Allowed

K Bhopalan v. Akbar Ali

Karnataka HC7 Sept 2012MFA/8370/2010

Case brief

AI extract

What is this about?

The High Court allowed appeals filed by claimants seeking enhancement of compensation under the Motor Vehicles Act. The court held the earlier awards were insufficient and ordered additional sums for loss of dependency, non-pecuniary damages, medical expenses, and loss of amenities for the deceased and injured parties.

What did the court decide?

The judgment and award of the Tribunal were modified, and claimants were granted additional compensation ranging from approximately Rs. 7,000 to Rs. 94,000 each with 6% interest.

K Bhopalan Vs Akbar Ali — Insurance | Karnataka HC (2012)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7^TH DAY OF SEPTEMBER, 2012

¶3

BEFORE

¶4

THE HON’BLE MR. JUSTICE B. SREENIVASE GOWDA

¶5

M.F.A. NO.8370/2010 (MVC) C/W

¶6

M.F.A. NO.8375/2010 (MVC) M.F.A. NO.8373/2010 (MVC) M.F.A. NO.8372/2010 (MVC) M.F.A. NO.8371/2010 (MVC)

¶7

IN M.F.A. NO.8370/2010 (MVC)

¶8

BETWEEN

¶9

K BHOPALAN S/O KUTTIYAPPAN A/A 61 YEARS, AGRUCULTURIST R/O C/O SRINIVAS LAKKENAHALLI VILLAGE TARIKERE TALUK CHIKMAGALORE DISTRICT.

¶10

...APPELLANT

¶11

(BY SRI MANJAPPA N D, ADV.)

¶12

AND :

¶13

1 AKBAR ALI S/O B. MOHAMMED 33 YEARS DRIVER OF CANTER LORRY BEARING NO.KA-21/A-99

¶14

¶15

R/O PEECHA LAL MANE, BELTHANGADI, INDHU BETTA VILLAGE, BANGADI POST, SOUTH CANARA DISTRICT.

¶16

2 PUSUSHOTHAM S/O SHANTHA PUJARI, 46 YEARS, OWNER OF CANTER LORRY BEARING NO.KA-21/A-99 R/O SHANTHA NILAYA, NO.160/6 VITHOTU, HOSABETTY, MANGALORE.

¶17

3 NATIONAL INSURANCE COMPANY LIMITED SHANKAR BUILDING, MOSQUE ROAD, UDUPI

¶18

... RESPONDENTS (BY SRI B C SEETHARAMA RAO FOR R3 R2 SERVED R1 NOTICE DISPENSED WITH)

¶19

MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.05.2010 PASSED IN MVC NO.119/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶20

IN M.F.A. NO.8375/2010 (MVC)

¶21

BETWEEN -------------

¶22

K.KAVYA BHOPALAN D/O B KUMARESH A/A 11 YEARS, STUDENT REPRESENTED BY HER FATHER B.KUMARESH S/O K BHOOPALAN 35 YERS, R/O C/O SRINIVAS LAKKENAHALLI VILLAGE TARIKERE TALUK, CHIKMAGALORE DISTRICT.

¶23

...APPELLANT (BY SRI MANJAPPA N D, ADV.)

¶24

¶25

AND :

¶26

1 AKBAR ALI S/O B. MOHAMMED 33 YEARS DRIVER OF CANTER LORRY BEARING NO.KA-21/A-99 R/O PEECHA LAL MANE, BELTHANGADI, INDHU BETTA VILLAGE, BANGADI POST, SOUTH CANARA DISTRICT.

¶27

2 PUSUSHOTHAM S/O SHANTHA PUJARI, 46 YEARS, OWNER OF CANTER LORRY BEARING NO.KA-21/A-99 R/O SHANTHA NILAYA, NO.160/6 VITHOTU, HOSABETTY, MANGALORE.

¶28

3 NATIONAL INSURANCE COMPANY LIMITED SHANKAR BUILDING, MOSQUE ROAD, UDUPI

¶29

... RESPONDENTS

¶30

(BY SRI B C SEETHARAMA RAO FOR R3 R1 & R2 NOTICE DISPENSED WITH)

¶31

MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.05.2010 PASSED IN MVC NO.142/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶32

IN M.F.A. NO.8373/2010 (MVC)

¶33

BETWEEN

¶34

K.RENUKA W/O B KUMARESH A/A 27 YEARS

¶35

¶36

HOSUEWIFE R/O C/O SRINIVAS LAKKENAHALLI VILLAGE TARIKERE TALUK, CHIKMAGALORE DISTRICT.

¶37

...APPELLANT

¶38

(BY SRI MANJAPPA N D, ADV.) AND : ------

¶39

1 AKBAR ALI S/O B. MOHAMMED 33 YEARS DRIVER OF CANTER LORRY BEARING NO.KA-21/A-99 R/O PEECHA LAL MANE, BELTHANGADI, INDHU BETTA VILLAGE, BANGADI POST, SOUTH CANARA DISTRICT.

¶40

2 PUSUSHOTHAM S/O SHANTHA PUJARI, 46 YEARS, OWNER OF CANTER LORRY BEARING NO.KA-21/A-99 R/O SHANTHA NILAYA, NO.160/6 VITHOTU, HOSABETTY, MANGALORE.

¶41

3 NATIONAL INSURANCE COMPANY LIMITED SHANKAR BUILDING, MOSQUE ROAD, UDUPI

¶42

... RESPONDENTS

¶43

(BY SRI B C SEETHARAMA RAO FOR R3 R1 & R2 NOTICE DISPENSED WITH)

¶44

MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.05.2010 PASSED IN MVC NO.122/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶45

¶46

IN M.F.A. NO.8372/2010 (MVC)

¶47

BETWEEN

¶48

K.B. KUMARESH S/O K BHOOPALAN A/A 35 YEARS R/O C/O SRINIVAS LAKKENAHALLI VILLAGE TARIKERE TALUK, CHIKMAGALORE DISTRICT. ...APPELLANT

¶49

(BY SRI MANJAPPA N D, ADV.)

¶50

AND : ------

¶51

1 AKBAR ALI S/O B. MOHAMMED 33 YEARS DRIVER OF CANTER LORRY BEARING NO.KA-21/A-99 R/O PEECHA LAL MANE, BELTHANGADI, INDHU BETTA VILLAGE, BANGADI POST, SOUTH CANARA DISTRICT.

¶52

2 PUSUSHOTHAM S/O SHANTHA PUJARI, 46 YEARS, OWNER OF CANTER LORRY BEARING NO.KA-21/A-99 R/O SHANTHA NILAYA, NO.160/6 VITHOTU, HOSABETTY, MANGALORE.

¶53

3 NATIONAL INSURANCE COMPANY LIMITED SHANKAR BUILDING, MOSQUE ROAD, UDUPI ... RESPONDENTS (BY SRI B C SEETHARAMA RAO FOR R3 R1 & R2 NOTICE DISPENSED WITH)

¶54

MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.05.2010 PASSED IN

¶55

¶56

MVC NO.121/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶57

IN M.F.A. NO.8371/2010 (MVC)

¶58

BETWEEN

¶59

K.B. KUMARESH S/O K BHOOPALAN A/A 35 YEARS R/O C/O SRINIVAS LAKKENAHALLI VILLAGE TARIKERE TALUK, CHIKMAGALORE DISTRICT. ...APPELLANT

¶60

(BY SRI MANJAPPA N D, ADV.) AND :

¶61

1 AKBAR ALI S/O B. MOHAMMED 33 YEARS DRIVER OF CANTER LORRY BEARING NO.KA-21/A-99 R/O PEECHA LAL MANE, BELTHANGADI, INDHU BETTA VILLAGE, BANGADI POST, SOUTH CANARA DISTRICT.

¶62

2 PUSUSHOTHAM S/O SHANTHA PUJARI, 46 YEARS, OWNER OF CANTER LORRY BEARING NO.KA-21/A-99 R/O SHANTHA NILAYA, NO.160/6 VITHOTU, HOSABETTY, MANGALORE.

¶63

3 NATIONAL INSURANCE COMPANY LIMITED SHANKAR BUILDING, MOSQUE ROAD, UDUPI

¶64

... RESPONDENTS

¶65

¶66

(BY SRI B C SEETHARAMA RAO FOR R3 R1 & R2 NOTICE DISPENSED WITH)

¶67

MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.05.2010 PASSED IN MVC NO.120/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, TARIKERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶68

¶69

THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

¶70

J U D G M E N T

¶71

These appeals are by the claimants seeking enhancement of compensation awarded by the Tribunal.

