Karnataka High Court

The Claim Manager vs Somashekar on 12 November, 2024

Author: N S Sanjay Gowda

Bench: N S Sanjay Gowda

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                                                             NC: 2024:KHC:45767
                                                          MFA No. 3559 of 2019
                                                      C/W MFA No. 9291 of 2018



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                         DATED THIS THE 12TH DAY OF NOVEMBER, 2024

                                            BEFORE
                          THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                        MISCELLANEOUS FIRST APPEAL NO. 3559 OF 2019
                                                C/W
                        MISCELLANEOUS FIRST APPEAL NO. 9291 OF 2018
                                             (MV-I)


                   IN MFA No. 3559/2019:

                   BETWEEN:

                   1.    SOMASHEKAR
                         S/O ANAND,
                         AGED ABOUT 28 YEARS,
                         R/AT NO.77,
                         NEAR K.K.GUNJURU,
                         BANGALORE-560087.
                                                                   ...APPELLANT
                   (BY SRI. N.R.RANGEGOWDA., ADVOCATE)
Digitally signed
by KIRAN           AND:
KUMAR R
Location: HIGH     1.    BAJAJ ALLIANZ GENERAL
COURT OF
KARNATAKA                INSURANCE COMPANY LTD.,
                         GROUND FLOOR,
                         NO.31, TBR TOWER,
                         1ST CROSS,
                         NEW MISSION ROAD,
                         ADJACENT TO JAIN COLLEGE,
                         BANGALORE-560027.

                   2.    M/S NVS TRAVELS
                         NO.3, OLD NO.120, 1ST CROSS,
                         S.G.PALYA
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                                       NC: 2024:KHC:45767
                                    MFA No. 3559 of 2019
                                C/W MFA No. 9291 of 2018



     VENKATESHWARA LAYOUT,
     TAVAREKERE,
     BANGALORE-560029.
                                         ...RESPONDENTS
(BY SRI. O.MAHESH., ADVOCATE FOR R-1;
    VIDE ORDER DATED:23.08.2023, NOTICE TO R-2
    IS DISPENSED WITH)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED: 17.7.18
PASSED IN MVC NO.6306/16     ON THE FILE OF THE VII
ADDITIONAL SCJ & XXXII ACMM, MEMBER, MACT-3,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND    SEEKING    ENHANCEMENT     OF
COMPENSATION.

IN MFA NO. 9291/2018:

BETWEEN:

1.   THE CLAIM MANAGER
     BAJAJ ALLIANZ GENERAL
     INSURANCE COMPANY LIMITED.,
     GROUND FLOOR,
     NO.31,TBR TOWER,
     1ST CROSS, NEW MISSION ROAD,
     ADJACENT JAIN COLLEGE,
     BANGALORE-560 001

     BY

    BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD.,
    REGIONAL OFFICE, GOLDEN HEIGHTS,
    4TH LEVEL, NO.1/2, 59TH CROSS,
    4TH "M"BLOCK, RAJAJINAGAR,
    BANGALORE-560 010.
    BY ITS MANAGER
                                          ...APPELLANT
(BY SRI. O MAHESH., ADVOCATE)
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                                          NC: 2024:KHC:45767
                                       MFA No. 3559 of 2019
                                   C/W MFA No. 9291 of 2018



AND:

1.   SOMASHEKAR
     S/O ANAND, AGED 27 YEARS
     R/AT NO.77, NEAR K.K.SCHOOL,
     GUNJURU, BANGALORE-560 087.

2.   M/S NVS TRAVELS
     NO.3,OLD NO.120, 1ST CROSS,
     S.G.PALYA,VENKATESHWARA LAYOUT,
     TAVAREKERE, BANGALORE-560 029.

                                        ...RESPONDENTS
(BY SRI. K.VIJAY KUMAR., ADVOCATE FOR R-2;
    SRI.N.R.RANGE GOWDA., ADVOCATE FOR R-1)

    THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 17/07/2018,
PASSED IN MVC NO.6306/2016, ON THE FILE OF THE VII
ADDITIONAL SMALL CAUSES JUDGE & XXXII ACMM., MEMBER,
MACT-3, BENGALURU,       AWARDING COMPENSATION OF
RS.6.92,500/- WITH INTEREST AT 8% P.A. FROM THE DATE
OF PETITION TILL THE DATE OF DEPOSIT.


     THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE MR JUSTICE N S SANJAY GOWDA

                     ORAL JUDGMENT

1. The claimant as well as the insurer are in appeal.

2. The claimant, being dissatisfied with the compensation

of Rs.6,92,500/- awarded by the Tribunal, is in appeal.

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3. The insurer has filed the appeal challenging the liability

and quantum of compensation awarded in MVC

No.6306/2016 by the Tribunal on the ground that

fastening liability on the insurer is erroneous and the

compensation and interest awarded at 8% per annum

is excessive.

4. The accident, which occurred on 26.07.2016, is not

dispute.

5. The Tribunal on assessment of evidence has awarded

the following sums as compensation:

Compensation Sl. awarded by the Nature of Heads No. Tribunal (In Rs.)

