Partly allowed

Kumari Neela D/O Basalingappa Nyamagouda, v. Suresh S/O Mallikarjun Kurle

Karnataka HC7 Jan 2019MFA.CROB/830/2013

Case brief

AI extract

What is this about?

This judgment addressed several miscellaneous appeals and cross-objections regarding the quantum of compensation in motor accident claim cases. The High Court enhanced compensation for pain, loss of dependency, and mental agony while dismissing arguments for excessive awards in other claims.

What did the court decide?

Compensation enhanced in two matters; appeal on quantum allowed in grievous injury case, appeal on liability dismissed in death case, cross-objections partly allowed.

Kumari Neela D/O Basalingappa Nyamagouda, Vs Suresh… — Consumer Protection | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 07^TH DAY OF JANUARY, 2019

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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M.F.A. NO.24418 OF 2012 (MV) C/W M.F.A.NO.24419 OF 2012 (MV) M.F.A.CROB.NO.829 OF 2013 (MV) M.F.A.NO.24420 OF 2012 (MV) M.F.A.CROB.NO.830 OF 2013 (MV)

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IN M.F.A. NO.24418 OF 2012 (MV)

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BETWEEN :

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DIVISIONAL MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD., SUNDARAM TOWERS, 44 & 45 WHITES ROAD, CHENNAI, PRESENT ADDRESS: SUBRAMANYA BUILDING, 2^ND FLOOR, NO.1, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600002, REPRESENTED BY ZONAL MANAGER. (BY SRI. S.S.JOSHI, ADVOCATE)

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... APPELLANT

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AND :

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SURESH S/O. MALLIKARJUN KURLE, AGE: MAJOR, OCC: BUSINESS, R/O. PARVATI NILAYA, RAJPUT GALLI,

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INDI ROAD, BIJAPUR, (OWNER OF VEHICLE BEARING REG.NO.KA-28/A-8125)

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BASAVARAJ S/O. MALLAPPA GHATINATTI @ TELI, AGE: MAJOR, OCC: SERVICE R/O. 94/3, NRI LAYOUT, 4^TH CROSS, KALAKERI, HORAMAVU, BANGALORE-43, (OWNER OF VEHICLE BEARING REG.NO.KA-53/N-4707)

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DIVISIONAL MANAGER, BAJAJ ALLIANCE INSURANCE CO. LTD., MADIWALE ARCADE, CLUB ROAD, BELGUAM.

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SMT. LAXMIBAI W/O. MALLAPPA TELI, AGE: 70 YEARS, OCC: NIL R/O 445, DEVARAJ URS COLONY, BASAVANAKUDACHI, BELGAUM.

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... RESPONDENTS

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(BY SRI KAPIL S MALAVI, ADVOCATE, FOR R1 : R.2SERVED, BY SRI RAVINDRA R.MANE ADVOCATE FOR R.3, BY SRI S.M.KALWAD, ADVOCATE FOR R.4)

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THIS MISCELLANEOUS APPEAL FILED U/S 173(1) OF M.V.ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 23-04-2012 PASSED IN M.V.C.NO.1755/2010 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND MEMBR, ADDITIONAL M.A.C.T., BELGAUM.

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IN M.F.A.NO.24419 OF 2012 (MV)

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BETWEEN :

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DIVISIONAL MANAGER, ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD., SUNDARAM TOWERS, 44 & 45 WHITES ROAD, CHENNAI,

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PRESENT ADDRESS: SUBRAMANYA BUILDING, 2^ND FLOOR, NO.1, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600002, REPRESENTED BY ZONAL MANAGER.

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... APPELLANT

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(BY SRI. S.S.JOSHI, ADVOCATE)

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AND :

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SURESH S/O. MALLIKARJUN KURLE, AGE: MAJOR, OCC: BUSINESS R/O. PARVATI NILAYA, RAJPUT GALLI, INDI ROAD, BIJAPUR, (OWNER OF VEHICLE BEARING REG.NO.KA-28/A-8125).

