Partly allowed

Sri. D Niranjanamurthy v. the New India Insurance Company Ltd.

Karnataka HC19 Nov 2020MFA/5434/2017

Case brief

AI extract

What is this about?

High Court enhanced compensation in a motor vehicle accident claim by 9% permanent disability found. Court awarded future loss of earnings totaling Rs.2,68,887/-, modifying the Tribunal's award of Rs.1,10,400/- and dismissing insurance company's plea of total recovery.

What did the court decide?

Compensation enhanced to Rs.2,68,887/- with interest at 6% per annum from date of claim till realization.

Sri. D Niranjanamurthy Vs the New India Insurance… — Specific Performance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF NOVEMBER, 2020

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PRESENT

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THE HON'BLE MRS. JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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MFA.NO.5434 OF 2017(MV-I)

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BETWEEN:

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SRI. D NIRANJANAMURTHY S/O DURGAPPA AGED ABOUT 37 YEARS R/O 5TH CROSS NEAR SUNNADA GUMMI JOGIMATTI ROAD

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NOW R/O SHANTHI NILAYA NEAR RMR CHOULTRY HOLALKERE ROAD CHITRADURGA TALUK-577 501 CHITRADURGA DISTRICT

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....APPELLANT

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(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)

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AND:

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1 . THE NEW INDIA INSURANCE COMPANY LTD., OPP APMC ROAD B.D.ROAD CHITRADURGA-577 501

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REP BY ITS BRANCH MANAGER

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2 . SRI. NAGABHUSHANA S/O MAHALINGAPPA MAJOR AGE NOT KNOWN TO THE APPELLANT R/O JOGIMATTI ROAD CHITRADURGA TALUK-577 501 CHITRADURGA DISTRICT

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….RESPONDENTS

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(BY SRI. O. MAHESH FOR R1 VIDE ORDER DTD:06.12.2018, NOTICE TO R2 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.02.2017 PASSED IN MVC NO.1267/2015 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHITRADURGA PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned appeal is filed by the claimant questioning the judgment and award passed in MVC.No.1267/2015 seeking enhancement of

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compensation.

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The facts leading to the case are as under:

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The appellant/claimant filed claim petition by

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contending that on 31.12.2015 at about 10.30 p.m. while appellant/claimant and his wife were proceeding

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towards M.G.Circle in an auto rickshaw bearing Reg.No.KA-16-8862, near S.B.M.Circle, the driver of

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the said auto rickshaw drove the same in a rash and negligent manner, at that juncture, a dog suddenly appeared in front of the auto rickshaw and the driver of the auto rickshaw tried to evade the dog and in the process, lost control and caused the accident. The appellant/claimant contended that on account of the said accident, he sustained grievous injuries and took

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treatment at Government Hospital, Chitradurga. The appellant/claimant further contended that he was aged about 35 years as on the date of accident and was working as a driver and was also working as a cook and earning a sum of Rs.10,000/- p.m. Hence, filed claim petition claiming compensation of Rs.25,00,000/-.

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The respondent No.2/Insurance Company on

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receipt of summons, filed written statement and stoutly denied the entire averments made in the claim petition.

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Based on the rival contentions, the Tribunal formulated the following issues:

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"1) Whether petitioner proves that, he has sustained injuries in the R.T.A. occurred on 31-12-2015 at about 10-30 p.m., near SBM circle, B.D.Road, Chitradurga, due to rash and negligent manner of auto rickshaw

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bearing registration No.KA-16-8862 by its driver?

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2) Whether the petitioner is entitled for compensation? If so, how much and from whom?

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3) What order or award?"

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The appellant/claimant in support of his

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contention examined himself as PW.1 and examined the Doctor as PW.2 and to corroborate ocular evidence

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produced documentary evidence vide Exs.P-1 to P-14. The respondent No.2/Insurance Company has not lead in any rebuttal evidence.