1. Pain and sufferings 60,000/-

Loss of income during treatment 52,500/-

2. period

3. Loss of future income 3,88,800/-

4. Medical expenses 1,46,200/-

Loss of amenities, conveyance, 25,000/-

5. food, nourishment, attendant charges

6. Future medical expenses 20,000/-

Total 6,92,500/-

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6. The insurer contends that the entire accident was

doubtful since the First Information Report was lodged

a day after the accident. Reliance is sought to be

placed on a discrepancy in the Medico-Legal Case

register and the discharge summary extracts of two

hospitals, to contend that the involvement of the

vehicle that had been insured was doubtful.

7. The claimant, on the other hand, contends that the

occurrence of the accident and involvement of the

vehicle were not at all in serious dispute.

8. It is highlighted that the owner of the vehicle did not

deny the occurrence of the accident and merely stated

that the allegations in the complaint were not within

his knowledge even though the owner admitted that a

criminal case had been registered against his driver.

9. It is also contended that the sums awarded towards

compensation are inadequate.

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10. As far as the occurrence of the accident and the

involvement of the insured vehicle are concerned, it is

to be noticed that the accident occurred on 26.07.2016

and he was taken to Vydehi Institute of Medical

Sciences. The discharge summary issued by the said

hospital indicates that he was brought to the hospital

with a history of road traffic accident while he was

driving his vehicle and was hit by a Tata Ace vehicle.

11. They have also produced the extract of Medico-Legal

hospital authorities did inform the police about the

claimant having been brought to the hospital with a

history of road traffic accident.

12. In my view, in the light of the fact that a major

hospital has admitted the claimant for treatment and

has also informed the police about the occurrence of

the accident, the accident as such cannot be doubted.

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13. It may also be pertinent to state here that during the

entire course of cross-examination, there is no

suggestion put-forth by the insurer that the vehicle

that it had insured was not involved in the accident.

14. It may also be pertinent to state here that the

registered owner of the vehicle also did not take up a

plea that his vehicle was involved in the accident.

15. In my view, since the claimant was admitted to the

hospital and the hospital in turn had informed the

police, the delay of a day in filing the FIR would be of

absolutely be of no consequence. Consequently, the

appeal filed by the insurer has no merit and the same

is dismissed.

IN MFA No.3559/2019:

16. As far as the quantum of compensation is concerned,

the Tribunal has assessed the whole body disability of

the claimant at 24% and has taken the notional

income at Rs.7,500/- per month. In my view, the

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assessment of the whole body disability of the claimant

at 24% is just and proper, and the same is hereby

affirmed.

17. However, since the accident was of the year 2016

and there is no proof of the actual income of the

claimant, it would be appropriate to take the monthly

notional income determined by the KSLSA for the

accidents of the year 2016 at Rs.9,500/- as against

Rs.7,500/- taken by the Tribunal. As the claimant was

aged 23 years, a multiplier of '18' would have to be

applied. Consequently, the claimant would be entitled

to a sum of Rs.4,92,480 /- (Rs.9,500/- x 12 x '18' x

24%) towards 'loss of future income'.

18. A sum of Rs.1,46,200/- awarded towards medical

expenses, and Rs.20,000/- to future medical

expenses being based on documentary evidence are

just improper and hence, the same are affirmed.

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19. The Tribunal has taken the laid up period as seven

months and has awarded a sum of Rs.52,500/-

towards loss of income during laid up period.

Since the monthly income of the claimant is now re-

assessed at Rs.9,500/- by this Court, the claimant

would consequentially be entitled to a sum of

Rs.66,500/- (Rs.9,500/- X 7 months).

20. Since the claimant was hospitalized for 57 days and

underwent a surgery, it would be appropriate to award

a sum of Rs.1,00,000/- towards pain and agony as

against Rs.60,000/- awarded by the Tribunal.

21. The Tribunal has awarded a sum of Rs.25,000/-

towards loss of amenities, conveyance, food,

nourishment and attendant charges. In my view,

having regard to the fact that the claimant has

suffered 24% disability to the whole body and was

hospitalized for 57 days, it would also be appropriate

to award a sum of Rs.1,00,000/- towards loss of

amenities.

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22. Apart from the above, the claimant would also be

entitled to a sum of Rs.50,000/- towards

conveyance, food, nourishment and attendant

charges.

23. Consequently, the award of the Tribunal is modified

and the claimant would be entitled to the following

compensation:

As As Sl. awarded Nature of Heads awarded by No. by the this Court Tribunal (In Rs.) (In Rs.)

1. Pain and sufferings 60,000/- 1,00,000/-

Loss of income during 52,500/- 66,500/-

2.

treatment period 3,88,800/- 4,92,480/-

3. Loss of future income (Rs.9,500/- x 12 x '18' x 24%)

4. Medical expenses 1,46,200/- 1,46,200/-

5. Loss of amenities 1,00,000/-

       conveyance, food,                                  50,000/-
                                           25,000/-
  6.   nourishment, attendant
       charges
  7.   Future medical expenses             20,000/-      20,000/-
                 Total                  6,92,500/-    9,75,180/-

24. Thus, the claimant is held entitled to the total

compensation of Rs.9,75,180/- as against

Rs.6,92,500/-, along with interest at the rate of six per

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cent per annum (as against 8%) from the date of

petition till its realization, except for the delay period

of 179 days in filing the appeal.

25. The Insurance Company is directed to deposit the

amount of compensation awarded within two months

from the date of receipt of a certified copy of this

judgment.