27-08-2019)
2. MR. MAHESH
MAJOR,
Digitally signed by
VEDAVATHI A K R/AT NO.22, 4TH CROSS,
Location: High NAGANATHAPURA, BEGUR,
Court of ELECTRONIC CITY, BANGALORE - 560 100.
Karnataka
...RESPONDENTS
(BY SRI. A.N.KRISHNA SWAMY, ADVOCATE FOR R1;
VIDE ORDER DATED:03/03/2023, NOTICE TO R2 IS
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.19.07.2021 PASSED IN MVC NO.6087/2018
ON THE FILE OF THE VII ADDITIONAL SMALL CAUSE JUDGE,
ACMM, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
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MFA No. 5662 of 2021
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/claimant under
Section 173(1) of Motor Vehicles Act, 1988 (for short
hereinafter referred to as MV Act) challenging the
judgment and award dated 19.7.2021 passed in
MVC No.6087/2018 on the file of VII Additional Small
Cause Judge, ACMM, Member, MACT-3, Bengaluru (for
short hereinafter referred to as 'Tribunal') for seeking
enhancement of compensation.
2. Heard the arguments of the learned counsel for
the appellant and learned counsel for respondent No.1-
Insurance Company. Issuing notice to respondent No.2 is
hereby dispensed with.
3. The appellant was petitioner and the
respondents were respondents before the Trial Court. The
status of the parties before the Tribunal is retained for the
sake of convenience.
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4. The case of the petitioner is that the petitioner
filed claim petition under section 166 of MV Act for
claiming compensation of Rs.20 lakhs for injury sustained
by him in the road traffic accident. It is alleged that on
1.9.2018 at about 4.45 p.m., when he was proceeding on
his motorcycle bearing reg.No.KA-51-ER-5021 on
Rayasandra raod, near bamboo forest apartment, at that
time the auto driver bearing temporary Reg no. KA-51-TS
005461 came from opposite direction and dashed to the
claimant, due to which he suffered a lot of injuries and
was taken to the hospital. Due to the injury he suffered
disability. The petitioner said to be working in a mobile
service center earning rupees Rs.15,000 per month and is
unable to work. Hence, claimed for compensation.
5. On receipt of the summons, the respondent
No.1/Insurance Company appeared and filed a statement
of objection by denying the rash and negligent driving,
also denied age, occupation and income of the petitioner
and contended that there is no disability and there is no
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avocation. However he specifically taken contention that
the driver of the auto rickshaw do not have any valid
permit or fitness certificate to run the vehicle on road and
there was breach of conditions of policy. Hence, prayed
for dismissing the petition. Respondent No.2 was placed
exparte. Hence, prayed for dismissal of the claim
petition.
6. On the basis of pleadings, the tribunal framed
the following issues for consideration:
1. Whether the petitioner proves that
he has sustained grievous injuries in
the accident occurred on 01-09-2018 at
about 4.45 p.m., on Rayasandra Road,
near Bamboo Huskuru Forest,
Rayasandra, Post, Bengaluru, due to
negligent act of driving of Auto bearing
temporary reg. No.KA-51-TS005461 by
its driver as alleged in the petition?
2. Whether the petitioner is entitled for
compensation? If so, to what amount
and from whom?
3. What Order or Award?
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7. To prove the case, the petitioner himself was
examined as P.W.1. and also examined another witness,
the Doctor as PW2. They got marked documents from
Exs.P1 to P16. On behalf of the insurance company RW1
has been examined and the documents from Exs.R1 to R7
were marked. After hearing the arguments, the tribunal
answered issue No.1 in affirmative and issue No.2 in the
partly affirmative. Accordingly, granted compensation of
Rs.4,41,750/-, along with interest of 6% p.a. which is as
under;
1. Loss of future income Rs.2,91,600-00
2. Pain and Agony 50,000-00
3. Medical expenses 23,148-00
4. Loss of amenities and nutritious 25,000-00
food
5. Attendant charges and 15,000-00
conveyance
6. Loss of income during laid up 27,000-00
period
7. Future medical expenses 10,000-00
Total Rs.4,41,748-00
Rounded off to
Rs.4,41,750-00
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The tribunal directed the respondent No.1 to deposit the
compensation and inturn recover the same from the
respondent No.2/owner of the vehicle, as there was no
valid permit to drive the vehicle on the road.
8. Being aggrieved by the quantum of
compensation, the claimant has filed this appeal. However
the claimant not challenged fixing the liability on
respondent No.2/owner for making the payment and then
for the recovery.
9. Learned counsel for the petitioner contended that
the petitioner was suffering from disability for more than
54% and to the whole body. The doctor stated 24%
disability, but the tribunal considered only 15% disability,
which is very meager. Even otherwise the income of the
petitioner was Rs.15,000/- per month but the tribunal
considered only Rs.9,000/- per month even as per the
Karnataka State Legal Services Authority, the notional
income to be considered is Rs.12,500/- per month.
Therefore, prayed for enhancing the same. Also contended
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the tribunal awarded very meagre amount towards other
heads, i.e, the loss of laid up period, conveyance,
attendant charges, loss of amenities and future medical
expenses.
10. Per contra, learned counsel for the respondent
supported the judgment and award passed by the tribunal
and seriously contended that as per the evidence of PW2
the doctor is not a treating doctor who has given disability
of 24% which is exorbitant. Therefore, the tribunal rightly
considered 15% to the whole body. Therefore, the same
may be retained and also contended, the compensation
under other heads also are sufficient. Hence no need to
enhance the same. Therefore, prayed for dismissing the
appeal.
