Karnataka High Court
Gowreesh vs M/S. Bajaj Allianz Gen. Insurance ... on 15 November, 2024
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MFA No. 7142 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 7142 OF 2015 (MV-I)
BETWEEN:
GOWREESH,
S/O AKKALAPPA,
AGED ABOUT 37 YEARS,
R/AT #13, C/O SIDDALINGEGOWDA,
12TH CROSS, JAYALAKSHMAMMA
BADAVANE, ANNAPOORNESHWARI NAGAR,
BENGALURU-560 073.
...APPELLANT
(BY SRI K V SHYAMAPRASADA, ADVOCATE [P/H])
AND:
1. M/S. BAJAJ ALLIANZ GEN. INSURANCE CO. LTD.,
NO.31, GROUND FLOOR, T B R TOWER,
1ST CROSS, NEW MISSION ROAD,
Digitally NEAR BENGALURU STOCK EXCHANGE,
signed by BANGALORE - 560 027.
NANDINI R REP. BY ITS MANAGER.
Location:
High Court of
Karnataka 2. MANJUNATHA S,
S/O SRINIVAS,
MAJOR,
R/AT NO.5, 1ST MAIN,
BINNYPET, BENGALURU-560 026.
...RESPONDENTS
(BY SRI P B RAJU, ADVOCATE FOR R1 [P/H];
NOTICE TO R-2 IS D/W V/O DATED 05.01.2018)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 17.6.2015 PASSED IN MVC
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MFA No. 7142 of 2015
NO.3953/2013 ON THE FILE OF THE 12TH ADDITIONAL SMALL
CAUSES JUDGE, MEMBER, MACT, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE C M JOSHI
ORAL JUDGMENT
Being aggrieved by the judgment and award in
MVC.No.3953/2013 passed by the XII Additional Small
Causes Judge and MACT, Bengaluru dated 17.06.2015, the
petitioner is before this Court in appeal seeking
enhancement of the compensation amount.
2. The factual matrix of the case is as below:
On 20.05.2013 at about 8.45 pm, while the petitioner
was walking by the side of the road near Urvashi Theater
at Bengaluru, rider of the Suzuki Access motorcycle
bearing No.KA-02-HG-3716 came in rash and negligent
manner and dashed to the petitioner resulting in the
petitioner falling down and sustaining grievous injuries. He
was immediately shifted to Sanjay Gandhi Hospital and
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after the first aid, he was shifted to Sevabhai Hospital and
had to undergo surgeries. It was contended that the
petitioner was healthy, working as a Coolie earning
Rs.8,000/- per month and due to accidental injuries, he is
permanently disabled and has lost total sensation below
waist and his social and conjugal life has been destroyed.
It is contended that the petitioner has become wholly
dependent on others for all his activities and therefore, the
owner and insurer of the offending motorcycle are liable to
pay compensation to him. A case in Cr.No.22/2013 was
also registered by the City Market Traffic Police and charge
sheet was laid against the rider of the motorcycle.
3. On being served with the notice, respondent
No.2-Owner of the vehicle did not appear but however,
respondent No.1 appeared and filed written statement
resisting the claim of the petitioner. It was contended that
though the policy was issued, the liability is subject to
terms and conditions of the Policy and if there is any
violation on the part of the rider, then it is not liable to pay
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the compensation. It was contended that the
compensation claimed is highly exorbitant, imaginary and
untenable and that the accident had occurred due to the
negligence of the petitioner himself.
4. Appropriate issues were framed by the Tribunal
and the petitioner was examined as PW.1 and two other
witnesses were examined on his behalf as PWs.2 and 3
and got marked the documents as Exs.P1 to 20.
Respondent No.1-Insurance Company examined its official
as RW.1 and three other witnesses were also examined as
RWs.2 to 4 and Exs.R1 to 13 were marked.
