Partly allowed

Sri K Armugam v. the Managing Director

Karnataka HC4 Dec 2021MFA/11120/2011

Case brief

AI extract

What is this about?

In a motor accident compensation appeal, the High Court found the Tribunal's award inadequate regarding income proof and specific compensation heads. It recalculated awards for loss of future income, treatment period earnings, and amenities, increasing the total from Rs.98,020 to Rs.1,56,200.

What did the court decide?

Impugned award modified; total compensation fixed at Rs.1,56,200 to be deposited by respondents within six weeks.

Sri K Armugam Vs the Managing Director — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 04^TH DAY OF DECEMBER 2021

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BEFORE

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THE HON'BLE MR.JUSTICE P.N.DESAI

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M.F.A. NO.11120 OF 2011 (MV)

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BETWEEN:

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SRI K ARMUGAM, S/O KANDASWAMY GOUNDER, AGED ABOUT 55 YEARS, R/O T.G.COLONY, ADIVALA POST - 577 511, HIRIYUR TALUK.

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(BY SHRI N.R.RANGE GOWDA, ADVOCATE)

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AND:

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THE MANAGING DIRECTOR, HEWELETT PACKARD GLOBAL SOFT PVT. LTD., PARAMES CHIDAMPARAM, HP AVENUE, 39/40, ELECTRONICS, HOSUR ROAD, BANGALORE - 560 129.

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THE BRANCH MANAGER, BRANCH OFFICER, THE TATA AIG GENERAL INSURANCE CO. LTD., 5^TH FLOOR, WEST ENTRENSS, KHANIJA BHAVANA, RACE COURSE ROAD, WEST SIDE, BANGALORE - 560 001.

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…RESPONDENTS

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(BY SHRI SHRIPAD V SHASTRI, ADVOCATE FOR R1, SHRI K KISHOR KUMAR REDDY, ADVOCATE FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED: 12.04.2011 PASSED IN MVC NO.160/2009 ON THE FILE OF SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MACT, HIRIYUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the appellant challenging the judgment and award passed by the Senior Civil Judge and Member and Additional Motor Accident Claims Tribunal, (for short hereinafter referred to as ‘Tribunal’), Hiriyur, in MVC No.160/2009 dated 12.04.2011, wherein the claim petition filed by the appellant/ petitioner came to be allowed in part by awarding compensation of Rs.98,020/- with interest at 6% p.a.

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Brief case of the petitioner/ appellant before the tribunal is that on 01.01.2009 at about 07:45 p.m., when the petitioner along with his friend were waiting for the bus to go to Bengaluru, at that time, one Innova car bearing Reg. No.KA-01/MC-4647 came from Hiriyur side with a high speed in a rash and negligent manner and dashed against

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the claimant near Jailabbin house at Adivala on Puna - Bengaluru road and caused the accident. Due to the said accident, the petitioner sustained grievous injuries and he was admitted to the Government Hospital, Hiriyur. Thereafter, as per the advice of the Doctor, the petitioner was shifted to Hosmat Hospital, Bengaluru. There he took treatment as an inpatient for a period of 30 days and underwent surgery. He contended that due to the actionable negligence on the part of the driver of the offending vehicle, the accident occurred. Hence, he filed a claim petition before the tribunal claiming compensation.

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Inspite of sufficiency of service of notice,

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respondent No.1 - owner remained absent before the tribunal. The insurance company – respondent No.2 appeared and filed written statement. It is contended by the respondent No.2 that the offending vehicle was duly insured with respondent No.2, but they have denied the other contentions of the petitioner as false and contended that the petitioner be put to strict proof of his contentions and the liability is only as per the terms of policy and if there is any violation of policy, respondent No.2 is not liable

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to pay the compensation. With these main contentions, learned counsel for respondent No.2 prayed to dismiss the claim petition.

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After considering the pleadings and contentions

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of the parties, the tribunal framed the following issues:

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“1. Whether the petitioner proves that he sustained injuries in a motor vehicle accident that occurred on 1-1-2009 at about 7:45 p.m. near Jailabbin house on the NH-4 Road, Adivala, Hiriyur Taluk on account of actionable negligence of driver of Innova Car bearing Reg. No.KA-01/MC4647?

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2. Whether the respondent No.2 Company proves that the accident occurred on account of actionable negligence of petitioner himself in immediately crossing the road?

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3. Whether the petitioner is entitled to compensation? If so, what is the amount and who is liable to pay?

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4. What order or award?"

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Before the tribunal, the petitioner himself got examined as PW.1 and examined one witness Dr.Ambrish as PW.2 and got marked eleven documents consisting of FIR, seizure mahazar, spot mahazar, IMV report, wound certificate, charge sheet, disability certificate, X-ray film and RTC extracts. The respondents neither adduced evidence nor produced any documents.

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After hearing the arguments, the tribunal awarded compensation of Rs.98,020/- with interest at the rate of 6% per annum. Being not satisfied with the quantum of compensation, the appellant has preferred this appeal.

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Heard Sri. N.R.Range Gowda, learned counsel for the appellant, Sri. Shripad V.Shastri, learned counsel for respondent No.1 and Sri. K.Kishor Kumar Reddy, learned counsel for respondent No.2 - Insurance company.

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Learned counsel for the appellant mainly argued that the income of the petitioner considered by the tribunal for awarding compensation is very much on the lower side, as he was an agriculturist and earning more than

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Rs.20,000/- per month prior to the accident, therefore, the tribunal ought to have taken his monthly income considering his avocation. Further, the tribunal has awarded very meager amount towards 'attendant charges', 'loss of income during treatment period', 'loss of earning due to disability' and no compensation is awarded towards 'future unhappiness or amenities'. Therefore, learned counsel argued to modify the compensation awarded by the tribunal and prayed for enhancement of compensation.