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The Tribunal answered issue No.1 in the affirmative by holding that the driver of the auto rickshaw was rash and negligent and has caused the accident. The Tribunal held that the appellant/ claimant has totally recovered and though disability certificate is produced, the Doctor examined on behalf of the appellant/claimant has admitted in unequivocal

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terms that appellant/claimant has totally recovered and is capable of driving the vehicle. In this background, it appears that the Tribunal has not awarded any compensation under the head of future loss of earnings. The Tribunal, in all, has awarded total compensation of Rs.1,10,400/-.

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The appellant/claimant being aggrieved by the quantum of compensation awarded by the Tribunal is before this Court.

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Learned counsel appearing for the appellant/claimant would vehemently argue and contend before this Court that there is clinching medical evidence on record to indicate that appellant/claimant is suffering from 9% permanent disability. In that view of the matter, he would submit to this Court that Tribunal erred in not awarding any compensation under the head of future loss of earnings.

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Per contra, learned counsel appearing for the respondent No.1/Insurance Company would

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vehemently argue and contend before this Court that the Doctor who has been examined as PW.2 has stated in unequivocal terms that the

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appellant/claimant has totally recovered from the accidental injuries and is capable to drive the vehicle and the Tribunal was justified is not awarding any compensation under the head of future loss of earnings. Learned counsel for the Insurance Company submits that the compensation awarded under the different heads is fair and just and there is no scope for enhancement.

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We have heard learned counsel appearing for the appellant/claimant and learned counsel appearing for the respondent No.1/Insurance Company.

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On re-assessing the entire evidence on record, it is the specific case of the appellant/claimant

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that appellant/claimant has sustained fracture of left humerus and has undergone fixation of implantation of ORIF plates and screws. The Doctor who is examined as PW.2 has opined that the appellant/claimant has disability to the extent of 9%. If this medical evidence is taken into consideration, we are of the view that the Tribunal was not justified in ignoring the disability assessed by PW.2. Having regard to the nature of injuries, the appellant/claimant is bound to have some disability and the same would affect his earning capacity. In that view of the matter, having regard to the date of accident, we would proceed to notionally assess the income of the appellant/claimant at Rs.9,000/- and by assessing disability at 9% and by applying the multiplier of 16, the compensation payable under the head future loss

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of earnings works out to Rs.1,55,520/-

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(9000x12x16x9%). Since we have awarded the compensation to the tune of Rs.1,55,520/- under the head of future loss of earnings, the amount of Rs.15,000/- awarded towards disability is set aside. Towards conveyance, food, nourishment and attendant charges, a sum of Rs.10,000/- is awarded. Having regard to the nature of injuries and considering that the appellant/claimant has taken treatment for a period of three months, we deem it fit to award a sum of Rs.27,000/- (9,000x3) towards loss of income during laid up period. Hence, the compensation re-determined by this Court under

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different heads are as under:

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Sl. No.	Heads	Amount in Rs.
1	Pain and Sufferings	25,000
2	Medical expenses	21,367
3	Conveyance, food, nourishment,	10,000
	attendant charges

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4	Future loss of earnings	1,55,520
5	Loss of amenities and unhappiness	20,000
6	Future medical expenses	10,000
7	Loss of income during laid up period	27,000
	Total	2,68,887

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Hence, the following:

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ORDER

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i) The appeal is allowed in part. ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.2,68,887/- as against Rs.1,10,400/- with interest at the rate of 6% per annum from the date of the claim petition till its realization.

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iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact.

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iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of

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receipt of the certified copy of the judgment and order.

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v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal.

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vi) Draw modified award accordingly.

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vii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith.

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viii) All pending I.As., stand disposed of.

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Sd/JUDGE

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Sd/JUDGE

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Sri. D Niranjanamurthy v. the New India Insurance Company Ltd.

Case brief

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Sri. D Niranjanamurthy v. the New India Insurance Company Ltd.

Case brief

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