Allowed

Shri Ashish Billore S/O K v. Billore v the Karnataka Government

Karnataka HC7 Dec 2020MFA/3833/2012

Case brief

AI extract

What is this about?

This First Appeal allowed enhancement of motor accident compensation awarded by the Tribunal. The High Court recognized the claimant's actual income via an IBM offer letter but adjusted the final award to reflect partial inability to pay for treatment-pertinents while granting relief for pain, suffering, amenities, and lost leave.

What did the court decide?

Enhanced compensation of Rs. 3,00,000/ with 6% p.a. interest; insurer to deposit enhanced amount within one month.

Shri Ashish Billore S/O K v Billore Vs the Karnataka… — Motor Accident Claims | Karnataka HC (2020)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 07^TH DAY OF DECEMBER 2020

¶3

BEFORE

¶4

THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY

¶5

MISCELLANEOUS FIRST APPEAL NO.3833 OF 2012 (MV-I)

¶6

BETWEEN:

¶7

SHRI ASHISH BILLORE S/O K.V. BILLORE, AGED ABOUT 35 YEARS, R/AT NO.2191, 1ST FLOOR, 3RD CROSS, B.M. KAVAL, HAL 3RD STAGE, BANGALORE-560075.

¶8

... APPELLANT

¶9

(BY SRI. SHRIPAD V. SHASTRI, ADVOCATE)

¶10

AND:

¶11

THE KARNATAKA GOVERNMENT INSURANCE DEPARTMENT OFFICE, VISHVESHWARAYA CENTRE, BANGALORE BY ITS MANAGER.

¶12

THE EXECUTIVE ENGINEER B.W.S.S.B., 10TH MAIN ROAD, 2ND STAGE, INDIRANAGAR, BANGALORE.

¶13

… RESPONDENTS

¶14

¶15

(BY SRI. H.K.BASAVRAJ, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.1; SERVICE OF NOTICE TO RESPONDENT NO.2 IS DISPENSED WITH VIDE COURT ORDER DATED 23.04.2014)

¶16

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 21.11.2011 PASSED IN MVC NO.8953/2009 ON THE FILE OF XI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶17

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED THE FOLLOWING:

¶18

JUDGMENT

¶19

Though this appeal is listed for admission, since

¶20

the records of the Tribunal are received, the appeal is taken up for final disposal with the consent of the counsel for the parties.

¶21

This appeal is filed by the claimant seeking enhancement of the compensation awarded by the

¶22

¶23

Small Causes Court, Bengaluru City (SCCH-12) in MVC No.8953/2009.

¶24

The parties shall henceforth be referred to as they were arrayed before the Tribunal.

¶25

The claim petition discloses that on 22.10.2009, the claimant who was employed as a Service Advisory Software Engineer at IBM was riding his motor cycle bearing Registration No.KA-03-EF-6889 in Sathya nagar. When he reached the I.O.C Fly over in Banaswadi, Bengaluru at about 10.30 a.m., a lorry bearing Registration No.KA-04-A-9514 (henceforth referred to as an offending vehicle) was driven from the opposite direction in a rash and negligent manner and ended up dashing against the claimant. The claimant fell down and sustained grievous injuries and was shifted to Kamal Nursing Home, where he was administered first aid and then shifted to Hosmat Hospital. He was thereafter shifted to Sita Bhateja

¶26

¶27

Hospital for further treatment. He contended that as a result of the accident, he could not attend to work and

¶28

was deprived of his ability to earn his livelihood. He therefore filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of a sum of Rs.14,00,000/- from the owner and insurer of the offending vehicle.

¶29

The insurer of the offending vehicle

¶30

contested the claim petition and denied the accident as also the age, avocation and income and the injuries suffered by the claimant. It contended that the accident was due to the negligence on the part of the claimant. However, it did not dispute the fact that the offending vehicle was covered by a policy of the insurer, which was in force from 24.06.2009 to 23.06.2010.

¶31

¶32

The owner of the offending vehicle claimed

¶33

that the offending vehicle was covered by a policy of insurance and therefore, he was not liable to pay the compensation. With these contentions, the claim petition was set down for trial. The claimant was examined as PW.1 and the doctor who treated the claimant was examined as PW.2 and he got marked Exs.P1 to P18. The owner as well as the insurer did not lead any evidence and did not mark any documents.

¶34

The Tribunal considered the documentary evidence in the form of FIR, Complaint, the Charge sheet, wound certificate etc and held that the driver of the offending vehicle was negligent and was responsible for the accident. In so far as the injuries sustained by the claimant, it noticed from Ex.P6, which is discharge summary issued by Hosmat Hospital that the claimant had suffered the following injuries:

¶35

“Fracture 4^th , 5^th Carpometa Carpel dislocation of the right hand.

¶36

¶37

Fracture lateral end right clavicle.

¶38

Brachial plexus injury right.

¶39

Cut lacerated right hand with ulna artery exposed.”

¶40

The Tribunal noticed that the claimant was

¶41

admitted at Hosmat Hospital on 22.10.2009 and discharged on 26.10.2009. During his admission at Hosmat Hospital, the claimant had undergone surgery for K-wire fixation of lateral end right clavicle and K- wire fixation of 4^th and 5^th carps Meta carpel. It also noticed from Ex.P13 that the claimant was admitted at Sita Bhateja Hospital on 18.11.2009 and discharged on 20.11.2009 during which time, the K-wire were removed. The Tribunal noticed the evidence of PW.2 that the fractures had united but the claimant continued to suffer from residual brachial plexus disability and had a sensation loss on the right 4^th and 5^th fingers and had difficulty in writing. The Tribunal

¶42

¶43

also noticed that the claimant could not ride his two wheeler as he could not grip the accelerator and could not lift heavy weights or backpacks. The tribunal noticed the evidence of PW.2 that the disability to the whole body was 23%.