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BASAVARAJ S/O. MALLAPPA GHATINATTI @ TELI AGE: MAJOR, OCC: SERVICE R/O. 94/3, NRI LAYOUT, 4^TH CROSS, KALAKERI, HORAMAVU, BANGALORE (OWNER OF VEHICLE BEARING REG.NO.KA-53/N-4707).

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DIVISIONAL MANAGER, BAJAJ ALLIANCE INSURANCE CO. LTD., MADIWALE ARCADE, CLUB ROAD, BELGUAM.

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KUMARI NEELA D/O. BALACHANDRA NYAMAGOUDA, AGE: 25 YEARS, OCC: STUDENT (NOW MARRIED), R/O. BANGALORE, NOW RESIDING AT: 445, DEVRAJ URS COLONY, BASAVANAKUDACHI, BELGAUM.

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... RESPONDENTS

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(BY SRI KAPEEL S. MALAVI, ADVOCATE, FOR R1: NOTICE TO R.2 –SERVED, BY SRI R.R.MANE, ADVOCATE FOR R.3, BY SRI S.M.KALWAD, ADVOCATE FOR R.4)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1) OF M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED 23.04.2012 PASSED IN M.V.C.NO.1757/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL M.A.C.T., BELGAUM.

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IN M.F.A.CROB. NO. 829 OF 2013 (MV) IN MFA NO.24418/2012 (MV)

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BETWEEN :

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SMT. LAXMIBAI W/O MALLAPPA TELI, AGE: 71 YEARS, OCC: HOUSEWIFE, NOW NIL, R/O: 445, DEVARAJ URS COLONY, BASAVANKUDACHI, BELGAUM.

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... CROSS-OBJECTOR

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(BY SRI S.M.KALWAD, ADVOCATE)

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AND :

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SURESH S/O MALLIKARJUN KURLE, AGE: MAJOR, OCC: BUSINESS, R/O: PARVATI NILAYA, RAJPUT GALLI, INDI ROAD, BIJAPUR.

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DIVISIONAL MANAGER, ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, SUNDARAM TOWERS, 45 & 46, WHITES ROAD, CHENNAI-600 014.

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BASAVARAJ S/O MALLAPPA GHATINATTI @ TELI, AGE: MAJOR, OCC: SERVICE, R/O: 94/3, NRI LAYOUT, 4^TH CROSS, KALAKERI, HORAMAVU, BANGALORE-43.

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THE DIVISIONAL MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO., LTD.,

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MADIWALE ARCADE, CLUB ROAD, BELGAUM.

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... RESPONDENTS

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(N0TICE TO R1 & R3 -DISPENSED WITH: BY SRI S.S.JOSHI, ADVOCATE FOR R2, BY SRI S.K.KAYAKMATH, ADVCOATE FOR R.4)

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THIS M.F.A.CROB IS FILED UNDER ORDER 41 RULE 22 READ WITH SECTION 151 OF CIVIL PROCEDURE CODE, PRAYING THIS COURT TO MODIFY THE JUDGMENT AND AWARD DATED 23.04.2012 MADE IN M.V.C.NO.1755/2010 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T. BELGAUM AND ENHANCE THE COMPENSATION BY DISMISSING THE APPEAL FILED BY THE RESPONDENT NO.2.

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IN M.F.A. NO 24420 OF 2012

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BETWEEN :

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DIVISIONAL MANAGER, ROYAL SUNDARAM ALLIANCE INSURANCE COMPANYLTD SUNDARAM TOWERS, 44 & 45 WHITES ROAD, CHENNAI, PRESENT ADDRESS: SUBRAMANYA BUILDING, 2^ND FLOOR, NO.1, CLUB HOUSE ROAD, ANNASALAI, CHENNAI-600002, REPRESENTED BY ZONAL MANAGER.

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... APPELLANT

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(BY SRI. S. S. JOSHI, ADVOCATE)

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AND :

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SURESH S/O. MALLIKARJUN KURLE, AGE: MAJOR, OCC: BUSINESS R/O. PARVATI NILAYA, RAJPUT GALLI, INDI ROAD, BIJAPUR, (OWNER OF VEHICLE BEARING

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REG.NO.KA-28/A-8125).