5. After hearing both the sides, the Tribunal held
that the accident had occurred due to the negligence on
the rider of the motorcycle, the policy was in force as on
date of the accident, there were no violations on the terms
and conditions of the policy and as such, the Insurance
Company is liable to pay the compensation to the
petitioner. The Tribunal quantified the amount of
compensation at Rs.19,10,400/- under following heads:
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AMOUNT
PARTICULARS
(IN RS.)
Pain and suffering 80,000/-
Medical bills 1,43,000/-
Loss of future earning 8,06,400/-
Loss of amenities 1,20,000/-
Attendant Charges 3,84,000/-
Loss of conveyance, nourished food
62,000/-
and incidental expenses
Loss of comfort and inconvenience on
1,50,000/-
account of disability
Loss of marital life and conjugal
1,50,000/-
rights
Future medical expenses 15,000/-
TOTAL 19,10,400/-
6. Being aggrieved by the quantum of the
compensation awarded by the Tribunal, the petitioner is
before this Court seeking enhancement.
7. On issuance of notice, the respondent No.1-
Insurance Company has appeared through its counsel.
Arguments by both the sides were heard. The records of
the Tribunal have been secured.
8. The fact that accident occurred due to the
actionable negligence on the part of the rider of the
motorcycle, that it was duly insured by respondent No.1
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and that there were no violations on the terms and
conditions of the policy are undisputed. Respondent No.1
has not filed any appeal for having any grievance against
the findings of the Tribunal. The records reveal that the
petitioner has suffered severe injuries in the accident. The
records of the Sanjay Gandhi Hospital and Sevabhai
Hospital which are produced are at Exs.P8 and P9. These
records discloses that the petitioner was inpatient from
21.05.2013 till 10.06.2013 and he had undergone surgery.
The discharge summary would disclose that he had
sustained burst fracture with cord compression of L1
vertebra with paraplegia. The disability certificate
produced at Ex.P10 shows that he had sustained injuries
in a road traffic accident and there is a permanent
disability. The PW.2, who is an orthopaedic surgeon of
Sevabhai Hospital has stated about the injuries sustained
by the petitioner and the disability of the petitioner. It was
found by PW.2 that there is a total loss of sensation below
waist and there is no bladder control and therefore,
petitioner has to use catheter. He is bound to wheelchair
and therefore, he is unable to perform the normal
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functions as earlier. Ultimately, PW.2 has come to
conclusion that there is a disability to an extent of 90% of
both the lower limbs and the whole body disability comes
to around 70%. He also stated that the future treatment
cost may range from Rs.50,000/- to Rs.60,000/-.
9. The RW.3, who is the Assistant Surgeon of
Casualty Medical Officer at Sanjay Gandhi Hospital, who
was examined at the instance of the Insurance Company
has stated that the petitioner had taken only outpatient
treatment in the said hospital and it was only a first aid.
10. On the basis of the such evidence, there being
no material to show the income of the petitioner, the
Tribunal took the income of the petitioner at Rs.6,000/-
and the disability at 70% and calculated 'loss of future
earning' at Rs.8,06,400/-. It also awarded a sum of
Rs.2,000/- per month towards 'attendant charges' who
has to be engaged by the petitioner for lifelong.
11. Learned counsel appearing for the petitioner
would submit that the petitioner being a Coolie, has
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suffered 100% disability and the Tribunal erred in reducing
the disability to 70%. He further contended that the
notional income has also been taken by the Tribunal at
Rs.6,000/-, but it should have been taken on par with the
wages fixed under the Minimum Wages Act.
12. Per contra, learned counsel appearing for the
Insurance Company contends that the compensation
awarded by the Tribunal is adequate and there is no need
for enhancement of the compensation.
13. On a careful assessment of the available
records, it is evident that the petitioner has suffered
paraplegia below waist. He is bound to wheelchair and lost
bladder control. He being aged 35 years, a Coolie by
avocation, he is unable to eke out his livelihood for his
survival. It is evident that he is dependant on others for
every act of every day. Therefore, the functional disability
of the petitioner, undoubtedly is 100%.