¶44

In so far as the income of the claimant is

¶45

concerned, the tribunal noticed that the claimant had received an offer letter from IBM which indicated his annual pay package as Rs.12,00,000/-. Ex.P9 is the identity card of the claimant issued by IBM which indicated that he was employed with IBM with employee Number as 788883. The Tribunal held that though the claimant claimed that his monthly salary was a sum of Rs.1,05,094/- he had not placed on record any material to establish the same. Hence, the Tribunal considered the notional monthly income of the claimant at a sum of Rs.5,000/- and the disability at 10% and awarded the following compensation:

¶46

¶47

(Amount in Rupees)

¶48

Pain and Sufferings 20,000/-
Loss of income during 12,000/-
treatment
Period
Medical Expenses 7,000/-
Loss of permanent 96,000/-
disability
Loss of amenities 10,000
Attendant charges, 5,000
conveyance,
Nourishment and diet
etc
Total 1,50,000/-

¶49

Being aggrieved by the quantum of

¶50

compensation awarded by the Tribunal, the claimant is in appeal and contended that pursuant to the offer letter issued by the IBM, the claimant had accepted the offer and had reported to work which is evident from the identity card issued by IBM. He therefore, contended that the Tribunal ought to have considered the income of the claimant at a sum of Rs.12,00,000/- p.a. as set

¶51

¶52

out in the offer letter. He also contended that the disability was to the extent of 23% as assessed by the doctor to whole body and therefore, the Tribunal arbitrarily considered the disability at 10%. He contended that he being a computer professional, the disablement of his right hand had deprived him of his dexterity in as much as he had lost the sensation of touch and could not control his movement of right hand. Therefore, he contended that the Tribunal ought to have assessed the disability at 23%. He also relied upon Ex.P17 which is a letter issued by IBM approving the leave of the claimant for the term 01.09.2009 to 30.09.2009 and contended that he had lost the leave that he had accumulated, which must have been quantified in terms of money. Hence, he prayed that the compensation awarded by the Tribunal be revised.

¶53

Per contra, the counsel for the insurer contended that in the absence of any material to show

¶54

¶55

the actual income, the Tribunal was justified in considering the notional income at a sum of Rs.5,000/and awarding the compensation of a sum of Rs.1,50,000/-.

¶56

I have perused the records of the Tribunal and it is noticed that the claimant had indeed received

¶57

an offer letter from IBM which indicated the annual remuneration at a sum of Rs.12,00,000/-. Ex.P9 is the identity card of the claimant which indicates that he had reported to duty and that IBM had generated his employment Number as 788883. Therefore, there is material evidence to indicate that the claimant was earning a sum of Rs.1,00,000/- p.m. In so far as the disability is concerned, the evidence of PW.2 is categorical in the sense, he had deposed that the injury suffered by the claimant had deprived him of the sensation in the right 4^th and 5^th fingers and that he had difficulty in writing. He had also difficulty in riding

¶58

¶59

a two wheeler because he could not have a tight grip. It is noticed that the claimant had not placed on record any material proof to show that he had lost any income during the period of treatment and or he had lost any income due to the disability suffered or that he had lost his employment due to the disability. However, the Tribunal could not have ignored the fact that the claimant was under treatment for more than two months. The Tribunal therefore could not have ignored the amount of pain and agony undergone by the claimant as well as the loss of amenities and the attendant charges for the claimant. In view of the same, though the claimant is not entitled to any compensation for the loss of income during period of treatment or due to the disability but yet, the claimant was entitled to enhanced compensation towards pain and suffering and loss of amenities. Furthermore, when the claimant is employed in a private organization, it is quite probable that the leave granted could have consumed the

¶60

¶61

available casual leave and or the earned leave. Since, there is no positive evidence in this regard, however having regard to human experience, the claimant is entitled to be compensated towards it. Hence, the impugned judgment and award passed by the Tribunal deserves interference by awarding Rs.80,000/- towards pain and suffering and a sum of Rs.40,000/- towards loss of amenities and a sum of Rs.15,000/- towards attendant charges, conveyance, nourishment etc., and a sum of Rs.50,000/- towards the notional value of the leave availed. Hence, the compensation of Rs.1,50,000/- awarded by the Tribunal is enhanced by a sum of Rs.1,50,000/- and consequently, the insurer is liable to pay a sum of Rs.3,00,000/- to the insurer along with interest at the rate of 6% p.a. from the date of claim petition till the date of realization. Insurer shall deposit the enhanced compensation within a period of one month.

¶62

¶63

Accordingly, the appeal is allowed in part.

¶64

Sd/- JUDGE

¶65

HB/-

Shri Ashish Billore S/O K v. Billore v the Karnataka Government

Case brief

What is this about?

What did the court decide?

Shri Ashish Billore S/O K v. Billore v the Karnataka Government

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri S N Anantharam Vs Sri R Girish

The Manager United India Insurance Vs Prema

Shrinidhi Vs the Branch Manager Icici Lambard

The Divisional Manager Vs Sri Eshappa

The Divisional Manager Vs Smt Geetha

Sri. V.N. Ramamurthy Vs the Honble Arbitrator (NH-7)