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BASAVARAJ S/O. MALLAPPA GHATINATTI @ TELI AGE: MAJOR, OCC: SERVICE, R/O. 94/3, NRI LAYOUT, 4^TH CROSS, KALAKERI, HORAMAVU, BANGALORE-43 (OWNER OF VEHICLE BEARING REG.NO.KA-53/N-4707).

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DIVISIONAL MANAGER, BAJAJ ALLIANCE INSURANCE CO. LTD., MADIWALE ARCADE, CLUB ROAD, BELGUAM.

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KUMARI NEELA D/O. BALACHANDRA NYAMAGOUDA AGE: 25 YEARS, OCC: STUDENT (NOW MARRIED), R/O BANGALORE, NOW RESIDING AT: NO. 445, DEVARAJ URS COLONY, BASAVANAKUDACHI, BELGAUM

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BASALINGAPPA S/O. NANDEEPPA NYAMAGOUDA, AGE: 54 YEARS, OCC: SERVICE R/O. YESHWANTPUR, BANGALORE.

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... RESPONDENTS

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(BY SRI KAPIL S.MALAVI, ADVOCATE, FOR R1 : NOTICE TO R.2-DISPENSED WITH: BY SRI RAVINDRA R MANE, ADVOCATE FOR R.3, BY SRI S.M.KALWAD, ADVCOATE FOR R.4 & R.5)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1) OF M.V. ACT, AGAINST THE JUDGMENT AND AWARD DATED 23-04-2012 PASSED IN M.V.C.NO.1754/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL M.A.C.T., BELGAUM.

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IN MFA.CROB NO 830 OF 2013 (MV) IN MFA.NO.24420/2012 (MV)

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BETWEEN :

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KUMARI NEELA D/O BASALINGAPPA NYAMAGOUDA, AGE: 26 YEARS, OCC: STUDENT, R/O: 445, DEVARAJ URS COLONY, BASAVANKUDACHI, BELGAUM.

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BASALINGAPPA S/O NANDEEPPA NYAMAGOUDA, AGE: 57 YEARS, OCC: SERVICE, R/O: YESHAWANTHPUR, BANGALORE.

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... CROSS-OBJECTORS

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(BY SRI. S. M. KALWAD, ADVOCATE)

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AND :

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SURESH S/O MALLIKARJUN KURLE, AGE: MAJOR, OCC: BUSINESS, R/O: PARVATI NILAYA, RAJPUT GALLI, INDI ROAD, BIJAPUR.

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DIVISIONAL MANAGER, ROYAL SUNDARAM ALLIANCE INSURANCE CO., LTD., SUNDARAM TOWERS, 45 & 46, WHITES ROAD, CHENNAI-600 014.

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BASAVARAJ S/O MALLAPPA GHATINATTI @ TELI, AGE: MAJOR, OCC: SERVICE, R/O: 94/3, NRI LAYOUT, 4^TH CROSS, KALAKERI, HORAMAVU, BANGALORE-43.

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THE DIVISIONAL MANAGER, BAJAJ ALLIANZ GENERAL

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INSURANCE CO., LTD., MADIWALE ARCADE, CLUB ROAD, BELGAUM.

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... RESPONDENTS

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(NOTICE TO R1, R3 & R4-DISPENSED WITH : BY SRI S.S.JOSHI, ADVOCATE FOR R.2)

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THIS M.F.A.CROB IS FILED UNDER ORDER XLI RULE 22 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE PRAYING THIS COURT TO SET ASIDE THE JUDGMENT AND AWARD DATED 23.04.2012 MADE IN M.V.C.NO.1754/2010 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL M.A.C.T. BELGAUM AND ENHANCE THE COMPENSATION BY DISMISSING THE APPEAL FILED BY THE RESPONDENT NO.2.

