Karnataka High Court

Mr Nisar Pasha vs The Manager Iffco-Tokio General ... on 6 January, 2025

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                           NC: 2025:KHC:150
                                                      MFA No. 5196 of 2021




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                      DATED THIS THE 6TH DAY OF JANUARY, 2025
                                          BEFORE
                    THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                   MISCELLANEOUS FIRST APPEAL NO.5196 OF 2021 (MV-I)
              BETWEEN:
                    MR.NISAR PASHA
                    S/O.SHEK BASHA SAB
                    AGED ABOUT 49 YEARS
                    R/AT PALYA KANNAMANGALA
                    DEVANAHALLI TALUK
                    BENGALURU RURAL DISTRICT-562 110
                                                                 ...APPELLANT
              (BY SRI K.V.NAIK, ADVOCATE)
              AND:
              1.    THE MANAGER
                    IFFCO-TOKIO GENERAL
                    INSURANCE COMPANY LTD.
                    KSCMF BUILDING, 3RD FLOOR
                    3RD BLOCK, CUNNINGHAM ROAD
                    BENGALURU-560 052
                    POLICY BY ITS OFFICE IN
                    POLICY NO.M1840429
Digitally           DATE OF VALIDITY FROM
signed by B         01/07/2018 TO 30/06/2019
LAVANYA
Location:     2.    M/S.ITC LIMITED
HIGH
COURT OF            MEENAKUNTE VILLAGE
KARNATAKA           JALA HOBLI
                    BENGALURU-562 157
                                                           ...RESPONDENTS
              (BY SRI B.C.SHIVANNE GOWDA, ADVOCATE FOR R-1;
                  NOTICE TO R-2 IS DISPENSED V/O. DATED 21.11.2022)

                     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
              SECTION     173(1)   OF   THE   MOTOR   VEHICLES   ACT,   1988
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                                           NC: 2025:KHC:150
                                      MFA No. 5196 of 2021




PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
05.08.2021 PASSED IN MVC.NO.2599/2019 BY C/C XXII
ADDITIONAL SMALL CAUSES JUDGE AND ACMM, COURT OF
SMALL CAUSES, BENGALURU.


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


CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR

                      ORAL JUDGMENT

This appeal is preferred by the appellant-claimant

challenging the judgment and award dated 05.08.2021

passed in MVC.No.2599/2019 by the Court of C/c XXII

Additional Small Causes Judge and ACMM, Court of Small

Causes, Bengaluru (for short 'the tribunal'). The appeal is

preferred on the premise of inadequate and meager

compensation awarded by the tribunal.

2. Though this matter is listed for admission, with

consent of learned counsels for both parties, it is taken up

for final disposal.

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

their status before the tribunal.

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4. Brief facts of the case are as under:

On 30.03.2019 at about 5.00 p.m., the claimant was

riding his motor cycle bearing registration No.KA-01-EN-

4496 on B.B.Road, NH-7 slowly and cautiously by

observing traffic Rules and Regulations. When the claimant

reached Hosur Flyover, a car bearing registration No.KA-

50-M-0934 driven by its driver came with high speed and

in a rash and negligent manner and dashed against his

motor cycle. Due to which, the claimant fell down and

sustained grievous injuries and he was shifted to Ashwini

Hospital, where he took first aid treatment and thereafter,

he was shifted to HOSMAT Hospital. It is stated that he

has spent a sum of Rs.5,00,000/- towards medical,

nourishment and miscellaneous expenses. Hence, he filed

a claim petition seeking compensation.

4.1 On service of notice, the respondents appeared

and filed written statement denying the claim of the

claimant by taking a plea that the accident was occurred

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due to the negligence of the claimant himself and sought

for dismissal of the claim petition.

4.2 On the basis of pleadings, the tribunal framed

relevant issues for consideration.

4.3 In order to substantiate the issue and to

establish the case, the claimant got examined himself as

PW.1 and the Doctor as PW.2 and got marked documents

from Exs.P1 to P24. On the contrary, the respondents

neither examined any witness nor got marked any

document.

4.4 On the basis of material evidence produced by

the parties, the tribunal awarded the compensation of

Rs.4,00,000/- with interest @ 9% p.a. and ordered that

respondent Nos.1 and 2 shall jointly and severally pay the

compensation.

4.5 Being aggrieved by the meager compensation

amount awarded by the tribunal, the claimant is before

this Court seeking enhancement of compensation.

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5. It is the vehement contention of learned counsel

for appellant-claimant that the judgment and award

passed by the tribunal is arbitrary, illegal and contrary to

the materials placed on record. It is further contended that

the tribunal has not awarded any compensation towards

loss of future income due to disability except awarding

Rs.40,000/- as a total compensation under this head. The

tribunal has also awarded meager compensation towards

loss of amenities. The tribunal has failed to take into

consideration the disability at 49% to the left lower limb

and 17% to the whole body and also the difficulty,

disadvantage and loss of earning capacity due to the

injuries suffered by the claimant in the accident. Hence, he

seeks to enhance the compensation.