14. The accident occurred on 20.05.2013. The
guidelines issued by the Karnataka State Legal Services
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Authority for settlement of disputes before the Lok-Adalat
prescribed a notional income of Rs.8,000/- per month for
the year 2013. In umpteen number of decisions, it has
been held that the guidelines issued by the KSLSA are in
general conformity with the wages fixed under the
Minimum Wages Act and therefore, the notional income of
the deceased is considered at Rs.8,000/- per month by
adding 40% towards 'future prospects', his monthly
income would be Rs.11,200/- (Rs.8000+Rs.3200).
Therefore, 'loss of future income' is calculated as
Rs.11,200/- X 12 X 16 = Rs.21,50,400/- by taking the
multiplier as '16' for the age of 35 years.
15. Learned counsel for the Insurance Company
would submit that grant of attendant charges is not
permissible since the disability is taken at 100%. This
Court concurs with the contention of the learned counsel
for respondent No.1-Insurance Company. It is pertinent to
note that the petitioner is bound to wheelchair and has
suffered paraplegia and over a period of time, it may not
be necessary for the petitioner to have the services of one
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attendant for lifelong. Therefore, the claim of attendant
charges lifelong is impermissible. However, during laid up
period, the petitioner is entitled for 'attendant charges,
conveyance etc.' and therefore, the same is assessed at
Rs.25,000/-.
16. The Tribunal has awarded a sum of Rs.80,000/-
towards 'pain and suffering', in a considered opinion of this
Court the same has to be enhanced to Rs.1,00,000/-. The
Tribunal has awarded a sum of Rs.1,20,000/- towards 'loss
of amenities', evidently, the petitioner has suffered
paraplegia and as such, has lost the mobility.
Consequently, the 'loss of amenities' is enhanced to
Rs.1,50,000/-. The Tribunal has awarded a sum of
Rs.1,50,000/- each under the heads of 'loss of comfort
and inconvenience on account of disability' and also 'loss
of marital life and conjugal rights'. Though the
compensation under the head of 'loss of marital life' is
sustainable, in view of granting compensation under the
head of 'loss of amenities in life', the 'loss of comfort and
inconvenience on account of disability' is unsustainable.
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17. The Tribunal has awarded a sum of Rs.15,000/-
towards future medical expenses overlooking the fact that
PW.2 has deposed that the petitioner may require a sum
of Rs.50,000/- for 'future medical expenses'. Hence, the
same is enhanced to Rs.50,000/-. The compensation
awarded under the head of 'medical expenses',
'conveyance, nourishment etc.' do not require any
modification.
18. Thus, the petitioner is entitled for the modified
compensation under different heads as below:
AMOUNT
PARTICULARS
(IN RS.)
Pain and suffering 1,00,000/-
Medical bills 1,43,000/-
Loss of future earning 21,50,400/-
Loss of amenities 1,50,000/-
Attendant Charges 25,000/-
Loss of conveyance, nourished
62,000/-
food and incidental expenses
Loss of comfort and inconvenience
-
on account of disability
Loss of marital life and conjugal
1,50,000/-
rights
Future medical expenses 50,000/-
TOTAL 28,30,000/-
Less awarded by Tribunal 19,10,400/-
Enhancement 9,20,000/-
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19. Thus, the petitioner is entitled for enhanced
compensation of Rs.9,20,000/- with interest and
therefore, the appeal deserves to be allowed in part.
Hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award passed by
the Tribunal is modified by awarding a sum of
Rs.9,20,000/- in addition to what has been awarded by
the Tribunal together with interest at 6% p.a. from the
date of petition till its deposit.
(iii) The respondent No.1/Insurance company is
directed to deposit the compensation amount within a
period of six weeks from the date of this order.
(iv) Rest of the order of the Tribunal stands
unaltered.
Sd/-
(C M JOSHI)
JUDGE
NR/-