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THESE APPEALS AND CROSS-OBJECTIONS COMING ON FOR FINAL HEARING, THIS DAY, BELLUNKE A.S. J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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M.F.A.No.24418/2012, M.F.A.No.24419/2012 M.F.A.No.24420/2012, MFA CROB.No.829 /2013 and MFA.CORB No.830/2013 have been filed against the judgment and awards dated 23.04.2012 passed in MVC.Nos.1755, 1757, 1754 of 2010 by the Principal Senior Civil Judge and Additional M.A.C.T. Belgaum (for short ‘Tribunal’)

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The appeals have been filed by Royal Sundaram Alliance Insurance Company who is the

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insurer of vehicle bearing No.KA.28/A-8125

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questioning the liability as well as the quantum of compensation awarded by the Tribunal. The cross objections have been filed by the respective claimants for enhancement of compensation awarded by the Tribunal.

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There was another appeal in M.F.A.No.24417/2013 and MFA.CROB No.832/2013 against the judgment and award passed in MVC.No.1556/2010 on the file of the Principal Senior Civil Judge and MACT, Belagavi. That award was also arising out of the same accident. The very same insurance company had questioned the legality and correctness of the said award. The claimant had also filed cross objection seeking enhancement of compensation. The above said Miscellaneous First Appeal and Cross Objection have been dismissed by a Co-ordinate Bench of this Court by judgment dated 06.01.2014. In the said cases it was held that there was no

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contributory negligence and the award of

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compensation by the Tribunal was just and proper.

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In view of the dismissal of MFA No.24417/2012 C/w MFA CROB.No.832/2013, the learned counsel for the insurance company has fairly submitted that M.F.A.No.24419/2010 and M.F.A.No.24420/2012 are to be dismissed on that aspect. Therefore only M.F.A.No.24418/2012 is to be decided with regard to the legality and correctness of the quantum of compensation awarded by the Tribunal.

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The parties are referred to as per their ranks before the Tribunal.

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Brief facts leading to the filing of

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appeals and cross objections are as under :-

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It is the case of the claimants that, on 27.02.2010, the claimants and deceased Sarojini W/o Basalingappa Nyamagouda were proceeding in Mahindra Xylo car bearing registration

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No.KA.53/N-4707 to visit Srisaila Mallikarjuna Temple and the said vehicle was driven by its driver Madiwalar and was going on BagalkotHunagund Road. At that time, a truck bearing registration No.KA-28/A-8125 came from Hunagund towards Bagalkot driven by its driver in a rash and negligent manner and dashed the Xylo car and caused the accident.

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In the accident, the petitioners in MVC.No.1755/2010 and MVC.No.1757/2010 sustained grievous injuries. Accordingly, they filed claim petitions claiming compensation of Rs.50,00,000/each and the daughter and husband of the deceased Smt.Sarojini as her legal representatives filed MVC.No.1754/2010 claiming compensation of Rs.20,00,000/-.

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The respondent – insurance company appeared before the Tribunal and filed objections and contested the case. The claim petitions were resisted by the insurance company contending that

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the accident was due to rash and negligent act of the driver of Mahendra Xylo vehicle bearing Registration No.KA.53/N-4707 and he is also a contributor to the said accident.

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The Tribunal based on the pleadings of the parties framed the following issues :

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Issues in MVC.No.1755/2010 & MVC.No.1757/2010

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Whether the petitioner proves that the alleged accident in question was occurred due to rash and negligent driving of driver of truck bearing No.KA.28/A-8125 and the petitioner sustained injuries as alleged?

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Whether the truck bearing No.KA.28/A.8125 was validly insured with the respondent No.2 and the driver of said truck was holding valid D.L.?

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Whether the petitioner is entitled for compensation? If so, for what amount?

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What award or order?

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Issues in MVC.No.1754/2010

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Whether the petitioners prove that the alleged accident in question was occurred due to rash and negligent driving of driver of truck bearing No.KA.28/A-8125 and the deceased sustained fatal injuries and died as alleged?

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Whether the truck bearing No.KA.28/A.8125 was validly insured with the respondent No.2 and the driver of said truck was holding valid D.L.?