6. Per contra, learned counsel for respondent-

Insurance Company vehemently contends that the

judgment and award does not call for interference, as just

and reasonable compensation is awarded by the tribunal,

taking into consideration the magnitude of injuries,

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avocation of the claimant and also the disability that may

interfere with future earning capacity. It is also contended

by learned counsel for Insurance Company that on other

heads, the tribunal has awarded reasonable compensation.

In fact, the interest component awarded is on the higher

side and in case, this Court were to enhance the

compensation on any of the heads, the interest component

be reduced to 6% p.a. rather than 9% p.a. Hence, he

seeks dismissal of the appeal.

7. Having heard learned counsel for appellant-

claimant and learned counsel for respondent-Insurance

Company, the point that would arise for consideration is -

"Whether the appellant-claimant is entitled for enhancement of compensation?"

8. The answer to the above point is partly in the

affirmative for the reasons stated hereinbelow:

The occurrence of accident, involvement of vehicle

and injuries suffered by the claimant due to the accident,

are proved and established. Therefore, the negligence is

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rightly attributed against the driver of the offending

vehicle.

9. Now coming to the aspect of age, avocation,

income and appropriate multiplier to be adopted, it is seen

that the claimant was aged 47 years as on the date of

occurrence of accident and he was running a business.

Though he has stated that he was earning a sum of

Rs.30,000/- per month, no cogent material has been

produced to show the income of the claimant. Considering

the nature of injuries suffered by the claimant, the tribunal

has taken the income of the claimant at Rs.10,000/- per

month. However, no amount is awarded towards loss of

future earning capacity. The notional income chart of the

Legal Services Authority prescribes Rs.14,000/- per month

for the accident of the year 2019. The same is taken as

the income of the claimant in the present case.

10. The claimant has got examined the Doctor as

PW.2, who was opined that there is a disability of 49% to

the left lower limb and 17% to the whole body. Though

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PW.2-Doctor, who is an Orthopaedic Surgeon at HOSMAT

Hospital, is not a treated Doctor, he has provided his

expert medical opinion with regard to disability suffered by

the claimant. However, nothing contrary has been

established in the cross-examination by the respondent-

Insurance Company. In the present case on hand,

considering the age and avocation of the claimant, it is not

possible that a person having suffered disability to an

extent of 49% to the left lower limb or 17% to the whole

body as assessed by the Doctor, would not have any

economic and functional disability in performing his day to

day business activities. Be it, an avocation of just sitting

in at one place and doing business.

11. Under the circumstance, though nothing much is

elicited in the evidence of the claimant, this Court is of the

opinion that 12% could be taken as disability for loss of

future earning capacity of the claimant. In view of the fact

that the claimant was aged 47 years, the appropriate

multiplier would be applicable in the present case on hand

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is '13'. Therefore, the claimant would be entitled to

Rs.2,62,080/- (Rs.14,000/- x 12 x 13 x 12%) towards

loss of future earning capacity as against Rs.40,000/-

awarded by the tribunal.

12. The tribunal awarded Rs.2,85,000/- towards

medical expenses, which does not call for interference and

the same is retained as it is on the actual expenditure

incurred by the claimant.

13. The tribunal awarded Rs.5,000/- towards

attendant, extra nutritious food and conveyance charges,

which does not call for interference and the same is

retained.

14. The tribunal awarded Rs.20,000/- towards pain

and suffering. However, this Court deems it appropriate to

award additional sum of Rs.10,000/-. In all, the claimant

is entitled to Rs.30,000/- under this head.

15. The tribunal has not awarded any amount

towards loss of income during laid up period. In view of

this Court enhancing the income of the claimant from

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NC: 2025:KHC:150

Rs.10,000/- to Rs.14,000/- and he would require atleast

three months period to recuperate and to get back to his

normal day to day activities, the claimant would be

entitled to Rs.42,000/- (Rs.14,000/- x 3) under this

head.

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

future amenities and happiness. However, this Court

deems it appropriate to award additional sum of

Rs.10,000/-. In all, the claimant is entitled to

Rs.35,000/- under this head.

17. The tribunal awarded Rs.25,000/- towards future

medical expenses, which does not call for interference and

the same is retained.

18. Learned counsel for respondent-Insurance

Company contends that in view of this Court enhancing

the compensation under the head loss of future earning

capacity, interest component would be reduced to 6% p.a.

rather than 9% p.a. I am in agreement with learned

counsel for appellant that respondent-Insurance Company

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is not in appeal and the interest component is retained at

9%. In view of this Court enhancing the compensation

under the head loss of future earning capacity, this Court

deems it appropriate to award interest component at 6%

p.a. on the enhanced compensation.

19. In view of the above, the claimant would be

entitled to a total compensation of Rs.6,84,080/- as

against Rs.4,00,000/- as mentioned in the table below:

                Heads                     Amount in Rs.
Loss of future earning capacity              2,62,080-00
Medical expenses                             2,85,000-00
Attendant, extra nutritious food and            5,000-00
conveyance charges
Pain and suffering                                 30,000-00
Loss of income during laid-up period               42,000-00
Loss of future amenities and                       35,000-00
happiness
Future medical expenses                            25,000-00
                TOTAL                           6,84,080-00

20. Accordingly, I pass the following: