Karnataka High Court

Mr Basavaraju vs Shriram General Insurance Company ... on 7 March, 2024

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                        NC: 2024:KHC:9665
                                                    MFA No. 7589 of 2022
                                                C/W MFA No. 7602 of 2022



                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 7TH DAY OF MARCH, 2024

                                       BEFORE
                    THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                   MISCELLANEOUS FIRST APPEAL NO.7589 OF 2022 (MV-I)
                                         C/W
                   MISCELLANEOUS FIRST APPEAL NO.7602 OF 2022 (MV-I)

              IN MFA NO. 7589 OF 2022:
              BETWEEN:
              MR. KUMARA
              S/O.BASAVARAJU
              AGED ABOUT 28 YEARS
              RESIDING AT:
              DORANAHALLI VILLAGE
              MIKKERE POST
              KIRAGAVALU HOBLI
              MALAVALLI TLAUK
              MANDYA DISTRICT - 571 424

              PRESENT ADDRESS:
              C/O.DEVARAJ
              NO.985, CHANDRA LAYOUT
              1ST STAGE, OPP. ESHWARA TEMPLE
Digitally     ARUNDATHINAGAR
signed by B   BENGALURU - 560 040
LAVANYA                                                      ...APPELLANT
Location:
HIGH          (BY SRI GIRIMALLAIAH, ADVOCATE)
COURT OF
KARNATAKA     AND:
              1.    SHRIRAM GENERAL
                    INSURANCE COMPANY LTD.,
                    NO.5/4, 3RD FLOOR, S.V.ARCADE
                    BILEKAHALLI MAIN ROAD
                    BILEKAHALLI, B.G.NAGAR
                    IIM POST, BENGALURU - 560 076
                    BY ITS MANAGER
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                                      MFA No. 7589 of 2022
                                  C/W MFA No. 7602 of 2022



2.   MR.VINAYAKA S.
     S/O.SHIVA KUMAR K.M.
     MAJOR
     PELEGINAMMA GUDI ROAD
     KOTE, KADUR TALUK
     CHIKKAMAGALURU DISTIRCT - 577 548
                                           ...RESPONDENTS
(BY SRI ANUP SEETHARAM RAO AND
    SRI B.C.SEETHARAM RAO, ADVOCATES FOR R-1;
    NOTICE TO R-2 IS DISPENSED V/O. DATED 16.02.2024)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 11.08.2022 PASSED IN MVC
NO.6037/2019 BY IX ADDITIONAL SMALL CAUSES JUDGE,
COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU
(SCCH-7).

IN MFA NO. 7602 OF 2022:

BETWEEN:
MR.BASAVARAJU
S/O.NATHAIAH
AGED ABOUT 54 YEARS
R/AT DORANAHALLI VILLAGE
MIKKERE POST
KIRAGAVALU HOBLI
MALAVALLI TLAUK
MANDYA DISTRICT - 571 424

PRESENT ADDRESS:
C/O.DEVARAJ
NO. 985, CHANDRA LAYOUT
1ST STAGE, OPP. ESHWARA TEMPLE
ARUNDATHINAGAR
BENGALURU - 560 040
                                               ...APPELLANT
(BY SRI GIRIMALLAIAH, ADVOCATE)
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                                             NC: 2024:KHC:9665
                                         MFA No. 7589 of 2022
                                     C/W MFA No. 7602 of 2022



AND:
1.   SHRIRAM GENERAL
     INSURANCE COMPANY LTD.
     NO.5/4, 3RD FLOOR, S.V. ARCADE
     BILEKAHALLI MAIN ROAD
     BILEKAHALLI, B.G NAGAR
     IIM POST, BENGALURU-560 076
     BY ITS MANAGER
2.   MR.VINAYAKA S.
     S/O.SHIVA KUMAR K.M.
     MAJOR
     PELEGINAMMA GUDI ROAD
     KOTE, KADUR TALUK
     CHIKKAMAGALURU DISTIRCT-577 548
                                              ...RESPONDENTS
(BY SRI SEETHARAM RAO B.C. AND
    SRI ANUP SEETHARAM RAO, ADVOCATES FOR R-1;
    NOTICE TO R-2 IS DISPENSED V/O. DATED 16.02.2024)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE
JUDGMENT AND AWARD DATED 11.08.2022 PASSED IN MVC
NO.6038/2019 BY IX ADDITIONAL SMALL CAUSES JUDGE,
COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU
(SCCH-7).