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Whether the petitioners are entitled for compensation? If so, for what amount?

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What award or order?

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After conducting trial, the Tribunal

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answered the aforesaid issues in all the cases as follows :

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Issue No.1: In all the above said cases in the affirmative.

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Issue No.2: In all the above said cases in the affirmative.

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Issue No.3: in MVC.No.1755/2010 : Petitioner is entitled for the total

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compensation of Rs.17,20,077/- from the respondent No.2 with interest @ 6% p.a. from the date of petition till realization.

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Issue No.3: In MVC.No.1757/2010 : Petitioner is entitled for the total compensation of Rs.1,33,625/- from the respondent No.2 with interest @ 6% p.a. from the date of petition till realization.

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Issue No.3: MVC.No.1754/2010 Petitioners are entitled for the total compensation of Rs.2,16,000/- from the respondent No.2 with interest @ 6% p.a. from the date of petition till realization.

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The compensation awarded in aforesaid

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cases by the Tribunal is as under :-

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In MVC.No.1755/20 Painand suffering	10 Rs.40,000/-
Medical expenses & Ancillary Expenses (R.9,23,756+1,03,600/- =10,32,356/-	Rs.10,32,356/-
Attendant expenses	2,70,000/-
Loss of future income due to disability	Rs.1,08,000/-
Loss of amenities & future unhappiness	Rs.1,00,000/-
Futuremedicalexpenses	Rs.1,50,000/-
Miscellaneous expenses	Rs.19,721/-
Total	Rs.17,20,077/-

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In MVC.No.1757/2010
Pain and suffering	25,000/-
Medical expenses & Ancillary expenses (Rs.7,225+2,000/-)	9,225/-
Loss of income during treatment period	13,500/-
Loss of future income due to disability	45,900/-
Loss of amenities & future unhappiness	40,000/-
Total	Rs.1,33,625/-

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In MVC.No.1754/201	0
Loss of Estate 54,000x 14 x 25%	1,89,000/-
Loss of Love and affection	10,000/-
Funeral & Transportation	7,000/-
Loss ofconsortium	10,000/-
Total	Rs.2,16,000/-

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Now the appellant insurance company in

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all the three appeals has questioned the compensation awarded by the Tribunal on the following grounds:

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a) It is contended that the awards passed by the learned Tribunal in all the claim petitions are capricious, contrary to law and evidence available on record.

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b) The Tribunal has not properly appreciated the evidence on record and it has not

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considered the objection raised by the Insurance Company in all the claim petitions.

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c) The Tribunal wrongly assessed the

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compensation payable to the claimants in all the claim petitions.

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d) Insofar as MFA No.24418/2012 (MVC.No.1755/2010) is concerned, it is contended that the Tribunal has wrongly awarded medical expenses without taking into consideration that there was medical reimbursement to the son of the petitioner. The ancillary expense awarded by the Tribunal is also without any basis. The compensation of Rs.2,70,000/- awarded towards attendant charges etc., is based on a hypothetical assumption. Absolutely, there was no evidence to award the said sum. The Tribunal erred in awarding Rs.19,721/towards miscellaneous expenses. The Tribunal has not properly appreciated the disability alleged to have been suffered by the petitioner and wrongly assessed

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evidence of doctor and hence, the award of Rs.1,08,000/- towards earning capacity is liable to be set aside. The Tribunal has not considered the age of the injured petitioner. Award made on other heads is also excessive.

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b) Insofar as MFA No.24419/2012 (in MVC.No.1757/2010) is concerned, it is contended that the Tribunal has erred in appreciating the evidence of PW.6, the petitioner in MVC.No.1757/2010 who claimed to be a student and assessed the value of her service without any documentary proof at Rs.150/- per day and Rs.4,500/- per month. It is contended that there is negligence on the part of the driver of the Xylo vehicle who came in the middle of the road. The fixing of liability entirely on the first respondent is illegal. The Tribunal has not appreciated the evidence of PW.6. The Tribunal has wrongly assessed the quantum of compensation payable. The Tribunal ought not to have awarded

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Rs.45,900/- towards loss of future income due to disability. PW.6 admitted that now she is married and her husband is working in KEB. The Tribunal wrongly assessed the compensation on the head of loss of amenities.