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Against this, learned counsel for the respondent No.2 insurance company supported the impugned judgment and award and contended that the petitioner has not produced any document in proof of the amount which was spent towards his treatment and also there is no record to show that he took treatment as an inpatient for a period of one month in Hosmat Hospital, Bengaluru. Hence, justified the compensation awarded by the tribunal.

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I have considered the arguments of learned counsel for the parties, perused the impugned judgment

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and award passed by the tribunal, appeal memo and also records of the tribunal.

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The occurrence of the accident is not in dispute. The insurer has admitted that the policy was in force as on the date of the accident and liability of the insurance company is also not in dispute. The only question that remains for consideration before this court is "whether the compensation awarded under different heads by the tribunal is just, fair and reasonable or not" ?

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The petitioner has produced RTC's standing in his name as per Exs.P9, 10 & 11 to show that he has got agricultural land. Ofcourse, he has not produced any document to show his exact income. It is also evident that the petitioner is getting income from his agricultural land. Therefore, it appears that till today, he is cultivating the land. In the absence of proof of income, the tribunal has taken Rs.3,000/- per month only as his monthly income. In my considered view, the income of Rs.3,000/- per month is very much on the lower side. The accident occurred in the year 2009. Even for a person who is having no exact

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records to prove his monthly income, as per notional income chart which is accepted in the Lok-Adalath, for the year 2009, the monthly income could be taken at Rs.5,000/- per month which is in my considered view is just and reasonable. Therefore, taking the monthly income of petitioner at Rs.5,000/- per month, as the claimant was aged about '55' years, the appropriate multiplier applicable to the age group of petitioner is "11," as per the decision of Hon’ble Supreme Court in the case of SARLA

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VERMA(SMT) AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER, (2009) 6 SCC 121 and taking the disability of claimant at 12%, the compensation towards "loss of future income " works out to Rs.79,200/- (Rs.5,000 x 12 x 12% x 11). The tribunal has awarded a sum of Rs.32,000/- towards "pain and suffering" which is just and proper as the evidence of Doctor indicates that the claimant has sustained malunited fracture of lateral tibial condyle with irregular articular surface due to the accident and further the Doctor has stated that he has no evidence to show that the petitioner took treatment as an inpatient in the Hosmat

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Hospital, Bengaluru and regarding taking further treatment after getting discharged from the Hosmat Hospital, Bengaluru. The tribunal has awarded a sum of Rs.5,000/- towards "medical expenses" which needs no interference by this Court.

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Towards ”loss of earning during treatment period" is concerned, the tribunal has awarded a sum of Rs.3,000/- per month which is on the lower side. The petitioner has sustained fracture to his leg and it requires atleast minimum three months rest and when there is a fracture to the leg, the person may not be able to work properly as he was doing earlier to the accident. Hence, "loss of earning during treatment period" comes to Rs.5,000 x 3 = 15,000/- . Towards "attendant charges," the tribunal has awarded a sum of Rs.500/- which is very meager and looking to the cost of living during the year 2009, it is just and proper to award a sum of Rs.5,000/- under the said head. The tribunal has awarded a sum of Rs.10,000/- per month towards "future medical expenses" which is just and proper and no interference is called for.

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The tribunal has not awarded compensation

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towards "loss of amenities" or "future unhappiness". It is evident from the evidence of PW.2-Doctor that he has not actually treated the petitioner and he has only issued disability certificate. On the other hand, he has admitted in the cross-examination that he has not seen the petitioner being taken further treatment. The petitioner himself has stated that he has not taken any further treatment after one year of the accident and that he states that there is some inconvenience for standing, sitting and squatting the leg. However, taking into consideration the age, avocation and nature of the injuries sustained by the petitioner and as there is a bone grafting and as the petitioner has to lead rest of his life with the disability and has to suffer discomfort and unhappiness, therefore, it is just and proper to award a sum of Rs.10,000/- towards "loss of amenities".

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In the result, considering the nature of injuries, evidence of the appellant, the compensation awarded by the tribunal need to be rejudged and the compensation

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awarded by the tribunal is recalculated under different heads of compensation as under:

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Sl. No.	Particulars	Compensation awarded by the tribunal	Compensation re-determined by this court
1.	Towards pain and suffering	Rs.32,000/-	Rs.32,000/-
2.	Towards medical expenses	Rs. 5,000/-	Rs. 5,000/-
3.	Towards loss of earning during treatment period	Rs. 3,000/-	Rs.15,000/-
4.	Towards attendant charges	Rs. 500/-	Rs. 5,000/-
5.	Towards future medicalexpenses	Rs.10,000/-	Rs.10,000/-
6.	Towards future loss of income	Rs.47,520/-	Rs.79,200/-
7.	Loss of amenities	----	Rs.10,000/-
	Total	Rs. 98,020/-	Rs.1,56,200/-

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In the result, I pass the following:

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ORDER

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(i) The appeal is partly allowed;

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(ii) The impugned judgment and award dated

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12.04.2011 passed by learned Senior Civil Judge and

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Member, Addl. MACT, Hiriyur, in MVC No.160/2009 having been modified, the appellant is entitled for a total compensation of Rs.1,56,200/- (Rupees One lakh fifty six thousand two hundred only).

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(iii) The other conditions of the tribunal regarding apportionment and interest remains unaltered.

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(iv) The respondents shall deposit the compensation amount within six weeks from the date of receipt of a certified copy of this order.

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(v) Costs made easy.

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(vi) Send back the records to the tribunal.

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Sd/JUDGE

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Sri K Armugam v. the Managing Director

Case brief

What is this about?

What did the court decide?

Sri K Armugam v. the Managing Director

Case brief

What is this about?

What did the court decide?

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