¶72

Heard, the appeals are admitted and with

¶73

the consent of learned counsel appearing for parties,

¶74

they are taken up together for final disposal.

¶75

For the sake of convenience, the parties are

¶76

referred to as they are referred to in the claim petitions before the Tribunal.

¶77

¶78

As there is no dispute regarding death of the deceased Janakamma, minor child Gokul and injuries sustained by 3 persons namely B.K.Kumaresh, K.Renuka and K.Kavya in a road traffic accident occurred on 17.11.2009 due to rash and negligent driving of the canter lorry bearing registration No.KA-21-TA-99 by its driver and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:

¶79

“Whether quantum of compensation awarded by the Tribunal in these cases is just and reasonable or does it call for enhancement?”

¶80

After hearing the learned counsel

¶81

appearing for parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal in these cases are not just and reasonable, they are on the lower side and hence they are required to be enhanced.

¶82

¶83

IN M.F.A. NO.8370/2010 (MVC 119/2009)

¶84

6. It is a case of death of one Janakamma

¶85

aged about 54 years at the time of her death in the accident as evident from the post mortem report Ex.P6. The claim petition is filed by her husband seeking compensation under Section 166 of MV Act. The claimant in support of his contention that his deceased wife was a housewife and earning a sum of Rs.7,000/- per month, except examining himself as PW-1 has not produced any documents establishing the income of the deceased. There is no merit in the submission of the learned counsel for the insurer that the claimant-husband is not the dependent legal representative of the deceased-wife. With regard to assessing the income of the deceased, the deceased being a housewife was managing the entire internal affairs of the family and service contributed by her towards family if it is calculated in terms of money it would be not less than Rs.4,000/- per month and

¶86

¶87

therefore the service contributed by her towards family cannot be ignored and it is assessed at Rs.4,000/- per month as against Rs.1,500/- per month assessed by the Tribunal. It is just and proper to deduct 50% of the income of the deceased towards her personal expenses and remaining 50% of her income has to be taken as contribution to family. The multiplier of ‘9’ has to be applied based on the age of the husband, who is 60 years. Therefore, the ‘loss of dependency’ works out to Rs.2,16,000/- (4000 x 1/2 x 9 x 12) and it is awarded as against Rs.1,32,000/awarded by the Tribunal.

¶88

Further, it is just and proper to award a sum of Rs.10,000/- towards ‘loss of consortium’, Rs.10,000/- towards ‘transportation of dead body and funeral expenses’ and Rs.5,000/- towards ‘medical and incidental expenses’ and it is awarded as against Rs.15,000/- awarded by the Tribunal towards ‘conventional heads’.

¶89

¶90

8. The claimant is entitled for the following

¶91

compensation:-

¶92

	PARTICULARS	Rs.
1	Loss of Dependency	216,000
2	Loss of consortium	10,000
3	Transportation of dead body and funeral expenses	10,000
4	Medical and incidental expenses	5,000
	TOTAL	2,41,000
	Compensation awarded by the Tribunal	1,47,000
	BALANCE	94,000

¶93

Thus, the claimant is entitled for an additional compensation of Rs.94,000/with

¶94

interest at 6% p.a. from the date of claim petition till the date of realisation. From which, Rs.50,000/- with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 3 years with a right of option to withdraw interest periodically. Remaining amount with

¶95

¶96

proportionate interest is ordered to be released in favour of the claimant.

¶97

IN M.F.A. NO.8371/2010 (MVC 120/2009)

¶98

It is a case of death of Gokul, male minor child aged about 9 months at the time of his death in the accident as evident from the post mortem report Ex.P-10. The father of the deceased child filed a claim petition under Section 166 of MV Act seeking compensation. The father of the child was examined as PW-2. In the case of R.K.MALIK & ANR. v. KIRAN PAL & ORS. reported in 2009 SCW 4381, for the death of a minor child a sum of Rs.2,25,000/- is awarded (Rs.1,50,000/- is awarded towards ‘loss of dependency’’ and Rs.75,000/- is awarded towards non-pecuniary damages).

¶99

In the instant case also, the notional income of the child can be taken at Rs.15,000/- p.a. Out of which, 1/3^rd has to be deducted towards

¶100

¶101

personal expenses and 2/3^rd of it has to be taken towards family contribution and multiplier of ‘15’ has to be applied. Therefore, “loss of dependency” works out to Rs.1,50,000/- (15,000x2/3x15) and it is awarded. In addition to that, a sum of Rs.75,000/- is awarded towards ‘non-pecuniary damages’.