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(b) Insofar as the appellant in MFA No.24420/2012 (In MVC.No.1754/2010) is concerned, it is contended that the Tribunal has not properly appreciated Ex.P.3 and P.4. The Tribunal has wrongly assessed the compensation payable on all the heads. The Tribunal has not appreciated the law laid down by the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, reported in 2009 ACJ 1298 .

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Hence, the appellant has prayed – Royal Sundaram Alliance Insurance Company to allow all the appeals.

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The cross objector in MFA.CROB.No.829 /2013 in MFA.No.24418/2012 (MVC.No.1755/

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has sought for enhancement of compensation awarded by the Tribunal on following grounds:

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(a) Tribunal has erred in taking the permanent disability at 40% to whole body without considering the fact that claimant was completely bedridden and required a permanent attendant for her routine household work. Her disability has affected her whole body function as she is unable to move from bed. She underwent operations thirteen times. Hence the Tribunal ought to have taken 100% disability instead of 40%.

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(b) The Tribunal has not appreciated Ex.P.29 and the evidence of PW.3, and thereby has wrongly awarded meager compensation of Rs.1,50,000/- as against Rs.5,65,000/- on the head of future medical expenses.

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(c) The Tribunal has wrongly assessed monthly salary of the maid servant Smt.Padmavathi. She was appointed by the petitioner through Adi Raksha Services on Rs.150/- per day, at Rs.4,500/- per month. The Tribunal awarded meager compensation of Rs.2,70,000/-. The said maid servant filed an affidavit as she is getting monthly salary of Rs.8,000/-.

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(d) The Tribunal erred in awarding medical expenses at Rs.9,23,756/instead of Rs.12,41,119/-.

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(e) The Tribunal wrongly assessed the age of the victim as 68 as against 65 mentioned in the wound certificate. However, ancillary compensation awarded at Rs.1,08,600/- is held to be correct.

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(f) The Tribunal ought to have awarded interest at the rate of 9% per annum. Hence, the

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cross objector – claimant prayed to allow the cross objection and enhance the compensation to Rs.50,00,000/- from Rs.17,20,077/-.

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The cross objectors in

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MFA.CROB.No.830/2013 in MFA.No.24420/2012 (MVC.1754/2010) , have sought for enhancement of compensation awarded by the Tribunal on following grounds:

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(a) The Tribunal erred in awarding compensation towards loss of dependency and in view of decision of Division Bench of this Court, the Cross Objector No.2 is entitled for loss of dependency in addition to the income of Rs.4,500/- p.m. already taken by the Tribunal since he has lost his wife. However, the Tribunal has awarded compensation of Rs.1,89,000/towards loss of estate taking income of Rs.4,500/- and thereby deducted 25% out of the total income of deceased by awarding compensation under the head of loss of estate.

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(b) The Tribunal has awarded a meager compensation of Rs.27,000/under the conventional heads.

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(c) The Tribunal ought to have awarded interest at the rate of 9% per annum. Hence, the cross objectors – claimants prayed to allow the cross objection and enhance the compensation.

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Upon hearing both sides in respect of all the above matters, the following points would arise for our consideration.

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1) Whether appellant in MFA No.24418/2012, MFA No.24419/2012 and MFA No.24420/2010 prove that, the compensation awarded by the Tribunal in MVC.No.1755/2010, MVC.No.1557/ 2010 and MVC.No.1754/2010 is excessive?

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2) Whether the cross-objectors in MFA.CROB. No.829/2013 and MFA.CROB.No.830/2013 prove that the compensation awarded by the Tribunal is inadequate and it is to be enhanced? If yes, what is the quantum to which claimants are entitled?

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3) What order?

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Our findings on the above said points

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are as follows:

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Point No.1 : In the negative.