     THESE APPEALS ARE COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                         JUDGMENT

These two appeals are preferred by the claimants

questioning the judgment and award dated 11.08.2022

passed in MVC.Nos.6037/2019 and 6038/2019

respectively by the Court of IX Additional Small Causes

Judge, Court of Small Causes, Member, MACT-7,

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Bengaluru (for short, 'the tribunal'). These appeals are

founded on the premise of inadequacy of compensation

awarded by the tribunal.

2. Though these matters are listed for admission,

with consent of learned counsels for parties, they are

taken up for final disposal.

3. Parties to the appeals shall be referred to as per

their status before the tribunal.

4. Brief facts of the case are as under:

On 02.09.2019 at about 12.30 p.m., when the

claimants were going on a motor cycle bearing registration

No.KA-11-EJ-6396 on the left side on Mandya-Kirigavalu

Road near M.M.Rice Mill, Kirugavalu Town, the driver of

Goods Vehicle bearing registration No.KA-66-0509 drove

the same with high speed from opposite direction in a rash

and negligent manner and dashed against the motor cycle,

due to which, they fell down and sustained severe injuries

and they were immediately shifted to Mandya Government

Hospital, wherein they took first aid treatment and

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thereafter, they were shifted to Sanjay Gandhi Hospital,

Bengaluru, wherein they were admitted as an inpatient

and undergone surgery.

4.1 It is stated that the injured Kumara in

MVC.No.6037/2019 was hale and healthy prior to the

occurrence of accident and was aged about 25 years. He

was working as a Security Supervisor and earning a sum

of Rs.18,000/- per month.

4.2 It is further stated that the injured Basavaraju in

MVC.No.6038/2019 was hale and healthy prior to the

occurrence of accident and was aged about 51 years. He

was working as a Wood cutter and earning a sum of

Rs.20,000/- per month. Due to the injuries sustained and

disability suffered in the accident, they have filed claim

petitions in MVC.Nos.6037/2019 and 6038/2019 seeking

compensation.

4.3 On service of notice, respondents filed written

statement denying the claim of the claimants and sought

for dismissal of the claim petitions on the ground that the

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driver of the goods vehicle was not possessing a valid and

effective Driving Licence, as claimed by the Insurance

Company and has violated the terms and conditions of the

policy. It is also pleaded that the claimants were negligent

and responsible for occurrence of accident.

4.4 On the basis of pleadings, the tribunal framed

the relevant issues for consideration.

4.5 In order to substantiate the issues and to

establish the case, the injured claimant in

MVC.No.6037/2019 got examined himself as PW.1, the

injured claimant in MVC.No.6038/2019 got examined

himself as PW.2, the Doctors as PWs.3 and 4 and another

witness as PW.5 and got marked documents as Exs.P1 to

P25. On the other hand, the respondents got examined

witnesses as RWs.1 and 2 and got marked documents as

Exs.R1 to R5.

4.6 On the basis of material evidence, both oral and

documentary and on hearing the submissions of learned

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counsel for both parties, the tribunal awarded

compensation of Rs.4,74 563/- with interest @ 6% p.a. in

MVC.No.6037/2019 and Rs.4,42,828/- with interest @ 6%

p.a. in MVC.No.6038/2019 and directed respondent-

Insurance Company to pay the compensation within two

months.

4.7 Being aggrieved by the meager compensation

awarded by the tribunal, the claimants are before this

Court seeking enhancement of compensation.