¶102

The claimant is entitled for the following

¶103

compensation:-

¶104

	PARTICULARS	Rs.
1	Loss of Dependency	1,50,000
2	Non pecuniary damages	75,000
	TOTAL	2,25,000
	Compensation awarded by the Tribunal	1,55,000
	BALANCE	70,000

¶105

Thus, the claimant is entitled for an

¶106

additional compensation of Rs.70,000/with

¶107

interest at 6% p.a. from the date of claim petition till the date of realisation. From which, Rs.50,000/- with proportionate interest is ordered to be invested in

¶108

¶109

fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 8 years renewable once in 2 years with a right of option to withdraw interest periodically. Remaining amount with proportionate interest is ordered to be released in favour of the claimant.

¶110

IN M.F.A. NO.8372/2010 (MVC 121/2009)

¶111

The claimant is one B.Kumaresh. As per wound certificate Ex.P-12, he has sustained grievous injury to scalp. The injuries sustained by the claimant are supported by oral evidence of the claimant examined as PW-3. The claimant has not examined any doctor regarding disability.

¶112

Considering the nature of injuries, Rs.30,000/- awarded by the Tribunal towards ‘pain and suffering’ is just and proper and there is no scope for enhancement under this head.

¶113

¶114

The claimant has produced medical bills for Rs.1,250/-. He was treated as inpatient for one day in KMC, Manipal. Considering the nature of injuries and duration of treatment, a sum of Rs.5,000/is awarded towards ‘medical and incidental expenses’ as against Rs.1,250/- awarded by the Tribunal.

¶115

The claimant claims to be a business man and earning a sum of Rs.10,000/- per month, but the same is not established by producing any documents. In the absence of proof of income, considering his age as 34 years and year of accident as 2009, his income could be assessed at Rs.4,000/- per month. The nature of injuries suggest that he must have been under rest and treatment for a period of 2 months and therefore a sum of Rs.8,000/- is awarded towards ‘loss of income during laid up period’.

¶116

¶117

Although the claimant has not examined any doctor regarding the nature of injuries sustained and disability, the Tribunal considering the nature of injuries indicated in the wound certificate has awarded a sum of Rs.20,000/- towards ‘loss of amenities’, the same is just and proper and there is no scope for enhancement under this head.

¶118

In the absence of evidence of doctor regarding disability and its impact on the future earning of the claimant, he is not entitled for compensation under the head “loss of future income”.

¶119

The claimant is entitled for the following

¶120

compensation:-

¶121

	HEADS	Rs.
1	Pain and sufferings	30,000
2	Medical Expenses	5,000
3	Loss of income during laid up period	8,000
4	Loss of amenities	20,000
	TOTAL	63,000
	LESS:Compensation awarded by the Tribunal	51,250

¶122

¶123

BALANCE 11,250

¶124

Thus, the claimant is entitled for an additional compensation of Rs.11,250/with interest at 6% p.a. from the date of claim petition till the date of realisation. The same is ordered to be released in favour of the claimant.

¶125

IN M.F.A. NO.8373/2010 (MVC 122/2009)

¶126

The claimant is one K.Renuka. As per wound certificate Ex.P-15, she has sustained grievous injury over the nose and right eyelid. The injuries sustained by the claimant are supported by oral evidence of the claimant examined as PW-4. The claimant has not examined any doctor regarding disability.

¶127

Considering the nature of injuries, Rs.30,000/- awarded by the Tribunal towards ‘pain

¶128

¶129

and suffering’ is just and proper and there is no scope for enhancement under this head.

¶130

The claimant has produced medical bills for Rs.1,030/-. She was treated as inpatient for one day in KMC, Manipal. Considering the nature of injuries and duration of treatment, a sum of Rs.3,000/is awarded towards ‘medical and incidental expenses’ as against Rs.1,030/- awarded by the Tribunal.

¶131

The claimant claims to be a housewife. Considering her age as 26 years and year of accident as 2009, the service contributed to her family as a housewife in terms money her income is assessed at Rs.3,000/- per month. The nature of injuries suggest that she must have been under rest and treatment for a period of 2 months and therefore a sum of Rs.6,000/- is awarded towards ‘loss of income during laid up period’.