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Point No.2 : Partly affirmative.

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Point No.3 : As per the final order.

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We have heard the learned counsel for

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the respective parties in all the appeals and cross objections and perused the material on record and award passed by the Tribunal in all the claim petitions.

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M.F.A.No.24418/2012 C/w MFA.CROB.No.829/2013

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Firstly, we discuss in respect of appeal in M.F.A.No.24418/2012 along with Cross Objection No.829/2013. The appeal as well as cross objection arise out of MVC.No.1755/2010. In MVC.No.1755/2010, the Tribunal had assessed the compensation payable to the injured claimant as under:

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Pain and suffering	Rs.40,000/-
Medical expenses & Ancillary Expenses (R.9,23,756+1,03,600/- =10,32,356/-	Rs.10,32,356/-
Attendant Expenses	Rs.2,70,000/-
Loss of future income due to disability	Rs.1,08,000/-
Loss of amenities & future unhappiness	Rs.1,00,000/-
Future medical expenses	Rs.1,50,000/-
Miscellaneous expenses	Rs.19,721/-
Total	Rs.17,20,077/-

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After hearing both sides and on perusal of the evidence on record and the compensation awarded by the Tribunal, we find that compensation awarded to the petitioner on the head ‘pain and suffering’ is on lower side. Having regard to the nature of the injury described in the wound certificate of the injured claimant as per Ex.P.13, we find that compensation is liable to be enhanced, as the petitioner has suffered 1) fracture of shaft of femur middle 3^rd left side 2) comminuted fracture of trachanter with post

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dislocation of right hip joint, 3) type III A compound fracture of dislocation of right wrist joint, 4) degloving injury scalp start from frontal side degloving upto occipital region and 5) lacerated wound 6 x 3 cms muscle deep post cut aspect of left forearm L/3^rd .

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Medical evidence is also available of the doctor PW-2. Therefore we enhance the compensation on the head of pain and suffering from Rs.40,000/- to Rs.70,000/-.

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On perusal of the award of compensation on the head of medical expenses and ancillary expenses, the Tribunal has awarded a sum of Rs.10,32,356/- as against claim of the claimant for Rs.12,41,119/-. It is not in dispute that a sum of Rs.3,17,363/- was reimbursed to the son of the claimant who claimed medical reimbursement from his employer. Also considering the award made on the other heads like loss of future income due to disability, loss of

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amenities and future unhappiness, future medical expenses and miscellaneous expenses etc., we find that the award is just and proper hence petitioner is entitled for additional compensation of Rs.30,000/only on the head of pain and suffering. The enhanced compensation shall carry interest at the rate of 6% per annum.

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At the outset, learned counsel for the insurance company has submitted that having regard to the judgment passed by a co-ordinate Bench of this Court in MFA.No.24417/2012 connected with MFA.CROB.No.832/2013 dated 06.01.2014, the insurance company does not press the appeal on the question of liability and that the submission would be made only on the question of quantum of compensation awarded by the Tribunal by seeking reduction of the same. It is submitted that the judgment passed in MFA.No.24417/2012 and MFA.CROB.No.832/2013 arise from the very same accident.

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Therefore, point No.1 is answered in

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negative and accordingly, MFA.No.24418/2012 is dismissed. Point No.2 is answered partly in the affirmative and accordingly Crob No.829/2013 is allowed in part in the aforesaid terms.

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I.A.No.1/2018 is accordingly disposed

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off.

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M.F.A.No.24419/2012

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The appeal is filed by the Insurance Company. We have perused the appeal memo in MFA No.24419/2012. On hearing the arguments of appellant’s counsel, it is found that absolutely there is no merit in the case to interfere with the judgment and award passed by the Tribunal in MVC.No.1757/2010.

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The claimants have also not preferred any Cross objection for enhancing the compensation. On reassessing the material evidence available on record, we find that there is

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no merit in the appeal and it is liable to be dismissed. Accordingly MFA.No.24419/2018 is dismissed.