5. Learned counsel for claimants submits that the

tribunal has committed an error in awarding meager

compensation, which calls for interference at the hands of

this Court. Hence, he seeks to enhance the compensation.

6. Per contra, learned counsel for Insurance

Company sustains the judgment and award of the tribunal

and contends that the tribunal has rightly awarded just

and reasonable compensation, which does not call for

interference. Hence, he seeks to dismiss the appeal.

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7. Having heard the learned counsel for the

claimants and learned counsel for Insurance Company and

perused the impugned judgment and award, it is

apparently seen that Ex.P1 to P6, the Police records clearly

depict filing of FIR and laying of chargesheet against the

driver of the offending vehicle, which is not in dispute and

the same is not questioned by the driver of the offending

vehicle. Therefore, the negligence is rightly attributed as

against the driver of the offending vehicle. Exs.P7 to P25,

the medical records, prescriptions and bills clearly depict

the injuries sustained and financial expenditure by the

claimants, so also, the photographs and Aadhar cards.

IN MFA.No.7589/2022 (MVC.No.6037/2019):

8. Now coming to the age, avocation and income of

the injured claimant Kumara, it is seen that he was aged

26 years as on the date of occurrence of accident and the

appropriate multiplier would be '17', which is rightly taken

by the tribunal, which does not call for interference and

the same is retained. The tribunal has taken the income

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at Rs.14,000/- per month, which also does not call for

interference and the same is retained.

8.1 PW.3-Doctor has opined the disability of 56% to

the lower limb and 18.66% to the whole body, whereas,

the tribunal has taken the disability at 12% as functional

disability, thereby giving go by to the opinion expressed

by the Doctor. As there is much gap between the opinion

expressed by the Doctor, the physical disability and the

functional disability are two aspects and there cannot be a

huge gap between the same. The physical disability would

in turn lead to the functional disability. Though the

disability is reduced to 12% as against 18.66%, there is

no reason for the same. Considering the claimant being

the Security Supervisor and the disability would directly

affect his functional disability, this Court deems it

appropriate to take the functional disability at 16% and

accordingly, it is taken. Therefore, the claimant would be

entitled to the compensation of Rs.4,56,960/-

(Rs.14,000/- x 12 x 17 x 16%) towards loss of income

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due to disability as against Rs.3,42,720/- awarded by the

tribunal.

8.2 The tribunal awarded Rs.50,000/- towards pain

and suffering. However, this Court deems it appropriate

to award additional amount of Rs.25,000/-. In all,

Rs.75,000/- is awarded under this head.

8.3 The tribunal awarded Rs.21,843/- towards

medicine and hospital bill, which does not call for

interference and the same is retained.

8.4 The tribunal awarded Rs.20,000/- towards loss of

earning during rest period. However, due to the injuries

sustained, the claimant would require atleast four months

period to recuperate and to get back to his normal day to

day activities. Therefore, the claimant would be entitled to

Rs.56,000/- (Rs.14,000/- x 4) under this head.

8.5 The tribunal has not awarded any amount

towards food, nourishment, attendant and conveyance

charges. However, the claimant was inpatient for 11 days.

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Therefore, this Court deems it appropriate to award

Rs.11,000/- under this head.

8.6 The tribunal awarded Rs.20,000/- towards loss of

amenities. However, this Court deems it appropriate to

award additional amount of Rs.25,000/-. In all,

Rs.45,000/- is awarded under this head.

8.7 The tribunal awarded Rs.20,000/- towards future

medical expenses, which does not call for interference and

the same is retained.