11. Having heard the arguments, perused the
records, the point that arises for my consideration are,
1. Whether compensation awarded
by the tribunal is meagre, and
requires enhancement, if so, what
is the amount?
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12. The accident occurred on 1.9.2018 due to the
rash and negligent driving of the driver of auto which is
not in dispute . The tribunal by considering the evidence
on record especially the police records at from Ex.P1 to P7
has held due to the negligent driving of the auto driver,
the petitioner sustained injuries. The only contention is
the quantum of compensation awarded by the tribunal is
not sufficient.
13. As regards to the pain and suffering the
tribunal awarded Rs.50,000/- for the injury which is
grievous injury in nature as per Ex.P.7. Therefore, this
court feels there is no need to enhance the same, it is
sufficient.
14. The Income taken by the tribunal is Rs.9,500/-
per month, even though the petitioner claimed
Rs.15,000/- per month, but no documents were
produced. Therefore, the notional income assessed in the
Legal Service Authority chart is Rs.12,500/- per month
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should have been taken as income. Hence, I propose to
take Rs.12,500/- as income in instead of Rs.9,000 taken
by tribunal.
15. As regards to the loss of laid-up period the
tribunal considered three months laid-up period and the
same is retained if Rs.12,500 x 3 months is Rs.37,500/.
This will be the loss of pay due to laid-up period.
16. As regards to the loss of amenities the Tribunal
awarded Rs.25,000 but food also included in the same.
Therefore excluding the food the loss of amenities is
Rs.25,000/- awarded is retained.
17. The petitioner said to be admitted in the hospital
for 29 days almost one month. Though the tribunal
awarded Rs.15,000 towards the attendant charges and
conveyance charges but the food charges were not paid.
Therefore under the Attendant, conveyance, I propose to
award Rs.30,000/- instead of 15,000/-.
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18. The medical expenses of Rs.23,148/- was
awarded and the same is retained.
19. As per the contention of the petitioner, the
doctor has stated the petitioner required one more surgery
the implants and he may require Rs.20,000/- but the
tribunal awarded only Rs.10,000/-. Therefore, propose to
award Rs.20,000/- towards future medical expenses
20. As regards to the disability, loss of amenities
the tribunal at para 15 elaborately considered the injuries
sustained by the petitioner and disability suffered by him
as per PW2 Dr.Avinash Partha Sarthy who is Orthopedics
and professor in Sanjay Gandhi hospital, Bengaluru which
is a Government hospital. As regards to the doctor who
assessed the disability and issued the disability certificate
54% of the disability to other portion of the body and 9%
to the limb totally 63% is issued by doctor as per Ex.P.15.
The doctor has considered restriction to the movements of
the limbs due to the injury and disability. The tribunal
though comes to the conclusion of disability to 25% to the
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whole body, but not considered the same even taking
consideration of 63% given by the doctor if 1/3rd was
taken it would be 21% but not 15%. Therefore, based
upon Ex.P.15 doctors opined 63% disability. If one-third
is considered comes 21%. Hence, I propose to consider
21% disability instead of 15% considered by tribunal.
Hence, the loss of future earning capacity is as below,
Rs.12,500/- x 12 x 18 x 21% = Rs.5,67,000/- is
granted towards loss of future earning capacity due to
disability.
21. The components awarded by this court are as
below,
Particulars Amount
in Rs.
Loss of future income 5,67,000
Pain and suffering 50,000
Loss due to laid up period 37,500
Loss of amenities 25,000
Food and nourishment attendant charges 30,000
etc
Future medical expenses 20,000
Total 7,29,000
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As regards to the liability the tribunal considered that the
vehicle offending vehicle does not have any permit and
there is a violation of the condition of the policy the
respondent also lead evidence. In this regard, 7
documents were marked by the respondent/Insurance
company. However respondent No.2 owner of the vehicle
not contested the matter. Therefore, tribunal fixed the
liability on the respondent No.2. However in view of the
issuance of the policy, it is directed to the respondent
No.1/Insurance company to satisfy the award amount and
then recover the same from the owner of the vehicle. The
appellant also not challenged the fastening the liability on
the owner of the vehicle, even the owner has not filed any
application. Such being the case, I do not interfere with
the finding of the tribunal fixing the liability on the owner
of the vehicle. In view of the issuance of policy, the
respondent No.1 shall satisfy the award and recover the
same from the respondent No.2 .
22. Accordingly, I proceed to pass the following:
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ORDER
i. The appeal is allowed in part.
ii. The judgment of the tribunal dated 19.7.2021 passed
in MVC No.6087/2018 on the file of VII Additional
Small Cause Judge, ACMM, Member, MACT-3,
Bengaluru, is hereby modified.
iii. The claimant is entitled to a total compensation for a
sum of Rs.7,29,000/- along with interest, instead
of Rs.4,41,750/- granted by the tribunal.
iv. The enhanced compensation amount shall be paid by
the respondent-Insurance Company with interest @
6% per annum, excluding the future medical
expenses, within a period of two months from the
date of receipt of a copy of this order.
v. The respondent No.1/Insurance company is directed
to release the amount within 60 days and recover
the same from the owner of the vehicle.
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vi. The entire enhanced amount to be released to the
claimant.
vii. Registry is directed to return the Trial Court records
to the Tribunal, along with certified copy of the order
passed by this Court forthwith without any delay;
and
viii. Draw award accordingly.
Sd/-
JUDGE
AKV
CT:SK