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M.F.A.No.24420/2012 C/w MFA CROB.No.830/2013

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The appeal in M.F.A.No.24420/2012

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along with Cross Objection No.830/2013 arise out of award in MVC.No.1754/2010. In MVC.No.1754/ 2010, the Tribunal had assessed the compensation

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payable to the injured petitioner as under:

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Loss of Estate 54,000x14x25%	Rs.1,89,000/-
Loss of Love and affection	Rs.10,000/-
Funeral & Transportation	Rs.7,000/-
Loss of consortium	Rs.10,000/-
Total	Rs.2,16,000/-

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In all, a sum of Rs.2,16,000/- has been awarded to the claimants for the death of wife of petitioner No.2 and mother of petitioner No.1.

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The deceased was said to be a

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housewife, aged about 45 years as on the date of death on 27.02.2010. The Tribunal considering the age of the deceased adopted multiplier of 14

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and held that the petitioners are entitled for loss of estate upto 25% as the loss of dependency. The income of the was deceased assessed at Rs.54,000/- per annum, which was multiplied by 14 multiplier and 25% of the same towards loss of dependency i.e., Rs.1,89,000/- has been awarded.

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No doubt, the petitioner husband was a police officer and the daughter was married but they cannot be denied compensation. Though they are not the dependants, they are entitled for compensation on the head of loss of estate on account of death of wife of the second petitioner and mother of the first petitioner.

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As per the decision reported in 2010 (9) SCC 218, in the case of Royal Sundaram Alliance Vs. Master Manmeet Singh and others

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the loss on account of death of the deceased is to be assessed at Rs.3,000/- per month as the husband is now required to engage a help. The age of the husband is to be taken into consideration

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for the multiplier to be applied. He was 54 years at the time of the accident. Therefore, multiplier 11 is applicable. The loss on account of death of the deceased is Rs.36,000 per annum and the same multiplied by 11, a total compensation payable to the petitioner on the head of loss of dependency would come to Rs.3,96,000/- (3000x12x11=396000/-). Further on the head of loss of love and affection Rs.40,000/- can be granted. Compensation on the head of funeral expenses and transportation of dead body can be restricted to Rs.15,000/-. On the head of loss of spousal consortium Rs.40,000/- can be awarded . Therefore, total compensation payable to the petitioners would be Rs.4,91,000/-. Thus, cross objectors in MFA CROB No.830/2013 are entitled for enhancement of compensation. The appellant insurance company has failed to prove that the compensation awarded by the Tribunal is excessive. On the other hand it is found to be not just compensation. The just compensation payable

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is Rs.4,91,000/- with interest at the rate of 6% as awarded by the Tribunal is affirmed.

¶221

At the outset, learned counsel for the insurance company has submitted that having regard to the judgment passed by the co-Ordinate Bench of this Court in MFA.No.24417/2012 connected with MFA.CROB.No.832/2013 dated 06.01.2014, the insurance company does not press the appeal on the question of liability and that the submission would be made only on the question of quantum of compensation awarded by the Tribunal by seeking reduction of the same. It is submitted that the judgment passed in MFA.No.24417/2012 and MFA.Crob.No.832/2013 arise from the very same accident.

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Therefore, point No.1 is answered in the negative and accordingly, MFA.No.24420/2012 is dismissed. Point No.2 is answered partly in the affirmative and accordingly Crob No.830/2013 is allowed in part in the aforesaid terms.

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The appellant insurer shall deposit the enhanced compensation within a period of six weeks from the date of receipt of a certified copy of this judgment.

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Memo for withdrawal of the amount is disposed off permitting the claimants to withdraw the amount to be deposited before the Tribunal.

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Enhanced compensation shall carry interest at the rate of 6% per annum.

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Directions regarding apportionment and deposit issued by the Tribunal shall follow even in respect of enhanced compensation. MFA.Crob. No.830/2013 is partly allowed

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Enhanced compensation shall be paid to the claimant-husband and that compensation of Rs.40,000/- only towards loss of filial love and affection shall paid to the married daughter of deceased.

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