¶132

¶133

Although the claimant has not examined any doctor regarding disability, the Tribunal considering the nature of injuries indicated in the wound certificate has awarded a sum of Rs.20,000/towards ‘loss of amenities’, the same is just and proper and there is no scope for enhancement under this head.

¶134

In the absence of evidence of doctor regarding disability and its impact on future earning of the claimant, she is not entitled for compensation under the head “loss of future income”.

¶135

The claimant is entitled for the following compensation:-

¶136

	HEADS	Rs.
1	Pain and sufferings	30,000
2	Medical Expenses	3,000
3	Loss of income during laid up period	6,000
4	Loss of amenities	20,000
	TOTAL	59,000
	LESS: Compensation awarded	51,030

¶137

¶138

by the Tribunal BALANCE 7,970

¶139

Thus, the claimant is entitled for an additional compensation of Rs.7,970/- with interest at 6% p.a. from the date of claim petition till the date of realisation. The same is ordered to be released in favour of the claimant.

¶140

IN M.F.A. NO.8375/2010 (MVC 142/2009)

¶141

The claimant is one K Kavya. As per wound certificate Ex.P-19, she has sustained joint displacement of hand and other simple injuries all over the body. The injuries sustained by the claimant are supported by oral evidence of the claimant examined as PW-5. The claimant has not examined any doctor regarding disability.

¶142

Considering the nature of injuries, Rs.30,000/- awarded by the Tribunal towards ‘pain

¶143

¶144

and suffering’ is just and proper and there is no scope for enhancement under this head.

¶145

The claimant has produced medical bills

¶146

for Rs.924/-. She was treated as inpatient for one day in KMC, Manipal. Considering the nature of injuries and duration of treatment, a sum of Rs.3,000/- is awarded towards ‘medical and incidental expenses’ as against Rs.924/- awarded by the Tribunal.

¶147

The claimant is a minor girl aged about 10 years at the time of accident. Considering that she was looked after by her parents during her treatment period by leaving their regular work, it is just and proper to award a sum of Rs.5,000/- towards ‘'loss of income of the parents during laid up period' and it is awarded.

¶148

Although the claimant has not examined any doctor regarding disability, the Tribunal considering the nature of injuries indicated in the

¶149

¶150

wound certificate has awarded a sum of Rs.20,000/towards ‘loss of amenities’, the same is just and proper and there is no scope for enhancement under this head.

¶151

In the absence of evidence of doctor regarding disability and its impact on future earning of the claimant and considering that she is a minor girl aged 10 years, she is not entitled for compensation under the head “loss of future income”.

¶152

The claimant is entitled for the following compensation:-

¶153

	HEADS	Rs.
1	Pain and sufferings	30,000
2	Medical and incidental expenses	3,000
3	Loss of income during laid up period	5,000
4	Loss of amenities	20,000
	TOTAL	58,000
	LESS:Compensation awarded by the Tribunal	50,924
	BALANCE	7,076

¶154

¶155

Thus, the claimant is entitled for an

¶156

additional compensation of Rs.7,076/- with interest at 6% p.a. from the date of claim petition till the date of realisation. The same with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office till she attains majority with a right of option for the natural guardian, father to withdraw interest periodically.

¶157

¶158

Accordingly, the appeals are allowed-inpart. The judgment and awards passed by the Tribunal are modified to the extent stated herein above. The claimants in MFA 8370/10, 8371/10, 8372/10, 8373/10, 8375/10 are entitled for additional compensation of Rs.94,000/-,

¶159

Rs.70,000/-, Rs.11,750/-, Rs.7,970/- and Rs.7,076/- respectively with interest at 6% p.a.

¶160

¶161

from the date of claim petition till the date of realisation.

¶162

The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment.

¶163

No order as to costs.

¶164

Sd/JUDGE

¶165

K Bhopalan v. Akbar Ali

Case brief

What is this about?

What did the court decide?

K Bhopalan v. Akbar Ali

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

G S Ashwath Narayana @ Ashwathappa Vs the Regional Manager the Oriental Insurance

B R Ramesh Vs United India Insurance Co. Ltd.

Sri Mallikarjuna S/O Venkatappa Vs Sri Anbu S/O Ramappa

Mohammed Ziaulla M Vs Gopal H

Sri Venkatesh Babu Vs Sri Vijaya Kumar

Chikkanna Vs the New India Assurance Co. Ltd.