8.8 In view of the above, the claimant would be

entitled to a total compensation of Rs.6,85,803/- as

against Rs.4,74,563/- as mentioned in the table below:

              Heads                          Amount in Rs.
Loss of future income                            4,56,960-00
Pain and suffering                                 75,000-00
Medicine and Hospital bill                         21,843-00
Loss of earning during rest                        56,000-00
period
Food, nourishment, attendant                         11,000-00
and conveyance charges
Loss of amenities                                    45,000-00
Future medical expenses                              20,000-00
              TOTAL                               6,85,803-00
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IN MFA.No.7602/2022 (MVC.No.6038/2019):

9. Now coming to the age, avocation and income of

the injured claimant Basavaraju, it is seen that he was

aged 51 years as on the date of occurrence of accident

and the appropriate multiplier would be '11', which is

rightly taken by the tribunal, which does not call for

interference and the same is retained. The tribunal has

taken the income at Rs.14,000/- per month, which also

does not call for interference and the same is retained.

9.1 PW.4-Doctor has opined the disability of 20% to

the whole body, whereas, the tribunal not accepting the

version of the Doctor has arrived at disability at 15% to

the whole body. In this case, the claimant is working as a

wood cutter. Therefore, the fractures suffered by the

claimant would directly affect his labour work as a daily

wager. The whole body disability of the Doctor at 20% has

been drastically reduced by the tribunal to 15%. However,

taking into consideration the avocation and the age of the

claimant, this Court deems it appropriate to take the

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disability at 18% to the whole body. Therefore, the

claimant would be entitled to the compensation of

Rs.3,32,640/- (Rs.14,000/- x 12 x 11 x 18%) towards

loss of income due to disability as against Rs.2,77,200/-

awarded by the tribunal.

9.2 The tribunal awarded Rs.50,000/- towards pain

and suffering. However, this Court deems it appropriate

to award additional amount of Rs.25,000/-. In all,

Rs.75,000/- is awarded under this head.

9.3 The tribunal awarded Rs.40,628/- towards

medicine and hospital bill, which does not call for

interference and the same is retained.

9.4 The tribunal awarded Rs.30,000/- towards loss

of earning during rest period. However, the claimant was

inpatient for two months, he would require atleast six

months period to recuperate and to get back to his normal

day to day activities. Therefore, the claimant would be

entitled to Rs.84,000/- (Rs.14,000/- x 6) under this

head.

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9.5 The tribunal has not awarded any amount

towards food, nourishment, attendant and conveyance

charges. However, the claimant was inpatient for two

months. Therefore, this Court deems it appropriate to

award Rs.60,000/- under this head.

9.6 The tribunal awarded Rs.25,000/- towards loss of

amenities. However, this Court deems it appropriate to

award additional amount of Rs.25,000/-. In all,

Rs.50,000/- is awarded under this head.

9.7 The tribunal awarded Rs.20,000/- towards future

medical expenses, which does not call for interference and

the same is retained.

9.8 In view of the above, the claimant would be

entitled to a total compensation of Rs.6,62,268/- as

against Rs.4,42,828/- as mentioned in the table below:

              Heads                          Amount in Rs.
Loss of future income                            3,32,640-00
Pain and suffering                                 75,000-00
Medicine and Hospital bill                         40,628-00
Loss of earning during rest                        84,000-00
period
Food, nourishment, attendant                         60,000-00
and conveyance charges
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Loss of amenities                                      50,000-00
Future medical expenses                                20,000-00
            TOTAL                                   6,62,268-00

10. Accordingly, I pass the following:

ORDER

i) Both the appeals are allowed-in-part;

ii) The judgment and award dated 11.08.2022 passed in MVC.Nos.6037/2019 and 6038/2019 respectively by the Court of IX Additional Small Causes Judge, Court of Small Causes, Member, MACT-7, Bengaluru, is modified;

iii) The claimant in MFA.No.7589/2022 (MVC.No.6037/2019) is entitled to a sum of Rs.6,85,803/- as against Rs.4,74,563/-;

iv) The claimant in MFA.No.7602/2022 (MVC.No.6038/2019) is entitled to a sum of Rs.6,62,268/- as against Rs.4,42,828/-;

v) The enhanced compensation amount shall be paid by respondent-Insurance Company with interest at 6% per annum within a period of four weeks from the date of receipt of a copy of this judgment;